J-S24016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.S., FATHER,
No. 1290 MDA 2015
Appeal from the Decree June 22, 2015
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 84154
IN RE: M.S., JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.S., FATHER,
No. 1291 MDA 2015
Appeal from the Decree June 22, 2015
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 83169
IN RE: T.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.S., FATHER,
No. 1292 MDA 2015
Appeal from the Decree June 22, 2015
In the Court of Common Pleas of Berks County
J-S24016-16
Orphans' Court at No(s): 83168
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 01, 2016
M.S. (“Father”) appeals from the June 22, 2015 decrees that granted
the petitions filed by Berks County Children and Youth Services (“BCCYS”) to
terminate his parental rights to his three children, T.S., M.S., Jr., and L.S.1
As the lack of relevant transcripts precludes our review of Father’s issue and
Father has implicitly abandoned this appeal, we hereby affirm and grant
private counsel’s request to withdraw from representation.
This family has a protracted history with child service agencies that
preceded the births of T.S. in 2007, M.S., Jr. in 2008, and L.S. during 2013,
respectively. We do not revisit those proceedings herein. As it relates to
the children in the above-captioned appeals, the orphans’ court summarized
the facts and procedural history as follows:2
[O]n August 24, 2012, BCCYS took emergency custody of . . .
T.S., and M.S., Jr. A detention hearing was held on August 27,
2012, and the . . . children remained in placement. Both Mother
and Father tested positive for cocaine and opiates at the time.
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1
The orphans’ court also terminated the parental rights of birth mother.
2
As noted in the body of this memorandum, Father declined to make
arrangements with the court reporter to produce a transcript of the
evidentiary hearing. Thus, no written record of testimony exists. The
orphans’ court relied upon its recollection of the hearing and approximately
195 pages of exhibits to summarize the underlying facts and address the
merits of Father’s argument. The exhibits were not included in the certified
record transmitted to this Court on appeal.
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Mother also tested positive for methamphetamines,
amphetamines, and benzodiazepines. The [two] children were
declared dependent on August 29, 2012, and temporary custody
was transferred to BCCYS for placement purposes. Mother and
Father were ordered to participate in supportive, community
based services. [BCCYS filed petitions to terminated Mother and
father’s parental rights to T.S. and M.S. but the petitions were
withdrawn on November 26, 2013 because the children had been
reunited with Mother and Father. Meanwhile, L.S. was born
during October 2013.]
Mother and Father were minimally compliant with services
initially after the placement. Both Mother and Father failed to
attend domestic violence evaluations, failed to comply with
[substance abuse] evaluations, and minimized their mental
health and substance abuse issues.
....
BCCYS filed a Petition for Emergency Custody on October
7, 2014, alleging the inability to assure the safety and well -
being of T.S., M.S., Jr., and L.S. so long as they remained in the
care of Mother and Father. BCCYS asserted that the children's
safety was threatened as a result of Mother's relapse on
methamphetamines as well as Father being indicated as a
perpetrator of sexual abuse. The three children were ordered to
remain in foster care pending a full hearing. On October 15,
2014, Judge Scott D. Keller ordered that T.S., M.S., Jr., and L.S.
were dependent children, and that temporary legal custody
transferred to BCCYS for placement purposes with a concurrent
goal of adoption and return to the most appropriate parent. . . .
Trial Court Opinion, 8/24/15, at 8-10 (citations omitted).
On April 9, 2015, BCCYS filed petitions to terminate Mother and
Father’s parental rights to T.S., M.S., Jr., and L.S. pursuant to 23 Pa.C.S. §
2511(a)(1) and (2). On April 21, 2015, the Court appointed counsel for the
children, issued notice to Father of his right to counsel, and provided Father
with an affidavit of destitution to complete if he desired free legal
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representation. There is no indication in the record that Father completed
the affidavit or requested the assistance of appointed counsel. Instead,
Father retained Francis Walsh, Esquire, who entered his appearance on June
22, 2015. Following an evidentiary hearing, the orphans’ court entered an
order terminating Father’s parental rights to T.S., M.S., Jr., and L.S. These
appeals followed, which we consolidated sua sponte.
