Opinion
1142 EDA 2024 1143 EDA 2024 J-S28015-24
08-22-2024
IN THE INTEREST OF: M.R.V.J., A MINOR APPEAL OF: T.J., MOTHER IN THE INTEREST OF: M.R.V.J., A MINOR APPEAL OF: T.J., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered April 24, 2024 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-DP-0000970-2021
Appeal from the Decree Entered April 18, 2024 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-AP-0000394-2023
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM
STABILE, J.
T.J. (Mother) appeals from the April 18, 2024 decree involuntarily terminating her parental rights to her biological son, M.R.V.J., born September 2021. She also appeals the order entered the same day changing M.R.V.J.'s permanency goal to adoption. In addition, on July 1, 2024, Mother's counsel filed a petition to withdraw, together with an Anders brief, averring that the appeal is frivolous. Upon review, we affirm the termination decree, dismiss Mother's appeal from the goal change order as moot, and grant counsel's petition to withdraw.
The parental rights of M.R.V.J.'s biological father, R.F., as well as any potentially unknown father, were involuntarily terminated the same day. Father did not file an appeal.
Anders v. California, 386 U.S. 738 (1967).
We glean the factual and procedural history of the above-captioned matters from the certified record. On September 21, 2021, the Philadelphia Department of Human Services (DHS) received a general protective services ("GPS") report from hospital staff who were concerned with Mother's mental health and her ability to comprehend. See Application for Protective Custody, 9/24/21. Hospital staff reported that Mother was experiencing psychosis and not aware of reality after giving birth to M.R.V.J. Id. DHS visited Mother in the hospital the next day and noted that the conversation was disorganized. Dependency Petition, 10/8/21, ¶ c. Mother was unable to focus on topics, did not answer questions directly, and appeared to have inappropriate emotional reactions. Id. For example, Mother became hostile when asked if she had a place to reside after being discharged from the hospital. Id.
On September 23, 2021, DHS was notified that Mother was not accepted into a women's shelter due to her psychiatric history. Id., ¶ d. DHS was also informed that Maternal Grandmother, V.J., contacted the hospital and attempted to visit, but Mother refused. Id. Maternal Grandmother and Mother have a strained relationship, but Maternal Grandmother agreed to care for M.R.V.J. Id. On September 24, 2021, DHS was awarded protective custody of M.R.V.J. and, at a shelter care hearing, the trial court determined M.R.V.J. should remain in the care and custody of the agency.
M.R.V.J. was adjudicated dependent on October 27, 2021, and placed in kinship care with Maternal Grandmother, where he has remained during the pendency of these proceedings. On October 2, 2023, DHS filed a petition to involuntarily terminate Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a) and (b). The trial court held a goal change and termination hearing on April 18, 2024, wherein DHS presented the testimony of community umbrella agency ("CUA") case manager, Samir Ismail, and introduced the dependency docket as a stipulated exhibit. N.T., 4/18/24, at 7. Mother testified on her own behalf. Id. at 48-60. The same day, the trial court entered a decree involuntarily terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
Lisa Visco, Esquire was appointed as legal counsel for M.R.V.J., and Christopher Park, Esquire served as guardian ad litem for M.R.V.J.
On April 24, 2024, Mother filed a timely notice of appeal and statement of errors complained of on appeal. The trial court complied with Pa.R.A.P. 1925(a), and the cases were consolidated sua sponte. Mother now raises two issues for our review:
1) Whether the trial court abused its discretion and erred as a matter of law in terminating Mother's parental rights under 23Pa.C.S.A. § 2511(a) and (b) because the decision was not supported by competent evidence.
2) Whether the trial court abused its discretion and erred as a matter of law in changing the goal of the case to adoption because the decision was not supported by competent evidence.Anders Brief at 8.
"When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel's request to withdraw." Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). The principles of Anders apply to appeals involving the termination of parental rights. In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992). To withdraw pursuant to Anders, counsel must:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has determined that 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 that he deems worthy of the court's attention.Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). The Anders brief must comply with the following requirements:
(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.Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once these requirements are satisfied, "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." Goodwin, 928 A.2d at 291.
