Opinion
879 WDA 2023 J-S46016-23
01-09-2024
IN THE INTEREST OF: A.C., A MINOR APPEAL OF: M.R., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered June 28, 2023 In the Court of Common Pleas of Jefferson County Civil Division at CP-33-DP-0000034-2023
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM
MURRAY, J.
M.R. (Mother) appeals the dispositional order adjudicating A.C. (Child) (born January 2022) dependent, and granting custody of Child to Jefferson County Children and Youth Services (CYS or the Agency). Mother's counsel, Joseph Drew Ryan, Esquire, has filed a petition to withdraw as Mother's counsel and Anders brief. Upon review, we grant Attorney Ryan's petition to withdraw and affirm the dispositional order.
T.C. (Father), an inmate at Forrest State Correctional Institution, was not a placement resource.
See Anders v. California, 386 U.S. 738 (1967); see also In re J.D.H., 171 A.3d 903, 906 (Pa. Super. 2017) (holding Anders' procedure for withdrawal of court-appointed counsel applies in a dependency matter, even in the absence of an involuntary termination decree).
On June 19, 2023, Mother permitted Child's paternal grandmother, D.M. (Grandmother), to take Child to visit Father in prison. Later that day, Mother indicated to Grandmother that she was sick, and asked Grandmother to keep Child overnight. Grandmother agreed, and called Mother the next day to arrange Child's return. At approximately 7:50 p.m., Grandmother was unable to reach Mother by phone, text, or social-media messaging. Grandmother went to Mother's home around 8:00 p.m., but Mother did not answer the door. Grandmother then drove with Child to a Sheetz convenience store. Mother subsequently texted Grandmother that she, too, was at Sheetz. When
Grandmother saw Mother, Mother appeared to be under the influence of drugs. Grandmother refused to return Child to Mother because she was concerned for Child's safety.
The incident was reported to CYS, which unsuccessfully attempted to contact Mother. In addition, a CYS caseworker met with Grandmother to assess Child's safety. While the caseworker was with Grandmother, Mother telephoned and was verbally abusive and threatening toward Grandmother. Id. CYS filed an application for emergency protective custody. Emergency Application, 6/20/23. That same day, the juvenile court entered an emergency protective custody order, which was served on Mother and Father. Child was placed in kinship care with Grandmother.
CYS had been involved with the family due to Mother's drug abuse. Also, CYS was aware that Mother had left a rehabilitation program prior to completing the program.
The juvenile court held a dependency hearing on June 28, 2023. Mother and Child were each represented by counsel. Father did not appear. Following the hearing, the juvenile court entered the dispositional order adjudicating Child dependent, transferred custody of Child to CYS, and set a goal of Child's reunification with Mother. Adjudication and Disposition, 6/28/23. Mother filed this timely appeal. Mother and the juvenile court have complied with Pa.R.A.P. 1925.
We first address Attorney Ryan's petition to withdraw. To withdraw from representation under 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.J.D.H., 171 A.3d at 907 (citation omitted).
With respect to the third requirement, counsel must "attach to [his] petition to withdraw a copy of the letter sent to their client advising" her of her rights. Id. (quoting Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005)). Because a parent has a continuing right to counsel in dependency proceedings, an attorney seeking to withdraw during a dependency proceeding must
inform the parent of … her right to counsel in any subsequent dependency or involuntary termination proceedings. Counsel must also inform the parent that, if he or she cannot afford counsel, he or she may contact the trial court in order to obtain new counsel. This information must be conveyed to the parent at the same time that counsel informs the parent of his or her other rights pursuant to Anders[.]Id. at 906-07; see also 42 Pa.C.S.A. § 6337; 23 Pa.C.S.A. § 2313(a.1).
Furthermore, the Anders brief must:
(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.J.D.H., 171 A.3d at 907 (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Instantly, Attorney Ryan filed a petition to withdraw and an Anders brief asserting that Mother's appeal lacks merit and is frivolous. See Application to Withdraw, 9/29/23, ¶ 2. In his petition, counsel confirmed his review of the record and applicable law. Id. Attorney Ryan attached to his petition his letter to Mother, dated September 29, 2023. Attorney Ryan indicates he provided Mother with a copy of the Anders brief. See id. His letter properly advised Mother of her right to retain new counsel, proceed pro se, or raise any other issues she deems worthy of this Court's attention. Id.
