In Re: B.A.M., Appeal of: N.P. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.A.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.P., MOTHER :
:
:
:
:
: No. 1298 MDA 2020
Appeal from the Decree Entered September 3, 2020
In the Court of Common Pleas of Tioga County Orphans' Court at No(s):
No. 95 O.C. 2019
IN RE: A.J.B.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.P., MOTHER :
:
:
:
:
: No. 1299 MDA 2020
Appeal from the Decree Entered September 3, 2020
In the Court of Common Pleas of Tioga County Orphans' Court at No(s):
No. 96 O.C. 2019
IN RE: M.D.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.P., MOTHER :
:
:
:
:
: No. 1300 MDA 2020
Appeal from the Decree Entered September 3, 2020
In the Court of Common Pleas of Tioga County Orphans' Court at No(s):
No. 97 O.C. 2019
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BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 05, 2021
N.P. (Mother) appeals from the trial court’s decrees involuntarily
terminating her parental rights to her three minor children, B.A.M. (born
6/2015), A.J.B.M. (born 6/2017), and M.D.M. (born 8/2018) (collectively,
Children).1 After careful review, we remand for the filing of either a proper
advocate’s brief or a petition to withdraw and accompanying
Anders/Santiago2 brief. See In re J.T., 983 A.2d 771 (Pa. Super. 2009)
(applying Anders procedure and Pa.R.A.P. 1925(c)(4)3 to appeals involving
termination of parental rights).
The Tioga County Department of Human Services (DHS) filed a
delinquency petition with regard to Children, alleging that Mother had
significant issues related to parenting, mental health and substance abuse.
On January 11, 2019, Children were adjudicated delinquent and placed in
foster care. It was recommended that Mother participate in a dual-purpose
in-patient substance abuse and mental health treatment program, several
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* Former Justice specially assigned to the Superior Court.
1 Children’s natural father, J.M. consented to the termination of his parental
rights, which was confirmed by the trial court on June 23, 2020. He is not a
party to this appeal.
2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
3 See Pa.R.A.P. 1925(c)(4) (statement of intent to file Anders brief in lieu of
filing concise statement of errors complained of on appeal).
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parenting programs, and complete a psychological examination. The goal
remained reunification.
After almost one year of providing services to Mother in order to reunify
her with Children, DHS filed petitions to involuntarily terminate Mother’s
parental rights to Children on December 11, 2019; the petitions sought
termination pursuant to subsections 2511(a)(1), (2), and (8)4 of the Adoption
Act.5 Termination hearings were held on June 30, 2020, July 23, 2020, and
September 1, 2020.6 The delay between the final two hearings was attributed
to Mother checking herself into a Tioga County hospital due to an outstanding
warrant for emergency mental health treatment (302 Warrant). 7 On
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4 Notably, DHS’ petition does not mention that termination should be granted
with regard to subsection 2511(b)—a necessary component of the bifurcated
legal analysis required to terminate parental rights under the Adoption Act.
See In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking
termination of parental rights bears burden of proving by clear and convincing
evidence that at least one of eight grounds for termination under 23 Pa.C.S.
§ 2511(a) exists and that termination promotes emotional needs and
welfare of child set forth in 23 Pa.C.S. § 2511(b)) (emphasis added).
5 23 Pa.C.S. §§ 2101-2938.
6 At the termination hearings, Children were represented by guardians ad
litem as well as legal counsel. See 23 Pa.C.S. § 2313(a) (children have
statutory right to counsel in contested involuntary termination proceedings)
and In re K.R., 200 A.3d 969 (Pa. Super. 2018) (en banc), but see In Re:
T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested termination-
of-parental-rights proceedings, where 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.”).
