Adopt. of: A.S., Appeal of: J.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE ADOPTION OF: A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.S., MOTHER :
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: No. 98 MDA 2020
Appeal from the Decree Entered December 23, 2019
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 61 Adoptions 2019
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 12, 2020
J.S. (Mother) appeals from the trial court’s decree involuntarily
terminating her parental rights to her minor daughter, A.S. (Child) (born
12/12). Counsel has also filed a petition to withdraw on appeal, pursuant to
Anders v. California, 386 U.S. 738 (1967) and In re Adoption of V.E., 611
A.2d 1267 (Pa. Super. 1992). After careful review, we affirm based upon the
well-authored trial court opinion and grant counsel’s petition to withdraw.
Child is autistic and requires special services for her cognitive
development. In 2015, Cumberland County Children and Youth Services
(CYS) received a referral that Mother1 was using drugs and not properly
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1 CYS was unable to confirm the identity of Child’s biological father until
December 11, 2019. N.T. Termination Hearing, 12/20/19, at 28. At the time
of the termination hearings, Father was incarcerated in Lebanon County on 25
felony charges and 2 misdemeanor charges. Id. at 29. His parental rights to
Child were also terminated. He, however, is not a party to this appeal.
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supervising Child. After an investigation into the matter, the case was closed
in February 2015. In early 2018, CYS received another referral, this time
regarding Child, when it was reported that Child was sexually acting out. Child
received support services and the case was closed in February 2018. On
March 26, 2018, CYS again became involved with Mother and Child, after
Mother was incarcerated2 and unable to care for Child. CYS obtained legal
and physical custody of Child and placed Child in foster care.3 Child was
adjudicated dependent on April 9, 2018.
In late April 2018, CYS developed a permanency plan (Plan) for Mother
in order to achieve reunification with Child. Mother’s goals and objectives
under the Plan consisted of the following: obtain and maintain stable housing;
cooperate with CYS; comply with drug and alcohol treatment
recommendations; submit to random drug screens; address mental health
issues, obtain mental health evaluation and follow recommendations; address
parenting concerns; and comply with probation to avoid re-incarceration.
Mother initially struggled to meet her housing goal, living in friends’ homes,
hotels and the YMCA in between periods of incarceration. 4 Mother was
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2 Mother had been charged with driving without a license and hindering
apprehension. Just one month earlier, Mother had been charged with simple
assault and possession of drug paraphernalia.
3 At the time of the termination hearings, Child was still living in the same
foster home, a pre-adoptive placement.
4 Mother, however, reported that she obtained her own residence in
September 2019.
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inconsistent in obtaining drug screens, having missed 7 screens and having
failed to call and check-in with her supervisor for 19 consecutive days. Mother
did, however, test negative on 13 drug screens. While Mother completed
multiple drug and alcohol evaluations, Mother chose not to follow through with
recommended drug and alcohol treatment. Mother also completed a mental
health evaluation in June 2019, was diagnosed with bipolar disorder and was
prescribed lithium. However, Mother was unsuccessfully discharged from
mental health treatment counseling due to her re-incarceration.
Mother was inconsistent in attending her scheduled visits with Child.
While transportation to the visits was an issue for Mother, CYS provided her
with a bus pass to alleviate this problem. Mother did participate in some
school-related meetings addressing Child’s Individualized Education Program
(IEP). Phone calls between Mother and Child did not go well; Mother often
used inappropriate language and yelled at Child for not talking to her.
With regard to parenting skills, Mother completed a parenting
assessment and parenting program in July 2018. Alternative Behavior
Consultants (ABC) recommended Mother complete a second parenting
program after she remained sober and was consistent with her Plan goals for
at least three months. Mother was unsuccessful with remaining sober and
compliant for that time period; therefore, she did not progress to the next
level of parenting programs.
Mother likewise struggled to comply with the conditions of her
probation; she was re-incarcerated twice after being released from jail in
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March 2018 – when Child was placed in foster care. Specifically, in December
2018, Mother twice testified positive for fentanyl while on probation, leading
to her re-incarceration from January 5, 2019 until February 6, 2019. In
August 2019, Mother was incarcerated again for outstanding warrants due to
failing to pay fines related to a 2010 DUI. With regard to employment, Mother
was unable to verify she had obtained a job, other than a one-day work stub
from McDonalds.
On September 4, 2019, CYS filed a petition to involuntarily terminate
Mother’s parental rights to Child based upon 23 Pa.C.S. §§ 2511(a)(1), (2),
(5), (8) and (b). The court held termination hearings on September 20, 2019,
and December 20, 2019.5 At the termination hearings Mother,6 various CYS
caseworkers, an ABC consultant, and Mother’s county adult probation officer
testified. On December 23, 2019, the trial court entered a decree terminating
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5 Child was represented by an attorney, Damian J. DeStefano, Esquire, and a
Guardian Ad Litem (GAL), Tammi Blackburn, Esquire, at the termination
hearings. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel
in contested involuntary termination proceedings) and In re K.R., 200 A.3d
969 (Pa. Super. 2018) (en banc), but 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.”).
6At the second termination hearing, there were connection problems with
Mother over her cellular telephone.