Father failed to file statements of errors complained of on appeal
concurrent with his notices of appeal as directed by Pa.R.A.P. 1925(a)(2)(i).
Instead, twenty-two days after the appeals were filed, he submitted Rule
1925(b) statements that raised the identical complaint:
The evidence presented against the . . . Father at the
Termination of Parental [Rights] Hearing was insufficient to
terminate his rights because the competence [sic] evidence did
not show that [Father] abandoned, neglected, nor abused [T.S.,
M.S., Jr., and L.S.].
Concise Statement of Matters Complained of on Appeal, 8/13/15, at 1.
On September 13, 2015, Attorney Walsh filed an application with this
Court requesting a sixty-day extension of time to submit Father’s brief,
which was originally due on September 28, 2015. Noting that the instant
consolidated appeals were designated as Children’s Fast Track cases, we
granted the request partially and extended the due date until October 16,
2015. Father failed to satisfy that deadline, and on November 24, 2015, we
entered an order directing counsel to file Father’s brief within fourteen days
or face potential sanctions.
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Attorney Walsh failed to file Father’s brief by November 24, 2015.
Instead, on December 10, 2015, he filed a motion to withdraw the
consolidated appeals. In that motion, Attorney Walsh averred that Father
refused to pay the costs associated with obtaining the notes of testimony
from the June 22, 2015 evidentiary hearing, ignored counsel’s repeated
attempts to contact him by telephone, and disregarded the efforts of
Father’s brother, Attorney Walsh’s client in an unrelated matter, to have
Father participate in this appeal. After Attorney Walsh left Father a
telephone message advising him that he intended to seek the withdrawal of
these appeals if Father continued to avoid him, Father still refused to
establish contact.
On December 15, 2015, this Court denied counsel’s motion to
withdraw the consolidated appeals, and instructed counsel to file a petition
to withdraw as counsel pursuant to Anders v. California, 386 US 738
(1967), if warranted, and to comply with the procedural dictates of Anders
and its progeny. We mailed Father a copy of that order, but he did not
respond. On December 24, 2015, counsel for Father filed an Anders brief
and a petition to withdraw from representation. He avowed, “[Father] has
basically abandoned this appeal.” Anders brief at 10. This Court entered
an order on January 11, 2016, wherein it deferred the disposition of the
petition to this panel and notified Father directly that “he may file a brief
either on his own behalf or through newly retained counsel . . . no later than
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twenty-one (21) days from the date of this order.” Per Curiam Order,
1/11/16, at 1. Father neglected to respond or file a merits brief.
At the outset, we address Father’s failure to obtain the notes of
testimony and observe that the omission prevents our review of the issues
raised in the consolidated appeal.3 In Commonwealth v. Preston, 904
A.2d 1, 6–7 (Pa.Super. 2006) (en banc), this Court discussed the
significance of the certified record when addressing the merits of an
appellate argument. We explained,
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. This requirement is not a mere “technicality” nor is this a
question of whether we are empowered to complain sua sponte
of lacunae[4] in the record. In the absence of an adequate
certified record, there is no support for an appellant's arguments
and, thus, there is no basis on which relief could be granted.
Id. at 6–7 (internal citations omitted).
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3
As we may not address the merits of the appeal without first reviewing an
attorney’s request to withdraw, we generally dispose of Anders petitions at
the outset of our review. Commonwealth v. Rojas, 874 A.2d 638, 639
(Pa.Super. 2005). However, mindful of the fact that Attorney Walsh is
seeking to withdrawal based upon Father’s abandonment of this appeal, as
evinced by his refusal to contact counsel and confirm the request for the
notes of testimony, we discussed that issue first as a matter of judicial
convenience.
4
Merriam-Webster.com defines lacuna as “a blank space or a missing part.”
See http://www.merriam-webster.com/dictionary/lacuna
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As the appellant, it was Father’s fundamental responsibility to ensure
that the certified record contained all of the materials necessary for
appellate review. Instantly, however, Father inexplicably failed to request
the notes of testimony from the June 22, 2015 hearing concerning the
termination of his parental rights to his three children. Pennsylvania Rule of
Appellate Procedure 1911 outlines the requirement to obtain transcripts for
appellate review as follows:
(a) General rule. The appellant shall request any transcript
required under this chapter in the manner and make any
necessary payment or deposit therefor in the amount and within
the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
Rules of Judicial Administration (court reporters).
