Opinion
1123 MDA 2021 1127 MDA 2021 J-A01009-22
04-06-2022
IN RE: ADOPTION OF: R.H.B. APPEAL OF: N.H., MOTHER IN THE INT. OF: R.H.B., A MINOR APPEAL OF: N.H., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered August 9, 2021 In the Court of Common Pleas of Cumberland County Orphans' Court at No(s): 008-ADOPT-2021, CP-21-DP-0000125-2019
Appeal from the Dispositional Order Entered August 9, 2021 In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-DP-0000125-2019
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM
LAZARUS, J.
N.H. (Mother) appeals from the trial court's order and decree changing the permanency goal to adoption and involuntarily terminating Mother's parental rights to her minor daughter, R.H.B. (Child) (born May 2019).Counsel has filed an application and Anders brief seeking to withdraw, claiming that the appeal is wholly frivolous. After careful review, we grant counsel's application, and affirm the decree and order based upon the trial court's opinion.
On September 16, 2021, our Court sua sponte consolidated Mother's appeals at Nos. 1123 MDA 2021 and 1127 MDA 2021. See Pa.R.A.P. 513; Pa.R.A.P. 2138.
Child was represented by legal counsel, Damian J. DeStefano, Esquire, in the matter. Attorney DeStefano concurs with the trial court's opinion and counsel's Anders brief, also concluding that the appeal is wholly frivolous. See Damian J. DeStefano Letter, 10/25/21. Child was also represented by guardian ad litem (GAL), Tammi B. Blackburn, Esquire.
Anders v. California, 386 U.S. 738 (1967).
We note that by filing two separate notices of appeal with one docket number on each notice, Mother has complied with the dictates of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which held that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases." See also Pa.R.A.P. 341(a).
In May 2019, Child was born to Mother and Father, who were never married, but were residing together in Lancaster County in unsuitable housing. Father and Mother have serious intellectual disabilities and a history of limited parenting abilities. Mother was also reported to suffer from anxiety, PTSD, and depression. Child was removed from Parents' care on June 3, 2019, due to Mother's inability to prepare a bottle for child without assistance.Subsequently, legal and physical custody of Child was transferred to Lancaster County CYS. Child was placed in a kinship caregiver home with paternal great aunt and uncle, a long-term and adoptive resource for Child. Id. at 95. On July 29, 2019, Child was adjudicated dependent.
Father has filed separate appeals, from the order terminating his parental rights to Child and decree changing the placement goal, at 1119 MDA 2021 and 1128 MDA 2021.
Mother also has another child, Child's older sister, with Father. Lancaster County Children and Youth Services implemented a safety plan in 2017 as a result of concerns that the child had significant intellectual delays and that Parents were unable to appropriately care for child's basic needs. Paternal grandfather was subsequently awarded custody of that child in 2018. See N.T. Termination Hearing, 4/27/21, at 96.
Mother was observed at her pediatrician's office feeding Child water in a bottle. When the office staff provided Mother with formula to feed Child, she was unable to do so without assistance. At that moment, the pediatrician took the infant and called Lancaster County Child and Youth Services CYS (Lancaster County CYS).
In January 2011, Father pled guilty to aggravated indecent assault without consent, statutory sexual assault, and corruption of minors. The charges stemmed from Father's alleged sexual conduct with a 13-year-old girl. As a result of his guilty plea, Father is a registered lifetime Megan's Law offender and was precluded from having contact with children as a condition of his probation/parole. Father was discharged from probationary supervision on March 12, 2021. N.T. Termination Hearing, 4/27/21, at 41, 91. Lancaster County CYS filed a petition for a finding of aggravated circumstances against Father due to his Megan's Law conviction and parole conditions. The court found aggravated circumstances existed and Father was initially barred from visiting Child.
