In the Int. of: T.R., Appeal of: K.D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: K.D., STEP-FATHER :
:
:
:
:
: No. 1296 EDA 2021
Appeal from the Order Entered June 7, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001116-2019
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED JULY 19, 2022
K.D. (“Stepfather”) appeals from the June 7, 20211 order changing the
permanent placement goal of his then-sixteen-and-one-half-year-old step-
daughter, T.R., from reunification to another planned permanent living
arrangement (“APPLA”), i.e., permanent long-term foster care until the age of
majority, pursuant to 42 Pa.C.S. § 6351 (f.1)(5). Stepfather’s counsel, James
W. Martin, Esquire, has filed in this Court a petition to withdraw from
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1 The egregious delay in this children’s fast track appeal was due to the
aggregate effect of Stepfather’s failure to file a concise statement concurrent
with his pro se notice of appeal pursuant to Pa.R.A.P. 1925(a)(2), the trial
court’s confusion regarding both the status of Stepfather’s representation and
Stepfather’s desire to represent himself pro se, and our resolution of DHS’s
request to quash the appeal, which we denied without prejudice. Counsel was
appointed and ultimately filed a Rule 1925 statement on November 8, 2021.
The trial court entered its opinion on January 10, 2022, and the appeal was
assigned to this panel on May 3, 2022.
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representation and an accompanying brief pursuant to Anders v. California,
386 U.S. 738 (1967). We grant the petition and affirm.
T.R. was born to D.S. (“Mother”) in August 2004.2 T.R.’s biological
father is unknown. Stepfather is the biological father of seven of T.R.’s
younger siblings, who all were previously adjudicated dependent, but are not
involved in this appeal. On July 5, 2019, the Philadelphia Department of
Human Services (“DHS”) filed a dependency petition alleging T.R. to be a
dependent child based upon allegations of physical abuse and neglect.
Following DHS’s initial intervention, Stepfather and Mother filed a petition for
an ex parte protection from abuse (“PFA”) order against T.R., and Mother
contacted the agency to relinquish her parental rights to T.R. See N.T. 9/4/19
at 79-82. Mother ultimately declined to relinquish her parental rights, and the
temporary PFA order expired without the imposition of a final order. Id. at
82.
The trial court granted DHS’s dependency petition and on September 4,
2019, the court made a finding of physical abuse and neglect against
Stepfather and Mother.
The trial court summarized the ensuing dependency proceedings as
follow:
The trial court found that returning [T.R.] to the home would be
contrary to her welfare and that reasonable efforts had been made
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2 Although D.S. also appealed the June 7, 2021 order, she subsequently
withdrew her appeal.
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to prevent or eliminate removal from the home. Stepfather was
allowed to participate in the single case plan meeting regarding
[T.R.] and family therapy. The placement agency was ordered to
have appropriate placement that allowed [T.R.]’s religious beliefs.
The placement agency was ordered to make inquiry to [T.R.’s]
imam or mosque regarding [T.R.]’s particular religious beliefs.
[T.R.]’s goal was to return to parent which was Mother as [T.R.]’s
Father was unknown.
On August 30, 2019, DHS filed a motion to amend [T.R.’s]
dependency petition and for finding of child abuse, wherein it
stated that DHS received a child protective services [(“CPS”)]
report on July 14, 2019 that alleged that . . . Stepfather would:
tap, pinch, and smack [T.R.] on the behind; tap her breasts from
the bottom to make them bounce; make her siblings go upstairs
while she was made to remain downstairs while he took a shower
in the downstairs bathroom for him to then come out exposed and
order her to get a towel and tell her that one day she will be a
wife and will have to have sex. The motion indicated both Mother
and Stepfather as perpetrators of abuse, spanning across multiple
occasions. [The CPS report was subsequently substantiated
insofar as the trial court deemed Stepfather a perpetrator of
sexual abuse or exploitation as to T.R. Nevertheless, T.R.’s goal
remained return to Mother or guardian.]
....
On June 26, 2020, Judge Deborah Canty, having been transferred
the case under the Family Engagement Initiative, heard the case
and ordered that there be no contact between the Stepfather and
[T.R.] as she remained in the care and custody of DHS. The trial
court noted that there was a criminal stay-away order against the
Stepfather as to [T.R.] The trial court further ordered that
placement continued to be necessary and that reasonable efforts
had been made to place [T.R.] with her siblings (who subsequently
entered care). [T.R.’s] goal was to return to parent or guardian.
