J-S24016-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.S.                                 IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA




APPEAL OF: M.S., FATHER,

                                                No. 1290 MDA 2015


                  Appeal from the Decree June 22, 2015
              In the Court of Common Pleas of Berks County
                      Orphans' Court at No(s): 84154

IN RE: M.S., JR.                            IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA




APPEAL OF: M.S., FATHER,

                                                No. 1291 MDA 2015


                  Appeal from the Decree June 22, 2015
              In the Court of Common Pleas of Berks County
                      Orphans' Court at No(s): 83169

IN RE: T.S.                                 IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA




APPEAL OF: M.S., FATHER,

                                                No. 1292 MDA 2015


                  Appeal from the Decree June 22, 2015
              In the Court of Common Pleas of Berks County
J-S24016-16



                          Orphans' Court at No(s): 83168

BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 01, 2016

        M.S. (“Father”) appeals from the June 22, 2015 decrees that granted

the petitions filed by Berks County Children and Youth Services (“BCCYS”) to

terminate his parental rights to his three children, T.S., M.S., Jr., and L.S.1

As the lack of relevant transcripts precludes our review of Father’s issue and

Father has implicitly abandoned this appeal, we hereby affirm and grant

private counsel’s request to withdraw from representation.

        This family has a protracted history with child service agencies that

preceded the births of T.S. in 2007, M.S., Jr. in 2008, and L.S. during 2013,

respectively. We do not revisit those proceedings herein.       As it relates to

the children in the above-captioned appeals, the orphans’ court summarized

the facts and procedural history as follows:2

        [O]n August 24, 2012, BCCYS took emergency custody of . . .
        T.S., and M.S., Jr. A detention hearing was held on August 27,
        2012, and the . . . children remained in placement. Both Mother
        and Father tested positive for cocaine and opiates at the time.
____________________________________________


1
    The orphans’ court also terminated the parental rights of birth mother.
2
  As noted in the body of this memorandum, Father declined to make
arrangements with the court reporter to produce a transcript of the
evidentiary hearing. Thus, no written record of testimony exists. The
orphans’ court relied upon its recollection of the hearing and approximately
195 pages of exhibits to summarize the underlying facts and address the
merits of Father’s argument. The exhibits were not included in the certified
record transmitted to this Court on appeal.



                                           -2-
J-S24016-16



      Mother     also   tested    positive  for    methamphetamines,
      amphetamines, and benzodiazepines. The [two] children were
      declared dependent on August 29, 2012, and temporary custody
      was transferred to BCCYS for placement purposes. Mother and
      Father were ordered to participate in supportive, community
      based services. [BCCYS filed petitions to terminated Mother and
      father’s parental rights to T.S. and M.S. but the petitions were
      withdrawn on November 26, 2013 because the children had been
      reunited with Mother and Father. Meanwhile, L.S. was born
      during October 2013.]

              Mother and Father were minimally compliant with services
      initially after the placement. Both Mother and Father failed to
      attend domestic violence evaluations, failed to comply with
      [substance abuse] evaluations, and minimized their mental
      health and substance abuse issues.

            ....

            BCCYS filed a Petition for Emergency Custody on October
      7, 2014, alleging the inability to assure the safety and well -
      being of T.S., M.S., Jr., and L.S. so long as they remained in the
      care of Mother and Father. BCCYS asserted that the children's
      safety was threatened as a result of Mother's relapse on
      methamphetamines as well as Father being indicated as a
      perpetrator of sexual abuse. The three children were ordered to
      remain in foster care pending a full hearing. On October 15,
      2014, Judge Scott D. Keller ordered that T.S., M.S., Jr., and L.S.
      were dependent children, and that temporary legal custody
      transferred to BCCYS for placement purposes with a concurrent
      goal of adoption and return to the most appropriate parent. . . .

Trial Court Opinion, 8/24/15, at 8-10 (citations omitted).

      On April 9, 2015, BCCYS filed petitions to terminate Mother and

Father’s parental rights to T.S., M.S., Jr., and L.S. pursuant to 23 Pa.C.S. §

2511(a)(1) and (2). On April 21, 2015, the Court appointed counsel for the

children, issued notice to Father of his right to counsel, and provided Father

with an affidavit of destitution to complete if he desired free legal


                                     -3-
J-S24016-16




representation. There is no indication in the record that Father completed

the affidavit or requested the assistance of appointed counsel.      Instead,

Father retained Francis Walsh, Esquire, who entered his appearance on June

22, 2015. Following an evidentiary hearing, the orphans’ court entered an

order terminating Father’s parental rights to T.S., M.S., Jr., and L.S. These

appeals followed, which we consolidated sua sponte.

