In Re: Adoption of H.D.S., a Minor ( 2017 )

J-S94018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF H.D.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.G., MOTHER
No. 1510 MDA 2016
Appeal from the Decree entered August 19, 2016
in the Court of Common Pleas of Lancaster County,
Orphans' Court, at No(s): 545 of 2016.
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2017
Appellant, C.G., (“Mother”), appeals from the decree entered in the
Lancaster County Court of Common Pleas, which terminated her parental
rights to her minor daughter, H.D.S., pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a) and (b). Counsel for Mother has also filed with this Court
both an application for leave to withdraw as counsel and a brief pursuant to
Anders v. California, 87 S. Ct. 1396 (1967). We grant counsel’s
application for leave to withdraw and affirm the decision of the Orphans’
Court.
The relevant facts and procedural history are as follows: Child was
born to Mother and Q.S. (“Father”) in August 2004. Pursuant to a court
order entered in April 2006, Child has been in the sole legal and primary
physical custody of P.S. and R.S. (“Paternal Grandparents”), and Mother has
* Former Justice specially assigned to the Superior Court.
J-S94018-16
been awarded periods of visitation. On March 8, 2016, Paternal
Grandparents filed a petition to confirm the consent to adoption given by
Father, and to involuntarily terminate Mother’s parental rights (“TPR
Petition”). The TPR Petition was served on Mother on March 31, 2016.
The Orphans’ Court held an evidentiary hearing on August 19, 2016.
Both Paternal Grandparents testified. Mother presented her own testimony,
as well as testimony from M.S., her aunt. At the request of the Orphans’
Court, Child testified in chambers. The court made the following factual
conclusions:
The [c]ourt found the testimony of [Paternal
Grandparents] and Child to be credible and persuasive.
Conversely, the [c]ourt found that [M.S.’s] testimony and
Mother’s testimony was inconsistent and lacked credibility.
The [c]ourt finds the following evidence relevant and
persuasive. Both [Paternal Grandparents] and Mother
agree that, for the first two months of her life, [Child] lived
between [the parties]. Since October 2004, [Child]
primarily resided with [Paternal Grandparents]. [Child]
was returned to Mother’s care in December 2004. That
evening, Mother was having difficulty with [Child], who
was fussy and not used to Mother. Mother brought [Child]
to the home of [M.S.], who intervened on Mother’s behalf
and contacted [Paternal Grandparents]. [The parties]
signed a written custody agreement and Child was
returned to [Paternal Grandparents]. Since that time,
[Paternal Grandparents] have been performing all rights,
duties, and responsibilities for Child. Mother testified that
she saw Child on two occasions since 2004.
Orphans’ Court Opinion, 9/23/16, at 2-3.
That same day, the court issued a decree confirming Father’s consent
to adoption and terminating Mother’s parental rights pursuant to 23 Pa.C.S.
-2-
J-S94018-16
§ 2511(a)(1) and (b). Mother filed this timely appeal, as well as a
statement pursuant to Pa.R.A.P. 1925(b). On October 26, 2016, Mother’s
counsel filed an application to withdraw as counsel and a brief pursuant to
Anders.
The Anders brief raises the following issue:
A. Whether [Paternal Grandparents] produced sufficient
evidence to support granting their request to
involuntarily terminate Mother’s parental rights.
Anders Brief at 5.
Initially, we address the Anders brief and application seeking
permission to withdraw. The principles that guide our review are as follows:
When counsel files an Anders brief, this Court may not
review the merits without first addressing counsel’s
request to withdraw. Commonwealth v. Washington,
63 A.3d 797, 800 (Pa. Super. 2013). In In re V.E., 417
Pa. Super. 68, 611 A.2d 1267 (Pa. Super. 1992), this
Court extended the Anders principles to appeals involving
the termination of parental rights. Id. at 1275. In these
cases, counsel appointed to represent an indigent parent
on a first appeal from a decree involuntarily terminating
parental rights may petition this Court for leave to
withdraw representation and submit and Anders brief. In
re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). We
review counsel’s Anders brief for compliance with the
requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(Pa. 2009).
[W]e hold that in the Anders brief that accompanies
court-appointed counsel’s petition to withdraw, counsel
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) states counsel’s reasons for
-3-
J-S94018-16
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 361.