In August 2019, Mother and Father moved to Camp Hill, Cumberland County, and the case was transferred to Cumberland County Children and Youth Services (CYS), who took custody of Child. In September 2019, Parents participated in a Families & Schools Together (FAST) evaluation, after which it was recommended that Mother participate in TIPS parenting program sessions, which included basic infant care, nutrition and safety. It was also recommended that Mother attend a partial hospitalization program due to a history of sexual, physical, and emotional abuse, as well as anxiety, depression and trauma. The following permanency plan was established for Mother: demonstrate stability in finances and housing; maintain visitation schedule with Child; improve parenting; and participate in mental health evaluations and follow recommendations.
The TIPS program consists of ten parenting education classes. Upon successful completion of the TIPS program, the participant is able to advance to the more intensive SKILLS program for reunification services. See Adoption of: J.L., 870 MDA 2021, *2 n.4 (Pa. Super. filed Dec. 2021) (unpublished memorandum decision) (citation to record omitted). See also Pa.R.A.P. 126(b)(2) ("Non-precedential decisions [of the Superior Court filed after May 1, 2019] . . . may be cited for their persuasive value."); Pa.R.A.P. 126(b)(1).
Mother participated in weekly two-hour visits with Child at Alternative Behavior Consultants (ABC) in October and November 2019 and in TIPS sessions from October 2019 through December 2019. On December 9, 2019, Mother participated in a psychological evaluation that determined she did not have an intellectual disability, but had the functional independence of a nine-year-and-two-month-old child and the social interaction and communication skills level of a six-year-and-nine-month-old child. Mother only attended one of her two weekly visits in December 2019.
At a January 13, 2020 permanency hearing, Mother was reported to have been cooperating with CYS and progressing with her objectives by completing TIPS sessions, undergoing the requested evaluation, participating in recommended mental health care, medication management, administrative case management, and scheduling an intake for outpatient counseling. At that time, Mother and Father were participating in supervised visitation through ABC. On March 20, 2020, ABC instituted COVID protocols and all in-person visits were suspended.
In May 2020, foster mother reported that Parents were participating in virtual visits with Child three days a week, and that foster mother was sending pictures of Child to Parents daily. Later in the month, Father's case manager reported that Parents were behind in paying their utility bills, were not cleaning their apartment, and were fighting and arguing at home. At a June 2020 permanency hearing, Mother was reported to have progressed from TIPS to SKILLS sessions, and was participating in mental health treatment, medication management, administrative case management, ongoing counseling and trauma therapy. However, while Mother was showing progress with her parenting skills, she still required supervision when directly caring for Child.
In August 2020, Mother's home was still reported to have a significant amount of trash throughout it; bags of garbage were hidden in the closets. Moreover, due to her missed appointments and cancellations, Mother's behavioral health services provider was considering discharging her from its program. In September 2020, the court found that Parents had been following ABC recommendations regarding financial budgeting and were scheduling visits with Child. Parents were deemed to be making progress in accomplishing their plan goals. However, the following month Mother was again falling behind in paying the utility bills. In December 2020, Mother was discharged from her behavioral health services provider for being uncooperative. In February 2021, visitation was ordered to be supervised for Parents, who were not making substantial progress on their efforts to reunify with Child.
On April 16, 2021, CYS filed petitions to change the permanency goal to adoption and to involuntarily terminate Mother's and Father's parental rights pursuant to sections 2511(a)(2), (5), (8) & (b) of the Adoption Act.On April 27, 2021, May 4, 2021, and August 4, 2021, the trial court held termination hearings at which S.S. (foster mother), Lee Marriot (ABC parent educator), Benjamin Feirer (therapist at CCG), Sarah Hower (case manager at Merakey Stevens), Andrea Chapman (CYS caseworker), Father, and Mother testified.
Child's attorney and CYS have filed letters in lieu of briefs in support of counsel's Anders brief and motion to withdraw, indicating that they believe the appeal is wholly frivolous and rely on the trial court's opinion. See Damian J. DeStefano, Esquire, Letter, 10/25/21; CYS Letter, 11/9/21.
Each termination hearing was held virtually, via Zoom. The April and June 2021 hearings were held before the now-retired Honorable Thomas A. Placey. The August 2021 hearing was held before the Honorable Carrie E. Hyams, who has authored the instant Pa.R.A.P. 1925(a) opinion, and who "reviewed the audio and video of the pervious hearings in their entirety" prior to ruling on the goal change and termination petitions. Trial Court Opinion, 9/24/21, at 2.
Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On, October 22, 2021, counsel filed an application and brief seeking to withdraw pursuant to Anders and In re V.E., 611 A.2d 1267 (Pa. Super. 1992). In V.E., our Court stated:
In his Rule 1925(b) statement, counsel lists the issues Mother intends to raise on appeal. However, we remind counsel that in cases where an attorney seeks to withdraw on appeal, pursuant to Anders, counsel may "file of record and serve on the judge a statement of intent to file an Anders/Santiago brief in lieu of filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4); see also Interest of J.T., 983 A.2d 771 (Pa. Super. 2009) (determining that Anders procedure set forth in Rule 1925(c)(4) is proper in termination of parental rights case).
Counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating his or her parental rights, may, after a conscientious and thorough review of the record, petition this court for leave to withdraw representation if he or she can find no issues of arguable merit on which to base the appeal. Given the less stringent standard of proof required and the quasi-adversarial nature of a termination proceeding in which a parent is not guaranteed the same procedural and evidentiary rights as a criminal defendant, the court holds that appointed counsel seeking to withdraw representation must submit an Anders brief.In re Adoption of V.E., 611 A.2d at 1275. Moreover, we held that "any motion to withdraw representation, submitted by appointed counsel, must be accompanied by an advocate's brief, and not the amicus curiae brief delineated in [Commonwealth v.] McClendon, [434 A.2d 1185 (Pa. 1981)]. See also In re Adoption of R.I., 312 A.3d 601, 602 (Pa. 1973) ("the logic behind . . . an individual in a criminal case being entitled to representation by counsel at any proceeding that may lead to 'the deprivation of substantial rights'[, ] . . . is equally applicable to a case involving an indigent parent faced with the loss of her child.").
In his Anders brief, counsel raises the following issues for our consideration:
(1) Whether the [t]rial [c]ourt abused its discretion and committed an error of law when it found, despite a lack of clear and convincing evidence, that . . . sufficient [evidence] existed for a termination of [Mother's] parental rights under [s]ection 2511(a) of the Adoption Act[.]
(2) Whether the [t]rial [c]ourt abused its discretion and committed an error of law in terminating [Mother's] parental rights when the conditions which led to the removal or placement of [C]hild no longer existed or were substantially eliminated, thus contravening section 2511(a) and (b) of the Adoption Act[.]
(3) Whether the [t]rial [c]ourt abused its discretion and committed an error of law in determining it would be in [C]hild's best interest to have parental rights terminated, when it failed to primarily consider [C]hild's developmental, physical, and emotional needs and welfare, thus contravening [s]ection 2511(b) of the Adoption Act[.]Anders Brief, at 7.
We can affirm the trial court's decision regarding the termination of parental rights with regard to any single subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Before reaching the merits of Mother's appeal, we must first address counsel's application to withdraw. To withdraw under Anders, counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009)). With respect to the third requirement of Anders, that counsel inform the appellant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [his or her] 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).
Mother has not raised any additional arguments on appeal.
An Anders brief must also 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. 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Finally, this Court must "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers, 1133 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Instantly, Mother's counsel filed an application to withdraw, certifying that he reviewed the record and determined that Mother's appeal is wholly frivolous. Counsel also filed a brief, which includes a summary of the history and facts of the case, potential issues that could be raised by Mother, and counsel's assessment of why those issues are wholly frivolous, with citations to relevant legal authority. Counsel has also provided Mother with a copy of the brief and application, together with a letter advising her of her right to retain new counsel or raise additional issues pro se. Accordingly, we find that counsel has substantially complied with the requirements of Anders, Santiago, and V.E., and, thus, may review the issues raised by counsel and also conduct our independent review of the record.
On appeal, change of goal decisions are subject to an abuse of discretion standard of review. In re N.C. , 909 A.2d 818, 822 (Pa. Super. 2006).