      Father failed to file statements of errors complained of on appeal

concurrent with his notices of appeal as directed by Pa.R.A.P. 1925(a)(2)(i).

Instead, twenty-two days after the appeals were filed, he submitted Rule

1925(b) statements that raised the identical complaint:

      The evidence presented against the . . . Father at the
      Termination of Parental [Rights] Hearing was insufficient to
      terminate his rights because the competence [sic] evidence did
      not show that [Father] abandoned, neglected, nor abused [T.S.,
      M.S., Jr., and L.S.].

Concise Statement of Matters Complained of on Appeal, 8/13/15, at 1.

      On September 13, 2015, Attorney Walsh filed an application with this

Court requesting a sixty-day extension of time to submit Father’s brief,

which was originally due on September 28, 2015.       Noting that the instant

consolidated appeals were designated as Children’s Fast Track cases, we

granted the request partially and extended the due date until October 16,

2015. Father failed to satisfy that deadline, and on November 24, 2015, we

entered an order directing counsel to file Father’s brief within fourteen days

or face potential sanctions.


                                    -4-
J-S24016-16




      Attorney Walsh failed to file Father’s brief by November 24, 2015.

Instead, on December 10, 2015, he filed a motion to withdraw the

consolidated appeals.    In that motion, Attorney Walsh averred that Father

refused to pay the costs associated with obtaining the notes of testimony

from the June 22, 2015 evidentiary hearing, ignored counsel’s repeated

attempts to contact him by telephone, and disregarded the efforts of

Father’s brother, Attorney Walsh’s client in an unrelated matter, to have

Father participate in this appeal.     After Attorney Walsh left Father a

telephone message advising him that he intended to seek the withdrawal of

these appeals if Father continued to avoid him, Father still refused to

establish contact.

      On December 15, 2015, this Court denied counsel’s motion to

withdraw the consolidated appeals, and instructed counsel to file a petition

to withdraw as counsel pursuant to Anders v. California, 386 US 738

(1967), if warranted, and to comply with the procedural dictates of Anders

and its progeny.     We mailed Father a copy of that order, but he did not

respond. On December 24, 2015, counsel for Father filed an Anders brief

and a petition to withdraw from representation. He avowed, “[Father] has

basically abandoned this appeal.” Anders brief at 10. This Court entered

an order on January 11, 2016, wherein it deferred the disposition of the

petition to this panel and notified Father directly that “he may file a brief

either on his own behalf or through newly retained counsel . . . no later than


                                     -5-
J-S24016-16




twenty-one (21) days from the date of this order.”            Per Curiam Order,

1/11/16, at 1. Father neglected to respond or file a merits brief.

       At the outset, we address Father’s failure to obtain the notes of

testimony and observe that the omission prevents our review of the issues

raised in the consolidated appeal.3            In Commonwealth v. Preston, 904

A.2d 1, 6–7 (Pa.Super. 2006) (en banc), this Court discussed the

significance of the certified record when addressing the merits of an

appellate argument. We explained,

              This Court cannot meaningfully review claims raised on
       appeal unless we are provided with a full and complete certified
       record. This requirement is not a mere “technicality” nor is this a
       question of whether we are empowered to complain sua sponte
       of lacunae[4] in the record. In the absence of an adequate
       certified record, there is no support for an appellant's arguments
       and, thus, there is no basis on which relief could be granted.

Id. at 6–7 (internal citations omitted).




____________________________________________


3
  As we may not address the merits of the appeal without first reviewing an
attorney’s request to withdraw, we generally dispose of Anders petitions at
the outset of our review. Commonwealth v. Rojas, 874 A.2d 638, 639
(Pa.Super. 2005). However, mindful of the fact that Attorney Walsh is
seeking to withdrawal based upon Father’s abandonment of this appeal, as
evinced by his refusal to contact counsel and confirm the request for the
notes of testimony, we discussed that issue first as a matter of judicial
convenience.
4
 Merriam-Webster.com defines lacuna as “a blank space or a missing part.”
See http://www.merriam-webster.com/dictionary/lacuna



                                           -6-
J-S24016-16



      As the appellant, it was Father’s fundamental responsibility to ensure

that the certified record contained all of the materials necessary for

appellate review.   Instantly, however, Father inexplicably failed to request

the notes of testimony from the June 22, 2015 hearing concerning the

termination of his parental rights to his three children. Pennsylvania Rule of

Appellate Procedure 1911 outlines the requirement to obtain transcripts for

appellate review as follows:


      (a) General rule. The appellant shall request any transcript
      required under this chapter in the manner and make any
      necessary payment or deposit therefor in the amount and within
      the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
      Rules of Judicial Administration (court reporters).

