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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  IN THE INTEREST OF: W.A.E.P.                 :   IN THE SUPERIOR COURT OF
  A/K/A W.P. A MINOR                           :        PENNSYLVANIA
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  APPEAL OF: L.H., MOTHER                      :   No. 3761 EDA 2017

                    Appeal from the Decree October 25, 2017
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No: CP-51-AP-0001213-2016,
                            CP-51-DP-0001196-2014

  IN THE INTEREST OF: J.D.P. A/K/A             :   IN THE SUPERIOR COURT OF
  J.P., A MINOR                                :        PENNSYLVANIA
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  APPEAL OF: L.H., MOTHER                      :   No. 3763 EDA 2017

                    Appeal from the Decree October 25, 2017
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No: CP-51-AP-0001216-2016,
                            CP-51-DP-0001195-2014

BEFORE:      BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                                FILED JUNE 20, 2018

       L.H. (“Mother”) appeals from the decrees entered October 25, 2017,

which terminated involuntarily her parental rights to her minor children,

J.D.P., a male born in August 2006, and W.A.E.P., a female born in June 2012

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* Retired Senior Judge assigned to the Superior Court.
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(collectively, “the Children”),1 and from the orders entered that same day,

which changed the Children’s permanent placement goals to adoption.         In

addition, Mother’s counsel has 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 decrees and orders, and remand for further

proceedings consistent with this memorandum.

       The trial court summarized the factual and procedural history of this

matter as follows.

              On May 2, 2014, the Department of Human Services
       (“DHS”) received a General Protective Services (“GPS”) report
       alleging that [J.D.P.] threatened to kill Mother with a knife. The
       GPS report also alleged that [J.D.P.] suffered from autism,
       Oppositional Defiant Disorder (“ODD”) and Post Traumatic Stress
       Disorder (“PTSD”). The GPS report alleged that parents had
       ongoing domestic violence issues and that Mother was the
       indicated aggressor of this violence. On May 16, 2014, the
       Children’s father contacted D.H.S. and stated that Mother
       requested that he take care of the Children while she went on a
       methamphetamine[-]fueled drug binge. Father stated that he had
       no money, there was no food in the home and that he had no
       means to care for the Children. Father also stated that the family
       was involved with the New Jersey [Division of] Child Protection
       and Permanency (“CP&P”), formerly known as the New Jersey
       Division of Youth and Family Services, and that he was [c]ourt-
       ordered to have only supervised visitation with the Children. On
       May 16, 2014, DHS spoke with CP&P and learned that the family
       had an open case in New Jersey and that Mother moved to

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1 The trial court entered separate decrees that same day, terminating
involuntarily the parental rights of the Children’s putative father, C.P.
(“Father”). Father did not appeal the termination of his parental rights, nor
did he file a brief in connection with this appeal.

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      Philadelphia to avoid services being implemented in her New
      Jersey home.

           That same day, on May 16, 2014, DHS obtained an OPC for
      the Children. Pursuant to the OPC the Children were placed in
      DHS care. On October 1, 2014, the Children were adjudicated
      dependent.

Trial Court Opinion, 2/23/18, at 2-3 (citations to the record omitted).

      On December 9, 2016, DHS filed petitions to terminate Mother’s

parental rights to the Children involuntarily, as well as petitions to change the

Children’s permanent placement goals to adoption. The trial court conducted

a combined termination and goal change hearing on October 25, 2017, during

which the Children had the benefit of both legal counsel and a guardian ad

litem (“GAL”).   Following the hearing, the court entered decrees terminating

Mother’s parental rights and orders changing the Children’s goals.        Mother

timely filed notices of appeal on November 16, 2017, along with concise

statements of errors complained of on appeal. Mother’s counsel filed a petition

to withdraw and Anders brief on March 3, 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

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

(Pa. Super. 1992). To withdraw pursuant to Anders, counsel must:


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      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)). 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 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.

Santiago, 978 A.2d at 361.

      In the instant matter, counsel filed a petition to withdraw and Anders

brief. Counsel’s brief includes a summary of the facts of this case, a list of

issues that could arguably support the appeal, and counsel’s assessment of

why those issues are meritless, with citations to the record and relevant legal

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authority. Counsel also included a copy of her letter to Mother, advising her

that she may obtain new counsel or proceed pro se. Thus, counsel complied

substantially with the requirements of Anders and Santiago, and we may

review the issues outlined in her 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 Children’s statutory right to counsel. The Adoption Act

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

contested involuntary 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
      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




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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., 2018 Pa. Super. LEXIS 333, 2018 WL 1771194 (Pa. Super. filed

April 13, 2018). In that case, the child was just under six years old at the

time of the hearings to terminate his mother’s parental rights.         2018 Pa.

