Adoption of: R.S., Appeal of: R.S. & C.D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE ADOPTION OF: CHILD, R.S : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: R.S, FATHER :
AND C.D., MOTHER : No. 1493 WDA 2021
Appeal from the Decrees Entered November 19, 2021
In the Court of Common Pleas of Fayette County Orphans’ Court at
No(s): No. 34 Adopt 2021
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: June 15, 2022
R.S. (Father) and C.D. (Mother) (collectively, the Parents) appeal from
the decrees entered in the Fayette County Court of Common Pleas, Orphans’
Court, involuntarily terminating their parental rights to their son, R.S. (Child),
born in February 2020.1 Parents’ attorney, James Natale, Esquire (Counsel),
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* Retired Senior Judge assigned to the Superior Court.
1 Although the orphans’ court issued separate decrees, counsel filed one notice
of appeal on behalf of both Parents. We note that because this appeal involves
only one trial docket, Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
is not implicated. See Walker, 185 A.3d at 977 (“Rule 341(a) . . . require[s]
that when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed.”).
Additionally, we note Counsel does not raise any issue concerning his
representation of both parents, who are not married and appear to be living
separately. While 23 Pa.C.S. § 2313(a.1) provides, “The court shall appoint
counsel for a parent . . . in an involuntary termination proceeding if . . . the
court determines that the parent is unable to pay for counsel or if payment
would result in substantial financial hardship,” the statute is silent as to
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has filed a petition to withdraw and accompanying brief, pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). As Counsel’s Anders brief does not address 23 Pa.C.S.
§ 2511(b), the child’s best interests, we deny the petition and direct him to
file either a compliant Anders brief or an advocate’s brief.
In light of our disposition, a detailed review of the evidence presented
at the termination hearing is not necessary at this time. We summarize that
Mother and Father are not married. Child “was born on February 3, 2020,
testing positive for opiates, fentanyl, and cocaine[.]” Orphans’ Ct. Op.,
2/14/22, at 1. Child was adjudicated dependent on February 13th, when he
was 10 days old, and placed with a foster family, where he has remained. Id.
Fayette County Children and Youth Services (CYS) established the
following permanency plan goals for Parents:
cooperation with [CYS], mental health evaluation, and treatment,
if necessary, drug and alcohol evaluation and recommended
treatment, parenting classes, maintain[ing] a bond with [C]hild
through visitation, and domestic violence counseling. . . .
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whether each parent is entitled to separate counsel when both parents’ rights
are subject to termination. See 23 Pa.C.S. § 2313(a.1) (emphasis added).
We have also not discovered any case authority addressing this particular
question. But see In re K.R., 200 A.3d 969, 984 (Pa. Super. 2018) (en banc)
(where a child’s legal and best interests do not diverge in a termination
proceeding, an attorney-guardian ad litem may represent both and fulfill the
role of the attorney required under § 2313(a) to represent the child’s legal
interests; but where there is a conflict between a child’s legal and best
interests, an attorney-guardian ad litem cannot simultaneously represent
both, and a separate attorney shall be appointed to represent the child’s legal
interests).
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Orphans’ Ct. Op. at 2.
On April 28, 2021, when Child was almost 15 months old, CYS filed
petitions for the involuntary termination of both Mother’s and Father’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). The
orphans’ court conducted evidentiary hearings on October 14 and November
19, 2021. Parents were represented by Counsel and appeared at the first
hearing only. Counsel requested a continuance of the second hearing, later
stating he intended to call both Parents to testify. N.T., 11/19/21, at 2, 49.
The court denied a continuance, reasoning Parents had notice of the hearing.
CYS presented the testimony of four caseworkers who were involved in this
matter, as well as employees of the Fayette County Drug and Alcohol
Commission. Their testimony tended to show Parents were not cooperative,
rarely met with CYS caseworkers and service providers, failed to complete any
of their goals, and attended 36 of 76 visits with Child, “often [while] impaired.”
Orphans’ Ct. Op. at 2. Parents’ last visit with Child was in July of 2021.2 Id.
at 3. Meanwhile, Father’s second cousin, who has adopted Father’s older child
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2 Furthermore, at the time of the November 2021 hearing, Father had “a
pending retail theft charge[,]” charges of possessing cocaine and
paraphernalia, and separate charges of “possessing heroin stamp bags and
driving under suspension DUI related. Mother [had] pending charges of retail
theft, DUI, and possession of” controlled substances. Orphans’ Ct. Op. at 5.