Attorney Ryan's Anders brief (a) summarizes the procedural history and facts of the case with citations to the record; (b) identifies one issue that could arguably support Mother's appeal; and (c) explains why the appeal is frivolous with citations to relevant legal authority. Accordingly, Attorney Ryan has complied with the requirements of Anders and Santiago. Thus, we "conduct a review of the record to ascertain if on its face, there are non-frivolous issues that counsel, intentionally or not, missed or misstated." Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
The Anders brief raises the following issue: "Whether the lower court erred in removing [Child] from the home." Anders Brief at 4. Attorney Ryan asserts that Mother's challenge to the juvenile court's order is frivolous. Id. at 13. According to Attorney Ryan, Mother could claim the juvenile court lacked jurisdiction, because the dependency petition was filed after the evidentiary hearing. Id. at 15. He opines that any challenge to the juvenile court's jurisdiction would lack merit and be frivolous. Id. Attorney Ryan acknowledges that the case was initiated through the filing of an emergency custody petition and shelter care petition. Id. Attorney Ryan states,
[c]learly, the allegations of Dependency were made known to the parties based on these filings. Additionally, the record makes clear [Child] here had appointed counsel, as the Guardian ad litem was present for the Hearing and was afforded the opportunity to question all witnesses that testified.
Of final note, should [Mother] be successful in her claim, and this matter be returned to the lower court for further proceedings, it
cannot be argued that anything would change. [CYS] presented its full case. [Mother] was permitted ample opportunity to rebut the case presented. And, although not part of the record, it was recently revealed at the required Review Hearing that [Mother] is incarcerated [as a result ] of a federal Parole violation, and is not available to properly parent [Child] as of the date of this filing.Id. at 15-16.
We review a juvenile court's ruling in a dependency matter for an abuse of discretion. In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013). We accept the juvenile court's findings of fact and credibility determinations when supported by the record, but we are not required to accept the lower court's inferences or conclusions of law. Id. "[W]e accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses." In re A.W., 162 A.3d 1117, 1120 (Pa. Super. 2017) (quoting In re D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009)).
The Juvenile Act provides:
General rule.--A proceeding under this chapter may be commenced:
….
(2.1) By taking a child into custody in accordance with the provisions of section 6324 (relating to taking into custody).
(3) In other cases by the filing of a petition as provided in this chapter. The petition and all other documents in the
proceeding shall be entitled "In the interest of, a minor," and shall be captioned and docketed as provided by general rule.42 Pa.C.S.A. § 6321(a)(2.1), (3). Section 6324 states,
A child may be taken into custody:
(1) Pursuant to an order of the court under this chapter. Prior to entering a protective custody order removing a child from the home of the parent, guardian or custodian, the court must determine that to allow the child to remain in the home is contrary to the welfare of the child.42 Pa.C.S.A. § 6324(1).
CYS initiated this action by filing an Application for Emergency Protective Custody. Application, 6/20/23. The trial court granted emergency protective custody to CYS that same day. Order, 6/20/23. The emergency application and order were served on Mother by U.S. mail, in accordance with Pa.R.C.P. 1930.4. On June 26, 2023, Mother filed an application for court-appointed counsel, which the trial court granted. See Application and Order, 6/26/23.
On June 29, 2023, the juvenile court entered a shelter care order. Order, 6/29/23. Further, Mother was provided with notice of the dependency/custody hearing, and attended the hearing with counsel. See N.T., 6/28/23, at 1. Child's attorney, Danielle Mellillo, Esquire, also attended the hearing. See id. Accordingly, the record reflects that the proceedings were commenced in accordance with 42 Pa.C.S.A. §§ 6321, 6324. Under these circumstances, any challenge to the jurisdiction of the juvenile court would lack merit and be frivolous.
Regarding the adjudication of Child as dependent, the Juvenile Act defines a "dependent child," as a child who
is without proper parental care or control, subsistence ... or other care or control necessary for his physical, mental, or emotional
health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]42 Pa.C.S.A. § 6302(1).
After conducting a hearing, the juvenile court may adjudicate a child dependent if clear and convincing evidence has been presented that the child meets the statutory definition. 42 Pa.C.S. § 6341(a); In re L.Z., 111 A.3d 1164, 1176 (Pa. 2015); In re E.B., 898 A.2d 1108, 1112 (Pa. Super. 2006). Clear and convincing evidence has been defined as evidence that is "so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." A.B., 63 A.3d at 349 (citation omitted).
Upon finding a child dependent, the court must then enter an order that is "best suited to the safety, protection and physical, mental, and moral welfare of the child." 42 Pa.C.S. §§ 6341(c), 6351(a). If the court determines that removal of the dependent child from his or her home is appropriate, the court must make findings that (1) continuation in the home would be contrary to her welfare, safety, or health; and (2) reasonable efforts were made to eliminate the need for the child's removal. 42 Pa.C.S. § 6351(b)(1), (2).
The law is clear that a child should be removed from her parent's custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child's well-being. In addition, this court had held that clear necessity for
removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.A.B., 63 A.3d at 349-50 (citation omitted); see also In re A.N., 39 A.3d 326, 331 (Pa. Super. 2012).
