In the Interest of: H.H., Appeal of: M.H., Father

• Court: Superior Court of Pennsylvania
• Decided: May 9, 2023
• Docket: 42 WDA 2023
• Status: Unpublished

Opinion

J-S14033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.H., FATHER : : : : : No. 42 WDA 2023

Appeal from the Decree Entered December 6, 2022 In the Court of Common Pleas of Indiana County Orphans' Court at No(s): No. 32-22-0364

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 9, 2023

M.H. (Father) appeals from the decree entered in the Court of Common

Pleas of Indiana County (trial court) granting the petition of Indiana County

Children and Youth Services (CYS) to involuntarily terminate his parental

rights to H.H. (d/o/b March 2020) (Child) pursuant to the Adoption Act, 23

Pa.C.S. § 2511 (a)(8) and (b).1 Counsel has filed an application to withdraw

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

counsel’s application to withdraw and direct her to file an advocate’s brief or

amended Anders brief.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 R.E. (Mother) voluntarily executed a consent to adoption of Child and is not a party to this appeal. J-S14033-23

The relevant procedural history is as follows. CYS took protective

custody of Child in May 2020 and he was adjudicated dependent thereafter.

Child has remained in foster care since that time. The trial court held regular

permanency review hearings thereafter to assess Father’s progress on his

reunification goals, which primarily related to drug and alcohol treatment,

mental health treatment and parenting classes. In May 2022, CYS filed a

petition to terminate Father’s parental rights, arguing that he had made

minimal and insufficient progress toward his goals.

The trial court held a hearing on the petition in November 2022 and

heard testimony from Dr. Carolyn Menta, a licensed clinical psychologist; Vicki

Weaver, a CYS caseworker; and Father. Following the reception of the

evidence, the trial court granted the petition terminating Father’s parental

rights. Father timely appealed and counsel filed a concurrent statement of

her intent to file an Anders brief in lieu of a concise statement pursuant to

Pa. R.A.P. 1925(b). See Pa. R.A.P. 1925(c)(4). She subsequently filed a

petition to withdraw and Anders brief in this Court.

When presented with an Anders brief, we must first address whether

counsel has properly sought to withdraw from this appeal. In In re V.E., 611

A.2d 1267 (Pa. Super. 1992), this Court extended Anders to appeals involving

the termination of parental rights. See id. at 1275. Counsel must: 1) petition

the court for leave to withdraw, stating that after making a conscientious

examination of the record, she has determined that the appeal would be

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frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the

defendant that he has the right to retain private counsel or raise additional

arguments that he deems worthy of the court’s attention. In re Adoption of

B.G.S., 240 A.3d 658, 661 (Pa. Super. 2020) (citation omitted). We also

review counsel’s Anders brief for compliance with the requirements under

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which require the

Anders brief:

(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.

Id. (citing Santiago, supra at 361). Once counsel has submitted a compliant

Anders brief, we will conduct an independent review of the record to discern

if there are any non-frivolous issues that counsel may have, intentionally or

mistakenly, omitted or misstated. See Commonwealth v. Yorgey, 188 A.3d

1190, 1197 (Pa. Super. 2018) (en banc).

Counsel’s application to withdraw states that she has reviewed the

record and concluded that there are no meritorious grounds for appeal. She

has attached letters she sent to Father advising him that she filed the Anders

brief and application to withdraw and informing him that he has a right to

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retain new counsel or proceed pro se. These letters also inform Father that

she cannot proceed in the matter because there are no meritorious grounds

for appeal.

Counsel’s application to withdraw and letters to Father misstate the

applicable legal standards. Counsel may proceed under Anders and

Santiago if, after a conscientious review of the record, she concludes that the

appeal is frivolous. B.G.S., supra. Because the appellant is entitled to

counsel on direct appeal from a termination of parental rights proceeding, the

“wholly frivolous” standard “is a higher standard to prove than showing that

something has no merit.” Commonwealth v. Burwell, 42 A.3d 1077, 1080

(Pa. Super. 2012) (citation omitted); see In re X.J., 105 A.3d 1, 4-5 (Pa.

Super. 2014) (addressing right to counsel in termination proceedings).

Additionally, our review of counsel’s brief reveals that it, too, does not

comply with Anders and Santiago. Again, counsel concludes that there are

no meritorious grounds for the appeal, rather than that the appeal is wholly

frivolous. She summarizes the facts adduced at the evidentiary hearing but

does not discuss the statutory and case law relevant to the decree terminating

Father’s parental rights under Subsection 2511(a)(8). Rather, she merely

“requests this Court to independently review the transcript of proceedings and

case file to determine whether any possible error exists.” Anders Brief at 13

(pagination supplied). Her argument related to Section 2511(b) is similarly

sparse, including a string cite to several cases without discussing their

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holdings or applying them to the facts. Accordingly, we conclude that her brief

is inadequate under Santiago.

Counsel is directed to file either an advocate’s brief or an amended

Anders brief that complies with Santiago within 21 days of the date of this

memorandum. The brief shall discuss the relevant law pertaining to Section

2511(a)(8) and (b) and apply that law to the facts of this case. CYS shall

have 21 days thereafter to file a supplemental response brief.

Application to withdraw denied. Counsel is directed to file an advocate’s

brief or an Anders brief consistent with this memorandum. Panel jurisdiction

retained.

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