Adoption of: R.Z-W.P., Appeal of: J.P. ( 2019 )

J-S68028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: R.Z-W.P. : PENNSYLVANIA
:
:
APPEAL OF: J.P., NATURAL FATHER :
:
:
: No. 1094 WDA 2019
Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 124A in Adoption 2018
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: J.L.P. : PENNSYLVANIA
:
:
APPEAL OF: J.P., NATURAL FATHER :
:
:
: No. 1095 WDA 2019
Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
124B in Adoption 2018
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: E.R.P. : PENNSYLVANIA
:
:
APPEAL OF: J.P., NATURAL FATHER :
:
:
: No. 1096 WDA 2019
:
Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 124(C) in Adoption 2018
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BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 24, 2019
J.P. (Father)1 appeals from the trial court’s decrees, entered in the Court
of Common Pleas of Erie County, involuntarily terminating his parental rights
to his three minor children, R.Z.-W.P. (born 1/2009), J.L.P. (born 5/2012) and
E.R.P. (born 10/2015) (collectively, Children). Counsel has also filed a petition
to withdraw on appeal. See Anders v. California, 386 U.S. 738 (1967); see
also In re: V.E., 611 A.2d 1267 (Pa. Super. 1992). After careful review, we
affirm on the basis of the trial court’s opinion and grant counsel’s petition.2
Father is a truck driver who would be on the road an average of five to
seven days a week; Mother would be in charge of Children while he was
working. In June 2017, while Father was in Florida for his job, Father’s oldest
child, D.R.P.,3 told him in a phone call that Mother had smacked him on the
back during an argument. Father called Erie County Office of Children and
Youth (OCY) and relayed his concerns about Mother, the existence of
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* Retired Senior Judge assigned to the Superior Court.
1Biological mother, B.D., has also filed a separate appeal from the court’s
decrees terminating her parental rights to Children. See 1097 EDA 2019,
1098 WDA 2019 & 1099 WDA 2019.
2 Counsel for Children, Christine Furhman Konzel, Esquire, did not file an
independent brief on appeal. She, however, agrees with Father’s counsel that
the appeal is frivolous.
3 The court denied Erie County Office of Children and Youth’s termination
petition with regard to another one of Parents’ children, D.R.P. He is not
involved in this appeal.
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deplorable conditions in the family home, and apparent domestic violence and
mental health issues in the family.4 In response, OCY initiated family-based
mental health services for the entire family. In July 2017, a caseworker had
contact with Children who had indicated that they were fearful for their safety
and had suffered injuries as a result of another physical altercation at home.
On July 25, 2017, OCY sought protective custody of Children; the court
subsequently adjudicated Children dependent and placed them in foster care.
OCY formulated a dispositional plan for the family. Parents were to participate
in random urinalysis testing, psychological evaluations, bonding assessments,
mental health treatment, and advised to maintain safe and stable housing.
The court granted Parents supervised visitation with Children. Father’s
visitation progressed to unsupervised for just two visits in June 2018, but
returned to supervised in the summer of 2018 after OCY discovered that
Father had been allowing Mother to have unauthorized and unsupervised
contact with Children.
OCY Caseworker Lisa Langer testified that Parents seemed unwilling and
resistant to working on the suggested services. N.T. Termination Hearing,
4/11/19, at 94. Caseworker Langer also testified that Father continued to
exhibit threatening behavior and mental instability throughout her
involvement in the matter, including making multiple threats to caseworkers.
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4Father also testified that he was advised by OCY to file a protection from
abuse (PFA) petition against Mother to prevent Children from being taken
away from him. N.T. Termination Hearing, 5/6/19, at 44-47. Father complied
and filed the petition; however, he later withdrew the petition.
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Id. at 103, 135. Caseworker Shannon Spiegel testified that due to Children’s
unhealthy bond with parents, terminating their parental rights would be in
Children’s best interests. Id. at 116. See also id. at 139 (OCY supervisor
Julie Lafferty testifying termination would serve needs and welfare of Children
where Children’s attachment to parents was unhealthy; adoptive resource
necessary for Children to live “healthy, happy, successful lives.”).
