Com. v. Miszler, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.D.C., JR., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: A.D.C., MOTHER
No. 1860 EDA 2014
Appeal from the Order Dated May 27, 2014
in the Court of Common Pleas of Philadelphia County
Family Court at Nos.: CP-51-AP-0000613-2013
CP-51-DP-0000565-2012
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 10, 2015
A.D.C. (Mother)1, appeals from the order of the Court of Common
Pleas of Philadelphia County, entered on May 27, 2014, that terminated her
parental rights to her daughter, A.D.C., Jr. (Child), born in March of 2005.
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*
Retired Senior Judge assigned to the Superior Court.
1
We note that Mother is also referred to as A.C.; the trial court is
inconsistent when referring to Mother. Therefore, for clarity purposes we
refer to Mother as A.D.C. We have amended the caption accordingly.
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Counsel has filed a motion to withdraw. We affirm the order and grant
counsel leave to withdraw.2
On December 8, 2010, Philadelphia’s Department of Human Services
(DHS) received a substantiated Child Protective Services (CPS) report
alleging that Child, and one of her siblings, had been sexually abused by a
maternal uncle who resided with the children and Mother. The report also
alleged that Mother suffered from paranoid schizophrenia.
DHS’ investigation revealed that the family had a history of physical
and sexual abuse. DHS discovered that it was aware of Mother since April of
1998, when it received and substantiated a General Protective Services
report concerning Mother’s unstable mental health and history of multiple
psychiatric hospitalizations.
Child was hospitalized at the Horsham Clinic in April of 2011 after she
stated she was hearing voices that were telling her to cut and kill herself.
Horsham Clinic discharged Child to a partial hospitalization treatment
program and returned her to Mother on July 25, 2011. In-Home Protective
Services (IHPS) were implemented in the home through Presbyterian
Children’s Village on July 27, 2011.
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2
The trial court also terminated the parental rights of Child’s father, W.M.,
and an unknown father. Neither appealed their terminations and neither is a
party to this appeal.
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Child was suspended from school for misbehavior on March 23, 2012,
and sent to the home of her maternal aunt when school staff were unable to
reach Mother. Child disclosed that when she misbehaved in school Mother
hit her with sticks, a pole from a fan, and belts. According to Child, Mother
also forced her to sleep in the hallway.
Child told DHS staff, on March 24, 2012, that Mother had physically
assaulted her and that she was afraid to return to Mother’s residence.
Mother agreed to allow Child to remain in her maternal aunt’s care until
March 26, 2012. On March 26, 2012, a multi-disciplinary team met with
Child at her maternal aunt’s home. Child stated that she was afraid to
return to Mother’s home because Mother hit her with different objects.
In a visit to Child’s school on March 27, 2012, DHS learned that Child
had severe behavioral issues. Child assaulted other children, threw
tantrums, and told sexually explicit stories to other students. School staff
told Mother about these problems but Mother refused to authorize school-
based mental health services for Child. DHS obtained an Order of Protective
Custody (OPC) for Child on March 30, 2012, and placed her in foster care
through First Home Care.
Mother was present when the trial court held a shelter care hearing on
April 2, 2012, at which it lifted the OPC and temporarily committed Child to
DHS. Father’s whereabouts were unknown. The trial court adjudicated Child
dependent and committed her to DHS at an adjudicatory hearing held on
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April 10, 2012. The trial court ordered Mother to attend Fairmount
Behavioral Health System (BHS) for monitoring of her mental health
services. DHS placed Child in a therapeutic foster care home through Elwyn,
Inc., in August of 2012.
On August 31, 2012, Mother was arrested and charged with
aggravated assault, endangering the welfare of a child, possession of an
instrument of crime, false imprisonment, unlawful restraint, simple assault,
and recklessly endangering another person, with Child alleged as the victim.3
The criminal court issued a criminal protective/stay away order that
prohibited Mother from all contact with Child prior to trial.
