J-S54017-14

2014 PA Super 258

IN THE INTEREST OF: X.J., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: D.A., MOTHER

No. 697 MDA 2014

Appeal from the Decree April 21, 2014

In the Court of Common Pleas of Lancaster County

Orphans' Court at No(s): 36-2013-1861

BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION BY MUNDY, J.: FILED NOVEMBER 20, 2014

Appellant, D.A. (Mother), appeals from the April 21, 2014 decree, 

involuntarily terminating her parental rights to her minor child, X.J., born in 

July 2010.1 In addition, Mother’s counsel has filed a petition to withdraw, 

together with an Anders2 brief, averring the appeal is frivolous. After 

careful review, we deny counsel’s petition to withdraw, vacate the decree, 

and remand for further proceedings.

We summarize the relevant factual and procedural history of this case 

as follows. X.J. was removed from Mother’s care as a result of Mother’s 

alleged drug use, and following an incident in which X.J. was left 

____________________________________________

1 The decree also terminated the parental rights of X.J.’s biological father, 

H.W.R. (Father). Father is not a party to this appeal.

2 Anders v. California, 386 U.S. 738 (1967).
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unsupervised for an extended period of time. Because of Mother’s neglect, 

X.J. fell out of a bassinet/playpen and fractured his arm. The Lancaster 

County Children and Youth Social Service Agency (the Agency) filed a 

petition for temporary custody of X.J., along with a shelter care application 

and motion for a finding of aggravated circumstances. X.J. was adjudicated 

dependent on May 29, 2013.3 Mother appealed, and a panel of this Court 

affirmed the juvenile court’s order on November 7, 2013. See In re X.J., 

91 A.3d 1276 (Pa. Super. 2013) (unpublished memorandum). Mother did 

not file a petition for allowance of appeal with our Supreme Court. 

Meanwhile, on July 25, 2013, the Agency filed a petition to terminate 

Mother and Father’s parental rights to X.J. The orphans’ court held a 

termination hearing on March 17, 2014. Mother did not appear at said 

hearing. The orphans’ court issued a decree terminating Mother’s parental 

rights, dated March 17, 2014, and entered April 21, 2014. Also on April 21, 

2014, Mother filed a notice of appeal, along with a concise statement of 

____________________________________________

3

For purposes of dependency proceedings, Mother was represented by 

Caprice Hicks Bunting, Esquire (Attorney Bunting), who currently represents 

Mother in this appeal. As we explain infra, Attorney Bunting was permitted 

to withdraw as counsel on October 22, 2013, and was reappointed by the 

juvenile court on May 14, 2014, retroactive to April 1, 2014. See Praecipe 

for Withdrawal of Appearance, 10/22/13, at 1; Trial Court Order, 5/14/14, at 

1.
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errors complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(a)(2)(i).4

In her Anders brief, Attorney Bunting raises the following issue on 

Mother’s behalf.

Whether the [orphans’ c]ourt erred when it 

terminated the parental rights of the biological 

Mother[?]

Anders Brief at 11.5

When counsel files an Anders brief, this Court may not review the 

merits without first addressing counsel’s request to withdraw. 

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013). 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. 

____________________________________________

4 We note that Mother’s notice of appeal was filed on April 21, 2014, more 

than 30 days after the date on the orphans’ court decree. See Pa.R.A.P. 

903(a) (stating, “[a] notice of appeal ... shall be filed within 30 days after the 

entry of the order from which the appeal is taken[]”). The docket reflects 

that, while the trial court issued its decree on March 17, 2014, the case file 

for the instant matter was later discovered “in the pending drawer 

undocketed,” and the decree remained undocketed until April 21, 2014. See 

Orphans’ Court Docket at 2. Thus, the date of entry for the trial court’s 

decree was April 21, 2014, and Mother’s notice of appeal was timely filed. 

See id. at 108(b) (stating, “[t]he date of entry of an order in a matter 

subject to the Pennsylvania Rules of Civil Procedure shall be the day on 

which the clerk makes the notation in the docket that notice of entry of the 

order has been given as required by Pa.R.Civ.P. 236(b)[]”).