At the shelter-care hearing, CYS presented the testimony of caseworker Jackie Sikora. N.T., 6/28/23, at 4. Ms. Sikora testified that CYS first became involved with Mother and her family on January 28, 2022, "in regard to drug concerns" following Child's birth. Id. at 4-5.
On June 20, 2023, the agency received a referral concerning Mother's substance abuse and "her inability to safely care for [Child.]" Id. at 5. CYS initiated an investigation by attempting to "reach [Mother] at a home visit[,] but that was unsuccessful." Id. CYS next assessed the safety of Child while in the care of Grandmother. Id. Ms. Sikora explained, "This was on a Tuesday and [Child] had been with [Grandmother] since the previous Sunday morning." Id. at 6.
There was an arrangement for [Child] to go with [Grandmother] on Sunday and to be returned Sunday evening.
....
[Sunday evening, Mother] expressed that she was ill and asked [Grandmother] to contact her prior to returning the Child Sunday evening, and [Grandmother] was unable to reach [Mother,] and then stated that [Grandmother] would care for [Child] overnight since [Mother] was not feeling well.Id. at 6. Grandmother and Mother agreed that Child would remain with Grandmother Sunday night and return to Mother's care on Monday. As Ms. Sikora explained,
there was an event Monday evening where [Grandmother] did not feel safe returning [Child], so she kept [Child] Monday night as well and then [CYS] became involved Tuesday.Id. at 7.
Shortly after arriving to assess the safety of [Child] with her [G]randmother, the agency overheard a phone call from [Mother] to [Grandmother] and … [Mother] was threatening
[Grandmother].
….
[Mother's] behavior that we over[heard] on the phone was erratic and there were concerns for the safety of everyone involved.Id. at 5-6. Ms. Sikora indicated Mother was upset that CYS had become involved and wanted Child returned to her care. Id. at 10-11. Ms. Sikora explained, "I would not classify it as an altercation. What I observed was [Mother] screaming and swearing at [G]randmother." Id. at 10. Consequently, CYS petitioned for emergency custody of Child. Id. at 7. CYS temporarily placed Child with Grandmother. Id.
Ms. Sikora described Child as "doing very well and adapting to the routine of her current placement. She's eating well and sleeping well." Id. at 8. Ms. Sikora confirmed that Child is in the least restrictive placement available, and recommended that Child remain in the placement, "with medical and educational rights with [CYS] and an adjudication hearing be held as the [c]ourt deems fit." Id.
Ms. Sikora explained that Mother reported having "issues and is trying to seek help and wants to go to a mommy and me rehab and take [Child] along with her to get the help that she needs." Id. at 9. Ms. Sikora stated,
[CYS] is asking that both [Mother] and [F]ather have drug and alcohol evaluations and follow recommendations and that evaluations be completed by Menta Psychological and all recommendations be followed as well.Id. at 8.
Grandmother also testified. She stated that on June 18, 2023, she and Child visited Father in prison. Id. at 17. Later that day, Mother sent Grandmother a message requesting that Grandmother call before returning Child, as Mother sick. Id. at 18. Mother later accepted Grandmother's offer to keep Child overnight and return Child the following day. Id.
The next day, Grandmother arranged to return Child to Mother after dinner, but Grandmother was unable to reach Mother. Id. at 19. Grandmother "called and didn't get [Mother]. And [I] sent messages and I used the phone message and I also used messenger." Id. Grandmother went to Mother's house around 8:00 p.m., but Mother did not answer the door. Id. Grandmother also messaged Mother. Id. Grandmother left Mother's home and drove to Sheetz. Id. Grandmother explained, Mother "sent me a message that she was at Sheetz and so I told her to come out because I was there." Id. Grandmother testified:
At this point [Child] was sleeping in her car seat in the back [of Grandmother's vehicle]. And then my girlfriends came down to Sheetz and … [said Mother] was trying to reach me. Something about [Mother's] phone dying and so she was trying to use the WIFI of Sheetz[,] but she was able to get a video call through so when I saw her on the video I was concerned then because she looked to be under the influence then. And then, … my girlfriend came in and sat in the car with [Child]. I went into Sheetz. [Mother] came into Sheetz and was visibly under the influence. There were some words exchanged. I went back out to the car and then she left and then we communicated a little bit more on messenger. And I told her that I wasn't going to return the baby because she was under the influence.N.T., 6/28/23, at 19-20. As described by Grandmother,
when [Mother] was walking into Sheetz - the way that she was walking and she was looking at her phone. She said she was trying to connect to WIFI. But she didn't see … me and I like stepped over in front of her and when [sic] she looked up at me. And her eyes were very wide and red. She did have make[]up on which I noticed because she said she had been sick the day before and I was just surprised to see the condition of her eyes and that she had eye make[]up on. And she was like slurring her words. And she was angry when I said - I believe I said "you're messed up."Id. at 20.
