In the Interest of: J.M.D.M., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.D.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.M. :
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: No. 1791 MDA 2017
Appeal from the Decree October 23, 2017
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
84879
BEFORE: BOWES, J., MURRAY, J., and PLATT, J.*
MEMORANDUM BY BOWES, J.: FILED APRIL 30, 2018
T.M. (“Mother”) appeals from the decree entered October 23, 2017,
which involuntarily terminated her parental rights to her minor son, J.M.D.M.,
born in March 2014. Mother’s counsel, Kelly S. Kline, Esquire, filed a petition
to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we grant counsel’s petition to withdraw and affirm.1
J.M.D.M. became known to Berks County Children and Youth Services
(“BCCYS”) on April 2, 2015, after BCCYS received a report that the then-one-
year-old child was behind on his immunizations and developmentally delayed.
He still was unable to crawl. Additionally, BCCYS noted concerns with Mother’s
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* Retired Senior Judge assigned to the Superior Court.
1 On September 11, 2017, the orphans’ court terminated the parental rights
of J.M.D.M.’s father, J.D., who did not appeal.
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lack of appropriate parenting skills and supervision, her failure to provide for
J.M.D.M.’s basic needs, the lack of stable and appropriate housing and
employment, and concerns with Mother’s mental health and substance abuse.
On May 20, 2015, the juvenile court adjudicated J.M.D.M. dependent
and ordered that he be placed in foster care. On August 9, 2016, the court
temporarily suspended Mother’s supervised visitations with J.M.D.M. after it
was reported that she fell asleep during visits and upon the discovery that her
urine screen was positive for a controlled substance. The juvenile court
ordered that visitations could resume once Mother provided evidence that she
was sober and capable of providing her son with appropriate supervision.
On June 9, 2016, BCCYS filed a petition to terminate Mother’s parental
rights to J.M.D.M. Nearly one year later,2 the court appointed counsel to
represent mother and appointed a guardian ad litem to represent J.M.D.M.
“pursuant to the provisions of the Adoption Act of Pennsylvania, . . . 23
Pa.C.S.A. [§] 2101 et seq.”3 Trial Court Order, 6/12/17, at 1. The orphans’
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2 The certified record does not explain the one-year delay. Although Mother
twice voluntarily relinquished her parental rights to J.M.D.M., only to revoke
her consents weeks later, she executed those ploys during September 2017,
approximately fifteen months after BCCYS filed its petition to terminate her
parental rights. Thus, while the orphans’ court attempts to attribute the delay
to Mother’s antics, the certified record will not sustain that conclusion.
3 The orphans’ court’s appointment of a guardian ad litem to represent
J.M.D.M. during the contested termination proceedings does not comply with
the specific dictates of the Adoption Act to appoint legal counsel. This Court
will address sua sponte an orphans’ court’s failure to appoint counsel pursuant
to 23 Pa.C.S. § 2313(a). See In re K.J.H., 2018 Pa. Super. 37 *2 (Pa.Super.
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court conducted a termination hearing on October 23, 2017. At the hearing,
BCCYS presented the testimony of Cheri Kipp, the adoption caseworker
assigned to Mother’s case, and Mother testified on her own behalf. At the
conclusion of the hearing, the orphans’ court terminated Mother’s parental
rights to J.M.D.M. Mother timely filed a notice of appeal along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On January 22, 2018, Mother’s counsel filed in this Court a petition to withdraw
and Anders brief.
Before reaching the merits of Mother’s appeal, we must address
counsel’s petition to withdraw. See Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa.Super. 2005). In In re V.E., 611 A.2d 1267 (Pa.Super. 1992),
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filed Feb. 20, 2018). In In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017),
our Supreme Court held that § 2313(a) required that counsel be appointed
to represent the legal interests of any child involved in a contested involuntary
termination proceeding. The High Court recognized, however, that the opinion
did not overrule our holding in In re K.M., 53 A.3d 781 (Pa.Super. 2012),
insofar as a guardian ad litem who is an attorney may act as counsel so long
as the dual roles do not create a conflict between the child’s best interest,
which is determined by the trial court, and the child’s legal interest, which the
High Court defined as synonymous with his or her preferred outcome.
Instantly, J.M.D.M.’s guardian ad litem supported the termination of Mother’s
parental rights as serving his best interests. Our review of the record does
not reveal any conflict between this positon and J.M.D.M’s legal interests.
