In the Interest of: A.N.L., Appeal of: N.L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.N.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.L., MOTHER :
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: No. 1717 EDA 2019
Appeal from the Decree Entered June 10, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000362-2019
IN THE INTEREST OF: A.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: N.L., MOTHER :
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: No. 1718 EDA 2019
Appeal from the Order Entered June 10, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002136-2017
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 20, 2019
Appellant N.L. (“Mother”) appeals from the decree entered on June 10,
2019, granting the petition filed by the Philadelphia Department of Human
Services (“DHS”) to involuntarily terminate her parental rights to her minor
child, A.N.L., a/k/a A.L., (“Child”) a female born in July 2010, pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and the order
changing the permanency goal for Child to adoption pursuant to the Juvenile
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Act, 42 Pa.C.S. § 6351. On this direct appeal, Mother’s counsel, Attorney John
M. Hayburn (“Counsel”), filed a petition for leave to withdraw as counsel and
an accompanying brief pursuant to Anders v. California, 386 U.S. 738
(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). Upon review, we grant Counsel leave to
withdraw and affirm.
The trial court discussed the facts and procedural history of the instant
matter as follows:
On July 21, 2017, Child’s [P]aternal [G]randmother began caring
for Child by family arrangement after DHS visited
[Grandmother’s] home and determined [it] to be appropriate. On
July 21, 2017, [DHS] received a General Protective Services
(“GPS”) report which alleged that Mother was diagnosed with
schizoaffective disorder. Mother had disclosed to DHS prior to July
21, 2017[,] that she suffered from mental illness and that to deal
with stress[,] she cut and harmed herself. She also related that
she broke a lava lamp over her head.
On August 23, 2017, the Community Umbrella Agency (“CUA”)
held a Single Case Plan (“SCP”) meeting. The objectives identified
for Mother were[:] (1) to attend intensive outpatient drug and
alcohol treatment and follow all recommendations; (2) to refrain
from using any illegal substance; (3) to continue mental health
services at the Tree of Life Agency; (4) to take medications for
anxiety, [attention deficit hyperactive disorder (“ADHD”)],
depression, panic attacks[,] and mood swings; (5) to have [a]
psychiatric medication check monthly; (6) to continue to explore
proper housing; [and] (7) to have weekly supervised visits with []
Child.
On May 13, 2019, DHS filed the underlying [p]etition[] to
[t]erminate [p]arental [r]ights because Mother was unable to
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maintain her [SCP] objective[s]. Specifically, Mother [] tested
positive on court ordered drug screens and was unable to secure
stable housing. Mother [] also failed to address her mental health
issues.
See Trial Court Opinion, 7/23/19, at 1-8 (internal citations to the record
omitted).
The trial court held a hearing on the petition on June 10, 2019.1 At the
hearing, the CUA representative, Michele Jackson, testified. See N.T.,
6/10/19, at 13-31. Jackson explained that Mother did not meet any of her
SCP objectives. Id.
Jackson testified that Mother was discharged from drug treatment in
April 2018 and March 2019 after failing to attend treatment sessions. Id. at
16. Additionally, Jackson explained that Mother failed to participate in
court-ordered random drug screens, and that, when Mother was finally tested
in June 2019, she tested positive for marijuana and opiates. Id. at 17-21.
Jackson also noted that Mother failed to obtain stable housing. Id. at
13-14, and 25. Jackson testified that Mother was referred to the Achieving
Reunification Center (“ARC”) in March 2019 to assist her in parenting classes
and finding stable housing, but Mother never reported for intake. Id. at 25.
Per Jackson, on a previous occasion, Mother was referred for housing but was
discharged for non-compliance. Id. Additionally, Jackson discussed Mother’s
visits with Child. Id. at 21-22. Jackson stated that Mother’s visits did not
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1 Attorney James King was appointed to represent the Child as her legal
interests counsel and Attorney Lee Kuhlmann was appointed as guardian ad
litem (“GAL”) to represent Child’s best interests. See In re Adoption of
L.B.M., 161 A.3d 172, 179-180 (Pa. 2017).
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progress beyond supervised visits; the visits had to be changed to therapeutic
visits after Mother “coached” Child regarding Paternal Grandmother. Id. at
21-22 and 28.
Lastly, Jackson discussed Child’s placement. She testified that Child has
been in the care of Paternal Grandmother for over two years and that Paternal
Grandmother meets Child’s physical, medical, and educational needs. Id. at
11-12, 27-28. Moreover, Jackson explained that while Mother lives on the
same street as Paternal Grandmother, a stay-away order against Mother has
been obtained because Mother consistently makes unfounded allegations that
Child is physically and verbally abused by Parental Grandmother. Id. at 27-
30. Jackson testified that although Child is glad to see Mother, the bond is
not a parental bond, that Child wishes to be adopted by Paternal Grandmother,
and Child would not suffer irreparable harm if Mother’s parental rights were
terminated. Id. at 29-30. Jackson testified it is in Child’s best interests to be
adopted. Id. at 30. Following Jackson’s testimony, Attorney Kuhlmann,
Child’s GAL, stated on the record that Child confirmed she wished to be
adopted by her foster parent. Id. at 31.
