In re C.W.

• Decision Date: 24 October 2008
• Docket Number: No. 3356 EDA 2007,3356 EDA 2007
• Citation: 2008 PA Super 254,960 A.2d 458
• Parties: In the Interest of C.W. Appeal of Anthony R. Tunnell, Esquire.
• Court: Pennsylvania Superior Court

960 A.2d 458

2008 PA Super 254

In the Interest of C.W.

Appeal of Anthony R. Tunnell, Esquire.

No. 3356 EDA 2007

Superior Court of Pennsylvania.

Argued August 19, 2008.

Filed October 24, 2008.

Samuel C. Stretton, West Chester, for appellant.

BEFORE: STEVENS, MUSMANNO, and BENDER, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Philadelphia County finding Appellant Anthony R. Tunnell, Esquire to be in contempt, directing him to return all monies paid to him, and replacing him with new court-appointed counsel in the underlying involuntary termination of parental rights case.¹ On appeal, Attorney Tunnell contends, inter alia, that the evidence was insufficient to sustain a finding of contempt.² We reverse.

¶ 2 The relevant facts and procedural history are as follows: In November of 2003, due to physical abuse, C.W. was placed in foster care, and the Philadelphia Department of Human Services Children and Youth Division (DHS) filed a petition seeking to have C.W. declared dependent. Eventually, C.W. was declared dependent and the goal was reunification; however, on May 31, 2005, DHS filed petitions for the involuntary termination of Mother's and Father's parental rights and sought to change the goal to adoption. Attorney Tunnell was appointed by the trial court to represent Father's interests, and on August 9, 2007, the matter proceeded to an evidentiary hearing, at the conclusion of which the trial court indicated it would make a decision in open court on October 30, 2007. The trial court directed that "[b]riefs from the City and father's counsel are due 10/15/07." N.T. 8/9/07 at 44.

¶ 3 On October 1, 2007, Attorney Tunnell sent the following correspondence to the trial court judge:

I represent the Father, . . . in the above matter which was listed before Your Honor for a contested goal change/termination hearing. Please consider the following as the Father's letter brief in opposition to the termination of his parental rights.

[DHS] was found to have not made reasonable efforts by the Court on at least one occasion. The Father contends that reasonable efforts were not made toward him on any occasion.

The Father also contends that there was not sufficient consideration of the bond between the Father and his son as [DHS] did not address the contact Father had with the child during the time the child was committed to the Department. Father testified to said contact.

The Department's goal of this case was Permanent Legal Custody and it was changed due to the Mother's status and no consideration was given to the Father's status.

Due to all of the above, the Father prays that this Court will not terminate his parental rights.

Father's Letter Brief dated 10/1/07.

¶ 4 On October 30, 2007, the parties appeared before the trial court, and the following relevant exchange occurred:

THE COURT: I received the notes of testimony and I think I got a submission from everybody. Mr. Tunnell's brief was a little thin. It's really not a brief.

MR. TUNNELL: It's a letter brief, Your Honor.

THE COURT: No, it's not. It's a letter.

So, we are going to bring this case back again and I am going to give Mr. Tunnell a chance to submit a brief, because I want to see what your client's position is—

MR. TUNNELL: Your Honor—

THE COURT: And that brief will comply with Rules 2111 through 2135 of the Appellate Rules of Procedure.

MR. TUNNELL: Your Honor, this isn't an appellate situation right now.

May I put my objection on the record?

THE COURT: I have your objection.

MR. TUNNELL: May I state the—

THE COURT: Go ahead.

MR. TUNNELL: Your Honor, I have an objection because Your Honor had told me that the reason for these briefs was an Order for you to clean up any possible appellate issues, and I believe that is a violation of my client's due process. My client, just like anyone else, has a right to appeal if any mistakes occur at trial. My brief is what it is, Your Honor. I can make it longer, more detailed, but I don't have to put in any appellate issues, because this isn't an appellate proceeding.

THE COURT: You done?

MR. TUNNELL: Yes.

THE COURT: So, we will get a date. Mr. Tunnell will file a brief as I have described in the DRO so there will be no confusion, and then we will take another look at the case.

MR. TUNNELL: And, of course, Your Honor, I do object to filing a brief which you say should be under the Appellate Rules.

THE COURT: I heard your objection.

MR. TUNNELL: And I might only file what is necessary for this case at the trial level.

* * *

THE COURT: We will bring this case back and—let's see if we have a date in early December.

(Discussion regarding next court date.)

THE COURT: How about the end of November?

MR. TUNNELL: That will not give me sufficient time, if you want an appellate brief.

