Adoption of: N.C.H., Appeal of: T.M.H.

CourtSuperior Court of Pennsylvania
DecidedJune 23, 2023
Docket1335 WDA 2022
StatusUnpublished

This text of Adoption of: N.C.H., Appeal of: T.M.H. (Adoption of: N.C.H., Appeal of: T.M.H.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of: N.C.H., Appeal of: T.M.H., (Pa. Ct. App. 2023).

Opinion

J-S14002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: N.C.H., MINOR : PENNSYLVANIA : : APPEAL OF: T.M.H., THE MOTHER : : : : : No. 1335 WDA 2022

Appeal from the Decree Entered October 17, 2022 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 2022-00052

IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: P.G.T.H., MINOR : PENNSYLVANIA : : APPEAL OF: T.M.H., MOTHER : : : : : No. 1336 WDA 2022

Appeal from the Decree Entered October 17, 2022 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 52 In Adoption 2022

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: June 23, 2023

T.H. (“Mother”) appeals from the decrees dated October 13, 2022, and

entered October 17, 2022, in the Erie County Court of Common Pleas,

involuntarily terminating her parental rights to her son, N.C.H., born in

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S14002-23

January 2022, and her daughter, P.G.T.H., born in June 2020 (collectively,

“the Children”).1 Further, counsel for Mother, Emily M. Merski, Esquire

(“Counsel”), has filed petitions to withdraw and briefs pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).2 After review, we grant the petitions to withdraw and

affirm the termination decrees.

Erie County Office of Children and Youth (“the Agency”) obtained

emergency protective custody of P.G.T.H. on July 2, 2021, due to concerns

regarding the family’s homelessness, as well as Mother’s untreated mental

health and substance abuse, and placed P.G.T.H. in kinship care. See Order

(Emergency Protective Custody), 7/2/21. The court adjudicated P.G.T.H.

dependent on July 16, 2021, and maintained her commitment and placement.

See Recommendation for Adjudication and Disposition, 7/16/21, at 1-2.

During P.G.T.H.’s dependency, Mother gave birth to N.C.H., who was declared

dependent in March 2022, shortly after his birth.

1 By separate decrees, also dated October 13, 2022, and entered October 17, 2022, the court terminated the parental rights of N.C.H.’s and P.G.T.H.’s respective fathers, C.L.J. and K.R.L. Neither father filed a separate appeal, and neither are a participating party to the instant appeals. 2 This Court extended the Anders procedure to appeals from decrees involuntarily terminating parental rights in In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992).

-2- J-S14002-23

On July 27, 2022, the Agency filed petitions for the involuntary

termination of parental rights as to the Children.3 Specifically, the Agency

sought termination as to N.C.H. pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),

(5), (6), and (b), while requesting termination regarding P.G.T.H. pursuant to

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). The orphans’ court held a

hearing on the petitions on October 13, 2022, wherein Mother, who arrived

late, was represented by counsel. N.C.H. and P.G.T.H., then nine months and

twenty-eight months old, respectively, were represented by Steven George,

Esquire.4 The Agency presented the testimony of caseworker Kayla Stewart

and introduced Exhibits 1 through 14, which were admitted into the record

3The Agency filed an amended termination petition as to N.C.H. on August 17, 2022. Upon review, we do not discern any distinction.

4 Attorney George, the Children’s guardian ad litem (“GAL”) in the underlying dependency proceedings, was appointed to serve as legal counsel on August 1, 2022. Our Supreme Court has instructed this Court to verify sua sponte that the court appointed counsel to represent a child pursuant to 23 Pa.C.S.A. § 2313(a), and if counsel served in a dual role, that the court determined before appointment that there was no conflict between a child’s best and legal interests. See In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020). However, if a child is “too young to be able to express a preference as to the outcome of the proceedings,” there is no conflict between a child’s legal and best interests, and a child’s subsection 2313(a) right to counsel is satisfied by an attorney- GAL who represents the attorney-GAL’s view of the child’s best interests. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). At the hearing, Attorney George indicated that the Children were “too young to express a preference as to what their preferred outcome is.” N.T., 10/13/22, at 37. As such, we conclude that their statutory right to counsel was satisfied by the dual appointment of Attorney George.

-3- J-S14002-23

without objection. See N.T., 10/13/22, at 4. Finally, Mother testified on her

own behalf.

Pursuant to decrees dated October 13, 2022, and entered October 17,

2022, the court involuntarily terminated Mother’s parental rights as to N.C.H.

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (6), and (b), and terminated

Mother’s parental rights as to P.G.T.H. pursuant to 23 Pa.C.S.A. § 2511(a)(1),

(2), (5), (8), and (b). Mother filed timely notices of appeal in both cases. In

lieu of a concise statement of errors complained of on appeal, Counsel

submitted accompanying statements of intention to file an Anders brief

pursuant to Pa.R.A.P. 1925(c)(4).5 See re J.T., 983 A.2d 771, 774 (Pa.

5 Pa.R.A.P. 1925(c)(4) provides:

(c) Remand. ...

(4) If counsel intends to seek to withdraw in a criminal case pursuant to Anders/Santiago or if counsel intends to seek to withdraw in a post-conviction relief appeal pursuant to Turner/Finley, counsel shall file of record and serve on the judge a statement of intent to withdraw in lieu of filing a Statement. If the appellate court believes there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court shall remand for the filing and service of a Statement pursuant to Pa.R.A.P. 1925(b), a supplemental opinion pursuant to Pa.R.A.P. 1925(a), or both. Upon remand, the trial court may, but is not required to, replace an appellant’s counsel.

Pa.R.A.P. 1925(c)(4).

-4- J-S14002-23

Super. 2009) (holding that the decision of counsel to follow Pa.R.A.P.

1925(c)(4) procedure in a termination of parental rights case was proper).

This Court subsequently consolidated Mother’s appeals sua sponte on and the

orphans’ court filed a Rule 1925(a) opinion on January 9, 2023.

Counsel filed petitions to withdraw, as well as Anders briefs, in both

cases. By order of February 14, 2023, this Court vacated the existing briefing

schedule and struck Counsel’s Anders brief and directed Counsel to file briefs

that comply with all of the relevant procedural and substantive requirements

of Anders and Santiago, or submit advocate’s briefs on or before February

21, 2023. On February 16, 2023, Counsel filed new Anders briefs and

petitions to withdraw.6

When counsel files an Anders brief, this Court may not review the

merits of the appeal without first addressing counsel’s request to withdraw.

See Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
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In the Interest of K.Z.S.
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In re Z.P.
994 A.2d 1108 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Washington
63 A.3d 797 (Superior Court of Pennsylvania, 2013)
In re T.S.M.
71 A.3d 251 (Supreme Court of Pennsylvania, 2013)
Commonwealth v. Cartrette
83 A.3d 1030 (Superior Court of Pennsylvania, 2013)
In re V.E.
611 A.2d 1267 (Superior Court of Pennsylvania, 1992)
In re T.S.
192 A.3d 1080 (Supreme Court of Pennsylvania, 2018)
In the Interest of: S.C., Appeal of CYS
2021 Pa. Super. 41 (Superior Court of Pennsylvania, 2021)

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