5 We note Mother filed a pro se response to the Anders brief on November 

5, 2014. In light of our disposition, we need not consider the issues raised 

therein.
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Id. at 1275. In these cases, counsel appointed to represent an indigent 

parent on a first appeal from a decree involuntarily terminating parental 

rights may petition this Court for leave to withdraw representation and 

submit an Anders brief. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 

2004). We review counsel’s Anders brief for compliance with the 

requirements set forth by our Supreme Court in Commonwealth v. 

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

[W]e hold that in the Anders brief that 

accompanies court-appointed counsel’s petition to 

withdraw, counsel must: (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. at 361.

Additionally, pursuant to Commonwealth v. 

Millisock, 873 A.2d 748 (Pa. Super. 2005) and its 

progeny, “[c]ounsel also must provide a copy of the 

Anders brief to his client. Attending the brief must 

be a letter that advises the client of his right to: (1) 

retain new counsel to pursue the appeal; (2) proceed 

pro se on appeal; or (3) raise any points that the 

appellant deems worthy of the court[’]s attention in 

addition to the points raised by counsel in the 

Anders brief.” 

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 
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above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

In the present matter, Attorney Bunting states in her petition to 

withdraw that she has conducted a conscientious examination of the record, 

and that Mother’s appeal is wholly frivolous. Attorney Bunting indicates that 

she has sent Mother a letter informing her of her right to obtain new 

counsel, or to proceed pro se, and explaining to her that she may raise any 

additional arguments with this Court. A copy of this letter is attached to the 

petition to withdraw. In her Anders brief, Attorney Bunting sets forth the 

relevant history of the case, as well as her reasons for concluding that 

Mother’s appeal is wholly frivolous. Attorney Bunting states in her petition 

that a copy of this brief was forwarded to Mother. Accordingly, we conclude 

that Attorney Bunting has complied with the technical requirements of 

Anders, Santiago, and Millisock. We therefore proceed with our 

independent review of the record and the issue presented on Mother’s 

behalf. 

Our review of the record reveals an issue pertaining to Mother’s lack of 

representation during the termination proceedings below. The Adoption Act 

controls termination of parental rights proceedings. See generally 23 
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Pa.C.S.A. §§ 2511-2513. It provides that a court “shall appoint counsel for 

a parent whose rights are subject to termination in an involuntary 

termination proceeding if, upon petition of the parent, the court determines 

that the parent is unable to pay for counsel or if payment would result in 

substantial financial hardship.” Id. § 2313(a.1); see also In re J.T., 983 

A.2d 771, 774 (Pa. Super. 2009) (stating, “an indigent parent in a 

termination of parental rights case has a constitutional right to counsel ... 

[and t]he right to counsel in parental termination cases is the right to 

effective assistance of counsel even though the case is civil in nature[]”) 

(citations omitted). An indigent parent in termination proceedings is 

likewise entitled to be advised of that right. In re Adoption of R.I., 312 

A.2d 601, 603 (Pa. 1973). This Court has held that when a party “was 

denied [her] right to counsel—or failed to properly waive that right—this 

Court is required to raise this error sua sponte and remand for the PCRA 

court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 

1290 (Pa. Super. 2011). In light of the statutory and constitutional right at 

stake, we conclude the principle enunciated in Stossel is appropriate in 

termination of parental rights cases.

In In re J.N.F., 887 A.2d 775 (Pa. Super. 2005), this Court held, 

consistent with the text of Section 2313(a.1), that the parent must request a 

court-appointed attorney once notified of the requirement to do so. Id. at 

780. In that case, this Court concluded that the father, who was 
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incarcerated, was provided with adequate notice that he was required to 

affirmatively request an attorney.

The appointment of counsel for indigent 

parents in termination proceedings is controlled by 

23 Pa.C.S.A. § 2313(a.1), which states, in pertinent 

part, the following:

(a.1) PARENT.—The court shall appoint 

counsel for a parent whose rights are subject 

to termination in an involuntary termination 

proceeding if, upon petition of the parent,

the court determines that the parent is unable 

to pay for counsel or if payment would result in 

substantial financial hardship.

