Opinion
564 WDA 2023 565 WDA 2023
01-10-2024
IN RE: J.C.M., A MINOR APPEAL OF: J.M., FATHER IN RE: S.M., A MINOR APPEAL OF: J.M., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered May 9, 2023 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000020-2022, CP-02-AP-0000021-2022
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J. [*]
MEMORANDUM
KUNSELMAN, J.
J.M. ("Father") appeals from the order involuntarily terminating his parental rights to his son, J.C.M. (born September 2012), and his daughter, S.M. (born January 2014) ("Children"). In addition, Father's counsel has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we grant counsel's petition to withdraw and affirm the termination orders.
The pertinent facts and procedural history may be summarized as follows: Mother is the biological parent of Children. Father is the legal parent of J.C.M.; he has signed an acknowledgement of paternity and is named on J.C.M's birth certificate. Although Father acts as S.M.'s putative father and verbally acknowledged his paternity, S.M.'s legal father is unknown.
The family first became known to the Allegheny County Office of Children, Youth and Families ("CYF") within a day of J.C.M.'s birth in September 2012. Based on interviews with Mother and Father, CYF learned that the electricity to their home had been shut off and that Mother had two older children that were not in her care. The family was accepted for services on October 16, 2012, and the case remained open until May 3, 2013.
The family was the subject of multiple subsequent referrals. In March 2016, CYF investigated a referral concerning poor housing conditions including a bed bug infestation and lack of cleanliness. CYF confirmed that the family had bed bugs, S.M. had lice, and the home was full of clutter. In May 2017, J.C.M., then age 4, was found wandering in a diaper outside the family's apartment building along a four-lane highway on a Sunday morning. Authorities brought J.C.M. home, only to find that Mother and Father were both asleep.
The family again came to the attention of CYF on two occasions in June 2017. First, CYF interviewed Mother and Father and learned that J.C.M. sustained second-degree burns after putting his hand in a pot of boiling water. Mother was in the bathroom bathing S.M. at the time of the incident. Father was at Walmart and Mother contacted him to tell him to return home. After Father arrived, he and Mother waited 40 minutes before seeking medical treatment for J.C.M. CYF accepted the family and implemented Home Builders service for them. Only a few days later, CYF received a report that J.C.M. was again outside the home without supervision. Home Builders remained in place until September 27, 2017, when CYF closed services.
CYF investigated another referral in April 2018. At that time, S.M. was residing with Mother, and J.C.M. was residing with Father. During this investigation, CYF learned of Father's mental health diagnoses, as well as concerns of physical maltreatment of J.C.M. by Father and allegations of domestic violence between Father and Mother. The investigation regarding physical maltreatment regarding J.C.M. was deemed unfounded, and Father made admissions regarding domestic violence against Mother.
Several additional referrals were received and accepted for the family, while Children were living with Mother and visiting with Father. Concerns were poor home conditions, lack of cleanliness, inadequate nutrition, and injury to Children. In-home services were implemented to work with both parents to address parenting concerns and ensure that Children's needs could be met by both Mother and Father. The case closed on February 20, 2019.
CYF initiated the instant case after receiving a report on March 14, 2019. At that time, Children were living with Mother and visiting with Father. Concerns included a significant weight loss by J.C.M., and S.M.'s failure to gain weight. CYF filed dependency petitions for Children on April 26, 2019. On May 31, 2019, CYF was granted emergency protective custody of Children due to additional concerns for lack of supervision. Specifically, J.C.M. was found on the roof of Mother's home and S.M. took 20 melatonin capsules. Children were placed with Paternal Grandmother, and Father left the home so that they could be placed there.
At this time, Mother had protection from abuse order against Father and in favor of her and the children.
A shelter care hearing was held on June 3, 2019. The dependency court ordered that Children remain with Paternal Grandmother and Father was permitted to have visits with them supervised by Paternal Grandmother. The court also found that there were concerns of domestic violence between Mother and Father.
