Opinion
J-S64016-18 No. 1708 EDA 2018
12-13-2018
IN THE INTEREST OF: E.L.A-L., A MINOR APPEAL OF: D.L-A., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree and Order May 24, 2018
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000477-2017, CP-51-DP-0000534-2016, FID: 51-FN000492-2016 BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY OLSON, J.:
D.L.A. ("Mother") appeals from the decree dated and entered on May 24, 2018, granting the petition filed by the Philadelphia County Department of Human Services ("DHS") seeking to involuntarily terminate her parental rights to her minor male child, E.L.A.-L., born in June of 2014, pursuant to the Adoption Act, 23 Pa.C.S. § 2511. Mother also appeals from the permanency review order dated May 24, 2018, pursuant to the Juvenile Act, 42 Pa.C.S. § 6351, directing that E.L.A.-L. remain in the legal custody of DHS, and that he remain in foster care. Mother's counsel, Attorney Emily Beth Cherniack, ("Counsel") filed with this Court a motion for leave to withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We affirm, and grant Counsel leave to withdraw.
At the hearing on the termination petition held on May 24, 2018, Attorney Mary Ann Galeota represented Child as his child advocate (legal counsel), and Attorney Maureen Pié, represented Child as his guardian ad litem ("GAL"). See In re: Adoption of L.B.M., ___ Pa. ___, 161 A.3d 172 (2017) (plurality) (initially filed on March 28, 2017). In L.B.M., our Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. The Court defined a child's legal interest as synonymous with his or her preferred outcome. In In re T.S., ___ Pa. ___, 192 A.3d 1080 (2018), the Supreme Court held that the trial court did not err in allowing the children's GAL to act as their sole representative during the termination proceeding because, at two and three years old, they were incapable of expressing their preferred outcome. The Court explained, "if the preferred outcome of the child is incapable of ascertainment because the child is very young and pre-verbal, there can be no conflict between the child's legal interests and his or her best interests; as such, the mandate of Section 2313(a) of the Adoption Act that counsel be appointed 'to represent the child,' 23 Pa.C.S. § 2313(a), is satisfied where the court has appointed an attorney-[GAL] who represents the child's best interests during such proceedings." Id. at ___, 192 A.3d at 1092. Here, E.L.A.-L. had both a legal counsel and a GAL. While his preferred outcome is not part of the record, E.L.A.-L., who is autistic, was under the age of four and had been in care for twenty-six months, and was receiving therapeutic services at the time of the hearing. See N.T., 5/24/18, at 34. Accordingly, we find that E.L.A.-L.'s pre-verbal age and developmental challenges obviate the need for any inquiry into his preferences, and that the mandates of L.B.M. and T.S. are satisfied.
The trial court did not terminate the parental rights of E.L.A.-L.'s father, M.L. a/k/a M.J.L., ("Father") at the hearing on the termination petition regarding Mother. Rather, the court granted a thirty-day continuance of the hearing as to the termination of Father's parental rights in order to provide him an opportunity to voluntarily relinquish his parental rights. N.T., 5/24/18, at 8-9. The trial court notes that Father is not a party to this appeal. See Trial Court Opinion, 6/28/18, at 1, n.1. We further note that Father did not file a brief or otherwise participate in this appeal.
The trial court fully and accurately set forth the procedural history and factual background of this appeal in its opinion entered on June 28, 2018, which we adopt herein. See Trial Court Opinion, 6/28/18, at 1-5. On April 27, 2017, the Agency filed petitions to terminate both Mother's and Father's parental rights to E.L.A.-L., and to change E.L.A.-L.'s permanency goal to adoption. On May 24, 2018, the trial court held an evidentiary hearing on the petitions. At the hearing, Mother was present with her counsel. Father's counsel was present, but Father was not present. The legal counsel for E.L.A.-L., Attorney Galeota, was present, as was the GAL, Attorney Pié.
On May 24, 2018, the trial court entered the decree that terminated Mother's parental rights to E.L.A.-L. under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, and the permanency review order that directed that legal custody of E.L.A.-L. remain with DHS, and that E.L.A.-L.'s permanency goal remain placement in foster care. On June 5, 2018, Mother filed a notice of appeal, along with a concise statement of errors complained of on appeal, from the termination decree and permanency review order.
Before we review the substantive issues presented by Mother on appeal, we must first address a procedural question. In Commonwealth v. Walker , ___ Pa. ___, 185 A.3d 969 (2018), our Supreme Court recently held:
[I]n future cases Rule 341(a) will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.Id. at 977 (emphasis added).
Walker was filed on June 1, 2018; Mother's notice of appeal was filed four days later, on June 5, 2018.
