Opinion
37 WDA 2024 38 WDA 2024 39 WDA 2024 40 WDA 2024 41 WDA 2024 J-S22001-24
08-26-2024
IN RE: ADOPTION OF: S.D.S., A MINOR APPEAL OF: J.C., MOTHER IN RE: ADOPTION OF: M.D.S., A MINOR APPEAL OF: J.C., MOTHER ADOPTION OF: B.S.S., A MINOR APPEAL OF: J.C., MOTHER IN RE: ADOPTION OF: T.D.S., A MINOR APPEAL OF: J.C., MOTHER IN RE: ADOPTION OF: M.J.-M.S., A MINOR APPEAL OF: J. C., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered December 13, 2023 In the Court of Common Pleas of Westmoreland County Orphans' Court at No(s): 017 of 2023, 018 of 2023, 064 of 2023, 020 of 2023, 019 of 2023
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
MEMORANDUM
PANELLA, P.J.E.
J.C. ("Mother") appeals from the December 13, 2023 orders involuntarily terminating her parental rights to her five biological sons, T.S.S., born in January 2011, M.J.-M.S., born in December 2012, M.D.S., born in November 2013, S.D.S., born in March 2020, and B.S.S., born in June 2021, (collectively, "the Children"), pursuant to 23 Pa.C.S.A. § 2511(a), (2), (5), (8), and (b). In addition, Mother's appointed counsel, Tyler Schultz, Esquire ("Counsel"), has filed a petition to withdraw and an accompanying brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After review, we deny Counsel's petition to withdraw and direct Counsel to file an amended Anders brief, along with a new petition to withdraw.
The court involuntarily terminated the parental rights of H.L.S., IV, the father of M.D.S., T.S.S., and M.J.-M.S., pursuant to the same orders. H.L.S., IV, likewise appealed, and we address his appeals by separate memorandum at Superior Court Docket Nos. 108-110 WDA 2024. The court additionally involuntarily terminated the parental rights of S.W., the putative father of S.D.S., as well as those any unknown father, and J.A.M., the father of B.S.S. Neither S.W., J.A.M., nor any unknown father, appealed or participated in the instant appeals.
Given our disposition, we need not detail the full factual and procedural history of this appeal. Briefly, due to allegations of "incorrigibility and truancy" related to the three oldest children, as well as allegations of Mother's substance abuse, in January 2021, the Westmoreland County Children's Bureau ("the Agency") provided Mother with services, including drug and alcohol screening and counseling. See N.T., 11/16/23, at 6; Agency Exhibit 12, Recommendation for Adjudication and Disposition, 8/13/21, Findings of Fact, ¶5. In April 2021, prior to B.S.S.'s birth, the Children's maternal aunt, M.C. ("Maternal Aunt"), privately obtained custody of the four older children when Mother entered inpatient treatment for substance abuse. Thereafter, as Maternal Aunt needed financial assistance, the court placed them in the legal and physical custody of the Agency on July 23, 2021, and they remained in kinship care with Maternal Aunt. See N.T., 11/16/23, at 4-5, 32; Agency Exhibit 12, Recommendation for Adjudication and Disposition, 8/13/21, Findings of Fact, ¶ 5. The court adjudicated them dependent on August 23, 2021. See N.T., 11/16/23, at 4; Agency Exhibit 12, Recommendation for Adjudication and Disposition, 8/13/21, at 1.
H.L.S., IV, was incarcerated at the time of his children's adjudication. See N.T., 11/16/23, at 5, 21; Agency Exhibit 12. S.W., the putative father of S.D.S., never responded to outreach from the Agency. See N.T., 6/29/23, 112-117.
The court established an initial permanency goal of return to parent or guardian. In furtherance of reunification, Mother was ordered to submit to a drug and alcohol evaluation and comply with the recommendations, submit to random drug screens, undergo a parenting assessment and follow the recommendations, and obtain/maintain a stable and appropriate household. See Agency Exhibit 12, Recommendation for Adjudication and Disposition, 8/13/21, at 3. Throughout the ensuing dependency proceedings, Mother was additionally ordered to complete mental health treatment and take any medication as prescribed, to complete offender's treatment, to obtain a verifiable and legal source of income, and to participate in services while incarcerated. See Agency Exhibit 12.
The court established a concurrent permanency goal of adoption on November 1, 2021. See Agency Exhibit 12, Recommendation Permanency Review, 11/1/21, at 2.