Counsel has satisfied the first requirement of Anders by filing a motion to withdraw, wherein he asserted that he made a conscientious review of the record and determined the appeal would be frivolous. Likewise, counsel has satisfied the second requirement by filing an Anders brief that complies with the requirements set forth in Santiago, supra. Lastly, counsel has attached to the motion to withdraw a copy of the letter sent to Mother advising of her rights and enclosing a copy of the Anders brief. Therefore, we conclude that counsel has complied with the Anders requirements and proceed to a review of the merits.
Our standard of review in this context is well-settled:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. When applying this standard, the appellate court must accept the trial court's findings of fact and credibility determinations if they are supported by the record. Where the trial court's factual findings are supported by the evidence, an appellate court may not disturb the trial court's ruling unless it has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion or the facts could support an opposite result. Instead, an appellate court may reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. This standard of review reflects the deference we pay to trial courts, who often observe the parties first-hand across multiple hearings.
In considering a petition to terminate parental rights, a trial court must balance the parent's fundamental right to make decisions concerning the care, custody, and control of his or her child with the child's essential needs for a parent's care, protection, and support. Termination of parental rights has significant and permanent consequences for both the parent and child. As such, the law of this Commonwealth requires the moving party to establish the statutory grounds by clear and convincing evidence, which is evidence that is so clear, direct, weighty, and convincing as to enable a trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.Interest of M.E., 283 A.3d 820, 829-30 (Pa. Super. 2022) (internal citations and quotations omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis:
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 interest of the child.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations omitted). "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." In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004) (citing In re C.S., 761 A.2d 1197, 1199 (Pa. Super. 2000)).
Here, the trial court terminated Mother's parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the trial court as to any one subsection of Section 2511(a), as well as Section 2511(b), to affirm. Id. at 384. We begin our analysis with Section 2511(a)(2), which states:
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.A. § 2511(a)(2). "The grounds for termination are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied." In re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super. 2021), appeal denied, 258 A.3d 1144 (Pa. 2021). We emphasize that "[p]arents are required to make diligent efforts toward the reasonably prompt assumption of full parental duties." Id. "A parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties." B.L.W., 843 A.2d at 387-88.
Here, the trial court found that since M.R.V.J. was adjudicated dependent, Mother "refused, or proved unable, to address her mental health issues and remedy the conditions that brought [M.R.V.J.] into care. This was despite constant recommendations from CUA and the trial court to do and the offering of services and support to accomplish her goals." Trial Court Opinion, 7/21/24, at 10. Thus, "Mother lacked the capacity to address [M.R.V.J.'s] basic emotional and physical needs." Id.
Mother's permanency plan objectives essentially remained the same throughout the life of the case. N.T., 4/18/24, at 10. Initially, Mother's objectives were to: (1) remain in communication with CUA; (2) engage with Behavioral Health Services for mental health treatment and follow all recommendations; (3) maintain consistent visitation with M.R.V.J.; and (4) obtain appropriate housing. Id. at 11.
The record demonstrates that Mother achieved substantial compliance with her permanency plan objectives and progress toward alleviating the circumstances that brought M.R.V.J. into care by December 2022. Unfortunately, Mother's compliance and progress regressed to moderate in April 2023, and further regressed to minimal beginning in September 2023.
Mother is diagnosed as bipolar with depression, and mental health professionals have attempted to treat her conditions with prescribed medication. Id. at 13-14. Mother took medication for some time, but stopped taking it because she did not like the way the medication made her feel. Id. at 14. Samir Ismail, CUA case manager, testified that Mother's moderate and substantial compliance with the permanency plan objectives and progress toward alleviating the circumstances that brought M.R.V.J. into care coincided with the time that she took her prescribed medication. Id. at 27. At the time, Mother resided in a shelter and staff reported that they would remind Mother to take her medication often. Id. at 14. However, Mother would sometimes "give them a fight or a fit" when it was time to take it. Id.
