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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D. L.-P. H., T.R.H., T.L.L.H. : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
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APPEAL OF: J.C.A-G., MOTHER :
:
:
:
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: No. 1426 WDA 2017
Appeal from the Decrees entered August 28, 2017
In the Court of Common Pleas of Blair County
Orphans’ Court at Nos: 2017 AD 31;
2017 AD 31A; 2017 AD 31B
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 11, 2018
J.C.A.-G. (“Mother”) appeals from the decrees involuntarily terminating
her parental rights to her sons, D.L.-P. H., born in January 2009; T.R.H., born
in June 2007; and T.L.L.H., born in June 2006 (collectively, “Children”).1
Mother’s court-appointed counsel has filed a petition for leave to withdraw as
counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
After review, we deny counsel’s petition. In addition, we vacate the decrees
as to Mother without prejudice and remand for proceedings consistent with
this memorandum.
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1 In the same decrees, the orphans’ court involuntarily terminated the parental
rights of the Children’s father, R.H. (“Father”). He did not file a notice of
appeal, and he is not a party to this appeal.
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The relevant facts and procedural history are as follows. On February
3, 2016, Children were placed in the emergency custody of the Blair County
Children, Youth, and Families (“CYF”) after investigation of allegations of
Mother’s physical abuse of Children. They were adjudicated dependent on
February 19, 2016. On April 1, 2016, Children were placed in kinship care
with their paternal uncle and aunt, J.M. and D.M.
CYF established family service plan objectives for Mother in furtherance
of Children’s permanency goal of reunification. She participated in supervised
visits with Children for two hours twice per week until May of 2016, at which
time she was incarcerated due to drug-related criminal charges. In May of
2017, Mother was sentenced to a term of incarceration of ten to twenty years,
which she is serving at State Correctional Institution (“SCI”) Muncy.
On July 25, 2017, CYF filed motions for an eighteen-month permanency
review hearing. On August 3, 2017, CYF filed petitions for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). The orphans’ court held a combined permanency review
and involuntary termination of parental rights hearing on August 15, 2017, at
which time D.L.-P.H. was eight years old; T.R.H. was ten years old; and
T.L.L.H. was eleven years old. Children were represented during the
proceedings by Guardian ad litem (“GAL”), Aimee L. Willett, Esquire, who
supported CYF’s petitions to involuntarily terminate Mother’s parental rights.
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Mother was represented by court-appointed counsel, Richard M. Corcoran,
Esquire. However, Mother did not testify or appear on her own behalf.
The orphans’ court admitted Children’s dependency records into
evidence. Counsel for the parties stipulated to the facts alleged in CYF’s
permanency review petition. CYF presented testimony from the following
witnesses: Wendy Whitlock, a therapist at Home Nursing Agency; Tawnya
Plunkard, CYF caseworker; Jessica Garlena, case manager at Home Nursing
Agency; D.M., kinship mother; and J.M., kinship father.2
By decrees dated August 15, 2017, the orphans’ court involuntarily
terminated Mother’s parental rights. On September 19, 2017, Mother, acting
pro se, mailed a notice of appeal from prison, which the prothonotary docketed
on September 25, 2017. On April 7, 2018, Attorney Corcoran filed a petition
to withdraw as counsel and an Anders brief, which we review first.3 See
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2 The kinship parents testified that they wish to relinquish custody of the two
older children and place them in separate homes with J.M.’s relatives. N.T.,
8/15/17, at 63-66, 76-77. The kinship parents testified that they desire D.L.-
P.H., the youngest child, to remain in their custody. Id. at 64, 76. J.M.
testified that he and his wife told Children about their plan to separate them.
Id. at 77. Children remained silent in response. Id. Therefore, J.M. does
not know how Children feel about being separated. Id.
3 On May 11, 2018, Attorney Corcoran filed a revised petition to withdraw as
counsel and a revised Anders brief pursuant to this Court’s directive for him
to serve upon Mother and file a revised petition with a proper letter to Mother
advising her of her rights. Specifically, we directed that the letter inform
Mother that, if she chooses to pursue her rights, she must act immediately.
