In the Interest of: K.C., Appeal of: N.W.C. ( 2022 )

J-S29033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.W.C., FATHER :
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:
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: No. 243 WDA 2022
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000004-2021
IN THE INTEREST OF: M.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: N.W.C., FATHER :
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:
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: No. 244 WDA 2022
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000002-2021
IN THE INTEREST OF: F.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: N.W.C., FATHER :
:
:
:
:
: No. 245 WDA 2022
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000003-2021
J-S29033-22
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 31, 2022
N.W.C. (“Father”) appeals from the orders changing the permanency
goals of his children, K.C., M.C., and F.C. (collectively, “Children”), to
adoption.1 Additionally, Father’s counsel has filed a petition for leave to
withdraw and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967).
The record reveals that Jefferson County Children and Youth Services
(“CYS”) filed an application for emergency protective custody of Children on
January 5, 2021. In the application, CYS alleged that it had received reports
that Father had physically abused M.C. (born 2013) by striking her with a belt
and that S.C. (“Mother”) had also participated in the abuse. CYS requested
emergency custody of M.C., as well as her younger brother F.C. (born 2014)
and sister K.C. (born 2020) based upon the reported physical abuse as well
as lack of proper parental care and control. Emergency custody was granted,
and a shelter care order was entered on January 8, 2021 after a hearing.
Children were placed in foster care together, and, on January 27, 2021, the
trial court entered orders adjudicating Children dependent.
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* Retired Senior Judge assigned to the Superior Court.
1Father filed a separate notice of appeal at each trial court docket, as required
by Pa.R.A.P. 341. Father’s appeals were consolidated sua sponte by this Court
on March 18, 2022. Children’s mother, S.C., did not appeal from the goal
change orders.
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Permanency review hearings were held on May 26 and September 22,
2021 and January, 26 2022. On the date of the last hearing, the trial court
entered orders changing the permanency goals of Children from “return home”
to adoption. Father filed timely appeals and Pa.R.A.P. 1925(b) statements,
and on May 9, 2022, the trial court issued a Pa.R.A.P. 1925(a) opinion.
Before reaching the merits of this appeal, we must first address whether
counsel’s petition to withdraw and accompanying brief comply with the
procedure outlined in Anders and related case law. See In re J.D.H., 171
A.3d 903, 906 (Pa. Super. 2017) (holding that Anders procedure for
withdrawal of court-appointed counsel applies in appeals from goal change
orders, even in the absence of an involuntary termination decree). In order
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.
Id. at 907 (quoting Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.
Super. 2013) (en banc); brackets omitted).
With respect to the third requirement, counsel must “attach to their
petition to withdraw a copy of the letter sent to their client advising him or
her of their rights.” Id. (quoting Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005)). Because a parent has a continuing right to
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counsel in dependency proceedings, an attorney seeking to withdraw in an
appeal from a goal change order is required to
inform the parent of his or her right to counsel in any subsequent
dependency or involuntary termination proceedings. Counsel
must also inform the parent that, if he or she cannot afford
counsel, he or she may contact the trial court in order to obtain
new counsel. This information must be conveyed to the parent at
the same time that counsel informs the parent of his or her other
rights pursuant to Anders[.]
Id. at 906-07.
Furthermore, the 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.
Id. at 907 (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009)).
In his petition to withdraw, counsel indicated that he had thoroughly
reviewed the record and determined that there are no non-frivolous grounds
for this appeal. Counsel sent a letter to Father advising him of his right to
retain new counsel or proceed pro se and raise any additional issues he
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deemed worthy of this Court’s attention.2 Counsel’s letter also advised Father
of his right to appointed counsel in any subsequent dependency or termination
proceeding and that he should contact the court to obtain new counsel if he
could not afford it. See id. at 906-07. This letter was attached to counsel’s
petition for withdraw, and it indicates that counsel provided Father with the
petition to withdraw and Anders brief; counsel’s certificates of services
likewise demonstrate that the relevant filings were served on Father.
Furthermore, counsel’s Anders brief includes a summary of the relevant
procedural and factual history of this case and discusses the reasons upon
which counsel bases his conclusion that the appeal is frivolous, with citations
to the record and applicable case law.
We thus conclude that counsel has complied with the procedural
requirements for withdrawal, and we proceed to review the merits of this
appeal. We first consider the issue raised by counsel in his Anders brief and
determine whether it is in fact frivolous. Id. at 908. In addition, if we
determine that the issue raised by counsel is frivolous, we then proceed to
“conduct an independent review of the record to discern if there are any
additional, non-frivolous issues overlooked by counsel.” Id. (quoting
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)).
