Opinion
J-S33024-17 No. 66 MDA 2017
07-03-2017
IN THE MATTER OF: J.A.W.S., A MINOR APPEAL OF: J.S., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 95-AD-2016, CP-22-DP-0000227-2014 BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER, JJ. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
J.S. ("Mother") appeals from the order and decree entered December 14, 2016, in the Court of Common Pleas of Dauphin County, which changed the permanency goal of her minor daughter, J.A.W.S. ("Child"), born in December 2014, to adoption, and involuntarily terminated Mother's parental rights. Additionally, Mother's counsel has filed a motion to withdraw and brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's motion to withdraw and affirm the order and decree.
The orphans' court entered separate orders and decrees on January 5, 2017, changing Child's permanency goal to adoption and terminating parental rights with respect to her putative father, J.W., and with respect to any unknown father that Child may have. Neither J.W., nor any unknown father, has appealed the change of Child's permanency goal or the termination of his parental rights.
The orphans' court has aptly summarized the factual and procedural history of this case, and we adopt its recitation. See Orphans' Court Opinion, 2/9/2017, at 1-9. Importantly, Dauphin County Social Services for Children and Youth ("the Agency") filed a petition to change Child's permanency goal to adoption and to involuntarily terminate Mother's parental rights on October 3, 2016. The orphans' court held a goal change and termination hearing on December 13, 2016. Following the hearing, on December 14, 2016, the court entered an order and decree changing Child's permanency goal to adoption as to Mother and terminating Mother's parental rights. Mother timely filed a notice of appeal on January 10, 2017, which included a statement of counsel's intent to file a motion to withdraw and Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Mother's counsel filed a motion to withdraw and Anders brief on February 20, 2017.
Counsel indicated in the notice of appeal that Mother intended to appeal both the change of Child's permanency goal and the termination of her parental rights. Counsel also included both the dependency and orphans' court docket numbers. However, counsel filed the notice of appeal in the orphans' court only, and failed to file it with the clerk of courts. As a result, this Court received only the orphans' court record, and did not receive the dependency record. On June 1, 2016, this Court entered a per curiam order directing the orphans' court to certify the dependency record and transmit it to this Court. We received the dependency record on June 9, 2017.
Before reaching the merits of Mother's appeal, we first must address counsel's motion to withdraw. See Commonwealth v. Rojas , 874 A.2d 638, 639 (Pa. Super. 2005) ("'When 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.'") (quoting Commonwealth v. Smith , 700 A.2d 1301, 1303 (Pa. Super. 1997)). "In In re V.E., 417 Pa.Super. 68, 611 A.2d 1267 (1992), this Court extended the Anders principles to appeals involving the termination of parental rights." In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). To withdraw pursuant to 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.Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citing Commonwealth v. Lilley , 978 A.2d 995, 997 (Pa. Super. 2009)). With respect to the third requirement of Anders , that counsel inform the appellant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to their petition to withdraw a copy of the letter sent to their client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following requirements:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361.
(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.
In the instant matter, counsel filed a motion to withdraw, certifying that he has reviewed the case and determined that Mother's appeal is frivolous. Counsel also filed a brief, which includes a summary of the history and facts of the case, potential issues that could be raised by Mother, and counsel's assessment of why those issues are meritless, with citations to relevant legal authority. Counsel attached to his brief a copy of his letter to Mother, advising her that she may obtain new counsel or raise additional issues pro se. Accordingly, counsel has complied with the requirements of Anders and Santiago. We, therefore, may proceed to review the issues outlined in the Anders brief. In addition, we must "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) (footnote omitted).
Counsel's brief includes a certificate of service, indicating that counsel provided a copy to Mother.
In his letter, counsel informed Mother that she should send any responsive filings to the Superior Court Prothonotary's Office in Harrisburg. However, counsel provided Mother with an incorrect mailing address. The Prothonotary's Office contacted Mother's counsel, and informed him of this mistake. On February 22, 2017, counsel provided this Court with a copy of an additional letter to Mother, informing her of the correct mailing address. Mother did not file a response to counsel's Anders brief.
Counsel's Anders brief raises the following issues for our review.
1. Whether the [orphans'] court abused its discretion when it changed the goal from reunification to adoption?Anders brief at 9 (unnecessary capitalization, underlining, suggested answers, and footnotes omitted).
2. Whether the [orphans'] court abused its discretion when it involuntarily terminated appellant Mother's parental rights?
We first consider whether the orphans' court abused its discretion by changing Child's permanency goal to adoption. Our standard of review is well-settled.
[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when considering a petition for a goal change for a dependent child, the juvenile court is to consider, inter alia: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child's safety; and (7) whether the child has been in placement for at least fifteen of the last twenty-two months. The best interests of the child, and not the interests of the parent, must guide the trial court. As this Court has held, a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation marks omitted).
Instantly, the orphans' court issued a thorough opinion discussing its decision to involuntarily terminate Mother's parental rights. While the court did not discuss its decision to change Child's permanency goal to adoption, we find that its discussion of the evidence supporting termination also supports its decision to change Child's goal. In its opinion, the court found that Mother failed to remedy the conditions which resulted in Child's removal from her care, as she failed to comply with drug treatment, relapsed into drug use, and was incarcerated repeatedly. Orphans' Court Opinion, 2/9/2017, at 12-13. Further, the court found that Mother has been absent for nearly Child's entire life, and that there is no evidence that Mother and Child share a bond. Id. at 14. Instead, Child is bonded with her foster mother, who is the only parental figure Child has known. Id. at 15.