(emphasis added).

In the present case, the original termination 

petition contained a notice that stated the following:

You have a right to be represented at the 

hearing by a lawyer; however, it is not 

necessary to have a lawyer at this hearing. A 

court-appointed attorney will be assigned to 

represent you if you cannot afford legal help. 

The Family/Orphans' Court Administrator will 

be present at this hearing. She will give you an 

application for request of a court-appointed 

attorney. This attorney will represent you at 

your [termination hearing]. If you have any 

questions, contact [the Family/Orphans' Court 

Administrator].

See Notice, 9/4/2004.

Id. This Court concluded that the orphans’ court was not required to 

appoint counsel because the father did not request court-appointed counsel 

after he received notice of his right to do so. Id.
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However, in this case, Mother was not advised of her right to counsel 

in the termination proceeding. Neither the termination petition, nor the 

orphans’ court’s preliminary decree contained any type of notice provision 

described in In re J.N.F. Furthermore, the certified record does not contain 

any indication that Mother was served with any of the filings in the 

termination proceedings below, except for the final termination decree that 

is the subject of this appeal. Since Mother was never notified of the 

proceedings against her, her right to counsel, or of her obligation to request 

the same, we deem the certified record’s silence on Mother’s application for 

counsel immaterial for the purposes of this appeal. Based on these 

considerations, we conclude that In re J.N.F. does not present an 

impediment to our decision in this case.

The certified record reveals that Mother was represented by counsel 

solely in the dependency proceedings from approximately October 15, 2012 

to October 22, 2013.6 Mother was neither advised of her right to counsel in 

the termination proceedings, nor afforded legal representation at any time in 

the termination proceedings in orphans’ court. The orphans’ court 

____________________________________________

6 We note that the cover pages of the October 21, 2013 juvenile court and 

December 9, 2013 orphans’ court hearings list an appearance of Attorney 

Bunting on Mothers’ behalf. However, our review of the proceedings reveal 

that Attorney Bunting was not present. This is consistent with the certified 

record, as Attorney Bunting was permitted to withdraw from representing 

Mother for dependency proceedings on October 22, 2013 and there is no 

documentation substantiating counsel’s representation of Mother for the 

termination proceedings.
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conducted its termination hearing on March 17, 2014. Mother was not 

present or represented by an attorney at this hearing. Counsel for the 

Agency inaccurately indicated during the hearing that Mother’s “prior counsel 

... was here earlier.” N.T., 3/17/2014, at 4. In her Anders brief, Attorney 

Bunting correctly avers that she was no longer representing Mother at the 

time of the termination hearing.7 See Anders Brief at 13 (stating, “[p]rior 

to the termination hearing, specifically on October 21, 2013, the court was 

aware Mother no longer had counsel. The record indicates Mother attempted 

to qualify for court appointed counsel that day but was unsuccessful[]”) 

(citation omitted). The certified record reflects that Mother was without 

counsel during a dependency review hearing on October 21, 2013. 

Equally troubling as the lack of representation and/or notice thereof is 

the lack of service upon the Mother of the orphans’ court scheduling orders. 

____________________________________________

7 Our review of the certified record reveals this assertion is correct. The trial 

court granted Attorney Bunting’s request to withdraw for the purposes of 

dependency proceedings on October 22, 2013. Praecipe for Withdrawal of 

Appearance, 10/22/13, at 1. Furthermore, Attorney Bunting was 

reappointed to represent Mother by the trial court, on the trial court’s 

dependency docket number, as of April 1, 2014. Trial Court Order, 5/14/14, 

at 1. A dependency review hearing transcript from October 21, 2013 reveals 

that Mother attempted to re-qualify for court-appointed counsel, but did not 

have all of the necessary paperwork. The certified record does not reveal 

any discussion of appointing counsel for mother regarding the proceedings 

seeking to terminate her parental rights. The trial court told Mother that she 

was required to re-apply for court-appointed counsel at each stage of 

dependency proceedings. See N.T., 10/21/13, at 4. It is unclear what the 

legal basis of that statement is, but we need not resolve this ancillary issue 

for the purposes of this appeal.
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As noted above, none of the orphans’ court’s orders scheduling the various 