            ....

      (d) Effect of failure to comply. If the appellant fails to take
      the action required by these rules and the Pennsylvania Rules of
      Judicial Administration for the preparation of the transcript, the
      appellate court may take such action as it deems appropriate,
      which may include dismissal of the appeal.

Pa.R.A.P. 1911(a) and(d). Father neglected this obligation.

      Moreover, recognizing that an indigent parent should not be held

responsible for the costs associated with transcribing the evidentiary

hearing, we observe that the certified record confirms that Father was never

designated in forma pauperis (“IFP”) status in this appeal nor has he averred

that he is indigent at any point in the present orphans’ court proceedings.

See Pa.R.A.P. 551 (“A party who has been granted leave by a lower court to



                                    -7-
J-S24016-16



proceed in forma pauperis may proceed in forma pauperis in an appellate

court[.]”).   Similarly, there is no indication that Father advised Attorney

Walsh to request automatic approval of IFP status pursuant to Rule 552(d),

which provides (“If the applicant is represented by counsel who certifies on

the application or by separate document that the applicant is indigent and

that such counsel is providing free legal service to the applicant, the clerk of

the lower court shall forthwith enter an order granting the application.”).

Indeed, Father paid the $85.00 filing fee with his notice of appeal, and as

noted supra, the record is clear that Father neglected to complete the

affidavit of destitution that BCCYS served on him contemporaneously with its

notice of the present petition to involuntarily terminate his parental rights.

Thus, even to the extent that the cost associated with transcribing the notes

of testimony might have caused Father to cease litigating this appeal, that

circumstance does not excuse his inaction in light of his failure to seek IFP

status.

      Additionally, we note that Attorney Walsh was not obligated to pay for

the notes of testimony.    It is beyond cavil that a non-indigent defendant

bears the financial burdens associated with his criminal defense.          See

Commonwealth v. Novak, 150 A.2d 102, 109 (Pa. 1959) (“It is the client’s

responsibility and not the attorney’s to pay for the heavy costs of trial.”).

While Novak is a criminal case, considering the nature of the involuntary

termination proceedings, this principle applies equally, herein. Thus, absent

                                     -8-
J-S24016-16



the orphans’ court’s determination that Father could not afford to contest

BCCYS’s petition to terminate his parental rights, Father is required to fulfill

the financial obligations of his defense.

      Having addressed Father’s obligation to obtain the relevant notes of

testimony, we next discuss how that omission impedes our ability to conduct

meaningful appellate review of the orphans’ court’s order terminating his

parental rights. See Preston, supra at 6-7. Without the transcripts from

the evidentiary hearing, we cannot address Father’s challenge to the

sufficiency of the evidence supporting the orphans’ court’s determination,

the   only challenge    that he   raised in the    Rule   1925(b) statement.

Accordingly, the issue is waived. Commonwealth v. Little, 879 A.2d 293,

301 (Pa.Super. 2005) (appellant’s failure to provide reviewing court with

complete certified record results in waiver). As there is no basis on which

relief can be granted, we are constrained to affirm.

      Next, we address Attorney Walsh’s petition to withdraw in light of our

disposition herein.    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. We stated that counsel appointed to represent an indigent

parent on appeal from a decree involuntarily terminating parental rights

may, after a conscientious and thorough review of the record, petition this

Court for leave to withdraw from representation and submit an Anders

brief. Id. at 1275. In Commonwealth v. Santiago, 978 A.2d 349, 361

                                      -9-
J-S24016-16



(Pa. 2009), our Supreme Court altered our application of the Anders

briefing requirements to permit counsel to fully articulate his or her

conclusion that the appeal is frivolous. The Santiago Court did not change

the remaining procedural requirements that court-appointed counsel must

satisfy in requesting to withdraw from representation under Anders.

