In Re: M.I.S., Jr., Appeal of: K.T.D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.I.S., JR., A MINOR : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
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APPEAL OF: K.T.D., MOTHER :
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: No. 60 MDA 2019
Appeal from the Order Entered December 6, 2018
In the Court of Common Pleas of Centre County
Orphans' Court at No: 2018-4322 A
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED JULY 05, 2019
K.T.D. (“Mother”) appeals from the December 6, 2018 decree in the
Court of Common Pleas of Centre County involuntarily terminating her
parental rights to her son, M.I.S., Jr. (“Child”), born in August of 2013. We
affirm and grant counsel’s petition to withdraw.
The record reveals that Child was placed in the emergency custody of
the Centre County Office of Children and Youth Services (“CYS”) on September
18, 2017, due to Mother and M.S., Sr. (“Father”), being unresponsive in the
home of W.S. (“paternal grandmother”) the previous evening, when Child was
present, and police finding drug paraphernalia in plain sight in their home.
N.T., 12/5/18, at 16. The court adjudicated Child dependent on September
25, 2017. On October 6, 2017, the court found aggravated circumstances
existed as to Mother due to the involuntary termination of her parental rights
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to her daughter. Id. at 24; Dependency Adjudication at ¶ 18. The order
directed no reunification efforts between Mother and Child.
In addition to Child, Mother has two older sons and a daughter.
Mother’s first son was born in 2003. Mother gave birth in the State of New
Jersey to her second son and to her daughter in 2008 and 2012, respectively,
both of whom tested positive at birth for phencyclidine (“PCP”). Dependency
Adjudication at ¶¶ 15-16. As a result, the New Jersey Division of Child
Protection and Permanency (“DCPP”) had an extensive history with Mother.
As best we can discern, Mother’s sons reside in the permanent legal custody
of her sister in New Jersey. Id. at ¶ 15. Mother’s daughter was immediately
placed in the custody of DCPP, and the Superior Court of New Jersey
involuntarily terminated her parental rights to that child in 2016. Id. at ¶¶
16, 18.
In 2012, Mother moved to the State of Colorado, where Child was born
also with PCP in his system. N.T., 12/5/18, at 25. Child was immediately
placed in foster care in Colorado, where he remained for approximately the
first year of his life. Id. at 25-26. Thereafter, a Colorado court returned Child
to the care of Father, who was to supervise Mother in the presence of Child.
Id. at 26.
CYS first became aware of Mother living in Centre County, Pennsylvania,
in May of 2017, upon a referral from DCPP. When CYS subsequently became
involved with this family in September of 2018, Child’s paternal grandmother
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alleged that she had been caring for Child for approximately one and one-half
years. N.T., 12/5/18, at 27; Dependency Adjudication at ¶ 21. CYS
determined that the paternal grandmother was not a proper placement for
Child because of her own drug use and health problems. N.T., 12/5/18, at
21-22, 27. Therefore, CYS placed Child with foster parents, with whom he
remained throughout this case. They are a permanent resource for him. Id.
at 86.
On July 30, 2018, CYS filed a petition for the involuntary termination of
Mother’s and Father’s parental rights to Child pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), and (b). A hearing occurred on December 5, 2018,
during which CYS presented the testimony of its caseworkers, Lacy Gates and
Tammi Eddy, and the caseworker from Family Intervention Crisis Services
(“FICS”), Jessica DuFour. Mother did not appear at the hearing, but she was
represented by counsel.1 Father was represented by counsel, and he testified
on his own behalf. In addition, Child, then five years old, was represented by
legal counsel during the hearing.
By decrees dated December 5, 2018, the orphans’ court involuntarily
terminated Mother’s and Father’s parental rights. On January 4, 2019,
Mother, through her trial counsel, filed a notice of appeal and a concise
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1 At the conclusion of the hearing, the orphans’ court granted Mother’s trial
counsel permission to withdraw as counsel but directed counsel to advise
Mother immediately of her appeal rights. N.T., 12/5/18, at 138.
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statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Father did not appeal.
On January 10, 2019, the court appointed appellate counsel for Mother,
who subsequently filed a petition with this Court requesting to withdraw from
representation and submitted a brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).2 We review counsel’s request to withdraw first. See Commonwealth
v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (“‘When faced with a
purported Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.’”) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)).
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
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2 This Court “extended the Anders principles to appeals involving the
termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014).
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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
substantive 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.
Santiago, 978 A.2d at 361.
Instantly, Mother’s counsel filed a petition to withdraw certifying that he
had reviewed the case and determined that Mother’s appeal was frivolous.
Counsel also filed a brief that includes a summary of the history and facts of
the case, the issues raised by Mother, the facts that arguably support the
appeal, and counsel’s assessment of why the appeal is frivolous with citations
to relevant legal authority. In addition, counsel attached to the petition his
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letter to Mother dated March 20, 2019, pursuant to Millisock, supra.3 As
such, counsel complied with the requirements of Anders and Santiago.
