In the Int. of: X.N.M.R., Appeal of: D.W. ( 2023 )

J-A13041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: X.N.M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 52 MDA 2023
Appeal from the Decree Entered December 16, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0141a
IN THE INTEREST OF: E.M.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 53 MDA 2023
Appeal from the Order Entered December 16, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0142
IN THE INTEREST OF: A.L.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 54 MDA 2023
Appeal from the Decree Entered December 16, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-143A
J-A13041-23
IN THE INTEREST OF: X.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 86 MDA 2023
Appeal from the Order Entered December 21, 2022
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000233-2021
IN THE INTEREST OF: A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 87 MDA 2023
Appeal from the Order Dated December 21, 2022
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000234-2021
IN THE INTEREST OF: E.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER :
:
:
:
: No. 88 MDA 2023
Appeal from the Order Dated December 21, 2022
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000313-2021
-2-
J-A13041-23
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E. FILED AUGUST 08, 2023
D.W. (“Mother”), appeals from the December 14, 2022 decrees
involuntarily terminating her parental rights to X.N.M.R. a/k/a X.R., born in
July 2019, E.M.G. a/k/a E.G., born in October 2012, and A.L.R. a/k/a A.R.,
born in December 2020 (collectively, “the Children”).1 Mother also appeals
from the December 20, 2022 orders changing Children’s permanency goals
from reunification to adoption and establishing a concurrent goal of placement
with a legal custodian. In addition, Mother’s appointed counsel, Thomas W.
Gregory, Jr., Esquire (“Counsel”), has filed a petition to withdraw and
accompanying brief, pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Based
on the following, we deny Counsel’s petition and direct Counsel to file either a
compliant Anders brief or an advocate’s brief.
We glean the following factual and procedural history of this matter from
the certified record. The family came to the attention of the York County
Offices of Children, Youth and Families (“the Agency”) in March 2021 due to a
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 By separate decrees the same date, the orphans’ court terminated the
parental rights of the putative father of X.N.M.R. and A.L.R., R.R. The court
further terminated the parental rights of the father of E.M.G., G.G. Neither
R.R. nor G.G. filed notices of appeal, and neither were participating parties to
these appeals.
-3-
J-A13041-23
General Protective Services (“GPS”) referral related to Mother’s substance
abuse. Specifically,
On March 21, 2021, the Agency received a [GPS] referral for
substance abuse for Mother. Allegations received were that
Mother had suffered a seizure and when admitted to the hospital
she was found to be positive for THC and cocaine. The Agency
made contact with Mother via phone on March 22, 2021. Mother
agreed to meet with the worker but would not allow the worker to
see [X.N.M.R. and A.L.R.] as both parents were very upset. When
the caseworker met with Mother, she admitted to cocaine use at
a party over the weekend and was agreeable to drug testing. She
also agreed to allow the worker to meet the children and this
occurred on May 6, 2021. A referral was made to Averhealth[,]
but Mother failed to report for testing. On May 10, 2021, the
Agency met with Mother due to her lack of testing; she stated she
tried to call in but gets busy and forgets. Mother stated she had
spoken with an attorney and understood the Agency cannot force
her to test. Mother denied being an everyday user of cocaine; she
stated it has been in social situations without the children. Mother
admitted to daily THC use. On May 14, 2021, the Agency received
allegations that Mother had plans to purchase cocaine; Mother
denied the allegations. A Safety Plan was initiated[,] and Mother
was agreeable to the plan; the Safety Plan provided that Mother’s
cousin and brother were appropriate supervisors and would
supervise her contact. Mother stated to the Agency that [R.R.]
had physically assaulted her at the end of April and she had
intentions to file a Protection From Abuse Order PFA against
[R.R.]; she also alleged [R.R.] used cocaine with her in the past.
On May 24, 2021, Mother contacted the Agency and advised that
she was no longer in agreement with the Safety Plan; she did not
feel her children were in danger. Mother stated she had been
calling into Averhealth since the Safety Plan was put into place[]
but had not reported for a test. Mother was a no show for testing
on May 21, 2021; Mother claimed she called in but was not told
to report. A referral was made for [Families United Network
(“FUN”)] and two attempts were made. On May 24, 2021, Mother
tested positive for cocaine and THC, Mother denied cocaine use to
the tester.
