In re J.J.L.

150 A.3d 475

IN the INTEREST OF: J.J.L., a Minor

Appeal of: B.B.L., Mother

No. 412 MDA 2016

Superior Court of Pennsylvania.

Submitted August 8, 2016

Filed November 15, 2016

Brittney B. Long, Gettysburg, for appellant.

Marisa K. McClellan, Harrisburg, for Dauphin County Children & Youth, appellee.

Sarah E. Hoffman, Harrisburg, Guardian Ad Litem, for Appellee.

BEFORE: BOWES, PANELLA, and JENKINS, JJ.

OPINION BY JENKINS, J.:

B.B.L. ("Mother") appeals from the decree entered February 12, 2016,¹ in the Court of Common Pleas of Dauphin County, Orphan's Court, granting the petition of the Dauphin County Children and Youth Services Agency (the "Agency") and involuntarily terminating her parental rights to her dependent child, J.J.L. ("Child"), a male born in July of 2014, pursuant to the Adoption Act, 23 Pa.C.S. §§ 2511(a) (2), (5), (8), and (b).² In addition, on May 24, 2016, Mother's counsel filed a petition to withdraw, together with an Anders³ brief, averring the within appeal is frivolous. After careful review, we affirm and grant counsel's petition to withdraw.

The trial court summarized the relevant procedural and factual history, in part, as follows:

Mother first became involved with [the Agency] after the agency received a referral from Hershey Medical Center on August 1, 2014. The referral expressed concerns regarding the parents' ability to care for the child's basic needs as they needed continued guidance on basic parenting skills. The hospital staff reported that Mother needed repeated instruction on how to diaper, hold and feed her infant son, and was unable to answer questions about basic infant care. In addition, there were concerns regarding Mother's intellectual disabilities and concerns for both parents' mental health.

On August 5, 2014, the Agency developed a Safety Plan wherein Mother and legal father, [D.L.], would reside with paternal grandparents, [K.L.] and [C.L.], who became 24-hour caretakers to assist the parents in caring for [Child]. The Agency parenting educator, Carianne Bardine, went out to the home on August 8, 2014 and worked with Mother for approximately five (5) hours. At the end of the session, Ms. Bardine concluded that it would not be possible for Mother to learn the skills needed to care for [Child] prior to the end of the Safety Plan, which expired on August 15, 2014.

The Agency filed a Dependency Petition on August 11, 2014, as [K.L.] and [C.L.] were unable to continue as 24-hour caregivers. In addition, [K.L.] expressed concerns regarding Mother's ability to care for [Child]. On that date, J.J.L. was placed in the foster home of [R.F.] and [L.E.] A shelter hearing was held on August 14, 2014 wherein Mother and [D.L.] were present. Following the shelter care hearing, Mother refused to sign release forms related to services for [Child], and also had difficulty understanding the reasons for the Agency's involvement and stated that she had not been told the reasons despite being present at the shelter hearing. Thereafter, the parents began attending the Samara Parenting Program on Tuesday and Thursday evenings beginning on August 24, 2014.

An adjudication and disposition hearing was held on August 27, 2014, at which time the Court adjudicated [Child] dependent and placed him in the Agency's care and custody. In addition, Mother and [D.L.] were ordered to obtain a psychological evaluation to address their ability to parent, and to include IQ testing and recommendations regarding appropriate methods to teach parenting skills.^[4]At said hearing, the Agency established a reunification plan, which required both Mother and [D.L.] to comply with specific objectives.

The Agency referred the parents for family reunification services on October 1, 2014. These services were declined at the time due to the parents' participation in the Samara Parenting Program. Thereafter, the parents began supervised visitation at the Agency three (3) times a week for sessions two (2) hours in length. Reunification services were not requested at the time Samara closed their services.

In June of 2015, Mother indicated that she wanted reunification services through the Agency, which were subsequently ordered by the court. At a family engagement meeting on August 3, 2015, Mother formally stated her intent to consent to adoption. Prior to the September 2, 2015 permanency review hearing, Mother signed a form consenting to adoption, and the Agency goal was changed from reunification to adoption by order of court. Mother subsequently revoked her consent to adoption on October 2, 2015. Despite the revocation of consent, there was no appeal of the Agency's goal change to adoption.

On November 16, 2015 the Agency filed a Petition for Involuntary Termination of Parental Rights ("Petition"). The statutory grounds for which the agency based its Petition are 23 Pa.C.S.[ ] § 2511(a)(2), § 2511(a)(5), § 2511(a)(8), and § 2511(b). Mother filed a Motion for Disqualification and Recusal on December 14, 2015, which was subsequently granted by the Honorable John F. Cherry. Thereafter, this case was assigned to the Honorable William T. Tully. ...

Trial Court Opinion, 4/21/16, at 1–4 (citations to record omitted).

The trial court conducted hearings on the Petition on January 26, 2016 and February 4, 2016. Mother testified on her own behalf. Additionally, the trial court heard from Agency workers Susan Krawchuk and Morgan Goodling. Further, counsel stipulated to the prior testimony of Dr. Howard S. Rosen regarding his November 22, 2014 evaluation of Mother.⁵

By decree entered February 12, 2016, the trial court terminated Mother's parental rights to Child. Mother, through appointed counsel, filed a timely notice of appeal on March 11, 2016. Mother did not file a concise statement of errors complained of on appeal with her notice of appeal, as required by Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(a)(2)(i). The notice of appeal filed by appointed counsel on behalf of Mother indicated that, as he concluded there are no non-frivolous issues to be raised on appeal, he intended to file an Anders petition and brief, and he was not required to file a concise statement. See Pa.R.A.P. 1925(c)(4) (in a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a statement); see alsoInterest of J.T. , 983 A.2d 771 (Pa. Super. 2009) (holding that the Anders procedure set forth in Rule 1925(c)(4) is proper in a termination of parental rights case). Counsel filed an Anders petition and brief on May 24, 2016.

On appeal, Mother raises the following issues for our review:

1. Did the trial court abuse its discretion, or commit an error of law by ordering the termination of mother's parental rights, although the agency failed to modify its policies, practices, and procedures to accommodate mother's intellectual disability, thereby depriving her of meaningful and equal access to the agency's reunification services in contravention of the Americans with Disabilities Act of 1990?

2. Did the trial court abuse its discretion, or commit an error of law by ordering the termination of mother's parental rights, although the agency failed to make reasonable efforts to enable mother to achieve timely reunification with her child?

Anders Brief, at 4.

When counsel files an Anders brief, this Court may not review the merits of the appeal without first addressing counsel's request to withdraw. Commonwealth v. Washington , 63 A.3d 797, 800 (Pa.Super.2013) ; see alsoCommonwealth v. Rojas , 874 A.2d 638, 639 (Pa.Super.2005) (stating, "[w]hen 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[ ]")(citation omitted). In In re V.E. , this Court extended the Anders principles to appeals involving the termination of parental rights. 417 Pa.Super. 68, 611 A.2d 1267, 1275 (1992). It follows that 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).

To withdraw, pursuant to Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005) and its progeny, 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) ). See alsoCommonwealth v. Orellana , 86 A.3d 877, 880 (Pa.Super.2014). We further review counsel's Anders brief for compliance with the requirements set forth in Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (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. "Once counsel has satisfied the 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 ) (quo...