J-S57016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.K.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.M., MOTHER
No. 700 EDA 2015
Appeal from the Order February 12, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000592-2014
_____________________________________________________________
IN THE INTEREST OF: K.K.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.M., MOTHER
No. 701 EDA 2015
Appeal from the Order February 12, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000593-2014
_____________________________________________________________
IN THE INTEREST OF: S.M.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.M., MOTHER
No. 702 EDA 2015
J-S57016-15
Appeal from the Order February 12, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000594-2014
_____________________________________________________________
IN THE INTEREST OF: K.K.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.M., MOTHER
No. 703 EDA 2015
Appeal from the Order February 12, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000595-2014
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 17, 2015
E.M. (Mother) appeals from the decrees entered on February 12, 2015,
in the Court of Common Pleas of Philadelphia County that terminated her
parental rights to her four children following a voluntary relinquishment
proceeding. Concomitantly, counsel for Mother has filed a petition for leave
to withdraw as counsel and an Anders1 brief. The two issues identified in
the Anders brief are (1) whether counsel was ineffective, and (2) whether
the court erred in failing to consider whether a natural bond exists between
child and parent, and whether termination would destroy an existing,
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1
Anders v. California, 386 U.S. 738 (1967).
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necessary and beneficial relationship. Based upon the following, we affirm
and grant the petition for leave to withdraw.2
The trial court has aptly summarized the facts of this case as follows:3
The dates of birth of the children are: K.T. on [], 2007, K.T. on
[], 2008, S.T. on [], 2012 and K.T. on [] 2006.
On November 15, 2012, DHS [Philadelphia Department of
Human Services] received a Child Protective Services (CPS)
[report] alleging that K.T.’s (d.o.b. []-08) hands and feet were
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2
In light of the Supreme Court’s admonishment of this Court in regard to
delays in Fast Track cases, see In re T.S.M., 71 A.3d 251, 261 n.21 (Pa.
2013) (stating that “repeated delays” were not fully explained), we note that
the above-listed, consolidated cases were delayed for panel listing because
the Philadelphia County Court of Common Pleas sent the certified record to
this Court well past the due date.
The certified records in the above-captioned cases were originally due
April 13, 2015. Appointed counsel had filed praecipes to discontinue the
appeals at 694, 696, 697, and 698 EDA 2015, which were counseled appeals
that were apparently duplicative of the above-captioned, pro se appeals. By
Order dated March 31, 2015, this Court remanded to the trial court for a
period of thirty days to determine whether appointed counsel should be
permitted to withdraw and if appointment of new counsel was necessary.
On April 27, 2015, the trial court indicated it had permitted original counsel
to withdraw, and had appointed new counsel to represent Mother.
Thereafter, in May and June, despite inquiries from this Court to the trial
court concerning return of the record, this Court did not receive the certified
record until June 12, 2015.
As a result, the briefing schedule for these cases was delayed by
nearly two months, due solely to the overdue records. Furthermore, in filing
the Anders brief, appointed counsel initially failed to provide this Court with
a requisite copy of the letter sent to Mother explaining her rights, which
further delayed the listing of the appeals.
3
The birth dates of the minor children have been redacted except as to year
to protect the privacy of the children.
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bound with duct tape, his hands were taped behind his back, and
a rope was tied around his waist and attached to a shelf in the
bathroom closet of the family’s home. A photograph had been
taken of the scene. Maternal grandmother had removed the child
from the situation. The report was indicated.
On November 15, 2012, DHS visited the home. Mother and
maternal grandmother stated that they were unaware who had
bound the child. The child stated that he was bound and placed
in the closet by the Mother.
On November 15, 2012, DHS obtained an [O]rder of Protective
Custody (OPC) for the children and placed them in foster care.
Two of the children were placed in the home where they are still
residing and the other two were placed in the same home on
December 4, 2012.
A shelter care hearing was held on November 16, 2012 before
Master Carol A. Carson. Master Carson lifted the OPC and
ordered that the children be temporarily committed to DHS.
On November 29, 2012, an adjudicatory hearing was held before
the Honorable Jonathan Q. Irvine. Judge Irvine adjudicated the
children dependent and committed them to DHS.
