J-S42010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.M.L., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.L.L., MOTHER                  :
                                               :
                                               :
                                               :
                                               :   No. 459 MDA 2018

               Appeal from the Decree Entered February 12, 2018
       In the Court of Common Pleas of Lancaster County Civil Division at
                               No(s): 2690 2017


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 06, 2018

       J.L.L. (“Mother”) appeals from the orphans’ court decree entered on

February 12, 2018, that involuntarily terminated her parental rights to her

son, D.M.L.1 Mother’s court-appointed counsel has filed a petition to withdraw

as counsel and a brief pursuant to Anders v. California, 386 U.S. 738

(1967). As counsel did not comply with the requirements of Anders, we deny

the petition to withdraw and remand for further proceedings.

       When D.M.L. was born in May of 2017, Lancaster County Children and

Youth Social Service (“CYS”) had already been involved with the family for

two years due to, inter alia, Mother’s drug abuse in relation to D.M.L.’s older

brother, S.L., Jr.     During August 2016, the orphans’ court terminated the

parental rights of Mother and Father to the older child.        Subsequently, in
____________________________________________


1  On the same date, D.M.L.’s father, S.L. (“Father”), relinquished his parental
rights voluntarily.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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January of 2017, CYS received a report that Mother was pregnant with D.M.L.

During that pregnancy, Mother tested positive for cocaine, and she and D.M.L.

both tested positive for cocaine following D.M.L.’s birth seven weeks

prematurely.

      On June 12, 2017, the juvenile court adjudicated D.M.L. dependent and

found aggravated circumstances as to both Mother and Father as a result of

the prior involuntary termination of their parental rights to S.L., Jr.

Consequently, CYS was relieved of its obligation to employ reasonable efforts

toward reunification. CYS placed D.M.L. in a pre-adoptive foster home, where

he remains.

      On December 7, 2017, CYS filed a petition to involuntarily terminate

Mother’s parental rights to D.M.L.     The court appointed Albert J. Meier,

Esquire, to represent Mother.      Nine-month-old D.M.L. continued to be

represented by the guardian ad litem appointed during the juvenile court

proceedings.   On January 24, 2018, the orphans’ court entered an order

incorporating the juvenile court record into the termination of parental rights

proceedings. In addition, the orphans’ court judge, who did not preside over

the dependency proceedings, “ordered transcripts for all [j]uvenile [c]ourt

proceedings and independently reviewed the [j]uvenile court record[.]” Trial

Court Opinion, 4/13/18, at 2 n.1.     Following hearings on January 22 and

February 12, 2018, the orphans’ court involuntarily terminated Mother’s

parental rights to D.M.L. pursuant to 23 Pa.C.S § 2511(a)(1), (2) and (b).




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Mother filed a timely notice of appeal as well as a concise statement of errors

complained of on appeal.

      As noted supra, Attorney Meier filed a petition to withdraw as counsel

and an Anders brief. In In re V.E., 611 A.2d 1267 (Pa.Super. 1992), this

Court extended the Anders principles to appeals involving the termination of

parental rights. In order to be permitted to withdraw from representation

under Anders, counsel must meet three procedural requirements: 1) a

petition for leave to withdraw must be filed which states that, after making a

conscientious examination of the record, counsel has determined that the

appeal is frivolous; 2) he furnish a copy of the Anders brief to the appellant;

and 3) he advise the appellant that he or she has the right to retain private

counsel or raise, pro se, additional arguments that the appellant deems worthy

of the court’s attention. See Commonwealth v. Cartrette, 83 A.3d 1030,

1032 (Pa.Super. 2013) (en banc) (citation omitted).

      In addition to complying with the foregoing procedural conditions, an

attorney seeking to withdraw from representation must file an Anders brief

that satisfies the following substantive 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. Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009).




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      Presently, Attorney Meier failed to satisfy Anders insofar as it is unclear

whether he reviewed the entire record. As previously indicated, the orphans’

court explicitly incorporated the juvenile court record into the termination

proceedings, and it cited to the juvenile court transcripts throughout its Rule

1925(a) opinion.    See Trial Court Opinion, 4/13/18, at 2-4, 8, 11, 13.

However, in contrast to the broad scope of the orphans’ court’s assessment,

there is no indication that counsel reviewed the juvenile court record prior to

petitioning to withdraw.    Indeed, although formally incorporated into the

orphans’ court proceeding, the juvenile court record is not included in the

certified record that was transmitted to this Court on appeal, and all of

counsel’s citations to the record in his Anders brief are limited to the notes of

testimony of the February 12, 2018 hearing.           Counsel’s review of the

incomplete record on appeal does not sustain his assertion that he performed

the comprehensive examination that Anders requires.

      Furthermore, as the appellant in this case, Mother was obligated to

ensure that the certified record was complete in order for this Court to perform

its appellate review.    Under the prevailing interpretation of the Anders

procedure, prior to granting a petition to withdraw, we are obligated to

conduct an independent review of the entire record for non-frivolous issues

that counsel may have over looked. See Commonwealth v. Yorgey, __

A.3d__, 2018 PA Super 136 at *5 (en banc) (Anders requires reviewing court

examine record to ascertain if there are non-frivolous issues that counsel




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“missed or misstated”).     Obviously, the present condition of the certified

record impedes our examination.

      Accordingly, we deny Attorney Meier’s petition to withdraw and hereby

direct that, within seven days of the date of this memorandum, Attorney Meier

shall file a motion in the orphans’ court to supplement the record with the

portions of the juvenile court record that the orphans’ court expressly

incorporated into the termination proceedings by means of its January 24,

2018 order. Upon counsel’s compliance with this directive, the Clerk of Court

of Lancaster County shall certify and transmit the incorporated juvenile court

record to the Superior Court Prothonotary as a supplemental record.

Thereafter, Attorney Meier will have fourteen days to file with this Court either

an Anders brief that reflects his review of the entire record or an advocate’s

brief. Within seven days of the date that Attorney Meier files the revised brief

with this Court, CYS and the guardian ad litem may file their respective

responses.

      Attorney Meier’s petition to withdraw from representation is denied

without prejudice.    Case remanded for proceedings consistent with this

memorandum. Panel jurisdiction retained.




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