Opinion
J-S01039-17 J-S01041-17 No. 1164 MDA 2016 No. 1165 MDA 2016 No. 1240 MDA 2016 No. 1241 MDA 2016
02-27-2017
IN THE INTEREST OF: Z.J.M., a Minor APPEAL OF: A.M., Father IN THE INTEREST OF: Z.O.B., a Minor APPEAL OF: A.M., Father
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree June 28, 2016 in the Court of Common Pleas of Dauphin County, Orphans' Court at No(s): 39-AD-2016; CP-22-DP-117-2013 Appeal from the Decree June 28, 2016 in the Court of Common Pleas of Dauphin County, Orphans' Court at No(s): 38-AD-2016; CP-22-DP-116-2013 Appeal from the Decree June 28, 2016 in the Court of Common Pleas of Dauphin County, Juvenile Division at No(s): 39-AD-2016; CP-22-DP-117-2013 Appeal from the Decree June 28, 2016 in the Court of Common Pleas of Dauphin County, Juvenile Division at No(s): 38-AD-2016; CP-22-DP-116-2013 BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
A.M. ("Father") appeals from the Decrees granting the Petitions filed by Dauphin County Social Services for Children and Youth ("SSCY"), involuntarily terminating his parental rights to his son, Z.O.B., born in August 2011, and his daughter, Z.J.M., born in December 2012 (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b), and changing their permanency goals to adoption. Additionally, Natalie Burston, Esquire ("Attorney Burston"), has filed a Petition to Withdraw as counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We grant Attorney Burston's Petition to Withdraw, and affirm the trial court's termination Decrees.
This Court, sua sponte, consolidated Father's appeals at Nos. 1164 MDA 2016 and 1165 MDA 2016, as well as his appeals at Nos. 1240 MDA 2016 and 1241 MDA 2016. Because both consolidated appeals arise out of the same Decrees, we will consider them together.
SSCY included M.B. ("Mother") in its Petitions for involuntary termination of parental rights. In its June 28, 2016 Decrees, the trial court also involuntarily terminated Mother's parental rights to Children. Mother filed an appeal from the Decrees, which includes Nos. 1208 MDA 2016 and 1209 MDA 2016, and is not a party to the instant appeal.
SSCY assumed temporary care and custody of Children on October 11, 2013, after receiving a referral that Mother had cut her wrist and posted a goodbye letter on Facebook. On October 23, 2013, Children were adjudicated dependent and placed into the custody of SSCY. Father was in prison at that time. In its Opinion, the trial court set forth the facts relevant to Father's appeal, which we adopt herein. See Trial Court Opinion, 8/31/16, at 5-6; see also id. at 6-8 (wherein the trial court summarized the findings of the bonding assessment as to the foster parents). By Decrees dated June 28, 2016, the trial court granted SSCY's Petitions, involuntarily terminated Father's parental rights to Children, and changed Children's permanency goals to adoption.
Father, through counsel, filed timely Notices of Appeal. Attorney Burston subsequently filed a Petition to Withdraw as counsel and an Anders Brief, in lieu of a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Father filed one Notice of Appeal as to each child from the June 28, 2016 Decrees with the Orphans' Court. On August 26, 2016, this Court ordered the Juvenile Court to enter the June 28, 2016 Decrees on its dependency docket. Father subsequently filed an additional Notice of Appeal as to each child with the Clerk of Courts. Accordingly, Father properly filed a Notice of Appeal as to each child in both the Juvenile Court and the Orphans' Court, as each Decree identified, and was entered on, both dockets. See Pa.R.A.P. 341, Note (stating that "[w]here, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.") (emphasis added). --------
In the Anders Brief, the following question is presented for our review: "Did the trial court abuse its discretion, or commit an error of law[,] by determining it was in [C]hildren's best interest to have Father's parental rights terminated by clear and convincing evidence?" Anders Brief at 9. Father neither filed a pro se brief, nor retained alternate counsel for this appeal.
We must first determine whether Attorney Burston 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) (stating that "[w]hen counsel files an Anders brief, this Court may not review the merits without first addressing counsel's request to withdraw."). This Court has extended the Anders principles to a first appeal by an indigent parent from a decree involuntarily terminating his or her parental rights. See In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992). 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 him of his right to retain new counsel or
to raise any additional points that he deems worth 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 his or 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 Burston has complied with the requirements set forth in Anders by indicating that she made a thorough review of the record and determined that an appeal would be frivolous. Further, Attorney Burston provided a letter to Father, informing him of Attorney Burston's intention to withdraw and advising Father of his rights to retain counsel, proceed pro se, and file additional claims. Finally, Attorney Burston's Anders Brief meets the standards set forth in Santiago. Because Attorney Burston has complied with the procedural requirements for withdrawing from representation, we will independently review the record to determine whether Father's appeal is, in fact, wholly frivolous.
Father argues that the trial court erred by involuntarily terminating his parental rights to Children. Anders Brief at 18.
In its Opinion, the trial court set forth the relevant law, addressed Father's claim, and concluded that it lacks merit. See Trial Court Opinion, 8/31/16, at 8-11, 14-15; see also id. at 12 (wherein the trial court adopted its reasoning as set forth on the record during the termination hearing); N.T., 6/28/16, at 119, 120-21, 122-25. We agree with the reasoning of the trial court and affirm on this basis as to Father's claim. See Trial Court Opinion, 8/31/16, at 14-15; see also id. at 12-14 (wherein the trial court set forth the law regarding a best interests analysis pursuant to section 2511(b), considered Children's bond with their foster parents, and concluded that disrupting Children's lives with their foster parents would be contrary to Children's best interests).
Further, our independent examination of the record indicates that there are no other non-frivolous claims that can be raised. See In re S.M.B., 856 A.2d at 1237. Accordingly, we conclude that Father's appeal is frivolous, and grant Attorney Burston permission to withdraw as counsel.
Petition to Withdraw granted; Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/2017
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