In the Interest of: G.J.N., a minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.J.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.N. : No. 2034 MDA 2016
Appeal from the Order Entered November 22, 2016
In the Court of Common Pleas of Dauphin County
Orphans’ Court at No(s): 88-AD-2016,
CP-22-DP-0000085-2015
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 17, 2017
M.N. (Mother) appeals from the order and decree entered November
22, 2016, in the Court of Common Pleas of Dauphin County, which
terminated involuntarily Mother’s parental rights to her minor son, G.J.N.
(Child), born in January 2014.1 Also before us is an application for leave to
withdraw and brief filed by Mother’s counsel pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
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* Retired Senior Judge assigned to the Superior Court.
1 The order and decree also changed Child’s permanency goal to adoption
with respect to Mother. The court entered a separate order and decree that
same day, which changed Child’s permanency goal to adoption and
terminated parental rights involuntarily with respect to Child’s father, R.H.
(Father). Father has not filed a brief in connection with this appeal, nor has
he filed his own separate appeal.
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A.2d 349 (Pa. 2009). Upon review, we grant counsel’s application for leave
to withdraw and affirm the order and decree.
We summarize the relevant factual and procedural history of this
matter as follows. Dauphin County Social Services for Children and Youth
(the Agency) first became involved with Mother in September 2013, prior to
Child’s birth, due to concerns regarding Child’s four older siblings. N.T.,
11/21/2016, at 5-8. Child’s siblings were removed from Mother’s care after
Mother was incarcerated on a bench warrant relating to a simple assault
charge. Id. at 5, 7-8. In addition, the Agency learned of reports that
Mother was squatting in her home, and that two of Child’s older siblings
were dirty, smelled, and were suffering from insect bites. Id. at 8. Mother
was released from incarceration in November 2013, about two months prior
to Child’s birth. Id. at 9.
Initially, Child remained in Mother’s care. For approximately the first
year of Child’s life, he and Mother moved from place to place, while the
Agency provided Mother with services in an effort to reunify her with Child’s
older siblings. Id. at 9-41. In March 2015, Mother was evicted from her
housing at the YMCA, due to “breach[ing] the confidentiality of another
resident,” among other things. Id. at 40-41. The Agency filed a
dependency petition with respect to Child on April 10, 2015, and he was
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adjudicated dependent and removed from Mother’s care by orders dated
April 30, 2015.2 Id. at 44-46; Exhibits 5 and 6.
On September 19, 2016, the Agency filed a petition to terminate
involuntarily Mother’s parental rights to Child. The orphans’ court conducted
a termination hearing on November 21, 2016. Following the hearing, on
November 22, 2016, the court entered an order and decree terminating
Mother’s parental rights. Mother timely filed a notice of appeal on December
12, 2016, which included a statement of counsel’s intent to file an
application for leave to withdraw and Anders brief pursuant to Pa.R.A.P.
1925(c)(4). Mother’s counsel filed an application for leave to withdraw and
Anders brief in this Court on March 10, 2017.
Before reaching the merits of Mother’s appeal, we first must address
counsel’s application for leave to withdraw. See Commonwealth v. Rojas,
874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith,
700 A.2d 1301, 1303 (Pa. Super. 1997)) (“‘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.’”). “In In re V.E., 417
Pa.Super. 68, 611 A.2d 1267 (1992), this Court extended the Anders
principles to appeals involving the termination of parental rights.” In re
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2 Mother went on to relinquish her parental rights to two of Child’s older
siblings voluntarily. N.T., 11/21/2016, at 6-8. The remaining two siblings
are in the custody of their father. Id. at 8.
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X.J., 105 A.3d 1, 3 (Pa. Super. 2014). 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 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.
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In the instant matter, counsel filed an application for leave to
withdraw, certifying that she reviewed the case 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 supported by citations to the
record, a potential issue that could be raised by Mother, and counsel’s
assessment of why that issue is meritless, with citations to relevant legal
authority.3 Counsel also has provided us with a copy of her letter to Mother,
advising her that she may retain new counsel or raise additional issues pro
se.4 Accordingly, counsel has complied with the requirements of Anders
and Santiago. We, therefore, may proceed to review the issue outlined in
the Anders brief. In addition, we must “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).
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3 Counsel’s application for leave to withdraw and Anders brief include
certificates of service, indicating that counsel provided copies to Mother.
4 Counsel’s initial letter to Mother included the incorrect mailing address for
the Superior Court Prothonotary’s Office. Accordingly, on June 16, 2017,
this Court entered a per curiam order directing counsel to provide Mother
with a new letter including the correct address, and to provide this Court
with a copy of that letter within ten days. However, counsel failed to timely
file a new letter. Counsel did not file a new letter until July 10, 2017, after
our Prothonotary’s Office contacted her in an effort to discern why she had
failed to comply with our order. On July 26, 2017, Mother filed a response
pro se.