Stipulations of Counsel, 11/7/22, at ¶ 6; see also Orders of Adjudication and
Disposition, 6/7/21, at 1-2. As a result, the Agency obtained emergency
-4-
J-A13041-23
protective custody of X.N.M.R. and A.L.R. on May 24, 2021, and placed them
in kinship foster care with family friends. See Stipulations of Counsel,
11/7/22, at ¶ 7. Subsequently, the court adjudicated X.N.M.R. and A.L.R.
dependent on June 7, 2021, and established a permanency goal of
reunification.2 See Stipulations of Counsel, 11/7/22, at ¶ 10; see also Notes
of Testimony (“N.T.”), 12/14/22, at 18-19.
Thereafter,
[o]n July 20, 2021, the Agency received a [GPS] referral regarding
substance abuse by parent, lack of supervision, and
homelessness. Allegations received were that [E.M.G.] resides
with [G.G.] and they [were] to be evicted on July 31, 2021.
Further allegations received are that [E.M.G.] is left home alone
for unknown amounts of hours and/or days. Other allegations
received are that crack was being used in the home.. . . On July
22, 2021, the Agency caseworker was conducting a home visit at
the foster home of [E.M.G.’s] siblings, where the minor child was
visiting. The Agency caseworker was informed that [E.M.G.] had
stated that she has seen [G.G.] smoke cocaine. Furthermore,
[E.M.G.] stated that when she had been living with her [m]other,
Mother would give her “food with marijuana in it” or “blow
marijuana in her face to make her go to sleep[.”] The Agency
caseworker attempted to contact [G.G.] and traveled to three
different places in attempts to locate him. When [G.G.] called the
caseworker, he hung up multiple time[s], became angry, and
stated there was no reason for the Agency to be involved with his
family. [E.M.G. was] to return to [G.G.]’s care on July 23, 2021.
Stipulation of Counsel, 11/7/22, at ¶ 6 (ellipsis added); see also Order of
Adjudication and Disposition, 8/3/21, at 1. Therefore, the Agency obtained
____________________________________________
2 The court additionally established a concurrent goal of adoption. See Orders
of Adjudication and Disposition, 6/7/21, at 3.
-5-
J-A13041-23
emergency protective custody of E.M.G. on July 22, 2021, and placed her in
kinship foster care with her siblings, where all three children have remained.
See Stipulation of Counsel, 11/7/22, at ¶ 7; N.T., 12/14/22, at 29, 36. The
court adjudicated E.M.G. dependent August 3, 2021, and established a
permanency goal of reunification.3 See Stipulation of Counsel, 11/7/22, at ¶
10; see also N.T., 12/14/22, at 19.
In furtherance of reunification, the Agency issued family service plans
on July 13, 2021, March 18, 2022, May 18, 2022, and November 17, 2022.
These plans were forwarded to Mother, and the objectives essentially
remained consistent. See N.T., 12/14/22, at 19-22; see also Stipulations of
Counsel, 11/7/22, at ¶ 13. Corresponding to the services and conditions set
forth by the court at the time of adjudication, Mother was required to address,
inter alia, her substance abuse, housing, and cooperate with services. See
Orders of Adjudication and Disposition, 8/3/21 & 6/7/21, Appendix of Court
Ordered Services & Conditions; N.T., 12/14/22, at 21; Exhibits 1, 2, 3, and 5.
Throughout the ensuing dependency proceedings, the court conducted
regular review hearings at which it found Mother to be noncompliant with the
permanency plan and not progressing toward alleviating the circumstances
necessitating placement. See N.T., 12/14/22, at 20-21; see also Stipulations
____________________________________________
3 The court additionally established a concurrent goal of adoption. See Order
of Adjudication and Disposition, 8/3/21, at 3.
-6-
J-A13041-23
of Counsel, 11/7/22, at ¶¶ 14, 15, 16. Moreover, the court maintained the
Children’s commitment and placement.
