In the Int. of: X.S., a Minor., Appeal of: A.U.

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2020
• Docket: 555 EDA 2020
• Status: Unpublished

Opinion

J-S35031-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.U., MOTHER : : : : : No. 555 EDA 2020

Appeal from the Order Entered January 29, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000346-2018

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 31, 2020

A.U. (“Mother”) appeals from the order entered on January 29, 2020,

holding that her child, A.S. (“Child”), born in 2017, was not “dependent” under

the Juvenile Act,1 as Child’s father, A.S. (“Father”), was available to assume

custody. With this appeal, Mother’s counsel has filed a petition to withdraw

and an Anders2 brief, stating that the appeal is wholly frivolous. We deny

counsel’s petition to withdraw without prejudice and order her to send a new

letter to Mother informing Mother that, in addition to her right to retain new

counsel or to proceed pro se, Mother has the right to raise any additional

points that Mother deems worthy of this Court’s attention. This new letter

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* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 6301-6375. 2 Anders v. California, 386 U.S. 738 (1967). J-S35031-20

must be sent within 30 days of the date of this decision. At that time, counsel

may file a new Anders brief and petition to withdraw. Mother shall thereafter

have the opportunity, if she so chooses, to file her own brief pro se or by new

counsel whom she retains.

In its opinion, the trial court correctly set forth the relevant facts and

procedural history of this case. See Trial Court Opinion, dated May 1, 2020,3

at 1-5. Therefore, we have no reason to restate them at length.

For the convenience of the reader, we briefly note that, on February 22,

2018, DHS filed a dependency petition. On January 29, 2020, the trial court

entered a written “Order of Adjudication and Disposition,” “find[ing] that clear

and convincing evidence does not exist to substantiate the allegations set forth

in the petition” and consequently holding that “Child is not Dependent

pursuant to the Pennsylvania Juvenile Act and that the petition for dependency

is dismissed.” The Order further stated: “Child to be reunified with Father,

custody confirmed.” On February 12, 2020, Mother filed this timely appeal.4

3 The date stamp on the trial court opinion reads “2020 APR 31.” However, as there is no April 31, we assume that this date is a clerical error, with someone mistakenly changing the date on the stamp from April 30 to April 31, instead of May 1. Additionally, the date on the accompanying certificate of service is May 1, 2020, and we have chosen to use that date in our reference to the trial court opinion. 4 Mother, pro se, contemporaneously filed a statement of errors complained of on appeal, even though she was represented by counsel. On February 18, 2020, Mother’s counsel filed a docketing statement and a supplemental statement of errors complained of on appeal.

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On June 2, 2020, Mother’s counsel filed an Anders brief and petition to

withdraw and sent the following letter to Mother that stated, in its entirety:

I am writing to inform you of the following:

1. I am requesting to withdraw as appellant [sic] counsel in the above-referenced case;

2. I have enclosed a copy of the brief prepared in support of withdraw as counsel;

3. You have the right to retain new counsel or proceed pro se.

Letter from Claire Leotta, Esquire, to Mother (June 2, 2020). Mother did not

file a response to the petition to withdraw.

When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw from representation, he/she must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous;

(2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and

(3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Cox, 2020 PA Super 102, *3 (filed April 22, 2020)

(emphasis added) (internal quotation marks and citations omitted) (some

additional formatting).

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In the current action, counsel did not inform Mother of her right to raise

any additional points she deemed worthy of this Court’s attention. Compare

Letter from Claire Leotta, Esquire, to Mother (June 2, 2020) with Cox, 2020

PA Super 102 at *3. Accordingly, counsel has failed to comply with the

requirements of Anders and Cox. For this reason, we are constrained to deny

counsel’s petition to withdraw without prejudice; we order counsel to send a

new letter to Mother informing Mother that, in addition to her right to retain

new counsel or to proceed pro se, Mother has the right to raise any additional

points Mother deems worthy of this Court’s attention. This new letter must

be sent within 30 days of the date of this decision. At that time, counsel may

file a new Anders brief and petition to withdraw. Mother shall thereafter have

the opportunity, if she so chooses, to file her own brief pro se or by new

counsel whom she retains. Any such brief filed by Mother or her new counsel

shall be filed with this Court within 45 days of the date current counsel files

her new Anders petition and brief. Although DHS sent a letter to this Court

stating that it did not intend to file a responsive brief, Letter from

Robert D. Aversa, Deputy City Solicitor, to Benjamin Kohler, Deputy

Prothonotary (June 25, 2020), if DHS wishes to file a brief in response to any

new brief filed on Mother’s behalf, it may do so within 30 days of the date that

Mother’s new brief is filed.

Petition to withdraw denied without prejudice. Anders brief stricken.

Mother’s counsel ordered to send new letter advising Mother of her rights in

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light of counsel’s petition to withdraw within 30 days of the date of this

decision. DHS may file a brief within 30 days of Mother’s new brief. Panel

jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/31/20

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