On February 28, 2013, Judge Irvine found clear and convincing
evidence had been presented to establish aggravated
circumstances existed as to E.M. regarding K.T. (d.o.b. []-08).
On May 16, 2013, Judge Irvine found aggravated circumstances
as to E.M. in the cases of the three other children.
The matter was then listed on a regular basis before judges of
the Philadelphia Court of Common Pleas - Family Court Division -
Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
Pa.C.S.A. § 6351, and evaluated for the purpose of determining
or reviewing the permanency plan of the child.
In subsequent hearings, the DRO’s [Dependency Review Orders]
reflect the Court’s review and disposition as a result of evidence
presented, addressing, and primarily with, the goal of finalizing
the permanency plan.
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On November 20, 2014[,] E.M.[,] mother, executed voluntary
relinquishment petitions [and consents to adoption with respect
to her four children].
On December 17, 2014[,] E.M. sent a letter to DHS revoking the
voluntary relinquishment petitions.
Subsequently, at a hearing on February 12, 2015, the mother,
E.M., changed her mind and withdrew her letter of revocation
regarding the voluntary relinquishment petitions. The mother
requested that the Court proceed on her voluntary
relinquishment petitions. Therefore, the Trial Court issued a
decree of voluntary termination of parental rights of E.M. and
transferred custody of the children to DHS in accordance with
the mother’s request.
Trial Court Opinion, 6/9/2015, at 1–2.4 Following the entry of the trial
court’s voluntary termination decrees, Mother appealed.5, 6
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4
For the sake of completeness, we note the court also involuntarily
terminated the parental rights of the father of K.T., K.T., and K.T., and
confirmed the consent to adoption of the father of S.M.T.
5
On March 12, 2015, along with the notice of appeal, Mother’s counsel filed
a Pa.R.A.P. 1925(b) statement, stating “[t]he only issue that could possibly
be raised is whether [Mother’s] consent was legally obtained prior to the
termination of her parental rights on February 12, 2015.” Mother’s
Statement of Matters Complained of on Appeal Pursuant to [Pa.]R.A.P.
1925(b), 3/12/2015, at ¶2.
We note that on April 21, 2015, the trial court permitted Mother’s
counsel to withdraw, and appointed new counsel to represent Mother on
appeal.
6
On March 10, 2015, Mother herself filed a pro se notice of appeal and Rule
1925(b) statement, claiming that “I was told if I sign over my rights the
children were going to stay with grandmother,” that “I have a learning
disability and was lied to by the DHS worker and appointed counsel,” and
that appointed counsel “never helped me understand the petitionS I signed.”
Mother’s Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b), pro se, 3/10/2015. However, since Mother was represented by
(Footnote Continued Next Page)
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Our standard of review is as follows:
When reviewing a decree entered by the Orphans’ Court, this
Court must determine whether the record is free from legal error
and the court’s factual findings are supported by the evidence.
Because the Orphans’ Court sits as the fact-finder, it determines
the credibility of the witnesses, and on review, we will not
reverse its credibility determinations absent an abuse of that
discretion.
In re A.J.B., 797 A.2d 264, 266 (Pa. Super. 2002). Our Supreme Court has
explained that “[a] party seeking to disturb a termination decree must show
that the consent given to terminate parental rights was not intelligent,
voluntary and deliberate.” In re M.L.O., 416 A.2d 88, 90 (Pa.
1980)(citations omitted).
Prior to addressing the issues identified in this appeal, we must review
counsel’s petition to withdraw. See Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa. Super. 2013) (en banc) (“Initially, we note that we may not
address the merits of the issue raised on appeal without first reviewing the
request to withdraw.”).
In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court
extended the ability of counsel to withdraw when counsel believed an appeal
to be frivolous to appeals involving the termination of parental rights. We
stated that counsel appointed to represent an indigent parent on an appeal
_______________________
(Footnote Continued)
counsel, her pro se filings were legal nullities. See Commonwealth v.
Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993) (“Ellis II”) (holding there is
no right to hybrid representation either at trial or on appeal).
