J-S35044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE ADOPTION OF: A.C., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.C., BIOLOGICAL                :
    MOTHER                                     :
                                               :
                                               :
                                               :   No. 236 MDA 2018

                    Appeal from the Decree January 5, 2018
    In the Court of Common Pleas of Cumberland County Orphans' Court at
                            No(s): 048-Adopt-2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 26, 2018

       J.C. (Mother) appeals from the decree that involuntarily terminated her

parental rights to her daughter, A.C. (Child), born in March 2013.1

Additionally, Mother’s counsel filed a petition to withdraw and 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 order, and remand for further proceedings

consistent with this memorandum.




____________________________________________


1 The trial court entered separate decrees that same day, terminating
involuntarily the parental rights of Child’s unknown father and confirming the
consent to adoption by Child’s presumptive father, D.G. Presumptive Father
and Unknown Father did not appeal the termination of their parental rights,
nor did they file a brief in connection with this appeal.
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      The trial court summarized the factual and procedural history of this

case as follows:

      [Mother] is the biological mother of [Child], born in 2013.
      Following a suicide attempt by [Child’s] minor sister on June 10,
      2016, a shelter care hearing was scheduled for June 16, 2016 for
      both children; however, [Mother] vanished with [Child] and
      neither [Mother] nor [Child] could be located for the hearing.[FN]9
      The [Cumberland County Children and Youth Services (CCCYS)]
      requested and received a pick-up order for [Child], which was
      signed by the Hon. Albert Masland on June 17, 2016. [Child] was
      adjudicated dependent on June 27, 2016 due to concerns with
      [Mother’s] long-standing mental health issues, transiency, and
      inability to properly care for her children.[FN]12          [Child’s]
      whereabouts were unknown at the time of adjudication. On July
      18, 2016, [Child] was located in Colorado, where [Mother] had
      been arrested by federal authorities in relation to a bomb threat.
      After briefly being placed into foster care in Colorado, the pick-up
      order for [Child] was executed and the child was transported back
      to Pennsylvania and placed into foster care in this Commonwealth
      on July 20, 2016. [Mother’s] biological family did not present as
      resources for her.[FN]16 In March 2017, [Child] was moved to a
      second pre-adoptive foster home, where she remains.

      FN 9The shelter care hearing was postponed with regard to [Child]
      until [Child] could be located; [Child’s] sister, D.C., was placed
      into the care and custody of the Agency following the hearing on
      June 16, 2016.
      FN 12 [Child] has three older biological siblings, all of whom were
      removed from [Mother’s] care at various times since [CCCYS]
      initially became involved with the family in 2005; one is deceased,
      one was adopted after [Mother’s] rights were involuntarily
      terminated, and one remains in care. The initial reasons for
      CCCYS involvement in this instance was because of allegations of
      transiency and medical and educational neglect of [Child] and
      D.C., her sister.
      FN 16Maternal aunt initially presented as a temporary resource for
      [Child]; however, she later rescinded that decision. Maternal
      grandmother expressed from the beginning of [CCCYS’s]
      involvement that she would not be a permanency resource for the
      child.


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Trial Court Opinion, 3/7/18, at 2-3 (some footnotes and citations omitted).

       On June 21, 2017, CCCYS filed a petition to change Child’s permanency

goal from reunification to adoption and to involuntarily terminate Mother’s

parental rights to Child. The trial court conducted a combined termination and

goal change hearing on January 5, 2018. At the conclusion of the hearing,

the trial court orally delivered its order terminating Mother’s parental rights to

Child and changing Child’s permanency goal to adoption.           The trial court

entered its decree that same day. Mother timely filed a notice of appeal on

February 5, 2018,2 along with a concise statement of errors complained of on

appeal. Mother’s counsel filed a petition to withdraw and Anders brief on

April 11, 2018.

       We begin by addressing counsel’s petition to withdraw and Anders

brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“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.”) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)). This Court extended the Anders procedure to appeals from

____________________________________________


2 Generally, a party must file his or her notice of appeal within thirty days after
the entry of the order being appealed. Pa.R.A.P. 903(a). Here, thirty days
after January 5, 2018, was February 4, 2018. Because February 4, 2018, was
a Sunday, Mother timely filed her notice of appeal on Monday, February 5,
2018. See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall
fall on Saturday or Sunday, . . . such day shall be omitted from the
computation.”).



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decrees involuntarily terminating parental rights in In re V.E., 611 A.2d 1267

(Pa. Super. 1992). To withdraw pursuant to Anders, 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) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)). With respect to the third requirement of Anders, that counsel inform

the appellant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “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 held that an Anders brief must

comply with the following requirements:

      (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.


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Santiago, 978 A.2d at 361.

      In the instant matter, Mother’s counsel filed a petition to withdraw,

certifying that he reviewed the record and determined that Mother’s appeal is

frivolous. Counsel also filed a brief, which includes a summary of the history

and facts of the case, potential issues that could be raised by Mother, and

counsel’s assessment of why those issues are frivolous, with citations to

relevant legal authority. Counsel provided Mother with a copy of the brief and

a letter advising her that she may obtain new counsel or raise additional issues

pro se. Accordingly, counsel complied substantially with the requirements of

Anders and Santiago.       Therefore, we may proceed to review the issues

outlined in the Anders brief. We must also “conduct an independent review

of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (footnote omitted).

