In the Int. of: K.L.B., Appeal of: V.B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: V.B., MOTHER :
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: No. 111 EDA 2019
Appeal from the Decree Entered December 13, 2018
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000922-2018
IN THE INTEREST OF: K.L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: V.B., MOTHER :
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: No. 112 EDA 2019
Appeal from the Decree Entered December 13, 2018
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001726-2017
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 14, 2019
V.B. (Mother) appeals from the decree involuntarily terminating her
parental rights to her minor child, K.L.B. (Child) (born October 2006),
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption
Act, and changing the permanency goal for Child to adoption pursuant to the
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Juvenile Act, 42 Pa.C.S.A. § 6351.1 Additionally, Mother’s counsel, Harry
Levin, Esquire, seeks to withdraw his representation of Mother pursuant to
Anders v. California, 87 S. Ct. 1936 (1967), Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009), and In re V.E., 611 A.2d 1267, 1275 (Pa. Super.
1992) (extending Anders briefing criteria to appeals by indigent parents
represented by court-appointed counsel in involuntary termination matters).
After careful review, we affirm and grant counsel’s petition to withdraw.
We adopt and summarize the trial court’s recitation of the facts, which
is supported by the record. See Trial Court Opinion, 2/15/19, at 2-3.
Procedurally, we note in October 2015, the Philadelphia Department of Human
Services (DHS) received a general protective services (GPS) report, later
substantiated, which alleged that Mother was suffering from depression and
addicted to drugs, and that Child was truant from school. DHS implemented
services for Mother. Regardless, by May 2017, Child had accumulated 78
school absences. In June 2017, Community Umbrella Agency (CUA) social
workers met with Mother regarding Child’s truancy, but Mother could not
explain or justify Child’s absences.
DHS filed a dependency petition, and on July 13, 2017, Child was
adjudicated dependent. Child was removed from Mother’s care and placed
with S.B. (Maternal Grandmother). CUA identified single case plan (SCP)
objectives for Mother, namely that Mother: 1) participate in employment and
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1 That same day, the court terminated the parental rights of M.F. (Father);
Father has not appealed the termination of his parental rights.
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financial planning classes at Achieving Reunification Center (ARC); 2) attend
parenting classes at ARC; 3) provide three random drug screens to the Clinical
Evaluation Unit (CEU); and 4) comply with dual diagnosis assessment
recommendations from the Behavioral Health Services (BHS) unit. However,
Mother failed to comply with these objectives, and on January 29, 2018, ARC
changed her status to “inactive.”
On November 19, 2018, DHS filed a petition to terminate Mother’s
parental rights. The court convened a hearing on the petition and DHS’
accompanying goal change petition on December 13, 2018. Mother,
represented by counsel, was not present at the hearing; Mother’s counsel
stipulated to the facts presented in DHS’ petition. Child was represented by
Jeff Bruch, guardian ad litem, and Athena Dooley, a child advocate/legal
counsel.2 Attorney Dooley noted on the record that she spoke with Child on
December 1, 2018, and Child’s preference was to be adopted by Maternal
Grandmother. See N.T., 12/13/18, at 28. Additionally, DHS presented the
testimony of the CUA social worker, Mary Mucheri. Ms. Mucheri opined that
termination of Mother’s parental rights was in Child’s best interests. Id. at
24.
At the conclusion of the hearing, the court terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and
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2 Accordingly, Child’s statutory right to counsel in a contested involuntary
termination proceeding was satisfied. See, e.g., In re Adoption of L.B.M.,
161 A.3d 172, 180 (Pa. 2017) (plurality).
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changed Child’s permanency goal to adoption. Mother timely filed a notice of
appeal and concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). In this Court, counsel has filed an Anders
brief.
On appeal, Mother raises the following issues for our review:
1. Whether the trial court committed reversible error, when it
involuntarily terminated [M]other’s parental rights where such
determination was not supported by clear and convincing evidence
under the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a)(1)[, (2), (5),
and (8)?]
