In Re: W.A.S., Appeal of: A.G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.A.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.G., FATHER :
:
:
:
:
: No. 1172 WDA 2022
Appeal from the Decree Entered September 6, 2022
In the Court of Common Pleas of Jefferson County Orphans' Court at
No(s): 23A-2022 O.C.
IN RE: J.L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.G. :
:
:
:
:
: No. 1173 WDA 2022
Appeal from the Decree Entered October 6, 2022
In the Court of Common Pleas of Jefferson County Orphans' Court at
No(s): 22A-2022 O.C.
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: March 17, 2023
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A.G. (Father) appeals1 from the decrees,2 entered in the Court of
Common Pleas of Jefferson County, Orphans’ Court Division, involuntarily
terminating his parental rights to his minor twin sons, W.A.S. and J.L.S.
(Children) (born Oct. 2020). Counsel has filed an application and Anders3
brief seeking to withdraw. After careful review, we grant counsel’s application
and affirm the decrees involuntarily terminating Father’s parental rights to
Children. Father is still incapable of parenting Children despite receiving
services over the past 18 months, during which time Children have been in
placement.
On February 8, 2021, Jefferson County Children and Youth Services
(CYS) caseworker, Rebecca Sallack, received a report that Children’s mother,
A.S.,4 presented to the emergency room at the Punxsutawney Hospital with
then-three-and-a-half-month-old J.L.S., who had bruises on his arm and leg.5
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1 Father has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), by filing a separate notice of appeal for each Orphans’
Court docket number. See In re: M.P., 204 A.3d 976 (Pa. Super. 2019)
(applying Walker holding in termination of parental rights context).
2 On November 1, 2022, our Court sua sponte consolidated these appeals, as
they involve related parties and issues. See Pa.R.A.P. 513.
3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
4The trial court also involuntarily terminated A.S.’s parental rights to Children.
A.S. has also filed an appeal that we address in a separate decision. See In
Re: W.A.S. & J.L.S., Nos. 1170 & 1171 WDA 2022.
5Police found a wood clamp in maternal grandparents’ home that had a shape
which was consistent with the shape and size of the bruise on J.L.S.’s arm.
N.T. Termination Hearing, 8/30/22, at 60.
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While Mother at first denied hurting J.L.S.,6 she ultimately admitted to having
caused some of the bruising by squeezing J.L.S.’s arm and leg.7 Children were
living with Mother at their maternal grandparents’ home at the time of the
incident. Maternal grandparents’ home was determined to not be a safe
environment for Children and an emergency protective custody order was
entered. W.A.S. and J.L.S. were immediately removed from the home and
placed in kinship care.
Children were adjudicated dependent on February 23, 2021. CYS
initially attempted to reunite Children with Father. However, Father first
denied paternity and then, ultimately, refused to take custody of Children
without Mother present. On April 13, 2021, Children were placed in a pre-
adoptive foster home, where they remain to date. CYS established the
following family service plan for Father: undergo drug and alcohol evaluation
and follow all recommendations; obtain a psychological evaluation8 and follow
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6Mother, in fact, first accused maternal grandfather of hurting J.L.S. Id. at
58.
7Mother was immediately arrested and incarcerated. On August 30, 2022,
Mother entered the ARD program on third-degree felony charges after
entering a guilty plea for endangering the welfare of a child, simple assault,
and harassment. Mother was still on probation at the time of the termination
hearing.
8Father was diagnosed with bipolar disorder, post-traumatic stress disorder,
and personality disorder (unspecified). N.T. Termination Hearing, 8/30/22, at
26. The psychological evaluation noted that Father “has a significant mental
health history, [] has been participating in both therapy and medication
management[, and] should continue to participate in these services on an
ongoing basis.” Id.
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all recommendations; participate in anger management classes; notify CYS
within 7 days of any address or telephone changes; participate in and
complete nurturing parent classes; engage in supervised visits with Children
and confirm attendance at visits at least 24-hours in advance; and provide
diapers, wipes, formula, and baby food for visits. Id. at 6.9 Child permanency
plans, which were instituted in March 2012 and revised throughout October
2021, were implemented and included: participation in early head start
programs; weekly one-hour visits10 with Father at CYS; age-appropriate
stimulation and activities for Children; early intervention evaluations; and
participation in physical therapy. Id. at 10-13.