The Juvenile Act controls the disposition of dependent children. In re R.P., 957 A.2d 1205, 1217 (Pa. Super. 2008). See generally 23 Pa.C.S.A. § 6351(f) (listing matters to be determined at permanency hearings); id. at § (f.1) (providing what additional determination shall be made based on subsection (f) evidence presented at hearings).
(f.2) Evidence.-Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk, shall be presented to the court by the county agency or any other party at any disposition or permanency hearing whether or not the conduct was the basis for the determination of dependency.42 Pa.C.S.A. §§ 6351(f), (f.1), (f.2).
In order to conclude that the trial court abused its discretion [in a goal change case], we must determine that the court's judgment was "manifestly unreasonable," that the court did not apply the law, or that the court's action was "a result of partiality, prejudice, bias or ill will," as shown by the record. We are bound by the trial court's findings of fact that have support in the record. The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witness and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm, "even if the record could also support an opposite result."Id. at 822-23 (internal citations omitted).
Moreover, in cases involving termination of parental rights, "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child." In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa. Super. 2009)). "Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand." In re B.L.W., supra at 383 (internal citations omitted). On review, "we employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence." Id.
Parental rights may be involuntarily terminated where any one subsection of [s]ection 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions. 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 [s]ection 2511(a). Only if the court determines that the parent's conduct warrants termination of his . . . parental rights does the court engage in the second part of the analysis pursuant to [s]ection 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations omitted).
Instantly, the trial court heard three days of extensive testimony, consisting largely of witnesses on behalf of CYS, supporting a goal change and termination of Mother's parental rights. Taken as a whole, the evidence proves that Mother is simply unable to parent Child independently. The trial court recognized the significant fact that, because Mother requires assistance to adequately care for Child, the instability of Mother and Father's relationship directly "inhibits their ability to parent." Trial Court Opinion, 9/24/21, at ¶ 25. Moreover, record evidence established that Mother had inflicted physical violence on Father, N.T. Termination Hearing, 8/4/1, at 13-15, and that, as a result of overall domestic unrest, Child was exhibiting regressing behaviors, including crying at night. Id. at ¶ 27. Finally, both Mother and Father were unable to successfully manage their finances, leading to unpaid utility bills.
While Mother undoubtedly made efforts to comply with her permanency and service goals, she has not been able to consistently prove that, after Child's more than 24-month placement, she can adequately care for Child and provide Child with a stable, suitable, and permanent home environment. See In re N.C. , supra at 823 ("When the child welfare agency has made reasonable efforts to return a [dependent] child to his or her biological parent, but those efforts have failed, then the agency must redirect its efforts towards placing the child in an adoptive home."); 42 Pa.C.S.A. § 6351(g) ("Court order.-On the basis of the determination made under subsection (f.1), the court shall order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child."). See also 23 Pa.C.S.A. § 2511(a)(5) (parental rights may be terminated where clear and convincing evidence proves "child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child").
Moreover, Child's kinship/foster family, who are an adoptive resource, provide Child with the emotional, physical, and social support she needs and also have developed a strong bond with Child. See In the Interest of N.G., 235 A.3d 1274, 1281 (Pa. Super. 2020) (for section 2511(b) purposes, "trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent") (citation omitted); N.T. Termination Hearing, 4/27/21, at 110 (CYS caseworker recognizing Child's bond with kinship family) id., 5/4/21, at 8 (foster mother testifying how bonded Child is with her and her husband, that they "love [Child] very much," and that "[Child] returns [the love]").
Accordingly, we rely upon the trial court opinion, authored by Judge Hyams, in affirming the decree and order changing Child's permanency goal to adoption and involuntarily terminating Mother's parental rights. The trial court's decisions are supported in the record and are not an abuse of discretion. In re N.C. , supra; In re B.L.W., supra. The parties are directed to attach a copy of Judge Hyams' opinion in the event of further proceedings in the matter.
Notably, foster mother testified that she believes that if she were to adopt Child, "it's in [Child's] best interest to always have a relationship with her parents in whatever capacity is safe." N.T. Termination Hearing, 5/4/21, at 7.
Decree and order affirmed. Application to withdraw granted.
Judgment Entered.