The Agency filed petitions for the involuntary termination of parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (4), (5), (8), and (b) on
August 19, 2022, as well as petitions to change the Children’s permanency
goals from reunification to adoption. The court held a combined hearing on
the petitions on December 14, 2022. Children, who were three, ten, and two
years old, respectively, were represented by both a guardian ad litem (“GAL”)
and legal counsel.4 Mother was represented by counsel but did not appear.5
The Agency presented the testimony of Lindsay Keller, a supervised bail
probation officer with York County Adult Probation; and Vickie Weaver,
ongoing caseworker. The Agency additionally proffered Exhibits 1 through 5,
which were admitted without objection. See N.T., 12/14/22, at 9-10.
The court placed its determination and reasoning on the record at the
conclusion of the hearing. See N.T., 12/14/22, at 120-34. By separate decrees
dated December 14, 2022, and entered December 16, 2022, the court
involuntarily terminated Mother’s parental rights to Children. In addition, by
____________________________________________
4 In lieu of separate briefs, both the GAL and legal counsel submitted letters
joining the Agency’s brief. See Letters, 3/8/23 & 3/9/23.
5 The court recognized notice via publication for the December 14, 2022
hearing. See N.T, 12/14/22, at 7-9, 122. Notably, Mother’s whereabouts were
unknown. See id. at 8. It was reported that her bail was revoked and that
there was an outstanding warrant with respect to pending criminal matters.
See id. at 8, 14.
-7-
J-A13041-23
separate orders dated December 20, 2022, and entered December 21, 2022,
the court changed Children’s permanency goals from reunification to adoption
and instituted a concurrent goal of permanent legal custody.6
On January 9, 2023, Mother, through Counsel, filed timely notices of
appeal and concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b) with respect to the termination decrees. She
likewise filed timely notices of appeal and concise statements of errors
complained of on appeal with respect to the goal change orders on January
10, 2023. This Court consolidated Mother’s appeals sua sponte on February 3,
2023.
Thereafter, on February 17, 2023, Counsel filed a petition to withdraw,
as well as an Anders brief. When counsel seeks to withdraw pursuant to
Anders and its progeny,7 this Court may not review the merits of the appeal
without first addressing counsel’s request to withdraw. See In re Adoption
____________________________________________
6 The court placed its determination and reasoning on the record at the
conclusion of the hearing. See N.T., 12/14/22, at 120-34. This was
additionally transcribed and issued as separate orders dated December 14,
2022, and entered December 20, 2022 on the orphans’ court dockets, and
December 21, 2022 on the juvenile division dockets. The court issued Rule
1925(a) opinions incorporating and referencing these orders and the
reasoning therein.
7 This Court extended the Anders procedure to appeals from decrees
terminating parental rights involuntarily in In re V.E., 611 A.2d 1267, 1275
(Pa.Super. 1992). This Court further extended the Anders principles to
appeals involving goal change orders in In re J.D.H., 171 A.3d 903, 906
(Pa.Super. 2017).
-8-
J-A13041-23
of M.C.F., 230 A.3d 1217, 1219 (Pa.Super. 2020) (quoting Commonwealth
v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010)) (“We reiterate that ‘[w]hen
presented with an Anders brief, this court may not review the merits of the
underlying issues without first passing on the request to withdraw.’”). To
procedurally withdraw, 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). Counsel must also “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).
Additionally, our Supreme Court has set forth the following
requirements for Anders briefs:
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition 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 (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, 602 Pa. at 178-79, 978 A.2d at 361.
-9-
J-A13041-23
Instantly, Counsel filed a petition to withdraw, stating that the issues
raised on appeal are without merit and not supported by law and, upon review
of the record, there are no alternative appealable issues. See Application to
Withdraw as Counsel, 2/17/23, at ¶¶ at 5, 6. Counsel also attached a copy of
the Millisock letter that he sent to Mother, along with his petition and a copy
of the Anders brief.8 However, our review of Counsel’s petition and Anders
brief does not reflect the type of zealous review that Anders requires. See
Santiago, 602 Pa. at 169, 978 A.2d at 355-56 (“[C]ounsel must consistently
serve the client's interest to the best of his or her ability. Only after such an
evaluation has led counsel to the conclusion that the appeal is “wholly
frivolous” is counsel justified in making a motion to withdraw”). Critically,
counsel has failed to attest in either his petition or brief that “after making a
conscientious examination of the record, [he] has determined that the appeal
would be frivolous.” Cartrette, 83 A.3d at 1032.