Our review of the record supports the findings of the orphans' court. During the goal change and termination hearing, the Agency presented the testimony of Mother's parole agent, Christina Zborovian. Ms. Zborovian testified that Mother was convicted of possession of marijuana, possession with intent to deliver, driving without a license, and driving under the influence in September 2014. N.T., 12/13/2016, at 63-64. As a result of these convictions, Mother was sentenced to eighteen months of county probation. Id. at 64. However, Mother's probation was revoked in December 2014, and she was resentenced to fourteen to twenty-eight months of incarceration. Id. Mother was released in January 2016. Id. at 63. Ms. Zborovian testified that Mother violated the conditions of her parole almost immediately after her release, by testing positive for marijuana, PCP, and cocaine on February 12, 2016. Id. at 64-65. Mother submitted another positive drug test for marijuana and PCP on February 22, 2016. Id. at 66. On February 23, 2016, Ms. Zborovian transported Mother to an inpatient drug and alcohol treatment center. Id. Mother absconded on March 7, 2016, and a warrant was issued for her arrest. Id. Mother was apprehended and incarcerated from March 18, 2016, until May 17, 2016, at which point she admitted to additional use of marijuana and PCP. Id. On August 1, 2016, Ms. Zborovian received a letter from Mother's outpatient drug and alcohol treatment provider, indicating that they were discharging her unsuccessfully due to her lack of attendance. Id. Mother was incarcerated for a third time on August 11, 2016, after she once again tested positive for marijuana and PCP. Id. at 67. Mother remained incarcerated at the time of the goal change and termination hearing. Id. at 68.
Concerning Child's relationship with Mother, the Agency presented the testimony of caseworker, Tricia Deatrick. Ms. Deatrick testified that Child has spent her entire life in the care of her foster mother, G.H., and never resided with Mother. Id. at 98. By the time of the goal change and termination hearing, Child had been in G.H.'s care for approximately two years. Id. G.H. reported to Ms. Deatrick that Mother often visited with Child during the times that she was not incarcerated, and that Child "did form a bond with her mother." Id. at 99. However, Ms. Deatrick explained that Mother's visits lasted only a short time, due to her frequent incarcerations. Id. Ms. Deatrick opined that Child's best interest would be served by changing Child's permanency goal to adoption. Id. at 112. Ms. Deatrick reported that Child has an "extensive bond" with G.H. Id. Child also is bonded with her sibling J., who has already been adopted by G.H. Id. at 113.
Thus, the record amply supports the finding of the orphans' court that Child's permanency goal should be changed to adoption. Mother has never cared for Child. Child is now over two years old, and has spent the entirety of that time residing with her foster mother, G.H. Child is bonded to G.H., and G.H. already has adopted Child's sibling, J. Meanwhile, Mother has made little, if any, progress toward being able to parent Child. Mother failed to comply with drug treatment and relapsed into drug use, resulting in her current incarceration. It was well within the court's discretion to conclude that Child's life should not be put on hold any longer, and that Child's best interest would be served by being adopted by G.H. As this Court has explained in the context of involuntary termination of parental rights proceedings, "a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
We next consider whether the orphans' court abused its discretion by terminating Mother's parental rights to Child involuntarily. We do so mindful of the following.
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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis.
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).
The orphans' court terminated Mother's parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b), which provides as follows.
(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:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(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.
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(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months,
the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
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(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
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23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
(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.
As discussed above, the Honorable John F. Cherry authored a thorough and well-reasoned opinion in support of his decision to terminate Mother's parental rights. See Orphans' Court Opinion, 2/9/2017, at 9-15 (finding that Child was removed from Mother's care on December 3, 2014, that Mother failed for the next two years to remedy the conditions which led to Child's removal, and that terminating Mother's parental rights will best serve Child's needs and welfare). In his opinion, Judge Cherry emphasized that he did not terminate Mother's parental rights based solely on the fact of her incarceration, but that he "found as dispositive Mother's failure to place her parental duty to her child above her continued drug use and resulting re-incarceration." Id. at 13. The record overwhelmingly supports this determination. Because we agree with the sound reasoning of the orphans' court, we adopt the court's opinion as dispositive of the Mother's challenge to the termination of her parental rights. In the event of future proceedings, the parties are directed to attach a copy of the court's February 9, 2017 opinion to this decision. The opinion should be redacted to exclude Child's birthday, the names of Child and her parents, and the name of Child's foster mother, who is also her maternal grandmother.
Our Supreme Court has held that incarceration is a permissible factor for courts to consider when terminating parental rights. In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012). The Court stated that "incarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing 'essential parental care, control or subsistence' and the length of the remaining confinement can be considered as highly relevant to whether 'the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,' sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2)." Id.
With regard to Section 2511(b), the orphans' court indicated in its opinion that "Mother presented no evidence upon which we may find that a bond exists which, if broken, will cause detriment to [Child]." Orphans' Court Opinion, 2/9/2017, at 14. It is important to note that it was not Mother's burden to prove that a bond existed between her and Child. Rather, it was the burden of the Agency to prove that termination will serve Child's needs and welfare by clear and convincing evidence. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Nonetheless, because the evidence confirms overwhelmingly that termination will serve Child's needs and welfare, we need not remand this matter for a new Section 2511(b) analysis. --------
Accordingly, our independent review of Mother's claims demonstrates that they do not entitle her to relief. Moreover, our review of the record does not reveal any non-frivolous issues overlooked by counsel. See Flowers , 113 A.3d at 1250. Therefore, we grant counsel's motion to withdraw, and we affirm the December 14, 2016 order and decree.
Motion to withdraw granted. Order and Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/3/2017
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