Grandmother explained why she contacted CYS:
I felt I had a responsibility as part of the safety plan and the family group decision making, so my first contact was to the first group decision making. I was trying to get a hold of our caseworker because one of the things they did say was that if we had any concerns at all was that we could contact either her, the family decision making worker, or the caseworker.
My concern was this happened that I saw and I did not know if [Mother] was okay to care for [Child]. So, when I talked to the agency, they said they would conduct an assessment and I felt that they were the better ones to determine if [Mother] was good to have [Child] so that's the route I went.Id. at 23-24.
Grandmother also described Mother's phone call:
There was a lot of animosity. There was anger. There were threats that I would never see my granddaughter again. [Mother] said a lot of things about me personally. One of them was that I … steal babies because I had custody of her older son from the time he was 12. Through Court Order from when he was in [the] custody of his father. There were things she said to me personally. I will tell you that I was concerned that she was going to come and try and take the baby.Id. at 22.
Mother also testified. She confirmed she had permitted Child to go with Grandmother to visit Father. Id. at 36. Mother also acknowledged that she asked Grandmother to care for Child overnight. Id. According to Mother,
I sent [a] message first saying to call before [Grandmother] came. That I wasn't feeling well and she called once and sent I think two text messages. But whenever I didn't respond to her she then called my mom. Wherever she is. And had her leave Wal-Mart to go to my house to make sure I was home so [Grandmother] could take [Child] back to me.
So, I woke up to my mom saying, You know [Grandmother] is going to bring the baby home and I said okay, the door's unlocked. Just how you got in here. I don't understand why I had to be awake, sitting here waiting for her to come in if she's bringing her home. I told her I didn't feel well. She can just bring the baby back and wake me up. But she didn't then.Id. at 36-37. Mother confirmed she and Grandmother agreed to meet the following day. Id. at 37.
The following evening, Mother met Grandmother and Child at Sheetz. Id. Mother testified that Grandmother was also to bring Mother's Suboxone prescription. Id. at 38. Mother stated she had not taken Suboxone "all day Sunday and then [that day,] Monday[.]" Id. Mother explained that this caused her to feel sick. Id. Notwithstanding, Mother also testified that she took two Suboxone at around 5:30-6:00 that evening. Id. According to Mother, she was ranting in her text messages because of an argument with Grandmother's son. Id.
At around 8:00-8:15 p.m., Mother
went into Sheetz to meet with [Grandmother]. And all I said walking up to her was "I'm sorry. My phone died and I had to connect to WIFI." And she looked at me was like[,] "you are so messed up."Id. at 38-39. Mother claimed her behavior was the result of not taking Suboxone. Id. at 39.
Mother acknowledged she wanted to seek treatment at a mommy and me rehabilitative program. Id. at 40. According to Mother, she has "been working with the Jefferson County Drug and Alcohol [Commission and they got me a list of places and I called and even did an intake. Two of them but I have to have custody of my daughter to go to it." Id. at 41. Mother sought treatment because of a positive test result for Methamphetamine on May 1, 2023. Id.
Upon review, the juvenile court found,
Mother was high when [Grandmother] saw her at Sheetz. She claimed otherwise, testifying that she only looked "messed up" at the time because she had been crying a lot. Yet she acknowledged having taken two Suboxone pills earlier in the day even knowing that taking two together left people "looking messed up." (Transcript, 6/28/23, pp. 38-39, 58). The most reasonable conclusion for [Grandmother] to draw that day and for the [c]ourt
to draw the date of the hearing, therefore, was that Mother was "messed up" when [Grandmother] met her at Sheetz. It was evident from her overall testimony, moreover, that Mother expected others to shoulder the responsibility of making sure she was awake, present, and available to be a mother, which did not bode well for [Child's] continuing health, safety, and welfare. Effectively, Mother's testimony alone told the [c]ourt that it was looking at a dependency situation where [Child] need[ed] to be removed for her own safety. [Grandmother's] testimony confirmed as much and further informed the [c]ourt that [Child] had a safe place to stay until Mother was to regain custody….Juvenile Court Opinion, 8/22/23, at 1.
Based on the foregoing, the juvenile court's adjudication of dependency is supported by clear and convincing evidence; removal of Child from Mother's home is appropriate; Child's continuation in Mother's home is contrary to Child's welfare, safety, or health; and alternative services that would enable Child to remain with Mother are unfeasible. See 42 Pa.C.S. § 6351(b)(1), (2); A.B., 63 A.3d at 349-50 (citation omitted). Our review confirms Mother's challenge lacks merit, and we agree with Attorney Ryan's assessment that the appeal is frivolous. Finally, our independent review discloses no non-frivolous issues Attorney Ryan may have missed or misstated. See Yorgey, 188 A.3d at 1197. Accordingly, we grant Attorney Ryan's petition to withdraw, and affirm the juvenile court's order.
Counsel's petition to withdraw granted. Order affirmed.