In the Int. of: J.J., Appeal of: A.S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.S., MOTHER :
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: No. 523 EDA 2022
Appeal from the Order Entered February 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001376-2019
IN THE INTEREST OF: J.A.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.S., MOTHER :
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: No. 524 EDA 2022
Appeal from the Decree Entered February 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000684-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2022
A.S. (Mother) appeals from the decree and order, entered in the Court
of Common Pleas of Philadelphia County, terminating her parental rights to
her child, J.J. (Child) (born 8/19), and changing the permanency goal to
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* Retired Senior Judge assigned to the Superior Court.
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adoption, respectively.1 Counsel has filed a petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967).2 Due to Mother’s consistent
failure to comply with court-ordered objectives in order to address the
significant mental health issues and intellectual disabilities that prevent her
from capably parenting Child, we affirm. We also grant counsel’s petition to
withdraw.
Immediately following Child’s birth in August 2019, the Philadelphia
Department of Human Services (DHS) received a general protective services
(GPS) report regarding Mother’s and Child’s father’s (Father’s) 3 inability to
care for Child. The GPS report indicated that both parents have intellectual
disabilities and that they were unable to feed Child properly in the hospital.
DHS obtained an order of protective custody six days after Child’s birth; Child
was placed with maternal great-grandmother, where he still resided at the
time of the instant termination hearing.
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1 Mother’s counsel has complied with the dictates of Commonwealth v.
Walker, 185 A.3d 960 (Pa. 2018), by filing two separate notices of appeal—
one on the dependency docket (523 EDA 2022) and one on the adoption
docket (524 EDA 2022). See Walker, supra at 976 (“Where . . . one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeals must be filed.”); see also In
the Matter of M.P., 204 A.3d 976, 981 (Pa. Super. 2019) (applying Walker
holding to children’s fast track appeals). Those appeals were consolidated sua
sponte by our Court on April 4, 2022. See Order, 4/6/22; see also Pa.R.A.P.
513.
2 See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
3 Although Father’s parental rights were also terminated, he is not a party to
the present appeal. At the time of the termination hearing, Mother and Father
were together. N.T. Termination Hearing, 2/15/22, at 20.
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Child was adjudicated dependent, following a hearing, on September 9,
2019. At the dependency hearing, the court ordered that Mother undergo a
behavioral health evaluation with IQ testing and obtain an intensive case
manager for herself. DHS also set the following parental objectives for
Mother: (1) attend parenting classes; (2) contact adult intensive disability
services for self-help; and (3) undergo a parenting capacity evaluation.
Mother completed a behavioral health evaluation on September 11,
2019, which recommended that she engage in Fidelity Community Treatment
for therapy, manage her medications, learn cognitive behavioral techniques,
obtain intensive disability services (IDS) and a personal intensive case
manager, engage in family school, and undergo a parenting capacity
evaluation.4 Social workers at the community umbrella agency (CUA) referred
Mother for services to help her meet these objectives.
Mother was diagnosed with adjustment disorder, unspecified
schizophrenic spectrum, psychotic disorder, schizoaffective disorder, and
intellectual disabilities. Mother is considered “extremely low functioning, with
a full-scale IQ of 50.5 Mother also suffers from lupus, a chronic disease that
involves the immune system and can cause damage to any part of the body.
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4Mother did not have the cognitive ability to complete her parenting capacity
evaluation over the telephone.
5 A case manager testified that Mother is unable to function independently.
See N.T. Termination Hearing, 2/15/22, at 25-28 (noting Mother does not
know how to navigate public transportation, could not get from her house to
the agency on her own, needs assistance with menial tasks, and has trouble
figuring out how to get food and eat when she is home alone).
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See https://www.usinlupus.com/basics-of-lupus/what-is-lupus (last
visited on 7/29/22).