DHS held a Family Service Plan (FSP) meeting on April 9, 2013. The
FSP objectives DHS established for Mother were: 1) complete a psychiatric
evaluation and follow through with all recommendations, including
prescribed medication; 2) sign authorizations to permit DHS to obtain copies
of evaluations and progress reports; 3) attend parenting classes; 4) locate
and occupy suitable housing; and, 5) meet regularly with Elwyn social
workers and follow through with Individual Service Plan objectives.
Mother failed to attend Child’s July 11, 2012, permanency review
hearing where the trial court found Mother non-compliant with her
permanency plan. The trial court referred Mother to BHS for a parenting
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3
See 18 Pa.C.S.A. §§ 2702, 4304, 907, 2903, 2902, 2701, and 2705,
respectively.
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capacity evaluation. Child remained institutionalized at BHS. (See
Permanency Review Order (PRO), 7/11/12).
Upon her discharge from BHS, Child was placed in treatment level
foster care receiving therapeutic support services; mobile therapy; trauma
focused therapy and medication management. (See PROs, 10/10/12;
4/09/13; 6/25/13; 11/07/13).
Child suffers extensive behavioral and mental health issues. She has
diagnoses of attention deficit hyperactivity disorder, post-traumatic stress
disorder, and bi-polar disorder. (See N.T. Hearing, 5/27/14, at 11).
Mother was again absent at Child’s October 10, 2012, permanency
hearing, where she was found non-compliant with the permanency plan and
re-referred to BHS for a parenting capacity evaluation. The trial court
permitted weekly, supervised visitation with Child at DHS. (See PRO,
10/10/12, at 2).
Mother, who was incarcerated at the time, remained non-compliant
with the permanency plan as of the January 9, 2013, permanency review
hearing. (See PRO, 1/09/13, at 1). Child testified at Mother’s preliminary
hearing on November 19, 2012, detailing the physical abuse she suffered at
Mother’s hands. (See N.T. Hearing, 5/27/14, at 14). The matter was held
over for trial.
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Mother remained incarcerated as of the April 9, 2013, permanency
review hearing at which the trial court noted the criminal court’s outstanding
no contact order. (See PRO, 4/09/13, at 2).
Mother remained non-compliant at the permanency review hearing on
June 25, 2013, where the trial court acknowledged DHS’ outreach to Mother
in prison and Mother’s failure to respond. The trial court listed the matter
for a goal change/involuntarily termination of parental rights hearing. (See
PRO, 6/25/13, at 2). DHS filed Goal Change/Involuntary Termination of
Parental Rights petitions against Mother, Child’s father, W.M., and unknown
father on October 21, 2013.
The case was continued at the next three scheduled listings. Child was
an inpatient at BHS pursuant to a 302 commitment4, as of February 27,
2014, where she remained at the time of the May 27, 2014, goal
change/involuntary termination of parental rights hearing. (See PRO,
5/27/14, at 1).
At the May 27, 2014, hearing, DHS presented the testimony of DHS
social worker Amos Suah and entered exhibits into evidence. Mother was
brought to the hearing from prison.5
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4
See 50 Pa.C.S.A. § 7302.
5
Mother made a brief statement on her own behalf at the close of the
hearing. She was neither questioned nor cross-examined.
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Mr. Suah testified that DHS had made referrals for services to address
Child’s mental health needs for the past four to five years. (See N.T.
Hearing, 5/27/14, at 12). The trial court had repeatedly referred Mother to
BHS for mental health services and had repeatedly found Mother non-
compliant with the permanency plan.
Child expressed to Mr. Suah on more than one occasion that she wants
no contact or visits with Mother. (See id. at 14-15). Mr. Suah testified that
Child shares no bond whatsoever with Mother. (See id. at 16). According
to Mr. Suah, termination of Mother’s parental rights will not result in any
harm to Child, whose best interest mandates a goal of adoption. (See id. at
16-17).
