In Re: C.M.H., a Minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.M.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.P., MOTHER :
:
:
:
:
: No. 1707 EDA 2020
Appeal from the Order Entered July 29, 2020,
in the Court of Common Pleas of Bucks County,
Orphans' Court at No(s): No. 2020-A9013.
IN RE: M.N.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.P., MOTHER :
:
:
:
:
: No. 1708 EDA 2020
Appeal from the Order Entered July 29, 2020,
in the Court of Common Pleas of Bucks County,
Orphans' Court at No(s): No. 2020-A9012.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 05, 2021
In this consolidated matter, M.P. (Mother) appeals from the July 29,
2020 orders, which granted the petitions of the Bucks County Children and
Youth Social Services Agency (Agency) to involuntarily terminate her rights to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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four-year-old daughter, C.M.H., and 8-year-old son, M.N.R., (collectively, the
Children) pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(5), (8),
and (b).1 Additionally, counsel for Mother seeks permission to withdraw from
further representation pursuant to Anders v. California, 386 A.2d 738(1967). Upon our review, we find that counsel’s Anders brief satisfies the
requirements set forth in Commonwealth v. Santiago, 987 A.2d 349 (Pa.
2009), and that there are no non-frivolous claims that Mother can raise herein.
Accordingly, we grant counsel’s application to withdraw and affirm the
termination orders issued by the Bucks County Orphans’ Court.
The orphans’ court thoroughly discussed the procedural background and
relevant facts in its opinions2 filed pursuant to Pa.R.A.P. 1925(a):
The Agency was familiar with Mother and the [C]hildren for
a number of years, having received and acted upon previous
referrals for services. The current referral, which ultimately
led to the termination of the parental rights of [Mother], was
made to the Agency on January 11, 2017. At the time of
the referral, [the Children] were living with Mother, while
[C.M.H.’s father] lived in the home “from time to time.” The
reason for the referral was the substance abuse of Mother
and [C.M.H.’s father].
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1 The biological father of C.M.H. is D.F.H. The court also terminated his
parental rights, but he did not appeal. The biological father of M.N.R. is M.E.R.,
who voluntarily consented to the termination of his parental rights.
2 We note the orphans’ court authored a Rule 1925(a) opinion for each child.
Although each opinion is largely identical, particularly in its analysis of
pertinent legal issues, the opinions are unique in certain discussions of the
Children. We cite the orphans’ court opinion concerning C.M.H.’s case (1707
EDA 2020) as “O.C.O. Daughter,” and the opinion concerning M.N.R.’s case
(1708 EDA 2020) as “O.C.O. Son.”
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In November 2017, Mother was evicted from the home. As
a result, the [C]hildren were informally placed into the care
of family members. [C.M.H.] lived with her aunt and uncle
from November 2017 until October 2018. Her brother,
M.N.R., lived with his grandfather from November 2017 to
August 2018, then with a family friend from August 2018 to
October 2018.
On October 18, 2018, both [of the Children] were
adjudicated dependent by the Bucks County Court of
Common Pleas. The court deferred disposition for an
additional assessment to determine the best interests of the
[C]hildren. On November 26, 2018, the [c]ourt placed both
[C]hildren in the temporary and physical custody of the
Agency. At the time, both [C]hildren, together, were placed
with the Foster Parents, with whom they have continued to
live.
Following the adjudication of dependency, Placement
Permanency Plans (PPP) were put into place for Mother,
prior to possible reunification. Specifically, the objectives
for Mother were as follows: that she stop abusing
substances, i.e. “get clean and stay clean;” that she obtain
a substance abuse evaluation, as well as a mental health
evaluation, and comply with the recommendations
therefrom; that she obtain appropriate housing and income
to support herself and the [C]hildren; and that she visit with
the [C]hildren on a regular basis. […]
Agency caseworker Steven Manginelli was assigned to the
instance case in late December 2018. He testified at the
termination hearing held on July 29, 2020 that, following
the [C]hildren’s placement in the foster home in November
2018, Mother only visited the [C]hildren during the first
month. Mother did not visit her [C]hildren after December
20, 2018 until October 17, 2019, a period for almost ten
(10) months.
Further, Mr. Manginelli testified that from March 15, 2019
until September 13, 2019, Mother no longer had contact
with the Agency, and she and [C.M.H.’s father’s]
whereabouts were unknown. Later, Mother only explained
to Mr. Manginelli that her phone was stolen. However, she
never employed any other means to contact the Agency
during that six-month period.
