In Re: W.Z.F., Appeal of: Z.F. ( 2021 )

J-A06020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.Z.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.F., NATURAL FATHER :
:
:
:
:
: No. 796 WDA 2020
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000007-2019
IN RE: X.J.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.F., NATURAL FATHER :
:
:
:
:
: No. 797 WDA 2020
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000008-2019
IN RE: A.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.F., NATURAL FATHER :
:
:
:
:
: No. 798 WDA 2020
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
CP-33-DP-0000006-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
J-A06020-21
MEMORANDUM BY LAZARUS, J.: FILED: APRIL 5, 2021
Z.F. (Father) appeals nunc pro tunc from the trial court’s orders, entered
in the Court of Common Pleas of Jefferson County, changing the permanency
goals of his three minor children, W.Z.F. (born February 2016), X.J.F. (born
June 2017) and A.S.1 (born August 2012) (collectively, Children), from “return
home” to adoption. Counsel has also filed an Anders2 brief and accompanying
petition to withdraw on appeal. After careful review, we affirm and grant
counsel’s petition to withdraw.
On February 6, 2019, Jefferson County Children and Youth Services
(CYS) filed an application for emergency protective custody of Children
following concerns about Children’s mother’s3 mental health, Father’s and
Mother’s (Parents) regular drug use, and Parents’ inability to properly care for
Children’s needs and well-being. N.T. Adjudication Hearing, 2/27/19, at 4-5.
Parents admitted to using methamphetamines while caring for Children. Id.
at 5-6. The trial court granted an emergency protective custody order and,
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1 The record indicates that Father is not A.S.’s biological father; A.S.’s
biological father was deemed “unknown” at the permanency hearings. See
N.T. Permanency Hearing, 5/29/19, at 17. However, A.S. calls Father her
“dad” and Father considers A.S. his daughter. Id. Despite the fact that Father
may not have legal standing to appeal this goal-change decision with respect
to A.S., we nonetheless analyze it in the interests of justice.
2 Anders v. California, 386 U.S. 738 (1967).
3 Mother is not a party to this appeal.
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following a hearing on February 11, 2019, a shelter order was also entered.4
Children were initially placed in foster care, and then were moved to a kinship
home with Father’s sister-in-law, where they remain to date.5 After an
adjudicatory hearing, Children were declared dependent on February 27,
2019. CYS set the following service plan goals for Father: attend drug and
alcohol and mental health counseling; obtain suitable housing; attend anger
management classes; and maintain employment.
The court held permanency hearings in May, August, and December of
2019, and, again, in June 2020.6 At the May 2019 permanency hearing, the
court determined that Children remained dependent, but noted that Father
had been successfully discharged from St. Joseph’s inpatient treatment
facility, see infra n.5., was employed, and that Father’s home was
appropriate for Children. N.T. Permanency Hearing, 5/29/09, at 4-6.7 Due to
Father’s notable progress, CYS put in place an 11-week reunification plan to
have Children placed returned home. Id. at 7, 13. A bonding assessment
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4Father tested positive for amphetamine, methamphetamine, marijuana, and
ecstasy on the day of the shelter care hearing. Id. at 6.
5Father participated in the hearing by telephone. Id. at 3. At the time, he
was in in-patient drug and alcohol treatment at St. Joseph’s. Id. at 6.
6The March 2019 hearing was continued to June 2019 due to the global
COVID-19 pandemic.
7 At that time, Father was having supervised visits with Children for
approximately three hours per week. Id. at 7.
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was also conducted on Father; the assessment noted that while reunification
remained the appropriate goal, the reporting psychologist also expressed
concerns about Father’s drug issue and highlighted the need for plan
compliance and therapy.
At the next permanency hearing held in August 2019, the court
recognized that Father had relapsed in July and had failed to provide clean
drug screens prior to scheduled visits.8 As a result, visits were suspended on
July 11, 2019. N.T. Permanency Hearing, 8/28/19, at 5. CYS also noted that
Father had not been consistent with telephone contact with Children. Id. at
6. The court noted that Father was participating in drug and alcohol
counseling, but had not enrolled in recommended in-patient rehabilitation.
