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[U] In re A.T.D.

Superior Court of Pennsylvania

February 24, 2014

IN RE: A.T.D. APPEAL OF: R.D., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered April 19, 2013, in the Court of Common Pleas of Montgomery County, Orphans' Court, at No(s): 2013-A0044

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.

MEMORANDUM

OTT, J.

R.D. ("Father") appeals from the decree entered in the Court of Common Pleas of Montgomery County that confirmed his consent to adoption and terminated his parental rights with respect to his natural female child, A.T.D. We affirm the decree, and grant the petition for leave to withdraw as counsel filed by Father's counsel.

The record reveals the following pertinent facts and procedural history. A.T.D. was born in March of 2012, at which time Father was incarcerated. N.T., 4/18/13, at 36. A.T.D. was placed in the care of the Montgomery County Office of Children and Youth ("OCY") in April of 2012. Id. at 17. On January 7, 2013, Father, while still incarcerated, executed a consent to adoption pursuant to 23 Pa.C.S.A. § 2711(d). Id. at Exhibit OCY-1. On March 7, 2013, OCY filed separate petitions to confirm consent to adoption with respect to Father and A.T.D.'s mother, B.N.E. ("Mother").[1] A hearing was held on the petitions on April 18, 2013, during which Father's counsel advised the orphans' court that Father would like to withdraw his consent to adoption. N.T., 4/18/13, at 6. As such, Father's counsel requested a continuance of the hearing so that Father could file a petition to revoke his consent alleging fraud or duress. Id. at 6-7. In addition, because he was a witness to Father's consent executed on January 7, 2013, Father's counsel requested that new counsel be appointed to file the petition. Id. at 7. The court denied Father's request to continue the hearing and proceeded with testimony from Meghan Radick, the OCY caseworker, and Father.

By separate decrees dated and entered on April 19, 2013, the orphans' court confirmed the consents to adoption of Father and Mother, and terminated their parental rights.[2] In addition, by a separate order dated and entered on April 19, 2013, the court denied Father's request for the appointment of new counsel for the purpose of filing in the orphans' court a petition seeking to revoke his consent. Father, acting pro se, 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).[3]

On July 3, 2013, the orphans' court appointed new counsel to represent Father in his appeal to this Court.[4] On October 7, 2013, Father's counsel filed a petition for leave to withdraw as counsel and an Anders[5]brief. By order dated December 2, 2013, this Court denied the petition for leave to withdraw as counsel because Father's counsel had failed to comply with all the requirements for withdrawal. We directed counsel to either re-file a petition for leave to withdraw and an Anders brief, or file an advocate's brief, within thirty days. On December 4, 2013, Father's counsel re-filed a petition for leave to withdraw as counsel and an Anders brief, which we address initially. 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).

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 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. Id. at 1275. 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. Id.

In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court stated that an Anders brief must comply ...


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