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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: E.B.G., A MINOR

APPEAL OF: M.G., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1222 MDA 2023

Appeal from the Decree Entered August 4, 2023

In the Court of Common Pleas of Lancaster County Orphans' Court at 

No(s): 2023-01104

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 19, 2024

Appellant M.G. (Mother) appeals from the decree granting the petition 

filed by the Lancaster County Children and Youth Social Service Agency (the 

Agency) to involuntarily terminate Mother’s parental rights to E.B.G. (Child). 

Mother’s counsel, H. Allison Wright, Esq. (Attorney Wright) has filed an

application for leave to withdraw and an Anders/Santiago1 brief. After 

review, we deny Attorney Wright’s application to withdraw, vacate the 

orphans’ court’s decree terminating Mother’s parental rights, and remand for 

further proceedings consistent with this memorandum. 

The orphans’ court sets forth the factual and procedural history in this 

matter in its opinion. See Orphans’ Ct. Op., 9/22/23, at 1-4. Briefly, the 

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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009); see also In re V.E., 611 A.2d 1267, 1275 (Pa. 

Super. 1992) (extending Anders to appeals involving the termination of 

parental rights). 
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juvenile court adjudicated Child dependent on August 26, 2021. The Agency 

filed a petition to involuntarily terminate Mother’s parental rights on May 2, 

2023. The orphans’ court scheduled a termination of parental rights hearing 

for May 30, 2023. During that hearing, Attorney Wright informed the orphans’ 

court that Mother wished to represent herself and requested a continuance. 

After a brief discussion with Mother and Attorney Wright, the orphans’ court 

continued the termination of parental rights hearing. 

On July 25, 2023, the orphans’ court held a termination of parental 

rights hearing. Child was represented by Gina Carnes, Esq. who served both 

as Child’s guardian ad litem (GAL) and as Child’s legal counsel.2 At the start 

of the hearing, Attorney Wright again informed the orphans’ court that Mother 

wished to represent herself. See N.T., 7/25/23, at 4-5. The orphans’ court 

asked Mother questions about her decision to represent herself and her 

understanding of court procedure. See id. at 5-6. The orphans’ court allowed 

Mother to represent herself and proceeded with the hearing. See id. at 6. At 

the conclusion of the hearing, the orphans’ court held its decision under 

advisement. See id. at 49. 

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2 At the termination hearing, Attorney Carnes stated that she had determined 

that there was no conflict between Child’s best and legal interests because of 

Child’s young age, and the orphans’ court accepted Attorney Carnes’ 

representation that there was no conflict. N.T., 7/25/23, at 48; see also In 

re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) (stating that where 

a GAL was appointed to represent both a child’s legal and best interests, 

appellate courts may review sua sponte “whether the orphans’ court 

determined that the child’s best interests and legal interests did not conflict”). 
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On August 4, 2023, the orphans’ court issued a decree concluding that 

the Agency had presented clear and convincing evidence to support the 

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

(2), (5), and (b). Mother filed a counseled, timely notice of appeal and 

complied with Pa.R.A.P. 1925(a)(2)(i). The orphans’ court issued a Rule 

1925(a) opinion explaining its reasons for terminating Mother’s parental 

rights. 

On appeal, Attorney Wright has filed a petition to withdraw and an 

Anders/Santiago brief that identifies the following issue: 

Whether the [orphans’] court erred in terminating Mother’s 

parental rights to [] Child because the . . . Agency failed to prove 

by clear and convincing evidence that Mother's parental rights

should be terminated under 23 Pa.C.S.[] Section 2511?

Anders/Santiago Brief at 7 (some formatting altered). 

When faced with an Anders/Santiago brief, this Court may not review 

the merits of any possible underlying issues without first examining counsel’s 

request to withdraw. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). As 

this Court has stated:

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.
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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.”

In re J.D.H., 171 A.3d 903, 907 (Pa. Super. 2017) (citations and quotation 

marks omitted). 

Additionally, counsel must file a brief that meets the following 

requirements established by the Pennsylvania Supreme Court in Santiago:

(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.

X.J., 105 A.3d at 3-4 (citation omitted). 

“Once counsel has satisfied the 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.” Id. at 4 (citations omitted). Our independent review is not limited 

to the issue(s) discussed by counsel, but extends to “additional, non-frivolous 

issues” that may have been overlooked by counsel. J.D.H., 171 A.3d at 908 

(citation omitted). An appeal is frivolous when it “lacks any basis in law or 

fact.” Santiago, 978 A.2d at 356 (citation omitted).