2. Whether the trial court committed reversible error when it
involuntarily terminated [M]other’s parental rights without giving
primary consideration to the effect that termination would have
on the developmental, physical, and emotional needs of the child
as required by the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)[?]
3. Whether the trial court erred because the evidence was
overwhelming and undisputed that [M]other demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with her child.
Anders Brief at 6.
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). Prior to withdrawing as counsel on direct appeal
under Anders, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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(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.
Santiago, 978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his
right to: “(1) retain new counsel to pursue the appeal; (2) proceed
pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Nischan,
928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704,
936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted).
Attorney Levin’s Anders brief complies with the above requirements.
He includes a summary of the relevant factual and procedural history; he
refers to the portions of the record that could arguably support Mother’s claim;
and he sets forth his conclusion that the appeal is frivolous and no other non-
frivolous issues could be raised. Additionally, Attorney Levin has supplied
Mother with a copy of the Anders brief and a letter explaining the rights
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enumerated in Nischan, supra. Thus, counsel has complied with the
technical requirements for withdrawal, and we therefore proceed to
independently review the record to determine if the issues raised are frivolous,
and to ascertain whether there are non-frivolous issues Mother may pursue
on appeal.
We review cases involving the termination of parental rights according
to the following:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotations omitted).
Termination 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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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Instantly, we focus our analysis on subsections (a)(2) and (b). The
relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the
following grounds:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
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See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.
Mother argues that she is capable of providing Child with essential
parental care and that the causes of her incapacity have been remedied.
Anders Brief at 15. In her third issue, which corresponds to this argument,
Mother avers that there was overwhelming evidence that she demonstrated a
genuine, sincere, and persistent effort to maintain a parent-child relationship
with Child.3 Id. at 14-17.
Upon review of the record, we find no support for Mother’s argument.
DHS presented evidence that Mother’s parenting incapacity had not been
remedied. Ms. Mucheri testified that Child has been living with Maternal
Grandmother since July 2017. See N.T., 12/13/18, at 11-12. Maternal
Grandmother ensures that Child’s physical and medical needs are met, and
that Child attends weekly therapy. Id. at 13. Ms. Mucheri testified that
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3 We note that due to its underdevelopment, Mother risks waiver of her third
issue. See, e.g., S.M.C. v. W.P.C., 44 A.3d 1181, 1189 (Pa. Super. 2012);
see also Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (noting
that where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived); see also
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (“This Court
will not act as counsel and will not develop arguments on behalf of an
appellant.”); see also Pa.R.A.P. 2119(a). However, because counsel has filed
an Anders brief, we decline to find waiver.
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Mother had not completed her SCP objectives. Id. Specifically, Mother did
not attend BHS for any appointments. Id. at 14. Mother appeared for one
drug screen in January 2018, but failed to participate in three other random
screens. Id. at 14-15. Mother attended ARC once, for intake, but after her
failure to attend parenting classes, her case was marked inactive. Id. at 16.
Mother visited Child only sporadically; the last visit Ms. Mucheri supervised
was in January 2018, and the last visit Mother had with Child was July 2018.
Id. at 16-17. Mother did not communicate with CUA. Id. at 17. In sum, the
evidence showed that Mother had minimal involvement with her service plan
objectives as well as minimal contact with Child.
Consistent with the foregoing, we discern no error in the trial court’s
finding that competent, clear and convincing evidence supported the
termination of Mother’s parental rights pursuant to Section 2511(a)(2), based
upon Mother’s continued incapacity – namely, her inability to complete a
single SCP objective or remain in contact with Child – that resulted in Child
being without essential parental care, the cause of which “cannot or will not
be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Next, we consider the trial court’s finding that Child’s needs and welfare
will be met by termination pursuant to Subsection (b). See Z.P., 994 A.2d at
1121. “In this context, the court must take into account whether a bond exists
between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The court is not required to use
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expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.