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Mother’s parental rights pursuant to sections 2511(a)(1), (5), (8), and (b) of
the Adoption Act.7
Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On March 18, 2020, counsel
filed a petition for leave to withdraw as counsel pursuant to Anders and V.E..
In V.E., 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 advocates brief, as contemplated in Anders supra[.]
In re Adoption of V.E., 611 A.2d at 1275. See also In re Adoption of
R.I., 312 A.3d 601, 602 (Pa. 1973) (“the 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 Anders brief,8 counsel raises the following issues for our
consideration:
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7 23 Pa.C.S. §§ 2101-2938.
8 CYS and counsel for Child have chosen to not file briefs on appeal.
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(1) Whether the [t]rial [c]ourt abused its discretion and
committed an error of law when it found, despite a lack of
clear and convincing evidence, and despite not allowing
[Mother] a meaningful opportunity to participate in the
hearing, that enough grounds existed for a termination of
[Mother’s] parental rights under [s]ection 2511(a) of the
Adoption Act, 23 Pa.C.S.[] §[]2511(a).
(2) Whether the [t]rial [c]ourt abused its discretion and
committed an error of law in terminating [Mother’s] parental
rights when the conditions which led to the removal or
placement of the child no longer existed or were
substantially eliminated, thus contravening sections
2511(a) and (b) of the Adoption Act, [23] Pa.C.S.[]
§[§][]2511(a), (b).
(3) Whether the [t]rial [c]ourt abused its discretion and
committed an error of law in determining it would be in the
child’s best interest to have parental rights terminated,
when it failed to primarily consider the child’s
developmental, physical and emotional needs and welfare,
thus contravening [s]ection 2511(b) of the Adoption Act, 23
Pa.C.S.[] §[]2511(b).
Mother’s Brief at 4-5.
Before reaching the merits of Mother’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 court's attention.[9]
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
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9 Mother has not raised any additional arguments on appeal.
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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 their 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;
(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
any additional, non-frivolous issues overlooked by counsel.” Commonwealth
v. Flowers, 1133 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Instantly, Mother’s counsel filed a petition to withdraw, certifying that
he reviewed the record and determined that Mother’s appeal is frivolous.
Counsel also filed a brief, which includes a summary of the history and facts
of the case, potential issues that could be raised by Mother, and counsel’s
assessment of why those issues are wholly frivolous, with citations to relevant
legal authority. Counsel has also provided Mother with a copy of the brief and
a letter advising her of her right to retain new counsel or raise additional issues
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pro se. Accordingly, we find that counsel has substantially complied with the
requirements of Anders and Santiago, and, thus, may review the issues
raised by counsel and also conduct our independent review of the record.
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).
After reviewing Mother’s brief, the certified record, including the notes
of testimony from the termination hearings, and relevant case law, we agree
with the trial court’s decision to involuntarily terminate Mother’s parental
rights to Child. Moreover, our independent examination of the record indicates
that there are no other non-frivolous claims that can be raised. V.E., supra.Mother has failed to show that she has the ability to provide the safety,
stability and permanency necessary to meet Child’s special needs. In the 21
months that Child has been out of Mother’s care, Mother has failed to make
“significant strides toward her goals or doing anything notably different[] than
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she had been doing over the preceding 21 months.” Trial Court Opinion,
2/13/20, at 15. While Child’s GAL testified that Child loves Mother and has a
bond with her, she also testified that it is in Child’s best interest to terminate
Mother’s parental rights where Mother’s inconsistency in fulfilling her Plan
goals and lack of parenting is detrimental to Child’s well-being. See In re
N.A.M., 33 A.3d 95, 104 (Pa. Super. 2011) (“The mere existence of an
emotional bond does not preclude the termination of parental rights.”); see
also In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (under section
2511(b), adequate consideration must be given to needs and welfare of child;
parent’s own feelings of love and affection for a child, alone, do not prevent
termination of parental rights).
Child has been residing with foster parents, who are prospective
adoptive parents,10 since March 2018. Child has bonded with her foster
family, which includes three foster siblings;11 her foster family provides for
her special needs, including a structured home environment that manages her
behavioral issues.12 See In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.
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10On December 19, 2019, foster parents filed a report of intention to adopt
Child. See 23 Pa.C.S. § 2531.
11 Foster Mother testified that her three biological children and Child “are like
sisters and brothers basically.” N.T. Termination Hearing, 12/20/19, at 44.
12 Foster Mother testified that when Child first came into her care, she
exhibited baby-like behavior. N.T. Termination Hearing, 12/20/19, at 52.
Foster Mother testified that since that time, Child has progressed and acts
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Super. 2006) (“The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.”).
We therefore, rely upon the opinion authored by the Honorable
Christylee I. Peck, in affirming the decree involuntarily terminating Mother’s
parental rights to Child. We ask the parties to attach a copy of Judge Peck’s
decision in the event of further proceedings in the matter. We also conclude
that Mother’s appeal is frivolous and grant counsel’s motion to withdraw.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/12/2020
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more age-appropriate. Id. Foster Mother also testified that after visits with
Mother, Child reverts back to acting like a baby or little toddler. Id. at 52-53.
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