In Re: Adoption of C.W.S. & R.L.S. Appeal of: J.M.

Superior Court of Pennsylvania·Decided November 19, 2014·No. 240 WDA 2014·Unpublished

Opinion

J-S42029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF C.W.S. AND R.L.S., IN THE SUPERIOR COURT OF III PENNSYLVANIA

APPEAL OF: J.E.M. No. 240 WDA 2014

Appeal from the Decrees entered December 30, 2013, in the Court of Common Pleas of Warren County Orphans’ Court at No(s): AN 6 of 2013

BEFORE: PANELLA, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 19, 2014

J.E.M. (“Mother”) appeals from the decrees entered on December 30,

2013 in the Court of Common Pleas of Warren County, terminating her

parental rights to C.W.S. (born in September of 2006) and R.L.S., III (born

in March of 2005) (collectively “the Children”), pursuant to 23 Pa.C.S.A.

§ 2511. We affirm and grant counsel’s petition to withdraw.

In 2008, the parties resided in Chautauqua County in the State of New

York and had joint custody of the Children. In 2010, Father was awarded

sole custody of the Children, and Mother supervised visits. N.T., 12/30/13,

at 11-12. Prior to 2010, Mother did not attend to some of her visitations

with the Children. Father testified that he last received any type of

communication from Mother in September of 2010.

On May 23, 2013, Father filed a petition for the involuntary

termination of Mother’s parental rights, pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), and (b). The trial court held a hearing on the petition on J-S42029-14

December 30, 2013. At the hearing, Father; Father’s wife, K.S.; Paternal

Grandmother; and Mother testified. On December 30, 2013, the trial court

entered its decrees, terminating Mother’s parental rights to the Children. On

January 29, 2014, Mother timely filed her notice of appeal and concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

As a preliminary matter, Mother’s counsel seeks to withdraw

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009). Anders principles apply to appeals involving

termination of parental rights. See In re S.M.B., 856 A.2d 1235 (Pa.

Super. 2004). Anders and Santiago require counsel to: 1) petition the

Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; 2)

file a brief referring to anything in the record that might arguably support

the appeal; and 3) furnish a copy of the brief to the appellant and advise

him or her of the right to obtain new counsel or file a pro se brief to raise

any additional points the appellant deems worthy of review. Santiago, 602

Pa. at 173-79, 978 A.2d at 358-61; In re Adoption of V.G., 751 A.2d

1174, 1176 (Pa. Super. 2000). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287,

1290 (Pa. Super. 2007). “After establishing that the antecedent

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requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.

Super. 1997)).

In Santiago, our Supreme Court addressed the briefing requirements

where court-appointed counsel seeks to withdraw representation on appeal:

Neither Anders nor [Commonwealth v.] McClendon[, 495 Pa. 457, 434 A.2d 1185 (1981)] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.

Santiago, 602 Pa. at 176-177, 978 A.2d at 359-360. Thus, the Court held:

[I]n 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 178-79, 978 A.2d at 361.

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Instantly, counsel filed a petition to withdraw representation. The

petition states that counsel conscientiously and thoroughly reviewed the

record of the proceedings, and concluded that the appeal is frivolous. The

petition also states that counsel informed Mother, by United States mail, of

her appellate rights. Application/Petition for Leave to Withdraw Appearance,

filed 5/6/14, at 2. The letter itself, attached to the petition, advises Mother

of her right to raise questions about the jurisdiction of the court and to

question the legality of the trial court’s decision, and of her right to retain

new counsel, proceed pro se, or to raise any additional points that she may

deem worthy of consideration.

In her Anders brief, counsel provides reasons for her conclusion that

the appeal is wholly frivolous. Mother’s Brief at 3-5. Counsel also refers to

items in the record that arguably support the appeal. Mother’s Brief at 3-5.

Additionally, counsel provides a well-written and detailed summary of the

facts and procedural history of the case, with citation to the record and

relevant law. Mother’s Brief at 2-3. Thus, counsel has substantially

complied with the requirements of Anders and Santiago.

Mother has filed neither a pro se brief nor a counseled brief with new

privately-retained counsel. We review this appeal based on the issues raised

in the Anders brief:

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1. Whether the trial court abused its discretion in refusing to grant [Mother]’s request to continue hearing on [Father’s and K.S.’s] petition to terminate Mother’s parental rights?1 Mother’s Brief at 5.

In reviewing an appeal from the termination of parental rights, we

review the appeal in accordance with the following standard.

Because a trial court has broad discretion regarding whether a request for continuance should be granted, we will not disturb its decision absent an apparent abuse of that discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results of partiality, prejudice, bias, or ill-will.

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In Re: Adoption of C.W.S. & R.L.S. Appeal of: J.M., (Pa. Ct. App. 2014).

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
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978 A.2d 349 (Supreme Court of Pennsylvania, 2009)
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838 A.2d 630 (Supreme Court of Pennsylvania, 2003)
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