We must next “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:
[I]. Whether the [orphans’] court erred in finding clear and
convincing evidence existed to terminate Mother’s parental rights
pursuant to 23 Pa.C.S.A. [§] 2511(a)(1), (2), and (5) where no
assessments were conducted and [CYS] failed to demonstrate that
termination was in the best interest of Child?
[II]. Whether the [orphans’] court erred in terminating Mother’s
parental rights where insufficient evidence was presented to meet
the requirements of the grounds submitted?
Anders brief at 7.4
Our standard of review is as follows:
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
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3 On May 7, 2019, Mother filed pro se a one-page handwritten letter to this
Court in which she alleges, as best we can discern, that her appellate counsel
and CYS verbally abused, insulted, and caused her mental anguish. In
addition, she alleges that she does not know why Child was removed from her
care. Upon careful review of the record, discussed infra, Mother’s assertions
are unsupported and entitle her to no relief.
4 It is important to note that Child’s legal counsel has filed a brief in support
of the subject decree.
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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 Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, 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).
Instantly, we conclude that the certified record supports the decree
pursuant to Section 2511(a)(1) and (b), which provides as follows.5
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5 This Court need only agree with any one subsection of Section 2511(a),
along with subsection 2511(b), in order to affirm the termination of parental
rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
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(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.A. § 2511(a)(1), (b).
With respect to Section 2511(a)(1), our Supreme Court has held,
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three 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 Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92
(1988). Further,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
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consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the
involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
Our courts have explained that parental duty “is best understood in
relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa. 1977).
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 encompasses
more than a financial obligation; it 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.’
Id. (citations omitted); see also In re C.M.S., 832 A.2d 457, 462 (Pa. Super.
2003), appeal denied, 859 A.2d 767 (Pa. 2004).
With respect to Section 2511(b), we have explained, “[i]ntangibles such
as love, comfort, security, and stability are involved in the inquiry into the
needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). Further, the trial court “must also discern
the nature and status of the parent-child bond, with utmost attention to the
effect on the child of permanently severing that bond.” Id. (citation omitted).
However, “[i]n cases where there is no evidence of any bond between the
parent and child, it is reasonable to infer that no bond exists. The extent of
any bond analysis, therefore, necessarily depends on the circumstances of the
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particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008)
(citation omitted).
In this case, the testimonial evidence demonstrates that Mother refused
or failed to perform her parental duties in excess of six months immediately
preceding the filing of the involuntary termination petition pursuant to Section
2511(a)(1). Lacy Gates, the CYS caseworker from September 18, 2017, until
October 30, 2017, testified that Mother was obligated under a Family Service
Plan (“FSP”) developed by DCPP in New Jersey to participate in drug and
alcohol counseling. N.T., 12/5/18, at 40. Ms. Gates testified that CYS had
contact with Mother, as follows.
[Mother] would call into the office, and . . . would speak to me
about going back to September 18th and how she didn’t do it and
it was just she would go around and around in a circle and we
would get nowhere. And I’d eventually terminate those calls
because we weren’t getting anywhere and she wasn’t following
through as far as I knew with anything in New Jersey.
Id. Ms. Gates testified that Mother would not sign releases, so she had no
knowledge that Mother ever participated in the required drug and alcohol
counseling. Id.
Tammi Eddy, the CYS caseworker from October 30, 2017, up through
the time of the subject proceeding, testified that CYS presented Mother with
a copy of the permanency plan.6 Ms. Eddy stated that she spoke to Mother
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6Although not specified in the record, we presume that the permanency plan
was established by DCPP.
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soon after she became the caseworker, during which “[Mother] informed me
that she was not in agreement with the plan and had no intention of following
through with it because it was lies.” Id. at 76. She further explained,
“[Mother] frequently goes back to the day, September 18th of last year, denies
that she was abusing her prescriptions. She said we’re using her past against
her. And she . . . [verbally] attacks caseworkers and CYS staff[.]” Id. at 78.
Ms. Eddy stated that Mother’s moods generally vacillated between being “very
angry, very hostile and verbally combative.” Id. at 77. Specifically, Ms. Eddy
testified:
On a personal basis, among other things she has called staff
members fat, stupid, lazy. She, at one point, told me that I was
a racist. She accuses CYS staff of purposefully antagonizing her.
At one point she said to me, she told me that I was lying about
having other clients, that I had no other clients but her, and that
I spent my time following her around and keeping tabs on her.
Id.
Ms. Eddy testified that, in all but two telephone calls she had with
Mother, Mother seemed “to be under the influence of some kind of substances.
. . .” Id. at 77. Similarly, she testified that, between July 24 and July 26,
2018, Mother left three voicemails for her in which Mother’s speech was
slurred. Id. In two of her voicemails, Mother “made a reference to living in
a dangerous area, and [she] said that she had been shot at.” Id.