       Preliminarily, we highlight that counsel was not court appointed and

Father was never designated indigent.5 Anders and its progeny, including

In re V.E., applies only to petitions to withdraw filed by attorneys appointed

to represent indigent parties. See Anders, supra at 739 (addressing “the

duty of a court-appointed appellate counsel to prosecute a first appeal from

a criminal conviction); id. at 745 (“This procedure will assure penniless

defendants the same rights and opportunities on appeal—as nearly as is

practicable—as are enjoyed by those persons who are in a similar situation
____________________________________________


5
  We note that, in relation to the initial petition for termination that was
withdrawn during November 2013, the certified record includes the cover
sheet of a memo that a BCCYS caseworker sent to the orphans’ court
regarding Mother’s affidavit of destitution and her request for substitute
counsel in relation to that petition. The agency’s coversheet is tangentially
relevant herein because a box was checked on that form that indicated that
Father had been appointed counsel—although the area on the form where
counsel should have been identified was blank. That same form states that
Father was previously represented by Mary Favinger, Esquire, who,
curiously, is the attorney that Mother had requested to be appointed as her
substitute counsel and who was eventually appointed to represent Mother
during those brief proceedings before the orphans’ court in 2013. No other
document in the certified record suggests that Father was ever represented
by appointed counsel and nothing indicates that Attorney Walsh was
appointed by the orphans’ court.



                                          - 10 -
J-S24016-16



but who are able to afford the retention of private counsel.”); Santiago,

supra    (modifying      Pennsylvania’s        procedure   for   withdrawal   of   court-

appointed appellate counsel to impose obligation to explain why appeal is

frivolous ); and In re V.E., supra at 1275 (“we hold that appointed counsel

seeking to withdraw representation must submit an advocate's brief, as

contemplated in Anders”). Since Attorney Walsh was not appointed counsel

and Father was not designated IFP or determined to be an indigent parent in

this case, In re V.E., is not applicable.6

       Additionally, it is obvious that Attorney Walsh originally sought to

withdraw from representation due to Father’s utter disinterest and refusal to

pay for material necessary to litigate this appeal. Counsel filed the Anders

brief in response to the reference in our December 15, 2015 order that “if

appropriate” counsel may file a petition to withdraw as counsel pursuant to

Anders, Santiago, and In re V.E.. See Per Curiam Order, 12/15/15, at 1.

Attorney Walsh reasonably mistook our qualified reference to Anders and its

progeny, as a directive and he attempted to shoehorn his petition to

withdraw into the facially inapplicable parameters of those cases.
____________________________________________


6
  As the involuntary termination of parental rights is analogous to a criminal
proceeding, at least as it relates to the right to legal counsel, we note that
Attorney Walsh was required to file a motion to withdraw from
representation regardless of whether he was privately retained or court
appointed. See Commonwealth v. Librizzi, 810 A.2d 692 (Pa.Super.
2002) (“Counsel is also reminded that an appearance may be withdrawn
only by leave of court [pursuant to] Pa.R.Crim.P. 120.”).



                                          - 11 -
J-S24016-16



      Nevertheless, since alternative bases for withdrawal exist, Attorney

Walsh’s focus is not disastrous. We previously recognized, “[f]or a variety of

reasons, from ethical reasons to financial concerns, counsel properly may

seek to withdraw from representing a client.”     Commonwealth v. Keys,

580 A.2d 386, 387 (Pa.Super. 1990) citing Commonwealth v. Turner, 544

A.2d 927 (1988) (withdrawal for lack of merit); Commonwealth v.

Roman, 549 A.2d 1320, 1320-23 (1988) (withdrawal based on nonpayment

of legal fees).

      In Commonwealth v. Sweeney, 533 A.2d 473 (Pa.Super. 1987),

and Roman, supra, this Court addressed the proper inquiry when privately-

retained counsel seeks to withdraw from representation in a criminal case

due, at least partially, to nonpayment.      In Sweeney, supra, a criminal

defendant, Sweeney, retained an attorney to represent him through trial.

