J-S43031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.K., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: E.K., FATHER : : : : : No. 1774 EDA 2022
Appeal from the Order Entered July 18, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000265-2022
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2023
Appellant E.K. (Father) appeals from the order granting the petition filed
by the Philadelphia Department of Human Services (DHS) to involuntarily
terminate Father’s parental rights to K.K. (Child) and changing Child’s
permanency goal to adoption. Father’s counsel, Tracey Chambers Coleman,
Esq. (Attorney Coleman) has filed a petition to withdraw and an
Anders/Santiago1 brief. After careful review, we deny Counsel’s motion to
withdraw, vacate the trial court’s order, and remand for proceedings
consistent with this memorandum.
____________________________________________
1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); see also In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992) (extending Anders to appeals involving the termination of parental rights). J-S43031-22
The relevant facts and procedural history are well known to the parties.
Briefly, DHS became involved with Child on December 24, 2019 after receiving
a General Protective Services (GPS) report alleging that W.W. (Mother) had
tested positive for cocaine at the time of Child’s premature birth.2 See N.T.
Hr’g, 7/18/22, at 8; DHS’s Ex. 4 at 21. After testing positive for cocaine and
marijuana shortly after Child’s birth, Mother entered an inpatient drug and
alcohol treatment program. DHS’s Ex. 4 at 2. At that time, DHS learned that
Father did not want to care for Child, that he had refused to provide the
Community Umbrella Agency (CUA) with his address, and that he had refused
to provide any information concerning other family members who could care
for Child Id.
The trial court conducted a dependency hearing on February 24, 2020.
Ultimately, the trial court deferred adjudication and ordered DHS to obtain an
Order of Protective Custody (OPC) for Child if appropriate. Id. After
conducting interviews with Mother and employees at Mother’s treatment
facility, DHS obtained an OPC for Child and placed her in foster care. Id.
The trial court subsequently lifted the OPC at the February 28, 2020
shelter care hearing, but ordered the temporary commitment to DHS to stand.
The court also referred Mother to the Clinical Evaluation Unit (CEU) for drug
screenings. Although Mother provided the court with Father’s current address,
2We note that Mother passed away in July of 2021 and is not a party to this appeal.
-2- J-S43031-22
the extent of Father’s involvement in Child’s care was unknown to DHS at that
time. Id.
On March 5, 2020, the trial court adjudicated Child dependent and
committed Child to the care and custody of DHS. At that time, Father’s
objectives were to participate in Family School and sign the appropriate
consent forms for Child. Father was also referred to the Achieving
Reunification Center (ARC) for appropriate services. Id. at 22.
On April 29, 2020, a revised (Single Case Plan) SCP was created.
Father’s objectives were to attend an outpatient substance abuse program
and participate in weekly supervised visits with Child. At the May 27, 2020
hearing, Father’s objectives remained the same. Id. at 22-23.
On September 14, 2020, DHS reported that Father’s compliance with
his SCP objectives had been minimal. Id. at 23. At that time, the trial court
referred Father to ARC for parenting, housing, domestic violence, healthy
relationships, finances, and employment services. The court also referred
Father to CEU for a drug screen, an assessment, and three random drug
screens to be completed prior to the next court date. Id. At the December
31, 2020 hearing, Father’s objectives were to attend an outpatient substance
abuse program and participate in weekly supervised visits with Child. Id.
At the hearing on February 4, 2021, the trial court learned that Father
was incarcerated and that he had been minimally compliant with his
permanency plan. Id. The court ordered Father to re-engage with ARC
services and referred Father to CEU for a drug screen, a dual diagnosis
-3- J-S43031-22
assessment, and three random screens prior to the next court date. Id. The
trial court also found that aggravated circumstances existed as to Mother, and
that DHS would make no further efforts to reunify Child with Mother.3 Id.
On June 14, 2021, Father’s SCP objectives were to attend an outpatient
program, submit a weekly random drug screen from his probation officer to
CUA, make himself available to and actively participate in CUA services, attend
supervised visits with Child at the placement agency, participate in ARC
services to include Healthy Relationships, attend Family School, and sign the
appropriate releases for his probation officer. Father’s objectives were the
same at the hearing on July 15, 2021, at which time DHS reported that there
was only minimal compliance by Father. Father’s objectives remained the
same at subsequent hearings in October and November of 2021.