Here, the decree and order entered on May 24, 2018 from which Mother appeals were listed at two docket numbers in the trial court, one from the adoption (termination) matter, and the other from the dependency (goal change) matter. However, the termination decree solely resolves the issue regarding the termination of Mother's parental rights to E.L.A.-L. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See Decree of Involuntary Termination of Parental Rights, 5/24/18, at 2. The permanency review order does not resolve any issues with regard to dependency, and, notably, the docket number listed on the May 24, 2018 permanency review order references only the Adoption Docket, CP-51-AP-0000477-2017. As the decree and order resolve only issues arising from the trial court's adoption docket, i.e., issues relating to the termination of Mother's parental rights, we find that Walker is not controlling, and we need not quash the appeal.
Although Mother included both adoption and dependency docket numbers on her singular notice of appeal, she does not raise any issue with regard to the dependency matter in her appellate brief, nor do we discern any such issues. We observe that the trial court maintained the status quo in the permanency order, as the termination/permanency goal change matter had been continued as to Father.
While the record contains the permanency review order dated May 24, 2018, Mother's issues do not challenge the dependency matter.
On August 20, 2018, Mother's counsel filed a motion to withdraw as counsel and an Anders brief on behalf of Mother. In her Anders brief on appeal, Counsel raises the following issues on behalf of Mother:
A. Whether the trial court erred in involuntarily terminating [] Mother's parental rights pursuant to 2511(a)(1), 2511(a)(2), 2511(a)(5), 2511(a)(8) where it was not supported by clear and convincing evidence?Anders Brief (redacted) at 4.
B. Whether the trial court erred in involuntarily terminating [] Mother's parental rights where there was a bond between [] Mother and [E.L.A.-L.] and the termination of parental rights would have a negative effect on the developmental, physical and emotional needs of the [E.L.A.-L.]?
Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw 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;In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (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 In re V.E., 611 A.2d 1267, 1274-1275 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. "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 at 1237.
In Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (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 , 602 Pa. at 178-79, 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.
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).
Counsel has complied with each of the requirements of Anders. Counsel indicates that she conscientiously examined the record and determined that an appeal would have no meritorious issues, and that the appeal is wholly frivolous. Further, Counsel's Anders brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, attached to her motion to withdraw is a copy of Counsel's letter to Mother, dated August 20, 2018. In compliance with Millisock , the letter stated Counsel's intention to seek permission to withdraw, and advised Mother of her right to proceed by submitting any comments or arguments to this Court on her own behalf, or to retain new counsel to represent her on appeal. Accordingly, Counsel has complied with the procedural requirements for withdrawing from representation, and we will proceed with our own independent review.
The letter is dated August 20, 2018, but also includes a second date of February 6, 2015, which is an apparent typographical error.
In the Anders brief, Counsel raised whether the Agency presented insufficient evidence to support the involuntary termination of Mother's rights under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. Anders Brief, at 4.
In her Anders brief, Counsel does not challenge the permanency review order under section 6351 of the Juvenile Act This Court has stated, "[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). See Commonwealth v. Flowers , 113 A.3d 1246, 1250 (Pa. Super. 2015) (following Goodwin ). Thus, we may address whether the Agency established the grounds for the termination and the goal change to adoption as part of our independent review. As we noted above, we discern no such issues, since the trial court maintained the status quo in the permanency order because the termination/permanency goal change matter was continued as to Father.
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.; R.I.S., [614 Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. 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, 654-655], 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., [608 Pa. at 28-30], 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 (1994).In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (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).
Moreover, 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)).
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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Sections 2511(a)(2) and (b) provides, in relevant part, 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:
* * *
(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.
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), (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.
The Supreme Court set forth our inquiry under section 2511(a)(2) as follows.
As stated above, § 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that "[t]he 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." . . .
This Court has addressed incapacity sufficient for termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891 (Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383 A.2d 1228, 1239 (Pa. 1978).
This Court has long recognized that a parent is required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous. Id. at 340.
This Court has stated that the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the evidence in support of termination under section 2511(b), our Supreme Court has stated as follows.
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
When evaluating a parental bond, "the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations omitted). Although it is often wise to have a bonding evaluation and make it part of the certified record, "[t]here are some instances . . . where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child." In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008).
A parent's abuse and neglect are likewise a relevant part of this analysis. In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental rights, despite existence of some bond, where placement with mother would be contrary to child's best interests). "[A] parent's basic constitutional right to the custody and rearing of . . . her child is converted, upon the failure to fulfill . . . her parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).
In its opinion entered on June 28, 2018, the trial court fully and adeptly discussed its reasons for finding that the Agency satisfied its burden of proof under sections 2511(a)(2) and (b). We, therefore, find no abuse of the trial court's discretion in terminating Mother's parental rights to E.L.A.-L. under sections 2511(a)(2)and (b). In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. Finding no issues of merit, either with regard to the termination decree or the permanency review order, after our independent review of the record, we, thus, affirm the trial court's termination decree and permanency review order on the basis of the trial court opinion, and grant counsel's motion for leave to withdraw. We direct the parties to attach the trial court's opinion to all future filings based upon our disposition of this appeal.
Decree and order affirmed. Motions to withdraw granted. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/13/18
We grant counsel's motions to withdraw at both the adoption and dependency dockets pertaining to this case. See Supra. at footnotes 4 and 5.
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