J-S70037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.C., A 

MINOR

APPEAL OF: A.C., IV

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 712 MDA 2017

Appeal from the Decree March 24, 2017

In the Court of Common Pleas of Luzerne County 

Orphans' Court at No(s): A-8497

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 28, 2017

A.C., IV, (“Father”) appeals from the March 24, 2017 decree in the Court 

of Common Pleas of Luzerne County involuntarily terminating his parental 

rights to his daughter, B.C., born in January of 2006.1 Father’s counsel has 

filed a petition for leave to withdraw as counsel and a brief pursuant to Anders 

v. California, 386 U.S. 738 (1967). Upon review, we deny counsel’s petition 

and remand this case for a proper concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b) and a compliant Anders brief or an 

advocate brief.

We summarize the relevant factual and procedural history as follows. 

B.C. was removed from Mother on March 27, 2015, when she was nine years 

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1 By decree dated March 13, 2017, the court involuntarily terminated the 

parental rights of M.S. (“Mother”). Mother did not file a notice of appeal, and 

she is not a party to this appeal.
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old, and placed in the custody of Luzerne County Children and Youth Services 

(“CYS”). Trial Court Opinion, 5/24/17, at 3. B.C. resides in kinship care with 

her step-grandparents. Id. At the time of B.C.’s placement, Father was 

incarcerated. Id. (citation to record omitted). 

On November 3, 2016, CYS filed a petition for the involuntary 

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), 

(2), (5), (8), and (b). An involuntary termination hearing occurred on March 

3, 2017, during which CYS amended the petition against Father to proceed 

under 23 Pa.C.S. § 2511(a)(1) and (b) only. CYS presented the testimony of 

its caseworker, Lynn Lesh. Father, who was represented by court-appointed 

counsel, testified on his own behalf. 

By decree dated March 13, 2017, the orphans’ court involuntarily 

terminated Father’s parental rights.2 On April 20, 2017, the court appointed 

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2 We observe that the docket entries in the Court of Common Pleas of Luzerne 

County do not comply with the rules regarding entry of orders. See Pa.R.A.P. 

301(a)(1); Pa.R.A.P. 108(b); Pa.R.C.P. 236(b). We caution the Luzerne 

County Court of Common Pleas to comply with the relevant rules for entry of 

orders so that appeal periods are triggered. See Frazier v. City of 

Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (citations omitted) (“Thus, 

pursuant to the express terms of the rules, an order is not appealable until it 

is entered on the docket with the required notation that appropriate notice 

has been given”). 

 Because the subject decree was not entered on the trial court docket, the 

appeal period in this case was never formally triggered. It would be, at this 

juncture, a waste of judicial resources to remand the matter solely for the 

filing of Rule 236(b) notice. Accordingly, in the interest of judicial economy, 

we regard as done what should have been done and address counsel’s request 

to withdraw.
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new counsel, Keith Hunter, Esquire, to represent Father. On April 24, 2017, 

Father, through counsel, filed a notice of appeal and a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

The orphans’ court filed its Rule 1925(a) opinion on May 24, 2017. On August 

29, 2017, counsel filed a petition for leave to withdraw as counsel and an 

Anders brief.3

We may not address the merits of the appeal without first reviewing the 

request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. 

Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. 

Super. 1997)). Therefore, we review Attorney Hunter’s petition at the outset.

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. 

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3 Attorney Hunter raises the following issues in his Anders brief:

1. Whether, upon a careful and conscientious review of the 

record, counsel believes that the current appeal is wholly without 

merit[?]

2. Whether the Court should appoint new counsel to pursue 

the appeal[?]

Anders brief at 4.
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In Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), our Supreme 

Court altered our application of the Anders briefing requirements to require 

counsel to fully articulate the legal basis for his conclusion that the appeal is 

frivolous.

In order to be permitted to withdraw, counsel must meet three 

procedural requirements: 1) petition for leave to withdraw and state that, 

after making a conscientious examination of the record, counsel has 

determined that the appeal is 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, 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).