Father admitted to caseworkers numerous times that Mother was
abusive toward the Children, but that he was not around to protect them
because of his work schedule. Id. at 108. Caseworkers often observed
Parents failing to intervene when Children were fighting amongst themselves.
Id. at 111. Permanency Caseworker Rachel Campbell testified that J.L.P. and
E.R.P., who are placed in the same pre-adoptive foster home, are thriving and
bonded to their foster family. Id. at 142. Campbell further testified that R.Z.-
W.P. is in a pre-adoptive home and is doing “very well” there. Id. at 142-43.
In October 2018, OCY changed the goal from reunification to adoption.
On November 27, 2018, OCY filed three petitions to involuntarily terminate
Father’s parental rights to Children. The court held termination hearings on
April 11, 2019 and May 6, 2019. After reviewing the evidence and testimony
presented at the hearings, on June 21, 2019 the court issued decrees granting
termination pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b) of
the Adoption Act.5
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5 23 Pa.C.S. §§ 2101-2938.
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On July 18, 2019, Father’s former attorney, Elizabeth B. Walbridge,
Esquire, filed a timely notice of appeal and a Pa.R.A.P. 1925(c)(4) notice of
intention to file an Anders brief in lieu of a Rule 1925(b) concise statement
of errors complained of on appeal. Attorney Walbridge filed a petition to
withdraw which the trial court granted. Subsequently, current counsel,
Gregory J. Grasinger, Esquire, entered his appearance for Father. Attorney
Grasinger now seeks to withdraw from representing Father on appeal. He
presents the following issues for our consideration:
(1) Whether the Orphan’s Court committed an abuse of
discretion or error of law when it concluded that the []OCY
established grounds for termination of parental rights under
23 P[a].C[.]S[]. [§] 2511([a])(1)(2)(5) and (8).
(2) Whether the Orphan’s Court committed an abuse of
discretion or error of law when it concluded that the
termination of [Father’s] parental rights was in the
Child[ren]’s best interest pursuant to 23 P[a].C[.]S[]. [§]
2511(b).
Appellant’s Anders Brief, at 5.
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. 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.” It is well[-]
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
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In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
We review a trial court’s decision to involuntarily terminate parental
rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,
563 (Pa. Super. 2003). Our scope of review is limited to determining whether
the trial court’s decree is supported by competent evidence. Id.We may not address the merits of Father’s appeal without first reviewing
counsel’s request to withdraw. Commonwealth v. Rojas, 874 A.2d 638,
639 (Pa. Super. 2005). In V.E., supra, our Court held:
Counsel appointed to represent an indigent parent on a first
appeal from a decree involuntarily terminating his or her parental
rights, may, after a conscientious and thorough review of the
record, petition the court for leave to withdraw representation if
he or she can find no issues of arguable merit on which to base
the appeal.
611 A.2d at 1275. In In re Adoption of V.G., 751 A.2d 1174 (Pa. Super.
2000), our Court reiterated the requirements counsel must satisfy before
being permitted to withdraw in termination appeals: (1) petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined the appeal would be frivolous; (2) file a
brief referring to any issues in the record of arguable merit; and (3) furnish a
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copy of the brief to the appellant and advise the appellant of his or her right
to retain new counsel or proceed pro se and raise any additional points he or
she deems worthy of this Court’s review. Id. at 1176.
Instantly, Attorney Grasinger has complied with the withdrawal
requirements outlined in V.G. He has filed a separate petition to withdraw
concluding that the appeal would be frivolous, filed a brief referring to any
issues of arguable merit, stated in his brief that he has furnished Father with
a copy of the brief, and informed him of his rights in lieu of counsel’s
representation. Therefore, we find counsel has substantially complied with
the withdrawal requirements. Commonwealth v. Wrecks, 934 A.2d 1287(Pa. Super. 2007) (substantial compliance sufficient to satisfy withdrawal on
appeal).
