Opinion
J-S80031-17 No. 2669 EDA 2017 No. 2672 EDA 2017
04-06-2018
IN THE INTEREST OF: D.D.M.A.J., A MINOR APPEAL OF: D.E.V.J.J., MOTHER IN THE INTEREST OF: D.A.M.A.J., A MINOR APPEAL OF: D.E.V.J.J., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 16, 2017 in the Court of Common Pleas of Philadelphia County, Family Court at No(s): CP-51-AP-0000417-2017 Appeal from the Order Entered August 16, 2017 in the Court of Common Pleas of Philadelphia County, Family Court at No(s): CP-51-AP-0000418-2017 BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
D.E.V.J.J. ("Mother") appeals from the Orders granting the Petitions filed by the Philadelphia Department of Human Services ("DHS") to involuntarily terminate her parental rights to her female children, D.D.M.A.J. (d/o/b 4/2013) and D.A.M.A.J. (d/o/b 5/2014) (collectively, "Children") pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, and to change Children's permanency goals to adoption. Additionally, Mother's counsel, Patricia A. Cochran, Esquire ("Attorney Cochran"), has filed a Petition to Withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We affirm, and grant Attorney Cochran's Petition to Withdraw.
In separate Orders, the trial court terminated the parental rights of D.L.A. ("Father"), the father of Children. Father did not file an appeal.
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights.
The trial court set forth an extensive recitation of the factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 9/26/17, at 1-2, 3-15.
D.D.M.A.J. was adjudicated dependent on June 8, 2015, while D.A.M.A.J. was adjudicated dependent on July 30, 2015.
On October 23, 2017, Attorney Cochran filed her Petition to Withdraw as counsel and an Anders brief. In the Anders brief, Attorney Cochran raises the following questions for our review:
1. 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 [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8)[?]
2. 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 [Children] as required by the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)[?]Anders Brief at 7. Mother has not filed a pro se brief or retained new counsel.
3. 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?]
The Argument section in the Anders brief includes a single argument and is not "divided into as many parts as there are questions to be argued[.]" Pa.R.A.P. 2119(a).
"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 re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw from representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record . . ., counsel has determined the appeal would be frivolous;Id. (citation omitted).
(2) file a brief referring to anything that might arguably support the appeal. . .; and
(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 he deems worthy of the court's attention.
In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders , i.e., the contents of an Anders brief, and required that the brief
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d 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., 856 A.2d at 1237.
(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.
Attorney Cochran has complied with each of the requirements of Anders. Attorney Cochran indicates that she has conscientiously examined the record and determined that an appeal would be frivolous. Further, Attorney Cochran's Anders brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, attached to Attorney Cochran's Petition to Withdraw is a copy of her letter to Mother, dated October 23, 2017, advising Mother of her right to proceed pro se or retain alternate counsel, and stating Attorney Cochran's intention to seek permission to withdraw. Accordingly, Attorney Cochran has complied with the procedural requirements for withdrawing from representation, and we will proceed with our own independent review to determine whether the appeal is frivolous.
We review an appeal from the termination of parental rights in accordance with the following standard:
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 T.C., 984 A.2d 549, 551 (Pa. Super. 2009) (citation omitted).
Termination of parental rights is controlled by section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner "to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). "[C]lear 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. (citation and quotation marks omitted). Further, 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." In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citation omitted). "[I]f competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result." Id. (citation omitted).
Satisfaction of any one subsection of section 2511(a), along with consideration of section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will review the trial court's decision to terminate Mother's parental rights based upon sections 2511(a)(1) and (b), which state the following:
§ 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.
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(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.A. § 2511(a)(1), (b).
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. ... [P]arental duty is best understood in relation to the needs of a child. ... [T]his [C]ourt has held that the parental obligation is a positive duty[,] which requires affirmative performance. This affirmative duty ... requires a continuing interest in the child and a genuine effort to maintain communication and association with the child.In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (quotation marks and citations 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 re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
In her first claim, Mother contends that the trial court erred in granting the Petition to involuntarily terminate her parental rights to Children, because DHS did not satisfy, by clear and convincing evidence, that her parental rights should be terminated. Anders Brief at 22. Mother argues that she has not evidenced a settled purpose of relinquishing her parental claims to Children or refused to perform her parental duties. Id. at 29.