On April 22, 2022, DHS filed a petition to terminate Father’s parental
rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b) and to
change Child’s permanency goal to adoption. At the termination hearing, the
parties stipulated to the facts set forth in DHS’s petition. See N.T. Hr’g at 8.
DHS also presented testimony from case manager Laneesha Cameron, who
stated that she first became involved in Child’s case in February of 2022. Id.
at 9. Ms. Cameron testified that Child had been in care “[s]ince she was a
baby,” which was more than two years ago, and that Child had never lived
with Father. Id. at 10-11.
3 Mother subsequently passed away on July 9, 2021.
-4- J-S43031-22
Ms. Cameron explained that Father’s permanency objectives were to
attend outpatient programs for substance abuse, comply with ARC and CEU
services, complete parenting school, and participate in weekly supervised
visits with Child. Id. at 11-12. Ms. Cameron stated that Father had not been
involved with Child since he attended a supervised visit in 2021. Id. at 13.
Ms. Cameron indicated that Father had spent time in two separate inpatient
drug treatment facilities, but ultimately failed to complete either program. Id.
at 17-19. Further, Ms. Cameron stated that Father had only recently
completed an assessment with CEU, which had been an outstanding objective
throughout the life of the case. Id. at 21. Ms. Cameron also noted that
although Father contacted ARC, he failed to provide a copy of Child’s birth
certificate, which was required before he could proceed with services. Id. at
22.
Ms. Cameron testified that Father had not provided any proof of
employment and did not have his own residence. Id. at 23. Further, she
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J-S43031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.K., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: E.K., FATHER : : : : : No. 1774 EDA 2022
Appeal from the Order Entered July 18, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000265-2022
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2023
Appellant E.K. (Father) appeals from the order granting the petition filed
by the Philadelphia Department of Human Services (DHS) to involuntarily
terminate Father’s parental rights to K.K. (Child) and changing Child’s
permanency goal to adoption. Father’s counsel, Tracey Chambers Coleman,
Esq. (Attorney Coleman) has filed a petition to withdraw and an
Anders/Santiago1 brief. After careful review, we deny Counsel’s motion to
withdraw, vacate the trial court’s order, and remand for proceedings
consistent with this memorandum.
____________________________________________
1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); see also In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992) (extending Anders to appeals involving the termination of parental rights). J-S43031-22
The relevant facts and procedural history are well known to the parties.
Briefly, DHS became involved with Child on December 24, 2019 after receiving
a General Protective Services (GPS) report alleging that W.W. (Mother) had
tested positive for cocaine at the time of Child’s premature birth.2 See N.T.
Hr’g, 7/18/22, at 8; DHS’s Ex. 4 at 21. After testing positive for cocaine and
marijuana shortly after Child’s birth, Mother entered an inpatient drug and
alcohol treatment program. DHS’s Ex. 4 at 2. At that time, DHS learned that
Father did not want to care for Child, that he had refused to provide the
Community Umbrella Agency (CUA) with his address, and that he had refused
to provide any information concerning other family members who could care
for Child Id.
The trial court conducted a dependency hearing on February 24, 2020.
Ultimately, the trial court deferred adjudication and ordered DHS to obtain an
Order of Protective Custody (OPC) for Child if appropriate. Id. After
conducting interviews with Mother and employees at Mother’s treatment
facility, DHS obtained an OPC for Child and placed her in foster care. Id.
The trial court subsequently lifted the OPC at the February 28, 2020
shelter care hearing, but ordered the temporary commitment to DHS to stand.
The court also referred Mother to the Clinical Evaluation Unit (CEU) for drug
screenings. Although Mother provided the court with Father’s current address,
2We note that Mother passed away in July of 2021 and is not a party to this appeal.
-2- J-S43031-22
the extent of Father’s involvement in Child’s care was unknown to DHS at that
time. Id.
On March 5, 2020, the trial court adjudicated Child dependent and
committed Child to the care and custody of DHS. At that time, Father’s
objectives were to participate in Family School and sign the appropriate
consent forms for Child. Father was also referred to the Achieving
Reunification Center (ARC) for appropriate services. Id. at 22.
On April 29, 2020, a revised (Single Case Plan) SCP was created.
Father’s objectives were to attend an outpatient substance abuse program
and participate in weekly supervised visits with Child. At the May 27, 2020
hearing, Father’s objectives remained the same. Id. at 22-23.
