Opinion
J-S17032-17 No. 2854 EDA 2016 No. 2855 EDA 2016 No. 2856 EDA 2016
04-13-2017
IN THE INTEREST OF: T.M.B., a Minor APPEAL OF: A.B., Mother IN THE INTEREST OF: M.A.H., a Minor APPEAL OF: A.B., Mother IN THE INTEREST OF: M.S.S.H., a Minor APPEAL OF: A.B., Mother
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000649-2016; CP-51-DP-0001530-2015 Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000082-2016; CP-51-DP-0001190-2014 Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000084-2016; CP-51-DP-0001191-2014 BEFORE: OLSON, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
A.B. ("Mother") appeals from the Orders terminating her parental rights as to her children, T.M.B. (born in May 2015), M.A.H. (born in June 2006), and M.S.S.H. (born in March 2008) (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changing each child's permanency goal to adoption. Counsel for Mother has filed a Petition to Withdraw from representation, and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). After careful consideration, we grant counsel's Petition to Withdraw, and affirm the Orders of the trial court.
Anders principles apply to appeals involving termination of parental rights. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).
In its November 14, 2016 Opinion, the trial court set forth the history underlying the instant appeal, as well as its Findings of Fact. See Trial Court Opinion, 11/14/16, at 1, 3-8 (unnumbered). We adopt the trial court's recitation for the purpose of this appeal. See id.
On August 4, 2016, the trial court entered Orders terminating Mother's parental rights as to Children, and changing each child's permanency goal to adoption. Thereafter, Mother filed a timely Notices of Appeal and Concise Statements of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
This Court consolidated the cases for disposition.
Subsequently, Mother's counsel filed with this Court a Petition to Withdraw from his representation of Mother, and an Anders brief.
When presented with an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). To be permitted to withdraw, 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 brief to the client; and (3) advise the client that he or she has the right to retain private counsel or raise additional arguments that the client deems worthy of the court's attention. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).
Here, counsel filed a Petition to Withdraw, stating that he "has made a thorough and conscientious examination of the record." Petition to Withdraw, ¶ 4. Counsel notified Mother of the withdrawal request, supplied her with copies of the Petition to Withdraw and the Anders brief, and sent Mother a letter explaining her right to proceed pro se or with new, privately-retained counsel to raise any additional points or arguments that Mother believes have merit. See id. at ¶ 3; Letter, 1/3/17. Consequently, we conclude that Mother's counsel has met the procedural requirements of Anders .
We must next determine whether counsel's Anders brief meets the requirements established by the Pennsylvania Supreme Court in Santiago . In Santiago , our Supreme Court stated that 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.Santiago , 978 A.2d at 361. Further, "[a]fter establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa. Super. 2006) (quoting Commonwealth v. Townsend , 693 A.2d 980, 982 (Pa. Super. 1997)).
In the Anders brief, counsel provides a summary of the facts and procedural history of the case, refers to evidence of record that might arguably support the issues raised on appeal, provides citations to relevant case law, states his conclusion that the appeal is wholly frivolous, and provides his reasons for concluding the appeal is frivolous. Accordingly, counsel has complied with the requirements of Anders and Santiago .
Mother has not filed a pro se brief or a counseled brief with new, privately-retained counsel. We, therefore, review the following issues raised in the Anders brief:
Whether there is anything in the record that might arguably support the appeal that obviates a conclusion that the appeal is frivolous[?]
...
Anders Brief at 6 (capitalization omitted, issues renumbered).[1.] Whether it was proven by clear and convincing evidence that Mother's parental rights should be terminated under Sections 2511(a) & (b)[?]
[2.] 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.[A.] [§] 671 et seq.[,] reasonable efforts were made to reunite [] Mother with [Children] and whether the goal changes to adoption [were] the disposition best suited to the safety, protection and physical, mental and moral welfare of [] Children[?]
Regarding the termination of her parental rights, counsel states Mother's potential argument that the Department of Human Services ("DHS") and the Wordsworth Community Umbrella Agency ("CUA"), which had been assigned to provide services to the family, failed to make reasonable efforts to reunify Mother with Children. Anders Brief at 18.
In the Anders brief, counsel points out that Mother failed to appear for the termination hearing/goal change hearing. Anders Brief at 12. As a result, counsel stipulated to the averments of the termination Petitions. Id. --------
Our Supreme Court has set forth the following standards in reviewing the termination of parental rights:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. ... [O]ur standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (some internal citations omitted).
The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Moreover, as we have explained, "[t]he standard of clear and convincing evidence is defined as testimony that 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.'" Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
In its Opinion, the trial court set forth the relevant law and its reasons for terminating Mother's parental rights to Children pursuant to subsections (a)(2) and (b). See Trial Court Opinion, 11/14/16, at 9-11 (unnumbered). The trial court's findings are supported in the record, its legal conclusions are sound, and we discern no abuse of discretion by the trial court. See id. We therefore affirm on the basis of the trial court's Opinion with regard to the termination of Mother's parental rights to Children pursuant to subsections (a)(2) and (b). See id.; see also In re D .C.D., 105 A.3d 662, 675 (Pa. 2014) (stating that, "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.").
In the Anders brief, Mother next claims that the change of Children's permanency goal to adoption is not in Children's best interests. Anders Brief at 20.
"When we review a trial court's order to change the placement goal for a dependent child to adoption, our standard is abuse of discretion." In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). "[T]he best interests of the child and not the interests of the parent must guide the trial court, and the burden is on the child welfare agency involved to prove that a change in goal would be in the child's best interest." In re R.I.S., 36 A.3d at 573 (citations omitted). The safety, permanency, and well-being of the child must take precedence over all other considerations. In the Matter of S.B., 943 A.2d 973, 978 (Pa. Super. 2008).
Having already determined that it is in Children's best interests to terminate Mother's parental rights, we also agree that it is in Children's best interests to change their permanency goals to adoption. Accordingly, we affirm the termination of Mother's parental rights as to Children, and the change of Children's permanency goals to adoption.
Orders affirmed.
Judge Stabile joins the memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/2017
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