Ms. Eddy testified that, at a hearing on October 30, 2017, the juvenile
court directed CYS to provide supervised visits for Mother at her request. Id.
at 71-72. Mother requested four visits between October 30, 2017, and
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December 8, 2018, and CYS scheduled them. Mother attended none of the
visits. Id. at 72-74. She also testified that Mother had telephone
conversations with Child on January 8, 2018, and July 30, 2018, the latter of
which she “struggled to stay on child-friendly topics. . . . She had to be
advised several times that she needed to . . . stick to things that were child[-
]friendly. . . .” Id. at 74. For instance, Ms. Eddy stated that Mother
“repeatedly asked Child who was hurting him in foster care. Child told her
nobody’s hurting me, nobody’s hurting me. . . .” Id. at 75.
By letter dated August 14, 2018, Ms. Eddy informed Mother that she
investigated Mother’s claim that Child was being abused in foster care, and
she concluded it was not accurate. Id. at 79. Further, Ms. Eddy informed
Mother “that phone calls would no longer be substituted for a face-to-face
visit. And that if she would like to have visits with [Child], she needed to
make those arrangements.” Id. Based on all of the foregoing, Ms. Eddy
testified, “It’s our position that [Mother has] made absolutely no progress [on
her FSP goals in the DCPP permanency plan].” Id.
The testimonial evidence clearly demonstrates that Mother has refused
or failed to perform her parental duties throughout the entirety of the
underlying case, which was more than ten months preceding the filing of the
termination petition. As such, we discern no abuse of discretion by the court
in concluding that Mother’s conduct warrants the termination of her parental
rights under Section 2511(a)(1).
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We next review the decree under Section 2511(b) pursuant to the
requisite bifurcated analysis in involuntary termination matters. Our case law
is well-settled:
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.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court’s decision to terminate parents’ parental
rights was affirmed where court balanced strong emotional bond
against parents’ inability to serve needs of child). Rather, the
orphans’ court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and
beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d
473, 483 (Pa. Super. 2010),
[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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Furthermore, our Supreme Court has stated, “[c]ommon sense dictates
that courts considering termination must also consider whether the children
are in a pre-adoptive home and whether they have a bond with their foster
parents.” In re T.S.M., 71 A.3d at 268. The Court directed that, in weighing
the bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. Court
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observed, “[c]hildren are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts fail . . .
the result, all too often, is catastrophically maladjusted children.” Id.
Instantly, the testimonial evidence does not reveal the existence of any
bond between Mother and Child. Therefore, to the extent that the orphans’
court inferred that no parent-child bond existed, it was reasonable. See In
re K.Z.S., 946 A.2d at 762-763.
Ms. Gates testified on cross-examination by Child’s counsel that Child
was more bonded to his paternal grandmother than to his parents at the
beginning of his foster care placement. N.T., 12/5/18, at 41-42. For instance,
she testified that Child inquired about his paternal grandmother, but not his
parents, when she was the caseworker. Id. at 43.
Nevertheless, Ms. Gates testified that Child, “fit right in with everybody
[in the foster home]. Even on the first night that we brought him to that
home, he was right off playing with the two children that are close to his age.”
Id. Similarly, Jessica DuFour, the FICS caseworker, who offered reunification
services to Father and Child’s paternal grandmother, testified that she
observed Child in the foster home and described him as “a very happy kiddo.
He’s doing well there. They’re meeting all of his needs. He seems comfortable
in that living situation.” Id. at 51.
Ms. Eddy testified that Child refers to Mother by her first name. Id. at
75. Further, she testified Child told her that he did not trust Mother, but he
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“identified the foster parents and their adult son as three adults that he feels
safe with and can trust to tell if somebody’s harming him.” Id. In fact, Ms.
Eddy testified that Child refers to his foster parents, who are a permanent
resource, as “mommy and daddy.” Id. at 86.
Ms. Eddy testified that Child participates in counseling every six weeks
“just for maintenance.” Id. at 85. She explained:
He’s doing extremely well. We had referred [Child] because it
seemed odd to us that given all the trauma that he has endured
in his young life that he is as well[-]adjusted as he is. [The
counselor] sees no concerns of [Child] at this point[;] he’s doing
very well. So she’s seeing him for maintenance appointments
once every six weeks.
Id. Further, Ms. Eddy testified that Child was “doing extremely well” in
kindergarten. Id. She stated:
He frequently gets awards, they’re called star awards, for various
things. His most recent one was for reading. He told us it was
for reading 77 books. That wasn’t true, it was seven. He just got
a little carried away. He’s gotten them for good behavior, good
citizenship. His teacher describes him as the quintessential
kindergartner. The school just has nothing but positive things to
say.
Id.
Moreover, Ms. Eddy testified that Child would not be harmed if Mother’s
parental rights are terminated. She stated, “in addition to his emotional
stability, I would be much more concerned about his physical safety [if he
was] with his biological mother.” Id. at 87.
We conclude that the testimonial evidence overwhelmingly
demonstrates that terminating Mother’s parental rights will best serve Child’s
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developmental, physical, and emotional needs and welfare pursuant to Section
2511(b). In addition, our independent review of the record reveals that there
are no other additional, non-frivolous issues overlooked by counsel.
Accordingly, we affirm the decree.
Petition of Julian Allatt, Esquire, to withdraw from representation is
granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/05/2019
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