Opinion
J-S35006-18 No. 398 MDA 2018 No. 399 MDA 2018 No. 402 MDA 2018 No. 403 MDA 2018
08-14-2018
IN RE: ADOPTION OF: F.A.R., A MINOR APPEAL OF: R.R., MOTHER IN RE: ADOPTION OF: S.C.C., A MINOR APPEAL OF: R.R., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 8, 2018
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2017-188 Appeal from the Order Entered February 8, 2018
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2017-187 Appeal from the Order Entered February 7, 2018
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000097-2016 Appeal from the Order Entered February 7, 2018
In the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-DP-0000768-2006 BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J. MEMORANDUM BY BENDER, P.J.E.:
R.R. ("Mother") filed separate appeals from the orders, dated February 2, 2018, and entered on February 8, 2018, that involuntarily terminated her parental rights to her minor children, F.A.R., born in April of 2006, and S.C.C., born in February of 2004 (collectively "Children"). Mother also filed separate appeals from the orders, dated February 6, 2018, and entered on February 7, 2018, that changed the goals for Children to adoption. Additionally, Mother's counsel, Karen E. Comery, Esq., seeks to withdraw her representation of Mother 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, and remand for further action by Attorney Comery.
The York County Office of Children, Youth and Families ("CYS") filed an application for consolidation of the four appeals, which was granted by this Court in an order dated May 1, 2018.
The facts and procedural history of these cases are not necessary to our disposition of Mother's appeal at this time. Rather, before reaching the merits of Mother's appeal, we must address counsel's request to withdraw. 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)). "In In re V.E., 417 Pa. Super. 68, 11 A.2d 1267 (1992), this Court extended the Anders principles to appeals involving the termination of parental rights." In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). 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) (stating that counsel's letter must explain that the "[a]ppellant is entitled only to retain new counsel or to proceed pro se should he choose to do so").
Additionally, 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;Santiago , 978 A.2d at 361.
(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.
In the instant matter, we first note that counsel's initial letter to Mother advising her of her rights was inadequate. Therefore, on May 4, 2018, this Court directed counsel to send a corrected Millisock letter to Mother. Attorney Comery complied on May 10, 2018, enclosing both the brief and the petition with her letter. However, upon further review we are aware that counsel's compliance with the briefing requirements are not in conformity with Anders and Santiago. The brief contains a summary of the history and facts of the case with citations to the record, the issues raised by Mother, and argument concerning those issues with citations to relevant legal authority. However, Attorney Comery's brief is in effect an advocate's brief and does not contain counsel's conclusion that the appeals are frivolous. Nor does it provide counsel's reasons for that conclusion. Thus, counsel has not satisfied the third and fourth requirements as stated in Santiago.
Specifically, this Court explained that "Attorney Comery indicated that '[i]f the Superior Court permits me to withdraw you may proceed further with your case pro se (on your own) or by hiring a private attorney to represent you,' thus improperly framing [Mother's] ability to respond to counsel's motion to withdraw and Anders brief as contingent on the granting of counsel's motion." Order, 5/4/18, at 1-2 (quoting Attorney Comery's first letter) (unnumbered). This Court's May 4, 2018 order then directed Attorney Comery to file copies of the amended letter sent to Mother that advised her of her immediate right to proceed pro se or with privately retained counsel. Id. at 2.
Therefore, we are compelled to deny Attorney Comery's petition to withdraw. We remand and direct that counsel either file an advocate's brief or a revised Anders brief that comports with Santiago within thirty (30) days of the filing of this memorandum and provide proof that Mother was served with the new/revised brief. Thereafter, Mother shall have thirty (30) days to file a response if she so desires.
Petition to withdraw as counsel denied. Case remanded with instructions. Jurisdiction retained.