In the Int. of: X.J. Appeal of: D.A.

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2014 PA Super 258IN THE INTEREST OF: X.J., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.A., MOTHER
No. 697 MDA 2014
Appeal from the Decree April 21, 2014
In the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 36-2013-1861
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
OPINION BY MUNDY, J.: FILED NOVEMBER 20, 2014
Appellant, D.A. (Mother), appeals from the April 21, 2014 decree,
involuntarily terminating her parental rights to her minor child, X.J., born in
July 2010.1 In addition, Mother’s counsel has filed a petition to withdraw,
together with an Anders2 brief, averring the appeal is frivolous. After
careful review, we deny counsel’s petition to withdraw, vacate the decree,
and remand for further proceedings.
We summarize the relevant factual and procedural history of this case
as follows. X.J. was removed from Mother’s care as a result of Mother’s
alleged drug use, and following an incident in which X.J. was left
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1
The decree also terminated the parental rights of X.J.’s biological father,
H.W.R. (Father). Father is not a party to this appeal.
2
Anders v. California, 386 U.S. 738 (1967).
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unsupervised for an extended period of time. Because of Mother’s neglect,
X.J. fell out of a bassinet/playpen and fractured his arm. The Lancaster
County Children and Youth Social Service Agency (the Agency) filed a
petition for temporary custody of X.J., along with a shelter care application
and motion for a finding of aggravated circumstances. X.J. was adjudicated
dependent on May 29, 2013.3 Mother appealed, and a panel of this Court
affirmed the juvenile court’s order on November 7, 2013. See In re X.J.,
91 A.3d 1276 (Pa. Super. 2013) (unpublished memorandum). Mother did
not file a petition for allowance of appeal with our Supreme Court.
Meanwhile, on July 25, 2013, the Agency filed a petition to terminate
Mother and Father’s parental rights to X.J. The orphans’ court held a
termination hearing on March 17, 2014. Mother did not appear at said
hearing. The orphans’ court issued a decree terminating Mother’s parental
rights, dated March 17, 2014, and entered April 21, 2014. Also on April 21,
2014, Mother filed a notice of appeal, along with a concise statement of
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3
For purposes of dependency proceedings, Mother was represented by
Caprice Hicks Bunting, Esquire (Attorney Bunting), who currently represents
Mother in this appeal. As we explain infra, Attorney Bunting was permitted
to withdraw as counsel on October 22, 2013, and was reappointed by the
juvenile court on May 14, 2014, retroactive to April 1, 2014. See Praecipe
for Withdrawal of Appearance, 10/22/13, at 1; Trial Court Order, 5/14/14, at
1.
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errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i).4
In her Anders brief, Attorney Bunting raises the following issue on
Mother’s behalf.
Whether the [orphans’ c]ourt erred when it
terminated the parental rights of the biological
Mother[?]
Anders Brief at 11.5
When counsel files an Anders brief, this Court may not review the
merits without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013). In
In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the
Anders principles to appeals involving the termination of parental rights.
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4
We note that Mother’s notice of appeal was filed on April 21, 2014, more
than 30 days after the date on the orphans’ court decree. See Pa.R.A.P.
903(a) (stating, “[a] notice of appeal … shall be filed within 30 days after the
entry of the order from which the appeal is taken[]”). The docket reflects
that, while the trial court issued its decree on March 17, 2014, the case file
for the instant matter was later discovered “in the pending drawer
undocketed,” and the decree remained undocketed until April 21, 2014. See
Orphans’ Court Docket at 2. Thus, the date of entry for the trial court’s
decree was April 21, 2014, and Mother’s notice of appeal was timely filed.
See id. at 108(b) (stating, “[t]he date of entry of an order in a matter
subject to the Pennsylvania Rules of Civil Procedure shall be the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.Civ.P. 236(b)[]”).
5
We note Mother filed a pro se response to the Anders brief on November
5, 2014. In light of our disposition, we need not consider the issues raised
therein.
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Id. at 1275. In these cases, counsel appointed to represent an indigent
parent on a first appeal from a decree involuntarily terminating parental
rights may petition this Court for leave to withdraw representation and
submit an Anders brief. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super.
2004). We review counsel’s Anders brief for compliance with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[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.
Id. at 361.
Additionally, pursuant to Commonwealth v.
Millisock, 873 A.2d 748 (Pa. Super. 2005) and its
progeny, “[c]ounsel also must provide a copy of the
Anders brief to his client. Attending the brief must
be 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 the court[’]s attention in
addition to the points raised by counsel in the
Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
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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), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In the present matter, Attorney Bunting states in her petition to
withdraw that she has conducted a conscientious examination of the record,
and that Mother’s appeal is wholly frivolous. Attorney Bunting indicates that
she has sent Mother a letter informing her of her right to obtain new
counsel, or to proceed pro se, and explaining to her that she may raise any
additional arguments with this Court. A copy of this letter is attached to the
petition to withdraw. In her Anders brief, Attorney Bunting sets forth the
relevant history of the case, as well as her reasons for concluding that
Mother’s appeal is wholly frivolous. Attorney Bunting states in her petition
that a copy of this brief was forwarded to Mother. Accordingly, we conclude
that Attorney Bunting has complied with the technical requirements of
Anders, Santiago, and Millisock. We therefore proceed with our
independent review of the record and the issue presented on Mother’s
behalf.
