In Re: I.M.S., Appeal of: M.K.

2021 Pa. Super. 248, 267 A.3d 1262

• Court: Superior Court of Pennsylvania
• Decided: December 15, 2021
• Docket: 1096 EDA 2021
• Status: Published

Opinion

J-S28003-21

2021 PA Super 248

IN THE INTEREST OF: I.M.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.K., MOTHER : : : : : No. 1096 EDA 2021

Appeal from the Order Entered June 3, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000099-2021

IN THE INTEREST OF: I.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: M.K., MOTHER : : : : : : No. 1097 EDA 2021

Appeal from the Order Entered June 3, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0001641-2019

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

OPINION BY BOWES, J.: FILED DECEMBER 15, 2021

In this consolidated appeal, M.K. (“Mother”) challenges the separate

orders entered on June 3, 2021, that deny her respective petitions to appeal

nunc pro tunc from the decree involuntarily terminating her parental rights to

her child, I.M.S. a/k/a I.S., and from the permanency review order that

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S28003-21

changed the child’s permanent placement goal to adoption.1 We reverse and

remand for nunc pro tunc appeals.

I.M.S. was born in September 2019, and approximately one month later,

she was adjudicated dependent due to Mother’s on-going drug abuse and

inability to care for the newborn. The initial placement goal was reunification,

and the juvenile court ordered supervised visitation. The Philadelphia

Department of Health and Human Services (“DHS”) placed I.M.S. in kinship

foster care with a nurse who cared for her in the newborn intensive care unit

after I.M.S suffered withdrawal symptoms at birth. She remains with this

family.

On February 22, 2021, DHS filed a petition to terminate Mother’s

parental rights pursuant 23 Pa.C.S. § 2511(a)(1), (2),(5), (8), and § 2511(b).

Robin Winthrop Banister, Esquire, appointed by the juvenile court during the

dependency proceedings, continued to represent Mother in the termination of

parental rights proceedings. Following a remote evidentiary hearing, the trial

court entered an April 19, 2021 decree terminating Mother’s parental rights

on all five grounds. On the same date, the court entered a juvenile court

order that changed the child’s permanent placement goal from reunification

to adoption. In the latter order, the trial court directed that counsel’s

appointment would remain active for an additional thirty-one days, ostensibly

1 As these matters involve related parties and issues, this Court consolidated

the appeals sua sponte.

-2- J-S28003-21

in order to file any requested appeals. The juvenile court order and the

termination decree both complied with Pa.R.C.P. 236(b), which requires the

prothonotary to note in the docket the giving of notice. See Frazier v. City

of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding that “an order is not

appealable until it is entered on the docket with the required notation that

appropriate notice has been given”).

While Mother requested that Attorney Banister appeal the decree and

order, timely appeals did not follow. Instead, on May 20, 2021, one day after

the expiration of the respective thirty-day appeal periods, Attorney Banister

filed identical petitions at the adoption docket and the dependency docket

requesting to file an appeal nunc pro tunc.2 In the petitions, counsel asserted

that Mother requested the appeal at 3:30 p.m. on May 18, 2021, and that

counsel was unable to file a timely appeal that afternoon or the following day

because two unrelated dependency cases that she was handling were in “crisis

mode.” Petition to File Appeal Nunc Pro Tunc, 5/20/21. The petition neglected

to explain the critical state of affairs that demanded counsel’s immediate

attention, and the trial court denied the petition summarily. Thereafter,

Mother timely filed these appeals at the respective docket numbers and

complied with Pa.R.A.P. 1925.

Mother presents four questions for our review.

2 Since the petition filed at the adoption docket included an incorrect action

number, Mother refiled corrected petitions on May 27, 2021.

-3- J-S28003-21

1. Whether . . . the [trial] court erred and/or abused its discretion by denying Mother’s notice of appeal nunc pro tunc by not considering the exception to the 30 day deadline rule as stated in Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), . . . that nunc pro tunc relief is within the court’s discretion where the appeal is not timely filed because of non-negligent circumstances, either as they relate to appellant or her counsel?

2. Whether the [trial] court erred and/or abused its discretion by not granting Mother’s appeal nunc pro tunc because it was filed the day after the deadline, as soon as was physically possible given the circumstances of other demands being made on counsel?

3. Whether the [trial] court erred and/or abused its discretion by denying Mother’s appeal nunc pro tunc because the delay was not due to a failure of anticipating foreseeable circumstances, in that the circumstances that caused the delay were safety emergencies and thus, unforeseeable?

Mother’s brief at 4 (cleaned up) (unnecessary capitalization omitted).3

We review the trial court’s denial of Mother’s petitions to appeal nunc

pro tunc to determine whether the trial court abused its discretion, which

includes circumstances where “the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable[.]” See Union Elec. Corp. v.

Bd. Of Prop. Assessment, Appeals and Review of Allegheny Cty., 746

A.2d 581, 583 (Pa. 2000).