Trial Court Opinion, 1/10/22, at 6-7 (citations omitted) (cleaned up)
(unnecessary capitalization omitted).
Thereafter, during a permanency review hearing in which Stepfather
participated with counsel on November 18, 2020, the trial court interviewed
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T.R. in camera and considered her desire to change the goal to APPLA, which
would permit her to remain in the agency’s care until she reaches the age of
majority, and the support of that goal offered by the community umbrella
agency (“CUA”).3 The court determined that APPLA was the most appropriate
permanency goal that served T.R.’s best interest, and announced the goal
change in open court. See N.T., 11/18/20, at 197, 202, 222. Stepfather did
not object to the goal change, challenge the decision to not place T.R. with
Mother or other family members, or assert that the goal change impaired
T.R.’s ability to practice her chosen religion, Islam.
On the same date, the court entered an order that formally changed the
child’s goal to APPLA and continued her placement in the Carson Valley Group
Home, where she has resided since August of 2020. Father did not appeal the
goal change order.
Notwithstanding the November 2020 permanency review order that
clearly changed T.R.’s goal from reunification to APPLA, at the close of the
subsequent review hearing on March 12, 2021, the trial court entered an order
that omitted any reference to APPLA and identified T.R.’s permanent
placement goal as “return to parent or guardian.” See Permanency Review
Order, 3/12/21, at 1. During the ensuing permanency review hearing on June
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3 The trial court appointed Stacie Tepe, Esquire as T.R.’s guardian ad litem,
sometimes referred to as child advocate, during all of the relevant permanency
review hearings.
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7, 2021, the trial court revisited the issue concerning T.R.’s placement goal
and identified it as APPLA, which was consistent with the testimony presented
by Nicole Mack, the CUA case manager. N.T., 6/7/21, at 74, 77, 80.
Stepfather did not contest the court’s apparent recharacterization of T.R.’s
permanent placement goal as being APPLA or assail any aspect of that goal’s
appropriateness under the facts of this case. Accordingly, the trial court
entered the following order purporting to change T.R.’s placement goal to
APPLA:
PERMANENT PLACMENT-Change of Goal
The Court Orders, the new permanent placement goal hereby
determined to be in another living arrangement intended to be
permanent in nature which is approved by the court, specif[ically]
APPLA.
Permanency Review Order, 6/7/21, at 1. This appeal followed.
As discussed in footnote one, Attorney Martin eventually complied with
Pa.R.A.P. 1925, asserting three issues challenging the goal change, and the
trial court filed its Rule 1925(a) opinion. Accordingly, the appeal is ripe for
our review.
First, we address whether the appeal is timely, and determine that it is.
Stepfather filed the instant appeal on July 1, 2021, which is within thirty days
of the date that the trial court entered the June 7, 2020 order. See Pa.R.A.P.
903(a) (“Except as otherwise prescribed by this rule, the notice of appeal
required by Rule 902 (manner of taking appeal) shall be filed within 30 days
after the entry of the order from which the appeal is taken.”). Hence, the
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appeal is patently timely, and we have jurisdiction. Coulter v. Ramsden, 94
A.3d 1080, 1084 (Pa.Super. 2014) (timeliness of appeal implicates court's
jurisdiction and must be determined before court addresses merits of appeal).
Nevertheless, noting that Stepfather’s Rule 1925(b) statement
challenged T.R.’s permanent placement goal of AAPLA, the trial court asserts
that Stepfather’s appeal is, in fact, untimely because the court initially
changed the goal to APPLA in November 2020. Hence, discounting its
interceding order identifying the goal as reunification as an administrative
error, the court posits, “A mere resuscitation of [T.R.’s] goal [in the June 7,
2021 order] does not dissolve the trial court’s initial November 18, 2020 order
that changed the . . . permanency goal to APPLA.” Letter, 11/19/21, at 1.
For the following reasons, we disagree.
Contrary to the trial court’s suggestion, we cannot simply ignore the
legal force of its June 7, 2021 permanency order which effectively returned
T.R.’s placement goal to reunification, albeit mistakenly. Thus, even though
Stepfather may be barred from challenging the goal change noted in
November 2020, he is fully entitled to contest the “resuscitat[ed]” goal change
entered to correct the interceding order returning the goal to reunification.
Trial Court Letter, 11/19/21 at 1; see Interest of L.V., 209 A.3d 399, 411
(Pa.Super. 2019) (quoting In re H.S.W.C.-B & S.E.C.-B., 836 A.2d 908, 911
(Pa. 2003) (“an order granting or denying a status change . . . shall be deemed
final when entered”).