Our review of the record reveals an issue pertaining to Mother’s lack of
representation during the termination proceedings below. The Adoption Act
controls termination of parental rights proceedings. See generally 23
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Pa.C.S.A. §§ 2511-2513. It provides that a court “shall appoint counsel for
a parent whose rights are subject to termination in an involuntary
termination proceeding if, upon petition of the parent, the court determines
that the parent is unable to pay for counsel or if payment would result in
substantial financial hardship.” Id. § 2313(a.1); see also In re J.T., 983
A.2d 771, 774 (Pa. Super. 2009) (stating, “an indigent parent in a
termination of parental rights case has a constitutional right to counsel …
[and t]he right to counsel in parental termination cases is the right to
effective assistance of counsel even though the case is civil in nature[]”)
(citations omitted). An indigent parent in termination proceedings is
likewise entitled to be advised of that right. In re Adoption of R.I., 312
A.2d 601, 603 (Pa. 1973). This Court has held that when a party “was
denied [her] right to counsel—or failed to properly waive that right—this
Court is required to raise this error sua sponte and remand for the PCRA
court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286,
1290 (Pa. Super. 2011). In light of the statutory and constitutional right at
stake, we conclude the principle enunciated in Stossel is appropriate in
termination of parental rights cases.
In In re J.N.F., 887 A.2d 775 (Pa. Super. 2005), this Court held,
consistent with the text of Section 2313(a.1), that the parent must request a
court-appointed attorney once notified of the requirement to do so. Id. at
780. In that case, this Court concluded that the father, who was
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incarcerated, was provided with adequate notice that he was required to
affirmatively request an attorney.
The appointment of counsel for indigent
parents in termination proceedings is controlled by
23 Pa.C.S.A. § 2313(a.1), which states, in pertinent
part, the following:
(a.1) PARENT.—The court shall appoint
counsel for a parent whose rights are subject
to termination in an involuntary termination
proceeding if, upon petition of the parent,
the court determines that the parent is unable
to pay for counsel or if payment would result in
substantial financial hardship.
(emphasis added).
In the present case, the original termination
petition contained a notice that stated the following:
You have a right to be represented at the
hearing by a lawyer; however, it is not
necessary to have a lawyer at this hearing. A
court-appointed attorney will be assigned to
represent you if you cannot afford legal help.
The Family/Orphans' Court Administrator will
be present at this hearing. She will give you an
application for request of a court-appointed
attorney. This attorney will represent you at
your [termination hearing]. If you have any
questions, contact [the Family/Orphans' Court
Administrator].
See Notice, 9/4/2004.
Id. This Court concluded that the orphans’ court was not required to
appoint counsel because the father did not request court-appointed counsel
after he received notice of his right to do so. Id.
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However, in this case, Mother was not advised of her right to counsel
in the termination proceeding. Neither the termination petition, nor the
orphans’ court’s preliminary decree contained any type of notice provision
described in In re J.N.F. Furthermore, the certified record does not contain
any indication that Mother was served with any of the filings in the
termination proceedings below, except for the final termination decree that
is the subject of this appeal. Since Mother was never notified of the
proceedings against her, her right to counsel, or of her obligation to request
the same, we deem the certified record’s silence on Mother’s application for
counsel immaterial for the purposes of this appeal. Based on these
considerations, we conclude that In re J.N.F. does not present an
impediment to our decision in this case.
The certified record reveals that Mother was represented by counsel
solely in the dependency proceedings from approximately October 15, 2012
to October 22, 2013.6 Mother was neither advised of her right to counsel in
the termination proceedings, nor afforded legal representation at any time in
the termination proceedings in orphans’ court. The orphans’ court
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6
We note that the cover pages of the October 21, 2013 juvenile court and
December 9, 2013 orphans’ court hearings list an appearance of Attorney
Bunting on Mothers’ behalf. However, our review of the proceedings reveal
that Attorney Bunting was not present. This is consistent with the certified
record, as Attorney Bunting was permitted to withdraw from representing
Mother for dependency proceedings on October 22, 2013 and there is no
documentation substantiating counsel’s representation of Mother for the
termination proceedings.
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conducted its termination hearing on March 17, 2014. Mother was not
present or represented by an attorney at this hearing. Counsel for the
Agency inaccurately indicated during the hearing that Mother’s “prior counsel
… was here earlier.” N.T., 3/17/2014, at 4. In her Anders brief, Attorney
Bunting correctly avers that she was no longer representing Mother at the
time of the termination hearing.7 See Anders Brief at 13 (stating, “[p]rior
to the termination hearing, specifically on October 21, 2013, the court was
aware Mother no longer had counsel. The record indicates Mother attempted
to qualify for court appointed counsel that day but was unsuccessful[]”)
(citation omitted). The certified record reflects that Mother was without
counsel during a dependency review hearing on October 21, 2013.