Permanency review hearings were held in May and August 2021 and
February and May 2022. At the 2021 review hearings, Father’s compliance
with his family service plan was considered minimal/substantial and his
progress was considered none/moderate, respectively. N.T. Termination
Hearing, 8/30/22, at 4. At the 2022 review hearings, Father’s compliance was
noted as moderate/substantial and his progress minimal. Id. at 5. In May
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9 The service plan was revised in September 2021, after Father had completed
his drug and alcohol evaluation, anger management class, and nurturing
parent class. Id. at 7. The new plan recommended that Father obtain mental
health counseling and follow recommendations and notify CYS within seven
days of any employment or employment schedule changes. Id. at 7, 9.
Father was also told to obtain stable housing free of any safety concerns,
maintain a healthy living environment for Children, and keep CYS caseworker
informed of any new addresses. Id. at 7-8. The service plan was again
revised in April 2022 to add the following: a weekly ten-minute phone call
with Children. Id. at 9-10.
10In October 2021, Father’s visits were increased to two-hours once a week.
Id. at 12.
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2022, visitation ceased and the permanency goal was changed from
reunification to adoption. On July 8, 2022, CYS filed petitions to involuntarily
terminate Father’s rights to Children.
On August 30, 2022, the court held a termination hearing that
incorporated the record in the underlying dependency proceeding. At the time
of the termination hearing, Children had been in placement for 18 months.
CYS caseworker Sallack and Erin Landeni-Rogan, Father’s therapist through
the Erie County Probation Department,11 testified at the hearing.12 On
September 6, 2022, the trial court granted CYS’ petition and terminated
Father’s parental rights pursuant to subsections 2511(a)(2) and (b) of the
Adoption Act.13 Father filed a timely notice of appeal and court-ordered
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11 Father was on probation after pleading guilty to simple assault and other
offenses unrelated to this matter. Ms. Landeni-Rogan began working as
Father’s therapist in December 2021, having had approximately 7 sessions
with him at the time at the termination hearing. N.T. Termination Hearing,
8/30/22, at 68. Ms. Landeni-Rogan, however, testified that she was not
comfortable opining with regard to Father’s ability to parent, id. at 70, or
Father’s “cognitive process [with regard to] his ability to care for [C]hildren.”
Id. at 72.
12 Children were represented by guardian ad litem, Greg Sobol, Esquire, and
attorney, Danielle Melillo, Esquire, at the termination hearing. See 23
Pa.C.S.A. § 2313(a) (children have statutory right to counsel in contested
involuntary termination proceedings); but see In re K.R., 200 A.3d 969 (Pa.
Super. 2018) (en banc) (separate counsel for children’s legal interests need
not be appointed, under section 2313(a), where children were able to express
preferences to counsel, counsel expressed children’s preferences and
children's best interests to orphans’ court, and there was no conflict in
positions).
13 23 Pa.C.S.A. §§ 2101-2938.
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Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
December 9, 2022, counsel filed an application to withdraw.
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 [C]ourt for leave to withdraw [from]
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
[C]ourt holds that appointed counsel seeking to withdraw [from]
representation must submit an Anders brief.
Id. at 1275. Moreover, we held that “any motion to withdraw [from]
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)]. Id. 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.”).
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In his Anders brief, counsel raises the following issue for our review:
“Whether the [trial] court erred in terminating Father’s parental rights under
23 Pa.C.S.A. §[§] 2511(a)(2) [and (b)].”14 Father’s Brief, at 4.
Before reaching the merits of Father’s appeal, we must first address
counsel’s petition 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 [C]ourt’s attention.
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:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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14 Although counsel’s “Statement of Questions Involved” only states that the
court erred in terminating Father’s parental rights under subsection
2511(a)(2), Father’s Rule 1925(b) statement and the summary of the
argument and argument sections of the Anders brief also discuss that
termination was improper under subsection 2511(b). Thus, we will also
address that subsection in this decision.
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). 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, 1133 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote omitted).
Instantly, Father’s counsel has filed an application to withdraw,
certifying that he has made a conscientious examination of the record and any
applicable law and determined that Father’s appeal is wholly frivolous.
Counsel has also filed a brief, which includes a summary of the history and
facts of the case, potential issues that could be raised by Father, and counsel’s
assessment of why those issues are wholly frivolous, with citations to relevant
legal authority. Counsel has also supplied Father with a copy of the Anders
brief and application, together with a letter advising Father of his right to
proceed pro se, or with new privately-retained counsel, to raise any other
issues Father believes might have merit. Accordingly, we find that counsel
has substantially complied with the requirements of Anders, Santiago, and
V.E., and, thus, may review the issues raised by counsel and also conduct our
independent review of the record.