Except for sporadic, supervised visits with Child at great-grandmother’s
home and DHS pre-COVID-19, Mother failed to consistently attend virtual
visits with Child; Mother last saw Child in April 2021. As a result of her non-
compliance with visitation, Mother was precluded from engaging in family
school. Mother never engaged in mental health treatment or achieved the
necessary stability to participate in IDS despite a social worker filling out the
IDS application with Mother and mailing it in for her.
On November 12, 2021, DHS filed petitions seeking to terminate
Mother’s and Father’s parental rights. On February 15, 2022, the trial court
held a termination hearing6 at which CUA case managers Janine Allen and Asia
White, as well as CBH representative, Tisha Morales, testified. Following the
hearing, the court terminated Mother’s parental rights pursuant to sections
2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.7 The court stated its
reasons for termination on the record as follows:
I find that there’s been clear and convincing evidence to justify
the termination of both [M]other[’s] and [F]ather’s rights under
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6 At the termination hearing, Child was represented by Judith Kotch-Curtis,
Esquire, a child advocate and guardian ad litem. See In Re: T.S., E.S., 192
A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested termination-of-parental-
rights proceedings, where there is no conflict between a child’s legal and best
interests, an attorney-guardian ad litem representing the child’s best interests
can also represent the child’s legal interests.”).
7 23 Pa.C.S. §§ 2101-2938.
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2511(a)(1), (2), (5), (8) and 2511(b). I do not find that there
would be any irreparable harm as a result of the termination of
rights, and that it would, in fact, be in the child’s best interest.
This is an unfortunate situation where the parents have not
demonstrated any capacity for almost two years to care for the
life of their child. They have not seen their child in nearly a year,
and at best, have made minimal attempts throughout the duration
of this case to accomplish what they need to, to be reunited with
[C]hild.
And, for these reasons, I’m going to grant this request, and we
will change the goal in this case to adoption.
N.T. Termination Hearing, 2/15/22, at 64.
Mother filed timely notices of appeal.8 On June 3, 2022, counsel filed a
petition for leave to withdraw9 with our Court, pursuant to Anders, supra.
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8 On May 8, 2022, our Court entered an order noting that Mother’s counsel
had failed to file an appellate brief and that it “appear[ed] to this Court that
Attorney Angelotti ha[d] abandoned [Mother].” Order, 5/8/22. Accordingly,
we remanded the matter to the trial court for a determination as to whether
counsel had, in fact, abandoned Mother. On remand, the trial court concluded
that counsel had not, in fact, abandoned Mother, and permitted counsel to file
a late brief. The case has now been returned to this panel for final disposition.
9 Pursuant to Pa.R.A.P. 1925(c)(4):
If counsel intends to seek to withdraw in a criminal case pursuant
to Anders/Santiago or if counsel intends to seek to withdraw in
a post-conviction relief appeal pursuant to Turner/Finley,
counsel shall file of record and serve on the judge a statement of
intent to withdraw in lieu of filing a [Rule 1925(b)] Statement.
Pa.R.A.P. 1925 (c)(4). See In the Interest of J.T., 983 A.2d 771 (Pa.
Super. 2009) (where Anders procedure from criminal proceedings has
been applied to parental termination cases, parent’s counsel acted
appropriately by following Rule 1925(c)(4) in appeal from decision
terminating parental rights to child).
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In In re Adoption of V.E., 611 A.2d 1267 (Pa. Super. 1992), our Court
stated:
Counsel appointed to represent an indigent parent on a first
appeal from a decree involuntarily terminating his or her parental
rights, may, after a conscientious and thorough review of the
record, petition this court for leave to withdraw representation if
he or she can find no issues of arguable merit on which to base
the appeal. Given the less stringent standard of proof required
and the quasi-adversarial nature of a termination proceeding in
which a parent is not guaranteed the same procedural and
evidentiary rights as a criminal defendant, the court holds that
appointed counsel seeking to withdraw representation must
submit an Anders brief.