Super. LEXIS 333 at 9, 2018 WL 1771194 at 4.             However, the attorney

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

set forth his preferred outcome on the record. 2018 Pa. Super. LEXIS 333 at

*6-10, 2018 WL 1771194 at *3-4. The child’s attorney did not advocate for

his legal interests during the hearings, and instead focused solely on his best

interests. Id. Moreover, she did not file a brief in this Court, nor did she join

a brief filed by another party. 2018 Pa. Super. LEXIS 333 at *8, 2018 WL
1771194 at *4.

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

right to counsel. We reasoned as follows:

            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.

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       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.

2018 Pa. Super. LEXIS 333 at *9-10, 2018 WL 1771194 at *4 (citation

omitted) (emphasis added).

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

Children are likely able to express their preferred outcomes. J.D.P. was eleven

years old at the time of the hearing, and W.A.E.P. was five years old.

However, the Children’s counsel did not indicate that he attempted to

interview them or discern their preferences.            Indeed, counsel did little if

anything to advocate for the Children at all. Counsel asked one question, and

presented no argument or statement on the Children’s behalf.              See N.T.,

10/25/17, at 10-13, 18-19.

       To complicate matters further, Mother did not serve the Children’s

counsel with her notices of appeal.            Because of Mother’s error, this Court

omitted counsel from our docket. Counsel did not file a brief in this Court, nor

did he receive the opportunity to file a brief. Counsel has not advocated for

the Children’s legal interests on appeal in any way.2 See T.M.L.M., 2018 Pa.
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2 While the Children also had a GAL during the hearing, the GAL’s
representation did not make up for the deficient performance by legal counsel.
The GAL did not indicate that she met with the Children. She did not make a



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Super. LEXIS 333 at *8, 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.”).

       While the trial court heard at least some testimony relating to the

Children’s legal interests during the hearing, this does not excuse counsel’s

failure to provide representation of the Children in accordance with Section

2313(a) and our holding in T.M.L.M. Depriving the Children of their 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 the Children, followed by counsel’s statement of the Children’s

preferred outcomes on the record, we cannot find adequate representation in

this case. This is especially so where counsel was not able to file a brief on

appeal.

       Having reached this conclusion, we must now consider the appropriate

remedy. Under normal circumstances, because this is an Anders case, we

would deny the petition to withdraw and direct counsel to file an advocate’s

brief arguing the issue of the Children’s inadequate legal representation. See

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statement clarifying the Children’s legal interests, nor did she state that the
Children’s legal interests and best interests were not in conflict. Like the
Children’s counsel, the GAL did not file a brief on appeal.

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Commonwealth v. Tejada, 176 A.3d 355, 362 (Pa. Super. 2017) (denying

counsel’s petition to withdraw and directing her to file an advocate’s brief,

where her Anders brief included an issue that was not frivolous).

      However, when addressing a parent’s right to counsel in the Anders

context, this Court has chosen to simply vacate the termination decree and

remand without requiring an advocate’s brief. See In re X.J., 105 A.3d 1, 7

(Pa. Super. 2014) (vacating the termination decree in an Anders case, where

the record revealed that the appellant did not receive counsel). We believe

this is the more prudent course of action, because it will remedy the Children’s

lack of adequate legal representation in an expedient fashion.

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

and vacate the decrees terminating Mother’s parental rights.       Because the

Children were entitled to representation of their legal interests in the goal

change proceeding as well, we also vacate the orders changing their

permanent placement goals to adoption.       See 42 Pa.C.S.A. § 6311(b)(9);

Pa.R.J.C.P. 1154(9) (providing that a child’s GAL in dependency matters must

“determine to the fullest extent possible the wishes of the child and

communicate this information to the court.”).      On remand, the Children’s

counsel must interview them and attempt to discern their preferred outcomes.

In the event counsel no longer represents the Children, the trial court must

appoint new counsel. In the event counsel determines that the Children prefer

different outcomes, the court must appoint separate counsel for each child.




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      Once the Children have counsel, and their preferred outcomes are clear,

counsel must notify the trial court. If the Children’s preferred outcomes are

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

the record with a statement of the Children’s legal interests and reenter its

termination decrees and goal change orders. Alternatively, if the Children’s

preferred outcomes are inconsistent with the result of the prior proceedings,

the court shall conduct a new hearing. See T.M.L.M., 2018 Pa. Super. LEXIS

333 at *11, 2018 WL 1771194 at *4 (providing that the trial court “shall

conduct a new hearing only if it serves the ‘substantive purpose’ of providing

[T.M.L.M.] with an opportunity to advance his legal interests through his new

counsel.”) (footnote omitted).

      Petition to withdraw denied. Decrees vacated. Orders vacated.      Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/18




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