In re Adoption of G.T.

Full title: IN THE MATTER OF: THE ADOPTION OF G.T., Appellee APPEAL OF: A.T., NATURAL…

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jan 24, 2017

No. J-S92014-16 (Pa. Super. Ct. Jan. 24, 2017)

Opinion

J-S92014-16 No. 941 WDA 2016

01-24-2017

IN THE MATTER OF: THE ADOPTION OF G.T., Appellee APPEAL OF: A.T., NATURAL FATHER

MEMORANDUM BY SHOGAN, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree May 27, 2016
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 97 In Adoption 2015 BEFORE: SHOGAN, MOULTON, and STRASSBURGER,^* JJ. MEMORANDUM BY SHOGAN, J.:

* Retired Senior Judge assigned to the Superior Court.

Appellant, A.T. ("Father"), appeals from the decree entered on May 27, 2016, in the Erie County Court of Common Pleas that terminated his parental rights to his minor son, G.T. ("Child"), born in March 2008. Appellant's counsel has filed a petition to withdraw representation and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), which govern withdrawal from representation on direct appeal.¹ Appellant has not filed a pro se response to counsel's petition to withdraw. Following our review, we grant counsel's petition to withdraw and affirm the decree terminating Father's parental rights.

1 This Court extended the Anders principles to appeals involving the termination of parental rights in In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992).

After the entry of the decree terminating Father's parental rights on May 27, 2016, Father filed a timely appeal.² Contained within Father's notice of appeal was a statement of counsel's intention to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967).³ See In the Interest of J.T., 983 A.2d 771, 772 (Pa. Super. 2009) (applying Anders procedure and Pa.R.A.P. 1925(c)(4) to appeals involving the termination of parental rights). On September 2, 2016, counsel filed an Anders brief, and on September 6, 2016, counsel filed a petition to withdraw followed by an amended petition on September 26, 2016.

2 Father's notice of appeal was due by June 26, 2016, which fell on a Sunday. Father's notice, filed the next day on June 27, 2016, therefore was timely filed. 1 Pa.C.S. § 1908 (when thirtieth day of appeal period falls on a Saturday or Sunday, those days are excluded from computation).

3 Anders sets forth the requirements for counsel to withdraw from representation on direct appeal. See also Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).

By letter dated July 13, 2016, the orphans' court informed this Court that it would not draft an opinion because counsel sought to withdraw. Letter, 7/13/16. Due to the permanency of an order involuntarily terminating parental rights, and because the orphans' court's rationale for termination under 23 Pa.C.S. § 2511(a)(1), (2), and (b) could not be ascertained in the notes of testimony,⁴ we remanded to the orphans' court for a thorough opinion on December 16, 2016.⁵ The orphans' court has diligently and timely complied, and this matter is now ready for disposition.

4 N.T., 5/27/16, at 84-85.

5 We note that the filing of a statement of intent to withdraw as counsel pursuant to Anders and Pa.R.A.P.1925(c)(4) does not relieve the orphans' court of its duty to provide the rationale for its decision under Pa.R.A.P. 1925(a)(2).

The orphans' court explained the procedural history as follows:

G.T. was born [i]n March [of] 2008. Amended Petition for Involuntary Termination of Parental Rights, 12/7/15, ¶3. On September 26, 2008, a custody order was entered in Crawford County, Pennsylvania, giving the mother and the Appellant shared [legal] custody of G.T. The mother retained primary physical custody of G.T. and the Appellant was granted periods of visitation with G.T. by the parties' mutual consent. If the parties could make no such agreement, the order stated Appellant was entitled to visitation on Mondays and Wednesdays from one until four p.m., Thursdays from one until six p.m. and on Sunday from twelve noon until six p.m. each week. See Petitioner's Exhibit A.

On December 7, 2015, the mother filed a petition for involuntary termination of parental rights. Appellant received appointed counsel and a termination hearing was held on May 27, 2016.

