In Re: T.W., Appeal of: C.W.

CourtSuperior Court of Pennsylvania
DecidedJuly 1, 2021
Docket52 MDA 2021
StatusUnpublished

This text of In Re: T.W., Appeal of: C.W. (In Re: T.W., Appeal of: C.W.) 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
In Re: T.W., Appeal of: C.W., (Pa. Ct. App. 2021).

Opinion

J-S14005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: T.W., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : APPEAL OF: C.W., FATHER : No. 52 MDA 2021

Appeal from the Decree Entered November 25, 2020 In the Court of Common Pleas of Tioga County Orphans’ Court at No(s): 50 O.C. 2020

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JULY 01, 2021

C.W. (“Father”) appeals from the November 25, 2020 decree that

terminated his parental rights to his daughter, T.W., born in December 2014.1

Father’s counsel, James D. Smith, Esquire, filed a petition to withdraw and

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the

petition to withdraw and affirm.

The Tioga County Department of Human Services (“DHS”) first became

involved with T.W. in 2017 due to domestic violence and substance abuse

concerns involving Father and T.B. (“Mother”). See N.T., 11/28/17, at 3-5.

The juvenile court initially adjudicated T.W. dependent on December 1, 2017,

____________________________________________

1 The orphans’ court entered a separate decree on the same day terminating

the parental rights of T.W.’s mother. Although the mother did not appeal that decree, she filed a brief in this matter asserting that Father’s appeal is frivolous. J-S14005-21

but it reunified the family during 2018 and subsequently terminated court

supervision in February 2019.

T.W. returned to foster care later in 2019. Although our review of the

certified record does not reveal the exact circumstances that triggered DHS’s

renewed concern, it appears that the issues of domestic violence and

substance abuse reoccurred, and Father was incarcerated after he allegedly

assaulted either Mother, an individual named J.H., or both. N.T., 10/3/19, at

4-7; N.T., 10/10/19, at 2; N.T., 11/19/20, at 57. The juvenile court

adjudicated T.W. dependent for a second time following a hearing on October

10, 2019, and Father was released from incarceration at the end of November

2019. N.T., 10/10/19, at 5; N.T., 1/14/20, at 13.

DHS instructed Father to comply with certain services to regain custody

of T.W. These services included participating in the Supporting Teaching and

Educating Parents (“STEPs”) parenting program and the Effective Safe

Parenting (“ESP”) substance abuse program, obtaining both substance abuse

and psychological assessments, attending individual therapy, and completing

the Men Against Abuse Program (“MAAP”). N.T., 11/19/20, at 69-71. Father

failed to comply with the services. He was inconsistent with the STEPs and

ESP programs and did not attend therapy. Id. at 70, 76. Although Father

obtained a substance abuse assessment, he did not obtain a psychological

assessment. Id. at 71-73. In addition, MAAP discharged Father due to his

lack of attendance. Id. at 70. Father reenrolled in MAAP, but the program

discharged him again. Id.

-2- J-S14005-21

Moreover, the certified record indicates that Father continued to be

physically violent toward Mother and engage in substance abuse. Service

providers observed large bruises on Mother’s body, despite her apparent

efforts to hide them, and Mother acknowledged that Father hit her. N.T.,

10/6/20, at 92-98, 104-06; N.T., 11/19/20, at 5-7, 10, 18, 21-22, 76-78, 92-

93. In addition, Father failed to make himself available for drug screens, and

he appeared to be under the influence on at least one occasion in July 2020.

N.T., 10/6/20, at 74-80, 98.

On July 20, 2020, DHS filed a petition to terminate Father’s parental

rights to T.W. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b). The

orphans’ court conducted hearings on October 6, 2020, and November 19,

2020, during which it heard testimony from T.W.’s therapist, Denise Feger,

Ph.D., Mother’s therapist, Deanna Fish-Layton, Father’s adult child, H.W., and

T.W.’s maternal grandfather, G.B.2 In addition, numerous service providers

testified in support of terminating Father’s parental rights. At the conclusion

of the hearing, the orphans’ court announced its intent to terminate Father’s

rights. The court entered a decree memorializing its decision on November

25, 2020. Father timely filed a notice of appeal along with a concise statement

of errors complained of on appeal in accordance with Pa.R.A.P. 1925(a)(2)(i).

2 The orphans’ court appointed legal interests counsel and a separate guardian

ad litem to represent T.W. during the termination proceedings. Both attorneys supported the termination of Father’s rights during the proceedings. N.T., 11/19/20, at 125-28. The guardian ad litem joined the brief that DHS filed in this Court. Legal interest counsel neglected to file a brief.

-3- J-S14005-21

We begin with a discussion of Attorney Smith’s petition to withdraw and

Anders brief, which he filed in this Court on February 24, 2021. See In re

V.E., 611 A.2d 1267 (Pa.Super. 1992) (extending the Anders procedure to

appeals from involuntary termination decrees); Commonwealth v. Rojas,

874 A.2d 638, 639 (Pa.Super. 2005) (“When faced with a purported Anders

brief, this Court may not review the merits of the underlying issues without

first passing on the request to withdraw.”) (citation and quotation marks

omitted).

Counsel must adhere to the following requirements to withdraw

pursuant to the Anders procedure:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). Counsel must also provide a copy of a letter advising

the appellant of his or her rights to this Court. Commonwealth v. Millisock,

873 A.2d 748, 752 (Pa.Super. 2005).

Finally, our Supreme Court has directed that Anders briefs comply with

the following requirements:

(1) provide a summary of the procedural history and facts, with citations to the record;

-4- J-S14005-21

(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.

Santiago, supra at 361.

In the instant matter, Attorney Smith avers that, upon conducting a

conscientious examination of the record, he determined that Father’s appeal

is wholly frivolous. Counsel asserts that he mailed a copy of his petition and

the Anders brief to Father, as well as a letter explaining Father’s rights.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
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In the Interest of A.L.D.
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In re B.L.W.
843 A.2d 380 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Millisock
873 A.2d 748 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Rojas
874 A.2d 638 (Superior Court of Pennsylvania, 2005)
In re L.M.
923 A.2d 505 (Superior Court of Pennsylvania, 2007)
In re N.A.M.
33 A.3d 95 (Superior Court of Pennsylvania, 2011)
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)
Commonwealth v. Flowers
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In re V.E.
611 A.2d 1267 (Superior Court of Pennsylvania, 1992)

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