Opinion
J-S12045-16 No. 1830 EDA 2015
02-18-2016
IN THE INTEREST OF: C.T.N., III, A MINOR APPEAL OF: C.E.B., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Decree May 20, 2015, in the Court of Common Pleas of Philadelphia County, Juvenile Division, at No(s): CP-51-AP-0000009-2015 BEFORE: MUNDY, OLSON, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
C.E.B. (Mother) appeals from the May 20, 2015 decree granting the petition of the Philadelphia Department of Human Services (DHS) to terminate involuntarily Mother's parental rights to C.T.N., III (Child)., Also before the Court is the petition of Mother's counsel to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We affirm the decree and grant the petition to withdraw.
The same day that the trial court terminated Mother's parental rights to Child, the court entered a decree terminating the parental rights of C.T.N., Jr. (Father). This appeal does not address the decree terminating Father's parental rights to Child.
The assignment of this appeal to this panel was delayed due to the failure of the trial court to transmit the certified record to this Court in a timely fashion. Such delays are unacceptable. We remind the trial court that time is of the essence in cases involving the termination of parental rights.
Because counsel was appointed to represent Mother, an indigent parent, and because Mother is appealing from a decree terminating her parental rights, counsel may seek to withdraw pursuant to Anders. In re: V.E., 611 A.2d 1267 (Pa. Super. 1992).
Child was born on July 29, 2012. On March 22, 2013, DHS received a General Protective Services (GPS) report alleging that Child and his brother (collectively referred to as "Children") were residing in unsanitary living conditions with Mother and Father. More specifically, the home, inter alia, was littered with cat feces, houseflies, and soiled clothing; moreover, Mother appeared to be uninterested in keeping the home clean.
The report was substantiated, and on March 22, 2013, DHS obtained an Order of Protective Custody (OPC) for Children. Children were removed from the home. Child's brother later was placed in the care of his natural father, where he continues to reside. The trial court summarized the remainder of the background underlying this matter as follows.
On March 27, 2013, at the Shelter Care hearing, the trial court lifted the OPC and ordered the temporary commitment to DHS to stand. On the same day, Child was placed in foster care through Women's Christian Alliance, where he currently remains. On April 3, 2013, [] Child was adjudicated dependent and fully committed to DHS. The trial court ordered DHS to refer Mother to the Achieving Reunification Center ("ARC"), the Behavioral Health System ("BHS"), and Family School. Mother was granted liberal supervised visits.
On April 12, 2013, DHS referred Mother to ARC but Mother was not compliant with the referral. On April 30, 2013, an ARC field worker met with Mother and encouraged her to participate at ARC services. Mother agreed to report to ARC on May 4, 2013, but she failed to do so. In May 2013, due to Mother's failure to respond to several ARC outreach attempts, ARC discontinued their efforts to encourage Mother to participate in the services offered.
Mother did not attend her [Family Service Plan (FSP)] meetings [in] May 2013. On May 14, 2013, Mother started to
attend Family School and on June 6, 2013, the initial [FSP] was developed for Mother. Mother's objectives were to stabilize her mental health, to attend family school, employment, housing and parenting classes, to maintain a relationship with [] Child [through] regular visitation, and to meet [] Child's basic needs.
On June 20, 2013, Family Support Services completed a Family School report that indicated Mother missed several class days. On June 25, 2013, Mother participated in a psychological evaluation. Mother was diagnosed with adjustment disorder with a depressed mood.
On the same date, at a Permanency Review hearing, the trial court found Mother to be minimally compliant with her FSP objectives. Mother did not attend her FSP meetings in August 2013. On September 11, 2013, at the Permanency Review hearing, the trial court found that Mother was not attending mental health services at Community Organization for Mental Health and Retardation ("COHMAR") and [Mother's visits] remained supervised at the agency. The trial court found Mother minimally compliant with her FSP objectives.
On January 24, 2014, Family Support Services completed a Family School report that noted that Mother continued to miss classes. On March 19, 2014, Mother participated in another psychological evaluation. During the evaluation, Mother disclosed that she had a history of mental issues such as bipolar disorder, depression and anxiety. Mother also stated that DHS referred her to psychotherapy but she refused to attend because she did not want to be upset with questions. Additionally, Mother admitted being easily upset and experiencing lack of motivation, anhedonia, sad mood, mood swings, low self-[esteem] and excessive worry. Mother reported having these symptoms before she lost the custody of [] Child. Mother was diagnosed with a major depressive disorder. Individual therapy was recommended to address Mother's depression.
On February 5, 2014, at a Permanency Review hearing, Mother was found minimally compliant with her FSP objectives. The trial court ordered Mother to be notified and invited to Child's medical appointments. At the Permanency Review hearing, on May 6, 2014, Mother was found fully compliant with her FSP objectives. Mother's visitation remained supervised. At
the same hearing, Mother was ordered by the trial court to attend an intake appointment at COHMAR. However, on May 7, 2014, Mother failed to attend the appointment.Trial Court Opinion, 9/22/2015, at 2-3 (citation omitted; reformatted for ease of reading).
At the Permanency Review hearing, on September 16, 2014, the trial court found Mother non-compliant with her FSP objectives. Mother's visits remained supervised. DHS filed its petition to terminate Mother's parental rights on January 7, 2015.
At the Permanency Review hearing, on May 20, 2015, the trial court found Mother minimally compliant with her FSP objectives. On May 20, 2015, the trial court terminated Mother's parental rights [pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b)]. At the termination hearing, Mother stipulated to the statement of facts on the petitions and DHS exhibits. [Mother timely filed a notice of appeal and a statement pursuant to Pa.R.A.P. 1925(a)(2), and the trial court subsequently issued an opinion in support of its decision.]
