Opinion
J-S56031-17 No. 993 EDA 2017 No. 1029 EDA 2017
11-09-2017
IN THE INTEREST OF: A.A.S., A MINOR APPEAL OF: A.D.T., MOTHER IN THE INTEREST OF: A.T., A MINOR APPEAL OF: A.D.T., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree February 21, 2017, in the Court of Common Pleas of Philadelphia County, Family Court Division, at Nos. CP-51-AP-0000849-2016 and CP-51-DP-0000527-2015 Appeal from the Decree February 21, 2017, in the Court of Common Pleas of Philadelphia County, Family Court Division, at Nos. CP-51-AP-0000848-2016 and CP-51-DP-0000528-2015 BEFORE: BOWES, STABILE, AND PLATT, JJ. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to Superior Court.
In these consolidated appeals, A.D.T., (Mother), appeals from the decrees of the Court of Common Pleas of Philadelphia County entered on February 21, 2017, that involuntarily terminated her parental rights to her Children, A.T. (born in February 2013), and A.A.S. (born in February 2012), and changed their goals to adoption. Mother's counsel has filed a motion to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967). We affirm the trial court's decrees and grant counsel's motion.
This Court consolidated these appeals, sua sponte, on May 9, 2017.
The trial court involuntarily terminated the parental rights of the Children's father, A.L.S., a/k/a A.S. (Father), on January 17, 2017. Father did not appeal.
The trial court has provided a comprehensive narrative of the facts and procedure of this case in its opinion entered May 10, 2017. We direct the reader to that opinion for the history of this case.
Philadelphia's Department of Human Services (DHS) filed its petitions to terminate Mother's parental rights to the Children on September 16, 2016. The trial court held a hearing in this matter on February 21, 2017. Testifying at that hearing, in addition to Mother, was Community Umbrella Agency caseworker, Laitta Maciglio.
The trial court entered its decrees terminating Mother's parental rights to the Children pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b) and changing their goals to adoption on February 21, 2017. Mother filed her notice of appeal and statement of errors complained of on appeal to the termination of her rights to A.A.S. on March 20, 2017, and to A.T. on March 23, 2017. The trial court entered its opinion on May 10, 2017. See Pa.R.A.P. 1925.
On June 19, 2017, Mother's attorney filed a motion to withdraw as counsel and an Anders brief in which she raised the following questions:
[1.] 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) (unnecessary capitalization omitted)
[2.] Whether the trial court committed reversible error when it involuntarily terminated [M]other's parental rights where such determination was not supported by clear and convincing evidence under the adoption act, 23 Pa.C.S.A. [§§] 2511(a)(1), (2), (5), (8)[?]
[3.] Whether the trial court committed reversible error when it involuntarily terminated [M]other's parental rights without giving primary consideration to the effect that the termination would have on the developmental, physical and emotional needs of the Child[ren] as required by the adoption act, 23 Pa.C.S.A. [§] 2511(b)[?]
[4.] Whether the trial court erred because the evidence was overwhelming and undisputed that [M]other demonstrated a genuine interest and sincere, persistent and unrelenting effort to maintain a parent-child relationship with [Children][?]
Before we begin our analysis, we must dispose of the motion to withdraw filed by Mother's counsel.
When considering an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw. In order to comply with Anders and its Pennsylvania progeny, counsel must:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citations omitted) (noting that "the briefing requirements of Anders are appropriate and applicable in an appeal from an order terminating parental rights.").(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.
In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the contents of an Anders brief, and required 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.Santiago , supra at 361. "After an appellate court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." In re S.M.B., supra at 1237 (citation omitted).
With respect to the third requirement of Anders , that counsel inform the defendant 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).
Mother's attorney, in his application to withdraw as counsel, has stated that he has made a conscientious review of the record, concluded that his client's appeal is wholly frivolous, and stated the reasons for his conclusion. In addition, he timely mailed his client: (1) a copy of his petition to withdraw; (2) a copy of the Anders brief; and (3) a letter advising his client of her rights to retain new counsel, proceed pro se or raise any additional points that she deems worthy of the Court's attention. Counsel has filed the required Anders brief in this Court setting forth the issues he believes might arguably support his client's appeal. Thus, we are satisfied that counsel for Mother has complied with the procedural requirements of Anders. Additionally, after an independent examination of the record, we conclude that the appeal is wholly frivolous. See In re S.M.B., supra at 1237. Thus, we grant his leave to withdraw as counsel.
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.
The trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(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.
* * *
23 Pa.C.S.A. §§ 2511(a)(1), (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.
* * *
It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations and internal quotation marks omitted). Further,
A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
To terminate parental rights pursuant to section 2511(a)(1), the person or agency seeking termination must demonstrate through clear and convincing evidence that, for a period of at least six months prior to the filing of the petition, the parent's conduct demonstrates a settled purpose to relinquish parental rights or that the parent has refused or failed to perform parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
With respect to subsection 2511(a)(1), our Supreme Court has held:
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).Matter of Adoption of Charles E.D.M., II , 708 A.2d 88, 92 (Pa. 1998) (citation omitted). Further,
the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (citations omitted).
The Adoption Act provides that a trial 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 Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
We have read the trial court opinion entered in this matter on May 10, 2017, and find it to be a correct and thorough analysis of the issues presented. ( See Trial Court Opinion, 5/10/17, at 8-10, 16-17) (holding that Mother failed to perform her parental duties for nineteen months when Children have been in care and has evidenced a settled purpose of relinquishing parental claims to Children, and Mother's bond with Children is attenuated, adoption is in best interest of Children, and neither Child would suffer irreparable harm if Mother's parental rights were terminated).
Accordingly, we affirm the decrees of the Court of Common Pleas of Philadelphia County, entered February 21, 2017, that involuntarily terminated Mother's parental rights and changed the Children's goals to adoption on the basis of the trial court opinion.
Mother has waived any challenge to the change of permanency goal to adoption by her failure to raise the issue in her concise statement and in the statement of questions involved portion of her brief. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006). --------
Decrees affirmed. Motion to withdraw as counsel granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/9/2017
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