In the Matter of: A.M.A., Appeal of: F.H. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: A.M.A. : PENNSYLVANIA
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APPEAL OF: F.H., FATHER :
:
:
:
: No. 788 WDA 2021
Appeal from the Decree Entered June 7, 2021
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
27 in Adoption 2021
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 14, 2022
F.H. (Father) appeals from the decree entered in the Court of Common
Pleas of Erie County (orphans’ court) involuntarily terminating his parental
rights to his daughter, A.M.A. (Child) (d.o.b. August 2017). Counsel has filed
an Anders1 brief and a petition for leave to withdraw. After review, we affirm
the decree and grant counsel’s petition to withdraw.
I.
On March 3, 2020, the Erie County Office of Children and Youth (OCY)
removed Child from the care of her mother, N.A. (Mother), and applied for an
emergency protective custody order. OCY alleged that Child was without
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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proper parental care or control because of Mother’s untreated mental issues;
her extensive history with OCY; her substance abuse; her failing to show for
drug screenings; and her leaving Child with inappropriate caregivers. At the
time, Father was at an inpatient drug rehabilitation at Gateway Rehabilitation.
The orphans’ court granted the protective order and, after a shelter care
hearing, ordered that Child remain in protective custody pending an
adjudicatory hearing.
On March 17, 2020, the orphans’ court held an adjudicatory hearing in
which Father participated via telephone with counsel present. After the
hearing, the orphans’ court adjudicated Child dependent and ordered that she
remain in foster care with a goal of reunification. The orphans’ court also
scheduled a three-month review hearing and gave Father the following
treatment plan:
1. Submit to genetic testing to determine if he is the child’s
biological father;
2. Complete inpatient drug and alcohol treatment at Gateway
Rehabilitation and follow through with any recommendations;
3. Participate in random urinalysis screens through Esper
Treatment Center at the request of the [OCY];
4. Follow all rules of parole and refrain from any further criminal
activity;
5. Obtain safe and stable housing and provide [OCY] with proof;
6. Obtain gainful employment and/or another source of income
and provide [OCY] with proof; and
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7. Continue to participate in mental health services through
Stairways Behavioral Health and follow all recommendations.
Father appeared with counsel for a review hearing on June 5, 2020. The
orphans’ court found that Mother and Father were minimally compliant with
their treatment plans but acknowledged that Father had been out of Gateway
Rehabilitation for only a month and had little chance to comply with the plan.
As a result, the permanent placement goal remained reunification.2
The orphans’ court held another review hearing on December 9, 2020.
Again, Mother and Father were minimally compliant with their treatment
plans. The OCY caseworker testified that she had minimal contact with Father.
When she finally did speak to Father on November 19, 2020, he sounded
under the influence. At a home visit the next day, Father smelled of alcohol
and appeared under the influence. She also related that Father failed to show
for random urinalysis or follow-up on his drug and alcohol or mental health
services. Based on the lack of progress, the orphans’ court added a concurrent
permanent placement goal of adoption and scheduled a three-month review
hearing for March 10, 2021.
At that hearing, the orphans’ court again found that both Mother and
Father were noncompliant with their treatment plans. According to the
casework, Father failed to show for any of his random urinalysis screens.
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2 After the review hearing, paternity testing confirmed that Father was the
biological father of Child.
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When she visited him at home in February 2021, Father appeared under the
influence. There were empty liquor bottles in the home and Father admitted
that he was “high as f---” because he smoked marijuana. The caseworker
also testified that Father continued to not follow up with any of the ordered
mental health or psychiatric evaluation services. After the hearing, the
orphans’ court changed the permanent placement goal for Child to adoption.
On March 19, 2021, OCY petitioned for involuntary termination of
Mother’s and Father’s parental rights under 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8) and (b). Despite both being aware of the hearing, neither Mother nor
Father appeared when the orphans’ court held its hearing on the petition on
June 4, 2021. At the hearing, the caseworker testified that she believed it
was in Child’s best interests to remain in her pre-adoptive home, as all her
physical and basic needs were being met and she identified her caregivers as
“mom and dad.” The caseworker testified that neither Mother nor Father had
visitation with Child because both failed to attend random urinalysis. When
asked why he failed to attend, Father told the caseworker that he did not need
to because he was “dropping for parole,” even though the caseworker
explained that he still needed to provide samples for OCY. She also related
that Father’s housing was unsafe for a child because his ceiling was falling in.