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Furthermore, we are especially mindful that our Juvenile Act requires
the trial court to continuously monitor a child’s best interests and adjust the
permanent placement goal based on the evidence adduced at the periodic
permanency review hearings. Accordingly, we cannot merely disregard, post
hoc, the interceding March 12, 2021 goal change order as a mere clerical
misstep. Insofar as the instant goal change order resurrected the goal of
APPLA by correcting this earlier oversight, we reject the trial court’s contention
that Stepfather’s appeal from that goal change is time barred. See Interest
of L.V., supra at 411.
Next, we address counsel’s petition to withdraw and Anders brief. See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (“‘When
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.’”)
(citation omitted); see also In re J.D.H., 171 A.3d 903, 906 (Pa. Super.
2017) (“[W]e conclude that the Anders procedure should also apply in
appeals from goal change orders, even in the absence of an involuntary
termination decree.”).
To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted).
With respect to the third Anders requirement, this Court has held
counsel must “attach to their petition to withdraw a copy of the letter sent to
their client advising him or her of their rights.” Commonwealth v. Millisock,
873 A.2d 748, 752 (Pa.Super. 2005).
Additionally, the Pennsylvania Supreme Court has directed that Anders
briefs 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, supra, at 361.
Here, Attorney Martin avers in his petition to withdraw that he
determined that Stepfather’s appeal is frivolous after conducting a thorough
and conscientious examination of the record. Attorney Martin avers he mailed
Stepfather a letter explaining his rights and has attached a copy of the letter
to the petition to withdraw and Anders brief. Attorney Martin’s letter complies
with our law, as it informs Stepfather that he may retain new counsel or
proceed pro se and raise any additional arguments he deems worthy of our
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attention.4 Attorney Martin’s Anders brief includes a summary of the facts,
procedural history of this case, three issues that could arguably support
Stepfather’s appeal, and an assessment of why those issues are frivolous, with
citations to the record and relevant legal authority. As Attorney Martin has
complied substantially with the technical requirements of Anders, we will
proceed to review the issues presented in his brief. We will also “conduct an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa.Super. 2015); see also Commonwealth v. Dempster,
187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (describing our duty as a
“simple review of the record to ascertain if there appear on its face to be
arguably meritorious issues that counsel, intentionally or not, missed or
misstated”).
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4 Attorney Martin’s February 10, 2022 letter omitted the word “raise” from the
sentence, “You have the right to retain private counsel, or, pro se, [raise] any
additional arguments that you deem worthy of the court’s attention.” Letter,
2/10/22, at 1. However, because paragraph 10 of the petition to withdraw
confirmed that Attorney Martin advised Stepfather of his right to “raise pro se
additional arguments that he deems worthy of the court’s attention,” we find
substantial compliance with the technical requirements. Petition to Withdraw,
2/17/2022, at 2. See Commonwealth v. Reid, 117 A.3d 777, 781
(Pa.Super. 2015) (observing, substantial compliance with Anders
requirements is sufficient).
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Attorney Martin identified three substantive issues for our consideration,
which we renumbered for ease of disposition, as follows:5
1. Did the trial court err as a matter of law or abuse its discretion
where it determined that T.R.’s permanency goal should be
Another Planned Placement Living Arrangement (APP[L]A)?
2. Did the trial court err as a matter of law or abused its discretion
where it failed to place T.R. with her mother, or, in the alternative,
another family member.
3. Did the trial court err as a matter of law or abused its discretion when
it changed the permanency goal for T.R. to APPLA, thereby depriving
the Child the ability to practice the family's religious beliefs?
Anders brief at 3. In lieu of briefs, both DHS and the guardian ad litem filed
letters stating their respective agreement that the instant appeal is frivolous.
As the first issue discussed in the Anders brief challenges the goal
change from reunification to APPLA, we outline the following legal principles.
This Court reviews orders in dependency proceedings for an abuse of
discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the
trial court’s credibility determinations and findings of fact when the record
supports them, but we need not accept the court’s inferences or conclusions
of law. Id. When considering a goal change petition, the trial court must
determine the matters set forth at 42 Pa.C.S. § 6351(f) of the Juvenile
Act, i.e., the appropriateness, feasibility, and likelihood of attaining the
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5 Having found that Attorney Martin satisfied the technical requirements of
Anders and Santiago, we omit the question relating to that issue from this
list.
