J-S11014-20 & J-S11046-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF L.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M. :
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:
:
:
: No. 1239 WDA 2019
Appeal from the Decree Entered July 15, 2019
In the Court of Common Pleas of Butler County Orphans' Court at No(s):
O.A. 24 of 2019
IN RE: ADOPTION OF: L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.M., NATURAL MOTHER :
:
:
:
: No. 1544 WDA 2019
Appeal from the Order Entered September 12, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-DP-0000073-2017
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 11, 2020
A.M. (Mother) appeals from the decree granting the petition of the Butler
County Children and Youth Agency (the Agency) and involuntarily terminating
her parental rights to L.B. (Child), born in December 2012, pursuant to 23
J-S11014-20 & J-S11046-20
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b),1 as well as the order changing
Child’s permanency goal to adoption. Mother’s counsel, Nicole L. Thurner,
Esq. (Counsel), has filed with this Court motions for leave to withdraw as
counsel and Anders/Santiago briefs.2 For the reasons that follow, we deny
Counsel’s motions to withdraw and remand this matter with instructions.
The trial court summarized the factual history of these matters, see
Trial Ct. Op., 7/15/19, at 1-11, which we do not restate here. For the purpose
of background, we note that Child came to the attention of the Agency on June
13, 2017. The trial court appointed Counsel for the purposes of the
dependency hearing. On August 23, 2017, following a hearing, the trial court
adjudicated Child dependent. The Agency filed a petition seeking to terminate
Mother’s parental rights dated March 1, 2019, and motion for a goal change
from reunification to adoption dated March 26, 2019.
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1 That same day, the trial court also terminated the parental rights of J.M.B.,
Jr. (Natural Father) and D.W.M., Jr. (Presumptive Father). Neither the natural
or presumptive father of Child has filed an appeal nor participated in the
present appeal.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009); see also In re J.D.H., 171 A.3d 903, 906 (Pa.
Super. 2017) (concluding that Anders procedures apply in appeals from goal
change orders); In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)
(extending Anders to appeals in involuntary termination matters).
Counsel filed the notice of appeal docketed at 1239 WDA 2019 on August 19,
2019, and the notice of appeal docketed at 1544 WDA 2019 on October 11,
2019. As the matters are related, we have consolidated them for this decision.
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The trial court held a hearing on June 26, 2019. By the decree dated
July 11, 2019, and entered on July 15, 2019, the court involuntarily
terminated Mother’s parental rights to Child pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b). Mother timely filed the appeal at 1239
WDA 2019 and statement of concise errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).3
By order dated June 26, 2019, and docketed September 12, 2019, the
court changed Child’s permanency goal from reunification to adoption. Mother
timely filed the appeal at 1544 WDA 2019. However, it does not appear that
Counsel filed a Rule 1925 statement for 1544 WDA 2019.4 Counsel has filed
an Anders brief and accompanying motion to withdraw in each appeal.
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3 In her Anders/Santiago briefs, Counsel states that she filed Rule
1925(c)(4) statements indicating her intent to withdraw from representation
under Anders. See Pa.R.A.P. 1925(c)(4). However, a review of the record
shows that Counsel filed a substantive statement of errors complained of in
the appeal at 1239 WDA 2019. For example, in the appeal at 1239 WDA 2019,
Mother’s Rule 1925 statement set forth the following errors complained of on
appeal: (1) the trial court’s failure to timely appoint counsel for the
termination of parental rights proceeding; (2) the Agency’s failure to meet the
burden of proof under 23 Pa.C.S. § 2511(a); (3) the Agency’s failure to
provide adequate services; (4) the trial court’s failure to consider the parent-
child bond; (5) the failure of the guardian ad litem to fully and faithfully
investigate; and (6) the failure of the trial court to conduct an adequate
analysis under 23 Pa.C.S. § 2511(b).
4 Counsel initially filed a separate appeal from the goal change on August 14,
2019, which was docketed at 1261 WDA 2019, and apparently submitted the
same Rule 1925(b) statement that she filed in 1239 WDA 2019. Counsel
subsequently filed a praecipe to discontinue the appeal at 1261 WDA 2019
after realizing that the trial court did not enter a formal order memorializing
the goal change until September 12, 2019. This Court discontinued the appeal
at 1261 WDA 2019 on September 30, 2019.
