J-S52012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF: J.B.D.E.                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
    APPEAL OF: T.R., MOTHER
                                                      No. 569 MDA 2018


                 Appeal from the Decree Entered March 7, 2018
                In the Court of Common Pleas of Dauphin County
                            Orphans' Court at No(s):
                                  169 AD 2017
                            CP-22-DP-0000093-2016


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 23, 2018

        T.R. (“Mother”) appeals from the decree entered on March 7, 2018, in

the Court of Common Pleas of Dauphin County, which involuntarily terminated

her parental rights to her minor child, J.B.D.E. (“Child”), born in March of

2016.1 Additionally, Mother’s counsel has filed a petition to withdraw and a

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 Upon review, we

deny counsel’s petition to withdraw, remand with instructions and retain

jurisdiction.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The trial court entered a separate decree that same day terminating the
parental rights of Child’s father, H.S.E. Father did not file an appeal.

2Neither the Agency nor the guardian ad litem has submitted responsive briefs
with this Court.
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     The trial court summarized the factual and procedural history of this

matter as follows:

     In November 2015, the Dauphin County Social Services for
     Children and Youth (“Agency”) began providing services to Mother
     following a report from a pediatrician’s office that Mother
     appeared dazed and confused during an appointment for her three
     year old. Mother’s two children were deemed dependent and
     placed in kinship foster care. Five months pregnant with J.B.D.E.
     at the time, Mother tested positive for PCP. Mother told case
     workers that her use of PCP did not affect her ability to parent.
     Throughout the pregnancy, Mother’s obstetrician urged her to
     stop her drug use.

     At the time of J.B.D.E.’s birth [i]n March [of] 2016, the Agency
     received a referral from hospital staff based upon Mother’s
     statement that she could not breast feed J.B.D.E. because she
     used alcohol and PCP during her pregnancy.           J.B.D.E. was
     admitted to the neonatal intensive care unit because of serious
     medical problems caused by Mother’s substance abuse. On March
     21, 2016, the Agency filed an emergency Dependency Petition.
     Upon discharge from the hospital, J.B.D.E. was placed in a
     Dauphin County Families United foster home. Within one week of
     J.B.D.E.’s birth, Mother tested positive for PCP. On April 6, 2016,
     J.B.D.E. was adjudicated dependent.

     The Juvenile Court ordered that Mother complete the following
     objectives:

           1. Attend all court hearings, Agency meetings and treatment
           plan meetings;
           2. Sign all release of information forms requested by the
           Agency;
           3. Notify the Agency within 24 hours of new residence or
           new contact information;
           4. Complete a drug and alcohol evaluation and follow
           through with any and all recommendations;
           5. Provide three urine screens to the Agency per week;
           6. Notify the Agency caseworker of any scheduled
           evaluations;
           7. Participate in the Holistic Family Support Program;



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           8. Complete a psychological evaluation and follow through
           with any recommendations;
           9. Participate in and complete a parenting assessment in
           order to assess if Mother has the capability to provide a safe
           and stable living environment.

     (Petition for Involuntary Termination of Parental Rights, para. ccc
     (i- ix)).

     On June 20, 2016, Mother was incarcerated related to her
     occupying a stolen vehicle. Mother remained incarcerated until
     June 30, 2016. Upon her release, Mother entered an inpatient
     drug and alcohol treatment program, which she left against
     medical advice on August 12, 2016.           Mother was again
     incarcerated in November 2016 for violation of bail conditions.

     On February 28, 2017, Mother was arrested and found in
     possession of a firearm. On July 11, 2017, Mother pled guilty to
     firearms and drug charges and [was] sentenced to nine to
     twenty[-]three months to be served in the Dauphin County Work
     Release Center. Mother was released from the Work Release
     Center on December 14, 2017. Following release, on January 25,
     2018, Mother tested positive for PCP.

     Mother failed to complete any inpatient or outpatient drug and
     alcohol program, or psychological evaluation. Mother participated
     in supervised visitation while not incarcerated. Because of her
     incarceration, Mother failed to comply with services offered to
     assist with housing.