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current goal, the parents’ progress, child's safety, etc. See In re S.B., 943
A.2d 973, 978 (Pa.Super. 2008). In making these determinations, the best
interests of the child, and not the interests of the parent, must guide the trial
court. See In re A.B., 19 A.3d 1084, 1088-89 (Pa.Super. 2011).
Instantly, Stepfather contests the goal change from reunification with
parent or guardian to APPLA. The Juvenile Act outlines the requirements of
APPLA in § 6351, as follows:
(f.1) Additional determination.--Based upon the determinations
made under subsection (f) and all relevant evidence presented at
the hearing, the court shall determine one of the following:
....
(5) If and when the child will be placed in another planned
permanent living arrangement which is approved by the court,
the following shall apply:
(i) The child must be 16 years of age or older.
(ii) The county agency shall identify at least one significant
connection with a supportive adult willing to be involved in the
child's life as the child transitions to adulthood, or document
that efforts have been made to identify a supportive adult.
(iii) The county agency shall document:
(A) A compelling reason that it would not be best suited to the
safety, protection and physical, mental and moral welfare of
the child to be returned to the child's parent, guardian or
custodian, to be placed for adoption, to be placed with a legal
custodian or to be placed with a fit and willing relative.
(B) Its intensive, ongoing and, as of the date of the hearing,
unsuccessful efforts to return the child to the child's parent,
guardian or custodian or to be placed for adoption, to be
placed with a legal custodian or to be placed with a fit and
willing relative.
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(C) Its efforts to utilize search technology to find biological
family members for the child.
(iv) The court shall:
(A) Ask the child about the desired permanency goal for the
child.
(B) Make a judicial determination explaining why, as of the
date of the hearing, [APPLA] is the best permanency plan for
the child.
(C) Provide compelling reasons why it continues not to be in
the best interests of the child to return to the child's parent,
guardian or custodian, be placed for adoption, be placed with
a legal custodian or be placed with a fit and willing relative.
(D) Make findings that the significant connection is identified
in the permanency plan or that efforts have been made to
identify a supportive adult, if no one is currently identified.
42 Pa.C.S. § 6351(f.1) (5)
Instantly, T.R. is at least sixteen years old and Stepfather does not
challenge any of the foregoing statutory requirements relating to DHS or the
trial court. Instead, Attorney Martin identifies three arguments that arguably
support the appeal, i.e., that the trial court erred in: (1) selecting the
permanency goal of APPLA for T.R.; (2) declining to reunify T.R. with Mother
or another fit and willing relative; and (3) impeding her right to religious
liberty. Unfortunately for Stepfather, Attorney Martin also accurately observes
that all of these issues are waived pursuant to Pa.R.A.P 302(a) because, as
previously noted, Stepfather failed to raise any allegations of error during the
relevant permanency review hearing. See Pa.R.A.P. 302(a) (“Issues not
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raised in the trial court are waived and cannot be raised for the first time on
appeal.”).
Even if these belated assertions were properly preserved, they are
wholly frivolous. The record bears out that then-sixteen year-old T.R., who
has been DHS custody since July 2019, advised the trial court that she did not
want to reunify with Mother or Stepfather, whom she has not contacted since
she was placed in DHS care. Furthermore, T.R. desired APPLA over adoption,
which would require her consent, or permanent placement with a caretaker.
See N.T. 11/18/20 at 95, 114. In this vein, the certified record also belies
Stepfather’s contention that the trial court did not consider permanent kinship
placement. Indeed, Mother and Stepfather sabotaged the agency’s efforts to
place T.R. with relatives or community members. They refused to identify
potential family resources and objected to the thirty-nine people that CUA
located via family finding, even threating those individuals with litigation. Id.
at 114, 115-116.
Similarly, contrary to Stepfather’s protestations, the court considered
T.R.’s religious needs, and as aptly stated in the trial court opinion, T.R. “has
never raised an issue with her religious needs . . .[and] the court ensured that
efforts were made to implement [the] religious requirements of the entire
family but Mother and Step-Father failed to supply the necessary
information[.]” Trial Court Opinion, at 40. 6/10/22. Moreover, the trial court
directed that “any foster home considered would allow [T.R.] to pray whenever
she needs to pray and to practice [Salafi],” which is her sect of Islam. Id.
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Hence, the claim regarding the alleged limitation on T.R.’s religious liberty is
baseless.
As our independent review of the record reveals no preserved non-
frivolous issues, we affirm the June 7, 2021 order changing T.R.’s permanency
goal from reunification to APPLA, and grant Attorney Martin’s petition to
withdraw.
Petition to withdraw from representation filed by James W. Martin,
Esquire, is granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2022
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