Counsel then filed with this Court a petition to withdraw and an Anders brief. We consider such matters as follows.
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof....
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of Anders , this Court will deny the petition to withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders , we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.Commonwealth v. Wrecks , 931 A.2d 717, 720-21 (Pa. Super. 2007) (citations omitted). Our Supreme Court has expounded further upon the requirements of Anders as follows.
[I]n 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 , 978 A.2d at 361.
Based upon our examination of counsel's petition to withdraw and Anders brief, we conclude that counsel has substantially complied with the technical requirements set forth above. Therefore, we now have the responsibility "'to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.'" Commonwealth v. Flowers , 113 A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago , 978 A.2d at 354 n.5).
Mother has not responded to counsel's petition to withdraw.
The Anders brief suggests that only one issue might arguably support this appeal, namely, whether DHS presented sufficient evidence to allow the trial court to terminate Mother's parental rights. We consider this issue mindful of the following.
In cases involving the termination of a parent's rights, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (internal quotations and citations omitted).
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand.... We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
Our courts apply a two-part analysis in considering termination of 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 P.Z., 113 A.3d 840, 850 (Pa. Super. 2015) (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).
The governing statute provides, in relevant part, 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.
***
23 Pa.C.S. § 2511.
(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) ... 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.
We have explained this Court's review of a challenge to the evidence to support the involuntary termination of a parent's rights pursuant to subsection 2511(a)(1) as follows:
To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition, [s]ection 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties. 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 [s]ection 2511(b).In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations and quotations omitted).
We have offered the following to guide us in determining what exactly parental duties are.
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. 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 re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations and quotations omitted).
In its opinion, the trial court determined that DHS presented sufficient, competent evidence to support a determination that termination of Mother's parental rights was proper pursuant to subsection 2511(a)(1). Trial Court Opinion, 9/22/2015, at 3-6. We can discern no error in the court's rationale. We therefore adopt this portion of the trial court's opinion in determining that DHS presented sufficient evidence that termination of Mother's parental rights was proper pursuant to subsection 2511(a)(1). The parties shall attach a copy of the trial court's September 22, 2015 opinion to this memorandum in the event of further proceedings. We now turn our attention to subsection 2511(b).
Based upon our conclusion regarding subsection (a)(1), we need not consider whether the trial court properly terminated Mother's parental rights pursuant to subsections 2511(a)(2), (5), or (8). See In re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011) ("We must agree with the trial court's decision as to only one subsection of 23 Pa.C.S. § 2511(a) in order to affirm the termination of parental rights.").
In reviewing the evidence in support of termination under subsection 2511(b), we consider whether the termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. See In Re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287 (citations omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing the bond on the child. See id.
The trial court determined that Mother waived any challenge to its subsection 2511(b) determination because she failed to present an issue regarding this subsection in her Pa.R.A.P. 1925 statement. Trial Court Opinion, 9/22/2015, at 3. Assuming arguendo that Mother did not waive this issue, we conclude that DHS presented sufficient evidence to allow the trial court to find that DHS met its burden of proof under subsection 2511(b).
The only witness to testify for DHS at the termination hearing was Bianca Perez, a case worker for APM Community Umbrella Agencies. Relevant to subsection 2511(b), Ms. Perez testified that Child has lived in his current foster care home since he was eight months old. N.T., 5/20/2015, at 22. Child is very bonded to his foster mother; he calls her "mommy" and tells her that he loves her. Id. at 29. According to Ms. Perez, foster mother and Child have a very strong maternal bond. Id. Ms. Perez also explained that foster mother takes care of all of Child's needs. Id. at 29-30.
Ms. Perez acknowledged that there is a bond between Mother and Child, but she "wouldn't describe it as a maternal bond[.]" Id. at 30. Ms. Perez opined that Child would not suffer irreparable harm if Mother's parental rights were terminated. Id. Furthermore, Ms. Perez believed that Child would suffer such harm if he were removed from his foster mother. Id. at 31.
Within the context of concluding that termination was proper pursuant to subsection 2511(a)(8), which requires a determination as to whether termination of parental rights would best serve the needs and welfare of the child, the trial court stated,
[] Child has been in his respective [foster care] home for a long time. [] Child is in a safe home and stable environment with foster parents providing for all [of] his needs. [] Child needs permanency. Termination of Mother's parental rights and adoption would best serve the needs and welfare of [] Child. The testimony of the DHS witnesses [sic] was unwavering and credible.Trial Court Opinion, 9/22/2015, at 8 (citations omitted). We agree with the court.
Mother's progress toward meeting her goals has been minimal and inconsistent. All the while, Child's foster mother has provided him with love, comfort, security, and stability. Moreover, DHS presented sufficient evidence to establish that severing the bond between Mother and Child will not result in irreparable harm to Child. Child's need for permanency cannot wait until Mother decides to participate in the care and support of Child.
Consequently, the trial court properly concluded that termination of Mother's parental rights best serves Child's needs and welfare. Thus, we agree with Mother's counsel that any issue challenging the sufficiency of the evidence to support the decree is frivolous. Moreover, we have conducted "a full examination of the proceedings" and conclude that "the appeal is in fact wholly frivolous." Flowers , 113 A.3d at 1248. Accordingly, we affirm the court's decree and grant counsel's petition to withdraw.
Decree affirmed. Petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/18/2016
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