Mother testified that "I just don't want to take pills. Because it's my freaking prerogative. Like I don't have to take pills, especially when they make me feel different . . . they make me feel weird." Id. at 52. She testified, "I will not take medication." Id. at 53. Mother's testimony was erratic, and she frequently interrupted her thought process to discuss unrelated topics. For example, when talking about taking her medication:
Like you take pills for a few weeks to a few months. And you're like, 'Well I don't really.' Like at this point I don't like the way that the pills are making me feel, so I'm going to get off of the pills and throw the freaking bottles in the trash.
Because there is a proper way to dispose of medication. That's why. It's about how you dispose of medication. And like I said, I'm going to school for psychology to be a clinical psychologist because of how I was raised.Id. at 52. Mother claimed that she was in therapy but admitted that she had not gone in a few weeks. Id. at 54-55.
Mother was initially afforded weekly supervised visitation at the agency. Id. at 22. However, she would often confirm the visitation and either arrive late or fail to show up at all. Id. at 12, 38-39. As a result, Mother's visits were reduced to twice a month. Id. at 22. During the 14 months that Mr. Ismail was Mother's CUA case manager, she attended five or six visits with M.R.V.J. Id. at 8, 24. Mr. Ismail supervised three visits and stated that there were no concerns. Id. at 19-20. "[Mother] would come in. She would carry him. They would play together. [Mother] would put on music." Id. at 43.
Regarding visitation, Mother testified:
I've made several visits. It's just because - why is everyone just focused on Mr. Samir Ismail? Being that he's the CUA worker. Like he's the current CUA worked. That - those are Crayola crayons. I'm glad that those are Crayola.
No. I'm just saying. I'm glad that those are Crayola. Like I'm serious. I've had several CUA workers before Samir Ismail.
I've had Earl. I've had Daneer Cook. I've had several. Yeah, several others. So you have to.
You have to like take in account for all of the visits that led up to today's court hearing. Because I started visits a really long time ago.Id. at 55. When asked why she missed visits, Mother blamed her lack of compliance on DHS:
Well because some of the visits were canceled. There were a few storms that had ensued upon our city. So like I just couldn't make the visits.
There was a snowstorm. There was a rainstorm. They had canceled, canceled, cancel. And I'm like 'Okay. So when can we reschedule?" Then they kept.
Yeah. Like I wasn't able. Like well it's not that I wasn't able to receive any text messages. It's just that no one actually notified
me by e-mail, text message, or telephone call in regards to the next visit at 40th Street.
That's - like these are just the cold hard facts. Like I'm not joking with you. Like this is actually ridiculous. It's ridiculous that I just haven't receive the right type. Like I haven't received the freaking phone calls.Id. at 56
As for housing, Mother resided in the Women for Hope Shelter for approximately one year, but absconded from the shelter on March 1, 2024, after she was approved for an independent living program which required her to take her prescribed medication. Id. at 17-18. Mother informed Mr. Ismail that she was moving to New Hope, Pennsylvania with a male friend. Id. at 17. In April 2024, Mother informed Mr. Ismail that she had returned to Philadelphia and that many of the shelters would not accept her because she had too many bags of clothing, and was unable to return to Women of Hope Shelter because she had given them trouble in the past. Id. at 19-21. Mr. Ismail provided Mother resources for housing and suggested that she leave some of the bags and move into the shelter. Id. at 21. At the time of the termination hearing, Mother was homeless. Id. at 21. Mother testified that she had been "doing [her] best to find an apartment" since 2019. Id. at 57.
Based on the foregoing, Mr. Ismail opined that Mother lacked the capacity to provide a safe and stable home for M.R.V.J. Id. at 44. He believed that Mother's biggest barrier was "her mental health and just understanding the significance of being stable and stabilizing her mental health." Id. at 37. "[Mother] needs to be stabilized herself. And if you're not stabilized yourself, that's going to be very hard for you to care for a child alone." Id. at 44.