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2As of the date of this decision, Father has not filed a pro se brief with this
Court, nor has privately retained counsel entered an appearance on Father’s
behalf.
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Counsel raises the following issue in his brief: “Whether the lower court
erred in changing the permanency placement goal to adoption?” Anders Brief
at 4. Our review of an order changing the goal of the dependency proceeding
from reunification to adoption is under an abuse of discretion standard. In
the Interest of H.J., 206 A.3d 22, 25 (Pa. Super. 2019); J.D.H., 171 A.3d
at 908. “In order to conclude that the trial court abused its discretion, we
must determine that the court's judgment was manifestly unreasonable, that
the court did not apply the law, or that the court’s action was a result of
partiality, prejudice, bias or ill will, as shown by the record.” H.J., 206 A.3d
at 25 (citation omitted). We must accept the findings of fact and credibility
determinations of the trial court if they are supported by the record, but we
are not required to accept the lower court’s inferences from those facts or
conclusions of law. J.D.H., 171 A.3d at 908. Where the trial court’s findings
are supported by competent evidence, this Court will affirm “even if the record
could also support an opposite result.” H.J., 206 A.3d at 25 (citation omitted).
Pursuant to Section 6351(f) of the Juvenile Act, 42 Pa.C.S. § 6351(f),
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 feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child might
be achieved; [and] (6) the child’s safety[.]
J.D.H., 171 A.3d at 908 (citation omitted).
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While not explicitly addressed in Section 6351, the trial court should also
“consider the bond between the child and his parents, foster parents, and
siblings.” In re M.T., 101 A.3d 1163, 1175 (Pa. Super. 2014) (en banc).
“[W]hile parental progress toward completion of a permanency plan is an
important factor, it is not to be elevated to determinative status, to the
exclusion of all other factors.” Id. (citation omitted). However, “[i]t is well
settled that the focus of all dependency proceedings, including goal change
proceedings, is on the safety, permanency, and well-being of the child and the
best interests of the child must take precedence over all other considerations.”
H.J., 206 A.3d at 25. Thus, “[i]n considering a goal change motion, the trial
court has a responsibility to look to the best interests of [the c]hild and not
those of [the c]hild’s parents.” In the Interest of T.M.W., 232 A.3d 937,
945 (Pa. Super. 2020).
Where reunification with the parent is not in the child’s best interests,
the trial court may determine that adoption is the appropriate permanency
goal. 42 Pa.C.S. § 6351(f.1)(2); H.J., 206 A.3d at 25. “When the child
welfare agency has made reasonable efforts to return a foster child to his or
her biological parent, but those efforts have failed, then the agency must
redirect its efforts towards placing the child in an adoptive home.” H.J., 206
A.3d at 25 (citation omitted). “[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.” J.D.H., 171 A.3d at 908 (citation omitted).
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In this matter, Children initially came to the attention of CYS in October
2020 following reports of Children’s poor hygiene, as well as reports of
physical abuse resulting in bruising and marks, including F.C. being hit by a
belt. N.T., 1/8/22, at 6-7. Father and Mother (“Parents”) were advised by
CYS not to use the belt for discipline of Children, but CYS received another
report in early January 2021 that M.C. had numerous bruises on her back and
leg. Id. at 7. M.C. reported to CYS that she had been struck by the belt
numerous times, and Father admitted to hitting her after she lied about taking
a piece of chocolate. Id. at 7-8.
Children were removed from Parents’ care and placed in foster care
together. At the January 27, 2021 hearing, Children were adjudicated as
dependent based upon the stipulation of Parents. N.T., 1/27/22, at 4-5. CYS
requested at the hearing that Parents complete a psychological evaluation and
take anger management classes. Id. at 6.
At the first review hearing, in May 2021, Rebecca Sallack, the CYS
caseworker, reported that Parents had been recommended to participate in
therapy following their psychological evaluation, but they had not followed up
promptly to schedule with a therapist and therefore they had not begun
therapy as of the date of the hearing. N.T., 5/26/21, at 12-14, 17. Father
had completed anger management and parenting courses; however, there
was concern as to whether Parents would be able to implement what they had
learned during the courses as they continued to justify their physical discipline
of Children. Id. at 17-20. Concerns were noted during supervised visits with
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Children, which were then suspended; these concerns included Father’s
difficulty in connecting with Children and his discipline of both of the older
Children when only one had misbehaved. Id. at 20-24, 34-35. The older
Children’s behavior markedly improved following the suspension of the
supervised visits, with M.C. ceasing engaging in certain violent behavior and
bullying of F.C. and F.C. becoming more assertive and social. Id. at 54-63.