A hearing on the dependency petitions was held on July 16, 2019. Children were adjudicated dependent as to Mother, but the hearing was continued as to Father. The dependency court ordered that Children remain with Paternal Grandmother and Father was permitted to return to Paternal Grandmother's home. Following an additional evidentiary hearing on October 29, 2019, Children were adjudicated dependent as to Father and placed with Paternal Grandmother on the condition that Father once again leave Paternal Grandmother's home.
Both before and after this adjudication order, additional referrals were received.
In its October 29, 2019 order, the court directed Father to complete domestic violence and parenting education. Father's family goal plans were: to maintain mental health stability; ensure that Children are mentally, medically, and developmentally on track; to secure and maintain appropriate and stable housing; to ensure that Children have appropriate supervision; to participate in coached parenting and to obtain diabetes education necessary for J.C.M's care.
Father suffered a brain injury as a child. Father admitted to diagnoses of schizophrenia, autism, and learning disabilities.
On February 24, 2020, Father allowed S.M. to stay overnight with Mother in direct violation of the court order permitting her only supervised contact. As a result, CYF obtained an emergency protective custody order and Children were removed from Father's care. Following a shelter hearing, Children were placed in foster care, and Father was granted supervised visitation.
On February 23, 2022, CYF filed a petition to terminate the parental rights of Father, Mother and any unknown father for S.M. pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (a)(5), (a)(8), and § 2511(b). Mother signed a consent to the termination of her parental rights and for the adoption of Children on September 14, 2022. Thereafter, the orphans' court confirmed Mother's consent and granted CYF's request to withdraw the petition to involuntary terminate Mother's parental rights on November 15, 2022.
Evidentiary hearings were held over four dates between November 15, 2022 and April 3, 2023. At these hearings the orphans' court heard testimony from Children's pediatrician, a psychologist, CYF caseworkers, and employees of the foster care program. Father presented the testimony of a service provider regarding his mental health treatment, and he and Paternal Grandmother also testified. The court also heard argument from Children's counsel, who advocated for the termination of Father' parental rights.
The parties did not dispute the same counsel representing Children's legal and best interests.
By order entered May 9, 2023, the orphans' court granted CYF's petition to terminate Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (a)(5), and (a)(8). The court further found that terminating Father's parental rights would best serve the needs and welfare of Children pursuant to Section 2511(b). Father filed this timely appeal. Both Father and the orphans' court have complied with Pa.R.A.P. 1925.
Father presents the following issue on appeal:
Whether the [orphans'] court made an error of law or abused its discretion in granting CYF's Petitions and involuntarily terminating Father's parental rights as to [Children] under 23 Pa.C.S. §§ [2511](a)(2), (a)(5), and (a)(8) and in concluding that terminating Father's rights served [Children's] needs and welfare under 23 Pa.C.S. § 2511(b). . . .Amended Anders Brief at 8.
As part of this issue, Father's counsel "incorporated by reference" twelve issues from the original Pa.R.A.P. 1925(b) statement she filed on Father's behalf. Besides challenging whether CYF met its burden under the Adoption Act, the issues involved various evidentiary rulings, the orphans' court's failure to appoint counsel at certain times during the proceedings and to accommodate Father's disabilities, and the court's refusal to have Children testify. Counsel explains why none of these claims have merit, and essentially agrees with the orphans' court's discussion. See Orphans' Court Opinion, at 14-25. As the record supports the court's conclusions, we need not address these issues further.
Before we reach the merits of this issue, we address Father's counsel's application to withdraw as counsel and her corresponding Anders brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (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").
This Court extended the Anders principles to appeals involving the termination of parental rights. In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992. 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 submit an Anders brief. Id. at 1275. To withdraw pursuant to Anders, counsel must: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. Id. Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. Id.
Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), stated that an 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.Santiago, 978 A.2d at 361.
Father's counsel has substantially complied with all of the requirements of Anders/Santiago. As counsel has complied with Anders, we review the issues presented in the Anders brief. We also "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015); see also Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (describing our duty as a "simple review of the record to ascertain if there appears . . . to be arguably meritorious issues that counsel, intentionally or not, missed or misstated"). We thus proceed to consider counsel's assessment of Father's claims.
