Opinion
J-S77016-16 No. 813 MDA 2016
10-12-2016
IN THE INTEREST OF: J.E.L.-B. & J.C.-B., MINORS APPEAL OF: A.B., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered April 21, 2016
In the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 2706 of 2015, 2707 of 2015 BEFORE: PANELLA, OLSON and PLATT, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
A.B. ("Mother") appeals from the decree dated and entered on April 21 2016, granting the petitions filed by the Lancaster County Children and Youth Social Services Agency ("CYS" or the "Agency"), and involuntarily terminating her parental rights to her male, minor children, J.C.-B., born in August of 2014, and J.E.L.-B., born in April of 2013, (individually, "Child," or collectively, the "Children"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b). Mother's counsel, Attorney Gina M. Carnes ("Counsel"), filed 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 the motion to withdraw filed by Mother's counsel.
In separate decrees dated and entered on April 21, 2016, the trial court voluntarily terminated the parental rights of J.C.-B.'s father, C.A.M., Jr., and involuntarily terminated the parental rights of J.E.L.-B.'s father, P.S., under section 2511(a)(1), (2), and (b). Neither father has appealed the termination of his parental rights, nor is either father a party to the instant appeal.
In its opinion entered on June 17, 2016, the trial court aptly set forth the factual and procedural background of this appeal, which we adopt herein. In her timely appeal filed on May 19, 2016, Mother raises one issue challenging the sufficiency of the evidence to support the termination of her parental rights to the Children. See Anders Brief at 6.
In her concise statement that accompanied her notice of appeal, Mother stated her issue somewhat differently from her statement of questions involved portion of her brief, but neither document designated a particular subsection of section 2511 with regard to which the evidence was insufficient. We find that Mother adequately preserved her issue for our review. Cf. Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both the concise statement of errors complained of on appeal and the statement of questions involved section of the appellate brief).
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;
(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
(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 re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
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. "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 , 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.
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 [a] petition to withdraw a copy of the letter sent to the[] client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Counsel attached to her motion to withdraw and Anders brief a copy of her letter to Mother, dated July 20, 2016, in compliance with Millisock.
Here, counsel complied with each of the requirements of Anders. Counsel states that she conscientiously examined the record and determined that an appeal would be frivolous. Further, counsel's Anders brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, counsel filed, with her motion to withdraw, a copy of the letter that counsel sent to Mother, advising her of her right to proceed pro se or retain alternate counsel and file additional claims, and stating counsel's intention to seek permission to withdraw. Accordingly, counsel complied with the procedural requirements for withdrawing from representation, and we will proceed with our independent review.
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., 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., 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , 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.In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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 , 650 A.2d 1064, 1066 (Pa. 1994).
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 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). The trial court terminated Mother's parental rights under section 2511(a)(1), (2), (5) and (b). We will focus on section 2511(a)(2) and (b), which provides 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.
* * *
(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.
In the Anders brief, Mother contends that the trial court failed to give her credit for the items that she completed, or partially completed, on her reunification plan for Child. Anders Brief, at 11. In particular, Mother asserts that she undertook efforts to complete the plan, particularly with regard to goals relating to her work history, commitment to the Children, and mental health counseling. Mother complains that Agency caseworkers did not do enough to assist her in cutting through some of the "red tape" involved in the mental health care system. Mother alleges that she experienced a delay in meeting the requirement, imposed by the Agency's provider, of having a family member complete a family history form. Mother asserts that, by imposing this requirement, the Agency placed an obstacle in her path. Mother argues that the Agency knew she had cognitive issues and nevertheless did nothing to assist her in timely completing her mental health goal objective. Accordingly, Mother argues that the Agency effectively abandoned its duty to work with her toward the completion of her plan. Id. Mother also complains that the Agency failed to produce the expert who conducted her mental health and intelligence quotient testing, which was the basis for the Agency's request that Mother have an adaptive functioning assessment. Id. at 12. Mother asserts that the Children were in a pre-adoptive home at the time of the termination hearing, and that allowing Mother additional time to satisfy the plan for reunification would not have caused a disturbance in their daily lives. Id.
