In Re: A.J.G.-B., Appeal of: J.S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.J.G.-B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.S., FATHER No. 256 WDA 2014
Appeal from the Order entered January 17, 2014,
in the Court of Common Pleas of Allegheny County, Orphans’
Court, at No(s): TPR 066 of 2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 12, 2014
J.S. (“Father”) appeals from the order entered on January 17, 2014, in
the Court of Common Pleas of Allegheny County, terminating his parental
rights to A.G.-B. (born in January of 2007) (“Child”), pursuant to 23
Pa.C.S.A. § 2511.1 We affirm and grant counsel’s petition to withdraw.
This family became known to the Allegheny County Office of Children,
Youth and Families (“CYF”) on March 16, 2011, after Mother was arrested in
the home where she resided with Child in Pittsburgh, Pennsylvania. At the
time of the removal, Father resided in Pittsburgh, Pennsylvania. At the
dependency hearing, Father testified that he was aware that Mother was
using drugs, was unable to ensure Child’s safety, and testified to using
marijuana. N.T., 1/8/14, at 14-15. Additionally at the dependency hearing,
Father agreed that Child should be placed in maternal grandparent’s care.
Id. at 14. On April 11, 2011, Child was adjudicated dependent. Two weeks
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H.R.G.’s (“Mother”) parental rights were terminated on October 16, 2013.
Mother is not a party to this appeal, nor did she file her own appeal.
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later, Father moved to Florida. Father has not seen Child in the three years
since. Id. at 19.
On April 13, 2011, CYF created Family Service Plan (“FSP”) goals for
Father. Id. at 18. Father’s FSP goals were: (1) to complete drug and
alcohol assessment and make himself available for urine screening; (2) to
contact and cooperate with CYF; (3) to arrange visits and maintain contact
with Child; (4) to take part in a psychological examination. Id. at 17-18.
On April 8, 2013, CYF filed a petition for the involuntary termination of
Father’s parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8)
and (b). The trial court held a hearing on the petition on January 8, 2014.
At the hearing, Latari Mitchell, a family service worker for CYF, and Father
testified.
On January 17, 2014, the trial court entered its order terminating
Father’s parental rights to Child. On February 13, 2014, Father filed his
notice of appeal and concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
As a preliminary matter, Father’s counsel seeks to withdraw
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders principles apply to appeals involving
termination of parental rights. See In re S.M.B., 856 A.2d 1235 (Pa.
Super. 2004). Anders and Santiago require counsel to: 1) petition the
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Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; 2)
file a brief referring to anything in the record that might arguably support
the appeal; and 3) furnish a copy of the brief to the appellant and advise
him or her of the right to obtain new counsel or file a pro se brief to raise
any additional points the appellant deems worthy of review. Santiago, 602
Pa. at 173-79, 978 A.2d at 358-61; In re Adoption of V.G., 751 A.2d
1174, 1176 (Pa. Super. 2000). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287,
1290 (Pa. Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.
Super. 1997)).
In Santiago, our Supreme Court addressed the briefing requirements
where court-appointed counsel seeks to withdraw representation on appeal:
Neither Anders nor [Commonwealth v.] McClendon[,
495 Pa. 457, 434 A.2d 1185 (1981)] requires that
counsel’s brief provide an argument of any sort, let alone
the type of argument that counsel develops in a merits
brief. To repeat, what the brief must provide under
Anders are references to anything in the record that
might arguably support the appeal.
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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, 602 Pa. at 176-177, 978 A.2d at 359-360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (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.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel filed a petition to withdraw representation. The
petition states that counsel conscientiously and thoroughly reviewed the
record of the proceedings, and concluded that the appeal is frivolous. The
petition also states that counsel informed Father by United States mail of his
appellate rights. Application/Petition for Leave to Withdraw Appearance,
filed 4/22/14, at 1. The letter, attached to the petition, advises Father of his
right to raise questions about the jurisdiction of the court and to question
the legality of the trial court’s decision, and of his right to retain new
counsel, proceed pro se, or to raise any additional points that he may deem
worthy of consideration.
In her Anders brief, counsel provides reasons for her conclusion that
the appeal is wholly frivolous. Fathers’ Brief at 3-5. Counsel also refers to
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items in the record that arguably support the appeal. Father’s Brief at 3-5.
Additionally, counsel provides a well-written and detailed summary of the
facts and procedural history of the case, with citation to the record and
relevant law. Id. Thus, counsel has substantially complied with the
requirements of Anders and Santiago. As Father has filed neither a pro
se brief nor a counseled brief with new privately retained counsel, we review
this appeal based on the issues raised in the Anders brief:
1. Whether the trial court erred in determining [F]ather failed to
parent [C]hild under section 2511(a)(1)?
2. Whether the trial court erred in determining that terminating
[F]ather’s rights would meet [C]hild’s needs and welfare?
Father’s Brief at 1.
Our standard of review regarding orders terminating parental rights is
as follows:
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 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
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the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have previously stated:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
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. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581
Pa. 668, 863 A.2d 1141 (2004). Accordingly, as the trial court focused on
sections 2511(a)(1) and (5) in terminating Father’s parental rights, we will
focus on that sections for our review.
In terminating Father’s parental rights, the trial court relied upon
section 2511(a)(1) and (b) which provide:
§ 2511. Grounds for involuntary termination
(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:
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(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.
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(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.
We have conducted a careful review of the briefs of the parties, the
relevant law, the certified record, and the thorough opinion of the Honorable
Kathryn Hens-Greco, dated April 19, 2014. We conclude that competent
evidence supports the trial court’s termination of Father’s parental rights to
Child under sections 2511(a)(1) and (b). We discern no abuse of discretion
in the court’s termination of Father’s parental rights. Accordingly, on the
basis of the well-analyzed discussion in the trial court opinion dated March
13, 2014, we affirm the order terminating Father’s parental rights to Child
under sections 2511(a)(1), and (b), and adopt that opinion as this Court’s
own. Additionally, we grant counsel’s petition to withdraw.
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Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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