On September 14, 2020, DHS reported that Father’s compliance with
his SCP objectives had been minimal. Id. at 23. At that time, the trial court
referred Father to ARC for parenting, housing, domestic violence, healthy
relationships, finances, and employment services. The court also referred
Father to CEU for a drug screen, an assessment, and three random drug
screens to be completed prior to the next court date. Id. At the December
31, 2020 hearing, Father’s objectives were to attend an outpatient substance
abuse program and participate in weekly supervised visits with Child. Id.
At the hearing on February 4, 2021, the trial court learned that Father
was incarcerated and that he had been minimally compliant with his
permanency plan. Id. The court ordered Father to re-engage with ARC
services and referred Father to CEU for a drug screen, a dual diagnosis
-3- J-S43031-22
assessment, and three random screens prior to the next court date. Id. The
trial court also found that aggravated circumstances existed as to Mother, and
that DHS would make no further efforts to reunify Child with Mother.3 Id.
On June 14, 2021, Father’s SCP objectives were to attend an outpatient
program, submit a weekly random drug screen from his probation officer to
CUA, make himself available to and actively participate in CUA services, attend
supervised visits with Child at the placement agency, participate in ARC
services to include Healthy Relationships, attend Family School, and sign the
appropriate releases for his probation officer. Father’s objectives were the
same at the hearing on July 15, 2021, at which time DHS reported that there
was only minimal compliance by Father. Father’s objectives remained the
same at subsequent hearings in October and November of 2021.
On April 22, 2022, DHS filed a petition to terminate Father’s parental
rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b) and to
change Child’s permanency goal to adoption. At the termination hearing, the
parties stipulated to the facts set forth in DHS’s petition. See N.T. Hr’g at 8.
DHS also presented testimony from case manager Laneesha Cameron, who
stated that she first became involved in Child’s case in February of 2022. Id.
at 9. Ms. Cameron testified that Child had been in care “[s]ince she was a
baby,” which was more than two years ago, and that Child had never lived
with Father. Id. at 10-11.
3 Mother subsequently passed away on July 9, 2021.
-4- J-S43031-22
Ms. Cameron explained that Father’s permanency objectives were to
attend outpatient programs for substance abuse, comply with ARC and CEU
services, complete parenting school, and participate in weekly supervised
visits with Child. Id. at 11-12. Ms. Cameron stated that Father had not been
involved with Child since he attended a supervised visit in 2021. Id. at 13.
Ms. Cameron indicated that Father had spent time in two separate inpatient
drug treatment facilities, but ultimately failed to complete either program. Id.
at 17-19. Further, Ms. Cameron stated that Father had only recently
completed an assessment with CEU, which had been an outstanding objective
throughout the life of the case. Id. at 21. Ms. Cameron also noted that
although Father contacted ARC, he failed to provide a copy of Child’s birth
certificate, which was required before he could proceed with services. Id. at
22.
Ms. Cameron testified that Father had not provided any proof of
employment and did not have his own residence. Id. at 23. Further, she
reiterated that although Father had previously attended one visit with Child,
he had failed to attend any visits since Ms. Cameron became his case manager
in 2022. Id. at 24. Ms. Cameron stated that Father’s compliance with his
permanency objectives was “minimum” and explained that “at first it was not
compliant at all[, b]ut because he completed the CEU last week, I would say
minimal.” Id. at 29.
Ms. Cameron explained that she had ruled out reunification with Father
because “he hasn’t been compliant throughout the life of the case[,]” and Child
-5- J-S43031-22
“only knows” her foster mother’s family. Id. Further, Ms. Cameron stated
that Child “has no emotional connection to [Father]. She doesn’t know who
he is. And at this point in time we just think she needs stability and
permanency.” Id. Additionally, Ms. Cameron noted that because Father had
“no bond” with Child, termination would not have any negative impact. Id.
at 29-30. Finally, Ms. Cameron indicated that Child was in pre-adoptive home,
calls her foster mother “mom,” and has a bond with foster mother’s other
children. Id. at 28. Ms. Cameron explained that her current placement has
been the same throughout the life of the case, that her foster family is “the
only family [Child] knows[,]” and that Child is “well taken care of” by her
foster mother, who has enrolled Child in daycare and consistently attended
Child’s medical appointments. Id. at 32.4
Ultimately, the trial court concluded that DHS had presented clear and
convincing evidence to support the termination of Father’s parental rights
under Sections 2511(a)(1), (2), (5), (8), and (b). Id. at 63.