Appellant's parental rights were terminated by Decree that same day. Appellant filed a timely Notice of Appeal and Statement of Intent to File an Anders brief June 27, 2016.

Trial Court Opinion, 12/29/16, at 1-2.

Before we address the questions raised on appeal, we first must resolve appellate counsel's request to withdraw. Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) (en banc). See Commonwealth v. Rojas , 874 A.2d 638, 639 (Pa. Super. 2005) (stating, "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.").

There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal. The procedural mandates are that 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 [his client]; and 3) advise [his 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.

Cartrette , 83 A.3d at 1032 (citation omitted).

In addition, 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. The Supreme Court reaffirmed the principle that indigents "generally have a right to counsel on a first appeal, [but] . . . this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing such an appeal." Santiago , 978 A.2d at 357 (citation omitted). The Court stated:

In the Court's view, this distinction gave meaning to the Court's long-standing emphasis on an indigent appellant's right to "advocacy." . . . As the Court put it, "although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments."

Santiago , 978 A.2d at 357-358 (citation omitted).

Father's counsel has complied with the first prong of Santiago by providing a summary of the procedural history and facts in the Anders brief. She has complied with the second prong by referring to any evidence in the record that she believes arguably supports the appeal. Counsel also set forth her conclusion that the appeal is frivolous and stated her reasons for that conclusion, with appropriate support. Moreover, counsel filed a separate motion to withdraw as counsel, wherein she stated that she examined the record and concluded that the appeal is frivolous. Further, counsel has attempted to identify and fully develop any issues in support of Father's appeal. Additionally, counsel sent a letter to Father, and she attached a copy of the letter to her motion. Counsel states that she informed Father that she has filed a motion to withdraw and an Anders brief, and she apprised Father of his rights in light of the motion to withdraw as counsel. Thus, Father's appellate counsel has satisfied the requirements of Anders and Santiago. We thus conclude that the procedural and briefing requirements for withdrawal have been met.

In the Anders brief, counsel presents the following issues for our review:

1. Whether the orphans' court erred and/or abused its discretion when it concluded that sufficient grounds were estab[l]ished for termination pursuant to 23 Pa.C.S.A. §2511(a)(1)?

2. Whether the orphans' court erred and/or abused its discretion when it concluded that sufficient grounds were established for termination pursuant to 23 Pa.C.S.A. §2511(a)(2)?

3. Whether the orphans' court erred and/or abused its discretion when it concluded that termination of A.T.'s parental rights was in [C]hild's best interests pursuant to 23 Pa.C.S.A. §2511(B)?

Anders Brief at 4.

We address whether the orphans' court erred in granting the termination petition because the evidence was insufficient to support the termination. In reviewing an appeal from an order terminating parental rights, we adhere to the following standard:

[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. As in dependency cases, our 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 (Pa. 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.; In re R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel-Bassett v. Kia Motors America , Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , 575 Pa. 647, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio , 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343-344 (Pa. Super. 2014) (quoting In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012)).

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). We have explained that the "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)). Moreover, this Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

The orphans' court terminated Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). Order, 5/27/16, at 1. Section 2511(a)(1), (2), and (b) provide as follows:

§ 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.

(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.


* * *

(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. § 2511. This Court has explained that the focus in terminating parental rights under section 2511(a) is on the parent, but under section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).

The orphans' court has provided a thorough evaluation supporting termination of Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2) and (b). We have reviewed the notes of testimony and conclude that the orphans' court's findings and conclusions are supported by the testimony of record, and we adopt the orphans' court opinion as our own.⁶ Moreover, after conducting an independent review of the record, we discern no non-frivolous issues overlooked by counsel. Accordingly, we grant counsel's motion to withdraw.

6 The parties are directed to attach a copy of the orphans' court's opinion of December 29, 2016, to any future filings in this matter. --------

Decree affirmed. Motion to withdraw as counsel granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/24/2017

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