Opinion
J-S17013-15 J-S17014-15 No. 1805 WDA 2014 No. 1806 WDA 2014
05-14-2015
IN RE: M.M.P., A MINOR APPEAL OF: R.A.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered October 2, 2014, in the Court of Common Pleas of Allegheny County, Orphans' Court, at No(s): TPR 130 of 2013 Appeal from the Order entered October 2, 2014, in the Court of Common Pleas of Allegheny County, Family Court, at No(s): TPR-13-000130 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
R.A. ("Father"), and S.P. ("Mother") appeal from the orders entered in the Allegheny County Court of Common Pleas terminating their parental rights to their child, M.M.P., a/k/a M.P., ("Child") (born in December of 2008), pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. We affirm, and grant the petition to withdraw as counsel filed by Mother's counsel.
We note that in a separate order the trial court involuntarily terminated the parental rights of the unknown father of Child. Order, 10/2/14. The unknown father has not challenged the termination of his parental rights, and is not a party to this appeal.
23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).
The trial court aptly set forth the factual background and procedural history of these appeals in its opinion filed on December 3, 2014, which we adopt herein. See Trial Ct. Op., 12/3/14, at 3-9. On July 31, 2013, Allegheny County Children, Youth and Families ("CYF") filed a petition for the involuntary termination of the parental rights of Father, Mother, and the unknown father of Child. On August 13, 2013, Amy L. Berecek, Esq. entered her appearance as the guardian ad litem ("GAL") for Child. Father's trial and appellate counsel, Raymond N. Sanchas, Esq. entered his appearance on behalf of Father. On January 25, 2014, Mother's trial and appellate counsel, Marsha H. Grayson, Esq. entered her appearance on behalf of Mother. In January of 2014, Eris Altar-Krupski, Esq. was appointed the GAL for Mother, who has a history of mental health issues. N.T., 10/2/14, at 133.
On April 2, 2014, and October 2, 2014, the trial court held evidentiary hearings on the termination petition. On April 2, 2014, CYF presented the testimony of Neil Rosenbum, Ph.D., a licensed psychologist, who testified, via telephone, as an expert witness through the stipulation of the parties. N.T., 4/2/14, at 4-5. The hearing was continued to October 2, 2014. Mother and Father were not present at the October 2, 2014 hearing, despite efforts to have them attend, but were represented by their counsel at the hearing. N.T., 10/2/14, at 2-6.
In orders dated and entered on October 2, 2014, the trial court terminated the parental rights of Father and Mother to Child pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. On November 3, 2014, Mother filed a notice of appeal and statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On that same date, Father filed a notice of appeal and statement of errors complained of on appeal. On December 30, 2014, Mother's counsel filed a petition to withdraw as counsel and an Anders brief with this Court.
See Anders v. California , 386 U.S. 738 (1967).
In the Anders brief, Mother's counsel raises the following issues:
1. Whether the Trial Court erred or abused its discretion in finding that the Office of Children, Youth and Families met their burden of proof and proved by clear and convincing evidence that the parental rights of S.P. should be terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), [and] (8)[?]Anders Brief, at 1-2.
2. Whether the Trial Court erred or abused its discretion in finding that the Office of Children, Youth and Families met their burden of proof and proved by clear and convincing evidence that terminating the parental rights of S.P. best meets the needs and welfare of the minor child M.P. pursuant to 23 Pa.C.S.A. § 2511(b)[?]
On appeal, Father raises one issue:
Did the trial court abuse its discretion and/or err as a matter of law in concluding that CYF met its burden of
proving by clear and convincing evidence that termination of Father's parental rights would best serve the needs and welfare of his child pursuant to 23 Pa.C.S.A. § 2511(b)?Father's Brief, at 5.
We begin by addressing the motion to withdraw. See In re X.J . 105 A.3d 1, 3 (Pa. Super. 2014) (stating "[w]hen counsel files an Anders brief, this Court may not review the merits without first addressing counsel's request to withdraw.").
