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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: J.B.D.E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.R., MOTHER
No. 569 MDA 2018
Appeal from the Decree Entered March 7, 2018
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s):
169 AD 2017
CP-22-DP-0000093-2016
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 23, 2018
T.R. (“Mother”) appeals from the decree entered on March 7, 2018, in
the Court of Common Pleas of Dauphin County, which involuntarily terminated
her parental rights to her minor child, J.B.D.E. (“Child”), born in March of
2016.1 Additionally, Mother’s counsel has filed a petition to withdraw and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 Upon review, we
deny counsel’s petition to withdraw, remand with instructions and retain
jurisdiction.
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court entered a separate decree that same day terminating the
parental rights of Child’s father, H.S.E. Father did not file an appeal.
2Neither the Agency nor the guardian ad litem has submitted responsive briefs
with this Court.
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The trial court summarized the factual and procedural history of this
matter as follows:
In November 2015, the Dauphin County Social Services for
Children and Youth (“Agency”) began providing services to Mother
following a report from a pediatrician’s office that Mother
appeared dazed and confused during an appointment for her three
year old. Mother’s two children were deemed dependent and
placed in kinship foster care. Five months pregnant with J.B.D.E.
at the time, Mother tested positive for PCP. Mother told case
workers that her use of PCP did not affect her ability to parent.
Throughout the pregnancy, Mother’s obstetrician urged her to
stop her drug use.
At the time of J.B.D.E.’s birth [i]n March [of] 2016, the Agency
received a referral from hospital staff based upon Mother’s
statement that she could not breast feed J.B.D.E. because she
used alcohol and PCP during her pregnancy. J.B.D.E. was
admitted to the neonatal intensive care unit because of serious
medical problems caused by Mother’s substance abuse. On March
21, 2016, the Agency filed an emergency Dependency Petition.
Upon discharge from the hospital, J.B.D.E. was placed in a
Dauphin County Families United foster home. Within one week of
J.B.D.E.’s birth, Mother tested positive for PCP. On April 6, 2016,
J.B.D.E. was adjudicated dependent.
The Juvenile Court ordered that Mother complete the following
objectives:
1. Attend all court hearings, Agency meetings and treatment
plan meetings;
2. Sign all release of information forms requested by the
Agency;
3. Notify the Agency within 24 hours of new residence or
new contact information;
4. Complete a drug and alcohol evaluation and follow
through with any and all recommendations;
5. Provide three urine screens to the Agency per week;
6. Notify the Agency caseworker of any scheduled
evaluations;
7. Participate in the Holistic Family Support Program;
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8. Complete a psychological evaluation and follow through
with any recommendations;
9. Participate in and complete a parenting assessment in
order to assess if Mother has the capability to provide a safe
and stable living environment.
(Petition for Involuntary Termination of Parental Rights, para. ccc
(i- ix)).
On June 20, 2016, Mother was incarcerated related to her
occupying a stolen vehicle. Mother remained incarcerated until
June 30, 2016. Upon her release, Mother entered an inpatient
drug and alcohol treatment program, which she left against
medical advice on August 12, 2016. Mother was again
incarcerated in November 2016 for violation of bail conditions.
On February 28, 2017, Mother was arrested and found in
possession of a firearm. On July 11, 2017, Mother pled guilty to
firearms and drug charges and [was] sentenced to nine to
twenty[-]three months to be served in the Dauphin County Work
Release Center. Mother was released from the Work Release
Center on December 14, 2017. Following release, on January 25,
2018, Mother tested positive for PCP.
Mother failed to complete any inpatient or outpatient drug and
alcohol program, or psychological evaluation. Mother participated
in supervised visitation while not incarcerated. Because of her
incarceration, Mother failed to comply with services offered to
assist with housing.
J.B.D.E. has lived in the same foster home since discharge from
the hospital. He is developmentally delayed. J.B.D.E. requires a
feeding tube and suffers seizures related to Fetal Alcohol
Syndrome. J.B.D.E.’s medical conditions require constant,
intensive caretaking. J.B.D.E. sees specialists several times each
month, or more frequently if he becomes ill. The foster parents
have received instruction from the medical providers to care for
J.B.D.E.’s significant medical conditions.