THE COURT: The brief is due November 9th.

MR. TUNNELL: Your Honor, I don't understand how you can order me to file a brief at a trial level.

THE COURT CLERK: 11/19 at 10:30.

(Whereupon, the Court Clerk reads the Order.)

THE COURT: If there is nothing else, that concludes this matter. If you wait outside, you will get a copy.

The record should reflect that as Mr. Tunnell was leaving the courtroom, he said he does not intend to file an appellate style brief. And the Court should prepare for a contempt hearing.

N.T. 10/30/07 at 2-5.

¶ 5 On November 9, 2007, Attorney Tunnell filed a "Brief in Opposition to the Involuntary Termination of Father's Parental Rights," which provided in its entirety the following:

I. Procedural Posture

A goal change/termination of parental rights hearing was held before the Honorable Charles Cunningham on August 9, 2007. At the conclusion of that proceeding, the Court ordered the Department of Human Services (DHS) and the parents' counsel to file briefs.

II. Statement of the Case

The Department of Human Services alleged that the potential rights of the father ... should be involuntarily terminated pursuant to § 2511(a)(1), (2), (5) and (8) of the Adoption Act, 23 Pa.C.S.A. § 2511 et seq. The Department has alleged that [Father] has failed to perform his parental duties.

The Father asserts now, and through his testimony, that he has maintained contact with his child through the life of this dependency case. Further, Father contends that the child wants to maintain a relationship with his father.

III. Argument

The Department of Human Services was found to have not made reasonable efforts by the Court on at least one occasion. The Father contends that reasonable efforts were not made toward him on any occasion.

The Father also contends that there was not sufficient consideration of the bond between the Father and his son as the Department did not address the contact Father had with the child during the time the child was committed to the Department. Father testified to said contact.

The Department's goal of this case was Permanent Legal Custody and it was changed due to the Mother's status and no consideration was given to the Father's status.

The Father's parental rights should not be terminated because the DHS did not meet its burden.

IV. Conclusion

Due to the above, the Father prays that this Court will not terminate his parental rights.

Brief in Opposition to the Involuntary Termination of Father's Parental Rights filed 11/9/07 at 1-2.

¶ 6 The matter proceeded to another hearing on November 19, 2007, at which the following relevant exchange occurred:

THE COURT: With regard to Father, Father is still incarcerated?

[DHS SOCIAL WORKER]: Yes, he is, Your Honor.

THE COURT: And with regard to Mother, Mother is just not participating?

[MOTHER'S COUNSEL]: Your Honor, she signed voluntaries.

THE COURT: All right.

We are here today for a decision. But before making a decision, I asked for briefs.

Mr. Girard, I would ask you to show these Exhibits to Mr. Tunnell.

Can you identify what has been marked as Court Exhibits 1 and 2, Mr. Tunnell?

MR. TUNNELL: Yes, Number 1 was a letter brief submitted to Your Honor in a timely fashion.

And Number 2 was a rewriting of that brief based on Your Honor's orders[.]

THE COURT: Give them to Ms. Darby, and she will put them in the file.

[MR. TUNNELL]:³ The briefs are the same, just different headings. I couldn't do them according to the appellate rules, Judge, because I have no Judge's opinions, no statement of jurisdiction. I found that the other attorney didn't do it according to appellate rules, and it was also a waiver on the part of the Child Advocate.

THE COURT: I am just trying to give you some guidance. A brief has to cite law, has to cite the record. What you call your letter brief is just a letter. What you then call your brief is your letter with a caption. So, I find that you have not complied with the Court's order.

MR. TUNNELL: Well, Your Honor, I did—

THE COURT: And I hold you in contempt.

MR. TUNNELL: Your Honor, I know I have a Rule to Show Cause. And, Your Honor, I talked to appellate attorneys. There is nothing in the appellate rules that say briefs must be done, and there is no solution or no remedy for briefs, when a brief is not done, in the entire Court system throughout Pennsylvania, other than waiving that particular issue. So, this would be a first, being held in contempt for what [sic] a brief you think is not sufficient. But you also have to deal with the fact that you waived it for the Child Advocate—for whatever reason, I don't know—and the brief by the City Solicitor is not according to appellate procedure either.

THE COURT: I have two choices. I can either get a brief from you or I can get a brief from someone else.

MR. TUNNELL: Well, Your Honor, the brief that you are asking for, actually—

THE COURT: We passed that point. I am going to get a brief, a brief that cites case law, refers to the record, analyzes the evidence—

MR. TUNNELL: I don't have the record, and I need the Judge's opinion in order to make the brief that you are...