In the Interest of: R.R.M., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.R.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.B. :
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: No. 1761 MDA 2017
Appeal from the Order Entered, October 18, 2017,
in the Court of Common Pleas of York County,
Juvenile Division at No(s): CP-67-DP-0000014-2016.
IN THE INTEREST OF: R.R.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: R.B., FATHER :
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: No. 1763 MDA 2017
Appeal from the Order Entered, October 16, 2017,
in the Court of Common Pleas of York County,
Orphans' Court at No(s): 2017-0030.
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 28, 2018
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R.B. (“Father”) appeals from the order involuntarily terminating his
parental rights to his four-year-old son, R.R.M. (“Child”).1 Father also appeals
from the order changing Child’s permanency goal from reunification to
adoption.2 In addition, Father’s counsel had filed a petition to withdraw and
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we grant counsel’s petition to withdraw and affirm the termination and goal
change.
The record reveals that Mother and Child had been on the radar of the
York County Office of Children, Youth and Families (“Agency”) for some time.
The Agency had been involved with Mother’s family when she was a minor.
In November 2015, the Agency investigated claims that Mother and Child were
living in a van in the driveway of the maternal grandparents. There were also
claims of drug use, but upon an investigation, the allegations could not be
substantiated.
In January 2016, the Agency sought emergency protective custody of
Child after allegations were made that Mother had left Child unsupervised and
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1 The orphans’ court also terminated Mother’s parental rights, but she does
not appeal. The trial court evidently terminated the potential rights of another
man, R.D.M. who was listed as the father on the subject child’s birth
certificate. However, subsequent DNA testing revealed that the Father, R.B.,
is the biological parent of the subject child. R.D.M. was served with notice of
the termination hearing, but neither he nor counsel appeared. He does not
appeal.
2 Because Father’s appeals arise from the same set of facts and involve similar
issues, we have consolidated the appeals for ease of disposition.
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was using drugs. Child was found to be in the care of the maternal
grandfather, who could not be a resource due to his involvement with the
Agency regarding his own minor child, who was not a subject in these
proceedings. It was further alleged that Mother was in Maryland. The Agency
contacted Father, who resided in Maryland; he indicated that he had not been
involved with Child. Mother tested positive for cocaine, marijuana and
opiates; Mother admitted to using heroin. Child was placed in foster care.
Child was adjudicated dependent on February 10, 2016. Father did not
attend the hearing. At this juncture, the goal was reunification. A status
conference was held in April 2016. Father sent a letter to the Agency
indicating that he wished to be a resource, but the Agency could not reach
Father with the telephone number he provided to them. Since the initial letter,
however, the Agency did not have any contact with Father.
In July 2016, following a permanency review hearing, the court
determined that neither parent had complied with the permanency plan.
Although he continued to receive notice of the hearings, Father refused to
participate in either the Agency’s reunification plan or the court’s permanency
review hearings. In fact, the first time the Agency’s caseworker met Father
was at the initial termination hearing in May 2017.3 In August 2017, the court
concluded its termination hearing. In October, the court entered orders
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3 At the May termination hearing, Father appeared and requested counsel.
The court appointed Marc Semke, Esq. to represent Father and continued the
portion of the termination hearing that pertained to him until August 17, 2017.
Father did not appear for the continued hearing.
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terminating Father’s rights and changing the reunification goal to adoption.
Father appeals.
He presents two issues:
1. Whether the court erred in finding that the [Agency]
proved by clear and convincing evidence that the parental
rights of [] Father should be terminated pursuant to 23
Pa.C.S.A. § 2511(a).
2. Whether the court erred by changing the court ordered
goal from reunification to adoption.
Father’s Brief, at 4.
Before we reach the merits of the issues, we address Father’s counsel’s
application to withdraw as counsel and his corresponding Anders brief. See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (stating,
“[w]hen 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”).
In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. We stated that counsel appointed to represent an indigent
parent on a first appeal from a decree involuntarily terminating parental rights
may, after a conscientious and thorough review of the record, petition this
Court for leave to withdraw representation and must submit an Anders brief.
Id. at 1275. To withdraw pursuant to Anders, counsel must: 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 of
his right to obtain new counsel or file a pro se brief to raise any additional
points that the appellant deems worthy of review. In re V.E., 611 A.2d at
1273. Thereafter, this Court examines the record and determines whether
the appeal is wholly frivolous. Id.
Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), stated that an Anders brief 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.
Santiago, 978 A.2d at 361.
The Santiago Court reaffirmed the principle that indigents “generally
have a right to counsel on a first appeal, [but] . . . this right does not include
the right to bring a frivolous appeal and, concomitantly, does not include the
right to counsel for bringing such an appeal.” Santiago, 978 A.2d at 357
(citation omitted). Our Supreme Court stated:
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In the Court’s view, this distinction gave meaning to the Court’s
long-standing emphasis on an indigent appellant’s right to
“advocacy.” . . . As the Court put it, “[a]lthough an indigent whose
appeal is frivolous has no right to have an advocate make his case
to the appellate court, such an indigent does, in all cases, have
the right to have an attorney, zealous for the indigent’s interests,
evaluate his case and attempt to discern nonfrivolous arguments.”