At the conclusion of the hearing, the court terminated Mother’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). This timely
appeal followed.2
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2Mother filed two notices of appeal on June 24, 2019, separately listing each
docket number. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
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On August 22, 2019, Counsel filed an Anders brief and a petition to
withdraw as counsel. Therefore, before reviewing the merits of this appeal,
this Court must first determine whether counsel has fulfilled the necessary
procedural requirements for withdrawing as counsel. See Commonwealth
v. Flowers, 113 A.3d 1246, 1248–1249 (Pa. Super. 2015) (citation omitted).
“In order to withdraw from appellate representation pursuant to
Anders, certain procedural and substantive requirements must be met.”
Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).
Procedurally, 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 brief to the defendant; and (3) advise the defendant that
he or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court's
attention.
Id. at 359. Substantively, counsel must file an Anders brief, in which
counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state
counsel's reasons for concluding that the appeal is frivolous.
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2018). Mother also filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on the same date. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on July 23, 2019.
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Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
In this case, we acknowledge Counsel’s compliance with Anders’
procedural and substantive requirements. “Therefore, we now have the
responsibility ‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016),
quoting Flowers, 113 A.3d at 1248.
Counsel’s Anders brief raises the following issue for our review:
1. Whether the trial court committed reversible error[] when it
involuntarily terminated Mother’s parental rights and changed the
goal from reunification to adoption where such determination was
not supported by the clear and convincing evidence under the
[A]doption [A]ct, 23 Pa.C.S.A. [§ 2511(a)(2)?][3]
2. Whether the trial court committed reversible error when it
involuntarily terminated Mother’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical[,] and emotional needs of []
[C]hild 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 Mother demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with [] [C]hild[?]
See Anders Brief, at 7 (un-paginated).
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3 Counsel’s Anders brief addresses both the goal change and the court’s
Section 2511(a) determinations in one issue. For clarity, we first address the
goal change issue and then discuss Mother’s challenge to the termination of
her parental rights.
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With regard to dependency cases:
[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
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).
We have further noted:
[w]hen a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on what
the parent wants or which goals the parent has achieved.
Moreover, although preserving the unity of the family is a purpose
of the [Juvenile] Act, another purpose is to “provide for the care,
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protection, safety, and wholesome mental and physical
development of children coming within the provisions of this
chapter.” 42 Pa.C.S. § 6301(b)(1.1). Indeed, “[t]he relationship
of parent and child is a status and not a property right, and one
in which the state has an interest to protect the best interest of
the child.”
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some citations omitted).
Here, the court did not err in changing Child’s goal to adoption.
Throughout the history of the case, Mother was required to participate in drug
counseling and mental health services to achieve reunification. Mother,
however, failed to achieve those goals. Indeed, Mother was discharged from
her drug treatment program due to her failure to attend and did not participate
in court-ordered random drug testing; when tested in June 2019, Mother was
positive for marijuana and opiates. Mother also failed to obtain stable
housing. Thus, Mother was not compliant with the family service plan, made
no progress towards alleviating the circumstances that led to Child’s
placement, and showed no indication that those circumstances would be
remedied in any reasonable amount of time. See, e.g., A.N.P., 155 A.3d at
67. Accordingly, a goal change was appropriate.
We turn now to Mother’s arguments regarding the termination of her
parental rights. We review cases involving the termination of parental rights
according to the following standards.
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
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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) (internal 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). This
Court may affirm the trial court’s decision regarding the termination of
parental rights with regard to any one subsection of section 2511(a). See In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We conclude that
termination was proper under section 2511(a)(2).
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:
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(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.
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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.
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.”
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.
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Here, to be reunited with Child, Mother was required to complete the
following objectives, (1) attend intensive outpatient drug and alcohol
treatment and follow all recommendations; (2) refrain from using any illegal
substance; (3) participate in mental health services; (4) take the appropriate
psychiatric medication and remain under the supervision of a doctor in doing
so; (5) obtain stable housing; and (6) attend weekly supervised visits with
Child. Mother failed to complete a single objective. Accordingly, we discern
no error in the trial court’s finding that clear and convincing evidence
supported the termination of Mother’s parental rights pursuant to Section
2511(a)(2). See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Next, we must consider whether 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
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
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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); In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
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).
Here, the record supports the existence of a bond between Mother and
Child, in that Child is glad to see Mother. However, testimony also supports
the court’s conclusion that the bond is not parental and that the child/parent
bond exists between Child and Paternal Grandmother. See Trial Court
Opinion, 7/23/19, at 6. Testimony established that Child was thriving in her
foster placement with a foster parent who provided for her emotional,
physical, and developmental well-being, and that Child wished to be adopted
by Paternal Grandmother. Thus, we discern no abuse of discretion in the trial
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court’s conclusion that Child’s needs and welfare are best served by
termination.
Accordingly the trial court did not commit an abuse of discretion in
terminating Mother’s parental rights. We also agree with Attorney Hayburn
that Mother’s issues are frivolous. We have independently reviewed the record
and find no other issues of arguable merit that Mother could pursue on appeal.
Accordingly, we affirm the trial court decree and order and grant counsel’s
petition to withdraw.
Decree and order affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/19
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