J

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

IN RE: B.A.M., A MINOR

APPEAL OF: N.P., MOTHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1298 MDA 2020 Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans' Court at No(s): No. 95 O.C. 2019
IN RE: A.J.B.M., A MINOR

APPEAL OF: N.P., MOTHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1299 MDA 2020 Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans' Court at No(s): No. 96 O.C. 2019
IN RE: M.D.M., A MINOR

APPEAL OF: N.P., MOTHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1300 MDA 2020 Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans' Court at No(s): No. 97 O.C. 2019J

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BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E. *
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 05, 2021
N.P. (Mother) appeals from the trial court’s decree s involuntarily
terminating her parental rights to her three minor children, B. A. M. (born

6/2015 ), A. J.B. M. (born 6/201 7 ), and M. D. M. (born 8/2018 ) (collectively,
Children)

. 1 After careful review, we remand for the filing of either a proper

advocate’s brief or a petition to withdraw and accompanying

Anders / Santiago 2 brief

. See In re J.T. , 983 A.2d 771 (Pa. Super. 2009)
(applying Anders procedure and Pa.R.A.P. 1925(c)(4) 3 to appeals involving
termination of parental rights).

T he Ti o g a County Department of Human Services (DHS) filed a
delinquency petition with regard to Children , alleging that Mother had
significant issues related to parenting, mental health and substance abuse

. On January 11, 2019, Children were adjudicated delinquent and placed in

foster care. It was recommended that Mother participate in a dual

- purpose

in

- patient subst ance abuse and mental health treatment program , several

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Children’s natural father, J.M. consent ed to the termination of his parental rights, which was confirmed by the trial court on June 23, 2020. He is not a party to this appeal.

2 See Anders v. California , 386 U.S. 738 (1967); Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).

3 See Pa.R.A.P. 1925(c)(4) (statement of intent to file Anders brief in lieu of filing concise statement of errors complained of on appeal).J

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parenting programs, and complete a psychological examination. The goal

remained reunification.
After almost one year of providing services to Mother in order to reunify

her with Children , DHS filed petition s t o involuntarily terminate Mother’s
parental rights to Children on December 11, 2019; the petitions sought

termination pursuant to subsections 2511(a)(1), (2), and (8) 4 of the Adoption

Act. 5 Termination h e arings were held on June 30, 2020, July 23, 202 0, and
September 1, 2020. 6 The delay between the final two hearings was attributed
to Mother checking herself into a Ti o g a County hospital due to an outstanding
warrant for emergency mental health treatment (302 Warrant). 7 On

_________________ __________ ______ ____ _______

4 Notably, DHS ’ petition does not mention that termina tion should be granted

w ith regard to subsection 2511(b)

— a necessary component of the bifurcated legal analysis required to terminate parental rights under the Adoption Act. See In re C.P. , 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of pr oving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b) ) (emphasis added)

.

5 23 Pa.C.S . §§ 2101

- 2938.

6 At the termination hearings, Children were represented by guardians ad litem as well as legal counsel. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings) and In re K.R. , 200 A.3d 969 (Pa. Super. 2018) (en banc), but see In Re: T.S., E.S

. , 192 A.3d 1080, 1092 (Pa. 2018) ( “ [D]uring contested termination

of

- parental

- rights proceedings, where there is no conflict between a child’ s legal and best interests, an attorney

- guardi an ad litem representing the child ’ s best interests can also represent the child ’ s legal interests. ” ).

7 See 50 Pa.C.S. § 7302 (a)(1) (under Mental Health Procedures Act (MPHA), upon written application by physician or other responsible person, warrantJ

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September 3, 2020, th e trial court entered three separate decrees
involuntarily terminating Mother’s parental rights to Children. Mother filed a
timely notice of appeal and substantive, court

- ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Moth er presents the
following issues for our consideration:

(1) Whether the [f]indings of the [t]rial [c]ourt support the conclusion that Mother had not made sufficient progress in addressing her mental health issues, parental abilities, and substance abuse issues

. (2) Whether the trial court abuse[d] its discretion in finding there was clear and convincing evidence to support termination under 23 Pa.C.S. [§§] 2511(a)(1), (2), [and] (8). Appellant’s Brief, at 7.
Before addressing the merits of the appeal, we are compe lled to note

that counsel’s brief reads more like an Anders brief, rather than one fi led by

an advocate. For instance, i n the argument section of Mother’s brief, counsel
points out instances of Mother’s parenting malfeasance and lack of consistency

or pro gress with her parenting classes. See Appellant’s Brief, at 13 (E ffective

S afe P arenting (ESP) caseworker “testified that she observed Mother using a

vacuum cleaner and B. [A.] M. managing to place the cord of the device around

A. [J.B.] M.’s neck[.]”); id. at 13

- 14 (ESP caseworker “testified that Mother had
in the early stages of the case, had been receptive to . . . parenting instruction

_________________ __________ ______ ____ _______ may issue for emergency examination of individual where facts set forth “reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment [.] ” ).J

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. . . Mother generally did not make progress nor consistently meet

with ESP .”) (emphasis added). Moreover, when discussing Mother’s mental

health and substance abuse issues, counsel’s brief points out that an ESP

worker testified that she was unsuccessful in her attempts to get Mother to
drug test, that Mother revoked her consent to allow DHS to mon itor her
progress or attendance with mental health counseling, and that ultimately

Mother stopped attending recommended counseling. Id. at 15

- 16. F inally,

the only portion of counsel’s brief that reads anything like a legal argument
supporting Mother’s p osition consists of his claim th at the court erred in
terminating Mother’s parental rights by

not giving the appropriate weight to the efforts of [M]other to rehabilitate herself as a parent and [where the court] instead placed a greater weight on the test imony detailing [Mother’s] fail [ures] and her general lack of compliance with addressing her mental health, parental abilities, and substance abuse while not taking in to account appropriate consideration [of] the testimony which stated that Mother appeare d to be cooperative.

Id. at 17

- 18 (emphasis added). However, after this statement , counsel again
acknowledges that Mother was “not consistent, nor successful in implementing
the[ lessons she was taught during parenting instruction].” Id. at 18. 8

Under t hese circumstances , where counsel argues against his client’s
interests, the proper procedure is to request to withdraw. See In re V.E. ,

_________________ __________ ______ ____ _______

8 Again, counsel acknowledges that the cornerstone of this case involves Mother’s mental health. While stating that Mother completed a psychological evaluation and eventually checked herself into a hospital for inpatient services, Mother notably revoked her consent to allow DHS to monitor her progress with mental health treatm ent and only turned herself in as a result of an outstanding 302 warrant. See supra at 4.J

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611 A.2d 1267 (Pa. Super. 1992) ( Court extended Anders principle to appeals
involving termination of parental rights, requiring counsel seeking to withdraw

in such an a ppeal to do so only after conscientious and thorough review of
record, petitioning c ourt for leave to withdraw, and submitting Anders brief)

. Moreover, in such cases, counsel should not file a substantive Rule 1925(b)
statement, but rather a Rule 1925(c)(4) statement in lieu of a R ule 1925(b)

statement , representing that no errors are asserted because counsel is or

intends to seek to withdraw.
Accordingly, we are compelled to remand this matter to the trial court.

Upon remand , we instruct counsel to either file an amended advocate’s brief

or a proper Ander

s / Santiago brief within 30 days of the date the records are

returned to the trial court. If counsel elects to file an Anders brief, he shall
properly advise Mother of her immediate right to proceed pro se or with new
counsel, and comply with all attendant requirements for seeking to withdraw.
Case remanded with instructions. Panel jurisdict ion retained.