Adoption of S.K. Appeal of: L.C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF S.T.K. : PENNSYLVANIA
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APPEAL OF: L.C., MOTHER :
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: No. 279 WDA 2023
Appeal from the Decree Entered February 16, 2023
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
99 of 2022
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J : FILED: August 25, 2023
L.C. (“Mother”) appeals from the February 16, 2023 decree involuntarily
terminating her parental rights to her seven-year-old daughter, S.T.K.
(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b).
In addition, Mother’s appointed counsel (“Counsel”), has filed a petition to
withdraw and an accompanying brief, pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we deny Counsel’s petition to withdraw, vacate
the decree involuntarily terminating Mother’s parental rights, and remand with
instructions.
This appeal arises from the petition for involuntary termination of
Mother’s parental rights filed by C.K. (“Father”) and K.K. (“Stepmother”)
(collectively “Appellees”). The record reveals that Child was born in April
2015. Mother and Father never married but resided together briefly at
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paternal grandmother’s home following Child’s birth. In approximately June
2015, Mother and Father separated and Mother moved to R.C.’s (“maternal
grandmother”) home. N.T., 2/14/23, at 8-9. The parties dispute the nature
of their custody arrangements, with Father testifying that, following their
separation, Child stayed with him 90 percent of the time, while Mother averred
that Child resided with her, at maternal grandmother’s home, the majority of
the time. Id. at 8-9, 66.
In February 2017, Father enlisted in the military, but Child could not
move with him. Id at 9-11. Ultimately, Father was discharged in August
2020. Id. at 16. During the intervening three and one-half years, Child split
time residing between the homes of her maternal and paternal grandmothers.
Id. at 12, 96. Additionally, Father, who was stationed in Fort Drum, New York
for three-and-one-half years, visited Child every weekend he could despite
the twelve-hour round trip. Id. at 13-14. During this time, Father also
learned that Mother suffered from an addiction to drugs.1 Id. at 17-18.
Father met Stepmother in June 2020. Id. at 18. In November 2020,
Father purchased a home in Erie, Pennsylvania, where Appellees cohabitated.
Id.
Additionally, when Father completed his military service in August 2020,
he initiated a custody action against Mother seeking primary physical and legal
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1 The record does not specify the nature of Mother’s drug addiction.
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custody of Child. Id. at 19. On November 30, 2021, the court awarded Father
“sole custody” and Mother supervised physical custody “as agreed and
arranged between the parties.” See Father’s Exhibit A.
Appellees married in February 2022. On December 19, 2022, they filed
a petition for the involuntary termination of Mother’s parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(1) and (b). On the same date, Stepmother filed a
petition for adoption. On December 29, 2022, the orphans’ court appointed
Emily S. Antolik, Esquire, as counsel for Child, without designating whether
she would be representing Child’s “best” or “legal” interests. See Order,
12/29/22.
The orphans’ court conducted an evidentiary hearing on February 14,
2023. Mother testified on her own behalf and revealed that she was then
registered as an inpatient at a drug and alcohol rehabilitation facility in New
York. She also presented the testimony of maternal grandmother. Father
and Stepmother testified on their own behalf. Child, then age seven, was
represented by Attorney Antolik.
By decree entered on February 16, 2023, the orphans’ court
involuntarily terminated Mother’s parental rights to Child pursuant to 23
Pa.C.S.A. § 2511(a)(1) and (b). On March 6, 2023, Mother, through Counsel,
timely filed a notice of appeal, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
orphans’ court filed a Rule 1925(a) opinion on March 16, 2023.
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Counsel filed an application to withdraw pursuant to Anders along with
a brief expressing his belief that Mother’s appeal was frivolous on May 11,
2023. This Court has extended the Anders procedures to appeals taken from
decrees terminating parental rights involuntarily. See In re Adoption of
B.G.S., 240 A.3d 658, 661 (Pa. Super. 2020). Accordingly, we will begin our
review by considering Counsel’s petition to withdraw and the accompanying
brief. See B.G.S., 240 A.3d at 661 (“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”).