Mother testified that she has the capacity to safely and appropriately parent M.R.V.J. "[b]ecause I went through with the pregnancy instead of doing something else. . . . I went through with my pregnancy. And I carried him for nine months." Id. at 48. Mother interrupted the agency's argument and went on a tangent about her pregnancy, insisting that no one can stop her from being a mom, and claiming that being able to set up a baby gate made her a good parent. Id. at 62-64.
Accordingly, the record demonstrates that Mother's repeated and continued incapacity to comply with her permanency objectives due to her refusal to take prescribed medication and inability to obtain appropriate housing has caused M.R.V.J. to be without essential parental care, control or subsistence necessary for his physical and mental well-being. Mother's ability to comply with her objectives coincided with taking her prescribed medication, and her refusal to do so impedes her ability to provide appropriate parental care. Thus, the conditions and cause of Mother's incapacity cannot or will not be remedied. Therefore, the trial court did not abuse its discretion in terminating Mother's parental rights pursuant to Section 2511(a)(2).
We now turn to Section 2511(b), which states, in pertinent part:
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.23 Pa.C.S.A. § 2511(b). "Notably, courts should consider the matter from the child's perspective, placing her developmental, physical, and emotional needs and welfare above concerns for the parent." Interest of K.T., 296 A.3d 1085, 1105 (Pa. 2023). This determination "should not be applied mechanically," but "must be made on a case-by-case basis," wherein "the court must determine each child's specific needs." Id. at 1106.
Our Supreme Court has mandated that a Section 2511(b) analysis must include "consideration of the emotional bonds between the parent and child." In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). Thus, the court must determine whether the adverse impact of severing the parent-child bond "is outweighed by the benefit of moving the child toward a permanent home." Id. at 253.
[B]y evaluating the impact of severance to determine if it will impose more than an adverse or detrimental impact, courts correctly refine their focus on the child's development and mental and emotional health rather than considering only the child's "feelings" or "affection" for the parent, which even badly abused and neglected children will retain.K.T., 296 A.3d at 1110.
However, "courts must not only consider the child's bond with the biological parent, but also examine the intangibles such as the love, comfort, security, and stability the child might have with the foster parent." K.T., 296 A.3d at 1111 (emphasis in the original; internal citations and quotation marks omitted). Thus, courts should also consider factors that naturally arise due to the particular facts of a case, such as: (1) the child's need for permanency and time in foster care; (2) whether the child is in a pre-adoptive home and bonded with foster parents; and (3) whether the foster home meets the child's needs. Id. at 1113.
Here, Mr. Ismail testified that M.R.V.J. does not have a bond with Mother. Id. at 33. Mother has not attended any of the child's medical appointments and has not sent any gifts or cards for the child's birthday or holidays. Id. at 32. M.R.V.J. has been in his pre-adoptive home since he was five days old and looks to Maternal Grandmother for love, protection and support, and Maternal Grandmother meets all M.R.V.J.'s needs. Id. at 28, 30-31. M.R.V.J. is doing exceptionally well and developmentally on target. Id. at 28. Mr. Ismail testified that Maternal Grandmother and M.R.V.J. interact as mother and son, and are both very happy. Id. at 30.
Based on the foregoing, we find no abuse of discretion or error of law in the trial court's ruling that termination was warranted pursuant to Section 2511(b). Accordingly, we affirm the decree terminating Mother's parental rights.
We now turn to Mother's separate challenge of the trial court's order changing M.R.V.J.'s permanency goal from reunification to adoption. Under Pennsylvania law, our decision above affirming the trial court's termination decree renders any challenge to the goal change order moot. See In re Adoption of A.H., 247 A.3d 439, 446 (Pa. Super. 2021); see also In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) ("An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect."). Accordingly, we dismiss Mother's goal change appeal as moot, and grant counsel's petition to withdraw.
Decree affirmed. Appeal from goal change order dismissed as moot. Petition to withdraw granted.
Judgment Entered.