Id. at 1275. Moreover, we held that “any motion to withdraw representation,
submitted by appointed counsel, must be accompanied by an advocate’s brief,
and not the amicus curiae brief delineated in [Commonwealth
v.]McClendon, [434 A.2d 1185 (Pa. 1981)]. See also In re Adoption of
R.I., 312 A.3d 601, 602 (Pa. 1973) (“[T]he logic behind . . . an individual in
a criminal case being entitled to representation by counsel at any proceeding
that may lead to ‘the deprivation of substantial rights’[,] . . . is equally
applicable to a case involving an indigent parent faced with the loss of her
child.”).
In his advocate’s brief, counsel raises the following issues for our
consideration:
(1) Did [] counsel for [Mother] meet the requirements of
Anders[] and [Commonwealth v.] Santiago[, 978 A.2d
349, 361 (Pa. 2009)?]
(2) Did the trial court err as a matter of law or abuse[] its
discretion where it determined that the requirements of 23
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Pa.C.S.A. § 2511(a) to terminate [Mother’s] parental rights
were met[?]
(3) Did the trial court err as a matter of law or abuse[] its
discretion where it determined the requirements of 23
Pa.C.S.A. 2511(b) were met[?]
(4) Did the trial court err as a matter of law or abuse[] its
discretion where it determined that that permanency goal
for [Child] should be changed to adoption[?]
Anders Brief, at 3.
Before reaching the merits of Mother’s appeal, we must first address
counsel’s application to withdraw. To withdraw under 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.[10]
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). With respect to the third requirement of Anders, that counsel inform
the appellant of his or her rights in light of counsel’s withdrawal, this Court
has held that counsel must “attach to [his or her] petition to withdraw a copy
of the letter sent to [the] client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
An Anders brief must also comply with the following requirements:
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10 Mother has not retained private counsel or raised any pro se additional
arguments on appeal.
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(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. Finally, this Court must “conduct an independent
review of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 133 A.3d 1246, 1250
(Pa. Super. 2015) (footnote omitted).
Instantly, Mother’s counsel filed a petition with our Court, seeking leave
to withdraw his appearance as counsel in this appeal and acknowledging that
he has “conducted a conscientious examination of the record [and that he]
has determined that, in spite of [Mother’s] expressed desire, an appeal []
would be wholly frivolous.” Petition to Withdraw, 6/3/22, at ¶¶ 5-6. Attached
to the petition is a copy of the letter counsel sent to Mother advising her of
her rights. Counsel has also filed an Anders brief, in which he complies with
the procedures announced in Santiago. Counsel has furnished this brief to
Mother and advised her that she may retain new counsel or proceed pro se.
Accordingly, we find that counsel has substantially complied with the
requirements of Anders and Santiago, and, thus, we may review the issues
raised by counsel and also conduct our independent review of the record to
determine whether Mother’s appeal is, in fact, frivolous. Commonwealth v.
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Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (substantial compliance with
Anders requirements sufficient).
Our standard of review in termination of parental rights cases is well-
settled:
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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
Instantly, Child was initially removed from Mother’s care, only days after
his birth, due to Mother’s severe mental health issues and developmental
issues, resulting in Mother’s inability to meet Child’s basic needs. At the
termination hearing, a CUA case manager testified that, although Mother
completed a parenting class in June 2021, she did not follow through with IDS
in order to establish additional mental health services. A case manager also
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testified that Mother’s cognitive developmental delay made her unable to
participate in the parenting capacity evaluation. N.T. Termination Hearing,
2/15/22, at 17-18. With regard to housing, CUA case manager Allen testified
that Mother moved several times throughout the life of the case; each of these
residences were deemed inappropriate as they were in “deplorable conditions
[with] leaky roofs [and] hazards.” Id. at 22. Mother’s sole source of income
is Social Security. Id. Further, Mother declined the opportunity to move in
with great-grandmother and Child. Id. at 42-43.