In order to withdraw pursuant to Anders, counsel must: (1) petition the
court for leave to withdraw and aver that, after making a conscientious
examination of the record, he has determined that an appeal would be
frivolous; (2) furnish a copy of the Anders brief to the appellant; and (3)
advise the appellant that they have the right to retain private counsel or bring
additional arguments to the court’s attention. Id. By way of confirming that
client notification has taken place, our precedent requires that counsel provide
this Court with a copy of the letter advising the appellant of his or her rights
in conformity with Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.
Super. 2005). See B.G.S., 240 A.3d at 661.
Our Supreme Court has also set forth substantive requirements for
counsel’s Anders brief, which must: (1) provide a summary of the procedural
history and facts, with citations to the record; (2) refer to anything in the
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record that counsel believes would arguably support 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. Id. (citing Santiago, 978
A.2d at 361). Thus, a compliant Anders brief 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.
Instantly, Counsel filed a petition to withdraw stating that, after
conscientiously reviewing the record, he believes Mother’s appeal is frivolous.
Counsel also attached the letter he sent to Mother pursuant to Millisock,
along with the petition and Anders brief, advising of her right to retain new
counsel or proceed pro se to pursue her appeal.2 Counsel also filed an Anders
brief which includes a summary of the procedural history and facts of the case
with citations to the record, discussion of issues that could arguably support
Mother’s appeal, and Counsel’s assessment regarding why the appeal is
frivolous with citations to relevant legal authority. Accordingly, we conclude
that Counsel has complied with the technical requirements of Anders and
Santiago.
We next must proceed to “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel.” B.G.S., 240 A.3d at 662 (quoting Commonwealth v. Flowers,
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2 Mother has not retained new counsel or proceeded pro se in this Court.
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113 A.3d 1246, 1250 (Pa. Super. 2015)). In his Anders brief, Counsel
enumerated Mother’s potential arguments as follows.
1. Whether the orphans’ court committed an abuse of discretion
and/or error of law when it determined that the petitioner
established, by clear and convincing evidence, the grounds for
termination of parental rights pursuant to [23 Pa.C.S.A.
§] 2511(a)(1)?
2. Whether the orphans’ court committed an abuse of discretion
and/or error of law when it determined that the petitioner
established, by clear and convincing evidence, the grounds for
termination of parental rights pursuant to [23 Pa.C.S.A.
§] 2511(b)?
Anders Brief at 4 (some capitalization omitted).
Before analyzing whether these issues are frivolous, our independent
review of the record reveals a preliminary non-frivolous issue overlooked by
Counsel. Specifically, there is no indication in the certified record that the
orphans’ court made the requisite determination that Child’s legal and best
interests did not conflict before appointing Attorney Antolik as her sole
counsel. See In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020)
(concluding that “where an orphans’ court has appointed a [guardian ad litem]
GAL/Counsel to represent both the child’s best interests and legal interests,
appellate courts should review sua sponte whether the orphans’ court made a
determination that those interests did not conflict.”).
This Court recently reiterated:
“Section 2313(a) requires the appointment of counsel who serves
the child’s legal interests in contested, involuntary TPR
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proceedings.”[3] In re Adoption of L.B.M., 161 A.3d 172, 180
(Pa. 2017) (footnote omitted). Further, the L.B.M. Court held
that “the failure to appoint counsel for a child involved in a
contested, involuntary termination of parental rights proceeding
is structural error and is not subject to harmless error analysis.”
Id. at 183. Further, the failure to appoint counsel to represent a
child’s legal interests pursuant to Section 2313(a) is a
non-waivable error. [In re] T.S., 192 A.3d [1087, 1092 (Pa.
