In the Int. of: E.W.H., Jr., Appeal of: E.W.H., Sr

• Court: Superior Court of Pennsylvania
• Decided: November 13, 2018
• Docket: 1073 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.W.H., JR., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: E.W.H., SR., FATHER : : : : : No. 1073 EDA 2018

Appeal from the Order March 23, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No: CP-51-DP-0002272-2015

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2018

E.W.H., Sr., (“Father”) appeals from the order entered on March 23,

2018, in the Court of Common Pleas of Philadelphia County, denying his

request, filed pro se, to appeal nunc pro tunc from the decree involuntarily

terminating his parental rights. In addition, Father’s counsel has filed a

petition to withdraw and an Anders1 brief. Upon review, we affirm the order

and grant counsel’s petition to withdraw.

The certified record reveals that the trial court involuntarily terminated

Father’s parental rights to his son, E.W.H., Jr.,2 by decree entered on August

25, 2017. On September 1, 2017, Father, then incarcerated in the

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1 Anders v. California, 386 U.S. 738 (1967).

2 E.W.H., Jr., was born in February 2013. J-S55016-18

Montgomery County Correctional Facility and acting pro se, filed a notice of

appeal (“prior appeal”).3, 4 Father failed to file a concise statement of errors

complained of on appeal along with the notice of appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On September 12, 2017, this Court issued an order

directing Father to file a concise statement in accordance with the relevant

requirements of Rule 1925 no later than September 22, 2017. Father failed

to comply. As such, on September 29, 2017, this Court dismissed sua sponte

Father’s prior appeal.

Thereafter, on October 5, 2017, Attorney Weil filed a motion for

reconsideration of the September 29, 2017 order, along with a concise

statement of errors complained of on appeal. This Court denied the motion

by order issued on October 25, 2017. Further, in that order, we directed

Attorney Weil to file with the trial court, no later than November 1, 2017, a

petition to appeal nunc pro tunc. Attorney Weil did not file a petition seeking

nunc pro tunc relief.

On March 22, 2018, Father, who was still incarcerated in the

Montgomery County Correctional Facility, filed pro se in the trial court a

motion for permission to appeal nunc pro tunc. The trial court denied his ____________________________________________

3 Despite filing the notice of appeal pro se, Father was represented during the involuntary termination proceeding by court-appointed counsel, Joshua A. Weil, Esquire. Attorney Weil remained his counsel during the prior appeal.

4 This Court docketed Father’s prior appeal at 2841 EDA 2017.

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motion by order dated and entered on March 23, 2018.5 Father timely filed

pro se a notice of appeal on April 9, 2018.

Thereafter, by order dated April 12, 2018, the trial court appointed Mario

D’Adamo, III, Esquire, to represent Father in the subject appeal. By order

dated April 13, 2018, the trial court directed Father and Attorney D’Adamo to

file a concise statement of errors complained of on appeal within twenty-one

days. On May 1, 2018, Father filed pro se a concise statement. The trial court

filed an opinion pursuant to Rule 1925(a) on June 13, 2018.

On May 22, 2018, this Court directed Attorney D’Adamo to file an

amended concise statement of errors complained of on appeal in accordance

with the relevant requirements of Rule 1925 no later than June 1, 2018. In

response, on June 1, 2018, Attorney D’Adamo filed with this Court Father’s

foregoing concise statement and an “addendum,” wherein he stated that,

upon review of the trial court record, “there is no basis for this appeal” and,

therefore, “no errors to certify.”6 Addendum, 6/1/18, at ¶ 2-3; Trial Court

Opinion, 6/13/18, at 3, n. 4. ____________________________________________

5 On March 29, 2018, Father filed in the Pennsylvania Supreme Court a “petition for leave to file petition for allowance of appeal nunc pro tunc,” which the Court denied by order dated May 10, 2018. See Trial Court Opinion, 6/13/18, at 2, n. 3. The record does not indicate if Father filed the aforesaid petition pro se, but we presume that he did.

6 Because Attorney D’Adamo filed an Anders brief in this case, we deem his addendum as a statement pursuant to Rule 1925(c)(4), which provides, in part, “counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement.” Pa.R.A.P.

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On July 17 and 18, 2018, Attorney D’Adamo filed a petition to withdraw

as counsel and an Anders brief, respectively, which we address initially. See

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 omitted).7 To withdraw pursuant to Anders, counsel must:

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).

With respect to the third requirement of Anders, that counsel inform

the appellant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “attach to their petition to withdraw a copy of the

1925(c)(4). See In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (holding that decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in a termination of parental rights case was proper).

7 This Court extended the Anders procedure to appeals from decrees involuntarily terminating parental rights in In re V.E., 611 A.2d 1267 (Pa. Super. 1992). Because the underlying order in this case dismissed Father’s appeal from the decree involuntarily terminating his parental rights, we conclude that V.E. is applicable.

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letter sent to their client advising him or her of their rights.” Commonwealth

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

Additionally, an Anders brief must comply with the following

requirements:

(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). This Court has

concluded that substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

We have further explained, “Once counsel has satisfied the above

requirements, it is then this Court’s duty to conduct its own review of the trial

court’s proceedings and render an independent judgment as to whether the

appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d

287, 291 (Pa. Super. 2007) (en banc).