     J.B.D.E. has lived in the same foster home since discharge from
     the hospital. He is developmentally delayed. J.B.D.E. requires a
     feeding tube and suffers seizures related to Fetal Alcohol
     Syndrome.       J.B.D.E.’s medical conditions require constant,
     intensive caretaking. J.B.D.E. sees specialists several times each
     month, or more frequently if he becomes ill. The foster parents
     have received instruction from the medical providers to care for
     J.B.D.E.’s significant medical conditions.

     J.B.D.E. is bonded with his foster parents and has made
     tremendous progress under their care and has begun to walk,
     although not previously expected to do so.




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       J.B.D.E. has never lived with Mother. Mother has never provided
       any essential parental care.      Because of Mother’s lack of
       experience in handling J.B.D.E.’s seizures, the foster parents
       attend Mother’s visitation.    J.B.D.E. has undergone multiple
       surgeries.      Mother never visited J.B.D.E. during any
       hospitalization. Mother has never met with medical providers to
       obtain information as to how to care for J.B.D.E.’s needs.

Trial Court Opinion, 5/22/18, at 1-4 (citations to the record omitted).

       On December 29, 2017, the Agency filed the petition to involuntarily

terminate Mother’s parental rights.            The termination hearing was held on

March 6, 2018. After all evidence was submitted, the court announced its

decision to grant the Agency’s petition to terminate Mother’s parental rights

under 23 Pa.C.S. § 2511(a)(1), (2) and (b) and to change the goal for Child

to adoption. On April 3, 2018, Mother filed the instant appeal. Then, on June

22, 2018, Mother’s counsel filed an Anders brief.3            Counsel’s petition to

withdraw was filed on July 6, 2018, after counsel was directed to do so by

order of this Court, dated July 2, 2018. Mother has not responded to counsel’s

petition.

       Before reaching the merits of Mother’s appeal, we must first address

counsel’s request to withdraw.         See Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005) (“‘When faced with a purported Anders brief, this

Court may not review the merits of the underlying issues without first passing


____________________________________________


3 Counsel’s statement that there are no non-frivolous matters that can be
raised on appeal is accepted in lieu of a concise statement of errors complained
of on appeal. See Commonwealth v. Goodwin, 928 A.2d 287, 293 (Pa.
Super. 2007); see also Pa.R.A.P. 1925(c)(4).

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on the request to withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)). “In In re V.E., 417 Pa. Super. 68, 611 A.2d

1267 (1992), this Court extended the Anders principles to appeals involving

the termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super.

2014). 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.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)). 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.” Commonwealth

v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      Additionally, an   Anders    brief   must   comply   with the   following

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



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      (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.

Santiago, 978 A.2d at 361.

      In the instant matter, counsel has filed a petition to withdraw, certifying

that she has reviewed the case and determined that Mother’s appeal is wholly

frivolous. Counsel has attached to her brief and to her petition to withdraw a

copy of her letter to Mother, advising her that she may obtain new counsel or

raise additional issues pro se.      The brief that counsel filed with this Court

includes a summary of the history and facts of the case and identifies one

issue, which is stated as follows:

      Did the trial court abuse its discretion[] or commit an error of law
      by determining it was in the [Child’s] best interest to have
      Mother’s parental rights terminated by clear and convincing
      evidence?

Anders brief at 9.

      However, counsel’s assessment as to why this issue is frivolous does not

refer to the best interests of Child. Rather, the argument section of the brief

only discusses Mother’s lack of compliance with the services that were offered

to her by the Agency.      Specifically, the brief addresses Mother’s lack of

progress with her substance abuse, housing, mental health treatment, and

her failure to complete a parenting assessment. None of counsel’s discussion

in the argument section of the Anders brief relates to any consideration of

the needs and welfare of Child. We, therefore, are compelled to conclude that

counsel has not complied with the requirements of Anders or for that matter


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with the normal procedure associated with an argument that addresses the

issue raised as enumerated in the Pennsylvania Rules of Appellate Procedure.4

       Accordingly, we must deny counsel’s petition to withdraw. We remand

for counsel to either submit a corrected Anders brief or an advocate’s brief

within thirty days of the date this memorandum is filed.

       Petition to withdraw denied.            Case remanded with instructions.

Jurisdiction retained.




____________________________________________


4In light of the fact that we conclude counsel has failed to substantially comply
with the Anders and Santiago requirements, we are unable to proceed to
review the issue as it is presented in the Anders brief. Moreover, we are
unable to conduct our independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel.                  See
Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015).

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