Opinion
J-S54039-16 No. 160 WDA 2016
02-01-2017
IN THE INTEREST OF: W.M., a Minor Adjudicated Child APPEAL OF: O.M., SR., Natural Father
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree entered January 13, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 90 of 2014 BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
O.M., Sr. ("Father"), appeals from the permanency review Order, which changed the permanency goal for his son, W.M. ("Child") (born in July 2012), to adoption, pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351. Father's counsel, Elizabeth Brew Walbridge, Esquire ("Counsel"), has filed a Motion for leave to withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We affirm.
Child's mother is not a party to this appeal, as she voluntarily relinquished her parental rights as to Child.
On June 3, 2014, the Erie County Office of Children and Youth ("OCY" or the "Agency") filed a Motion for emergency protective custody and a shelter care Petition with regard to Child. The trial court entered an Order of protective custody on that same date. OCY filed a dependency Petition on June 4, 2014. On June 10, 2014, OCY filed a Petition for shelter care, and the trial court entered a shelter care Order. On that same date, Erie County Court Administration filed a Motion for court-appointed counsel for Child's mother. OCY filed an agreement for a master's hearing. On July 1, 2014, the trial court entered an Order adjudicating Child dependent pursuant to 42 Pa.C.S.A. § 6302(1), as Child lacked proper parental care and control, and establishing the permanency goal for Child as return to parent or guardian. On October 2, 2014, the trial court entered a permanency review Order maintaining Child's permanency goal. The trial court entered a permanency review Orders maintaining Child's permanency goal on February 4, 2015, and again in May 2015.
At the time of Child's placement, Father stipulated to drug use, poor home conditions, failure to following through with medical and dental appointments, lack of supervision and untreated mental health issues. See Anders Brief at 8.
On June 25, 2015, OCY filed a Motion to return Child to home. On June 29, 2015, the trial court granted OCY's Motion, and entered an Order directing that Child be returned to home, in the care of Mother. The trial court further ordered that OCY would retain legal custody, and the matter would remain open for continued monitoring of compliance. Notably, the Order provided that all other aspects of the May 2015 permanency review Order would remain in effect. On July 22, 2015, the trial court entered a permanency review Order maintaining legal custody with OCY, and physical custody with Mother.
On July 31, 2015, OCY filed a Motion for an emergency protective order and a shelter care Petition. The trial court entered an emergency protective custody Order, and a shelter care Order maintaining legal custody with OCY, and returning physical custody to OCY, with Child to be placed in foster care.
On January 13, 2016, following a hearing, the trial court entered an Order changing Child's permanency goal to adoption. Father filed a timely Notice of appeal. Counsel did not file a concise statement of errors complained of on appeal with the Notice of appeal, see Pa.R.A.P. 1925(a)(2)(i), (b), but, rather, indicated her intention to file a motion to withdraw as counsel pursuant to Anders , citing Pa.R.A.P. 1925(c)(4).
See In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (holding that decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in a termination of parental rights case was proper).
On appeal, Counsel has filed the Motion for leave to withdraw and an Anders brief. The Anders brief presents the following claim for our review: "Whether the juvenile court had competent, sufficient evidence to change the goal to adoption under the dictates of the Juvenile Act and the corresponding case law[?]" Anders Brief (amended) at 4. Father did not file a pro se brief or retain alternate counsel for this appeal.
On April 12, 2016, Counsel filed an amended Anders brief, and, on April 13, 2016, Counsel filed an amended Motion to withdraw as counsel, in compliance with the directives in this Court's Order entered on April 5, 2016.
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw from representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record . . ., counsel has determined the appeal would be frivolous;In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted). "When considering an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw." Id.
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no-merit" letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of the court's attention.
In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders , i.e., the contents of an Anders brief, and required that the brief
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361. "After an appellate court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then 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.
(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.
With respect to the third requirement of Anders , that counsel inform the defendant/client 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).
Here, Counsel has complied with each of the requirements of Anders. Counsel indicates that she conscientiously examined the record and determined that an appeal would be frivolous. Further, Counsel's Anders brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, the record contains a copy of the letter that Counsel sent to Father, advising him of his right to proceed pro se or retain alternate counsel and file additional claims, and stating Counsel's intention to seek permission to withdraw. Accordingly, Counsel now has complied with the procedural requirements for withdrawing from representation, and we will proceed with our own independent review.
In the Anders brief, Father claims that the trial court "should not have changed the goal to adoption." Anders Brief at 8. In the Anders brief, Counsel acknowledges that, "[w]hile [F]ather was 100% compliant with his urine screens, compliant with his mental health appointments, attended his domestic violence classes, there were serious concerns raised with [F]ather's anger, which included biting, verbal abuse, [and] attempted sexual assault." Id. at 8-9. Counsel further directs our attention to the testimony of Father's caseworker that "[F]ather has had no compliance with mental health treatment, parenting, and hasn't had visitation. [F]ather's testimony was that [OCY] never gave him an opportunity to be a father." Id. at 9.
In its August 17, 2016 Opinion, the trial court set forth the appropriate standard of review, reviewed the evidence of record, and explained its reasoning for changing Child's permanency goal to adoption. See Trial Court Opinion, 8/17/16, at 11-14. The trial court's findings are supported by the evidence of record, its legal conclusions are sound, and we discern no abuse of discretion by the trial court in changing Child's permanency goal to adoption. See id. Accordingly, we affirm on the basis of the trial court's Opinion with regard to Father's claim. See id.
Our review further discloses no non-frivolous claims that could be raised by Father. On this basis, we grant counsel's Motion for leave to withdraw from representation.
Motion for leave to withdraw granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/1/2017
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