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Counsel’s Anders brief raises the following issue for our review. “Did
the [orphans’] court abuse its discretion, or commit an error of law by
determining it was in [Child’s] best interest to have Mother’s parental rights
terminated by clear and convincing evidence?”5 Anders Brief at 8.
We address this issue mindful of our well-settled standard of review.
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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
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
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5 Although this issue mentions only “best interests” pursuant to 23 Pa.C.S.
§ 2511(b), Mother’s argument section focuses primarily on an analysis of
subsection 2511(a). Pursuant to our duty in Flowers, we will address both.
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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) (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of subsection 2511(a), as well
as subsection 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 subsections 2511(a)(2) and (b), which provides 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:
***
(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.
***
(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
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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)(2), (b).
We first address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to subsection 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
Instantly, the orphans’ court found that Child has been removed from
Mother’s care since April 30, 2015, and that Mother failed to remedy the
conditions which led to Child’s removal. Orphans’ Court Opinion, 1/31/2017,
at 11. The court emphasized that Mother made minimal progress in terms
of completing her permanency objectives and acquiring appropriate
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parenting skills, and that Mother defied the service providers attempting to
help her.6 Id.Our review of the record supports the findings of the orphans’ court.
During the termination hearing, the Agency presented the testimony of
caseworker, Samantha Weirich. Ms. Weirich testified that Mother’s
reunification objectives included maintaining communication with the Agency
caseworker, obtaining and maintaining an adequate and legitimate source of
income to provide for herself and for Child, maintaining a violence-free
relationship, demonstrating an ongoing commitment to Child, completing a
parenting program, obtaining and maintaining safe and sanitary housing for
herself and for Child, and working with family reunification services. N.T.,
11/21/2016, at 60-66.
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6 At the conclusion of the termination hearing, the orphans’ court found that
the Agency met its burden of proof “beyond a preponderance of the
evidence, in fact, for me beyond a reasonable doubt, … I’m charged with
making sure that the goal has been met, the preponderance of the evidence,
and we’re well beyond that with the facts that were presented here.” N.T.,
11/21/2016, at 158-59. We caution the court that the correct burden of
proof in these matters is clear and convincing evidence. In re R.N.J., 985
A.2d 273, 276 (Pa. Super. 2009). Nonetheless, because the court found
that the evidence supported the termination of Mother’s parental rights
beyond a reasonable doubt, we conclude that any error on the part of the
court was harmless. See Commonwealth v. Wright, 494 A.2d 354, 364
(Pa. 1985) (“Three standards of proof are generally recognized, ranging
from the preponderance of the evidence standard employed in most civil
cases, to the clear and convincing standard reserved to protect particularly
important interests in a limited number of civil cases, to the requirement
that guilt be proved beyond a reasonable doubt in a criminal prosecution.”
(internal citations and quotation marks omitted)).
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Ms. Weirich testified that Mother made at least some progress with
respect to several of these objectives. Specifically, Mother maintained
consistent communication with Ms. Weirich. Id. at 60. Mother also obtained
several jobs during Child’s dependency, although she failed to maintain any
of those jobs for longer than two months. Id. Concerning parenting
programs, Ms. Weirich testified that Mother completed the YMCA’s parents
support and education program, but failed to complete the Pressley Ridge in-
home direct parenting program. Id. at 64. Ms. Weirich did not believe that
the YMCA program was sufficient to provide Mother with appropriate
parenting skills, because it was “more of a peer-based parenting skills class
versus what Pressley Ridge was working on which was a lot of like in-home
direct parenting … it was peer directed.” Id. Mother had housing at the
time of the termination hearing, although Mother’s lease was in the name of
Child’s maternal grandmother, and the Agency did not know if Child would
be permitted to stay there. Id. at 65.
With respect to Mother’s other objectives, Ms. Weirich testified that
Mother made little, if any, progress. Ms. Weirich testified that Mother failed
to maintain a violence-free relationship. Id. at 62. While Mother did
complete a domestic violence program at the YMCA, she continued to pursue
either physically or verbally abusive relationships. Id. at 62-63. Mother
maintained at least three such relationships since 2013, including a
relationship with a man named J.L., a relationship with a “male in Lancaster
County,” and a relationship with Father. Id. Ms. Weirich further testified
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that Mother failed to demonstrate an ongoing commitment to Child. Ms.
Weirich emphasized that Mother often needed to be redirected during her
visits with Child and paid little attention to him. Id. at 63. While Mother’s
parenting skills showed improvement over “the past couple of months,” Ms.