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In cases involving termination of parental rights, “our standard of review
is limited to determining whether the order of the trial court is supported by
competent evidence, and whether the trial court gave adequate consideration
to the effect of such a decree on the welfare of the child.” In re Z.P., 994
A.2d 1108, 1115 (Pa. Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.
Super. 2009)). “Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must stand.” In
re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc) (internal citations
omitted). On review, “we employ a broad, comprehensive review of the record
in order to determine whether the trial court’s decision is supported by
competent evidence.” Id.Parental rights may be involuntarily terminated where any one
subsection of [s]ection 2511(a) is satisfied, along with
consideration of the subsection 2511(b) provisions. Initially, the
focus is on the conduct of the parent. The party seeking
termination must prove by clear and convincing evidence that the
parent’s conduct satisfies the statutory grounds for termination
delineated in [s]ection 2511(a). Only if the court determines that
the parent’s conduct warrants termination of his . . . parental
rights does the court engage in the second part of the analysis
pursuant to [s]ection 2511(b): determination of the needs and
welfare of the child under the standard of best interests of the
child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations omitted).
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Instantly, the trial court terminated Father’s parental rights under
subsection 2511(a)(2)15 and (b).16 To satisfy the requirements of subsection
2511(a)(2), the moving party must produce clear and convincing evidence
regarding the following elements: (1) repeated and continued incapacity,
abuse, neglect, or refusal; (2) such incapacity, abuse, neglect, or refusal
caused the child to be without essential parental care, control or subsistence
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15 Subsection 2511(a)(2) states:
(a) General rule. — The rights of a parent in regard to a child may be
terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse,
neglect[,] or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the
incapacity, abuse, neglect[,] or refusal cannot or
will not be remedied by the parent.
23 Pa.C.S.A. § 2511(a)(2) (emphasis added).
16 Subsection 2511(b) states:
(b) Other considerations. — The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical[,] and emotional needs and welfare of
the child. The rights of a parent shall not be terminated solely
on the basis of environmental factors such as inadequate
housing, furnishings, income, clothing[,] and medical care if
found to be beyond the control of the parent. With respect to
any petition filed pursuant to subsection (a)(1), (6) or (8), the
court shall not consider any efforts by the parent to remedy the
conditions described therein which are first initiated
subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(b).
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necessary for his physical or mental well-being; and (3) the causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied.
See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(emphasis added). The grounds for termination of parental rights under
subsection 2511(a)(2), due to parental incapacity that cannot be remedied,
are not limited to affirmative misconduct; the grounds may also include acts
of refusal, as well as incapacity to perform parental duties. In the Interest
of A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
The trial court noted the following in its Rule 1925(a) opinion:
As Ms. Sallack detailed in her testimony, Mother and Father are
profoundly deficient when it comes to recognizing, understanding,
and responding to [C]hildren’s needs. Between Justice Works and
Ms. Sallack, they received ample instruction on how to care for
[Children] both physically and emotionally. Little to none of it has
taken root, though, which has left Mother and Father in a position
where they are unable to parent these twin boys. Their inattention
alone has put [C]hildren in physical danger that easily could have
resulted in actual injury had Ms. Sallack not intervened. More
than merely inattentive, they struggle to recognize such basic
things as when [Children] are hungry or have had enough to eat,
and they require continual prompting to check [Children’s]
diapers, to actively monitor their movements, and even to interact
with them instead of watching from the sidelines or directing their
attention to other matters. In short, Mother and Father have
shown that they are incapable of meeting [Children’s] physical and
emotional needs outside of a closely[-]supervised environment[.]
* * *
As well as being warranted under subsection (a), terminating both
parents’ rights is the outcome best able to ensure [Children’s]
developmental, physical, and emotional needs, see [23 Pa.C.S.A.]
§ 2511(b), as it will allow them to be adopted and become
permanent members of the family they have known most of their
lives. It will allow them to remain in the same environment and
with the same people who have consistently loved them and met
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their varying needs for the last 17 months and will not adversely
destroy a bond, beneficial or otherwise, between them and their
natural parents. As indicated above, it is their foster parents, not
Mother and Father, with whom [C]hildren have established
parent-child bonds. The [c]ourt[,] thus[,] has no reservations
about severing existing and beneficial emotional ties by
terminating Mother[’s] and Father’s parental rights.