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from a decree terminating parental rights may, after a conscientious and
thorough review of the record, petition this Court for leave to withdraw as
counsel and must submit an Anders brief. Id. at 1275. In this regard, this
Court has explained:
In order to comply with Anders and its Pennsylvania progeny,
counsel must:
(1) petition the court for leave to withdraw stating that
after making a conscientious examination of the record
and interviewing the defendant, counsel has determined
the appeal would be frivolous;
(2) file a brief referring to anything that might arguably
support the appeal, but which does not resemble a “no
merit” letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise
him of his right to retain new counsel, proceed pro se or
raise any additional points that he deems worthy of the
court’s attention.
In re S.M.T., 856 A.2d 1235, 1237 (Pa. Super. 2004).
Further, in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
the Pennsylvania Supreme Court addressed the second requirement of
Anders — the contents of the Anders brief — and held that the brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
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case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.7
Our review confirms counsel has complied with the requirements of
Anders and Santiago. We also require counsel to send a letter advising
the appellant of his or her rights, and counsel has satisfied this Court that he
has done so. Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.
2005).8, 9
Therefore, we proceed “to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Commonwealth v. Flowers, 113 A.3d
1246, 1248 (Pa. Super. 2015) (citation omitted). In so doing, we review not
only the issues identified by appointed counsel in the Anders brief, but
examine all of the proceedings to “make certain that appointed counsel
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7
Counsel concludes that, “[w]ith such a limited standard of review, following
an interview with Mother and thorough review of the record and trial court’s
opinion, it is wholly without merit to argue that [sic] the first issue that trial
counsel was ineffective.” Anders Brief at 21–22. Counsel further states
“[b]ecause the [Pa.R.A.P. 1925(b)] statement of errors does not include the
second issue, it is waived.” Id. at 22.
8
A per curiam Order was filed on July 10, 2015, directing counsel to provide
the Prothonotary of this Court with a copy of the letter he sent to Mother
informing her of her right to retain counsel or proceed pro se in these
appeals. A copy of counsel’s letter to Mother was received by this Court on
July 27, 2015.
9
Mother has not filed a response to counsel’s Anders brief and petition to
withdraw.
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has not overlooked the existence of potentially non-frivolous issues.” Id. at
1249.
The first issue discussed in the Anders brief by whether trial counsel
was ineffective, specifically, in failing to help Mother understand the
voluntary relinquishment petitions. See Anders Brief at 16–17.
This Court has explained an indigent person’s right to counsel in a
termination hearing as follows:
The unique nature of parental termination cases has long been
recognized by the Supreme Court of Pennsylvania. Thus, In re
Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (Pa. 1973), the
Supreme Court held that an indigent parent in a termination of
parental rights case has a constitutional right to counsel. The
right to counsel in parental termination cases is the right to
effective assistance of counsel even though the case is civil in
nature. In re Adoption of T.M.F., 392 Pa. Super. 598, 573
A.2d 1035 (Pa. Super. 1990) (en banc); see also, In the
Interest of S.W., 2001 Pa. Super 228, 781 A.2d 1247 (Pa.
Super. 2001). However, this right is more limited than that in
criminal cases, as claims of ineffective assistance of counsel
must be raised on direct appeal. We then review the record as a
whole to determine whether or not the parties received a
“fundamentally fair” hearing; a finding that counsel was
ineffective is made only if the parent demonstrates that
counsel’s ineffectiveness was “the cause of the decree of
termination.” T.M.F., 573 A.2d at 1044; see also, S.W., 781
A.2d at 1249.
In the Interest of J.T., 983 A.2d 771, 774–775 (Pa. Super. 2009).
Mother, on November 20, 2014, for each child, signed a petition for
voluntary relinquishment of parental rights, see 23 Pa.C.S. § 2501, and, as
well, signed a consent to adoption that was attached to the petition.
Thereafter, on December 17, 2014, Mother wrote a letter to DHS indicating
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she had changed her mind about consenting to the termination of her
parental rights. See N.T., 2/12/2015, at 7. However, at the hearing held
on February 12, 2015, Mother stated on the record that she wished to
withdraw the letter and proceed on the petitions to voluntarily relinquish her
parental rights to the children. Id.