Instantly, Attorney Wright has filed an application for leave to withdraw 

that states that she conscientiously reviewed the record and determined that 
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the appeal is frivolous. She has also provided this Court with a certificate of 

service demonstrating that she served Mother with a copy of her 

Anders/Santiago brief, application for leave to withdraw, and a letter 

advising Mother of her right to proceed pro se or raise any additional points 

that Mother deemed worthy of consideration. Additionally, Attorney Wright’s 

Anders/Santiago brief provides a summary of the essential facts and 

procedural history of the case. Attorney Wright also sets forth her reasons for 

concluding that Mother’s appeal is frivolous. 

However, before reaching the issues identified in the Anders/Santiago

brief or raised in Attorney Wright’s motion to withdraw her representation of 

Mother, we must review sua sponte whether Mother knowingly, voluntarily, 

and intelligently waived her right to counsel. See X.J., 105 A.3d at 4

(reviewing, as part of this Court’s independent review of the record, the 

mother’s lack of representation during the termination proceedings). 

The X.J. Court has explained:

The Adoption Act[3] controls termination of parental rights 

proceedings. 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.” [23 

Pa.C.S.] § 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). . . . This Court has held that when 

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3 23 Pa.C.S. §§ 2101-2938.
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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[4] 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.

Id. (some citations omitted). 

The Stossel Court explained that when a party requests to waive the 

right to appointed counsel, the court “must ascertain that the [party] 

understands: (1) his [or her] right to be represented by counsel; (2) that if 

he [or she] waived this right, he [or she] will still be bound by all normal 

procedural rules; and (3) that many rights and potential claims may be 

permanently lost if not timely asserted.” Stossel, 17 A.3d at 1289 (citations 

omitted and formatting altered); see also In re C.A., 2860 EDA 2019, 2861 

EDA 2019, 2020 WL 1900098, at *2-4 (Pa. Super. filed April 17, 2020) 

(unpublished mem.) (concluding that the mother’s waiver of her right to 

counsel in termination of parental rights and dependency proceedings was 

knowing, intelligent, and voluntary where the trial court ascertained that the 

mother “understood that she had the right to be represented by counsel, that 

she would still be bound by all normal procedural rules despite being pro se, 

and that she needed to make timely objections in order to prevent potential 

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4 The Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. 
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claims from being lost” (citations omitted)).

5

 

At the July 25, 2023 hearing, the following exchange occurred between 

Mother and the orphans’ court:

THE COURT: . . . [M]a’am, just so you understand -- and you can 

have a seat -- the Agency has the burden to present evidence that 

I should grant their request to terminate your parental rights.

You’ll have the opportunity to ask any relevant questions of any 

witnesses that are called by the Agency. You’ll have the 

opportunity when the Agency’s done then to call any witnesses 

you want me to consider. And after I hear all the evidence I’ll 

make a decision sometime within the next two weeks on the 

Agency’s request.

Now, do you have any witnesses with you that you’re planning to 

call?

[Mother]: I do not.

THE COURT: Okay. Do you understand how the hearing is going 

to work?

[Mother]: I understand some of it.

THE COURT: Do you have any questions about it?

[Mother]: One question is, I’m not sure when there -- I do have 

questions. I’m not sure, you know, when to ask them, who to 

ask. There are times I would talk to them since the last court 

hearing until this one and all I was told by them and other 

attorneys that ask your lawyer, and the Agency said that after the 

hearing that I didn’t want to see my lawyer anymore, so then that 

lawyer -- but they didn’t do that before. So I have some questions 

but mostly I want the chance to speak and explain why --

THE COURT: Okay. 

[Mother]: -- why there is no basis for this.

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5 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential decisions 

of the Superior Court filed after May 1, 2019, may be cited for their persuasive 

value). 
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THE COURT: You’ll have the opportunity -- you’ll have the 

opportunity to do that when it’s your chance to testify, okay? But 

do you have any questions on how the hearing is going to work?

[Mother]: No.

THE COURT: Okay. Then [Counsel for the Agency], you may call 

your first witness.

N.T., 7/25/23, at 5-6. 

Based on the record before us, we cannot conclude that Mother’s waiver 

of counsel was voluntary, knowing, or intelligent. See Stossel, 17 A.3d at 

1289. Here, the on-the-record colloquy does not reflect that Mother 

understood: (1) that she had the right to be represented by counsel; (2) that 

if Mother waived that right, she would be held to the same procedural rules 

as counsel; and (3) that she may lose potential claims if she did not make 

timely objections. Compare N.T., 7/25/23, at 4-6 with Stossel, 17 A.3d at 

1289 and C.A., 2020 WL 1900098, at *2-4. Therefore, because we conclude 

that Mother failed to properly waive her constitutional right to counsel, we are 

constrained to vacate the orphans’ court’s decree. See X.J., 105 A.3d at 4, 

7; Stossel, 17 A.3d at 1290. We remand this case for further proceedings 

consistent with this memorandum. 

Decree vacated. Application for leave to withdraw as counsel denied. 

Case remanded with instructions. Jurisdiction relinquished. 
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/19/2024