J.B.D.E. is bonded with his foster parents and has made
tremendous progress under their care and has begun to walk,
although not previously expected to do so.
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J.B.D.E. has never lived with Mother. Mother has never provided
any essential parental care. Because of Mother’s lack of
experience in handling J.B.D.E.’s seizures, the foster parents
attend Mother’s visitation. J.B.D.E. has undergone multiple
surgeries. Mother never visited J.B.D.E. during any
hospitalization. Mother has never met with medical providers to
obtain information as to how to care for J.B.D.E.’s needs.
Trial Court Opinion, 5/22/18, at 1-4 (citations to the record omitted).
On December 29, 2017, the Agency filed the petition to involuntarily
terminate Mother’s parental rights. The termination hearing was held on
March 6, 2018. After all evidence was submitted, the court announced its
decision to grant the Agency’s petition to terminate Mother’s parental rights
under 23 Pa.C.S. § 2511(a)(1), (2) and (b) and to change the goal for Child
to adoption. On April 3, 2018, Mother filed the instant appeal. Then, on June
22, 2018, Mother’s counsel filed an Anders brief.3 Counsel’s petition to
withdraw was filed on July 6, 2018, after counsel was directed to do so by
order of this Court, dated July 2, 2018. Mother has not responded to counsel’s
petition.
Before reaching the merits of Mother’s appeal, we must first address
counsel’s request to withdraw. See Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa. Super. 2005) (“‘When faced with a purported Anders brief, this
Court may not review the merits of the underlying issues without first passing
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3 Counsel’s statement that there are no non-frivolous matters that can be
raised on appeal is accepted in lieu of a concise statement of errors complained
of on appeal. See Commonwealth v. Goodwin, 928 A.2d 287, 293 (Pa.
Super. 2007); see also Pa.R.A.P. 1925(c)(4).
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on the request to withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d
1301, 1303 (Pa. Super. 1997)). “In In re V.E., 417 Pa. Super. 68, 611 A.2d
1267 (1992), this Court extended the Anders principles to appeals involving
the termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super.
2014). To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). With respect to the third requirement of Anders, that counsel inform
the appellant of his or her rights in light of counsel’s withdrawal, this Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following
requirements:
(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
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(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
In the instant matter, counsel has filed a petition to withdraw, certifying
that she has reviewed the case and determined that Mother’s appeal is wholly
frivolous. Counsel has attached to her brief and to her petition to withdraw a
copy of her letter to Mother, advising her that she may obtain new counsel or
raise additional issues pro se. The brief that counsel filed with this Court
includes a summary of the history and facts of the case and identifies one
issue, which is stated as follows:
Did the trial court abuse its discretion[] or commit an error of law
by determining it was in the [Child’s] best interest to have
Mother’s parental rights terminated by clear and convincing
evidence?
Anders brief at 9.
However, counsel’s assessment as to why this issue is frivolous does not
refer to the best interests of Child. Rather, the argument section of the brief
only discusses Mother’s lack of compliance with the services that were offered
to her by the Agency. Specifically, the brief addresses Mother’s lack of
progress with her substance abuse, housing, mental health treatment, and
her failure to complete a parenting assessment. None of counsel’s discussion
in the argument section of the Anders brief relates to any consideration of
the needs and welfare of Child. We, therefore, are compelled to conclude that
counsel has not complied with the requirements of Anders or for that matter
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with the normal procedure associated with an argument that addresses the
issue raised as enumerated in the Pennsylvania Rules of Appellate Procedure.4
Accordingly, we must deny counsel’s petition to withdraw. We remand
for counsel to either submit a corrected Anders brief or an advocate’s brief
within thirty days of the date this memorandum is filed.
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
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4In light of the fact that we conclude counsel has failed to substantially comply
with the Anders and Santiago requirements, we are unable to proceed to
review the issue as it is presented in the Anders brief. Moreover, we are
unable to conduct our independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015).
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