Sweeney was convicted of armed robbery, and after filing a notice of appeal

from the judgment of sentence, counsel filed with the trial court a petition to

withdraw.    The trial court denied the motion and “insisted that [counsel]

continue to represent Sweeney on appeal without appointment or further

compensation.” Id. at 477. On appeal, this Court concluded that privately

retained counsel was not required to continue to represent Sweeney without

compensation. We stated,

      [I]n the midst of its concern for Sweeney’s right to competent
      appellate counsel, the cost of transcripts and records to the
      taxpayers of Crawford County and the length of time elapsing

                                    - 12 -
J-S24016-16



      before any new counsel could familiarize himself with the case,
      the trial court . . . overlooked the one crucial factor which goes
      to the heart of the instant appeal and upon which appellant
      premised his plea to withdraw from further representation. That
      is, the trial court failed to consider the economics of
      appellant's continued representation.

Id. (emphasis added).

      Thereafter, we observed, “we have attempted, unsuccessfully, to

discover any case law, statute or rule of court which compels counsel, as

part of their obligations to the legal profession, to cast by the wayside all

economic considerations relating to the practice of law.”     Id.   Finally, we

rejected the alternative argument that, as “a member of the legal profession

. . . counsel [was required to] set aside monetary considerations in order to

further the interest of his client and those of the justice system.” Id. We

observed that, if forced representation was “the accepted norm in the legal

profession . . ., the Rules of Criminal Procedure adopted to establish the

procedure for representation of indigents[,] . . . the existence of public

defender organizations[,] legal aid societies[,] . . . and . . . court-

appointment programs would, indeed, be superfluous.” Id. at 477-478.

      Although the aspect of the Sweeney Court’s rationale that is most

relevant to the case at bar is the Court’s rejection of servitude, that was but

one component of our decision. We also contemplated ethical considerations

under the Code of Professional Responsibility and the facts that counsel: (1)

had been retained only to represent Sweeney through post-trial motions; (2)



                                    - 13 -
J-S24016-16



sought to minimize prejudice by offering an associate as substitute counsel

and preparing the notice of appeal; and (3) obtained the “implied

acquiescence” of his client that amounted to “an implicit discharge . . . from

further representation.”   Id. at 479.   Accordingly, we found that the trial

court abused its discretion in denying counsel’s motion to withdraw.

      Subsequently, in Roman, supra, we invoked the rationale of

Sweeney and a similar case, Commonwealth v. Scheps, 523 A.2d 363,

Pa.Super. 1987), to hold that a privately-retained attorney was entitled to

withdraw from representation in two drug cases because the client failed to

tender payment of $12,000 due for services rendered pursuant to a fee

agreement.    We found dipositive the primary conclusions of both the

Sweeney and Scheps Courts that a client’s failure to render payment was

grounds to permit the withdrawal of privately-retained counsel, especially

when counsel minimized the potential for prejudice by filing a requested

appeal to this Court, and the client expressly or implicitly consented to

withdrawal. Id. at 336-337.

      The facts of the foregoing cases are analogous to the present scenario.

Comparable to counsel in Roman and Sweeney, Attorney Walsh mitigated

prejudice by filing the requested notice of appeal from the order terminating

Father’s parental rights prior to seeking to withdraw. In addition, Attorney

Walsh discussed with Father the costs associated with the continued

litigation of his appeal and he sought to communicate with Father about

                                    - 14 -
J-S24016-16



paying for the notes of testimony.      Father not only refused to procure the

transcripts necessary for appellate review, but he also abandoned the appeal

by severing contact with Attorney Walsh. Father’s unqualified indifference,

as evinced by his failure to respond to our correspondence, thwarted

Attorney Walsh’s ability to draft a brief that addressed the merits of the

requested appeal.       Finally, by consistently rebuffing Attorney Walsh’s

numerous attempts to communicate, including the warning that counsel

would seek to withdraw the appeals if Father did not respond, is evidence

that Father tacitly consented to withdrawal.        Thus, just as the clients in

Roman, supra, and Sweeney, supra, failed to pay their privately-retained

attorneys for their continued representation, in the case at bar, Father, a

non-indigent parent, refused to pay for materials necessary to continue to

litigate his appeal and implicitly renounced his interest in the case.      The

rationale expressed in Roman and Sweeney is applicable to the instant

case, and while it is not dispositive, it is persuasive.

      Petition to withdraw from representation filed by Francis Walsh,

Esquire is granted. Decrees affirmed. Jurisdiction relinquished.

      Judge Musmanno joins the memorandum.

      President Judge Gantman Concurs in the Result.




                                      - 15 -
J-S24016-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




                          - 16 -