In In re V.E ., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. We stated that counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating parental rights may, after a conscientious and thorough review of the record, petition this Court for leave to withdraw representation and must submit an Anders brief. In re V.E ., 611 A.2d at 1275. To withdraw pursuant to Anders , counsel must: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. In re V.E ., 611 A.2d at 1273. Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. Id .
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;Santiago , 978 A.2d at 361.
(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.
Mother's counsel has complied with the first prong of the test in Santiago by providing a summary of the procedural history and facts in her Anders brief. Counsel has also complied with the second prong of the test in Santiago by referring to any evidence in the record that counsel believes arguably supports the appeal. Counsel has 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 counsel states that she has made a conscientious examination of the record, and she has concluded that the appeal is frivolous. Further, counsel has attempted to identify and fully develop any issues in support of Mother's appeal. Additionally, counsel states that she sent a letter to Mother in which she provided a copy of the Anders brief. Counsel states that she informed Mother that she has filed a motion to withdraw and an Anders brief, and she informed Mother of her rights in light of the motion to withdraw as counsel. Thus, Mother's appellate counsel has satisfied the requirements of Santiago .
Next, we address the first issue in the Anders brief, that is, whether the trial court erred in granting the termination petition because the evidence was insufficient to support the termination under section 2511(a)(1), (2), (5), (8). In reviewing an appeal from the termination of parental rights, we review the appeal in accordance with 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 ., [ ] 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
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 S.P ., 47 A.3d 817, 826-27 (Pa. 2012) (some citations omitted).
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 . (citation omitted).
The trial court terminated the parental rights of Mother and Father under section 2511(a)(1), (2), (5), (8), and (b). 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). We will focus on section 2511(a)(2) and (b), which provide as follows:
We note that Father has not challenged the termination of his parental rights under section 2511(a), and has limited his challenge to the sufficiency of the evidence under section 2511(b). He avers: "Father is not contesting that there is a basis in the record to support the finding of the trial judge that grounds for termination under 23 Pa.C.S. §2511(a) were proven by sufficient evidence." Father's Brief at 12.
(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:23 Pa.C.S. § 2511(a)(2), (b).
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(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.
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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.
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 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. 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).
Our 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." If and only if grounds for termination are established under subsection (a), does a court consider "the developmental, physical and emotional needs and welfare of the child" under § 2511(b).In re Adoption of S.P ., 47 A.3d at 827 (citation omitted).
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.
This Court has stated:
an agency is not required to provide services indefinitely if a parent is either unable or unwilling to apply the instruction given. The goal of intervention is to rehabilitate the family and reunite the child with his family, or to terminate parental rights and free the child for adoption, if reasonable efforts over an appropriate period of time have failed. Therefore, [the agency's] duties must have reasonable limits. If a parent fails to cooperate or appears incapable of benefiting from reasonable efforts supplied over a realistic period of time, the agency has fulfilled its mandate and upon proof of satisfaction of the reasonable good faith effort, the termination petition may be granted.In re A.L.D . 797 A.2d at 340 (quotation marks and citations omitted).
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." In re Z.P ., 994 A.2d 1108, 1125 (Pa. Super. 2010) (citation omitted). Rather, "a parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B ., N.M ., 856 A.2d 847, 856 (Pa. Super. 2004).
On April 2, 2014, Dr. Rosenblum testified. Maternal Grandmother has been Child' primary caregiver for approximately two years. N.T., 4/2/14, at 6. On October 16, 2012, he performed an interactional evaluation of Child and Mother and Father. Id . at 8, 11. Mother tried to relate to Child and there is no question that she loves him. Id . at 9. There is a bond between them. Id . Child enjoyed spending time with both Mother and Father. Id . Mother's parenting skills were inconsistent because of her mental health problems. Id . at 10. "She's not capable of consistently maintaining an awareness of [Child] or making appropriate decisions about both short-term things, such as keeping him safe at all times, and watching him carefully as well as being able to make independent decisions about his well being." Id .
