Opinion
J-S13036-18 No. 1408 WDA 2017
05-25-2018
IN THE INTEREST OF: D.R., A MINOR APPEAL OF: F.S., NATURAL MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order August 28, 2017 in the Court of Common Pleas of Erie County, Juvenile Division at No(s): No. 122 of 2016 BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
F.S. ("Mother") appeals from the Order changing the permanency goal for her minor son, D.R. (born in October 2015 - hereinafter, "Child"), from the concurrent goal of reunification/adoption, to adoption alone. Additionally, Emily M. Merski, Esquire ("Attorney Merski"), Mother's counsel, has filed a Petition for Leave to Withdraw as Counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We grant Attorney Merski's Petition for Leave to Withdraw and affirm the juvenile court's Order.
This Order is final and appealable, for the reasons stated in the juvenile court's Opinion. See Juvenile Court Opinion, 11/22/17, at 9.
Anders principles "apply in appeals from goal change orders, even in the absence of an involuntary termination decree. Parents have a right to counsel at every stage of a dependency proceeding." In re J.D.H., 171 A.3d 903, 906 (Pa. Super. 2017); see also In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992).
The juvenile court thoroughly set forth the relevant facts and procedural history underlying this appeal in its Opinion, which we incorporate as though fully set forth herein. See Juvenile Court Opinion, 11/22/17, at 1-8. After Attorney Merski timely initiated the instant appeal, she filed in this Court a Petition for Leave to Withdraw as Counsel and a separate Anders Brief.
We note that, attached to the appellate brief filed by Erie County Office of Children and Youth ("OCY"), is a Decree dated December 6, 2017, filed under a separate docket number, wherein the Orphans' Court terminated Mother's parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. OCY maintains that Mother did not appeal this Decree. See Brief for OCY at 1. Our decision in the instant appeal does not include a consideration of this Decree. See In re J.F., 27 A.3d 1017, 1024 n.10 (Pa. Super. 2011) (stating that this Court may only consider information contained in the certified record on appeal; anything not contained therein does not exist for appellate purposes).
Before reviewing the merits of Mother's claims, we must first determine whether Attorney Merski has complied with the dictates of Anders in petitioning to withdraw from representation. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). Pursuant to Anders , when an attorney believes that an appeal is frivolous and wishes to withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the [client], counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to [the client] and advise [her] of [her] right to retain new counsel or to raise any additional points that [s]he deems worthy of the court's attention.In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted). With respect to the third requirement of Anders , i.e., that counsel inform the client of her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [a] petition to withdraw a copy of the letter sent to the[] client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a proper Anders brief 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.Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009). Once counsel has satisfied the above requirements, this Court "must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." In re S.M.B., 856 A.2d at 1237.
Here, Attorney Merski has complied with the requirements set forth in Anders by indicating that she made a conscientious review of the record and determined that Mother's appeal would be wholly frivolous. Further, the record contains a copy of the letter that Attorney Merski sent to Mother, informing her of Attorney Merski's intention to withdraw and advising her of her right to proceed pro se, retain counsel, and file additional claims. Finally, Attorney Merski's Anders Brief meets the standards set forth in Santiago. Because Attorney Merski has complied with the procedural requirements for withdrawing from representation, we will independently review the record to determine whether Mother's appeal is, in fact, wholly frivolous.
Because Mother neither filed a pro se brief, nor retained alternate counsel for this appeal, we will consider the following issue Attorney Merski presents on Mother's behalf in the Anders Brief: "Whether the juvenile court committed an abuse of discretion and/or error of law when it determined that the concurrent permanency goal of reunification/adoption was no longer feasible and changed the goal solely to adoption?" Anders Brief at 2 (capitalization omitted).
Our well-settled standard of review is as follows: "When we review a [juvenile] court's order to change the placement goal for a dependent child to adoption, our standard is abuse of discretion." In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006); see also In re A.L., 779 A.2d 1172, 1174 (Pa. Super. 2001) (stating that "[t]he standard of review which this Court employs in cases of dependency is broad."). Appellate courts are not in a position to make close calls based on fact-specific determinations, and must defer to the juvenile court judges, who are in the best position to gauge the likelihood of the success of a permanency plan. In the Interest of R.J.T., 9 A.3d, 1179, 1190 (Pa. 2010). "[T]he best interests of the child[,] and not the interests of the parent[,] must guide the [juvenile] court, and the burden is on the child welfare agency involved to prove that a change in goal would be in the child's best interest." In re R.I.S., 36 A.3d at 573, 567 (Pa. 2011); see also In the Matter of S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (stating that the "[s]afety, permanency, and well-being of the child must take precedence over all other considerations.") (citation and emphasis omitted). A "child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting." In re J.D.H., 171 A.3d at 908 (citations and brackets omitted).
Pursuant to 42 Pa.C.S.A. § 6351(f) of the Juvenile Act, when considering a petition for a goal change for a dependent child, the juvenile court is to consider, inter alia: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child's safety; and (7) whether the child has been in placement for at least fifteen of the last twenty-two months.Id. (citations and brackets omitted).
Here, Mother contends that the juvenile court abused its discretion in changing the permanency goal for Child from reunification/adoption to adoption, since "the record shows [that Mother], while engaged in court-ordered services, was making progress towards achieving the goal of reunification." Anders Brief at 7.
In its Opinion, the juvenile court cogently addressed Mother's claim and determined that it did not abuse its discretion in changing the permanency goal for Child to adoption, as the evidence showed that it was in Child's best interests. See Juvenile Court Opinion, 11/22/17, at 10-15. We agree with the juvenile court's determination and analysis, which is supported by the record. As the juvenile court's reasoning is sound, and our independent review of Mother's issue demonstrates that it does not entitle her to relief, we thus affirm based on the juvenile court's Opinion in concluding that the court did not abuse its discretion in changing Child's permanency goal to adoption. See id.
Moreover, our review of the record discloses no other non-frivolous issues that Mother could raise that Attorney Merski overlooked. See In re J.D.H., 171 A.3d at 910. Accordingly, we grant Attorney Merski's Petition to Withdraw, and affirm the juvenile court's Order.
Petition to Withdraw granted; Order affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/25/2018
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