In the Int. of: E.W.H., Jr., Appeal of: E.W.H., Sr ( 2018 )


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  • J-S55016-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: E.W.H., JR., A         :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
    :
    :
    APPEAL OF: E.W.H., SR., FATHER             :
    :
    :
    :
    :   No. 1073 EDA 2018
    Appeal from the Order March 23, 2018
    In the Court of Common Pleas of Philadelphia County
    Family Court at No: CP-51-DP-0002272-2015
    BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY STABILE, J.:                          FILED NOVEMBER 13, 2018
    E.W.H., Sr., (“Father”) appeals from the order entered on March 23,
    2018, in the Court of Common Pleas of Philadelphia County, denying his
    request, filed pro se, to appeal nunc pro tunc from the decree involuntarily
    terminating his parental rights.         In addition, Father’s counsel has filed a
    petition to withdraw and an Anders1 brief. Upon review, we affirm the order
    and grant counsel’s petition to withdraw.
    The certified record reveals that the trial court involuntarily terminated
    Father’s parental rights to his son, E.W.H., Jr.,2 by decree entered on August
    25, 2017.       On September 1, 2017, Father, then incarcerated in the
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    1   Anders v. California, 
    386 U.S. 738
     (1967).
    2   E.W.H., Jr., was born in February 2013.
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    Montgomery County Correctional Facility and acting pro se, filed a notice of
    appeal (“prior appeal”).3, 4 Father failed to file a concise statement of errors
    complained of on appeal along with the notice of appeal pursuant to Pa.R.A.P.
    1925(a)(2)(i) and (b). On September 12, 2017, this Court issued an order
    directing Father to file a concise statement in accordance with the relevant
    requirements of Rule 1925 no later than September 22, 2017. Father failed
    to comply. As such, on September 29, 2017, this Court dismissed sua sponte
    Father’s prior appeal.
    Thereafter, on October 5, 2017, Attorney Weil filed a motion for
    reconsideration of the September 29, 2017 order, along with a concise
    statement of errors complained of on appeal. This Court denied the motion
    by order issued on October 25, 2017.             Further, in that order, we directed
    Attorney Weil to file with the trial court, no later than November 1, 2017, a
    petition to appeal nunc pro tunc. Attorney Weil did not file a petition seeking
    nunc pro tunc relief.
    On March 22, 2018, Father, who was still incarcerated in the
    Montgomery County Correctional Facility, filed pro se in the trial court a
    motion for permission to appeal nunc pro tunc.            The trial court denied his
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    3 Despite filing the notice of appeal pro se, Father was represented during the
    involuntary termination proceeding by court-appointed counsel, Joshua A.
    Weil, Esquire. Attorney Weil remained his counsel during the prior appeal.
    4   This Court docketed Father’s prior appeal at 2841 EDA 2017.
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    motion by order dated and entered on March 23, 2018.5 Father timely filed
    pro se a notice of appeal on April 9, 2018.
    Thereafter, by order dated April 12, 2018, the trial court appointed Mario
    D’Adamo, III, Esquire, to represent Father in the subject appeal. By order
    dated April 13, 2018, the trial court directed Father and Attorney D’Adamo to
    file a concise statement of errors complained of on appeal within twenty-one
    days. On May 1, 2018, Father filed pro se a concise statement. The trial court
    filed an opinion pursuant to Rule 1925(a) on June 13, 2018.
    On May 22, 2018, this Court directed Attorney D’Adamo to file an
    amended concise statement of errors complained of on appeal in accordance
    with the relevant requirements of Rule 1925 no later than June 1, 2018. In
    response, on June 1, 2018, Attorney D’Adamo filed with this Court Father’s
    foregoing concise statement and an “addendum,” wherein he stated that,
    upon review of the trial court record, “there is no basis for this appeal” and,
    therefore, “no errors to certify.”6 Addendum, 6/1/18, at ¶ 2-3; Trial Court
    Opinion, 6/13/18, at 3, n. 4.