At the end of the hearing, the orphans’ court found that OCY had met its
burden and entered a decree terminating both Mother’s and Father’s parental
rights under Section 2511(a)(1), (2), (5), (8) and (b). While Mother did not
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appeal, Father’s counsel filed a notice of appeal along with a statement of
intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4).
II.
Counsel petitions for leave to withdraw as counsel. Thus, before
reaching the merits of Father’s issues, we must first address whether counsel
has properly sought to withdraw from this appeal. In In re V.E., 611 A.2d
1267 (Pa. Super. 1992), this Court extended Anders to appeals involving the
termination of parental rights. Id. at 1275. In such cases, counsel
representing a parent on a first appeal from a decree involuntarily terminating
parental rights may petition for leave to withdraw representation and submit
an Anders brief. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).
Counsel 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 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, 3 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).
We also review counsel’s Anders brief for compliance with the
requirements under Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel must: (1)
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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.
Id. at 361. Additionally, this Court must conduct an independent review of
the record to discern if there are any non-frivolous issues that counsel may
have, intentionally or mistakenly, omitted or misstated. Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Counsel has satisfied the first requirement by filing a petition to
withdraw. In the petition, he asserts that he has made a conscientious review
of the record and determined the appeal would be frivolous. Counsel also
satisfies the second requirement by filing an Anders brief that complies with
the Santiago requirement. As to the third requirement, counsel attaches to
his petition a copy of the letter sent to Father advising him of his rights and
enclosing a copy of the Anders brief. We, thus, find that counsel has complied
with the Anders requirements and proceed to a review of the merits.3
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3 Our standard of review is well-settled:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a trial
court has granted a petition to involuntarily terminate parental
(Footnote Continued Next Page)
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III.
In his Anders brief, counsel presents two issues:
1. Did the orphans’ court commit an abuse of discretion or error
of law when it concluded that [OCY] established sufficient grounds
for termination under 23 Pa.C.S.A. § 2511?
2. Did the orphans’ court commit an abuse of discretion or error
of law when it concluded that termination of [Father’s] parental
rights was in [Child’s] best interests under Section 2511(b)?
Ander’s Brief at 7.
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights and 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 interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
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rights, this Court must accord the hearing judge’s decision the
same deference that we would give to a jury verdict. 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 M.M., 106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted). “The
trial court is free to believe all, part, or none of the evidence presented and is
likewise free to make all credibility determinations and resolve conflicts in the
evidence. If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” Id. (citations
omitted).
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In re Adoption of B.G.S., 240 A.3d 658, 662-63 (Pa. Super. 2020) (citation
omitted); see also In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc) (stating 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).
As noted, the orphans’ court terminated Father’s parental rights under
Section 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act. We analyze the
decision to terminate Father’s parent rights under Subsections 2511(a)(1) and
(b), which provide as follows:
(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim to
a child or has refused or failed to perform parental duties.
***
(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. § 2511.
The focus of involuntary termination proceedings is on the conduct of
the parent and whether that conduct justifies a termination of parental rights.
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In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). While the statute
focuses on the six months immediately preceding the filing of the petition, the
court must consider the whole history of a given case and may consider a
parent’s inaction before the six-month statutory provision. In re K.Z.S., 946
A.2d 753, 758 (Pa. Super. 2008). Moreover, “[t]he court must examine the
individual circumstances of each case and consider all explanations offered by
the parent facing termination of his parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly warrants the
involuntary termination.” Id. (citations omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this Court has held
that the parental obligation is a positive duty which requires
affirmative performance. This affirmative duty ... requires
continuing interest in the child and a genuine effort to maintain
communication and association with the child. Because a child
needs more than a benefactor, parental duty requires that a
parent exert himself to take and maintain a place of importance
in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal
quotation marks, and internal paragraph breaks omitted).
Furthermore, “[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
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maintain the parent-child relationship to the best of his or her ability, even in
difficult circumstances.” Id. (citation omitted). “A parent must utilize all
available resources to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path of maintaining
the parent-child relationship.” Id. (citation omitted).
In terminating Father’s parental rights, the orphans’ court emphasized
that he showed no progress throughout the year-plus proceedings of providing
consistently for the physical and emotional needs of Child.