....
(d) Effect of failure to comply. If the appellant fails to take
the action required by these rules and the Pennsylvania Rules of
Judicial Administration for the preparation of the transcript, the
appellate court may take such action as it deems appropriate,
which may include dismissal of the appeal.
Pa.R.A.P. 1911(a) and(d). Father neglected this obligation.
Moreover, recognizing that an indigent parent should not be held
responsible for the costs associated with transcribing the evidentiary
hearing, we observe that the certified record confirms that Father was never
designated in forma pauperis (“IFP”) status in this appeal nor has he averred
that he is indigent at any point in the present orphans’ court proceedings.
See Pa.R.A.P. 551 (“A party who has been granted leave by a lower court to
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proceed in forma pauperis may proceed in forma pauperis in an appellate
court[.]”). Similarly, there is no indication that Father advised Attorney
Walsh to request automatic approval of IFP status pursuant to Rule 552(d),
which provides (“If the applicant is represented by counsel who certifies on
the application or by separate document that the applicant is indigent and
that such counsel is providing free legal service to the applicant, the clerk of
the lower court shall forthwith enter an order granting the application.”).
Indeed, Father paid the $85.00 filing fee with his notice of appeal, and as
noted supra, the record is clear that Father neglected to complete the
affidavit of destitution that BCCYS served on him contemporaneously with its
notice of the present petition to involuntarily terminate his parental rights.
Thus, even to the extent that the cost associated with transcribing the notes
of testimony might have caused Father to cease litigating this appeal, that
circumstance does not excuse his inaction in light of his failure to seek IFP
status.
Additionally, we note that Attorney Walsh was not obligated to pay for
the notes of testimony. It is beyond cavil that a non-indigent defendant
bears the financial burdens associated with his criminal defense. See
Commonwealth v. Novak, 150 A.2d 102, 109 (Pa. 1959) (“It is the client’s
responsibility and not the attorney’s to pay for the heavy costs of trial.”).
While Novak is a criminal case, considering the nature of the involuntary
termination proceedings, this principle applies equally, herein. Thus, absent
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the orphans’ court’s determination that Father could not afford to contest
BCCYS’s petition to terminate his parental rights, Father is required to fulfill
the financial obligations of his defense.
Having addressed Father’s obligation to obtain the relevant notes of
testimony, we next discuss how that omission impedes our ability to conduct
meaningful appellate review of the orphans’ court’s order terminating his
parental rights. See Preston, supra at 6-7. Without the transcripts from
the evidentiary hearing, we cannot address Father’s challenge to the
sufficiency of the evidence supporting the orphans’ court’s determination,
the only challenge that he raised in the Rule 1925(b) statement.
Accordingly, the issue is waived. Commonwealth v. Little, 879 A.2d 293,
301 (Pa.Super. 2005) (appellant’s failure to provide reviewing court with
complete certified record results in waiver). As there is no basis on which
relief can be granted, we are constrained to affirm.
Next, we address Attorney Walsh’s petition to withdraw in light of our
disposition herein. In In re V.E., 611 A.2d 1267 (Pa.Super. 1992), this
Court extended the Anders principles to appeals involving the termination of
parental rights. We stated that counsel appointed to represent an indigent
parent on appeal from a decree involuntarily terminating parental rights
may, after a conscientious and thorough review of the record, petition this
Court for leave to withdraw from representation and submit an Anders
brief. Id. at 1275. In Commonwealth v. Santiago, 978 A.2d 349, 361
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(Pa. 2009), our Supreme Court altered our application of the Anders
briefing requirements to permit counsel to fully articulate his or her
conclusion that the appeal is frivolous. The Santiago Court did not change
the remaining procedural requirements that court-appointed counsel must
satisfy in requesting to withdraw from representation under Anders.