    ____________________________________________
    5 On March 29, 2018, Father filed in the Pennsylvania Supreme Court a
    “petition for leave to file petition for allowance of appeal nunc pro tunc,” which
    the Court denied by order dated May 10, 2018. See Trial Court Opinion,
    6/13/18, at 2, n. 3. The record does not indicate if Father filed the aforesaid
    petition pro se, but we presume that he did.
    6 Because Attorney D’Adamo filed an Anders brief in this case, we deem his
    addendum as a statement pursuant to Rule 1925(c)(4), which provides, in
    part, “counsel may file of record and serve on the judge a statement of intent
    to file an Anders/McClendon brief in lieu of filing a Statement.” Pa.R.A.P.
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    On July 17 and 18, 2018, Attorney D’Adamo filed a petition to withdraw
    as counsel and an Anders brief, respectively, which we address initially. 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 on the request to withdraw.’”)
    (citation omitted).7 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) (citation omitted).
    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
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    1925(c)(4). See In re J.T., 
    983 A.2d 771
    , 774 (Pa. Super. 2009) (holding
    that decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in a
    termination of parental rights case was proper).
    7 This Court extended the Anders procedure to appeals from decrees
    involuntarily terminating parental rights in In re V.E., 
    611 A.2d 1267
     (Pa.
    Super. 1992). Because the underlying order in this case dismissed Father’s
    appeal from the decree involuntarily terminating his parental rights, we
    conclude that V.E. is applicable.
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    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
    (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.
    Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009). This Court has
    concluded that substantial compliance with these requirements is sufficient.
    Commonwealth v. Wrecks, 
    934 A.2d 1287
    , 1290 (Pa. Super. 2007).
    We have further explained, “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).
    Instantly, our review confirms that Attorney D’Adamo has substantially
    complied with the requirements for withdrawal outlined in Anders, 
    supra,
    and its progeny. Counsel has filed a petition to withdraw and an Anders brief
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    pursuant to Santiago, supra. We recognize that the petition to withdraw
    contains no specific averments, but simply references the Anders brief. In
    the Anders brief, Attorney D’Adamo details his review of the record and sets
    forth his conclusion that the appeal is meritless.      While counsel does not
    expressly use the Anders language of “making a conscientious examination
    of the record,” his averment regarding his review substantially complies with
    Anders. See Commonwealth v. Woods, 
    939 A.2d 896
    , 899 (Pa. Super.
    2007) (concluding that counsel complied with the Anders requirements where
    counsel indicated he “made a thorough review of Appellant’s case.”).
    Moreover, the petition for leave to withdraw demonstrates that counsel has
    complied with the notice requirements for withdrawal by serving Father with
    a copy of the petition and Anders brief, and advising him by letter of his rights
    to retain new counsel or proceed pro se. Therefore, we will proceed to make
    an independent review of the record to determine whether the appeal is wholly
    frivolous.
    We review an order denying an appeal nunc pro tunc pursuant to an
    abuse of discretion standard. In the Interest of M.S.K., 
    936 A.2d 103
    , 104
    (Pa. Super. 2007). “An abuse of discretion is not merely an error of judgment
    but is found where the law is ‘overridden or misapplied, or the judgment
    exercised is manifestly unreasonable, or the result of partiality, prejudice, bias
    or ill will as shown by the evidence or the record.’” 
    Id.
     (citation omitted).
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    With respect to requests for nunc pro tunc relief, we have explained as
    follows.
    Allowance of an appeal nunc pro tunc lies at the sound discretion
    of the Trial Judge. . . . As a general matter, a Trial Court may
    grant an appeal nunc pro tunc when a delay in filing . . . is caused
    by extraordinary circumstances involving fraud or some
    breakdown in the court’s operation through a default of its
    officers. Where an appeal is not timely because of non-negligent
    circumstances, either as they relate to appellant or his counsel,
    and the appeal is filed within a short time after the appellant or
    his counsel learns of and has an opportunity to address the
    untimeliness, and the time period which elapses is of very short
    duration, and appellee is not prejudiced by the delay, the court
    may allow an appeal nunc pro tunc.