Mother has neither retained private counsel nor proceeded pro se on appeal.
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Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997) (“When
faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.”).
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.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme
Court explained, “the major thrust of Anders . . . is to assure that counsel
undertakes a careful assessment of any available claim that an indigent
appellant might have.” Id. at 358. The Court stated that this “is achieved by
requiring counsel to conduct an exhaustive examination of the record and by
also placing the responsibility on the reviewing court to make an independent
determination of the merits of the appeal.” Id.
In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
determined that the appeal is 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, pro se, additional arguments that the appellant
deems worthy of the court’s attention. See Commonwealth v. Cartrette,
83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted). With
respect to the third requirement, this Court has held that counsel must “attach
to their petition to withdraw a copy of the letter sent to their client advising
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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
(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. “Once counsel has satisfied the above
requirements, it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d
287, 291 (Pa. Super. 2007) (en banc) (citation omitted).
Here, Attorney Corcoran filed a petition to withdraw, certifying that,
after a thorough and conscientious review of the record, he has determined
that Mother’s appeal is frivolous. Counsel attached to his petition a copy of
his letter to Mother, advising her that she may obtain new counsel or raise
additional issues pro se. Counsel also filed a brief, which includes a summary
of the history and facts of the case, a potential issue that could be raised by
Mother, and counsel’s assessment of why the appeal is frivolous, with citations
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to relevant legal authority. Accordingly, counsel has complied with the
technical requirements of Anders, Santiago, and Millisock. We, therefore,
may proceed with our independent review of the record and the following issue
presented in the Anders brief: “Whether there are no nonfrivolous issues to
be raised on behalf of [Mother] relative to this Court having jurisdiction to
hear the present appeal?” Anders brief at 6.
Attorney Corcoran concludes that this Court does not have jurisdiction
over this appeal, and that he “cannot present any nonfrivolous arguments on
behalf of [Mother].” Anders brief at 8. His conclusion is premised on the
assertion that the involuntary termination decrees were entered on August
15, 2017. Because Mother’s pro se appeal was filed on September 19, 2017,4
he asserts that her appeal is untimely. Further, Attorney Corcoran filed a
motion to appeal nunc pro tunc in the orphans’ court, along with a notice of
appeal and a concise statement of errors complained of on appeal, on October
11, 2017.5 The court agreed that Mother’s pro se appeal filing is untimely but
found no breakdown in the operations of the court. See Opinion and Order,
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4 See Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001) (holding that
“[A] legal document is deemed filed by an incarcerated litigant, proceeding
pro se, on the date it is delivered to the proper prison authority or deposited
in the prison mailbox.”).
5 Attorney Corcoran alleged in his motion for nunc pro tunc relief that the
decrees were entered on the docket on August 16, 2017, and that Mother
deposited the notice of appeal in the prison mailbox on September 19, 2017.
On this basis, he concluded that Mother’s pro se filing is untimely.
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10/17/17; see also In the Interest of M.S.K., 936 A.2d 103, 105 (Pa.
Super. 2007) (“As a general matter, a Trial Court may grant an appeal nunc
pro tunc when a delay in filing [an appeal] is caused by extraordinary
circumstances involving fraud or some breakdown in the court’s operation
through a default of its officers.”). Therefore, on October 17, 2017, the court
denied counsel’s request to appeal nunc pro tunc.
The following procedural rules are applicable. Pa.R.A.P. 903 provides,
“the notice of appeal required by Rule 902 . . . shall be filed within 30 days
after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a).
Additionally, this Court can raise jurisdictional issues sua sponte.
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
2001). . . . This Court “may not enlarge the time for filing a
notice of appeal....” Pa.R.A.P. 105(b). Absent a breakdown in the
operations of the court, “[t]ime limitations on the taking of
appeals are strictly construed and cannot be extended as a matter
of grace.” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002), appeal denied, 578 Pa. 716, 854 A.2d 967 (2004)
(internal citations omitted)[;] [s]ee also Commonwealth v.
Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc).
Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). The
30-day appeal period is jurisdictional in nature, and an untimely appeal divests
this Court of jurisdiction. In re J.M.P., 863 A.2d 17, 19 (Pa. Super. 2004).
Pa.R.A.P. 108(b) provides that the date of entry of an order is “the day
on which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b).
Rule 236(b) provides, “The prothonotary shall note in the docket the giving of
the notice. . . .” Pa.R.C.P. 236(b). Moreover, when there is no date of entry
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of the order on the docket, the 30-day appeal period is not triggered. See
Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (appeal period
was not triggered where appellant received notice of order but order was not
entered on docket pursuant to Rule 236(b)).
The certified dockets in the subject matter do not include a notation that
notice of entry has been given as required by Pa.R.C.P. 236(b). Therefore,
formal entry of the decrees did not occur, and the appeal period was not
triggered. As such, Mother’s pro se appeal, which was filed on September 19,
2017, is not untimely, and Attorney Corcoran’s request in the orphans’ court
for nunc pro tunc relief was unnecessary. It follows that the October 17, 2017
order denying Attorney Corcoran’s request has no legal effect. Accordingly,
counsel’s petition to withdraw is denied.
In addition, on October 16, 2018, the GAL filed in this Court a motion to
quash Mother’s appeal. The GAL asserts that this Court is without jurisdiction
to decide Mother’s appeal due to the orphans’ court’s order denying the
request for an appeal nunc pro tunc.6 Because we have concluded that
Mother’s appeal is timely, and, therefore, the October 17, 2017 order has no
legal effect, we deny the GAL’s motion to quash.
Further, our review of the record presents an issue regarding whether
Children were denied legal counsel during the involuntary termination
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6Likewise, in its appellee brief, CYF argues that Mother’s appeal should be
quashed as untimely.
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proceeding. Pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of a
contested involuntary termination proceeding has a statutory right to counsel
who discerns and advocates for the child’s legal interests, which our Supreme
Court has defined as a child’s preferred outcome.7 See In re T.S., 192 A.3d
1080 (Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017)). Because the right to counsel belongs to the child who is unable to
address a deprivation of his or her right to counsel on his or her own behalf,
we must address this issue sua sponte. See In re Adoption of T.M.L.M.,
184 A.3d 585, 588 (Pa. Super. 2018) (“This Court must raise the failure to
appoint statutorily-required counsel for children sua sponte, as children are
unable to raise the issue on their own behalf due to their minority.”) (citing In
re K.J.H., 180 A.3d 411, 414 (Pa. Super. 2017)).
The T.S. Court held,
[W]here there is no conflict between a child’s legal and best
interests, an attorney-guardian ad litem representing the child’s
best interests can also represent the child’s legal interests. . . .
[M]oreover, if the preferred outcome of a child is incapable of
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7 Section 2313(a) provides:
(a) Child.--The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the proceeding is
being contested by one or both of the parents. The court may
appoint counsel or a guardian ad litem to represent any child who
has not reached the age of 18 years and is subject to any other
proceeding under this part whenever it is in the best interests of
the child. No attorney or law firm shall represent both the child
and the adopting parent or parents.
23 Pa.C.S. § 2313(a).
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ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his
or her best interests; as such, the mandate of Section 2313(a) of
the Adoption Act that counsel be appointed “to represent the
child,” 23 Pa.C.S. § 2313(a), is satisfied where the court has
appointed an attorney-guardian ad litem who represents the
child’s best interests during such proceedings.
Id. at 1092-1093.