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (citation omitted). Based on our own independent review of the
certified record, including the notes of testimony from the termination hearing,
relevant case law and the trial court opinion, we agree with counsel’s
assessment that any appeal would be frivolous.
After reviewing the parties’ briefs, relevant case law and the certified
record on appeal, we affirm the trial court’s decrees terminating Father’s
parental rights to Children on the basis of the trial court opinion authored by
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the Honorable Shad Connelly. Judge Connelly’s opinion thoroughly analyzes
the issues raised on appeal by Father, supporting termination with reference
to relevant testimony and evidence from the two-day hearing. Specifically,
termination is proper under section 2511(a)(2)6 based on Parents’ history of
abuse, unstable housing, domestic violence and lack of follow through with
provided OCY services.7 Critically, Father’s failure to prevent Mother’s physical
abuse of Children compounds the lack of safety and stability in their lives.
Mother and Father’s relationship is “toxic;” Father admitted his codependency
on Mother, secretly took D.R.P. to Mother’s residence despite clear directives
from OCY that he was not to permit his children to have unauthorized contact
with Mother, and allegedly planned to reunite Children with Mother and move
out of the state.
Termination is also warranted under section 2511(b)8 where several
OCY caseworkers and Dr. Peter Von Korff, an expert in the field of psychology
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6 Termination is proper under section 2511(a)(2) where “[t]he 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.”
7 We also note that we can affirm the trial court’s decision regarding the
termination of parental rights with regard to any singular subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
8 In In re T.S.M., 71 A.3d 251, 267 (Pa. 2013), our Supreme Court noted “if
the grounds for termination under subsection (a) are met, a court ‘shall give
primary consideration to the developmental, physical and emotional needs
and welfare of the child.’” 23 Pa.C.S. § 2511(b). Moreover, “[i]ntangibles
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and bonding assessments, testified that termination would be in Children’s
best interests. Specifically, Dr. Von Korff concluded that Father would “have
a great deal of difficulty” being available as a parent on a steady basis. N.T.
Termination Hearing, 4/11/19, at 36. Doctor Korff described Father as an
“arms-length” parent who is “not really available [and] only sporadically
around.” Id. at 43. Doctor Korff opined that Children have “insecure and
avoidant relationships with . . . Father.” Id. Doctor Korff also noted that
Father is co-dependent on Mother which, in turn, affects his attachment with
Children. Id. at 53-54; see also N.T. Termination Hearing 5/6/19, at 75, 82
(Father admits he was in co-dependent relationship with Mother and had an
unhealthy relationship with Mother). Finally, Dr. Korff testified that Children
need security and dependency, which they have not been able to receive from
Father, and if severing parental ties would bring that about then, in his
professional opinion, he would have “no problem” with termination. Id. at 58,
116, 136 (various caseworkers testifying terminating parental rights would be
in Children’s best interests). Children are thriving in their pre-adoptive homes
and have positive attachments to their foster families. See In re T.S.M., 71
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such as love, comfort, security, and stability are involved in the inquiry into
needs and welfare of a child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super.
2005). Further, in In re E.M., 620 A.2d 481, 485 (Pa. 1993), this Court held
that the determination of the child’s “needs and welfare” requires an
examination of “the status of the natural parental bond.” The “utmost
attention” should be paid to discerning the effect on the child of permanently
severing the parental bond. In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012),
overruled on other grounds by In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017).
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A.3d 251, 268 (Pa. 2013) (“Common 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.”).
Accordingly, we discern no abuse of discretion or error of law by the trial
court where its decrees are supported by competent evidence. In re A.R.,
supra. We instruct the parties to attach a copy of Judge Connelly’s opinion
in the event of further proceedings in the matter.
Decrees affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2019
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Circulated 12/13/2019 09:44 AM