7See 50 Pa.C.S. § 7302(a)(1) (under Mental Health Procedures Act (MPHA),
upon written application by physician or other responsible person, warrant
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September 3, 2020, the trial court entered three separate decrees
involuntarily terminating Mother’s parental rights to Children. Mother filed a
timely notice of appeal and substantive, court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Mother presents the
following issues for our consideration:
(1) Whether the [f]indings of the [t]rial [c]ourt support the
conclusion that Mother had not made sufficient progress in
addressing her mental health issues, parental abilities, and
substance abuse issues.
(2) Whether the trial court abuse[d] its discretion in finding
there was clear and convincing evidence to support
termination under 23 Pa.C.S. [§§] 2511(a)(1), (2), [and]
(8).
Appellant’s Brief, at 7.
Before addressing the merits of the appeal, we are compelled to note
that counsel’s brief reads more like an Anders brief, rather than one filed by
an advocate. For instance, in the argument section of Mother’s brief, counsel
points out instances of Mother’s parenting malfeasance and lack of consistency
or progress with her parenting classes. See Appellant’s Brief, at 13 (Effective
Safe Parenting (ESP) caseworker “testified that she observed Mother using a
vacuum cleaner and B.[A.]M. managing to place the cord of the device around
A.[J.B.]M.’s neck[.]”); id. at 13-14 (ESP caseworker “testified that Mother had
in the early stages of the case, had been receptive to . . . parenting instruction
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may issue for emergency examination of individual where facts set forth
“reasonable grounds to believe a person is severely mentally disabled and in
need of immediate treatment[.]”).
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. . . Mother generally did not make progress nor consistently meet
with ESP.”) (emphasis added). Moreover, when discussing Mother’s mental
health and substance abuse issues, counsel’s brief points out that an ESP
worker testified that she was unsuccessful in her attempts to get Mother to
drug test, that Mother revoked her consent to allow DHS to monitor her
progress or attendance with mental health counseling, and that ultimately
Mother stopped attending recommended counseling. Id. at 15-16. Finally,
the only portion of counsel’s brief that reads anything like a legal argument
supporting Mother’s position consists of his claim that the court erred in
terminating Mother’s parental rights by
not giving the appropriate weight to the efforts of [M]other to
rehabilitate herself as a parent and [where the court] instead
placed a greater weight on the testimony detailing [Mother’s]
fail[ures] and her general lack of compliance with addressing her
mental health, parental abilities, and substance abuse while not
taking in to account appropriate consideration [of] the testimony
which stated that Mother appeared to be cooperative.
Id. at 17-18 (emphasis added). However, after this statement, counsel again
acknowledges that Mother was “not consistent, nor successful in implementing
the[ lessons she was taught during parenting instruction].” Id. at 18.8
Under these circumstances, where counsel argues against his client’s
interests, the proper procedure is to request to withdraw. See In re V.E.,
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8 Again, counsel acknowledges that the cornerstone of this case involves
Mother’s mental health. While stating that Mother completed a psychological
evaluation and eventually checked herself into a hospital for inpatient
services, Mother notably revoked her consent to allow DHS to monitor her
progress with mental health treatment and only turned herself in as a result
of an outstanding 302 warrant. See supra at 4.
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611 A.2d 1267 (Pa. Super. 1992) (Court extended Anders principle to appeals
involving termination of parental rights, requiring counsel seeking to withdraw
in such an appeal to do so only after conscientious and thorough review of
record, petitioning court for leave to withdraw, and submitting Anders brief).
Moreover, in such cases, counsel should not file a substantive Rule 1925(b)
statement, but rather a Rule 1925(c)(4) statement in lieu of a Rule 1925(b)
statement, representing that no errors are asserted because counsel is or
intends to seek to withdraw.
Accordingly, we are compelled to remand this matter to the trial court.
Upon remand, we instruct counsel to either file an amended advocate’s brief
or a proper Anders/Santiago brief within 30 days of the date the records are
returned to the trial court. If counsel elects to file an Anders brief, he shall
properly advise Mother of her immediate right to proceed pro se or with new
counsel, and comply with all attendant requirements for seeking to withdraw.
Case remanded with instructions. Panel jurisdiction retained.
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