In addition, F.C. ceased urinating himself at school after being placed in foster
care, but the habit returned in the days just prior to and after the supervised
visits. Id. at 8, 25, 47-48.
Father made some progress by the time of the second review hearing in
September 2022, with Father accepting criminal responsibility for the abuse
of M.C. and his recognition that he was at least partly responsible for the
physical discipline that led to removal. N.T., 9/22/21, at 15, 24. Father also
attended the majority of his anger management classes and he had
acknowledged that he had anger problems in the marital relationship. Id. at
8-13, 24, 26. However, there were significant issues in Parents’ home,
including overpowering urine and body odors that had been reported at the
last hearing and marital discord resulting from Mother’s affair with a man she
had invited to live in the home and Father’s subsequent physical fights with
him. Id. at 11-16, 18-19, 26; N.T., 5/26/21, at 22-23. There was also
concerning behavior when Parents visited M.C. in the hospital after she had
emergency appendix surgery and engaged in “play pinching,” including on her
abdomen. N.T., 9/22/21, at 17, 25. In addition, Parents repeatedly tickled
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F.C. when they saw him on the morning of the hearing, despite the fact that
he was sick with a cold. Id. at 36.
The CYS caseworker reported at the September hearing that Children
had moved to a new foster home since the last hearing and that the negative
behaviors of M.C. and F.C. had significantly decreased since the move. Id. at
39-41. The foster parents were fully caring for Children’s needs and indicated
that they are interested in a long-term placement. Id. at 41, 44-45. Further,
M.C. and F.C. informed the caseworker that, while they wanted to visit with
Parents, they preferred to stay with the new foster family rather than be
returned to Parents. Id. at 44.
At the final hearing on January 26, 2022, the situation was
“progressively getting worse and worse and worse.” N.T., 1/26/22, at 26.
While Father had completed his parenting and two rounds of anger
management classes and was continuing to visit his mental health therapist
with some absences, id. at 10-12, 31, the CYS caseworker summarized the
multiple concerns that had been detected during the in-person visits:
[CYS] has concern[s] with parents’ inability to interact
appropriately with their children, constant tickling, inappropriate
touches, smacking, mixed directions to the children during visits,
winding them up and then telling them to calm down, concerns of
them making the kids get up and do things for them, . . . parents
ignoring [F.C.], putting kids in timeout and not explaining to them
why they’re in timeout, forgetting they’re in timeout. The kids
have to ask, Mommy, Daddy, Mommy, Daddy, Mommy, Daddy.
Inability to work through [F.C.’s] homework. [F.C.] is really hard
to get to settle to do homework. The parents get quickly irritated
with [F.C.] for not eating or doing his homework. Concerns with
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the parents ignoring suggestions by [the family advocate and
counselor] who supervise[] the visits . . .
[F.C.’s] twitching and his flinching have increased since visits
started back up. Concerns for [F.C.] urinating his pants during
visits, concerns for the parents’ inability to connect with their
children, talk with them about things that they like to do.
The parents have had 11 visits, have not been able to apply what
they have learned through parenting [classes] during these visits
and failed to utilize the recommendations from [the professional
staff] who supervise[] the visits.
Id. at 10-11.
The visits were halted in early January 2022 due to Parents’ lack of
cooperation, poor communication, and not following through on parenting
recommendations. Id. at 8, 12-17, 26-28. Parents were not amenable to
scheduling home visits with the caseworker, and therefore CYS was also not
able to inspect their home after October 2021. Id. at 13, 29. CYS was thus
not able to ensure that Children would have a safe environment in Parents’
home when prior visits had revealed that there were two different men
periodically staying at the home, one who had engaged in inappropriate
discipline of Children and the second who was Mother’s paramour and had
been involved in physical altercations with Father. Id. at 15, 31.
The CYS caseworker testified that the agency’s recommendation was
that the goal be changed to adoption. Id. at 18. She explained that the foster
parents were providing for all of Children’s needs, including special needs
related to F.C.’s behavioral issues and M.C.’s medical crisis, and that foster
parents keep Children in well-structured routines and do not have difficulty in
making Children do their homework. Id. at 35-36, 39-40. Children refer to
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foster parents as “mommy” and “daddy” and they were not upset that the
visits with their Parents were suspended, nor did they request that the visits
resume. Id. at 37, 39-40. The caseworker specifically noted that M.C. was
relieved to find out that she was going to stay at the foster home through
Christmas and that F.C.’s urination problems had again begun to subside after
the visits ceased. Id. at 36, 38.