Id. at 8. However, the court reiterated that the “main goal is [still]
reunification.” Id. at 23.
At the December 2019 permanency hearing, Father had had only one
two-hour visit since the last hearing due to his attending a rehabilitation
program. Id. at 5. While Father had successfully completed his rehabilitation
program, he still had not participated in drug and alcohol counseling, mental
health counseling, or anger management. CYS noted that Father was in the
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8 In fact, on the day of the August 28, 2019 hearing, Father tested positive
for methamphetamines, amphetamines, and ecstasy. Id. at 18.
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process of setting up his counseling and anger management sessions, but was
experiencing difficulty securing transportation. Id. at 6-7.9
On June 18, 2020, Father failed a drug test —less than one week before
the next scheduled permanency hearing.10 N.T. Permanency Hearing,
6/24/20, at 5-6. At the June 24, 2020 permanency hearing, the court noted
that Father was inconsistently attending his drug and alcohol counseling—
missing as many as 24 sessions—and that Father had declined to attend
recommended inpatient rehabilitation. Id. at 10, 12, 42. Father refused to
sign a release for CYS to obtain Father’s hospital records when he had
allegedly been admitted for a drug overdose, claiming “that’s not information
[they] needed.” Id. at 14. Finally, Father was facing an impending eviction.
Father testified that he had tested negative for drugs 18 times since the prior
hearing in December 2019, that he had completed anger management
counseling, and attempted to explain the reasons for missing his counseling
sessions (e.g., sleeping in, death of father, and depression). Id. at 53.
Finally, Father denied having failed the June drug test and using drugs at that
time.11 At the conclusion of the hearing, CYS recommended the goal be
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9 As Parents were faced with eviction at the end of the month, the court
entered an order permitting Parents to remain in public housing for an
additional three months. Id. at 15.
10 Father tested positive for methamphetamines at the June 2020 drug test.
Id. at 6.
11CYS caseworker Emily Feicht testified that prior to the COVID-19 pandemic,
Parents were having two-hour, supervised visits with Children and half-hour
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changed to adoption, noting that Children have been thriving in kinship care,
an adoptive resource, and the need for Children to achieve permanency in
their lives. Id. at 18, 35-36.
The trial court changed Children’s goals to adoption, noting that Parents
had failed, over the course of 15 months and 29 days, to accomplish their
service goals, despite reasonable efforts by CYS to finalize the permanency
plans. Id. at 65. The court also noted that Father’s missed sessions and
failure to remain drug-free inhibited permanency for Children, which they
deserve. Id. at 65-66. Thus, on June 25, 2020, the court entered three
orders changing Children’s permanency goal to adoption. Father sought and
was granted leave to file a nunc pro tunc notice of appeal. Father also filed a
timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
He presents one issue for our consideration:
“Whether the lower court erred in changing the permanency placement goal
to adoption?” Anders Brief, at 4.
Before reaching the merits of Father’s issue, we must first address
whether counsel has properly sought to withdraw from this appeal. In In re
J.D.H., 171 A.3d 903, 906 (Pa. Super. 2017), this Court extended the Anders
procedure to appeals from goal change orders, even in the absence of an
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video calls three times a week. Id. at 7. She testified the in-person visits
went “pretty well,” id., but that CYS was concerned that Parents were not
feeding Children during dinner time. Id. at 7-8. However, since COVID, there
had only been one visit with Children. Id. at 9.