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Counsel’s Rule 1925(b) statements and Anders/Santiago briefs at 1239 WDA
2019 and 1544 WDA 2019 are substantially similar.
Counsel’s Anders/Santiago briefs identify and discuss two principal
issues, namely, the trial court’s decision to terminate Mother’s parental rights
under Section 2511(a)(2), (5), and (8), and the trial court’s order changing
the goal from reunification to adoption. See Anders/Santiago Briefs, 1239
WDA 2019 & 1544 WDA 2019, at 11-16. Counsel states that she “leaves it to
[this] Court to determine whether [the Agency] met the standards justifying
the termination of [Mother’s] parental rights and the change of goal from
reunification to adoption.” Id.
When faced with an Anders brief, this Court may not review the merits
of any possible underlying issues without first examining counsel’s request to
withdraw. See J.D.H., 171 A.3d at 905. As this Court has stated:
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.
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.”
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Id. at 907 (citations omitted). Additionally, counsel must file a brief that
meets the following requirements established by the Pennsylvania Supreme
Court in Santiago:
(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.
In re Adoption of M.C.F., ___ A.3d ___, ___ 2020 PA Super 78, 2020 WL
1501293, *1 (Pa. Super. filed Mar. 30, 2020) (citation omitted).
“After an appellate court receives an Anders brief and is satisfied that
counsel has complied with the aforementioned requirements, the Court then
must undertake an independent examination of the record to determine
whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d 1235, 1237
(Pa. Super. 2004) (citation omitted). Our independent review is not limited
to the issues discussed by counsel, but extends to “additional, non-frivolous
issues” that may have been overlooked by counsel. J.D.H., 171 A.3d at 908
(citation omitted). An appeal is frivolous when it lacks any basis in law or
fact. See id. at 906; accord Santiago, 978 A.2d at 355.
Here, Counsel has complied with the Anders procedures by filing a
petition to withdraw and supplying Mother with a copy of the Anders brief
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and a letter explaining her appellate rights. Moreover, Counsel’s brief includes
a summary of the relevant factual and procedural history, and Counsel sets
forth her conclusion that the appeal is frivolous and no issues could be raised.
However, our review reveals defects in Counsel’s request to withdraw and her
accompanying briefs.
Initially, we note that Counsel’s motions to withdraw and letters to
Mother include improper language indicating that “in the event” this Court
granted Counsel’s petition to withdraw, Mother could proceed pro se or with
privately retained counsel.5 Cf. Commonwealth v. Muzzy, 141 A.3d 509,
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5 In the appeal at 1239 WDA 2019, Counsel stated in her original letter to
Appellant dated January 2, 2020: “In the event that the Court grants my
application to withdraw, you have the right to proceed pro se or with the
assistance of privately retained counsel.” Letter, 1239 WDA 2019, 1/2/20
(emphasis added). Counsel’s motion to withdraw dated that same day
included similar language. See Mot. to Withdraw, 1239 WDA 2019, 1/2/20,
at ¶ 4 (stating that “counsel simultaneously served the Appellant with a letter
indicating the filing of the Anders Brief and advising [her] of the motion to
withdraw as counsel and directing [her] that should the motion be granted,
Appellant would have the right to proceed pro se or with privately retained
counsel”).
This Court issued an order on January 7, 2020, indicating that Counsel’s letter
“failed to sufficiently describe [Appellant’s] rights” and striking the motion.
Thereafter, Counsel submitted a new motion to withdraw and letter dated
January 21, 2020. In the January 21, 2020 letter, Counsel stated: “In the
event that the Court grants my application to withdraw, you have the right
to proceed pro se or with the assistance of privately retained counsel to raise
with the Superior Court any additional points you deem worth, and if you wish
to do either, you must act quickly.” Letter, 1/21/20, 1239 WDA 2019
(emphasis added). Counsel did not alter the language of her motion to
withdraw. This Court entered an order allowing the appeal to proceed but
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511-12 (Pa. Super. 2016). Counsel’s chosen language, therefore, confuses
Mother’s rights by implying that Mother must wait until this Court grants
Counsel leave to withdraw before proceeding pro se or with privately retained
counsel. See id.