Following a colloquy of Mother by her appointed counsel, the trial court
entered decrees of voluntary termination of parental rights of mother as to
each child, stating “[E.M.] has relinquished forever all his/her parental rights
in and to his/her minor child, [child’s name] and parental rights are hereby
terminated. The custody of [child’s name] is hereby transferred to the
Philadelphia Department of Human Services. ….” Decrees, 2/12/2014. In
addition, by these decrees, petitions to confirm consent to terminate
parental rights and to involuntarily terminate parental rights were
withdrawn. See id.
The trial court, in its opinion written in support of its decision,
explained:
A parent may relinquish their parental rights to an agency under
23 Pa.C.S.A. § 2501:
(a) Petition. --When any child under the age of 18 years
has been in the care of an agency for a minimum period
of three days or, whether or not the agency has the
physical care of the child, the agency has received a
written notice of the present intent to transfer to it
custody of the child, executed by the parent, the parent
or parents of the child may petition the court for
permission to relinquish forever all parental rights and
duties with respect to their child.
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The parent’s consent to relinquish parental rights must be
intelligent, voluntary and deliberate. In re Watson, 450 Pa.
579, 301 A.2d 861 (1973). In the instant case, the mother, E.M.
was colloquied by her attorney regarding her request to revoke
her revocation letter. Furthermore, she was colloquied by her
attorney regarding her request to proceed on her voluntary
relinquishment petitions. The mother testified that she did sign
consents to terminate her parental rights on a voluntary basis;
she read and understood the documents she signed and
understood her signature indicated that she gave up her parental
rights. (N.T., 2-12-15, pgs. 5-9). Furthermore, E.M. testified that
no one promised her anything or forced her to sign the
document. (N.T., 2-12-15, p. 9). Moreover, E.M. testified that
she understood the procedure for revoking her consent because
she wrote a letter to DHS revoking her consent to voluntarily
terminate her parental rights just short of the thirty day
revocation deadline. (N.T., 2-12-15, p. 6). The mother, E.M.,
clearly testified that she changed her mind and wanted to
rescind that letter. Lastly, the Court sent mother and her
attorney out of the courtroom to confer with her regarding her
revocation request. The Court stated to mother’s attorney “Take
a moment and step out in the hall with mom, I just want it her
to be one hundred percent sure”. (N.T., 2-12-15, p. 6).
As explained in the initial Decrees, the Trial Court found the [sic]
E.M. relinquished forever all her parental rights in and to her
minor children and her parental rights are terminated.
Trial Court Opinion, 6/9/2015, at 3.
Our review of the record confirms the trial court’s account of the
colloquy by Mother’s counsel and its assessment of Mother’s consent.
Mother indicated to the court she wished to withdraw her revocation of
consent letter, wanted to proceed with the petition to voluntarily terminate
her parental rights, and was “willing to by consent give up [her] parental
rights to [her] children.” N.T., 2/12/2015, at 9. She further testified no one
had forced her to sign the consent and that no promises had been made to
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her in exchange for her consent. See N.T., 2/12/2015, at 9. Based on this
colloquy, Mother cannot show she did not receive a “fundamentally fair”
hearing or demonstrate that counsel’s ineffectiveness was “the cause of the
decree of termination.” Interest of J.T., supra, 983 A.2d at 775.
Accordingly, we conclude this ineffectiveness issue is frivolous.
The second issue identified in the Anders brief is that the court failed
to consider whether a natural bond exists between the children and parent,
and whether termination would destroy an existing, necessary and beneficial
relationship.
We note that Mother failed to include this specific challenge in her
counseled Rule 1925(b) statement and, therefore, the issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”). In any event, Section 2511(b) of the Adoption Act requires the
court to “give primary consideration to the developmental, physical and
emotional needs and welfare of the child,” in involuntary termination
proceedings. 23 Pa.C.S. § 2511(b). Here, however, Mother’s parental rights
were voluntarily terminated under 23 Pa.C.S. § 2501. Consequently, any
issue related to the inadequacy of the evidence under section 2511 bears no
relevance to the trial court’s order, and is frivolous.
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In sum, we conclude the issues presented in this appeal are frivolous,
and our independent review of the record reveals no non-frivolous issues.
Accordingly, we affirm.
Decrees affirmed. Petition for leave to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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