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involuntary termination decree. Pursuant to Anders, certain requirements
must be met, and 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, 3 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third prong, this Court has held
that counsel must “attach to [his or her] petition to withdraw a copy of the
letter sent to [his or her] client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005). In addition,
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, it appears that counsel has complied with the procedural
requirements of Anders and its progeny. Counsel filed a petition to withdraw,
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certifying that he has reviewed the case and determined that Father’s appeal
is frivolous. Counsel has also filed a brief, which includes a summary of the
history and facts of the case, a potential issue that could be raised by Father,
and counsel’s assessment of why that issue is frivolous, with citations to the
record and to relevant legal authority. See Santiago, supra. Finally, counsel
has sent Father a letter advising him of his rights pursuant to Millisock,
supra.12 Because counsel has complied with the requirements of Anders and
Santiago, we must now “conduct an independent review of the record to
discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (footnote omitted).
In his Anders brief, counsel contends that the trial court erred in
changing Children’s permanency goal to adoption where such a change is not
in Children’s best interests. Anders Brief, at 8. With regard to goal change,
our standard of review is well-settled:
In cases involving a court’s order changing the placement goal . .
. to adoption, our standard of review is [for an] abuse of
discretion. To hold that the trial court abused its discretion, we
must determine its judgment was “manifestly unreasonable,” that
the court disregarded the law, or that its action was “a result of
partiality, prejudice, bias or ill will.” While this Court is bound by
the facts determined in the trial court, we are not tied to the
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12 Although counsel did not initially attach a copy of this letter to his petition
to withdraw, see Superior Court Order, 11/25/20, on November 16, 2020,
counsel sent Father the required letter attaching all relevant Anders
documents and notifying Father of his right to hire private counsel, proceed
on his own, or raise any issues he deems meritorious to the Court. See Appeal
of Goal Change Letter by J.D. Ryan, Esquire, 11/16/20.
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court’s inferences, deductions and conclusions; we have a
“responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has applied the
appropriate legal principles to that record.”
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted). “The
trial court must focus on the child[ren] and determine the goal[s] with
reference to the child[ren]’s best interests, not those of the parents.” Id. at
978. Moreover, “[s]afety, permanency, and well-being of the child[ren] must
take precedence over all other considerations.” Id. (citation omitted;
emphasis in original).
At each permanency hearing, the court shall determine, among other
things, “the continuing necessity for and appropriateness of the placement” of
a child, as well as whether efforts to reunify the family need to be made or
should continue being made, where aggravated circumstances exist. See 42
Pa.C.S. §§ 6351(f)(1), (9). When parents have cooperated with the agency,
achieved the goals of their permanency plans, and alleviated the
circumstances that necessitated the child’s original placement, the agency
should continue to put forth efforts to reunite the child with his parents. In
re A.K., 906 A.2d 596 (Pa. Super. 2006). However, “when the child welfare
agency has made reasonable efforts to return a . . . 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.” In re N.C., 909
A.2d 818, 823 (Pa. Super. 2006).
In In re N.C., supra, mother argued on appeal that the trial court erred
in changing her children’s placement goal to adoption where she had largely
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complied with the goals of her permanency plan, alleviated the circumstances
that had led to the children’s original placement, and had diligently worked to
be reunified with children. Id. at 824. On appeal, our Court noted that the
focus of dependency proceedings is on the children’s safety and well-being,
not parental conduct. Where mother’s parenting skills, including her
judgment, remained problematic, and where mother refused to acknowledge
the significant amount of time her children had been in placement and the
damage associated with that placement, our Court concluded that the trial
court did not abuse its discretion in changing the placement goal. Id. at 827-
28.
Similarly, here, after careful review of the record, we discern no abuse
of discretion in the trial court’s decision to change Children’s permanency
goals from “return home” to adoption where: Father made minimal progress
toward alleviating the circumstances which necessitated Children’s original
placement; he relapsed with drug use; he refused to attend recommended in-
patient treatment; he missed more than one-third of his alcohol and drug
counseling sessions; and he failed to take advantage of telephonic visits with
Children. In re N.C., supra. As the trial court astutely noted, “Father’s
conduct during the first half of 2020 indicated that sobriety and reunification
were no longer paramount in his mind.” Trial Court Opinion, 9/22/20, at 2.
Under such circumstances, goal change was clearly in the best interests of
Children. In re S.B., supra.Orders affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2021
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