In the Int. of: X.J. Appeal of: D.A.
105 A.3d 1
| Pa. Super. Ct. | 2014Background
- Child X.J., born July 2010, was removed after alleged maternal drug use and an incident in which the child was left unsupervised and sustained a fractured arm; the child was adjudicated dependent in May 2013.
- Agency filed a petition to involuntarily terminate parental rights on July 25, 2013; termination hearing occurred March 17, 2014; Mother did not attend and was unrepresented at the termination hearing.
- Mother had counsel only during dependency proceedings through October 22, 2013; counsel withdrew and there is no record that the orphans’ court appointed counsel for the termination proceeding or informed Mother of her right to counsel.
- Service and notice to Mother of scheduling orders and some filings in the termination proceedings were deficient or absent; affidavits claimed service by first-class mail but the Orphans’ Court Rules require personal or certified service in many circumstances.
- The orphans’ court entered a decree terminating Mother’s parental rights (dated March 17, 2014; docketed April 21, 2014); Mother appealed and counsel filed an Anders brief seeking withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother was deprived of her right to counsel in the termination proceedings | Mother (through counsel) contended she lacked appointed counsel and was not informed of the right to counsel | Agency/Orphans’ Court implied Mother had been served/represented and that service by mail sufficed | Court held Mother’s right to counsel was violated because she was not advised of or provided counsel; remanded for new termination hearing where counsel rights must be addressed |
| Whether Anders brief/counsel may withdraw | Counsel asserted appeal was frivolous and complied with Anders/Santiago technical requirements | N/A (Agency did not contest procedural compliance) | Court found counsel complied with Anders procedural formalities but denied withdrawal because merits review uncovered reversible error (lack of counsel) |
| Adequacy of service/notice of termination proceedings | Mother argued she was not properly served and not put on notice of hearings or right to counsel | Agency asserted service occurred (first-class mail) and filed affidavits of service | Court found service and notice were inadequate under Orphans’ Court Rules/Adoption Act and that record did not show Mother was notified of right to counsel |
| Whether prior case law (In re J.N.F./statutory text) bars relief where parent did not request counsel | Agency relied on J.N.F. requiring an affirmative request for appointed counsel when adequate notice is given | Mother argued she never received adequate notice and thus could not be required to request counsel | Court distinguished J.N.F.: because Mother was not notified of the right to counsel, she could not be required to request appointment; J.N.F. did not preclude remand |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (permitting counsel to seek withdrawal with submission of brief outlining potential issues)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (describing required contents of an Anders brief in Pennsylvania)
- Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (requirements for providing client the Anders brief and notice of rights)
- Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011) (court must raise and correct sua sponte a denial of the right to counsel)
- In re J.N.F., 887 A.2d 775 (Pa. Super. 2005) (interpreting 23 Pa.C.S.A. § 2313(a.1) to require a parent to request court-appointed counsel after adequate notice)
- In re J.T., 983 A.2d 771 (Pa. Super. 2009) (recognizing indigent parent’s constitutional right to counsel in termination proceedings)
- In re Adoption of R.I., 312 A.2d 601 (Pa. 1973) (indigent parents must be advised of right to counsel in termination matters)