That same day, although Appellant was still represented by Attorney
Coleman, Appellant filed a pro se notice of appeal. Father did not file a
Pa.R.A.P. 1925(b) statement. On July 21, 2021, the trial court issued an order
directing Attorney Coleman to file a Rule 1925(b) statement on Father’s ____________________________________________
4 The record reflects that Linda G. Walters, Esq. appeared on Child’s behalf. At the termination hearing, Attorney Walters indicated that she had concerns with terminating Father’s parental rights, but when asked to state a position in her “capacity as counsel for [Child,]” Attorney Walters stated: “Obviously I’d have to say termination.” Id. at 61-62. However, with respect to goal change, she stated that “the goal should not be changed to adoption.” Id.
-6- J-S43031-22
behalf. See Trial Ct. Order, 7/21/22. Although Attorney Coleman filed an
amended notice of appeal, she did not file a Rule 1925(b) statement. See
Amended Notice of Appeal, 8/26/22.
In lieu of a Rule 1925(a) opinion, the trial court issued an order referring
this Court to the record from the termination hearing. See Trial Ct. 1925(a)
Order, 8/17/22.
On September 8, 2022, this Court issued a rule to show cause order
directing Attorney Coleman to address her failure to file a court-ordered Rule
1925(b) statement. See Rule to Show Cause Order, 9/8/22. In her response,
Attorney Coleman explained that she had told Father that “it was unlikely that
the decision would be reversed because he did not complete any of his single
case planning objectives.” Counsel’s Answer to Rule to Show Cause, 9/19/22.
Further, Attorney Coleman stated that although she instructed Father to
contact her if he wanted to file an appeal, he filed a notice of appeal pro se,
and never contacted Counsel about any further filings. Id. This Court
subsequently discharged the rule to show cause order on September 21, 2022.
As noted above, Attorney Coleman has filed a petition to withdraw and
an Anders/Santiago brief that identifies the following issue: “Did the trial
court commit an error of law and abuse of discretion by involuntarily
terminating Father’s parental rights?” Anders/Santiago Brief at 2.
When faced with an Anders/Santiago brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
-7- J-S43031-22
request to withdraw. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). As
this Court has stated:
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.
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 letter sent to their client advising him or her of their rights.”
In re J.D.H., 171 A.3d 903, 907 (Pa. Super. 2017) (citations omitted).
Additionally, counsel must file a brief that meets the following
requirements established by the Pennsylvania Supreme Court in Santiago:
(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.
In re Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020) (citation
omitted).
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“After an appellate court receives an Anders brief and is satisfied that
counsel has complied with the aforementioned requirements, the Court then
must undertake an independent examination of the record to determine
whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d 1235, 1237
(Pa. Super. 2004) (citation omitted). Our independent review is not limited
to the issue discussed by counsel, but extends to “additional, non-frivolous
issues” that may have been overlooked by counsel. J.D.H., 171 A.3d at 908
(citation omitted). An appeal is frivolous when it lacks any basis in law or
fact. See M.C.F., 230 A.3d at 1220; accord Santiago, 978 A.2d at 356.
Instantly, Attorney Coleman has filed a petition to withdraw that states
that she conscientiously reviewed the record and determined that the appeal
is frivolous. She has also provided this Court with a certified mail receipt
demonstrating that she served Father with a copy of her motion to withdraw
and a letter advising Father of his right to proceed pro se or raise any
additional points that Father deemed worthy of consideration. Additionally,
Attorney Coleman’s Anders/Santiago brief provides a summary of the
essential facts and procedural history of the case. Counsel also sets forth her
reasons for concluding that Father’s appeal is frivolous.
However, before reaching the issues identified in the Anders/Santiago
brief or raised in Attorney Coleman’s motion to withdraw her representation
of Father, we must review sua sponte whether, pursuant to 23 Pa.C.S. §
2313(a), the trial court appointed legal counsel to represent Child during the
contested involuntary termination proceeding. See In re Adoption of
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K.M.G., 240 A.3d 1218, 1235 (Pa. 2020). Our Supreme Court has interpreted
Section 2313(a) “as requiring ‘that the common pleas court appoint an
attorney to represent the child’s legal interest, i.e. the child’s preferred
outcome.’” Id. (citation omitted). Additionally, the failure to appoint a
“‘separate attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-error analysis.’” Id.
