In the Int. of B.T.C., Appeal of S.C. ( 2022 )

J-A23027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.T.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., MOTHER :
:
:
:
: No. 843 MDA 2022
Appeal from the Decree Entered May 10, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0052a
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2022
S.C. (“Mother”) appeals from the decree involuntarily terminating her
parental rights to her child, B.T.C., born in March 2018. Mother’s counsel has
filed a petition to withdraw and brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).1 We deny counsel’s petition to withdraw, vacate the decree, and
remand for proceedings consistent with this memorandum.
We provide the following background. T.H. (“Father”) was awarded
custody of B.T.C. when he was three months old. Since then, B.T.C. has lived
with Father and D.H. (“Stepmother”). In September 2018, Mother was
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The principles set forth in Anders v. California, 386 U.S. 738 (1967) apply
to appeals involving the termination of parental rights. See In re V.E., 611
A.2d 1267, 1275 (Pa.Super. 1992).
J-A23027-22
granted supervised partial physical custody of B.T.C. Mother last visited with
B.T.C. on April 13, 2021, and has had no contact with him since then.
On March 4, 2022, Father and Stepmother brought the instant petition
to terminate Mother’s parental rights to B.T.C. pursuant to 23 Pa.C.S.
§ 2511(a)(1). Simultaneously, Father and Stepmother filed a petition for
adoption. The orphans’ court held a hearing on the petitions on May 9, 2022.2
Father and Stepmother testified. Mother was not represented by counsel at
the hearing. She declined the opportunity to cross-examine Father and
Stepmother but testified on her own behalf. At the conclusion of the hearing,
the court granted the petition to terminate Mother’s rights. Thereafter, Mother
sought the appointment of counsel for purposes of appealing the termination
decree. Counsel was appointed and this timely appeal followed. Both Mother
and the orphans’ court complied with Pa.R.A.P. 1925.
Preliminarily, we must review counsel’s compliance with the
requirements of Anders and Santiago. In order to withdraw, counsel 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
____________________________________________
2 The orphans’ court appointed legal counsel to represent B.T.C. We note
with displeasure that counsel did not file a brief in this Court.
-2-
J-A23027-22
(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., 230 A.3d 1217, 1219 (Pa.Super. 2020) (cleaned
up). Counsel must provide to her client a copy of the Anders brief. See In
re X.J., 105 A.3d 1, 4 (Pa.Super. 2014) (cleaned up). Along with the brief,
counsel must also provide a letter that advises the client of her immediate
“right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on
appeal; or (3) raise any points that [she] deems worthy of the court’s
attention in addition to the points raised by counsel in the Anders brief.” Id.(cleaned up).
Failure to comply with these requirements will result in this Court
denying the petition to withdraw and remanding for counsel to file either an
advocate’s brief or compliant petition to withdraw and Anders brief. If
counsel complies with the above-mentioned technical requirements, “we will
then undertake our own review of the appeal to determine if it is wholly
frivolous.” In re Adoption of M.C.F.. supra at 1219 (citation omitted). We
will grant counsel’s petition to withdraw and affirm the decree should we agree
with counsel’s assessment of the identified issues and conclude, after
conducting “a simple review of the record to ascertain if there appear on its
face to be arguably meritorious issues that counsel, intentionally or not,
missed or misstated[,]” that the appeal is frivolous Id. (cleaned up).
However, if we find non-frivolous issues in the course of our review, we will
-3-
J-A23027-22
deny the petition and remand for counsel to file an advocate’s brief as to those
issues. Id. (citation omitted).
In the instant matter, we conclude that counsel has complied with the
technical requirements of Anders. We therefore turn to our independent
review of the record and the issue presented on Mother’s behalf. Counsel
raises a single potential issue: “Whether the court erred as a matter of law
and/or abused its discretion by granting a termination of Mother’s parental
rights pursuant to 23 Pa.C.S. [§] 2511(a)(1).” Anders brief at 4. Since that
review has revealed a non-frivolous, dispositive issue pertaining to Mother’s
representation during the termination proceedings below, we begin and end
our discussion with that matter.
Mother had a constitutionally-protected right to counsel in the
termination proceedings. See In re Adoption of C.A.S., 166 A.3d 353, 356
(Pa.Super. 2017).
This Court has held that trial courts need not appoint counsel for
indigent parents automatically. However, courts must advise
parents of their right to petition for counsel. A parent waives his
or her right to counsel is he or she is provided with clear
instructions on how to petition for counsel, but fails to take action.
Id. (cleaned up).
Mother was not represented by counsel at the termination hearing. In
its Rule 1925(a) opinion, the orphans’ court stated that “at no point prior to
or during the hearing did [Mother] request court appointed counsel.” Orphans’
Court Opinion, 6/16/22, at 1-2 (unnumbered). However, upon review of the
certified record, there is no indication that Mother was notified of her right to
-4-
J-A23027-22
counsel for the involuntary termination proceedings. Mother was not advised
of her right to counsel in the termination petition, the scheduling orders, or at
the beginning of the termination hearing. Therefore, we cannot conclude
based on the record before us that she waived her right to counsel during the
underlying termination proceedings.
Given this non-frivolous issue, we deny counsel’s petition to withdraw.
While we do not wish to prolong the underlying matter, we cannot review the
propriety of the termination of Mother’s parental rights if she was denied her
constitutional right to counsel in those proceedings. Accordingly, we vacate
the decree terminating Mother’s parental rights. Upon remand, the orphans’
court shall conduct a hearing to determine whether Mother was advised of her
right to counsel. If the court determines that Mother was notified of her right
to counsel, the orphans’ court may reenter the same decree terminating
Mother’s parental rights. If Mother was not advised of her right to counsel,
Mother may choose to exercise that right or waive it. If Mother chooses to
exercise her right to counsel, the orphans’ court shall conduct a new
termination hearing. However, if Mother chooses to waive her right to
counsel, the orphans’ court may reenter the same decree without conducting
a new termination hearing.
-5-
J-A23027-22
Petition to withdraw denied. Decree vacated without prejudice to permit
the orphans’ court to reenter the original decree if a new termination hearing
is not held. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2022
-6-