Preliminarily, we highlight that counsel was not court appointed and
Father was never designated indigent.5 Anders and its progeny, including
In re V.E., applies only to petitions to withdraw filed by attorneys appointed
to represent indigent parties. See Anders, supra at 739 (addressing “the
duty of a court-appointed appellate counsel to prosecute a first appeal from
a criminal conviction); id. at 745 (“This procedure will assure penniless
defendants the same rights and opportunities on appeal—as nearly as is
practicable—as are enjoyed by those persons who are in a similar situation
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5
We note that, in relation to the initial petition for termination that was
withdrawn during November 2013, the certified record includes the cover
sheet of a memo that a BCCYS caseworker sent to the orphans’ court
regarding Mother’s affidavit of destitution and her request for substitute
counsel in relation to that petition. The agency’s coversheet is tangentially
relevant herein because a box was checked on that form that indicated that
Father had been appointed counsel—although the area on the form where
counsel should have been identified was blank. That same form states that
Father was previously represented by Mary Favinger, Esquire, who,
curiously, is the attorney that Mother had requested to be appointed as her
substitute counsel and who was eventually appointed to represent Mother
during those brief proceedings before the orphans’ court in 2013. No other
document in the certified record suggests that Father was ever represented
by appointed counsel and nothing indicates that Attorney Walsh was
appointed by the orphans’ court.
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but who are able to afford the retention of private counsel.”); Santiago,
supra (modifying Pennsylvania’s procedure for withdrawal of court-
appointed appellate counsel to impose obligation to explain why appeal is
frivolous ); and In re V.E., supra at 1275 (“we hold that appointed counsel
seeking to withdraw representation must submit an advocate's brief, as
contemplated in Anders”). Since Attorney Walsh was not appointed counsel
and Father was not designated IFP or determined to be an indigent parent in
this case, In re V.E., is not applicable.6
Additionally, it is obvious that Attorney Walsh originally sought to
withdraw from representation due to Father’s utter disinterest and refusal to
pay for material necessary to litigate this appeal. Counsel filed the Anders
brief in response to the reference in our December 15, 2015 order that “if
appropriate” counsel may file a petition to withdraw as counsel pursuant to
Anders, Santiago, and In re V.E.. See Per Curiam Order, 12/15/15, at 1.
Attorney Walsh reasonably mistook our qualified reference to Anders and its
progeny, as a directive and he attempted to shoehorn his petition to
withdraw into the facially inapplicable parameters of those cases.
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6
As the involuntary termination of parental rights is analogous to a criminal
proceeding, at least as it relates to the right to legal counsel, we note that
Attorney Walsh was required to file a motion to withdraw from
representation regardless of whether he was privately retained or court
appointed. See Commonwealth v. Librizzi, 810 A.2d 692 (Pa.Super.
2002) (“Counsel is also reminded that an appearance may be withdrawn
only by leave of court [pursuant to] Pa.R.Crim.P. 120.”).
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Nevertheless, since alternative bases for withdrawal exist, Attorney
Walsh’s focus is not disastrous. We previously recognized, “[f]or a variety of
reasons, from ethical reasons to financial concerns, counsel properly may
seek to withdraw from representing a client.” Commonwealth v. Keys,
580 A.2d 386, 387 (Pa.Super. 1990) citing Commonwealth v. Turner, 544
A.2d 927 (1988) (withdrawal for lack of merit); Commonwealth v.
Roman, 549 A.2d 1320, 1320-23 (1988) (withdrawal based on nonpayment
of legal fees).
In Commonwealth v. Sweeney, 533 A.2d 473 (Pa.Super. 1987),
and Roman, supra, this Court addressed the proper inquiry when privately-
retained counsel seeks to withdraw from representation in a criminal case
due, at least partially, to nonpayment. In Sweeney, supra, a criminal
defendant, Sweeney, retained an attorney to represent him through trial.