Attorney Hunter’s petition to withdraw states that he “filed the appeal 

with two days until the expiration of the appeal deadline, and did not have 

sufficient time to review the record for grounds on appeal.”4 Petition, 8/29/17, 

at ¶ 2. As such, Attorney Hunter did not file a statement of intent to file an 

Anders brief in lieu of filing a concise statement.5 As we have observed, he 

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4 As stated above, because the decree was not entered on the trial court 

docket, the appeal period was never triggered. See Frazier v. City of 

Philadelphia, supra. Therefore, to the extent Attorney Hunter believed he 

had two days to file the appeal before the appeal period expired, he was 

mistaken.

5 This Court has explained as follows.
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timely filed a concise statement pursuant to Rule 1925(a)(2)(i) and (b), 

wherein he asserted four errors. In his first and second assertions, Attorney 

Hunter alleged that the court erred and/or abused its discretion in accepting 

Father’s voluntary relinquishment of his parental rights. The court stated in 

its Rule 1925(a) opinion, “Father never voluntarily relinquished his parental 

rights.” Trial Court Opinion, 5/24/17, at 2. Indeed, it was Mother, not Father, 

who relinquished her parental rights. Although Attorney Hunter subsequently 

states in his petition to withdraw that he “fully and conscientiously reviewed 

the record” and “believes that the appeal is wholly without merit,” he did not 

request to amend the concise statement to correct these incorrect assertions 

of error. Petition, 8/29/17, at ¶ 3. Based on these faulty assertions, we 

discern no support for counsel’s request to withdraw.

Further, the court involuntarily terminated Father’s parental rights 

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). In his Anders brief, Attorney 

Hunter contends that any issue involving Section 2511(a)(1) is “wholly 

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[Pa.R.A.P.] 1925(c)(4) creates an exception to the general rule of 

waiver in criminal cases when counsel files a brief pursuant to 

Anders. In such an instance[,] a concise statement of errors 

complained of is not required. Rather, counsel ‘may file of record 

and serve on the judge a statement of intent to file’ an Anders

brief ‘in lieu of filing a Statement.’

In re J.T., 983 A.2d 771, 773-774 (Pa. Super. 2009). We held that this 

procedure is applicable in parental termination cases. Id. at 774. 
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without merit.” However, in his remaining assertions in the concise 

statement, Attorney Hunter did not preserve a challenge to Section 

2511(a)(1).

6

 It is well-established that any issue not raised in a concise 

statement is waived on appeal. See Dietrich v. Dietrich, 923 A.2d 461, 463 

(Pa. Super. 2007); see also Commonwealth v. Flores, 909 A.2d 387, 389 

(Pa. Super. 2006) (stating, “when an appellant fails to file a proper 1925(b) 

statement, there will be waiver even if the trial court writes an opinion.”) 

Moreover, in the Anders context, this Court has explained, “Anders seeks to 

ensure that an attorney, while seeking to withdraw, will nonetheless preserve 

the arguable issues that the client might want to pursue pro se or by new 

counsel. . . . As part of this obligation to preserve issues, Anders counsel 

must file a proper 1925(b) statement.” Commonwealth v. Flores, 909 A.2d 

at 390. Accordingly, we remand this case for the filing of a Rule 1925(b) 

statement that properly preserves all issues to be raised before this Court. 

See id. at 392 (holding that, where counsel preserved none of the issues 

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6 The concise statement provides, in relevant part, as follows.

3. The [orphans’] [c]ourt abused its discretion, committed an 

error of law, and/or there was insufficient evidentiary support for 

the [c]ourt’s decision that the best interests of the minor child 

would be served by terminating [Father's] parental rights.

4. [CYS] acted improperly in seeking to terminate [Father’s] 

parental rights.

Trial Court Opinion, 5/24/17, at 2.
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argued in the Anders brief, “we will afford [the] [a]ppellant his appellate 

rights by remanding this case for the filing of a Rule 1925(b) statement which 

properly preserves all issues to be raised before this Court”). 

We deny counsel’s petition for leave to withdraw and remand this case. 

On remand, the orphans’ court shall have seven days to either appoint new 

counsel or direct current counsel to continue on this case. At the same time, 

the court shall issue an order directing Father’s counsel to file a proper Rule 

1925(b) statement within fourteen days. The orphans’ court shall promptly 

file its opinion in response to the new Rule 1925(b) statement. The 

Prothonotary of this Court will subsequently establish a new briefing schedule 

for the parties, and Father’s counsel shall file either a compliant Anders brief 

or an advocate brief.

Petition denied. Case remanded with instructions. Panel jurisdiction 

retained.