The trial court entered its order terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b), and changing
Child’s goal to adoption on May 27, 2014. Mother timely appealed. 6 On
October 3, 2014, Mother’s counsel filed a motion to withdraw as counsel and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967) stating his
belief that “this appeal in its present procedural posture is wholly frivolous
and without support in the law or the facts.” (Motion to Withdraw as
Counsel, 10/03/14, at unnumbered page 1 ¶ 4). Counsel has submitted to
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6
Mother filed a Rule 1925(b) statement on June 23, 2014 simultaneously
with her notice of appeal. The court entered its Rule 1925(a) opinion on July
31, 2014. See Pa.R.A.P. 1925.
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this Court a copy of his letter to Mother, enclosing a copy of the Anders
brief, informing her of the motion to withdraw, and advising her of her right
to retain new counsel or proceed with the appeal pro se. (See id. at
unnumbered page 5). On October 27, 2014, this Court, having found that
counsel erroneously advised Mother that, if this Court granted him leave to
withdraw, that she would have the right to proceed pro se or retain new
counsel, permitted Mother to respond within thirty days. (See Per Curiam
Order, 10/27/14 (“Appellant’s right to raise any additional points she deems
worthy of this Court’s attention, pro se or with private counsel, is not
contingent upon the granting of [counsel’s] request to withdraw.”)). Mother
timely responded pro se. (See Mother’s Response, 11/06/14, at
unnumbered pages 1-5).
It is well-settled that “[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.” Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d
1301, 1303 (Pa. Super. 1997)).
In In re V.E., 611 A.2d 1267 (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
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to withdraw from representation and must submit an Anders brief. See id.
at 1275. To withdraw pursuant to Anders, counsel must: 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 her right to obtain new counsel or file a pro se brief to raise any additional
points that the appellant deems worthy of review. See id. at 1273.
Thereafter, this Court examines the record and determines whether the
appeal is wholly frivolous. See id.
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
The Supreme 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.” Id. 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.”
Id. at 357-58 (citations omitted).
Here, we conclude that counsel has substantially complied with the
Anders and Santiago requirements. He has submitted a brief that
summarizes the case, referred to anything that might arguably support the
appeal, and explains why he believes the appeal is frivolous. (See Anders
Brief, at 7-23). Counsel has filed a motion to withdraw, sent Mother a letter
advising her that he concluded that there are no non-frivolous issues,
provided her with a copy of the Anders brief, and notified her of her right to
retain new counsel or proceed pro se. (See Motion to Withdraw as Counsel,
10/03/14, at unnumbered pages 1, 5). Because counsel has substantially
complied with the dictates of Anders and Santiago, we will undertake our
own review of the appeal to determine it if it wholly frivolous. See In re
V.E., supra at 1276.
The Anders Brief raises the following issues for our review:
The Global Question
Whether there is anything in the record that might arguably
support the appeal that obviates a conclusion that the appeal is
frivolous[?]
Specific Areas of Inquiry
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[1] Whether under the Juvenile Act, 42 Pa.C.S.A. Section
6351, and 55 Pa. Code Section 3130.74, in accordance with the
provisions of the federal Adoption and Safe Families Act, 42
U.S.C. Section 671, et seq., reasonable efforts were made to
reunite the Mother with her Child and whether the goal change
to adoption was the disposition best suited to the safety,
protection and [physical], mental and moral welfare of Child[?]
[2] Whether it was proven by clear and convincing evidence
that Mother’s parental rights should be terminated under
Sections 2511 (a)(2) and 2511 (b)[?]
(Anders Brief, at 6).
Our standard of review is as follows:
. . . In an appeal from an order terminating parental
rights, our scope of review is comprehensive: we consider all the
evidence presented as well as the trial court’s factual findings
and legal conclusions. However, our standard of review is
narrow: we will reverse the trial court’s order only if we conclude
that the trial court abused its discretion, made an error of law, or
lacked competent evidence to support its findings. The trial
judge’s decision is entitled to the same deference as a jury
verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
We are bound by the findings of the trial court
which have adequate support in the record so long
as the findings do not evidence capricious disregard
for competent and credible evidence. 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.