Sweeney was convicted of armed robbery, and after filing a notice of appeal
from the judgment of sentence, counsel filed with the trial court a petition to
withdraw. The trial court denied the motion and “insisted that [counsel]
continue to represent Sweeney on appeal without appointment or further
compensation.” Id. at 477. On appeal, this Court concluded that privately
retained counsel was not required to continue to represent Sweeney without
compensation. We stated,
[I]n the midst of its concern for Sweeney’s right to competent
appellate counsel, the cost of transcripts and records to the
taxpayers of Crawford County and the length of time elapsing
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before any new counsel could familiarize himself with the case,
the trial court . . . overlooked the one crucial factor which goes
to the heart of the instant appeal and upon which appellant
premised his plea to withdraw from further representation. That
is, the trial court failed to consider the economics of
appellant's continued representation.
Id. (emphasis added).
Thereafter, we observed, “we have attempted, unsuccessfully, to
discover any case law, statute or rule of court which compels counsel, as
part of their obligations to the legal profession, to cast by the wayside all
economic considerations relating to the practice of law.” Id. Finally, we
rejected the alternative argument that, as “a member of the legal profession
. . . counsel [was required to] set aside monetary considerations in order to
further the interest of his client and those of the justice system.” Id. We
observed that, if forced representation was “the accepted norm in the legal
profession . . ., the Rules of Criminal Procedure adopted to establish the
procedure for representation of indigents[,] . . . the existence of public
defender organizations[,] legal aid societies[,] . . . and . . . court-
appointment programs would, indeed, be superfluous.” Id. at 477-478.
Although the aspect of the Sweeney Court’s rationale that is most
relevant to the case at bar is the Court’s rejection of servitude, that was but
one component of our decision. We also contemplated ethical considerations
under the Code of Professional Responsibility and the facts that counsel: (1)
had been retained only to represent Sweeney through post-trial motions; (2)
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sought to minimize prejudice by offering an associate as substitute counsel
and preparing the notice of appeal; and (3) obtained the “implied
acquiescence” of his client that amounted to “an implicit discharge . . . from
further representation.” Id. at 479. Accordingly, we found that the trial
court abused its discretion in denying counsel’s motion to withdraw.
Subsequently, in Roman, supra, we invoked the rationale of
Sweeney and a similar case, Commonwealth v. Scheps, 523 A.2d 363,
Pa.Super. 1987), to hold that a privately-retained attorney was entitled to
withdraw from representation in two drug cases because the client failed to
tender payment of $12,000 due for services rendered pursuant to a fee
agreement. We found dipositive the primary conclusions of both the
Sweeney and Scheps Courts that a client’s failure to render payment was
grounds to permit the withdrawal of privately-retained counsel, especially
when counsel minimized the potential for prejudice by filing a requested
appeal to this Court, and the client expressly or implicitly consented to
withdrawal. Id. at 336-337.
The facts of the foregoing cases are analogous to the present scenario.
Comparable to counsel in Roman and Sweeney, Attorney Walsh mitigated
prejudice by filing the requested notice of appeal from the order terminating
Father’s parental rights prior to seeking to withdraw. In addition, Attorney
Walsh discussed with Father the costs associated with the continued
litigation of his appeal and he sought to communicate with Father about
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paying for the notes of testimony. Father not only refused to procure the
transcripts necessary for appellate review, but he also abandoned the appeal
by severing contact with Attorney Walsh. Father’s unqualified indifference,
as evinced by his failure to respond to our correspondence, thwarted
Attorney Walsh’s ability to draft a brief that addressed the merits of the
requested appeal. Finally, by consistently rebuffing Attorney Walsh’s
numerous attempts to communicate, including the warning that counsel
would seek to withdraw the appeals if Father did not respond, is evidence
that Father tacitly consented to withdrawal. Thus, just as the clients in
Roman, supra, and Sweeney, supra, failed to pay their privately-retained
attorneys for their continued representation, in the case at bar, Father, a
non-indigent parent, refused to pay for materials necessary to continue to
litigate his appeal and implicitly renounced his interest in the case. The
rationale expressed in Roman and Sweeney is applicable to the instant
case, and while it is not dispositive, it is persuasive.
Petition to withdraw from representation filed by Francis Walsh,
Esquire is granted. Decrees affirmed. Jurisdiction relinquished.
Judge Musmanno joins the memorandum.
President Judge Gantman Concurs in the Result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2016
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In Re: L.S. Appeal of: M.S.
Combined Opinion