Opinion
J-S85031-16 No. 1830 EDA 2016 No. 1831 EDA 2016 No. 1832 EDA 2016
01-20-2017
IN THE INTEREST OF: D.J.D., JR, a Minor APPEAL OF: I.C.M., Mother IN THE INTEREST OF: D.J.D., a Minor APPEAL OF: I.C.M., Mother IN THE INTEREST OF: S.J.Q.M., a Minor APPEAL OF: I.C.M., Mother
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 9, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division No(s): CP-51-AP-0000706-2013, CP-51-DP-0000691-2012 Appeal from the Order May 9, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division No(s): CP-51-AP-0000705-2013, CP-51-DP-0000690-2012 Appeal from the Order May 9, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division No(s): CP-51-AP-0000707-2013, CP-51-DP-0052618-2010 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
I.C.M. ("Mother") appeals from the Orders, entered on May 9, 2016, terminating her parental rights to D.J.D., Jr. (DOB 6/14/11), D.J.D. (DOB 6/14/11), and S.J.Q.M. (DOB 3/11/09) (collectively "Children"), and changing their permanency goals to adoption. Additionally, Mother's court-appointed counsel, Gary S. Server, Esquire ("Attorney Server"), has filed a Motion to Withdraw as counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967) (hereinafter " Anders Brief"). We affirm the trial court's termination Orders and grant Attorney Server's Motion to Withdraw.
On July 20, 2016, this Court, sua sponte, consolidated Mother's appeals from the termination Orders.
In its Opinion, the trial court set forth the relevant factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 7/8/16, at 1-3 (unnumbered).
On June 5, 2016, Mother filed Notices of Appeal of the termination Orders, as well as Concise Statements of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court thereafter issued an Opinion pursuant to Pa.R.A.P. 1925(a)(2)(i). On September 7, 2016, Attorney Server filed a Motion to Withdraw as counsel, as well as an Anders Brief.
In the Anders Brief, Attorney Server raises the following issues for our review:
1. Whether[,] under the Juvenile Act, 42 Pa.C.S.A. [§] 6351, and 55 Pa. Code [§] 3130.74, in accordance with the provisions of the federal Adoption and Safe Families Act, 42 U.S.C. [§] 671[,] et seq. ["ASFA"], reasonable efforts were made to reunite [] Mother with [] Child[ren?]Anders Brief at 6 (numbering added, claims separated to conform to arguments set forth in brief, capitalization omitted). Mother neither filed a pro se brief, nor retained alternate counsel for this appeal.
2. [W]hether the goal change[] to adoption was the disposition best[-]suited to the safety, protection and physical, mental and moral welfare of [] Children[?]
3. Whether it was proven by clear and convincing evidence that Mother's parental rights should be terminated under [23 Pa.C.S.A. §] 2511(a) [and] (b) [?]
When counsel files an Anders brief, this Court may not review the merits of the appeal without first addressing counsel's request to withdraw. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). This Court has extended the Anders principles to appeals involving the termination of parental rights. See In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992). In these cases, counsel appointed to represent an indigent parent, on a first appeal from a decree involuntarily terminating parental rights, may petition this Court for leave to withdraw representation and submit an Anders brief. See In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). We review counsel's Anders brief for compliance with the requirements set forth by our Supreme Court in Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), wherein the Court held that
in the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel 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.Id. at 361.
Additionally, pursuant to Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005) and its progeny, [c]ounsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[']s attention in addition to the points raised by counsel in the Anders brief.Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and 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. See In re X.J., 105 A.3d at 4.
Here, Attorney Server has complied with each of the requirements of Anders. Attorney Server indicates that he conscientiously examined the record and determined that an appeal would be frivolous. Further, Attorney Server's Anders Brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, the record contains a copy of the letter that Attorney Server sent to Mother, advising her of her right to proceed pro se or retain alternate counsel and file additional claims, and stating Attorney Server's intention to seek permission to withdraw. Accordingly, Attorney Server has complied with the procedural requirements for withdrawing from representation, and we will review Mother's claims.
In her first claim, Mother contends that the Department of Human Services ("DHS") did not make reasonable efforts to reunite Mother and Children, and "simply paid lip service to helping her obtain adequate mental health and drug and alcohol treatment." Anders Brief at 18. Mother asserts that "DHS and the Clinical Evaluation Unit ("CUA") did not give her the necessary paperwork until the 'last minute[,]' and that she was not properly referred." Id. Based on these averments, Mother claims that the SHS and CUA violated the Juvenile Act and AFSA. Id.
Citing to 42 U.S.C. § 675(1)(B), Attorney Server asserts that AFSA "requires that a social service agency formulate a plan for assuring that the child receives safe and proper care and that services are provided to the parents." Anders Brief at 18-19.
However, Attorney Server points out that this argument is rendered frivolous by the Supreme Court of Pennsylvania's holding, in In re D.C.D., 105 A.3d 662, 673-74 (Pa. 2014), that it is unnecessary to demonstrate that an agency has made reasonable efforts to reunite a parent with her child before the parent's rights may be terminated. Anders Brief at 18. Attorney Server further indicates that, even if Mother could present such a claim, it would be rendered frivolous by the evidence of record, which demonstrates that, since 2009, DHS has implemented in-home protective services ("IHPS"), and has made every effort to keep Children with Mother. Id. at 19. Attorney Server states that "[M]other was provided with competent social workers and Family Service Plans that offered her a path to reunification and with all of the referrals and services necessary to achieving it. It was Mother's inability over the course of seven years to completely avail herself of the services that were offered that thwarted the attempt to reunify this family." Id.