Both Parents also had active arrest warrants. Id.
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and has hosted and supervised parental visits, testified as Parents’ only
witness. Neither Parent testified.
At the end of the November 19, 2021, hearing the orphans’ court
granted CYS’s petition to terminate Parents’ parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Parents timely filed a notice of
appeal and a Pa.R.A.P. 1925(a)(2)(i) concise statement of matters complained
of on appeal. Counsel has filed with this Court an Anders petition to withdraw
and brief.
This Court has explained:
When counsel files an Anders brief, this Court may not
review the merits without first addressing counsel’s request to
withdraw. [T]his Court [has] extended the Anders principles to
appeals involving the termination of parental rights. . . .
In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citations omitted).
In Santiago, our Supreme Court held:
[I]n 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.
Additionally, . . . “[c]ounsel also must provide a copy
of the Anders brief to his client[, along with] a letter that
advises the client of his right to: (1) retain new counsel
to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of
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the court[’]s attention in addition to the points raised by
counsel in the Anders brief.”
“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.”
In re X.J., 105 A.3d at 3-4, quoting, inter alia, Santiago, 978 A.2d at 361.
Santiago, 978 A.2d at 361 (paragraph breaks inserted).
In his petition to withdraw, Counsel states he made a thorough review
and conscientious examination of the record, and determined Parents’ appeals
would be frivolous. Counsel has attached copies of the separate letters he
sent to each Parent, which indicated that he enclosed a copy of the petition to
withdraw and Anders brief. In the letter, Counsel advised Parents they may
retain new counsel or proceed pro se and raise any additional points they
deem worthy of this Court’s attention. Counsel’s petition complies with the
technical requirements of Anders. See In re X.J., 105 A.3d at 4.
However, with respect to Counsel’s Anders brief, we are constrained to
conclude that it is deficient. We first note a trial court must consider,
separately, both Subsection 2511(a) and (b):
Termination of parental rights is controlled by statute. See 23
Pa.C.S.A. § 2511[.] Our case law has made clear that under
Section 2511, the court must engage in a bifurcated process prior
to terminating parental rights. Initially, the focus is on the
conduct of the parent. The party seeking termination must prove
by clear and convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination delineated in
Section 2511(a).
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Only if the court determines that the parent’s conduct
warrants termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to Section
2511(b): determination of the needs and welfare of the child
under the standard of best interests of the child. One major
aspect of the needs and welfare analysis concerns the nature and
status of the emotional bond between parent and child, with close
attention paid to the effect on the child of permanently severing
any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (some citations omitted &
paragraph break added).
Counsel’s Anders brief raises a claim desired by Mother — that the
orphans’ court erred in denying a continuance of the November 19, 2021,
hearing. Anders Brief at 10. Counsel then discusses his opinion that such a
claim is frivolous. Id. (Mother now asserts she was could not attend the
hearing because she was in inpatient treatment, but Mother did not notify
Counsel, CYS, or the court prior to the hearing.)
Counsel next addresses all of the 2511(a) subsections — (1), (2), (5),
and (8) — under which the orphans’ court found termination was warranted.
Anders Brief at 13-23. However, Counsel makes no mention of, and does
not review, Subsection 2511(b). As stated above, Subsection 2511(a) review
is distinct from a Subsection 2511(b) analysis, and both must be proven by
clear and convincing evidence. In re L.M., 923 A.2d at 511. By focusing his
arguments on the 2511(a) subsections and excluding Subsection 2511(b), we
conclude Counsel did not fully perform his duty to “independently search the
record as a trained advocate with an eye to uncovering appealable error,
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before concluding” Parents’ appeal would be frivolous. See Santiago, 978
A.2d at 360. We thus conclude the Anders brief does not comply with
Santiago.
Accordingly, we deny Counsel’s petition to withdraw and direct Counsel
to file, within 30 days of this memorandum, either: (1) an amended Anders
brief that conforms to the requirements set forth in Santiago, supra, and
discusses, inter alia, both Subsections 2511(a) and (b); or (2) an advocate’s
brief on Parents’ behalf. CYS and the Child’s guardian ad litem shall then have
30 days thereafter to file amended briefs, or a letter advising they wish to rely
on the briefs already filed.
Counsel’s petition to withdraw denied. Counsel is directed to file either
an Anders brief or an advocate’s brief consistent with this memorandum.
Panel jurisdiction retained.
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