Father's parenting skills were fairly positive. Id . at 11. He related to the types of things a young boy would enjoy doing. Id . Child enjoyed, "at that time, a comfortable attachment and a good relationship with" Father. Id .
When he observed Mother and Father together, Child preferred playing with Father. Id . There was "a lot that [he] didn't know about Mother and Father" in terms of them parenting Child together on a long term basis. Id . at 11-12. Father worked a lot of hours and "Mother reported being very isolated." Id . at 12. Mother and Father downplayed the issue of domestic violence. Id . Mother would not be able to parent Child on her own. Id . Father "did admit to one or two incidents where he claims Mother would attack him or come after him." Id . at 13. Father acknowledged Mother's mental health problems and the fact that they did not have money for her medication. Id . Mother was inconsistent with medication and treatment. Id .
Father filled out a mental health questionnaire and "was highly unrealistic in his responses." Id . at 13-14. Father displays impulsive behavior. Id . at 14. He diagnosed Father has having "adjustment disorder, not otherwise specified, partner relational problem, parent/child relational problem . . . ." Id .
Mother's interview revealed that she had considerable mental health problems. Id . at 15. She appeared to be delusional at times and confused in her thought processes. Id . "Her judgment and insight [were] extremely poor." Id . Mother has "[s]chizoaffective disorder with a rule-out of psychotic disorder NOS, and apparent child relational problems and schizoid personality traits." Id . at 16. Her global assessment of functioning score was forty-five which indicates very serious mental health concerns. Id . He felt he needed more information about Father's employment history and possible alcohol abuse and the relationship between Mother and Father. Id . at 17. They were living in Virginia and more information was needed regarding their living situation. Id .
NOS stands for not otherwise specified.
He concluded "Mother's mental health problems as they presented when [he] did [his] evaluation would interfere with her—grossly interfere with her ability to take primary care of [Child]." Id . at 38. Father understood the severity of Mother's mental health problems but "overlooked the significance and the impact and danger to [Child]." Id . at 39.
Following Dr. Rosenblum's testimony, the court ordered CYF "to schedule updated interactionals and individuals on all parties . . . ." Id . at 46. A hearing was held on October 2, 2014. Neither Mother nor Father appeared at the hearing. N.T., 10/2/14, at 5. Dr. Rosenblum continued his testimony at the hearing. He conducted evaluations on June 23, 2014 and July 10, 2014 to assess Child's needs, relationships with Mother, Father, his grandmother and his uncle. Id . Father acknowledged Mother's mental health problems but was not proactive in seeing that she was in treatment and took her medications. Id . at 11-12. He came to see Child two weeks before the evaluation but had not seen him since Thanksgiving and Christmas of 2013. Id . at 12. The previous visit was close to a year prior to the visits in 2013. Id .
He conducted testing but the results were "lacking in validity." Id . at 14. Father admits to no problems or concerns "for depression, anxiety, domestic violence, alcohol use, not even any indications of sadness or regret in regard from being away from [Child]." Id . His diagnosis for Father was "adjustment disorder, with disturbance of conduct, rule out history of alcohol abuse, history of partner relational problems, and parent/child relational problems." Id . at 15.
Mother "shows very clear clinical signs of psychotic disorder, most likely schizo-affective disorder, which combines schizophrenic symptom along with episodes of mania, and likely depression as well." Id . at 16. She saw Child two to three times a year. Id . at 18. She denied having any friends in Virginia where she lives. Id . She associates with her Mother-in-law who lives in Virginia. Id . The testing results for her were "rather invalid." Id . at 19. Mother responded on some tests "no" to every question or "true to every question . . . ." Id . He diagnosed her with "[s]chizo-affective disorder, bipolar type, parent/child relational problem, history of partner relational problem, and schizo and independent personality traits." Id . at 20. Her GAF score was fifty, indicating "severe difficulty in personal functioning." Id .
Two and one-half years have transpired since child came into care and "it's clear . . . that Mother is definitely not capable of caring for" Child "and that her mental health problems remain very serious, and largely not improved." Id . at 30.
