In re Interest of I.M.S.

267 A.3d 1262

In the INTEREST OF: I.M.S., A Minor

Appeal of: M.K., Mother

In the Interest of: I.S., A Minor

Appeal of: M.K., Mother

No. 1096 EDA 2021

No. 1097 EDA 2021

Superior Court of Pennsylvania.

Submitted September 13, 2021

Filed December 15, 2021

Robin W. Banister, Philadelphia, for appellant.

Robert D. Aversa, Philadelphia, for Department of Human Services, appellee.

Anastasia M. DePaz, Philadelphia, for Department of Human Services, appellee.

Kathleen B. Kim, Philadelphia, for Department of Human Services, appellee.

Daniel Kurland, Philadelphia, for C.S., participating party.

Joshua A. Weil, Philadelphia, for Guardian Ad Litem, participating party.

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.^*

OPINION BY BOWES, J.:

In this consolidated appeal, M.K. ("Mother") challenges the separate orders entered on June 3, 2021, that deny her respective petitions to appeal nunc pro tunc from the decree involuntarily terminating her parental rights to her child, I.M.S. a/k/a I.S., and from the permanency review order that changed the child's permanent placement goal to adoption.¹ We reverse and remand for nunc pro tunc appeals.

I.M.S. was born in September 2019, and approximately one month later, she was adjudicated dependent due to Mother's on-going drug abuse and inability to care for the newborn. The initial placement goal was reunification, and the juvenile court ordered supervised visitation. The Philadelphia Department of Health and Human Services ("DHS") placed I.M.S. in kinship foster care with a nurse who cared for her in the newborn intensive care unit after I.M.S suffered withdrawal symptoms at birth. She remains with this family.

On February 22, 2021, DHS filed a petition to terminate Mother's parental rights pursuant 23 Pa.C.S. § 2511(a)(1), (2),(5), (8), and § 2511(b). Robin Winthrop Banister, Esquire, appointed by the juvenile court during the dependency proceedings, continued to represent Mother in the termination of parental rights proceedings. Following a remote evidentiary hearing, the trial court entered an April 19, 2021 decree terminating Mother's parental rights on all five grounds. On the same date, the court entered a juvenile court order that changed the child's permanent placement goal from reunification to adoption. In the latter order, the trial court directed that counsel's appointment would remain active for an additional thirty-one days, ostensibly in order to file any requested appeals. The juvenile court order and the termination decree both complied with Pa.R.C.P. 236(b), which requires the prothonotary to note in the docket the giving of notice. See Frazier v. City of Philadelphia , 557 Pa. 618, 735 A.2d 113, 115 (1999) (holding that "an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given").

While Mother requested that Attorney Banister appeal the decree and order, timely appeals did not follow. Instead, on May 20, 2021, one day after the expiration of the respective thirty-day appeal periods, Attorney Banister filed identical petitions at the adoption docket and the dependency docket requesting to file an appeal nunc pro tunc .² In the petitions, counsel asserted that Mother requested the appeal at 3:30 p.m. on May 18, 2021, and that counsel was unable to file a timely appeal that afternoon or the following day because two unrelated dependency cases that she was handling were in "crisis mode." Petition to File Appeal Nunc Pro Tunc , 5/20/21. The petition neglected to explain the critical state of affairs that demanded counsel's immediate attention, and the trial court denied the petition summarily. Thereafter, Mother timely filed these appeals at the respective docket numbers and complied with Pa.R.A.P. 1925.

Mother presents four questions for our review.

1. Whether ... the [trial] court erred and/or abused its discretion by denying Mother's notice of appeal nunc pro tunc by not considering the exception to the 30 day deadline rule as stated in Bass v. Commonwealth , , 401 A.2d 1133 (1979), ... that nunc pro tunc relief is within the court's discretion where the appeal is not timely filed because of non-negligent circumstances, either as they relate to appellant or her counsel?

2. Whether the [trial] court erred and/or abused its discretion by not granting Mother's appeal nunc pro tunc because it was filed the day after the deadline, as soon as was physically possible given the circumstances of other demands being made on counsel?

3. Whether the [trial] court erred and/or abused its discretion by denying Mother's appeal nunc pro tunc because the delay was not due to a failure of anticipating foreseeable circumstances, in that the circumstances that caused the delay were safety emergencies and thus, unforeseeable?