Additionally, pursuant to Commonwealth v. Millisock,
873 A.2d 748 (Pa. Super. 2005) and its progeny,
“[c]ounsel also must provide a copy of the Anders brief to
his client. Attending the brief must be a letter that advises
the client of his right to: (1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[‘]s
attention in addition to the points raised by counsel in the
Anders brief.” Commonwealth v. Orellana, 86 A.3d
877, 880 (Pa. Super. 2014) (internal quotation marks and
citation omitted). “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) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.
Super. 2004).
In re X.J., 105 A.3d 1, 3-4 (Pa. Super. 2014).
Here, we conclude that Mother’s counsel has complied with the
requirements as set forth above. Counsel has provided Mother with a copy
of the Anders brief and indicated in his correspondence that Mother may
proceed pro se or retain new counsel. In his brief, counsel references facts
of record that might arguably support Mother’s appeal and sets forth his
conclusion that the appeal is frivolous. See Anders Brief at 13-14.
Accordingly, we undertake our independent review of the record to
determine whether Mother’s appeal is wholly frivolous.
-4-
J-S94018-16
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law
or abused its discretion.” Id. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result.” Id. at 827.
We give great 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). The Orphans’ 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 M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination
of parental rights, this Court need only agree with any one subsection under
Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
-5-
J-S94018-16
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.” Id. (citations omitted).
Section 2511(a)(1) provides that the trial court may terminate
parental rights if the Petitioner establishes that for six months, the parent
demonstrated a settled intent to relinquish a parental claim or a refusal or
failure to perform parental duties:
a) 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 has evidenced a settled purpose of
relinquishing parental claim to a child or has
refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as
requiring the Petitioner to demonstrate a settled intent to relinquish a
parental claim to a child or a refusal or failure to parent:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence 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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
-6-
J-S94018-16
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
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 … 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 himself to take and maintain a place of
importance in the child’s life.
Id.
Moreover, a parent must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent
child relationship:
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 his or 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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations
omitted).
-7-
J-S94018-16
And most importantly, “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 her physical and
emotional needs.” Id.
In the instant case, the Orphans’ Court properly concluded that the
Agency met the requirements of Section 2511(a)(1). Applying the above
standards, the Orphans’ Court concluded:
The record is clear, Mother did not contact [Paternal
Grandparents] or the Child in the six months prior to her
receipt of the termination petition. . . . She has not
provided any type of emotional or financial support to
[Child], has not made any attempts at maintaining contact
with [Child], and has not used any of the resources at her
disposal to maintain a place of importance in [Child’s] life.
Mother failed in all respects to perform parental duties or
responsibilities within that time period, and arguably
throughout [Child’s] whole life.
***
By Mother’s own testimony, she attempted to call [Paternal
Grandparents] only a few times before she stopped
completely. Mother did not ask [Paternal Grandparents]
for contact. Mother testified the she gave up and did
nothing else thereafter. The last time Mother saw [Child]
was over eight years ago. Mother clearly failed to exert
herself to establish and maintain a place of importance in
[Child’s] life.
***
Mother argues that [Paternal Grandparents] created an
insurmountable obstacle to her maintaining a parent-child
relationship and contact with [Child]. The Court does not
find this argument credible.
Child has not seen Mother for at least eight years.
[Paternal Grandparents] have not hidden [Child] from
Mother. [They] have resided in the same home since
-8-
J-S94018-16
before Child’s birth. Mother knew where [they] lived.
[Paternal Grandparents] did not withhold any mail from
Mother addressed to [Child], Mother testified that she did
not send any cards, letters, or presents to [Child]. Mother
made no attempts to contact [Child] through her family
members, who had intervened on her behalf before.
Mother presented no evidence that she inquired into
[Child’s] well-being from any individual who had contact
with [Child].
Outside of contacting [Paternal Grandparents] or Child
directly, Mother had other reasonable avenues available to
her to maintain contact with [Child]. [Child] is the subject
of an active custody order. Mother made no effort to
enforce visits, as provided by the custody order.
Moreover, with the existence of a custody order, Mother
could have sought to modify the custody order. Mother
did not initiate any action in the custody matter.