termination hearings in this case listed Mother as being served. At the 

termination hearing held on December 9, 2013, which was continued, 

counsel for the Agency told the orphans’ court that Attorney Bunting was still 

representing Mother. N.T., 12/9/13, at 4. Moreover, Attorney Bunting was 

listed as Mother’s attorney of record on the affidavit of service of notice 

produced by the Agency. Attached to said affidavit is a photocopy of the 

letter sent to Mother notifying her of the March 17, 2014 termination hearing 

date.8 The letter also notes that a copy was sent to Attorney Bunting. 

____________________________________________

8 We also note that the record reveals that service of notice of the 

termination hearings was improper in this case. The Adoption Act mandates 

that an individual whose parental rights may be terminated must be served 

with notice of an upcoming termination hearing. 23 Pa.C.S.A. § 2513(b). 

Mother’s termination hearing had previously been scheduled for September 

23, 2013. The orphans’ court set forth in a preliminary decree entered July 

26, 2013, that Mother must be served “either by personal service or at the 

address set forth in the [termination p]etition, by certified mail, return 

receipt requested.” By an order entered October 21, 2013, the orphans’ 

court continued the hearing to December 9, 2013, and directed that “the 

Agency is required to make service on the parties by first class mail only.” 

Orphans’ Court Order, 10/21/13, at 1. As noted above, Mother was not 

listed as served with this order by the orphans’ court. On December 9, 

2013, the orphans’ court again continued the termination hearing, and the 

Agency requested that the court permit service by first class mail. N.T., 

12/9/2013, at 4. The orphans’ court granted the Agency’s request by an 

order entered on December 11, 2013. Mother was not listed as being 

served by the orphans’ court with this order either.

At the beginning of Mother’s termination proceedings, counsel for the 

Agency stated that Mother had been served with notice of the hearing date 

by first-class mail. N.T., 3/17/2014, at 3. Counsel marked, and later 

entered into evidence, an affidavit of service of notice. Id. at 4, 16. The 

(Footnote Continued Next Page)
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Although the Agency believed that Mother was represented by Attorney 

Bunting, as we have explained, the certified record demonstrates that 

Mother was unrepresented at this time. Furthermore, our review of the 

record reveals there were no orders appointing counsel for Mother for the 

purposes of the termination proceedings, nor evidence of any notice to 

Mother of her right to counsel.

Thus, the certified record reveals that Mother did not receive counsel 

for the purposes of termination proceedings, even though she was entitled 

to representation. See, e.g., Stossel, supra; In re J.T., supra. Nor does 

the record indicate that Mother was ever advised of her right to counsel for 

termination proceedings. See In re Adoption of R.I., supra. Therefore, 

we believe the best course of action is to remand this case for a new 

termination hearing, before which the orphans’ court shall advise Mother of 

her counsel rights, appoint counsel for Mother, or affirmatively determine 

that Mother does not qualify for counsel.

Based on the foregoing, we conclude that Mother’s right to counsel 

was violated in the termination proceedings below. Accordingly, counsel’s 

petition to withdraw is denied, the orphans’ court’s April 21, 2014 decree is 

(Footnote Continued) _______________________

notice, which is included in the certified record, indicates that Mother was 

served by first class mail at her address in Elizabethtown, Pennsylvania, on 

January 8, 2014. We remind the Agency and the orphans’ court that the 

Orphans’ Court Rules only allow service “by personal service, service at his 

or her residence on an adult or member of the household, or by registered 

or certified mail to his or her last known address.” Pa.O.C.R. 15.6(a).
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vacated, and the case is remanded for further proceedings, consistent with 

this opinion. 

Decree vacated. Case remanded. Petition to withdraw as counsel 

denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2014