Santiago, 978 A.2d at 357-358 (citation and quotation omitted). Father’s
counsel has complied with all of the requirements of Anders/Santiago. We
thus proceed to consider his assessment of Father’s claims.
In matters involving involuntary termination of parental rights, 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
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 D.L.B., 166 A.3d 322, 325 -326 (Pa. Super. 2017) (citations and internal
quotation marks omitted). “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 T.S.M., 71 A.3d
251, 267 (Pa. 2013) (citation omitted). “[I]f competent evidence supports the
trial court's findings, we will affirm even if the record could also support the
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opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super.
2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under Section 2511, the
court must engage in a bifurcated process prior to
terminating parental rights. 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). We have
defined clear and convincing evidence as that which 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
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation and
quotation marks omitted).
In this case, the trial court terminated Father's parental rights pursuant
to Sections 2511(a) (1), (5), (8) and (b), which provide as follows:
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§ 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.
(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 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.
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23 Pa.C.S.A. § 2511(a)(1), (5), (8), and (b). We need only agree with the trial
court as to any one subsection of Section 2511(a), in addition to Section
2511(b), to affirm an order terminating parental rights. In re M.M., 106 A.3d
114, 117 (Pa. Super. 2014).
Here, we find clear and convincing evidence that Father refused to
parent Child. He did nothing to involve himself in Child’s life. At least since
Child’s removal in January 2016, the Father has not visited Child. He did not
seek contact of the Child since his the initial letter to the Agency. He did not
seek the help of the Agency to reunify with Child. The Agency properly
established grounds warranting termination under § 2511(a)(1).
Next, we consider whether termination was proper under Section
2511(b). With regard to Section 2511(b), our supreme court has stated as
follows:
[I]f 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.[A.] § 2511(b). The emotional needs
and welfare of the child have been properly interpreted to
include [i]ntangibles such as love, comfort, security, and
stability.... [T]his Court held that the determination of the
child's “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child
of permanently severing the parental bond. However, as
discussed below, evaluation of a child's bonds is not always
an easy task.
In re T.S.M., 71 A.3d at 267 (internal case citations omitted). “[I]n cases
where there is no evidence of a bond between a parent and child, it is
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reasonable to infer that no bond exists. Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of the particular
case.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010)
(citations omitted). Additionally, when evaluating a parental bond, “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., 994 A.2d 1108, 1121 (Pa. Super.
2010) (citations omitted).
In this matter, we note that the lower court evidently issued two
opinions. The first was issued contemporaneously with the termination order.
The second, issued after Father’s appeal, refers to the substantive discussion
of the first. The court’s opinion addresses the termination of Mother, Father,
and a third person, R.M., who was the purported father before the appellant
Father took a DNA test that identified him as the biological parent and ruled
out R.M. Curiously, the Agency still pursued termination of R.M.’s rights and
the orphans’ court so ordered it.
In the § 2511(b) analysis of its opinion, the court noted that Father had
not seen Child during the duration of the dependency proceedings. Moreover,
Father likely had never met Child until the initial termination hearing in May
2017. The orphans’ court observed that Child reacted to Father as he did to
any other stranger who was in the courtroom. Child does not have sibling
bonds, because he has no known siblings. However, his maternal aunt, who
is only a few months older than Child, is also placed with Child’s pre-adoptive
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foster parents. We agree with the orphans’ court’s conclusion that all of Child’s
significant bonds are with his foster family members. Child views the pre-
adoptive foster family as his parental figures. Because there exists clear and
convincing evidence that termination best serves Child’s needs and welfare
under § 2511(b), we discern no abuse of discretion.
We turn now to Father’s second contention that the lower court abused
its discretion by changing Child’s permanency goal to adoption. We apply the
following standard of review.
…[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept
the lower court’s interferences or conclusions of law.
Accordingly, we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
The Juvenile Act governs proceedings to change a child’s permanency
goal. See 42 Pa.C.S.A. §§ 6301 – 6375. Trial courts must apply the following
analysis when considering a goal change petition.
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child,
the juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the
extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal
for the children; (5) a likely date by which the goal for the child
might be achieved; (6) the child’s safety; and (7) whether the
child has been in placement for at least fifteen of the last
twenty-two months. The best interests of the child, and not
the interests of the parent, must guide the trial court. As this
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Court held, a child’s life simply cannot be put on hold in the
hope that the parent will summon the ability to handle the
responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citations and
quotation marks omitted).
At the time of the goal change, Child had been in placement seventeen
months. Given Father’s refusal to parent Child, or even meet Child, and given
Father’s refusal to comply with the Agency’s service plan, the trial court had
no choice but to find that these factors favored changing the goal. The record
confirms that it would be in Child’s best interest to change his permanency
goal from reunification to adoption. Again we discern no abuse of discretion.
Upon our careful and independent review of the record, we grant
Father’s counsel’s application to withdraw and affirm the lower court’s orders
terminating Father’s rights and changing the reunification goal to adoption.
Orders entered. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2018
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