Weirich remained concerned for Child’s safety if he were to be left
unsupervised in Mother’s care. Id. at 64. Finally, Ms. Weirich testified that
Mother failed to work with family reunification services. Ms. Weirich
explained that Mother was discharged unsuccessfully from three family
reunification programs between June 2014 and April 2016. Id. at 54, 65-66.
Ms. Weirich explained, “it’s unknown how [Mother] will react when [visits
are] unsupervised or in her home due to the fact that she did not want
reunification services, … we can’t say whether or not she was able to grow
any more in her parenting abilities.” Id. at 64-65.
Thus, the record establishes that Mother is either unwilling or unable
to parent Child, and that Mother will not be capable of parenting Child at any
point in the foreseeable future. By the time of the termination hearing on
November 21, 2016, the Agency had been involved with Mother with respect
to Child, or with respect to Mother’s older children, for approximately three
years. Throughout that time, Mother continued to suffer from unstable
housing and abusive relationships. In addition, despite completing a
parenting program, Mother’s parenting skills remained a concern. The
orphans’ court did not abuse its discretion by concluding that Child’s life
should not be put on hold any longer. As this Court has stated, “a child’s life
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cannot be held in abeyance while a parent attempts to attain the maturity
necessary to assume parenting responsibilities. 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.” In re Adoption of
R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to subsection 2511(b). We
have discussed our analysis under subsection 2511(b) as follows.
[Sub]section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term ‘bond’ is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court found that terminating Mother’s parental
rights would serve Child’s needs and welfare. Orphans’ Court Opinion,
1/31/2017, at 12. The court explained that Child is bonded with his foster
parents, and that it would be detrimental for Child to be removed from their
care. Id. at 13. In contrast, the court continued, there was no evidence
during the termination hearing that Child has a bond with Mother, or that it
would be detrimental to Child if that bond were severed. Id.
We again conclude that the record supports the findings of the
orphans’ court. With respect to Child’s needs and welfare, Ms. Weirich
testified that Child has resided in a pre-adoptive foster home since July
2015. N.T., 11/21/2016, at 71. Ms. Weirich explained that Child’s foster
father works from home and cares for him during the day. Id. at 72.
Child’s relationship with his foster father is “fantastic…. He goes to his foster
father for support. They throw balls [with] each other. They run around in
the grass. [Child] interacts really well with him.” Id. at 71-72. Child also
has a good relationship with his foster mother. Id. at 72. “She does work
outside the home, but at visits she’s always loving, she’s always giving hugs,
things like that…. She also looks at him lovingly. He goes to her for support,
[h]e shows her things that he finds around the house.” Id. Ms. Weirich
agreed that Child treats his foster parents as his parents. Id. at 72-73.
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Concerning Mother, Ms. Weirich testified that Child’s relationship with
her “seems okay.” Id. at 73. Ms. Weirich explained,
Like he’ll run. He likes to play with her. But he’s not upset
when he leaves her. And most recently when we had case aides
to pick [Child] up to transport him to visits he doesn’t want to
go. He fights the case aide to get into the car. But once he’s in
the car, he’s fine. So he knows where he’s going, he’s fine when
he’s there, but he doesn’t want to go.
Id. Ultimately, Ms. Weirich opined that it would be in Child’s best interest to
terminate Mother’s parental rights. Id.
Thus, the record confirms that Child is bonded with his pre-adoptive
foster parents. While Child has a relationship with Mother, he is resistant to
attending visits and does not appear to have a parent/child bond with her.
It was within in the discretion of the orphans’ court to conclude that Child
will not suffer any detriment if his relationship with Mother is ended, and
that terminating Mother’s parental rights will best serve Child’s needs and
welfare.
Accordingly, our independent review of Mother’s issue demonstrates
that it does not entitle her to relief. Moreover, our review of the record does
not reveal any non-frivolous issues overlooked by counsel.7 See Flowers,
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7 “When a pro se or counseled brief has been filed within a reasonable
amount of time, … the Court should then consider the merits of the issues
contained therein and rule upon them accordingly.” Commonwealth v.
Baney, 860 A.2d 127, 129 (Pa. Super. 2004). In her pro se response,
Mother claims that she “did not get a chance to talk” at the hearing.
Response, 7/26/2017. Additionally, she states that her witnesses and
Child’s father did not get “a chance to talk either.” Id. However, Mother
(Footnote Continued Next Page)
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113 A.3d at 1250. We therefore grant counsel’s application for leave to
withdraw, and we affirm the November 22, 2016 order and decree.
Application for leave to withdraw granted. Order and Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
(Footnote Continued) _______________________
testified at the hearing, see N.T. , 11/21/2016, at 137-49, and her attorney
indicated that Mother was the only witness she wished to call, see id. at
137, 150. Thus, we conclude that there is no additional non-frivolous issue
to consider on appeal.
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