In matters involving involuntary termination of parental rights, our standard of review is as follows:
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. [A] decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.In re D.L.B., 166 A.3d 322, 325 -326 (Pa. Super. 2017) (citations and internal quotation marks omitted). "The trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence." In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation omitted). "[I]f competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result." In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We have defined clear and convincing evidence as that which is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation and quotation marks omitted).
In this case, the trial court terminated Father's parental rights pursuant to Sections 2511(a) (2), (5), (8) and (b). We need only agree with the orphans' court as to any one subsection of Section 2511(a), in addition to Section 2511(b), to affirm an order terminating parental rights. In re M.M., 106 A.3d 114, 117 (Pa. Super. 2014).
We review the orphans' court's conclusion that CYF presented clear and convincing evidence to support termination under Section 2511(a)(2). That section provides:
(a) General rule.-The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.23 Pa.C.S.A. § 2511(a)(2).
To terminate parental rights under this section, CYF must prove "(1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted). The grounds for termination are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental duties. Id.
As it pertains to Section 2511(a)(2), the orphans' court concluded that the record contained sufficient evidence to support its conclusion that Father had not remedied the conditions causing the removal of Children from his care. The court first noted that it had initially adjudicated Children dependent due to concerns regarding a lack of supervision, and reiterated the seven goals of the Father's family plan. See supra. Referencing testimony from the various hearings, the orphans' court then discussed Father's failure to reach each goal:
CYF referred Father for domestic violence services through the Women's Center and Shelter and a Batterer's Intervention Program through Wesley Family Services. There is no record of Father completing either program. Father also acknowledged in his testimony that he never entered a domestic violence program.
Father's mental health stability is at issue due to his admitted diagnosis of schizophrenia. The CYF Caseworker testified that Father was at times unwilling to confirm whether he was in treatment. . . . Father did eventually provide documentation of this treatment in in February of 2023, however the documentation only detailed his compliance since February of 2022.
Father's goals of keeping [Children] mentally, medically, and developmentally on track were of significant concern to the court given the multiple reports made to CYF on these issues. The CYF Caseworker testified that Father did not take initiative on [Children's] medical and dental appointments when they were in his care. Foster Mother was appointed Secondary Medical Decision Maker in February of 2022 due to the need for a reliable
adult to attend appointments where additional consent would be needed. Foster Mother was eventually appointed to be Primary Medical and Educational Decision Maker for [Children] midway through 2022 and at the time Father was not participating in the appointments for [Children], nor did he seek information about them.
Father lost his housing in March of 2020. The CYF Caseworker testified that Paternal Grandmother eventually secured housing for herself and Father, but little evidence was provided to show that Father's housing is now appropriate or safe for [Children]. Father later testified that the house he currently shares with Paternal Grandmother has three bedrooms, and that he would sleep on a sofa bed in the living room so [Children] and Paternal Grandmother could each have their own rooms. When discussing [J.C.M.'s] repeated escapes and options for child-proofing a door Father stated, "We tried, but with the door, there was really nothing that we could child proof the door with to keep him from opening the door."
Many of the referrals received by CYF were due to incidents were [Children] lacked appropriate supervision while in Father's care. Following the removal of [Children] and the move to supervised visitation, Father's concerning behavior continued[.]
***
Father was referred to the Holy Family coached visitation program in February of 2021. The CYF Caseworker explained that while Father did participate, he was unable to complete the program because of the time it took him to complete the diabetes education[.]
The completion of the education program was added as a goal in January of 2022. Mauri Druash-Gladys, a certified diabetes care and education specialist at Children's Hospital of Pittsburgh, testified to Father's eventual completion of the program and her observations of Father's performance:
"[T]his written test is not the main reason for my - my concern about the management. Its more so the ability to remember specific critical things about diabetes and to solve problems based on that information."
The specialist also offered that Father's inability to problem solve would be a danger if [J.C.M.] was left in his care[.]Orphans' Court Opinion, 6/14/23, at 26-29 (citations omitted).