Equally troubling as the lack of representation and/or notice thereof is
the lack of service upon the Mother of the orphans’ court scheduling orders.
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7
Our review of the certified record reveals this assertion is correct. The trial
court granted Attorney Bunting’s request to withdraw for the purposes of
dependency proceedings on October 22, 2013. Praecipe for Withdrawal of
Appearance, 10/22/13, at 1. Furthermore, Attorney Bunting was
reappointed to represent Mother by the trial court, on the trial court’s
dependency docket number, as of April 1, 2014. Trial Court Order, 5/14/14,
at 1. A dependency review hearing transcript from October 21, 2013 reveals
that Mother attempted to re-qualify for court-appointed counsel, but did not
have all of the necessary paperwork. The certified record does not reveal
any discussion of appointing counsel for mother regarding the proceedings
seeking to terminate her parental rights. The trial court told Mother that she
was required to re-apply for court-appointed counsel at each stage of
dependency proceedings. See N.T., 10/21/13, at 4. It is unclear what the
legal basis of that statement is, but we need not resolve this ancillary issue
for the purposes of this appeal.
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As noted above, none of the orphans’ court’s orders scheduling the various
termination hearings in this case listed Mother as being served. At the
termination hearing held on December 9, 2013, which was continued,
counsel for the Agency told the orphans’ court that Attorney Bunting was still
representing Mother. N.T., 12/9/13, at 4. Moreover, Attorney Bunting was
listed as Mother’s attorney of record on the affidavit of service of notice
produced by the Agency. Attached to said affidavit is a photocopy of the
letter sent to Mother notifying her of the March 17, 2014 termination hearing
date.8 The letter also notes that a copy was sent to Attorney Bunting.
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8
We also note that the record reveals that service of notice of the
termination hearings was improper in this case. The Adoption Act mandates
that an individual whose parental rights may be terminated must be served
with notice of an upcoming termination hearing. 23 Pa.C.S.A. § 2513(b).
Mother’s termination hearing had previously been scheduled for September
23, 2013. The orphans’ court set forth in a preliminary decree entered July
26, 2013, that Mother must be served “either by personal service or at the
address set forth in the [termination p]etition, by certified mail, return
receipt requested.” By an order entered October 21, 2013, the orphans’
court continued the hearing to December 9, 2013, and directed that “the
Agency is required to make service on the parties by first class mail only.”
Orphans’ Court Order, 10/21/13, at 1. As noted above, Mother was not
listed as served with this order by the orphans’ court. On December 9,
2013, the orphans’ court again continued the termination hearing, and the
Agency requested that the court permit service by first class mail. N.T.,
12/9/2013, at 4. The orphans’ court granted the Agency’s request by an
order entered on December 11, 2013. Mother was not listed as being
served by the orphans’ court with this order either.
At the beginning of Mother’s termination proceedings, counsel for the
Agency stated that Mother had been served with notice of the hearing date
by first-class mail. N.T., 3/17/2014, at 3. Counsel marked, and later
entered into evidence, an affidavit of service of notice. Id. at 4, 16. The
(Footnote Continued Next Page)
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Although the Agency believed that Mother was represented by Attorney
Bunting, as we have explained, the certified record demonstrates that
Mother was unrepresented at this time. Furthermore, our review of the
record reveals there were no orders appointing counsel for Mother for the
purposes of the termination proceedings, nor evidence of any notice to
Mother of her right to counsel.
Thus, the certified record reveals that Mother did not receive counsel
for the purposes of termination proceedings, even though she was entitled
to representation. See, e.g., Stossel, supra; In re J.T., supra. Nor does
the record indicate that Mother was ever advised of her right to counsel for
termination proceedings. See In re Adoption of R.I., supra. Therefore,
we believe the best course of action is to remand this case for a new
termination hearing, before which the orphans’ court shall advise Mother of
her counsel rights, appoint counsel for Mother, or affirmatively determine
that Mother does not qualify for counsel.
Based on the foregoing, we conclude that Mother’s right to counsel
was violated in the termination proceedings below. Accordingly, counsel’s
petition to withdraw is denied, the orphans’ court’s April 21, 2014 decree is
_______________________
(Footnote Continued)
notice, which is included in the certified record, indicates that Mother was
served by first class mail at her address in Elizabethtown, Pennsylvania, on
January 8, 2014. We remind the Agency and the orphans’ court that the
Orphans’ Court Rules only allow service “by personal service, service at his
or her residence on an adult or member of the household, or by registered
or certified mail to his or her last known address.” Pa.O.C.R. 15.6(a).
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vacated, and the case is remanded for further proceedings, consistent with
this opinion.
Decree vacated. Case remanded. Petition to withdraw as counsel
denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
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