Trial Court Opinion, 9/6/22, at 4. The record substantiates the trial court’s
conclusions and, therefore, supports termination under subsections
2511(a)(2) and (b).
Although Father completed parenting classes as part of his family
service plan, CYS caseworker Sallack testified that parents only do well “if
you’re sitting there telling them every step of the way . . . what to do.” N.T.
Termination Hearing, 8/30/22, at 22. See id. at 16, 18 (caseworker testifying
after she instructed Father to make sure Children were safe during visit, Father
continued to pay no attention to Children, left W.A.S. on high dining table
chair instead of taking him off of it, and seemed to be “worrying more about
what [the caseworker] was doing behind [a one-way] mirror”); id. at 18
(Father standing in corner of room during visit “not paying attention to what
was going on with the boys”); id. (Father sitting in chair during visit “picking
his nose and . . . flicking the boogers around the visit room”); id. at 19-20
(Father putting J.L.S. on his lap and being “stiff as a board, like he was in
trouble, staring off”); id. at 20 (neither parent checking diaper 45 minutes
into visit); id. at 17 (neither parent could tell if Children ready to eat); id.
(when Children were being fed, parents could not tell if Children had finished
eating); id. at 21 (caseworker taking Father to kitchen to show him how to
heat up Children’s food).
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Caseworker Sallack also testified that during visits, Father “struggle[d]
to interact with the kids and play with them [and, instead,] would just sit and
look at them [and e]very now and then would engage with them.” Id.; see
also id. at 56 (as Children got more mobile, parents really “seemed to
struggle” employing parenting skill). In fact, when W.A.S. tried to grab a toy
that Father was playing with, Father “pulled back” and told W.A.S. “daddy’s
playing with it.” Id.; see also id. (parents “missed opportunities to sit and
interact with [Children] . . . and play with them”); id. at 22 (caseworker
testifying parents had to be “redirect[ed during] visits frequently”).
In the 18 months since Children have been removed from Father’s care,
Father has been incapable of properly supervising, caring for, and tending to
the needs of Children during visits without the constant intervention and
instruction of CYS caseworkers. See 23 Pa.C.S.A. § 2511(a)(2) (“the
conditions and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied”); see also In re M.E.P., supra at 1272. Notably,
Father’s visits have never progressed beyond supervised due to safety
concerns. See N.T. Termination Hearing, 8/30/22, at 54-55, 66 (CYS never
felt comfortable lessening visit restrictions based on safety concerns posed to
Children); id. at 65 (caseworker testifying Children could never be left
unsupervised with parents where conditions that led to their removal from
parents still exist). In fact, caseworker Sallack testified that Father’s
parenting skills have “[been getting] progressively worse.” Id.
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Even with consistent “hands-on” parenting instruction for over one year,
Father has been unable to prove that he can put those lessons into practice
and carry out parenting responsibilities. Without more, Children are at risk
physically and emotionally. Accordingly, Father’s inability to utilize the skills
he learned during the parenting classes and apply them to parenting Children
justifies termination under subsection 2511(a)(2).
With regard to subsection 2511(b), CYS caseworker Sallack noted that
while Children were “friendly” and “familiar” with Mother and Father during
visits, when Children would return to their foster home, the Children would be
“so excited” to see their foster parents, “run[ning,] giggling[,] and laughing.”
Id. CYS caseworker Sallack further testified that Children “appear very
bonded” with foster parents and the entire foster family, that Children “are
starting to say [and refer to foster parents as] dadda and mama,” and that
foster parents are providing for Children’s needs. Id. at 28-29.
Here, the record supports the conclusion that Children do not have an
established bond with Father. Instead, the evidence demonstrates that
Children have a parent-child bond with their foster parents, who are an
adoptive resource. See Trial Court Opinion, 9/6/22, at 3 (“The [foster
parents] are the people they love, the people they greet with excitement, and
the people with whom they have developed family-like bonds.”). See also
Adoption of C.J.P., 114 A.3d 1046, 1054 (Pa. Super. 2015) (in determining
whether termination proper under section 2511(b), trial court “can equally
emphasize the safety needs of the child, and should also consider the
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intangibles, such as the love, comfort, security, and stability the child might
have with the foster parent,” in addition to examination of any parent-child
bond). Accordingly, we conclude that the trial court did not abuse its
discretion in determining that termination of Father’s parental rights would
best serve the developmental, physical, and emotional needs and welfare of
Children. See 23 Pa.C.S.A. § 2511(b).
Decrees affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2023
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