Initially, we observe that, as Attorney Server correctly points out, the Juvenile Act does not require a showing of reasonable efforts in order to terminate parental rights. See In re D.C.D., 105 A.3d at 673-74 (Pa. 2014). Specifically, our Supreme Court has held that,
Although Attorney Server suggests that there may be a question as to whether Pennsylvania state law is in conflict with federal law, he fails to identify the particular conflict, or cite to any legal authority in support of such argument. See Pa.R.A.P. 2119(a) (stating that the parties' briefs must include a discussion of each question raised on appeal and a "citation of authorities as are deemed pertinent."). Nevertheless, our independent research reveals no legal authority supporting such a claim.
while reasonable efforts should be considered and indeed, in the appropriate case, a trial court could insist upon their provision, we hold that nothing in the language or the purpose of Section 6351(f)(9) [of the Juvenile Act] forbids the granting of a petition to terminate parental rights, under Section 2511, as a consequence of the agency's failure to provide reasonable efforts to a parent.Id. at 675. Thus, we conclude that Mother's first claim is frivolous.
Even if we had not deemed Mother's first claim to be frivolous, we would have determined that the evidence of record demonstrates that DHS made reasonable efforts to reunify Mother with Children. See Trial Court Opinion, 7/8/16, at 4, 5 (unnumbered). --------
As Mother's second and third claims are related, we will address them together. In her second claim, Mother contends that the change in Children's permanency goal to adoption "was not the disposition best-suited to the safety, protection and physical, mental and moral welfare of [Children]." Anders Brief at 19. Mother asserts that, during the hearing, she "claimed to have fulfilled some of her objectives[,] and denied that she had received the necessary referrals for the services she needed." Id. Mother further asserts that she has "a strong bond to [C]hildren[,] which was demonstrated by the attention she lavished on them during the visits[,] and by the affection they showed to her during her visits." Id. Mother also argues that "she was on the verge of obtaining stable housing[,] and that she was ready to assume her parental responsibilities." Id. at 19-20.
However, Attorney Server points out that "Mother[,] throughout the case[,] refused to accept completely the services that could have been provided to her ... services that were designed to keep her free of drugs, to keep her mentally healthy, and to keep [C]ildren in a safe home ...." Id. at 20. Attorney Server further indicates that "because [M]other had been given repeated opportunities to complete her objectives[,] and she had shown repeatedly that she would not or could not[,] [DHS] was able to prove" that "[t]he deplorable history of [M]other's refusing to fully accept services demonstrated clearly and convincingly that a goal change to adoption in a loving and tolerant family setting would be the disposition best suited to the safety, protection and physical, mental and moral welfare of [C]hildren." Id. at 20, 21.
In her third claim, Mother contends that DHS failed to prove by clear and convincing evidence that her parental rights to Children should be terminated under sections 2511(a)(1), (2), (5), (8) and (b). Anders Brief at 21. Mother asserts that she believes that she fulfilled all of her objectives and that she is capable of providing her children with the essential parental care, control and subsistence necessary for their physical and mental well-being. Id. at 23-24. Mother claims that the conditions and causes which led to her incapacity, abuse, neglect or refusal had been remedied within the time allotted by the Adoption Act. Id. at 24. Mother argues that Children would be better off with her, and that "she is best suited to provide for the developmental, physical and emotional needs and welfare of Children." Id.
However, Attorney Server contends that Mother's third claim is frivolous because she refused or was unable to achieve stability for herself or for Children. Id. Attorney Server points out that Mother periodically tested positive for marijuana, engaged in violence, got arrested, and disappeared for a period of time. Id. Attorney Server asserts that, despite being diagnosed with bi-polar disorder and depression, Mother "refused to avail herself of the necessary evaluations and referrals for services." Id. Attorney Server claims that "[Mother's] stubbornness in not cooperating with DHS caused [C]hildren to be without the essential parental care, control or subsistence necessary for their physical and mental well[-]being." Id. at 25. Attorney Server argues that "the conditions that led to [Mother's] incapacity, abuse and neglect could not be remedied [] due to her refusal to accept responsibility for the causes of the estrangement from [C]hildren, her refusal to meaningfully participate in therapy[,] and her failure to complete all of the objectives formulated by DHS to accomplish a successful reunification." Id. Attorney Server contends that "the evidence showed that [C]hildren had been in placement for many years, [] they had no real bond with [M]other, ... and that they would not be harmed in any way by terminating [Mother's] parental rights." Id.
The trial court set forth the relevant law, addressed Mother's second and third claims, and concluded that they lack merit. See Trial Court Opinion, 7/8/16, at 3-7 (unnumbered). We agree with the reasoning of the trial court and affirm on this basis as to Mother's second and third claims. See id.
Based on the foregoing, we conclude that Mother's appeal is frivolous, and that Attorney Server is entitled to withdraw as counsel. Further, our review discloses no other claims of arguable merit. Thus, we grant Attorney Server's Motion to Withdraw and affirm the trial court's Orders terminating Mother's parental rights to Children, and changing their permanency goals to adoption.
Motion to Withdraw granted; Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/20/2017
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