Indeed, beyond developing the strong familial bond with his pre-adoptive
foster parents that we discuss in the body of this memorandum, three-year-
old J.M.D.M. did not express a preferred outcome. Thus, remand is not
required. Cf. In re T.M.L.M., 2018 Pa. Super. 87 (filed April 13, 2018)
(remand for further proceedings when six-year-old child’s preference was
equivocal and the attorney neglected to interview the child to determine
whether best interest and legal interest aligned).
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this Court extended the Anders procedure to appeals from decrees
involuntarily terminating parental rights. 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, 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 their 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).
Additionally, an 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. Counsel should articulate the relevant facts of
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record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
In the instant matter, Mother’s counsel filed a petition to withdraw
certifying that she reviewed the record and determined that Mother’s appeal
was 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 frivolous, with citations to
relevant legal authority. Counsel provided Mother a copy of the brief, and a
letter advising her that she may obtain new counsel or raise additional issues
pro se. Accordingly, counsel complied substantially with the requirements of
Anders and Santiago. Therefore, we may proceed to review the issues
outlined in the Anders brief. We must also “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) (footnote omitted).
Counsel’s Anders brief raises the following issues for our review.
A. Whether the honorable court erred as a matter of law by
terminating [Mother’s] parental rights to [J.M.D.M.]?
B. Whether the evidence presented by [BCCYS] was insufficient
as a matter of law to support the honorable court’s decision to
terminate [Mother’s] parental rights?
C. Whether the honorable court erred in and abused its discretion
in terminating [Mother’s] parental rights where [Mother] has
obtained stable housing and has engaged in services such that
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she was able to bring her newborn child home from the
hospital?
Anders brief at 4.
We review these claims mindful of our well-settled standard of review.
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 quotation marks
omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act, 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 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
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In this case, the orphans’ court terminated Mother’s parental rights
pursuant to § 2511(a)(1), (2), (5), (8) and (b). We need only agree with the
court as to any one subsection of § 2511(a), as well as § 2511(b), in order to
affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here,
we analyze the court’s decision to terminate under § 2511(a)(1) and (b),
which provides 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 notice of the filing
of the petition.
23 Pa.C.S. § 2511(a)(1), (b).
As it relates to § 2511(a)(1), the pertinent inquiry for our review is as
follows:
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To satisfy Section 2511(a)(1), the moving party must
produce clear and convincing evidence of conduct sustained
for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties. . . . Section 2511 does not require
that the parent demonstrate both a settled purpose of
relinquishing parental claim to a child and refusal or failure
to perform parental duties. Accordingly, parental rights may
be terminated pursuant to Section 2511(a)(1) if the parent
either demonstrates a settled purpose of relinquishing
parental claim to a child or fails to perform parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting In re Adoption
of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998) (internal citations omitted)).
Although the six months immediately preceding the filing of the petition
are the most critical to the analysis, “the trial court must consider the whole
history of a given case and not mechanically apply the six-month statutory
provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004). Additionally,
to the extent that the orphans’ court based its decision to terminate parental
rights pursuant to subsection (a)(1), “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(b). In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), we
explained, “[a] parent is required to exert a sincere and genuine effort to
maintain a parent-child relationship; the parent must use 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.”
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Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the trial court must then
engage in three additional lines of inquiry: “(1) the parent’s explanation for
his or her conduct; (2) the post-abandonment contact between parent and
child; and (3) consideration of the effect of termination of parental rights on
the child pursuant to Section 2511(b).” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., supra at 91).
Instantly, the orphans’ court concluded that BCCYS presented clear and
convincing evidence with respect to § 2511(a)(1). See Orphans’ Court
Opinion, 12/15/17, at 7. In sum, the court found that during the twenty-nine
months J.M.D.M. was in placement, “Mother failed to perform her parental
duties and has never been there for her son.” Id.
Mother argues that “she should be permitted the opportunity to have
[her son’s] custody transferred to New Jersey, and be given the additional
opportunity to raise him now that she is engaged in programs in New Jersey
. . . [a]nd be given the opportunity to have” J.M.D.M. grow up with his half-
brother, who resides with Mother in New Jersey.4 Mother’s Brief at 8.
Our review of the record supports the findings of the orphans’ court.
During the termination hearing, Cheri Kipp testified that Mother’s compliance
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4 Mother gave birth to a son, J.M.D.M.’s half-sibling, in July 2017. Mother
resides with a relative in New Jersey who supervises custody of that child.