Specifically, Counsel’s framing of the potential issues in this matter
solely advances arguments that are explicitly in favor of the termination
decrees and goal change orders - arguments that are adverse to Mother’s
interests - rather than rendering a conclusion that any appeal would be wholly
____________________________________________
8 As required, Counsel advised Mother of her right to retain private counsel or
proceed pro se and raise any additional points that she deems worthy of this
Court’s attention. See Application to Withdraw as Counsel, 2/17/23, at Exhibit
A. Mother has not responded to this communication.
- 10 -
J-A13041-23
frivolous. See, generally Anders Brief at 15-18. This is in direct
contravention of Santiago, wherein our Supreme Court reiterated:
To repeat, what the brief must provide under Anders are
references to anything in the record that might arguably support
the appeal. [Anders, 386 U.S. at 744; Commonwealth v.
McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)]. Indeed, we
have recognized and emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but
reflects counsel’s candid assessment of the complete lack of merit
in his client’s case, and a merits brief, which implies that an issue
is worthy of review and has some chance of succeeding. See
[Smith v. Pa. Bd. of Prob. & Parole, 524 Pa. 500, 511, 574
A.2d 558, 564 (1990)] (“By filing an Anders brief, a lawyer does
not advocate arguments he believes are ‘wholly frivolous’; rather,
he presents them for the court’s confirmation of his belief.”).
Santiago, 602 Pa. at 176, 978 A.2d at 359-60.
In so doing, Counsel has focused exclusively upon the reasons that exist
for affirming the trial court’s holdings while declining to address the issues
that might support Mother’s appeal, e.g., the issues identified in her Rule
1925(a)(ii) and (b) statements. We discern that counsel has largely failed to
recognize the distinction between issues that may lack merit and truly
frivolous claims. See Commonwealth v. Hipps, 274 A.3d 1263, 1271 n.3
(Pa. Super. 2022) (“[F]rivolousness is a slightly higher standard than lack of
merit; an argument may be meritless, but not frivolous.”).
Overall, our review of Counsel’s Anders submissions cannot confirm
that Counsel has conducted the kind of zealous review that would permit him
to conclude that Mother’s appeal is wholly frivolous. Compare Anders Brief
at 15-18 with Santiago, 602 Pa. at 177, 978 A.2d at 360 (“Without [referring
- 11 -
J-A13041-23
to anything in the record that Counsel believes arguably supports the appeal
or stating that there were no such references for him to make], we are not
assured, as Anders requires, that counsel fully performed his [or her] duty
as [the appellant’s] advocate to independently search the record as a trained
advocate with an eye to uncovering appealable error, before concluding that
[the appellant’s] appeal was frivolous.”). We therefore cannot determine that
Counsel fully performed his duty9 and that Mother’s right to counsel has been
properly vindicated. See id. at 177, 978 A.2d at 360 (“Under Anders, the
right to counsel is vindicated by counsel’s examination and assessment of the
record and counsel’s references to anything in the record that arguably
supports the appeal.”). Thus, Counsel’s brief does not substantially satisfy the
Anders procedure.
Accordingly, we deny Counsel’s petition for leave to withdraw. Counsel
shall file either (1) another Anders brief that conforms to the requirements
set forth in Santiago, supra; or (2) an advocate’s brief on Mother’s behalf.
We grant Counsel 30 days from the date of this decision to file either an
Anders brief or an advocate’s brief. If Counsel files an advocate brief,
____________________________________________
9 As the Court stated in Santiago, “[a]lthough an indigent whose appeal is
frivolous has no right to have an advocate make his case to the appellate
court, such an indigent does, in all cases, have the right to have an attorney,
zealous for the indigent’s interests, evaluate his case and attempt to discern
nonfrivolous arguments.” Commonwealth v. Santiago, 602 Pa. 159, 173,
978 A.2d 349, 357-58 (2009) (quoting Smith v. Robbins, 528 U.S. 259(2000)).
- 12 -
J-A13041-23
Appellees shall have 30 days thereafter to file a supplemental response brief,
should they decide one is warranted.
Petition denied with instructions. Panel jurisdiction retained.
- 13 -