Amanda Summy, a family advocate at the Bair Foundation, testified at
length regarding her observations of Parents’ problematic behavior during the
11 visits she supervised. Id. at 42-55. While Summy acknowledged that the
first two visits went well, she described various instances of inappropriate play
in the remaining visits, including Father’s frequent and prolonged tickling and
play wrestling with M.C., as well as one instance when he bit her finger and
hit her on the hand. Id. at 45-54. Father also squeezed M.C. and F.C. around
the head and body on several occasions; the tickling, rough play, and playful
smacks often ended up with Children crying or in pain. Id. at 50-54. Father
also at times had difficulty in containing his anger during the visits, such as
instances in which he raised his voice, told F.C. to stop his involuntary
twitching, and physically moved F.C.’s head in an attempt to get him to focus
on his homework. Id. at 51-53, 61-62. Summy also explained that Parents
were argumentative with the counselor who was monitoring the visits
remotely, completely disregarded her advice, and they showed no
improvement in being able to read or respond to Children’s emotional needs.
Id. at 48, 55, 64.
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Annette Tucker, the licensed professional counselor who worked with
Parents on their supervised visits, also described a progressive worsening of
Parents’ performance during the visits. Id. at 69. Tucker described concerns
relating to Father’s aggressive play to the point that M.C. jumped back in fear
once when Father simply walked by her, Parents’ apparent lack of any
emotional attachment to Children, and their inability to control Children’s
chaotic behavior. Id. at 70-72. Tucker also stated that Parents were
inattentive to Children, often ignoring their requests for attention and
forgetting that one of the Children was in a timeout for periods of up to 20
minutes. Id. at 72-73, 75. Tucker summarized her opinion of Parents’ style
of discipline as “abuse.” Id. at 77. She also explained that Father’s “nonstop”
tickling of M.C., particularly on her inner thigh, was “a red flag for sexual
abuse.” Id. at 74-76, 88.
By contrast, Tucker stated that her observations of Children’s
interactions with their foster parents were positive. Id. at 78-79. Children
call the foster parents “mom” and “dad,” and the foster parents listened to
Children and comforted them as needed after the visits. Id. When asked for
her recommendation, Tucker stated that she believed that the visits with
Parents should end because the Children’s “ticks are back” and they are
exhibiting “trauma responses.” Id. at 80; see also id. at 101-02. Tucker
said that, in light of the lack of Parents’ progress, they could not provide the
stable environment Children need to become successful adults. Id. at 80.
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The final witness at the January 26, 2022 hearing was Allen Ryan, Ph.D.,
who was admitted as a child psychology expert and who had reviewed various
records associated with the case. Dr. Ryan opined that Parents expressed no
interest in positive parenting changes to the point that it appeared to be a
waste of agency resources to continue to engage with them. Id. at 110. Dr.
Ryan noted that Parents appeared to lack a strong and secure bond with
Children and Children were fearful of Parents. Id. at 111-12. Dr. Ryan
indicated that reunification could lead to further abuse and that psychiatric
evaluation of Parents, with potential medication and additional months of
therapy, was necessary before reunification could even be considered. Id. at
113-15, 121.
The trial court explained its rationale for ordering the change of the
permanency goal to adoption in its Pa.R.A.P. 1925(a) opinion:
In this case, the children had been in foster care for just over a
year when the [c]ourt changed the goal from reunification to
adoption. For a substantial amount of that time, they had no
contact with Father, who was a significant source of their trauma.
During that period, Father worked toward checking off his
permanency plan requirements, including the completion of a
second round of anger management as ordered by this Court.
Once visitation commenced, however, he demonstrated a near-
complete inability to implement the skills he was supposed to have
learned by then. More than simply unable, he was also unwilling
to take advice from the expert attending visits by Zoom (and once
in person) with the specific goal of helping him to appropriately
connect and interact with his children. What followed was that
Father’s parenting skills by the eleventh visit were worse than they
had been during the first visit. It was not he who suffered because
of it, though; it was his children, whose anxiety and trauma
responses increased over time, causing them to regress after
experiencing months of continuous improvement while outside of
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their parents’ influence. The [c]ourt had no expectation that
staying the course would do anything but expose the children to
additional trauma, either. Father’s lack of awareness or
willingness to change gave it no reason to imagine that things
would be different any time soon.