    Our Supreme Court has made it clear that the circumstances
    occasioning the failure to file an appeal must not stem from
    counsel’s negligence or from a failure to anticipate foreseeable
    circumstances.
    M.S.K., 
    936 A.2d at 105
     (citations omitted); see also Towey v. Lebow, 
    980 A.2d 142
    , 144 (Pa. Super. 2009) (quoting Criss v. Wise, 
    781 A.2d 1156
    ,
    1159 (Pa. 2001)) (stating, in allowing an appeal nunc pro tunc, the appellant
    must prove: “(1) the appellant’s notice of appeal was filed late as a result of
    non-negligent circumstances, either as they relate to the appellant or the
    appellant’s counsel; (2) the appellant filed the notice of appeal shortly after
    the expiration date; and (3) the appellee was not prejudiced by the delay.”)).
    In this case, the trial court explained its denial of Father’s request for
    nunc pro tunc relief as follows.
    Father attempted to communicate with the trial [court’s]
    chambers ex-parte on multiple occasions. Each time, the judge’s
    law clerk wrote back to Father, in jail, informing Father to contact
    . . . [A]ttorney [Weil,] with the latest letter [from chambers to
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    Father] dated August 29, 2017. Father was represented by the
    same attorney, [Attorney Weil], throughout the underlying case
    since August 24, 2015, well before Father was incarcerated.
    Father has been in jail at the same location, Montgomery County
    Correctional Facility[,] since on or about April 2016. Thus, Father
    was well aware who his attorney was.               Additionally, all
    correspondence from the Family Court Clerk’s Office has been
    mailed to Father at his jail, since Father has executed numerous
    filing[s] Pro-Se with the Clerk’s Office. Being that Father is
    represented by an attorney, it is Father’s duty and obligation to
    maintain communication and contact with his own attorney.
    Furthermore, since Father was receiving all correspondence in jail,
    he was aware of all its contents and deadlines. Consequently, it
    was Father’s own actions, or lack thereof, that caused his own
    untimeliness to comply with the rules of court and court orders.
    Based on reviewing the record, including all filing[s] made by
    Father Pro-Se and filings from his attorneys, the trial court finds
    no breakdown of court operations or fraud on the part of any court
    personnel.
    Father and [Attorney Weil] were given an opportunity to cure the
    defective Notice of Appeal but failed to file a Statement of Errors
    by the date ordered by [the] Superior Court. [Attorney Weil]
    ultimately filed an untimely Statement of Errors almost two weeks
    after the date ordered by [the] Superior Court and six days after
    [the] Superior Court had already dismissed the [appeal]. . . .
    Trial Court Opinion, 6/13/18, at 4-5 (citation to record omitted).       Upon
    review, the record supports the trial court’s findings. In short, it was due to
    the negligence of Father and Attorney Weil that the defective notice of appeal
    was not cured in the prior appeal.      There is no evidence of fraud or a
    breakdown in the court’s operation through a default of its officers.
    Furthermore, Attorney Weil failed to file a petition for permission to
    appeal nunc pro tunc by November 1, 2017, pursuant to this Court’s October
    25, 2017 order, supra. Rather, Father filed pro se a motion for nunc pro tunc
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    relief nearly five months later, on March 22, 2018. Thus, Father did not
    timely file his motion.
    In addition, we agree with the trial court that Father’s untimeliness
    “would be very prejudic[ial]” to E.W.H., Jr., the five-year-old child in the
    underlying matter, “since he is in a pre-adoptive home” with his paternal
    grandmother, and he has “the right to have proper parenting and fulfillment
    of his . . . potential in a permanent, healthy, safe environment.” Id. at 5;
    In re B., N.M., 
    856 A.2d 847
    , 856 (Pa. Super. 2004) (citation omitted).
    Therefore, our independent review of the record reflects that Father failed to
    meet his burden of proof, and there are no non-frivolous claims that might
    arguably support his appeal.      Accordingly, we affirm the order and grant
    counsel’s petition to withdraw.
    Order affirmed. Petition to withdraw as counsel granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/13/18
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