The orphans' court further found support for its conclusion in Father's own testimony on cross-examination in which he acknowledged his limitations as to recognizing things that impact a person's blood sugar level. Id. at 29.
Based on these observations, the court summarized:
The court recognizes that Father has testified to his love for [Children]. However, his refusal or inability to complete many of the reasonable goals set by CYF is inescapable. Father also refused to take responsibility for these shortcomings. Father blamed Mother and Foster Mother repeatedly during trial. The court lacks any confidence that Father has taken actions of his own accord to address the conditions that led to removal of [Children].Id. at 29-30.
Our review of the record supports the orphans' court's conclusion that CYF presented clear and convincing evidence to support the termination of Father's parental rights pursuant to Section 2511(a)(2). Children were removed and remained out of Father's care due to concerns with his parenting skills, his mental health, and domestic violence between him and Mother. Although CYF provided services in support over a three-year period, Father made only minimal progress on his goals, and the progress he did make was not sufficient to remedy the conditions and causes of his inability to parent. In sum, there is ample support for the orphans' court's conclusion that CYF properly established grounds warranting termination under § 2511(a)(2).
Next, we consider whether termination was proper under Section 2511(b). That section provides:
(b) Other considerations.-The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.23 Pa.C.S.A. § 2511(b). With regard to this section, our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include [i]ntangibles such as love, comfort, security, and stability.... [T]his Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. However, as discussed below, evaluation of a child's bonds is not always an easy task.In re T.S.M., 71 A.3d at 267 (internal case citations omitted).
As our Supreme Court has recently noted, "courts should consider the matter from the child's perspective, placing [their] developmental, physical, and emotional needs and welfare above concerns for the parent." In the Interest of K.T., 296 A.3d 1085, 1105 (Pa. 2023). Moreover, in K.T., the Court reaffirmed that "the parental bond is but one part of the overall subsection (b) analysis." Id. at 1113. Courts must consider multiple other factors including: (1) the child's need for permanency and length of time in foster care; (2) whether the child is in a pre-adoptive home and bond with the foster parents; and (3) whether the foster home meets the child's needs. Id.
The extent of the bond-effect analysis "necessarily depends on the circumstances of the particular case." In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citations omitted). Additionally, when evaluating a parental bond, "the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted).
Here, the orphans' court concluded that there was a minimal bond between Father and Children, and that Children would not be harmed if this bond was severed. The court referenced the following testimony from the evidentiary hearings to support this conclusion:
Dr. Pepe [] testified that there is minimal attachment between father and [Children]. The lack of a bond is also evidenced by each child's refusal to visit with Father - first S.M. beginning in February of 2022, and [J.C.M.] beginning in March of 2023. Alternatively, the CYF Permanency Caseworker visited with [Children] in the foster home at least once since June of 2022 and testified that [Children] "clearly look to [Foster Mother] as a parent." The Caseworker also testified to [Foster Mother's] ability to address [J.C.M's] specific emotional needs. [J.C.M.] was fully potty-trained within a year of residing in the foster home. Foster Mother also completed the necessary diabetes education and since that time has managed the condition well. [Children] have been in [Foster Mother's] care for nearly three years and have successfully advanced through school each year.Orphans' Court Opinion, 6/14/23, at 31.
Our review of the record supports the orphans' court's conclusion that Children's significant and beneficial bonds are with Foster Mother. As noted by the court, Children view her as their parental figure. Moreover, Children have been in the pre-adoptive foster home for nearly three years. Because there exists clear and convincing evidence that termination best serves Children's needs and welfare under § 2511(b), we discern no abuse of discretion.
Finally, after an independent review of the record, we conclude that Father's appeal is frivolous and unsupported in law or in fact. There is sufficient, competent evidence to support the orphans' court's factual findings and the court's conclusions are not the result of an error of law or an abuse of discretion. D.L.B., supra. Thus, affirm the orphans' court's order terminating Father's parental rights to Children, and we grant counsel's petition to withdraw. In re V.E., supra.
Counsel's petition to withdraw granted. Orders affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.