The goal change no doubt seems unfair to a parent who can
honestly say, “But I was checking off permanency plan boxes.” As
Father has evidenced, however, one does not absorb good
parenting skills by attending classes or counselling; he can do
either or both ad nauseum, pass any number of written exams,
and still be unable to be an effective parent. In such instances,
the law does not require courts to leave the affected children
languishing in foster care with the hope that more time and more
classes will eventually rectify their parents’ deficiencies. On the
contrary, it prioritizes the children’s need for permanency.
In these cases, the children’s best chance was effectuated by a
goal change. Currently they are living with a nurturing foster
family in whose care they have been thriving—a family that, by all
indications, will in fact provide permanency. Father’s history, on
the other hand, indicates that he will not be a viable permanency
option any time in the near future.
Trial Court Opinion, 5/9/22, at 1-2.
Upon review, we agree with counsel that any challenge to the trial
court’s exercise of discretion in ordering the change of permanency goals to
adoption would be wholly frivolous. The record is replete with evidence that
Parents had made little progress towards remedying the issues that led to
removal more than 12 months before the goal change orders. While they
completed parenting and anger management classes, Parents were unable to
apply the lessons they learned during the classes when interacting with
Children and rejected nearly all of the recommendations given to them by the
counselor who supervised the visits. In fact, the witnesses were unanimous
that Parents’ parenting skills worsened over the course of the supervised
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visits, rather than showing improvement. Father, in particular, exhibited
numerous concerning behaviors—including rough play to the point that he
caused Children distress and pain, ignoring Children, and an inability to
effectively discipline Children or direct them towards productive activities—
and he resisted various requests to alter his parenting style. Parents also
failed to make their home available for inspection by CYS to ensure that it
would provide a safe environment for Children, which was a concern as a
result of the home’s unsanitary condition and reports of several individuals
who were staying in the home who presented a potential threat to Children’s
safety.
Additionally, the record amply supports the trial court’s conclusion that
Children are well-cared for in their current foster home. Foster parents are
providing for Children’s health, educational, and emotional needs and have
been able to provide the stability and supporting family environment that is
lacking in their relationship with Parents. The salutary effect of life in the
foster home is most evident when taking into account the testimony that
Children’s behavioral and anxiety issues abated the more time spent in the
foster home and apart from Parents. Foster parents have also indicated that
they hope to provide a long-term placement that will allow Children to thrive
as they grow towards adulthood.
As counsel notes, the trial court’s goal change orders address each of
the relevant factors under Section 6351(f) of the Juvenile Act, including the
continuing necessity and appropriateness of the placement, Children’s safety
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in their current foster home, and Parents’ progress towards alleviating the
conditions which necessitated the placement. See Orders, 1/26/22; 42
Pa.C.S. § 6351(f)(1), (3), (6).3 The testimony developed at the three
permanency hearings demonstrates that Father did make some progress
towards achieving the goals of the permanency plan, but he failed to put any
of the parenting lessons he had been instructed on into practice.4
Furthermore, CYS has clearly made “reasonable efforts” to return Children to
Parents, but those efforts have failed and the agency has properly redirected
its efforts towards placing Children in an adoptive home. H.J., 206 A.3d at
25 (citation omitted).
Based on the foregoing, we agree with counsel that the issue raised in
his Anders brief is wholly frivolous and that the trial court acted within its
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3 Although Section 6351(f)(9) provides that the trial court give extra
consideration to the well-being of any child that has been in placement for at
least 15 of the last 22 months, this Court has explained that “the fifteen-to-
twenty-two-month timeframe set forth in the Juvenile Act is not prerequisite
to a goal change, but rather is an aspirational target in which to attain
permanency.” J.D.H., 171 A.3d at 909 (citation and quotation marks
omitted). Therefore, this section is not a guarantee to parents that they will
have at least 15 months within which to achieve an acceptable level of
parental capacity, id., and the trial court here did not err by changing
Children’s permanency goal to adoption after approximately 12½ months.
See id. (concluding that trial court acted in accordance with Juvenile Act when
changing permanency goal to adoption even though only seven months had
lapsed since removal).
4 This Court has affirmed trial court decisions changing the permanency goal
to adoption in cases where the parent had made substantial progress towards
completion of the permanency plan but failed to apply parenting lessons and
still exhibited problematic parenting skills. See, e.g., M.T., 101 A.3d at 1175-
76; In re N.C., 909 A.2d 818, 825-26 (Pa. Super. 2006).
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discretion and in accordance with the Children’s best interests in changing
their permanency goals to adoption. In addition, we have reviewed the
certified record and have discovered no additional non-frivolous issues.
Therefore, we grant counsel’s petition to withdraw and affirm the January 26,
2022 orders.
Orders affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2022
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