Although this Court may issue orders for Counsel to clarify Mother’s
rights in these appeals, our independent review further compels the conclusion
that Counsel’s Anders/Santiago briefs are also deficient. First, with respect
to the appeal from the order terminating Mother’s parental rights at 1239 WDA
2019, Counsel has focused her arguments on Section 2511(a) and has not
explained why she believes the appeal is frivolous under Section 2511(b). See
Anders/Santiago Brief at 12-15 (stating Counsel’s reasons for believing that
the Agency satisfied Sections 2511(a)(2), (5), and (8)); see also In re L.M.,
923 A.2d 505, 511 (Pa. Super. 2007) (reiterating that the termination of
parental rights requires a bifurcated analysis under Section 2511(a) and
Section 2511(b)).
Second, Counsel identified several errors complained of in her Rule
1925(b) statement in 1239 WDA 2019, but has not addressed them in her
Anders/Santiago briefs. For example, Counsel referred to a possible issue
with Child’s guardian ad litem/legal counsel. See Rule 1925(b) Statement,
____________________________________________
advising that the issue could be revisited by the merits panel. Order, 1239
WDA 2019, 1/31/20. In the appeal at 1544 WDA 2019, Counsel’s letter dated
February 13, 2020, contains the same language as her letter dated January
21, 2020.
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1239 WDA 2019, 8/19/19, at 4 (unpaginated). Counsel advanced a claim of
inadequate communication with Child.6 See id. The trial court, in its Rule
1925(a) opinion, rejected the issue by stating that it appointed counsel for
Child in the termination matter. Trial Ct. Op. at 39. The trial court further
stated “there is no legal authority pursuant to 23 Pa.C.S. § 2511 requiring a
guardian ad litem to investigate and/or file a report with the [trial c]ourt.” Id.
Our Supreme Court, in In re Adoption of L.B.M., 161 A.3d 172, 183-
84 (Pa. 2017) (plurality), held that 23 Pa.C.S. § 2313(a) requires that counsel
be appointed to represent the legal interests of any child involved in contested
involuntary termination proceedings. A binding majority of the L.B.M. Court
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6 Specifically, Counsel raised the following issue regarding child’s legal
counsel:
The guardian ad litem failed to fully and faithfully investigate all
relevant witnesses and documents and as such her report to the
[trial] court was wholly inadequate and did not provide a solid
basis for the [trial] court to render any reasonable decision. The
guardian ad litem did not meet with [Mother] nor did she interview
any of [Mother’s] family to determine whether or not a
relationship exists between [Child] and [Mother] and [Mother’s]
family. The guardian ad litem met with [Child] on one occasion
prior to the hearing and did not present any supporting witnesses
or documents for the [trial] court to support her findings. As is
such, the guardian ad litem failed to fully and faithfully investigate
and was unable to provide the [trial] court with any relevant
information for the [trial] court to wholly and adequately make its
decision and therefore its decision should be reversed.
Rule 1925(b) Statement, 1239 WDA 2019, 8/19/19, at 4 (unpaginated) (some
formatting altered).
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noted that a child’s legal interests “are synonymous with the child’s preferred
outcome,” but the child’s best interests are determined by the trial court. Id.
at 174. The Pennsylvania Supreme Court further held that a guardian ad litem
appointed in a dependency proceeding may serve as legal counsel in a
termination proceeding when there is no conflict between the child’s legal and
best interests. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). “[I]f the
preferred outcome of a child is incapable of 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 . . . .” Id. at 1092.
In In re Adoption of K.M.G., 219 A.3d 662 (Pa. Super. 2019) (en
banc), appeal granted, 221 A.3d 649 (Pa. 2019), this Court held that an
appellate court cannot “review sua sponte whether a conflict existed between
counsel’s representation and the child’s stated preference in an involuntary
termination of parental rights proceeding.” K.M.G., 219 A.3d at 670.
However, the K.M.G. Court noted that
when a party fails to raise the [representation] issue before
the orphans’ court and raises it for the first time on appeal[,]
. . . the Superior Court should review the record to
determine if the record is clear and undisputed about
whether the child is able to express “a subjective, articulable
preference [to be advanced by counsel during the
termination proceedings]” and if so, whether the child’s
preferred outcome differed from the child’s best interest.