      After careful examination of the certified record, we have identified an

issue relating to the Child’s statutory right to counsel.    The Adoption Act

provides that children have the right to representation by counsel in all

contested termination proceedings. Section 2313(a) of the Act provides as

follows:

      (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

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      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).

      The term “counsel” in Section 2313(a) refers to an attorney representing

the child’s legal interests. In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa.

2017). As our Supreme Court has emphasized, a child’s legal interests are

distinct from his or her best interests. Id. at 174. A child’s legal interests are

synonymous with his or her preferred outcome, while a child’s best interests

must be determined by the trial court. Id.

      This Court clarified the requirements that counsel must meet in order to

provide adequate representation of a child’s legal interests in In re Adoption

of T.M.L.M., __ A.3d __, 2018 WL 1771194 (Pa. Super. April 13, 2018). In

that case, the child was just shy of six years old at the time of the hearing to

terminate his mother’s parental rights.     Id. at *4. However, the attorney

appointed to represent the child did not attempt to interview the child, and

did not state the child’s preferred outcome on the record. Id. at *3-4. The

child’s attorney did not advocate for the child’s legal interests during the

hearing, and instead focused solely on his best interests. Id. Moreover, the

attorney did not file a brief in this Court, nor did she join a brief filed by

another party. Id. at *4.

      This Court concluded that the child had been deprived of his statutory

right to counsel. We reasoned as follows:




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     At the time of the hearings, Child was just shy of six years old.
     While Child may not have been old enough to participate actively
     in [the attorney’s] representation of him, it is not unlikely that
     Child has feelings one way or another about his mother and his
     permanency. Like adult clients, effective representation of a
     child requires, at a bare minimum, attempting to ascertain
     the client's position and advocating in a manner designed
     to effectuate that position. It may be that Child’s preferred
     outcome in this case is synonymous with his best interests. It
     may be that Child wants no contact with Mother. Child may be
     unable to articulate a clear position or have mixed feelings about
     the matter. Furthermore, termination of Mother’s rights may still
     be appropriate even if Child prefers a different outcome. However,
     . . . it is clear that where a court appoints an attorney
     ostensibly as counsel, but the attorney never attempts to
     ascertain the client’s position directly and advocates solely
     for the child’s best interests, the child has been deprived
     impermissibly of his statutory right to counsel serving his
     legal interests.
Id. at *4 (citations omitted) (emphasis added).

     Similarly, our review of the record in this matter reveals that Child was

denied her statutory right to counsel. Child’s attorney, Damian J. Stefano,

Esquire (Counsel), did not attempt to interview Child or determine her

preference. See Authority to Pay Court Appointed Counsel, 5/17/18 (invoice

#2174); Authority to Pay Court Appointed Counsel, 4/23/18 (invoice #2033);

Authority to Pay Court Appointed Counsel, 2/26/18 (invoice #1927); Authority

to Pay Court Appointed Counsel, 12/14/17 (invoice #1756); Authority to Pay

Court Appointed Counsel, 11/13/17 (invoice #1712); Authority to Pay Court

Appointed Counsel, 10/9/17 (invoice #1589); Authority to Pay Court

Appointed Counsel, 8/14/17 (invoice #1462); Authority to Pay Court

Appointed Counsel, 7/17/17 (invoice #1372); and Authority to Pay Court



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Appointed Counsel, 6/14/17 (invoice #1277).         Most egregiously, Counsel

failed to appear at the termination hearing.      Indeed, counsel did little, if

anything, to advocate for Child. As noted above, Counsel did not file a brief

in this Court, nor did he join the brief filed by any other party. See T.M.L.M.,

2018 WL 1771194, at *4. (“Counsel’s duty to represent a child does not stop

at the conclusion of the termination of parental rights hearing.”).

       In short, Counsel failed to advocate for Child’s legal interest during the

termination hearing and on appeal.3 Depriving Child of her right to counsel is

a structural error that can never be harmless, and we must not speculate as

to the effect of counsel’s deficient performance.     L.B.M., 161 A.3d at 183

(“[H]armless error analysis would require speculation after the fact to evaluate

the effect of the lack of appointed counsel, effectively requiring proof of a

negative.”). Absent some indication that Counsel interviewed Child, followed

by Counsel’s statement of Child’s preferred outcome on the record, we cannot

find adequate representation in this case.

       Therefore, we deny the petition to withdraw filed by Mother’s counsel

and vacate the order terminating Mother’s parental rights. On remand, Child’s

counsel must interview Child and attempt to discern her preferred outcome.




____________________________________________


3 Although Child had the benefit of a guardian ad litem (GAL) during the
hearing, the GAL did not rectify the deficient performance by Counsel. L.B.M.,
161 A.3d at 174.

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In the event Counsel no longer represents Child, the trial court shall appoint

new counsel.

      Once Child has counsel, and counsel ascertains Child’s preference,

counsel shall notify the trial court. If Child’s preferred outcome is consistent

with the result of the prior proceedings, the court may supplement the record

with a statement of Child’s legal interests and re-enter its termination order.

Alternatively, if Child’s preferred outcome is inconsistent with the result of the

prior proceedings, the court shall conduct a new hearing. See T.M.L.M., 2018

WL 1771194, at *4 (concluding that the trial court “shall conduct a new

hearing only if it serves the ‘substantive purpose’ of providing [the child] with

an opportunity to advance his [or her] legal interests through his [or her] new

counsel”) (footnote omitted).

      Petition to withdraw denied. Order vacated. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




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