In the Interest of: K.L., Appeal of: A.L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.L., BIOLOGICAL :
MOTHER :
:
:
:
: No. 1787 MDA 2018
Appeal from the Decree Entered October 3, 2018
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 73 Adoptions 2018
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 25, 2019
A.L. (“Mother”) appeals from the October 3, 2018 decree terminating
her parental rights to her 11-year-old daughter K.L. (“Child”). On this direct
appeal, court-appointed counsel has filed an application to withdraw and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967) and In re V.E.,
611 A.2d 1267 (Pa. Super. 1992).1 We conclude that Mother’s counsel
complied with the procedural requirements necessary to withdraw.
Furthermore, after independently reviewing the record, we conclude that the
appeal is wholly frivolous. We, therefore, grant counsel’s application to
withdraw and affirm the decree terminating Mother’s parental rights.
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1 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.
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* Retired Senior Judge assigned to the Superior Court.
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Child was born in 2007. On May 8, 2014, Child was adjudicated
dependent because of Mother’s mental health struggles and Child’s refusal to
attend school. On October 16, 2014, the trial court ended the dependency.
On September 22, 2016, Child was again adjudicated dependent because of
Mother’s drug use and mental health problems. On April 27, 2017, the trial
court ordered Child removed from Mother’s care and placed in a foster home.
On March 15, 2018, Cumberland County Children and Youth Services
(“CYS”) filed a petition for goal change and a petition to terminate Mother’s
parental rights as to Child. On September 28, 2018, the trial court held a
termination hearing.2 On October 3, 2018, the trial court terminated Mother’s
parental rights as to Child.3 This timely appeal followed.4
Counsel raises two issues in his Anders brief:
1. Whether the [t]rial [c]ourt abused its discretion and committed
an error of law when it found, despite a lack of clear and
convincing evidence, that sufficient grounds existed for a
termination of [Mother’s] parental rights under . . . 23 Pa.C.S.A.
§ 2511(a)[?]
2. Whether the [t]rial [c]ourt abused its discretion and committed
an error of law in determining it would be in [C]hild’s best interest
to have parental rights terminated, when it failed to primarily
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2 A guardian ad litem represented Child’s best interest and separate counsel
represented Child’s legal interest.
3Child’s legal father and biological father consented to the termination of their
parental rights as to Child.
4 Mother and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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consider [C]hild’s developmental, physical[,] and emotional needs
and welfare, thus contravening . . . 23 Pa.C.S.A § 2511(b)[?]
Anders Brief at 5.
Before reviewing the merits of this appeal, we must first determine
whether counsel has fulfilled the necessary procedural requirements for
withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,
431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders, court-
appointed counsel
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof. Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se, or raise any additional
points worthy of this Court’s attention.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned up).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Commonwealth v. Santiago, 978 A.2d 349, 355
n.5 (Pa. 2009) (citation omitted). It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
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withdraw. In the case at bar, counsel has met all of the above procedural
obligations.5 We now turn to whether this appeal is wholly frivolous.
We review an order involuntarily terminating parental rights for an
abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa. Super. 2018)
(citation omitted). “The party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the statutory grounds
for termination[.]” In re Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super.
2018), appeal denied, 183 A.3d 979 (Pa. 2018) (citation omitted).
The first issue raised in counsel’s Anders brief is whether the trial court
erred in concluding that the requirements of section 2511(a) were satisfied.
“In order to affirm the termination of parental rights, this Court need only
agree with any one subsection under [s]ection 2511(a).” In re Interest of
D.F., 165 A.3d 960, 966 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa.
2017) (citation omitted). The trial court found that the requirements of
sections 2511(a)(2), (5), and (8) were satisfied. We focus our attention on
section 2511(a)(8), which provides that a parent’s rights to a child may be
involuntarily terminated if
[t]he 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.
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5 Mother did not file a response to counsel’s Anders brief.
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23 Pa.C.S.A. § 2511(a)(8).
In this case, there is no dispute that Child was removed from Mother’s
care for at least 12 months at the time of the termination hearing. Hence, we
initially focus our inquiry on whether the conditions which led to Child’s
removal from Mother’s care continued to exist at the time the trial court
terminated Mother’s parental rights. As noted above, Child was removed from
Mother’s care because of her drug use. Over one year later, at the time of
the termination hearing, CYS could not confirm Mother’s progress with respect
to drug treatment. See N.T., 9/28/18, at 19.
More importantly, Mother failed to receive any mental health treatment
or counseling. Id. at 54-55. Mother knew that mental health treatment and
counseling were critical to gaining physical custody of Child. See id. at 49.
Because Mother failed to remedy the situation that led to Child’s removal from
her care, and, as discussed below, termination of parental rights would best
serve the needs and welfare of Child, the trial court correctly concluded that
the requirements of section 2511(a)(8) were satisfied.
Having determined that CYS proved by clear and convincing evidence
the requirements of section 2511(a)(8), we next consider section 2511(b)’s
requirements. The focus in terminating parental rights under section 2511(a)
is on the parent, but the focus under section 2511(b) is on the child. See In
re M.Z.T.M.W., 163 A.3d 462, 464 (Pa. Super. 2017) (citation omitted).
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
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needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term bond is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the []section 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (cleaned
up). Moreover, “[c]ommon 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.” In re T.S.M., 71 A.3d
251, 267 (Pa. 2013) (citation omitted).
Child testified at the termination hearing that she preferred to have
Mother’s parental rights terminated. N.T., 9/28/18, at 7. She explained that
Mother “can’t do what she’s supposed to do.” Id. at 8. She then clarified that
Mother was not receiving the mental health and drug treatment necessary for
Mother to properly care for her. See id. Child’s foster mother and a CYS
caseworker confirmed that Child’s foster mother was providing the necessary
care and support for Child’s developmental, physical, and emotional needs.
The guardian ad litem concurred with these witnesses’ testimony. Contrast
this with the lack of care and support that Child received when she was living
with Mother. The trial court found that Child needs stability in her life and
that foster mother provides that stability while Mother does not. We agree
with this finding. Accordingly, we conclude that CYS proved by clear and
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convincing evidence that termination of Mother’s parental rights was in Child’s
best interest.
In sum, we conclude that the issues raised in counsel’s Anders brief are
wholly frivolous. Furthermore, after an independent review of the entire
record, we conclude that no other issue of arguable merit exists. Therefore,
we grant counsel’s request to withdraw. Having determined that the issues
raised on appeal are wholly frivolous, we affirm the decree terminating
Mother’s parental rights.
Application to withdraw as counsel granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2019
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