Mother successfully completed drug and alcohol treatment, but following discharge in January 2022, relapsed on drugs and was homeless. See N.T., 11/16/23, at 7-8; see also Agency Exhibit 12. On May 10, 2022, the Agency obtained emergency custody of B.S.S., to whom Mother gave birth during inpatient treatment, due to reports of neglect and substance abuse. See N.T., 11/16/23, at 4-5, 32. The court adjudicated B.S.S. dependent on May 27, 2022, and established a permanency goal of return to parent or guardian and a concurrent goal of adoption. See id. at 4; Agency Exhibit 12, Order of Adjudication and Disposition (B.S.S.), 5/27/23, at 2-3. B.S.S. was placed in a separate foster home from his siblings, where he remained at the time of the subject proceedings. See N.T., 11/16/23, 40; Agency Exhibit 12.
B.S.S.'s father was incarcerated at the time and remained incarcerated at the time of the subject hearings. See N.T., 11/16/23, at 5; Agency Exhibit 12.
At regular permanency review hearings conducted from May 2022 through December 2022, Mother's compliance and progress were characterized as none to minimal. See N.T., 11/16/23, at 24-26; Agency Exhibit 12. Moreover, while Mother was afforded supervised visitation, both in-person and virtual, the court suspended all contact between Mother and the Children in May 2022, pending resolution of outstanding Child Protective Services ("CPS") reports and a parenting assessment. See Agency Exhibit 12, Recommendation- Permanency Review, 5/10/22, at 5; see also N.T., 11/16/23, at 10-12.
On February 1, 2023, the Agency filed petitions to involuntarily terminate Mother's parental rights to the four older children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). Subsequently, on June 27, 2023, the Agency filed a petition to involuntarily terminate Mother's parental rights to the youngest child, B.S.S., pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). The court held hearings on the Agency's petitions on June 29, 2023, November 2, 2023, and November 16, 2023. The Agency presented the testimony of its caseworker, as well as numerous service providers. Mother, who was represented by counsel but only appeared for the first hearing date, did not testify or offer any evidence.
The Children were represented by a separate guardian ad litem ("GAL") and legal counsel, both of whom argued for termination of Mother's parental rights at the conclusion of the subject proceedings. See 23 Pa.C.S.A. § 2313(a); see also N.T., 11/16/23, at 91, 99-100. Neither filed briefs with this Court related to the instant appeals.
By orders dated December 13, 2023, the orphans' court involuntarily terminated Mother's parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). The court filed contemporaneous opinions setting forth its rationale. On December 21, 2023, Mother filed timely notices of appeal, along with concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The court filed responsive Rule 1925(a) opinions on December 28, 2023, wherein it referred this Court to its prior filings.
This Court consolidated Mother's appeals sua sponte on January 31, 2024.
Thereafter, Counsel filed a petition to withdraw, as well as an Anders brief. When counsel seeks to withdraw pursuant to Anders and its progeny, this Court may not review the merits of the appeal without first addressing counsel's request to withdraw. See In re Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020) (quoting Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010)) ("'When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.'") (cleaned up).
This Court extended the Anders procedure to appeals from decrees terminating parental rights involuntarily in In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992).
To procedurally withdraw, 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) (citation omitted). 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 set forth the following requirements for Anders briefs:
[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.Santiago, 978 A.2d at 361. Anders and Santiago require substantial, not perfect performance. See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007); see also Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa. Super. 2022).
Instantly, Counsel filed a petition to withdraw certifying his conscientious review of the record and determination that Mother's appeals are frivolous, as well as a compliant Millisock letter informing Mother of her right to retain private counsel or proceed pro se and raise any additional points that she deems worthy of this Court's attention. He further served Mother with a copy of the Anders brief. However, in concluding that the appeal is wholly frivolous, Counsel's Anders brief does not present the controlling law with respect to 23 Pa.C.S.A. § 2511(b), which provides, inter alia, that "[t]he court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). Specifically, Counsel does not address the nature and extent of the Children's bond with Mother, including whether the bond is "necessary and beneficial" to the Children. See Interest of K.T., 296 A.3d 1085, 1113 (Pa. 2023); see also id. at 1106 (reiterating that the child's emotional needs and welfare also include "intangibles such as love, comfort, security, and stability.") (citation omitted). Accordingly, we deny Counsel's petition to withdraw and direct Counsel to file an amended Anders brief, along with a new petition to withdraw, within 14 days from the date of this decision that addresses the application of 23 Pa.C.S.A. § 2511(b) and relevant case law precedent to the facts of this case. In particular, we direct Counsel to address whether there was any evidence of a necessary and beneficial bond between the Children and Mother.
Mother has not responded to Counsel's petition to withdraw and Anders brief.
Petition to withdraw denied. Counsel is directed to file an amended Anders brief consistent with this memorandum. Panel jurisdiction retained.
Judgment Entered.