Thus, despite services from CUA and DHS, Mother failed to engage in
mental health treatment, obtain stable housing, maintain consistent visitation
with Child, or receive help with her intellectual disabilities. Mother also turned
down an invitation to live in a stable environment with Child at great
grandmother’s residence. Since the time that Child was adjudicated
dependent and placed with great-grandmother, more than two years ago,
Mother has minimally complied with her plan objectives in order to be reunited
with Child. Most notably, Mother’s significant mental health problems and
intellectual disabilities, which classify her as “extremely low functioning,”
make her incapable of adequately and appropriately parenting Child. See N.T.
Termination Hearing, 2/15/22, at 25. Because the record supports the
conclusion that termination would best serve Children’s needs and welfare,
the court properly terminated Mother’s parental rights pursuant to section
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2511(a)(8).11 See Adoption of C.J.P., 114 A.3d 1046, 1054 (Pa. Super.
2015) (“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.”) (citation
omitted).
Additionally, the court properly terminated Mother’s parental rights
pursuant to section 2511(b), where testimony revealed that there is no
existing bond between Mother and Child and that Mother does not meet any
of Child’s “emotional, medical,[12] educational, developmental, or daily needs.”
N.T. Termination Hearing, 2/15/22, at 39-40, 42; see id. at 40 (CUA case
manager describing Mother’s relationship with Child as “nonexistent”).
Moreover, CUA case manager Allen testified that it would be in Child’s best
interest to terminate Mother’s parental rights where Mother is simply not
capable of caring for Child due to her significant intellectual challenges. Id.
at 41. Moreover, the same case manager testified that it would not cause
Child irreparable harm if Mother’s parental rights were terminated. Id. at 42.
Finally, Child was placed with maternal great-grandmother only days after his
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11 See 23 Pa.C.S. § 2511(a)(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.”).
12Child was born with a medical condition, Cytomegalovirus (CMV), which can
cause hearing loss, developmental delay and, more rarely, vision problems.
N.T. Termination Hearing, 2/15/21, at 46.
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birth, Mother has not visited with Child since April 2021, and Mother did not
engage well when she did participate in visits with Child. Id. at 24.
Under such circumstances, we conclude that the trial court properly
terminated Mother’s parental rights under section 2511(b) where Mother’s
parental incapacity, and the likelihood that she will never be able to remedy
that incapacity, is an important consideration when determining what is best
for Child’s developmental, physical, and emotional needs and welfare. In re
Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa. Super. 2015) (“Clearly, it
would not be in Child’s best interest for his life to remain on hold indefinitely
in hopes that Mother will one day be able to act as his parent.”) (citation
omitted).
In her final issue, Mother contends that the court improperly changed
Child’s permanency goal from reunification to adoption where the change was
not in Child’s best interest.
When reviewing a goal change order, this Court adheres to an abuse of
discretion standard of review. See Interest of D.R.-W., 227 A.3d 905, 917
(Pa. Super. 2020). We must accept the trial court’s factual findings and
credibility determinations if the record supports them, but need not accept the
court’s inferences or legal conclusions. Id.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
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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 Court has 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, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted) (emphasis added).
Here, the evidence reveals that Child has been in placement for more
than two and a half years, Child needs permanency, Mother does not have the
capacity to properly care for Child (or even herself independently), Mother’s
progress in her service objectives has been minimal at best, and nothing in
the record suggests that Mother would be able to reunify with Child within any
reasonable amount of time. Under these circumstances, the trial court
properly concluded that changing the placement goal was in Child’s best
interests. Interest of D.R.-W., supra; In re A.B., supra.
Following our independent review of the certified record, we conclude
that the appeal is frivolous and unsupported in law or in fact. Thus, we grant
counsel’s application to withdraw. In re V.E., supra. Moreover, there is
ample, competent evidence to support the trial court’s factual findings,
T.S.M., supra, and the court’s conclusions are not a result of an error of law
or an abuse of discretion. Id.
Decree and order affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2022
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