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During the time that Mother and Father’s whereabouts were
unknown to the Agency, the goal of reunification changed to
that of involuntary termination of their parental rights and
adoption for each child. The [c]ourt changed these
permanency goals for M.N.R. and [C.M.H.] on September
25, 2019 and November 27, 2019, respectively.
In September 2019, Mr. Manginelli learned that [C.M.H.’s
father] was incarcerated, and he subsequently met with [the
father] in the prison. [The father] advised him that during
the period of time that he was “missing,” he was living in
Kensington, was homeless, and that he had been using
heroin with Mother.
Mr. Manginelli testified that from October 2019 until January
2020, after Mother “resurfaced” at or near the same period
as Father, she did have four in-person visits with her
[C]hildren.
Nonetheless, on February 3, 2020, the Agency filed petitions
for involuntary termination of the biological parents’
parental rights. However, the Agency was unable to
personally serve Mother with the same, as her physical
whereabouts for service were again unknown. On the same
date, the Agency simultaneously filed a motion requesting
alternate service of its petition. By Court Order of February
12, 2020, the Agency was permitted to provide notice of the
Agency’s petition for termination of Mother’s parental rights,
and the hearing scheduled in connection for same, through
publication in appropriate newspapers.
On July 9, 2020, notice to Mother and [C.M.H.’s father] of
the Agency’s request for termination and the July 29, 2020
hearing date was published in the Bucks County Courier
Times, along with contact information for the Agency’s
caseworker. On July 16, 2020, the same notice was
published in the Bucks County Law Reporter.
Mother’s [counsel], who began representation of Mother in
January 2020, advised the [c]ourt at the July 29, 2020
[termination] hearing that Mother was homeless and had no
mailing address. [Counsel] stated that she was able to meet
with Mother in person in February 2020, otherwise
communicated with her by email or phone, and had provided
Mother with the July 29, 2020 hearing date. Mother’s
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attorney advised the [c]ourt that Mother opposed
termination of her parental rights.
From the period of March through May 2020, Mother again
had some contact with her [C]hildren through video calls,
as in-person contact was prohibited due to the onset of
COVID-19.
On June 16, 2020, Christine McMonagle, Esquire was
appointed as Guardian ad litem [“GAL”] for [the Children].[3]
On July 7, 2020, Judith Algeo, Esquire was appointed to
serve as counsel to represent the legal interests of M.N.R.
See 42 Pa.C.S. § 6311(a); Pa.R.J.C.P. 1151(b).
The hearing for termination of Mother’s and [C.M.H.’s
father’s] parental rights was held on July 29, 2020. Neither
Mother nor [the father] appeared. The Agency had offered
Mother transportation to the hearing, but Mother declined.
This [c]ourt was advised at the hearing that both Mother
and [the father] had active bench warrants for their arrest.
Mother’s and [C.M.H.’s father’s] attorneys were present at
the hearing. Counsel for Mother advised the [c]ourt that
she had previously been in phone contact with Mother, and
that Mother was aware of the July 29, 2020 hearing, and
that Mother had advised counsel that she would be present
for the hearing. However, in the days leading up to the
hearing, counsel was unable to speak with Mother; her calls
to Mother went directly to Mother’s voice mail. Counsel also
emailed Mother a few days before the hearing, again
advising her about the hearing and that she had not been
able to reach her by phone. Counsel had previously made
Mother aware of the importance of the hearing, and also
called Mother the morning of the hearing to advise her of
the same, all without response by Mother.
At the hearing, the Agency, through Mr. Manginelli, testified
that at the time the [C]hildren were adjudicated dependent
in October 2018, neither Mother nor [C.M.H.’s father was]
in a position to care for either child. As of the filing of the
petition to terminate and as of the date of the [termination]
____________________________________________
3We clarify that Ms. McMonagle served as GAL for both Children. Judith Algeo
was appointed separate, legal counsel for M.N.R.
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hearing, both Mother and [C.M.H.’s father] continued to be
in positions where they could not care for the children.
Mr. Manginelli testified that, by contrast, the foster parents,
who have continuously cared for the [C]hildren since
November 2018, are able to support and provide for [them]
with what they need to “live a healthy and beneficial life as
children.” The foster parents have no other children in the
home. Both [of] the Child[ren] love the foster parents,
consider them their family, call them “Mom” and “Dad,” and
believe that they belong with them. Moreover, the foster
parents have the full support of Mother’s extended family.
The [C]hildren meet regularly with their extended biological
family, and those relationships will continue.