Christopher Michael Ciccarelli, family service caseworker for CYF testified. Id . at 51-52. There were no services offered to Mother by CYF because she was living in Virginia and CYF cannot provide services out of state. Id . at 65, 102. CYF was ordered to do an Interstate Compact with Virginia and it was done November 5, 2012. Id . at 62. On January 16, 2013, it was closed due to lack of cooperation between the family. Id . When Child was removed from Mother, Father was in Virginia. Id . at 117. He was not providing care for Child. Id . at 118. Mother and Father were both in Virginia Beach as of May 25, 2012. Id. at 119.
See Interstate Compact on the Placement of Children, 62 P.S. § 761.
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After our careful review of the record in this matter, we find that the trial court's determinations are supported by competent evidence in the record. See In re Adoption of S.P ., 47 A.3d at 826-827; In re Adoption of M.E.P ., 825 A.2d at 1272. Accordingly, we find that the trial court's determinations regarding section 2511(a)(2), with regard to Mother and Father, are supported by sufficient evidence in the record. See In re R.N.J ., 985 A.2d at 276.
After we determine that the requirements of section 2511(a) are satisfied, we proceed to review whether the requirements of subsection (b) are satisfied. In re Adoption of C.L.G ., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). 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). Id . at 1008.
In reviewing the evidence in support of termination under section 2511(b), our Supreme Court 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)], 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 ., 71 A.3d 251, 267 (Pa. 2013).
This Court has stated:
Being a parent means assuming responsibility so that a real bond develops, not just having a casual relationship with one's children. Children often know, love, and sometimes have an enjoyable time with parents who have little to do with their upbringing, and even with parents who physically and mentally abuse them. The key is whether a bond has developed.In re J.L.C ., 837 A.2d 1247, 1249 (Pa. Super. 2003).
We have stated that, 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. In In re K.Z.S ., 946 A.2d 753 (Pa. Super. 2008), this Court observed that no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond with the natural parent is attenuated. Id . at 764.
Dr. Rosenblum testified that he did an interactional evaluation of Child with Maternal Grandmother. N.T., 10/2/14, at 20. She had been the primary caregiver for approximately two years since Child was removed from Mother's care in May of 2012. Id . at 21. Prior to the evaluation Child was primarily residing with Uncle. Id . Grandmother takes care of Child while Uncle is working. Id . Child and Uncle have "an exceptionally close relationship." Id . at 25. Child views Maternal Grandmother and Uncle as his primary caregivers. Id . at 37.
The trial court found "[t]o the extent that [Child] has a bond or attachment to his parents, it is based only on memories and is in fact residual, and apparently only evidenced by how well he gets along with them at the interactionals. [Child] clearly recognizes his Uncle and Grandmother to be his primary caregivers. The stronger bond and attachment is to them." Trial Ct. Op. at 8. Mother and Father did not put themselves in a position to assume daily parenting responsibilities for Child so that they could develop a real bond with Child. See In re K.Z.S ., 946 A.2d at 764. Father and Mother resided in Virginia, and allowed Child to remain in Pennsylvania, first in the care of Maternal Grandmother for approximately a year and a half, and, later, with Uncle, who wishes to adopt him. See In re J.L.C ., 837 A.2d at 1249.
This Court finds competent evidence in the record to support the trial court's determinations that Child's needs and welfare are being provided by Uncle. We conclude that both Mother's and Father's appeals lack merit as to section 2511(b). See In re: T.S.M.; 71 A.3d at 267; In re Adoption of S.P ., 47 A.3d at 826-27. Accordingly, we affirm the orders terminating the parental rights of Mother and Father pursuant to Section 2511(a)(2) and (b).
Further, we have reviewed the Anders brief. We have found the trial court had sufficient evidence upon which to terminate Mother's parental rights, and that her appeal is frivolous. Accordingly, we grant the motion to withdraw filed by Mother's counsel.
Orders affirmed. Motion to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2015
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