Though we are not bound by the trial court’s
inferences and deductions, we may reject its
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conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
In order to affirm the termination of parental rights, this Court need
only agree with any one subsection of section 2511(a), in addition to
subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 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.
* * *
(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), (b).
It is well-settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard that requires evidence 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.” In
re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,
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 his or
her physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
To terminate parental rights pursuant to section 2511(a)(1), the
person or agency seeking termination must demonstrate through clear and
convincing evidence that, for a period of at least six months prior to the
filing of the petition, the parent’s conduct demonstrated a settled purpose to
relinquish parental rights or that the parent has refused or failed to perform
parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.
Super. 2003).
With respect to section 2511(a)(1), our Supreme Court has held:
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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., II, 708 A.2d 88, 92 (Pa. 1998) (citation
omitted). 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 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 B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872
A.2d 1200 (Pa. 2005) (citations omitted).
The Adoption Act7 provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.A. § 2511(b). It does not make specific
reference to an evaluation of the bond between parent and childm, but our
case law requires the evaluation of any such bond. See In re E.M., 620
A.2d 481, 483 (Pa. 1993). However, this Court has held that the trial court
is not required by statute or precedent to order a formal bonding evaluation
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7
23 Pa.C.S.A. §§ 2101-2938.
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performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
We now turn to the first question presented in counsel’s Anders brief,
whether anything in the record might obviate the conclusion that the appeal
is frivolous.
Here, the record reflects that Mother abused Child physically and
mentally to the point that Child acted out by threatening and attacking other
children in school. (See Dependency Petition, 4/03/12, at unnumbered
pages 7-8). At the time of the hearing, Child’s condition had deteriorated to
the point that she was hospitalized to prevent her from harming herself.
(See N.T. Hearing, 5/27/14, at 11).
DHS began to offer services to Mother when it initiated IHPS in July of
2011. (See Dependency Petition, 4/03/12, at unnumbered page 7). DHS
established FSP objectives for Mother in April of 2013. (See FSP, 5/30/13).
A review of the trial court’s PROs reveals that Mother made no attempt to
comply with the FSP. (See PROs, 7/11/12; 10/10/12; 1/09/13; 4/09/13;
6/25/13). There is nothing in the record that would prevent us from
concluding that the appeal is frivolous.
The second question presented is whether DHS made reasonable
efforts to reunite Mother with Child and whether the goal change to adoption
was the disposition best suited to the safety, protection and physical, mental
and moral welfare of Child. (See Anders Brief, at 6).
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We need not address the first part of this question because our
Supreme Court recently held that it is not necessary to demonstrate that an
agency had made reasonable efforts to reunite a parent with their child
before a parent’s rights may be terminated. See In re D.C.D., 105 A.3d
662, 672-73 (Pa. 2014).
Here, the record reflects that Mr. Suah testified about Child’s best
interest. According to Mr. Suah, Child shares no bond whatsoever with
Mother, and the termination of Mother’s parental rights will not result in any
harm to Child. (See N.T. Hearing, 5/27/14, at 16). He stated that Child’s
best interests mandate a goal of adoption. (See id. at 16-17). Child
expressed to Mr. Suah on more than one occasion that she wants no contact
or visits with Mother. (See id. at 14-15). The trial court credited Mr. Suah’s
testimony. (See Trial Court Opinion, 7/31/14, at unnumbered page 5).
Accordingly, termination of Mother’s parental rights will serve Child’s best
interests. See 23 Pa.C.S.A. § 2511(b).
Our review of the record reveals that the trial court’s decision to
terminate Mother’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)
and (b), and to permit Child’s adoption without notice to or consent from
Mother, is supported by clear and convincing evidence, and that there was
no abuse of the trial court’s discretion. See In re L.M., supra at 511.
Furthermore, this Court has conducted an independent review of the record
as required by In re V.E. and finds that no non-frivolous issues exist.
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Order affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
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