In Re: N.L., J.L., B.L. and Y.L. Appeal of: Y.C. ( 2017 )

J-S01004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.
65.37
IN RE: N.L., J.L., B.L. AND Y.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: Y.C., MOTHER : No. 1330 MDA 2016
Appeal from the Decree July 15, 2016
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 1121-2015, 985-2015, 986-2015,
987-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 27, 2017
Appellant, Y.C. (“Mother”), appeals from the decree entered in the
Lancaster County Court of Common Pleas Orphans’ Court, which
involuntarily terminated her parental rights to her minor children, N.L., J.L.,
B.L., and Y.L. (“Children”). Upon a thorough review of the record, we affirm.
In its opinions, the Orphans’ court fully and correctly sets forth the
relevant facts and procedural history of this case. Therefore, we have no
reason to restate them.1 After Mother timely filed a notice of appeal and
____________________________________________
1
Despite the court’s entry of separate termination decrees for each child,
Mother filed a single notice of appeal in this case. See Dong Yuan Chen v.
Saidi, 100 A.3d 587, 589 n.1 (Pa.Super. 2014) (explaining one notice of
appeal from separate decrees is generally discouraged). Nevertheless,
Mother’s argument for each decree is identical and stems from the same set
of facts. See Baker v. Baker, 624 A.2d 655, 656 (Pa.Super. 1993)
(Footnote Continued Next Page)
J-S01004-17
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i), Mother’s counsel filed an Anders brief and petition for leave
to withdraw as counsel in this Court on October 13, 2016. On October 19,
2016, this Court determined counsel’s Anders brief did not comply with all
the requirements of Commonwealth v. Santiago, 602 Pa. 159, 178-79,
978 A.2d 349, 361 (2009), and ordered counsel to file an amended brief
within ten days. Counsel complied on October 27, 2016.
As a preliminary matter, appellate 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 Santiago, supra. 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 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 her of the right to obtain new counsel or file a pro se
_______________________
(Footnote Continued)
(explaining court will overlook filing of one appeal from separate orders
where appellant’s arguments for each order are identical and stem from
same factual precedent). Additionally, the court’s opinions address Mother’s
issue as it relates to each termination decree. See Dong Yuan Chen,
supra (noting one notice of appeal from separate orders is not fatal where
trial court opinion addresses issues pertaining to all orders). Therefore,
Mother’s failure to file separate notices of appeal from each termination
decree is not fatal to our review, and we will address Mother’s appeal.
-2-
J-S01004-17
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra 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 counsel has met the
antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed counsel seeks to withdraw
representation on appeal:
Neither Anders nor McClendon[2] 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.
* * *
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, supra 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
____________________________________________
2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
-3-
J-S01004-17
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, Mother’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Mother with
a copy of the brief and a letter explaining Mother’s rights to retain new
counsel or to proceed pro se to raise any additional issues Mother deems
worthy of this Court’s attention. (See Letter to Mother, dated July 27, 2016,
attached to Petition for Leave to Withdraw as Counsel). In the amended
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Mother’s issue. Counsel further states the reasons for her
conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Mother’s behalf:
[WHETHER THE COURT’S DECISION TO TERMINATE
MOTHER’S PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A.
§§ 2511(A)(1), (2), (5), (8), AND (B) WAS PROPER?]
(Anders Brief at 5-10).
The standard and scope of review applicable in a termination of
-4-
J-S01004-17
parental rights case 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 it 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.
Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by [the]
finder of fact. 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 means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result.
In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal
denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).
See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.
2008) (en banc).
CYS sought the involuntary termination of Mother’s parental rights on
the following grounds:
-5-
J-S01004-17
§ 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:
(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.
(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.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
-6-
J-S01004-17
welfare of the child.
* * *
(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), (2), (5), (8); and (b).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117
(Pa.Super. 2010).
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…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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
-7-
J-S01004-17
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. In addition,
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.
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…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) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he 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 consider all explanations
offered by the parent facing termination of…her parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
-8-
J-S01004-17
limited to affirmative misconduct; to the contrary those grounds may include
acts of refusal as well as incapacity to perform parental duties. In re
A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination 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.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the
following factors must be demonstrated: (1) [t]he child has been removed
from parental care for [twelve] months or more from the date of removal;
-9-
J-S01004-17
(2) the conditions which led to the removal or placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266,
1275-76 (Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. Significantly:
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. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have…her [parental] rights terminated.” In re B.L.L.,
787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
- 10 -
J-S01004-17
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. 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 [herself] to take and
maintain a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of…her ability, even in difficult circumstances.
A parent must utilize 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. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[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 his or her potential in a permanent,
healthy, safe environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a
court to consider at the termination stage, whether an agency provided a
- 11 -
J-S01004-17
parent with reasonable efforts aimed at reunifying the parent with her
children prior to the agency petitioning for termination of parental rights. In
re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure
to provide reasonable efforts to a parent does not prohibit the court from
granting a petition to terminate parental rights under Section 2511. Id. at
346, 105 A.3d at 675.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Jay J.
Hoberg, we conclude Mother’s issue on appeal merits no relief. The
Orphans’ court opinions comprehensively discuss and properly dispose of the
question presented. (See Opinion in Support of Termination of Parental
Rights, filed July 15, 2016, at 6-12, and Orphans’ Court Opinion, filed August
26, 2016, at 2-6) (finding: with respect to Sections 2511(a)(1), (2), (5), and
(8), Mother had opportunity to perform her parental duties prior to CYS’
intervention in March 2014, and throughout time Children were in
placement; nevertheless, Mother failed to work on any of her permanency
plan goals until CYS filed termination petitions in April and May 2015; even
after CYS filed termination petitions and court continued case pending
bonding assessments, Mother failed to understand importance of completion
of her permanency plan goals as evidenced by Mother’s lack of cooperation
with CYS; court found Mother’s current claim she will obtain appropriate
housing when she regains custody of Children incredible due to Mother’s
- 12 -
J-S01004-17
disingenuous statements about her housing search throughout history of
case; on other hand, court found Dr. Ail’s testimony and termination
recommendation persuasive and credible in light of Mother’s continued lack
of ability to provide for physical and mental well-being of Children; CYS
established that conditions which led to placement of Children continue to
persist despite fact that Children have been in placement for over two years;
many of Mother’s permanency plan goals still remain incomplete; Mother’s
conduct throughout case has significantly damaged and impaired emotional
growth and development of Children; after more than two years of CYS
support, Mother has not resolved instability in her life, and Children remain
in limbo while Mother tries to complete permanency plan goals; under these
circumstances, sufficient grounds exist for termination under Sections
2511(a)(1), (2), (5), and (8); with respect to Section 2511(b), termination
is only viable vehicle available to provide Children with permanency and
emotional foundation necessary to overcome years of instability and trauma
while in Mother’s custody; court found testimony of Dr. Ail and Children’s
therapists credible and persuasive on bonding issue; continued contact
between Children and Mother undoes progress made by Children in therapy
and interferes with Children’s continued treatment; Children have no
beneficial bond with Mother that must be preserved for welfare and
development of Children; Children have healthy bonds with their respective
placement families; at this juncture, any further delay of permanency and
- 13 -
J-S01004-17
stability for Children will cause more harm than termination of Mother’s
parental rights; thus, termination is in best interest of Children, and court
properly terminated Mother’s parental rights to Children). Following our
independent review of the record, we conclude the appeal is frivolous. See
Palm, supra. Accordingly, we affirm on the basis of the trial court opinions
and grant counsel’s petition to withdraw.
Decree affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
- 14 -