Opinion
J-S70001-15 No. 1682 EDA 2015 No. 1683 EDA 2015
12-30-2015
IN RE: S.T.S., A MINOR APPEAL OF: M.S., FATHER IN RE: A.M.S., A MINOR APPEAL OF: M.S., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree May 7, 2015 in the Court of Common Pleas of Bucks County
Orphans' Court at No.: 2015-9016-36 Appeal from the Decree May 7, 2015 in the Court of Common Pleas of Bucks County
Orphans' Court at No.: 2015-9017-36 BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
In these consolidated appeals, M.S. (Father) appeals from the decrees of the Court of Common Pleas of Bucks County (trial court), entered May 7, 2015, that terminated his parental rights to his daughters, S.T.S., born in December of 2002, and A.M.S., born in January of 2000 (Children). Father's counsel has filed an application to withdraw as counsel. We grant counsel's petition to withdraw, and we affirm on the basis of the trial court's opinion.
Father filed a motion to have these appeals consolidated on June 18, 2015. This Court granted Father's motion on July 13, 2015.
Father was arrested on March 20, 2013, and charged with sexually assaulting A.M.S. Bucks County Children and Youth Social Services Agency (BCCY) took the Children into care that day pursuant to an emergency order. The Children have remained in the legal and physical custody of BCCY since that date. The trial court adjudicated the Children dependent on July 1, 2013.
The Children's mother is deceased.
On October 24, 2013, Father pleaded no contest to charges of rape of a child, rape by forcible compulsion, involuntary deviate sexual intercourse, aggravated indecent assault of a child, indecent assault, endangering the welfare of children and corruption of minors. The criminal court sentenced Father to an aggregate term of not less than twenty nor more than forty years' incarceration in a state correctional institution. Father's sentence prohibits him from any contact with A.M.S. An order of the trial court also prohibits Father from any contact with S.T.S. Father has had no contact with the Children since March 20, 2013, the day of his arrest.
Father did not attempt to revoke his plea, nor did he appeal his sentence. He did however, file for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. In his petition, which was still pending at the time of the hearing in this matter, Father claims ineffective assistance of plea counsel and prosecutorial misconduct.
In addition to the charges related to his daughter, charges of burglary and related offenses from 2011 are pending against Father in the Court of Common Pleas of Philadelphia County.
The Children have been living in the same foster home since they came into care, where they are doing "amazingly well." (N.T. Hearing, 5/07/15, at 8). Their foster parents, who wish to adopt the Children, continue to meet the Children's needs. ( See id . at 9). The Children strongly wish to be adopted by their foster parents. ( See id . at 10).
BCCY filed its petitions to terminate Father's parental rights on February 5, 2015. The trial court held hearings on those petitions on May 7, 2015, and at their conclusions, it entered its decrees terminating Father's parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Father filed his notices of appeal and statements of errors complained of on appeal on May 18, 2015. See Pa.R.A.P. 1925(a)(2). The trial court filed two identical opinions, one regarding S.T.S., and one supporting its decision as to A.M.S. See Pa.R.A.P. 1925(a).
On August 21, 2015, Father's attorney, Stuart Wilder, filed a petition to withdraw his representation pursuant to Anders v. California , 386 U.S. 738 (1967), 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. See In re V.E., supra at 1275. We stated that counsel appointed to represent an indigent parent on a first 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 representation and must submit an Anders brief. See id.
Before reaching the merits of the issues raised in the Anders brief, we must address counsel's request to withdraw. See Commonwealth v. Rojas , 874 A.2d 638, 639 (Pa. Super. 2005) (stating, "[w]hen faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw[]") (citation omitted).
To withdraw pursuant to Anders , counsel must perform each of the following tasks:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. See id.
Our Supreme Court, in Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), stated that an Anders brief must comply with the following factors:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , supra at 361.
(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.
With respect to the third requirement of Anders , that counsel inform the defendant 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). We may not address the merits of the appeal without first reviewing the petition to withdraw. See id.
Herein, Attorney Wilder's petition to withdraw from representation states he has made a conscientious review of the record and has concluded that the appeal is wholly frivolous. ( See Petition for Leave to Withdraw, 8/21/15, at unnumbered pages 1-2). In addition, on August 21, 2015, Attorney Wilder mailed Father (1) a copy of the petition to withdraw; (2) a copy of the Anders brief; and (3) a letter advising Father of his rights to proceed pro se or to retain private counsel if the petition is granted and to raise any additional issues that he deems worthy of consideration. ( See id. at Exhibit A). On August 24, 2015, Attorney Wilder filed the Anders brief in this Court setting forth one issue that he believed might arguably support Father's appeal. Thus, counsel has satisfied the procedural requirements of Anders , and we must decide if counsel properly found that Appellant's claims are wholly frivolous. See S.M.B., supra at 1237.
The Anders brief raises the following questions on appeal:
A. Should Appellant's counsel be permitted to withdraw his appearance because the appeal is wholly frivolous?(Father's Brief, at 3).
B. Were the Appellant's parental rights terminated prematurely before he had an opportunity to complete his post-conviction challenge to his criminal conviction?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that there are no issues of arguable merit. The trial court opinion properly disposes of the issue presented regarding the termination of Father's parental rights. ( See Trial Court Opinion, 6/30/15, at 4-10) (finding that BCCY clearly and convincingly established the criteria of 23 Pa.C.S.A. § 2511(a) and (b) where it proved: (1) Father has been unable to provide essential care and subsistence needs for the Children for more than two years since his arrest, and will continue to be unable to do so for the indefinite future; (2) the Children have been in care for six months or more; (3) the Children have been in care for at least twelve months; (4) the reasons for placement continue to exist and cannot be remedied within a reasonable time; and (5) the termination of Father's parental rights is in the Children's best interest because of the court-imposed preclusion of Father's contact with them, their bond with their foster parents, and foster parents' desire to adopt them). Accordingly, we affirm the decrees of the Court of Common Pleas of Bucks County and grant counsel's petition to withdraw his representation.
We note that because the trial court filed two identical opinions in this matter we only have attached the opinion that references S.T.S., but the court made the exact same findings in reference to both Children. --------
Decrees affirmed. Counsel's petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/30/2015
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