Typically, a notice of appeal must be filed within thirty days of the date

that the order is entered on the record. See Pa.R.A.P. 903(a). However, in

3 The attorney representing the two-year-old child’s legal interest and best

interests filed a letter indicating that I.M.S. joined DHS’s brief in support of the trial court’s denial of relief.

-4- J-S28003-21

the context of a civil case, nunc pro tunc relief may be granted when a litigant

demonstrates that the late filing was due to non-negligent circumstances on

counsel’s part, the document was filed shortly after the date it was due, and

the other party was not prejudiced by the delay. See Bass, supra at 1135–

36 (indicating nunc pro tunc relief is appropriate where “[t]here has been a

non-negligent failure to file a timely appeal which was corrected within a very

short time, during which any prejudice to the other side of the controversy

would necessarily be minimal”); see also Criss v. Wise, 781 A.2d 1156,

1159-60 (Pa. 2001) (“The exception for allowance of an appeal nunc pro

tunc in non-negligent circumstances is meant to apply only in unique and

compelling cases in which the appellant has clearly established that she

attempted to file an appeal, but unforeseeable and unavoidable events

precluded her from actually doing so.”).

In rejecting Mother’s request for nunc pro tunc relief, the trial court

applied the analysis outlined in Bass and Criss and concluded, in pertinent

part, that Mother failed to establish a non-negligent reason for failing to file a

timely appeal because Attorney Banister’s justification for the misstep, i.e., a

shortage of time due to two unrelated cases being in “crisis mode,” was

untenable in light of the circumstances surrounding counsel’s continued

appointment. Trial Court Opinion, 7/6/21, at 6-7. Specifically, the court

highlighted that it directed counsel to remain active in Mother’s case for the

-5- J-S28003-21

express purpose of securing any requested appeals. In this vein, the court

reasoned:

In considering the likelihood of an appeal on the merits of the termination of parental rights and/or the changing of the child’s goal to adoption, the trial court also ordered on the record and digitally docketed that Mother’s counsel, Robin Banister[,] was to be vacated only after 31 days, so as to remain active throughout the appeal period of thirty days. Counting from April 19, 2021, thirty days ended exactly on May 19, 2021, which concluded the appeal period. . . . At no time from April 19th through May 19th did Mother or Mother's Counsel make any efforts to file any manner of written documents with the trial court to preserve an appeal. Counsel did not even file an incomplete memorandum alerting the trial court of Mother’s intent to file an appeal on the merits of the underlying dependency matter.

Id. at 6 (cleaned up) (unnecessary capitalization omitted) (emphases

added).4

The court continued,

Counsel instead alleges that she filed “as soon as physically possible” [a petition] indicating that although Mother requested an appeal on May 18, 2021, at 3pm, which was within the statutory appeal period, counsel did not have the time [to file the notice of appeal] since she had other cases to tend to. It seems that when counsel did find the time to assist Mother, counsel’s attempt fell short of the statutory requirements in that a notice of appeal be filed at some point after the May 19, 2021 deadline and that such filing be non-negligent in nature. This court also considers the fact that while the courthouse ____________________________________________

4 As these appeals stem from the denial of nunc pro tunc relief, rather than

the merits of the respective decisions to terminate parental rights and change the placement goal, the certified record does not include the transcript of the April 2021 hearing. Thus, although neither party disputes the trial court’s characterization of the directives that it issued from the bench, without the notes of testimony, we cannot confirm that the trial court expressly advised Mother of her appellate rights.

-6- J-S28003-21

remained closed to non-employees due to COVID-19, all filings were digital (as they had been for several years before the onset of COVID-19) and that digital filings are available to counsel twenty-four (24) hours per day and seven (7) days per week, yet Counsel never found the time to file a notice of appeal.

Id. at 7 (cleaned up) (unnecessary capitalization omitted) (emphases added)

It is beyond argument that Mother was entitled to effective counsel in

the respective appeals. See In re J.T., 983 A.2d 771, 774-75 (Pa.Super.

2009) (“The right to counsel in parental termination cases is the right to

effective assistance of counsel even though the case is civil in nature.”); In

the Matter of J.P., 573 A.2d 1057 (Pa.Super. 1990) (en banc) (observing

that parents whose children are the subjects of dependency proceedings have

the right not only to counsel but to effective representation by counsel). It is

equally obvious that counsel’s failure to timely file the requested appeals

constitutes ineffectiveness per se, and “the typical remedy for such

ineffectiveness is to remand for an appeal nunc pro tunc.” In re J.M.P., 863

A.2d 17, 20 (Pa.Super. 2004); In re B.S., 831 A.2d 151, 155 (Pa.Super.

2003) (noting that counsel’s failure to appeal delinquency “constitutes

ineffectiveness per se” and “typical remedy for such ineffectiveness is to

remand for an appeal nunc pro tunc”). While the trial court accurately

acknowledged counsel’s failure to file the requested appeal and, in fact,

chastised Attorney Banister for her inattention to Mother’s appellate rights, it

nevertheless declined to grant Mother appropriate relief, i.e., permission to

-7- J-S28003-21

appeal nun pro tunc. We find that the court’s refusal to grant relief in the face

of per se ineffectiveness is tantamount to an abuse of discretion.