Instantly, in the underlying dependency matter, the juvenile court
appointed Attorney Willett to serve as Children’s GAL by order dated February
4, 2016. However, in the subject contested termination of parental rights
proceeding, the orphans’ court did not issue an order appointing counsel to
represent Children pursuant to Section 2313(a). In fact, the orphans’ court
identified Attorney Willett as Children’s GAL at the outset of the termination
proceeding, but nothing in the record indicates that the court appointed her
after conducting a conflict-of-interest analysis and determining that Children’s
legal and best interests are not in conflict. See N.T., 8/15/17, at 1.
Further, Attorney Willett did not set forth in the record Children’s
preferred outcome. There is nothing in the record to indicate that Attorney
Willett met with or interviewed Children, then ages eight, ten, and eleven, in
an attempt to ascertain their preferred outcome and if their legal and best
interests aligned. The record does not reveal that Attorney Willett advocated
for Children’s legal interests and followed their direction. Indeed, Attorney
Willett cross-examined only one witness, D.M., the kinship mother, during
which she inquired whether Children sleep in separate bedrooms and if she is
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willing to coordinate visits between Children if they are placed in separate
kinship homes. See id. at 71-72. In her closing statement to the court at
the conclusion of the testimonial evidence, Attorney Willett, without
explanation, stated that she supports the termination of Mother’s parental
rights. Id. at 81. Thereafter, she requested that the court “hear from the
boys as well before we wrap up today.” Id. The court replied as follows.
BY THE COURT: Would you want that to be part of the record,
Attorney Willett, or do you want me just to talk to them
informally?
BY ATTORNEY WILLETT: Informally, unless counsel wish for it to
be on the record.
BY THE COURT: Counsel, what I usually do is whenever children
are here I usually speak to them before the hearing or after unless
I know for a fact they’re going to be witnesses during the
proceeding. In this case I was advised that they would not be
testifying. So I normally would meet with them. I usually do that
informally done in the play area of CYF. Is there any objection if
I do that in this particular case?
BY ATTORNEY [FOR CYF]: No, Your Honor.
...
BY ATTORNEY CORCORAN: No.
BY THE COURT: Thank You. Thank you. So I’ll stop down
afterwards then.
Id. at 82. Because the court’s “informal” meeting with Children was not made
a part of the record, there is no indication in the record whether Children’s
legal and best interests aligned.
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Accordingly, we are constrained to vacate the decrees without prejudice
and remand for the orphans’ court to appoint legal-interests counsel for
Children pursuant to Section 2313(a). Such counsel must attempt to ascertain
Children’s preferred outcome as to Mother by interviewing Children directly,
and to follow Children’s direction to the extent possible and advocate in a
manner that comports with their legal interests. See In re D.M.C., 166 A.3d
322 (Pa. Super. 2018) (vacating order involuntarily terminating the mother’s
parental rights without prejudice and remanding due, in part, to the children’s
attorney failing to attempt to ascertain their preferred outcome).
Children’s counsel may also serve as GAL only if a conflict-of-interest
analysis by the orphans’ court reveals that no conflict exists between
Children’s legal and best interests, and this should be noted on the record.
See T.S., supra at 1092; see also D.L.B., supra.
Once Children’s preferred outcomes are identified, Children’s counsel
shall notify the orphans’ court whether termination of Mother’s parental rights
is consistent with Children’s legal interests. If the court determines that there
is no conflict between Children’s legal and best interests, then it may re-enter
the original decrees. However, if the court determines that Children’s legal
interests are different from their best interest, then the court shall conduct a
new involuntary termination hearing as to Mother. If Children have different
preferred outcomes as to Mother, Children’s counsel shall inform the orphans’
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court, and the court shall appoint separate legal-interests counsel for each
child and conduct further proceedings consistent with this memorandum.
Decrees vacated as to Mother without prejudice to permit the orphans’
court to reenter the original decrees if a new termination hearing is not
required. Case remanded for proceedings consistent with this memorandum.
Petition to withdraw as counsel denied. Motion to quash denied.
Jurisdiction relinquished.
Judge Nichols joins the memorandum.
Judge Dubow files a concurring and dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2018
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In Re: D.L.-P.H., Appeal of: J.C.A-G.
Combined Opinion