We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Where there is no evidence of a bond between the
parent and child, it is reasonable to infer that no bond exists. Id. “[A] parent’s
basic constitutional right to the custody and rearing of . . . her child is
converted, upon the failure to fulfill . . . her parental duties, to the child’s right
to have proper parenting and fulfillment of [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (internal citations omitted).
Instantly, Mother contends that Child would be “best off” with Mother
and that Mother is best suited to provide for the developmental, physical, and
emotional needs and welfare of Child. Anders Brief at 15. Mother claims that
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she has a bond with Child, and it would be detrimental to Child’s welfare to
terminate that bond. Id. at 16.
Again, the record does not support Mother’s argument. Ms. Mucheri
testified that Child understood the concept of adoption and was happy with
the prospect of being adopted by Maternal Grandmother. See N.T., 12/13/18,
at 21-23. Child is bonded with Maternal Grandmother, who meets her needs.
Id. at 23-24. In the care of Maternal Grandmother, Child has perfect
attendance in school and makes good grades. Id. at 26-27. No evidence was
presented regarding any bond between Mother and Child; in fact, at the time
of the termination hearing, there had been no contact between Mother and
Child for at least five months. Id. at 16-17. The trial court, at the conclusion
of the hearing, found that no bond existed between Mother and Child. Id. at
22.
We discern no abuse of discretion in the trial court’s conclusion that
Child’s needs and welfare are best served by termination. Accordingly, clear
and convincing evidence supports the trial court’s termination of Mother’s
parental rights under Section 2511(a)(2), as well as the court’s Section
2511(b) finding that adoption would best serve Child’s needs and welfare.
See Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.
Finally, we note that Mother filed two notices of appeal, one from the
adoption docket and one from the dependency docket. It does not appear
that the appeal from the dependency docket contains the order changing
Child’s permanency goal to adoption; rather, attached is the decree of the
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involuntary termination of Mother’s parental rights. The concise statement of
errors complained of on appeal, filed at both dockets, mentions only the
involuntary termination. See Pa.R.A.P. 1925(b) Statement, 12/31/18, at 1-
2. The Anders brief likewise mentions only the termination in the statement
of issues raised. Anders Brief at 6. While Mother vaguely discusses the
permanency goal change in the argument section of her brief, she does not
cite to relevant authority; she cites one single, general case regarding
permanency goal changes, while the rest of the cited cases concern
involuntary termination. Id. at 12-17. Thus, Mother risks waiver of any
challenge to Child’s goal change. See Krebs v. United Ref. Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to
preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver).
However, because Mother’s counsel filed an Anders brief, we
nevertheless examine the record to determine whether the goal change issue
has merit. As noted, Mother’s argument is underdeveloped, although she
generally asserts that the goal change to adoption was not in Child’s best
interests. Anders Brief at 12-13.
With regard to dependency:
[t]he standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
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upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an
abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
Regarding the disposition of dependent children, the Juvenile Act, 42
Pa.C.S. §§ 6351(e)-(g), provides the criteria for a permanency plan. The
court must determine a disposition best suited to the safety and protection,
as well as the physical, mental, and moral welfare of the child. See 42 Pa.C.S.
§ 6351(g). With a goal change petition, the trial court:
considers the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In Interest of A.N.P., 155 A.3d 55, 67 (Pa. Super. 2017) (quoting In re
A.K., 936 A.2d 528, 533 (Pa. Super. 2007).
As discussed above, placement was warranted because Mother did not
remedy the circumstances that led to Child’s original placement. Mother had
not complied with any of her service plan goals; Mother had made no progress
towards alleviating the concerns of DHA because she had not participated in
the services. For example, Mother did not complete random drug screens, did
not attend the BHS unit for evaluation, and was excluded from ARC due to her
lack of involvement. Accordingly, the court did not err in changing Child’s
placement goal to adoption. A.N.P., 155 A.3d at 67.
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In sum, we agree with Attorney Levin that Mother’s issues are frivolous.
We have independently reviewed the record and find no other non-frivolous
issues of arguable merit that counsel or Mother could pursue on appeal. We
thus grant counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/19
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