In the instant case, the record demonstrates by clear and
convincing evidence that termination of [Father’s] parental rights
was proper, as [Father] found himself in no better position nearly
fifteen (15) months later to care for [Child] than he was at the
time of the removal. Arguably, [Father’s] ability to care for her
declined over the life of the case, which began when he was in a
rehabilitation facility for drugs and alcohol and ended with him
describing himself to the caseworker as “high as [f---].”
[Father] was provided a treatment plan at the inception of the
case, the terms of which were repeatedly made clear to him by
his caseworker and the Court at each Permanency Review
Hearing. [Father’s] treatment plan required him to follow through
with mental health and drug and alcohol treatment, submit to
random urinalysis screening, refrain from criminal activity, and
obtain safe and stable housing. [Father] demonstrated minimal
compliance with the treatment plan at each review period. Due
to [Father’s] level of compliance, the Court added a concurrent
goal of adoption at the December 9, 2020 Permanency Hearing,
making it clear to [Father] under no uncertain terms that a lack
of substantial progress during the next review period would result
in a goal change to adoption. Despite this, [Father] continued to
make a minimal effort, at best, in engaging with his caseworker
and in the treatment plan.
The testimony at the IVT Trial was established during the fifteen
(15) months following [Child’s] removal, neither parent performed
any parental duties on her behalf. See 23 Pa.C.S.A. § 2511
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(a)(1). Further, neither [Father], nor Mother, had any contact
with [Child] for the six (6) months preceding the IVT Trial due to
their lack of compliance. [See N.T., 6/4/21,] at 9.
Orphans’ Court Opinion, 8/17/21, at 9.
The record supports the orphans’ court’s determination that there is
clear and convincing evidence that termination is appropriate under Section
2511(a)(1). At the termination hearing, the caseworker’s testimony showed
that Father failed to perform parental duties for a period of at least six months
before the hearing because he ignored drug testing requirements. See N.T.,
6/4/21, at 9. As the caseworker confirmed, Father was present with counsel
for all the permanency review hearings and informed of the treatment plan.
Id. at 10. Despite this being the case, he willingly attended no drug
screenings because he felt he did not need to because he was “dropping for
parole,” presumably meaning he was already being drug tested as part of his
supervision. Id. at 12-13. In February 2021, however, the caseworker
conducted a home visit and observed Father under the influence, which he
confirmed, stating that he was “high as f---.” Id. at 14.
As a result, the orphans’ court had clear and convincing evidence that
Father has “evidenced a settled purpose of relinquishing [his] parental claim
to [Child]” and “has refused or failed to perform parental duties.” 23 Pa.C.S.
§ 2511(a)(1). As this Court has stated, “[A] child’s life cannot be held in
abeyance while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
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indefinitely a child’s need for permanence and stability to a parent’s claims of
progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d 502,
513 (Pa. Super. 2006).
If 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). In reviewing
the evidence in support of termination under subsection (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.... [T]he 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: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (most citations and internal
quotation marks omitted; brackets added and in original).
Subsection (b) does not mandate a formal bonding evaluation. See In
re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). When evaluating a parental
bond, “the court is not required to use expert testimony. Social workers and
caseworkers can offer evaluations as well.” Id. (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
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be detrimental to the child.” In re K.Z.S., 946 A.2d at 762. “The extent of
any bond analysis, therefore, necessarily depends on the circumstances of the
particular case.” Id.
At the termination hearing, the caseworker testified that Child’s needs
were being met in her pre-adoptive home and that she had a strong bond with
them. See N.T., 6/4/21, at 7. Moreover, she testified that Child, being
adopted by her foster family, would “outweigh any detriment” to the
termination of her bonds to Father. Id. at 9. Our review of the record
supports this assessment, as there is no evidence of any bond with Father.
Thus, the record supports the orphans’ court’s conclusion that Child’s
developmental, physical and emotional needs are best met by terminating
Father’s parental rights. Thus, because the orphans’ court’s conclusion is
supported by competent record evidence, we discern no error or abuse of
discretion in its determination of subsection (b).
Finally, our independent examination of the certified record did not
reveal any additional, nonfrivolous issues overlooked by counsel, see Yorgey,
supra, and we agree with Father’s counsel that this appeal is frivolous. As a
result, we grant counsel's petition to withdraw from representation and affirm
the decree terminating his parental rights to Child under Section 2511.
Petition to withdraw granted. Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/14/2022
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