[C.M.H.] has no special medical or developmental needs,
but is receiving services for Post-Traumatic Stress Disorder,
and is doing well.
The foster parents have expressed their desire to be an
adoptive resource for both [C]hildren, which the Agency is
inclined to recommend should the requisite background
requirements for adoption be met.
The Agency opined at the hearing that involuntary
termination of Mother’s […] parental rights best serves the
needs and welfare of each of the children.
The attorneys for the Child[ren…] similarly advised the
[c]ourt that termination of Mother’s parental rights […] were
in the best interests of each child. Specifically, Ms.
McMonagle, who was actually involved in the case since the
[C]hildren first came into care, advised that [C.M.H.] is very
healthy, has her own room, sleeps well, and is involved in
gymnastics. [C.M.H.] is very bonded to the foster parents
and [M.N.R.]. [C.M.H.] is very comfortable with the foster
parents and considers them to be her parents.
See O.C.O. Daughter, 9/23/20, 2-7 (footnotes and citations to the record
omitted).
Regarding M.N.R., the orphans’ court determined further:
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[M.N.R.] has no special medical, emotional or
developmental concerns, except ADHD, which is readily
manageable. Ms. Alego[, M.N.R.’s legal interests counsel,]
advised the [c]ourt that [M.N.R.] “strongly feels” that his
permanent home is with his foster parents. He has his own
bedroom, which was “tremendously organized,” and to
which he was apparently very attached. [M.N.R.] told Ms.
Algeo that he liked to organize things, that his “first mother”
[(Mother)] did not like him to do so, and that he would get
into trouble with her if he tried to organize. He stated that
he “did not want to go back living like that.” [M.N.R.] asked
counsel to tell the [orphans’ court], “I like to organize
things. It would make [Mother] mad. So I need to stay here.
This is my family.”
See O.C.O. Son, 9/23/20, at 6-7.
At the conclusion of the termination hearing, the orphans’ court granted
the Agency’s petitions and terminated Mother’s rights to C.M.H. and M.N.R.
Counsel for Mother timely filed this appeal along with a notice of intent to file
an Anders brief in lieu of a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(c)(4) (providing that, in a
criminal case, counsel may file a record and serve on the judge a statement
of intent to file an Anders/McClendon brief in lieu of filing a statement); see
also Interest of J.T., 983 A.2d 771 (Pa. Super. 2009) (determining that the
Anders procedure set forth in Rule 1925(c)(4) is proper in a termination of
parental rights case).
Counsel now presents for our review the following four issues of
arguable merit:
1. Whether there was inadequate evidence to warrant
terminations under 23 Pa.C.S.A. § 2511(a)(5) and
(8)?
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2. Whether there was inadequate evidence to warrant
terminations under 23 Pa.C.S.A. § 2511(b)?
3. Whether C.M.H. should have been appointed
separate, legal counsel?
4. Whether Mother had sufficient notice of the
termination hearing?
See Mother’s Brief at 13, 15, 19, 21.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)). As noted above, “this Court extended the Anders principles to
appeals involving the termination of parental rights.” In re X.J., 105 A.3d 1,
3 (Pa. Super. 2014) (citation omitted). To withdraw pursuant to Anders,
counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2)
furnish a copy of the [Anders] brief to the [appellant]; and
3) advise the [appellant] that he or she has the right to
retain private counsel or raise additional arguments that the
[appellant] deems worthy of the court's attention.
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 their petition to withdraw a copy of the
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letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must 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.
Santiago, 978 A.2d at 361.
Additionally, this Court must also “conduct an independent review of the
record to ascertain if there appear on its face to be arguably meritorious issues
that counsel, intentionally or not, missed or misstated.” of the record to
discern if there are any additional, non-frivolous issues overlooked by
counsel.” In Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
In the instant matter, counsel has filed a petition to withdraw, certifying
that she has reviewed the case and determined that Mother's appeal is wholly
frivolous. Counsel also has filed a brief that includes a summary of the history
and facts of the case, issues raised by Mother, and counsel's assessment of
why those issues are frivolous, with citations to relevant legal authority.
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Counsel has included in her brief a copy of her letter to Mother, advising her
that she may obtain new counsel or raise additional issues pro se.
Accordingly, counsel has substantially complied with the requirements of
Anders and Santiago. Consequently, we may now examine whether
Mother’s claims have arguable merit, before we conduct our independent
review under Dempster.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court's decision,
the decree must stand. Where a trial court has granted a
petition to involuntarily terminate parental rights, this Court
must accord the hearing judge's decision the same
deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in
order to determine whether the trial court's decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
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resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super.