Id. (citation omitted).
Instantly, our preliminary review of the record reveals that at the time
of the hearing, Child was six years old and communicative. N.T., 6/26/19, at
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99. Child’s counsel for the purpose of the termination hearing was Child’s
guardian ad litem in the dependency proceeding. See id. at 266. At the
termination hearing, Child’s counsel argued:
With respect to [being] the guardian ad litem, my position . . . is
the plan that is in place I think is appropriate for [Child]. And as
counsel, I think it’s my position that [Child] is where she needs to
be and the proceeding should come to a conclusion, that
[Mother’s] rights would be . . . involuntarily terminated.
Id. (some formatting altered). Our review further reveals no express
discussion of Child’s legal preference at the hearing.
Third, although Counsel filed the appeal at 1544 WDA 2019 from the
separate goal change order, Counsel’s Anders/Santiago brief is substantially
similar to the one she filed in 1239 WDA 2019, in that it principally discusses
the trial court’s order terminating Mother’s parental rights. See
Anders/Santiago Brief, 1544 WDA 2019, at 12-15. As in the
Anders/Santiago brief filed in 1239 WDA 2019, Counsel suggests that the
goal change “is not at question in this appeal,” but proceeds to discuss the
issue as follows:
In the instant matter, the [trial c]ourt determined, after several
days of hearings that [Mother’s] rights should be terminated.
Based on the termination of parental rights, the [trial c]ourt then
determined that the goal in the matter should be changed from
reunification to adoption.
[Child] was [a]djudicated [d]ependent in August of 2017. Mother
has had a family service plan since that time detailing her need to
obtain suitable housing, continue with her mental health
counseling and address her sobriety. Since that time Mother has
found suitable housing and has maintained her sobriety.
However, testimony revealed that Mother was not addressing her
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mental health. Mother never requested assistance from [the
Agency] to obtain her mental health treatment nor did she request
additional services. The [trial c]ourt determined that [the Agency]
met their burden in the goal change proceeding and ordered that
the goal in this case be changed from reunification to adoption.
Anders/Santiago Brief, 1544 WDA 2019, at 15-16.
Notably, our preliminary review of the record reveals that Counsel,
during the hearing, attempted to establish that the Agency did not exercise
reasonable efforts to assist Mother. Moreover, in the appeal from the
termination of Mother’s parental rights at 1239 WDA 2019, Counsel raised the
Agency’s efforts as an issue on appeal. See Rule 1925(b) Statement, 1239
WDA 2019, 8/19/19, at 4 (unpaginated). However, Counsel has not referred
to or discussed this issue in her Anders/Santiago brief in the appeal from
the goal change.
In light of the foregoing discussion, we cannot conclude that Counsel
has satisfied the procedural requirements for seeking leave to withdraw. We
emphasize that one of the goals of the Anders/Santiago procedures is for
“counsel to prove to this Court that the appellant has been afforded” her right
to appellate counsel. See Commonwealth v. Woods, 939 A.2d 896, 899
(Pa. Super. 2007) (footnote omitted); see also Santiago, 978 A.2d at 360
(noting that “requiring counsel to articulate the basis for his or her conclusion
of frivolity. . . will assist the intermediate appellate courts in determining
whether counsel has conducted a thorough and diligent review of the case to
discover appealable issues and whether the appeal is indeed frivolous”).
Instantly, we are not yet convinced that Counsel has met this goal.
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In sum, we strike Counsel’s Anders/Santiago briefs in these appeals
and remand the records in these matters to the trial court for a period not to
exceed forty-five days from the date the records are returned to the trial court.
Counsel shall file either amended Anders/Santiago briefs or advocate’s briefs
within thirty days of the date the records are returned to the trial court. If
Counsel elects to file amended Anders/Santiago briefs, she shall properly
advise Mother of her immediate right to proceed pro se or with new counsel,
and comply with all of the requirements for seeking withdrawal.
Motions to withdraw denied. Case remanded with instructions. The
Prothonotary of this Court is hereby ordered to return the records to the trial
court for a period not to exceed forty-five days. Panel jurisdiction retained.
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