Despite having resources to maintain contact with [Child]
Mother exerted no effort whatsoever to be a part of
[Child’s] life. Mother testified that she was young and
stupid when [Child] was born and could not handle raising
[Child]. Mother’s inability to parent [Child] is no different
than refusing to perform parental duties and
responsibilities. The Court found that Mother did not
utilize all, or really any, of the resources available to her to
maintain a relationship with [Child].
Orphan’s Court Opinion, 9/23/16, at 4-7 (citation omitted).
Our review of the record amply support’s the Orphans’ Court’s
conclusions. It was for the Orphans’ Court, as a matter of credibility, to
accord the weight to be given Mother’s testimony. In re M.G., supra. The
court did not abuse its discretion concluding that Mother “evidenced a
settled purpose of relinquishing her parental claim” to Child, and has failed
to perform any parental duties during the relevant time period. Orphans’
-9-
J-S94018-16
Court Opinion at 7. Accordingly, the Orphans’ Court properly terminated
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1).
We also agree with the Orphans’ Court’s determination that, pursuant
to 23 Pa.C.S. § 2511(b), termination of Mother’s parental rights is in the
best interest of Child.
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. Section 2511(b) “focuses on whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child.” In re: Adoption of J.M.,
991 A.2d 321, 324 (Pa. Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the orphans’ court must also discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of permanently
severing that bond. Id. In cases where there is no evidence of a bond
between a parent and a child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the extent of
the bond-effect analysis necessarily depends on the circumstances of the
particular case. Id. at 763.
- 10 -
J-S94018-16
In the instant case, the Orphans’ Court provided the following rationale
to support its conclusion that termination of Mother’s parental rights was in
Child’s best interest:
The Court is persuaded by the totality of the evidence, as
well as the Guardian ad litem’s recommendation, that
termination of Mother’s parental rights in furtherance of
adoption is in [Child’s] best interest. Mother has been
either unwilling or unable to meet [Child’s] basic needs for
an inordinate amount of years. Mother’s lack of
involvement began when [Child] was just a few months
old. Mother’s own testimony and actions are direct
evidence that any parent-child relationship they shared
ended years ago.
[Child] has no meaningful contact with Mother. She is
currently twelve years old and has not seen Mother since
she was an infant. For over 95% of her life, [Child] has
had no contact with Mother. She is not bonded to Mother.
In fact, she testified she would not recognize Mother if she
saw her. Therefore, the Court found that terminating
Mother’s parental rights would not be detrimental to
[Child’s] well-being or destroy an existing, necessary or
beneficial relationship between the Child and Mother.
Conversely, [Paternal Grandparents] have provided [Child]
with the love, comfort and security that Mother has failed
to provide. [Child] has been living as an intact family with
[Paternal Grandparents] since December 2004. They have
maintained a continuous parent-daughter relationship. It
was not until Father’s girlfriend told [Child] that Father was
her father that [Child] was even made aware that
[Paternal Grandparents] were not her parents. [Paternal
Grandparents] have provided for [Child’s] physical,
emotional, and mental well-being. She is at an age where
stability and consistency are crucial. [Paternal
Grandparents] provide the stability and permanency that
[Child] needs and deserves.
Based upon the totality of the record and for the
reasons set forth above, the Court found that the
developmental, physical and emotional needs and welfare
- 11 -
J-S94018-16
of [Child] would be met and enhanced by the termination
of the parental rights of Mother, so that [Child] may be
adopted.
Orphans’ Court Opinion, 9/23/16, at 8-9.
Once again, our review of the record amply supports the Orphans’
Court’s conclusions. Additionally, we note Child’s preference to not see her
Mother and her wish to be adopted by Paternal Grandparents. See N.T.,
8/19/16, at 124-38.
In sum, our review of the record supports the conclusion by Mother’s
counsel that the issue Mother wished to raise on appeal is frivolous. Thus,
we agree with the Orphans’ Court’s conclusion that the Paternal
Grandparents met their burden of proving by clear and convincing evidence
that Mother’s parental rights should be terminated pursuant to 23 Pa.C.S. §§
2511(a)(1) and 2511(b). Further, our independent review of the record
reveals no non-frivolous claims that Mother could have raised. Accordingly,
we grant Mother’s counsel’s application to withdraw and affirm.
Application to Withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
- 12 -