Mother's brief at 4 (cleaned up) (unnecessary capitalization omitted).³

We review the trial court's denial of Mother's petitions to appeal nunc pro tunc to determine whether the trial court abused its discretion, which includes circumstances where "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable[.]" See Union Elec. Corp. v. Bd. Of Prop. Assessment, Appeals and Review of Allegheny Cty. , 560 Pa. 481, 746 A.2d 581, 583 (2000).

Typically, a notice of appeal must be filed within thirty days of the date that the order is entered on the record. See Pa.R.A.P. 903(a). However, in the context of a civil case, nunc pro tunc relief may be granted when a litigant demonstrates that the late filing was due to non-negligent circumstances on counsel's part, the document was filed shortly after the date it was due, and the other party was not prejudiced by the delay. See Bass , supra at 1135–36 (indicating nunc pro tunc relief is appropriate where "[t]here has been a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal"); see also Criss v. Wise , 566 Pa. 437, 781 A.2d 1156, 1159-60 (2001) ("The exception for allowance of an appeal nunc pro tunc in non-negligent circumstances is meant to apply only in unique and compelling cases in which the appellant has clearly established that she attempted to file an appeal, but unforeseeable and unavoidable events precluded her from actually doing so.").

In rejecting Mother's request for nunc pro tunc relief, the trial court applied the analysis outlined in Bass and Criss and concluded, in pertinent part, that Mother failed to establish a non-negligent reason for failing to file a timely appeal because Attorney Banister's justification for the misstep, i.e. , a shortage of time due to two unrelated cases being in "crisis mode," was untenable in light of the circumstances surrounding counsel's continued appointment. Trial Court Opinion, 7/6/21, at 6-7. Specifically, the court highlighted that it directed counsel to remain active in Mother's case for the express purpose of securing any requested appeals. In this vein, the court reasoned:

In considering the likelihood of an appeal on the merits of the termination of parental rights and/or the changing of the child's goal to adoption, the trial court also ordered on the record and digitally docketed that Mother's counsel, Robin Banister[,] was to be vacated only after 31 days, so as to remain active throughout the appeal period of thirty days . Counting from April 19, 2021, thirty days ended exactly on May 19, 2021, which concluded the appeal period. ... At no time from April 19^th through May 19th did Mother or Mother's Counsel make any efforts to file any manner of written documents with the trial court to preserve an appeal . Counsel did not even file an incomplete memorandum alerting the trial court of Mother's intent to file an appeal on the merits of the underlying dependency matter.

Id . at 6 (cleaned up) (unnecessary capitalization omitted) (emphases added).⁴

The court continued,

Counsel instead alleges that she filed "as soon as physically possible" [a petition] indicating that although Mother requested an appeal on May 18, 2021, at 3pm, which was within the statutory appeal period, counsel did not have the time [to file the notice of appeal] since she had other cases to tend to. It seems that when counsel did find the time to assist Mother, counsel's attempt fell short of the statutory requirements in that a notice of appeal be filed at some point after the May 19, 2021 deadline and that such filing be non-negligent in nature. This court also considers the fact that while the courthouse remained closed to non-employees due to COVID-19, all filings were digital (as they had been for several years before the onset of COVID-19) and that digital filings are available to counsel twenty-four (24) hours per day and seven (7) days per week, yet Counsel never found the time to file a notice of appeal .

Id . at 7 (cleaned up) (unnecessary capitalization omitted) (emphases added)

It is beyond argument that Mother was entitled to effective counsel in the respective appeals. See In re J.T., 983 A.2d 771, 774-75 (Pa.Super. 2009) ("The right to counsel in parental termination cases is the right to effective assistance of counsel even though the case is civil in nature."); In the Matter of J.P. , 393 Pa.Super. 1, 573 A.2d 1057 (1990) (en banc ) (observing that parents whose children are the subjects of dependency proceedings have the right not only to counsel but to effective representation by counsel). It is equally obvious that counsel's failure to timely file the requested appeals constitutes ineffectiveness per se , and "the typical remedy for such ineffectiveness is to remand for an appeal nunc pro tunc ." In re J.M.P. , 863 A.2d 17, 20 (Pa.Super. 2004) ; In re B.S. , 831 A.2d 151, 155 (Pa.Super. 2003) (noting that counsel's failure to appeal delinquency "constitutes ineffectiveness per se " and "typical remedy for such ineffectiveness is to remand for an appeal nunc pro...