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

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2014 PA Super 258

IN 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 Super. 2013) (unpublished memorandum).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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