2004). If competent evidence supports the trial court's findings, we will affirm
even if the record could also support the opposite result. In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
Mother's first two issues pertain to Section 2511 of the Adoption Act,
which governs the termination of parental rights and requires a bifurcated
analysis. In addressing her claims, we are guided by the following:
Our case law has made clear that under Section 2511, the
court must engage in a bifurcated process prior to
terminating parental rights. 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 Section 2511(a). Only if the court determines
that the parent's conduct warrants termination of his or her
parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of
the needs and welfare of the child under the standard of
best interests of the child. One major aspect of the needs
and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close
attention paid to the effect on the child of permanently
severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
Instantly, the orphans’ court terminated Mother's parental rights
pursuant to Sections 2511(a)(5), (8), and (b). We need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as Section
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2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court's decision to terminate
under Section 2511(a)(8) and (b), which provide as follows:
(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:
***
(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.
***
(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. § 2511(a)(8), (b).
We first address whether the orphans’ court abused its discretion by
terminating Mother's parental rights pursuant to section 2511(a)(8).
[T]o terminate parental rights pursuant to 23 Pa.C.S.A §
2511(a)(8), the following factors must be demonstrated:
(1) the child has been removed from parental care for 12
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months or more from the date of removal; (2) the conditions
which led to the removal or placement of the child continue
to exist; and (3) termination of parental rights would best
serve the needs and welfare of the child. Section
2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children's removal by
the court. Once the 12-month period has been established,
the court must next determine whether the conditions that
led to the child's removal continue to exist, despite the
reasonable good faith efforts of the Agency supplied over a
realistic time period. Termination under Section
2511(a)(8) does not require the court to evaluate a parent's
current willingness or ability to remedy the conditions that
initially caused placement or the availability or efficacy of
Agency services
In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (citations and quotations
added).
Here, the court found the Agency satisfied all three elements of the
Section 2511(a)(8) analysis. First, the court determined that the statutory
period of twelve months was established. The Children have been out of
Mother’s care since November 2017 when the Children went to stay with
relatives; and they were formally placed with the foster parents in November
2018. Second, the court determined that the conditions which led to their
removals still exists. Mother was plagued by drug addiction throughout these
proceedings. She denied having a substance abuse issue, and she refused to
submit to an evaluation, nor avail herself to potential treatment. At the time
of the termination hearing, she remained homeless and jobless. Third, the
court determined that termination of Mother’s parental rights would best serve
the needs and welfare of the Children. Mother disappeared from the Children’s
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lives for months on end. Consequently, the Children have turned to their
foster parents for necessary parental care. The Children consider the foster
parents to be their family, referring to them as “mom” and “dad.” And the
foster parents have the full support of Mother’s extended family. Upon our
review, we conclude that that the record supports the court’s determination
that the Agency satisfied its burden under Section 2511(a)(8). We agree with
counsel that Mother’s first issue is frivolous.
Next, we consider whether Mother’s second issue has arguable merit,
namely, whether the Agency satisfied its burden under the second prong of
the termination analysis, Section 2511(b). This Court has explained that:
Subsection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
We direct our analysis to the facts relating to that section. Here, the
orphans’ court determined:
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There is no apparent bond between [C.M.H.] and Mother.
As stated previously, [C.M.H.] has not lived with [Mother]
since she was twenty-three (23) months old. Further, since
the time that the [C]hildren were placed in the foster home,
there was a ten-month period when [Mother] had no contact
with the [Children.] The [Children] have, however, formed
a parent-child bond with the foster parents[.] […] The foster
parents also have the full support of [Mother’s] extended
family, with whom the [C]hildren also continue to have a
relationship. […] There is no evidence or suggestion that
[C.M.H.] would suffer any irreparable harm due to the
termination of [Mother’s] parental rights.
O.C.O. Daughter, at 16-17 (citations omitted).
The court similarly determined that M.N.R. had no apparent bond with
Mother, and that no irreparable harm would come to M.N.R. upon Mother’s
termination. See O.C.O. Son, at 16-17. However, given that M.N.R. was
appointed separate legal counsel, the orphans’ court observed that M.N.R. told
his legal counsel that he wished to live with his foster parents, stating that
they were his family. Id. at 16 (citation to the record omitted). As there is
competent evidence in the record to support the orphans’ court
determinations under Section 2511(b), we agree with counsel’s conclusion
that Mother’s second issue is frivolous.