(citations omitted).
It is well settled that “a single attorney cannot represent a child’s best
interests and legal interests if those interests conflict.” Id. at 1236 (citation
omitted). As such, our Supreme Court has held that before appointing an
individual to serve as both guardian ad litem (GAL) and legal counsel for a
child, the trial court “must determine whether counsel can represent the dual
interests . . .” Id. Further, where the trial court appoints one attorney “to
represent both the child’s best interests and legal interests, appellate courts
should review sua sponte whether the [trial] court made a determination that
those interests did not conflict.” Id. at 1235.
Here, as noted previously, Attorney Walters appeared on Child’s behalf
at the termination hearing. See N.T. Hr’g at 60-61. However, it is unclear
whether Attorney Walters was appointed as Child’s legal counsel, Child’s GAL,
or whether she served in a dual capacity. It is also unclear whether the trial
court made a determination as to whether a conflict existed between Child’s
legal interests and best interests. Indeed, when the trial court asked Attorney
- 10 - J-S43031-22
Walters to make a recommendation at the termination hearing, the following
exchange occurred:
[Attorney Walters:] I’ll defer to Your Honor. But I do have concerns when there is a breakdown in communication with CUA and -- not this -- necessarily this CUA worker, but with Father. It really distresses me when a father or mother reaches out to CUA trying. Like Mr. –
[The trial court:] I’m just asking. What is your position in your capacity as the attorney for the child on this case?
[Attorney Walters:] -- I have concerns. And I think it’s premature. I think CUA should have given him more guidance in what to do. Even a simple thing like a birth certificate --
[The trial court:] And what do you think would be in the child’s best interest today, your client?
[Attorney Walters:] -- that’s why I said I’ll defer to you. But I think --
[The trial court:] Well I’m asking. You are attorney for the child. I’m asking you. You are not the attorney for Father.
[Attorney Walters:] -- yeah.
[The trial court:] I’m asking you your position in your capacity as counsel for the child.
[Attorney Walters:] Okay.
[The trial court:] And just reminding you who your client is and asking –
[Attorney Walters:] Yeah.
[The trial court:] -- you your position in this case.
[Attorney Walters:] Obviously I’d have to say termination. But I have concerns, and that’s why I preface it. I’ll defer to you, because I don’t -- I think --
[The trial court:] So you’re taking no position on behalf of the child?
- 11 - J-S43031-22
[Attorney Walters:] -- I think the goal change should not be -- the goal should not changed to adoption.
N.T. Hr’g at 61-62.
On this record, and in light of the fact that the trial court did not issue
a Rule 1925(a) opinion, we are unable to discern whether the trial court
addressed whether there was a conflict between Child’s legal interests and
best interests.5 See K.M.G., 240 A.3d at 1236. For these reasons, we are
constrained to deny Attorney Coleman’s motion to withdraw her
representation of Father, vacate the involuntary termination decree, and
remand for further proceedings. See id; see also Interest of A.J.R.O., 270
A.3d 563, 570-71 (Pa. Super. 2022) (reiterating that “appellate review of this
question does not involve second–guessing whether GAL/[legal c]ounsel in
fact had a conflict but solely whether the [trial] court made the determination
in the first instance” (citation omitted)).
On remand, we direct the trial court within thirty days to fulfill its Section
2313(a) duty as articulated in K.M.G. and determine whether Attorney
Walters may represent both the best interests and legal interests of Child. If
the trial court determines that no conflict exists between Child’s dual interests,
then the court shall re-enter the termination order as to Father. If the trial
court determines that there is a conflict between Child’s best interests and
5 Additionally, the trial court did not determine, nor did counsel indicate on the record, whether Child was too young to articulate a preference as to the outcome of the proceedings, such that no conflict could exist. See In re T.S., 192 A.3d 1080 (Pa. 2018).
- 12 - J-S43031-22
legal interests, then the court shall appoint separate legal counsel for Child
and conduct a new involuntary termination hearing as to Father to provide
Child’s legal counsel an opportunity to advocate on behalf of Child’s legal
interests pursuant to K.M.G., 240 A.3d at 1235.
Order vacated. Petition to withdraw as counsel denied. Case remanded
with instructions. Jurisdiction relinquished.
Judge Dubow did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/14/2023
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