The trial court’s utilization of the three-prong nunc pro tunc analysis

outlined in Bass, supra and Criss, supra, was inapt in the case at bar. Our

high Court recently “acknowledge[d] the solemn reality that a decree

terminating parental rights is widely regarded as the civil law equivalent to

the death penalty, forever obliterating the fundamental legal relationships

between parent and child.” In re Adoption of C.M., 255 A.3d 343, 362 (Pa.

2021). Indeed, unlike the majority of civil cases, the fundamental rights at

issue in a termination of parental rights proceeding implicate due process

protections that are more akin to those afforded a criminal defendant. See

J.T., supra at 775-74 (addressing sua sponte the per se ineffectiveness of

appointed counsel’s failure to file a timely court-ordered rule 1925(b)

statement in appeal from termination of parental rights).

As Mother’s right to effective assistance in these proceedings is founded

on constitutional grounds, Attorney Banister’s per se ineffectiveness alleviated

the need to scour Mother’s petition looking for non-negligent reasons for the

omission. Phrased differently, the Bass analysis’s reference to a “non-

negligent” reason presumes an ordinary degree of professional skill that was

absent in this case. Hence, the trial court’s application of the typical three-

pronged nunc pro tunc analysis of a non-negligent omission was inherently

flawed. In this situation, where appointed counsel failed to file the requested

-8- J-S28003-21

appeal and the nunc pro tunc request was promptly filed, Mother was entitled

to relief virtually as of right.

Moreover, neither the fact that counsel did not expressly assert her own

ineffectiveness in requesting nunc pro tunc relief nor Mother’s failure to assert

Attorney Banister’s ineffectiveness excuses the trial court’s inaction. First, we

observe that counsel is precluded from invoking her own ineffectiveness. See

Commonwealth v. Betts, 240 A.3d 616, 623 (Pa.Super. 2020) (citing

Commonwealth v. Spotz, 18 A.3d 244, 329 n.52 (2011) (“[C]ounsel cannot

argue his or her own ineffectiveness[.]”)). Second, as Mother remains

represented by Attorney Banister, she cannot be expected to assert counsel’s

ineffectiveness contemporaneous with that representation. See

Commonwealth v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no

other circumstances are counsel and client permitted to present opposing

arguments[.]”)). Most importantly, as set forth infra, Mother has no other

remedy.

Unlike sister jurisdictions that permit parents to pursue ineffective

assistance claims in a petition for a writ of habeas corpus, in Pennsylvania,

claims of ineffective counsel cannot be raised in a collateral proceeding. See

17 West’s Pa. Prac., Family Law § 32:6 (Joanne Ross Wilder, et al., eds. 8th

ed.). Hence, counsel’s failure to file the requested appeal stripped Mother of

her fundamental right to challenge the termination of her parental rights.

Compare In re Adoption of T.M.F., , 573 A.2d 1035, 1043 (Pa.Super. 1990)

-9- J-S28003-21

(en banc) (“Any determination as to ineffectiveness of counsel must be made

expeditiously in the context of the original appeal, as a collateral attack by a

post-decree petition and/or appeal, after normal appeals have been

exhausted, is not permissible.”); with In re Alexandria G., 834 N.W.2d 432

(Wis.Ct.App. 2013) (granting petition for writ of habeas corpus where counsel

failed to timely appeal order terminating parental rights).

As neither Attorney Banister nor Mother could invoke counsel’s

ineffectiveness in the petition for relief and Pennsylvania does not recognize

collateral proceedings in the termination of parental rights, the trial court

foreclosed Mother’s only available remedy by engaging in an inapt legal

analysis that was predicated on a non-negligent omission. Thus, having

recognized appointed counsel’s failure to file the requested appeal, the trial

court erred in neglecting to provide the standard remedy for the per se

ineffectiveness, a grant of nunc pro tunc appeals.

In sum, notwithstanding the lack of an express assertion of ineffective

assistance, which was preluded by the circumstances of this case, all of the

relevant facts appeared in the petition for nunc pro tunc relief. Indeed,

appointed counsel’s failure to file a timely appeal was the issue raised in the

petitions for nun pro tunc relief. Specifically, Mother averred that, although

there was no doubt as to her desire to appeal the relevant orders, Attorney

Banister failed to file the appeals and preserve those rights. That inaction is

tantamount to per se ineffective assistance and Mother requested the precise

- 10 - J-S28003-21

relief that she was unquestionably due. Accordingly, the trial court committed

an abuse of discretion in failing to grant the patently warranted relief.

For the foregoing reasons, we reverse the trial court’s orders denying

the petitions for nuc pro tunc relief and remand for the court to reinstate

Mother’s appellate rights nunc pro tunc and appoint new counsel.

Orders reversed. Remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/15/2021

- 11 -