The trial court addressed Mother's claims and determined that there was clear and convincing evidence to support the termination of Mother's parental rights. See Trial Court Opinion, 9/26/17, at 18; see also id. at 12-15 (detailing the testimony of Children's case manager, stating that Mother had failed to complete her single case plan objectives). After a careful review of the record, we find that there is competent evidence in the record that supports the trial court's findings and credibility determinations. We, therefore, find no reason to disturb the trial court's conclusions or its discretion in terminating Mother's parental rights to Children under section 2511(a)(1). See id.; see also In re B., N.M., 856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a settled purpose of relinquishing his parental rights where he sat idle for most of child's life, and that father's wish to not have his parental rights terminated was insufficient to protect those rights without affirmatively fostering a parental relationship with child).
Regarding section 2511(b), the trial court inquires 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, 1286-87 (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 (citation omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id.; see also In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (stating that "the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship."). "[C]ourts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." In re T.S.M., 71 A.3d 251, 268 (Pa. 2013). In conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d at 1121. Finally, although the focus in terminating parental rights under section 2511(a) is on the parent, it is on the child under section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc); see also In re Z .P., 994 A.2d at 1125 (stating that, a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting.").
Mother contends that the trial court erred in determining that termination served Children's best interests under section 2511(b). Anders Brief at 23, 30. Mother argues that that there was no evidence presented demonstrating a lack of a bond with Children, or that termination would best serve Children's interests. Id. at 30.
Here, the trial court found that the evidence demonstrated, by clear and convincing evidence, that Mother cannot provide safety and security for Children, and that Children are bonded to their foster mother. See Trial Court Opinion, 9/26/17, at 19-21. The trial court's determination that Mother cannot provide for Children's needs and welfare, and that their best interests are served by the termination of Mother's parental rights, is supported by competent, clear and convincing evidence in the record. See id.; see also In re K.Z.S., 946 A.2d at 763-64 (affirming the involuntary termination of the mother's parental rights, despite the existence of some bond, where placement with the mother would be contrary to the child's best interests, and any bond with the mother would be fairly attenuated when the child was separated from her, almost constantly, for four years). Thus, we conclude that the trial court did not abuse its discretion in terminating the parental rights of Mother under section 2511(b), and affirm on the basis of the trial court's Opinion. See Trial Court Opinion, 9/26/17, at 19-21.
Mother also challenges the goal change to adoption. Anders Brief at 22-23.
We note that while the challenge to the goal change was raised in the Argument section of the Anders brief, Mother failed to raise the change of Children's permanency goal to adoption under 42 Pa.C.S.A. § 6351 in her Concise Statement or the Statement of Questions Involved. See Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the Statement of Questions Involved in his brief on appeal). However, "[o]nce counsel has satisfied the above requirements [for a motion to withdraw and Anders brief], it is then this Court's duty to conduct its own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous." Commonwealth v. Goodwin , 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting Commonwealth v. Wright , 846 A.2d 730, 736 (Pa. Super. 2004)). Thus, we may address whether DHS established the grounds for the goal change to adoption as part of our independent review.
Our standard of review in a dependency case is as follows:
The standard of review in dependency cases requires an appellate court to accept 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. We review for abuse of discretion[.]In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation and quotation marks omitted).
Regarding the disposition of a dependent child, section 6351(e), (f), (f.1), and (g) of the Juvenile Act provides the trial court with the criteria for its permanency plan for the subject child. Pursuant to those subsections of the Juvenile Act, the trial court is to determine the disposition that is best suited to the safety, protection and physical, mental and moral welfare of the child. In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (noting that "[w]hen a child is adjudicated dependent, the child's proper placement turns on what is in the child's best interest, not on what the parent wants or which goals the parent has achieved."); see also In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007).
When considering a petition for goal change for a dependent child, the trial court considers
the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.In re A.K., 936 A.2d at 533 (citing 42 Pa.C.S.A. § 6351(f)).
Additionally, Section 6351(f.1) requires the trial court to make the following additional determination regarding the child's placement goal:
(f.1) Additional determination.—Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
42 Pa.C.S.A. § 6351(f.1)(2).
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(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
Our review discloses sufficient evidence in the record to support the trial court's change of Children's permanency goals to adoption pursuant to section 6351 of the Juvenile Act. Indeed, the record reflects that Children had been in DHS's legal custody for over twenty months at the time the Petition was filed; Children had been in foster mother's care since May 2015; and Children's foster mother met all of their needs during this time. Thus, we conclude that the trial court did not abuse its discretion in changing the goal to adoption, as it was in Children's best interests.
Moreover, as we cannot find any additional meritorious issues in the record, and we agree with Attorney Cochran that Mother's appeal is frivolous, we grant Attorney Cochran's Petition to Withdraw from representation.
Orders affirmed. Petition to Withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/6/18
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