Instantly, our review confirms that Attorney D’Adamo has substantially

complied with the requirements for withdrawal outlined in Anders, supra,

and its progeny. Counsel has filed a petition to withdraw and an Anders brief

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pursuant to Santiago, supra. We recognize that the petition to withdraw

contains no specific averments, but simply references the Anders brief. In

the Anders brief, Attorney D’Adamo details his review of the record and sets

forth his conclusion that the appeal is meritless. While counsel does not

expressly use the Anders language of “making a conscientious examination

of the record,” his averment regarding his review substantially complies with

Anders. See Commonwealth v. Woods, 939 A.2d 896, 899 (Pa. Super.

2007) (concluding that counsel complied with the Anders requirements where

counsel indicated he “made a thorough review of Appellant’s case.”).

Moreover, the petition for leave to withdraw demonstrates that counsel has

complied with the notice requirements for withdrawal by serving Father with

a copy of the petition and Anders brief, and advising him by letter of his rights

to retain new counsel or proceed pro se. Therefore, we will proceed to make

an independent review of the record to determine whether the appeal is wholly

frivolous.

We review an order denying an appeal nunc pro tunc pursuant to an

abuse of discretion standard. In the Interest of M.S.K., 936 A.2d 103, 104

(Pa. Super. 2007). “An abuse of discretion is not merely an error of judgment

but is found where the law is ‘overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill will as shown by the evidence or the record.’” Id. (citation omitted).

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With respect to requests for nunc pro tunc relief, we have explained as

follows.

Allowance of an appeal nunc pro tunc lies at the sound discretion of the Trial Judge. . . . As a general matter, a Trial Court may grant an appeal nunc pro tunc when a delay in filing . . . is caused by extraordinary circumstances involving fraud or some breakdown in the court’s operation through a default of its officers. Where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.

Our Supreme Court has made it clear that the circumstances occasioning the failure to file an appeal must not stem from counsel’s negligence or from a failure to anticipate foreseeable circumstances.

M.S.K., 936 A.2d at 105 (citations omitted); see also Towey v. Lebow, 980

A.2d 142, 144 (Pa. Super. 2009) (quoting Criss v. Wise, 781 A.2d 1156,

1159 (Pa. 2001)) (stating, in allowing an appeal nunc pro tunc, the appellant

must prove: “(1) the appellant’s notice of appeal was filed late as a result of

non-negligent circumstances, either as they relate to the appellant or the

appellant’s counsel; (2) the appellant filed the notice of appeal shortly after

the expiration date; and (3) the appellee was not prejudiced by the delay.”)).

In this case, the trial court explained its denial of Father’s request for

nunc pro tunc relief as follows.

Father attempted to communicate with the trial [court’s] chambers ex-parte on multiple occasions. Each time, the judge’s law clerk wrote back to Father, in jail, informing Father to contact . . . [A]ttorney [Weil,] with the latest letter [from chambers to

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Father] dated August 29, 2017. Father was represented by the same attorney, [Attorney Weil], throughout the underlying case since August 24, 2015, well before Father was incarcerated. Father has been in jail at the same location, Montgomery County Correctional Facility[,] since on or about April 2016. Thus, Father was well aware who his attorney was. Additionally, all correspondence from the Family Court Clerk’s Office has been mailed to Father at his jail, since Father has executed numerous filing[s] Pro-Se with the Clerk’s Office. Being that Father is represented by an attorney, it is Father’s duty and obligation to maintain communication and contact with his own attorney. Furthermore, since Father was receiving all correspondence in jail, he was aware of all its contents and deadlines. Consequently, it was Father’s own actions, or lack thereof, that caused his own untimeliness to comply with the rules of court and court orders. Based on reviewing the record, including all filing[s] made by Father Pro-Se and filings from his attorneys, the trial court finds no breakdown of court operations or fraud on the part of any court personnel.

Father and [Attorney Weil] were given an opportunity to cure the defective Notice of Appeal but failed to file a Statement of Errors by the date ordered by [the] Superior Court. [Attorney Weil] ultimately filed an untimely Statement of Errors almost two weeks after the date ordered by [the] Superior Court and six days after [the] Superior Court had already dismissed the [appeal]. . . .

Trial Court Opinion, 6/13/18, at 4-5 (citation to record omitted). Upon

review, the record supports the trial court’s findings. In short, it was due to

the negligence of Father and Attorney Weil that the defective notice of appeal

was not cured in the prior appeal. There is no evidence of fraud or a

breakdown in the court’s operation through a default of its officers.

Furthermore, Attorney Weil failed to file a petition for permission to

appeal nunc pro tunc by November 1, 2017, pursuant to this Court’s October

25, 2017 order, supra. Rather, Father filed pro se a motion for nunc pro tunc

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relief nearly five months later, on March 22, 2018. Thus, Father did not

timely file his motion.

In addition, we agree with the trial court that Father’s untimeliness

“would be very prejudic[ial]” to E.W.H., Jr., the five-year-old child in the

underlying matter, “since he is in a pre-adoptive home” with his paternal

grandmother, and he has “the right to have proper parenting and fulfillment

of his . . . potential in a permanent, healthy, safe environment.” Id. at 5;

In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted).

Therefore, our independent review of the record reflects that Father failed to

meet his burden of proof, and there are no non-frivolous claims that might

arguably support his appeal. Accordingly, we affirm the order and grant

counsel’s petition to withdraw.

Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/18

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