2018)]. Subsequently, the Supreme Court clarified that “trial
courts are obligated by Section 2313(a) to appoint counsel to
serve the critical role of a child’s attorney, zealously advocating
for the legal interests of the child who otherwise would be denied
a voice in the termination of parental rights proceedings.” In re
Adoption of K.M.G., 240 A.3d [at] 1233-34 [] (citation omitted).
In the context of TPR proceedings, the child’s “legal interests” is
synonymous with “the child’s preferred outcome[.]” T.S., 192
A.3d at 1082 (footnote omitted); see also Pa.R.J.C.P. 1154, cmt.
Further, “where a child’s legal and best interests do not diverge in
a termination proceeding, an attorney-GAL representing the
child’s best interests can also fulfill the role of the attorney
appointed per Section 2313(a) to represent the child’s legal
interests.” T.S., 192 A.3d at 1088 (citation omitted). However,
“where there is no conflict between a child’s legal and best
interests, an attorney-[GAL] representing the child’s best interests
can also represent the child’s legal interests. Id. at 1092; see
also K.M.G., 240 A.3d at 1235-36. As such, our Supreme Court
has held that before appointing an individual to serve as both
guardian ad litem (GAL) and legal counsel for a child, the trial
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3 Section 2313 of the Adoption Act provides, in relevant part:
(a) Child.--The court shall appoint counsel to represent the
child in an involuntary termination proceeding when the
proceeding is being contested by one or both of the parents.
The court may appoint counsel or a guardian ad litem to
represent any child who has not reached the age of 18 years
and is subject to any other proceeding under this part
whenever it is in the best interests of the child. No attorney
or law firm shall represent both the child and the adopting
parent or parents.
23 Pa.C.S.A. § 2313 (a).
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court “must determine whether counsel can represent the dual
interest . . . .” K.M.G., 240 A.3d at 1236.
In the Interest of H.H.N., A.3d ___, 2023 WL 3959884, at *4 (Pa.
Super. 2023) (emphasis in original).
In the case sub judice, we are unable to determine from the certified
record the manner in which the orphans’ court appointed Attorney Antolik.
The order of appointment uses the term “counsel,” but does not specify if it
meant legal counsel, as in an attorney representing Child’s preferred outcome.
Moreover, the only indication of Attorney Antolik’s role is her argument
supporting Child’s best interest, suggesting that she was serving as Child’s
GAL.4
Given that Attorney Antolik was Child’s sole attorney during the
involuntary termination proceeding, we have reviewed the certified record to
confirm that the orphans’ court determined prior to the proceeding that Child’s
best interest and legal interest did not conflict. Nothing in the record indicates
that the orphans’ court fulfilled its duty in this regard under Section 2313(a),
as construed by our Supreme Court in K.M.G., 240 A.3d at 1236. Therefore,
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4 At the conclusion of the hearing, Child’s counsel stated the following.
Thank you, Your Honor. I had the opportunity to meet with [Child]
as well as speak to the parties. . . .
My position is that it would be in [C]hild’s best interest for [] the
petition to be granted.
N.T., 2/14/23, at 108.
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we are unable to fulfill our duty to verify sua sponte that the orphans’ court
determined that Attorney Antolik could represent Child’s dual interests without
conflict. Id.
Accordingly, because we discern the foregoing non-frivolous issue, we
are constrained to deny Counsel’s petition to withdraw and vacate the
termination decree. See In the Interest of A.J.R.O., 270 A.3d 563,
570-571 (Pa. Super. 2022). On remand, we direct the orphans’ court to fulfill
its Section 2313(a) duty as articulated by K.M.G., and determine whether
Attorney Antolik may represent both Child’s legal and best interests. If the
court determines that no conflict exists, then the court shall re-enter its
February 16, 2023 decree as to Mother. If the court determines there is a
conflict between Child’s legal and best interests, then the court shall appoint
separate legal counsel and conduct a new hearing to provide legal counsel an
opportunity to advocate on behalf of Child.
Counsel’s petition to withdraw denied. Decree vacated. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2023
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