N.T., 10/23/17, at 17, 27.
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with BCCYS’s service objectives was minimal. BCCYS fashioned the following
objectives for Mother: participate in parenting education, complete a mental
health evaluation and comply with any recommended treatment, complete a
domestic violence evaluation and comply with any recommended treatment,
obtain stable and appropriate housing, keep BCCYS updated with any changes
in residence or income, and cooperate with caseworker services. N.T.,
10/23/17, at 9.
Mother never completed a mental health evaluation or enrolled in
domestic violence counseling. Id. at 12. Moreover, Ms. Kipp testified that
while Mother completed a drug and alcohol evaluation, she failed to follow-
through with the recommended treatment, she was unable to provide four
consecutive clean samples, and she tested positive for K2 (synthetic
marijuana) during February 2017 and tetrahydrocannabinol (the primary
ingredient in marijuana) after she gave birth to J.M.D.M.’s half-brother in
September 2017. Id. at 11, 24-25, 28.
Mother did not obtain stable housing. Since May 2015, Mother has
resided in at least fourteen different residences and has failed to update
BCCYS when she moved. Id. at 9-10. Most recently, in September 2017,
Mother relocated from Pennsylvania to New Jersey, where she gave birth to
her second child. Id. at 9. Ms. Kipp also indicated that Mother has not been
able to demonstrate that she can maintain stable employment. Id. at 10.
Mother’s counsel made no effort to challenge this evidence, and she conceded
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on cross-examination that she is unemployed and receiving cash assistance
through the Temporary Assistance for Needy Families program. Id. at 27.
Likewise, Mother remained uncooperative with BCCYS. Id. at 10. Ms.
Kipp testified that although Mother had met with BCCYS service providers
multiple times, she appeared very agitated at meetings and failed to accept
responsibility for the reasons that J.M.D.M. came into placement. Id. With
regard to visitation, Ms. Kipp testified that Mother attended only twenty-two
supervised visitations for a total of forty-eight hours over the twenty-nine
months that he was in placement. Id. at 10-11. Mother has not had physical
contact with her son since July 2016. Id. at 11.
Finally, Mother failed to refrain from criminal activity. She not only
recently pled guilty to retail theft charges, but she also failed to comply with
the terms of her plea agreement. Id. Indeed, the record confirms that police
detained Mother following the termination hearing due to her noncompliance
with the terms of her plea agreement. Id. at 31.
The foregoing evidence demonstrates that Mother either refused or
failed to perform parental duties during the six months immediately preceding
the filing of the termination petition on June 9, 2016. Plainly, notwithstanding
Mother’s stated commitment to her son, the orphans’ court accepted BCCYS’s
evidence that Mother made no effort to contact J.M.D.M. during the relevant
six months. Since the certified record supports that finding, we will not disturb
it.
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Next, we consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to § 2511(b).
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term “bond” is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the 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. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and
citations omitted)).
The orphans’ court concluded that BCCYS presented clear and
convincing evidence that terminating Mother’s parental rights would best
serve J.M.D.M.’s needs and welfare pursuant to § 2511(b). Orphans’ Court
Opinion, 12/15/17, at 8.
Again, our review of the record supports the orphans’ court’s findings.
Ms. Kipp testified that Mother last saw J.M.D.M. during July 2016, and that no
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bond exists between Mother and son. N.T., 10/23/17, at 11. In contrast,
J.M.D.M. has bonded with his foster parents, who are adoptive resources. Id.
at 12. The child is thriving in the foster home, where he has resided for nine
months. J.M.D.M. looks to his foster parents for all of his basic needs,
including safety, security, and comfort. Id. He is comfortable in the home
and has demonstrated a marked improvement in his behavioral, physical, and
emotional wellbeing. Id. at 12-13. Finally, Ms. Kipp opined that terminating
Mother’s parental rights would not be detrimental to J.M.D.M.’s best interest
because “due to her limited contact and commitment to [J.M.D.M.], any bond
that [previously] developed has now deteriorated and no longer exists.” Id.
at 13.
Our independent review of the record does not reveal any non-frivolous
issues that were preserved for review. See Flowers, supra at 1250. We
therefore grant counsel’s petition to withdraw, and affirm the October 23,
2017 decree terminating Mother’s parental rights to J.M.D.M.
Petition to withdraw as counsel filed by Kelly S. Kline, Esquire is granted.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2018
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