To satisfy the requirements of section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal that caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights under section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
While Mother contends that the trial court abused its discretion and erred as a matter of law in terminating her parental rights when CYS failed to provide reasonable efforts to promote reunification between her and the Children prior to filing the termination petitions, our Supreme Court has held that the trial court is not required to consider reasonable efforts in relation to a decision to terminate parental rights under section 2511(a)(2). In the Interest of: D.C.D., 105 A.3d 662, 675 (Pa. 2014). Thus, we find her argument lacks merit.
Nevertheless, the facts, as found by the trial court, support the conclusion that CYS made reasonable efforts to reunify the Children with Mother. After a careful review of the record in this matter, we find that the record supports the trial court's factual findings. We also conclude that the trial court's legal determinations are not the result of an error of law. In re Adoption of S.P., 47 A.3d at 826-27. We, therefore, affirm the termination of Mother's parental rights with regard to the Children under section 2511(a)(2) on the basis of the trial court opinion entered on June 17, 2016. See Trial Court Opinion, 6/17/16, at 3-5.
Next, we review the termination of the parental rights of Mother under section 2511(b). 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).
Mother claims that it was in the Children's best interest to have a chance for reunification with her. Mother asserts that it is unjust for the trial court to terminate her parental rights because the Children have bonded with her, and she does not wish for them to experience a feeling of loss. Anders Brief, at 12.
In reviewing the evidence in support of termination under section 2511(b), our Supreme Court recently 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., [620 A.2d 481, 485 (Pa. 1993), Our Supreme] 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., 71 A.3d 251, 267 (Pa. 2013).
In its opinion, the trial court found that the Children have been in placement in the same foster home for nineteen months, that they do not actively remember a time when they were living with Mother, and that any bond with her was limited, at best. See Trial Court Opinion, 6/17/16, at 7. Moreover, the trial court found that the Children are thriving in a loving home with their foster parents and are clearly bonded with the other children in the home who have been adopted by the resource family. Id. Additionally, the trial court found from the testimonial evidence that Mother's visits would cause J.C.-B. distress. Id. The trial court stated:
[J.E.L.-B. and J.C.-B.] cannot wait for an indefinite period of time for the stability and care of a permanent family in the hope that their biological [m]other will drastically change her behavior and accomplish her goals. The [C]hildren are all doing well, and have spent more time with their current family than with anyone else. After nineteen months, [J.E.L.-B. and J.C.-B.] have a much
closer bond with their foster parents than the minimal connection they have with their [m]other. It is clear to this [c]ourt that the best interest of these children is served by Mother's rights being terminated and the [C]hildren [being] adopted.Trial Court Opinion, 6/17/16, at 7.
After a careful review of the record in this matter, we find that the record supports the trial court's factual findings and that the court's legal conclusions are not in error. In re Adoption of S.P., 47 A.3d at 826-27. Accordingly, it was proper for the trial court to find no bond exists such that the Children would suffer permanent emotional harm if Mother's parental rights were terminated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). It is well-settled that "we will not toll the well-being and permanency of [a child] indefinitely." In re Adoption of C.L.G., 956 A.2d at 1007, citing In re Z .S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting 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."). We, therefore, affirm the termination of Mother's parental rights with regard to the Children under section 2511(b), on the basis of the trial court opinion. See Trial Court Opinion, 6/17/16, at 6-7. We also grant Counsel's motion to withdraw. As we are affirming based on the trial court opinion, the parties are directed to attach a copy of said opinion (with the names and all identifying information regarding the parties and the Children redacted) to any future filings in this Court.
"Once counsel has satisfied the [requirements for withdrawal from representation], 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 ). After conducting an independent review, we find that this appeal is wholly frivolous.
Decree affirmed. Counsel's motion to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/12/2016
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