In the third issue of arguable merit, we address whether four-year-old
C.M.H. should have been appointed separate legal counsel. In contested
involuntary termination proceedings, the representation of the child's legal
interest is indispensable. 23 Pa.C.S.A. § 2313(a). Two Supreme Court cases
inform our examination of the GAL’s representation of C.M.H.'s legal interest.
In In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (plurality), and
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subsequently in In re T.S., 192 A.3d 1080, 1092 (Pa. 2018), the High Court
declared that Section 2313(a) compels the family court to appoint counsel to
represent a child's legal interest in every contested involuntary termination
proceeding. The Supreme Court explained, “appointment of client-directed
counsel optimizes the protection of the child's needs and welfare, which form
the ultimate issue that the trial court must resolve before granting the
[termination of parental rights].” In re Adoption of L.B.M., supra at 180.
In many cases, the GAL – typically a holdover from the dependency
proceedings – will continue to represent the child during the termination
hearing. The GAL may continue this representation, in proper accordance with
Section 2313(a), so long as the child’s best interests do not conflict with the
child’s legal interests – i.e., the child’s preferred outcome of the termination
proceedings. See id.
However, there can be no conflict when the child, for reasons of age or
otherwise, is unable to express a preferred outcome. As the High Court
observed in T.S., Section 2313(a) does not require the appointment of
separate counsel to represent “child’s unknowable preference.” T.S., supra,
at 1090. The question is whether the child is able to express “a subjective,
articulable preference.” Id. at 1089.
Here, the GAL continued to represent four-year-old C.M.H. during the
termination proceedings. The orphans’ court determined C.M.H. was too
young to articulate a preferred outcome of the termination proceeding, and so
the court did not appoint separate counsel. Moreover, the court observed that
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C.M.H. considered the foster parents to be her family, and that C.M.H. was
younger than two years old when she was last in Mother’s care.
Insofar as we can discern, counsel advanced this issue of “arguable
merit” in her Anders brief, because the 8-year-old M.N.R. was appointed
separate, legal counsel, whereas the C.M.H. was not. Although M.N.R. was
appointed separate counsel, he actually expressed that his preferred outcome
was termination. Thus, there was no conflict between M.N.R.’s best interests
and legal interests, and so M.N.R.’s separate appointment of legal counsel was
ultimately superfluous. Just because M.N.R.’s separate appointment was
superfluous, however, does not render C.M.H.’s singular representation
deficient. Therefore, we agree with counsel’s conclusion that Mother’s third
issue is frivolous.
The fourth and final issue of arguable merit is whether the Agency
provided Mother with proper notice of the termination hearing. Section
2513(b) of the Adoption Act provides, in relevant part: “At least ten days’
notice shall be given to the parent…whose rights are to be terminated, by
personal service or by registered mail to his or their last known address or by
such other means as the court may require.” 23 Pa.C.S.A. § 2513(b)
(emphasis added). Moreover, “if service cannot be made under the applicable
rule the plaintiff may move the court for a special order directing the method
of service.” 231 Pa. Code § 430(a). When a movant in a termination of
parental rights proceeding is unable to obtain actual service on a parent,
service by registered mail to the parent’s last known address requires a good
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faith effort to identify the correct address for the parent. See In re Maynard,
473 A.2d 1084, 1086 (Pa. Super. 1984); see also In re Adoption of K.G.M.,
845 A.2d 861 (Pa. Super. 2004).
Here, all parties and the court knew Mother was homeless. After several
failed attempts to verify Mother’s address, the Agency obtained an order for
alternate service by publication. Importantly, Mother’s counsel averred at the
termination hearing that Mother had actual knowledge of the hearing, that
Mother had been in contact with counsel via phone and email (although not in
the days immediately prior to the hearing), and that Mother informed counsel
of her attention to appear. The court also observed that Mother had an active
bench warrant, which might explain her absence. Given the Agency’s good
faith effort to locate Mother, and counsel’s representations at the hearing, we
conclude Mother had proper notice. We agree with counsel that this final issue
is also frivolous.
In sum, we conclude that the aforementioned issues had no arguable
merit. And upon our review of the record pursuant to Dempster, supra, we
discern no additional, non-frivolous issues overlooked by counsel. We agree
with Mother’s counsel that an appeal in this case is wholly frivolous.
Accordingly, we grant counsel’s application to withdraw and affirm the
termination orders.
Orders affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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