In Re: B.A.D., a Minor Appeal of: B.A.D., Mother ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.A.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.A.D., MOTHER No. 428 MDA 2015
Appeal from the Order and Decree entered January 29, 2015,
in the Court of Common Pleas of Centre County,
Orphans’ Court, at No(s): 4012-2014
IN RE: D.M.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.A.D., MOTHER No. 429 MDA 2015
Appeal from the Order and Decree entered January 29, 2015,
in the Court of Common Pleas of Centre County,
Orphans’ Court, at No(s): 4014-2014
IN RE: H.R.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.A.D., MOTHER No. 430 MDA 2015
Appeal from the Orders and Decrees entered January 29, 2015,
in the Court of Common Pleas of Centre County,
Orphans’ Court, at No(s): 4013-2014
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 20, 2015
B.A.D. (“Mother”) appeals from the orders and decrees involuntarily
terminating her parental rights to her three minor children: B.A.D., a female
born in July of 2008; H.R.D., a female born in February of 2010; and
* Retired Senior Judge assigned to the Superior Court.
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D.M.D., a male born in August of 2011 (collectively, “the Children”).1
Additionally, Mother’s counsel has filed a petition for leave to withdraw as
counsel and brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Upon review, we grant counsel’s petition to withdraw and affirm the orphans’
court’s orders and decrees.
The orphans’ court summarized the relevant factual history as follows:
Centre County Children and Youth Services (“CYS”) became
involved with the family shortly after the birth of [Mother’s]
firstborn child, B.A.D. . . . CYS has been involved with the
family due to concerns regarding home conditions, hygiene, and
physical abuse, as well as general issues with [Mother’s] mental
health, parenting skills, housing and homelessness. A
Dependency Petition was filed on July 19, 2013, and an Order of
Adjudication and Disposition finding the three children
dependent was entered on August 6, 2013. The [C]hildren were
permitted to remain in the care of [Mother]. On August 27,
2013, only twenty-one days later, the [c]ourt entered an Order
for Emergency Protective Custody in response to an Application
for Emergency Protective Custody filed by CYS. As such, the
[C]hildren were placed in foster care. A Disposition Hearing was
held on September 24, 2013. As a result of the hearing, the
[c]ourt made a finding of abuse with respect to an injury to
H.R.D., and the [C]hildren remained in foster care.
Orphans’ Court Opinion, 3/19/15, at 1-2.2
On November 25, 2014, CYS filed petitions to involuntarily terminate
Mother’s parental rights to the Children. A termination hearing was held on
1
The Children’s father, T.M., voluntarily relinquished his parental rights to
the Children at the start of the termination hearing. T.M. is not a party to
this appeal.
2
The orphans’ court filed a separate opinion for each of the three Children.
However, these opinions differ only slightly, such that separate citations are
not required.
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January 27, 2015. On January 29, 2015, the orphans’ court entered its
orders and decrees terminating Mother’s parental rights. Mother timely filed
notices of appeal on February 25, 2015, along with concise statements of
errors complained of on appeal. On May 29, 2015, Mother’s counsel filed a
petition for leave to withdraw as counsel, as well as a brief pursuant to
Anders, supra.
Before reaching the merits of the issue raised in the Anders brief, we
first must address counsel’s request to withdraw. See Commonwealth v.
Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (“‘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.’”) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)). 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
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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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the present appeal, Mother’s counsel has filed a petition with this
Court for leave to withdraw, certifying that he has reviewed the case and
determined that Mother’s appeal is wholly frivolous. Counsel has filed a brief
that includes a summary of the history and facts of the case, with citations
to the record; a point of arguable merit; and counsel’s analysis of why he
has concluded that the appeal is frivolous, with citations to legal authority
supporting that conclusion. Counsel has certified that he served Mother with
a copy of the Anders brief, and attached a copy of his letter to Mother
advising her that she may obtain new counsel or raise additional issues pro
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se.3 Accordingly, counsel has complied with the requirements of Anders
and Santiago. We therefore proceed to an independent review of the
record, and the issue that counsel states arguably supports an appeal.
Counsel’s Anders brief raises the following issue for our review:
“Whether the orphans’ court committed an abuse of discretion or error of
law when it concluded that [CYS] established grounds for termination of
parental rights under 23 Pa.C.S.A. §[]2511(a)(2), (a)(5), and/or (a)(8)?”
Anders Brief at 8.
We consider 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.
3
Mother has not responded to counsel’s application to withdraw.
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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) (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Sections 2511(a)(2), (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 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,
we analyze the court’s decision to terminate under Section 2511(a)(8) 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:
***
(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.
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***
(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(a)(8) and (b).
We first address whether the trial court abused its discretion by
terminating Appellants’ parental rights pursuant to Section 2511(a)(8).
In order to 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 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Notably, termination under Section 2511(a)(8), does not require an
evaluation of [a parent’s] willingness or ability to remedy the conditions that
led to placement of her children.” In re Adoption of R.J.S., 901 A.2d 502,
511 (Pa. Super. 2006) (citations omitted).
Instantly, the orphans’ court concluded that the Children have been
out of Mother’s care for greater than 12 months, and that Mother has failed
to remedy the conditions resulting in their removal. Orphans’ Court Opinion,
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3/19/2015, at 5. The court also found that termination of Mother’s parental
rights would best serve the needs and welfare of the Children. Id. at 5-6.
After a thorough review of the testimony presented during the
termination hearing, we conclude that the orphans’ court did not abuse its
discretion. Ms. Raelee Hulek testified that she is a reunification counselor for
the Centre County Youth Service Bureau’s reunification program. N.T.,
1/27/15, at 8. Ms. Hulek explained that the conditions which resulted in the
removal of the Children from Mother’s care have not been remedied. Id. at
44. Specifically, Mother has not been able to secure appropriate housing for
the Children, nor has she been able to secure income sufficient to care for
them. Mother reported to Ms. Hulek that she is residing in a three-bedroom
home with her parents, as well as two other individuals. Id. at 13-14.
Critically, one of those individuals is Mother’s boyfriend, C.S., who has a
history of engaging in inappropriate contact with minors, and who recently
was discharged unsuccessfully from a sex offender treatment program. Id.
at 11, 19-20. At the time CYS filed its termination petition, Mother was
working at a part-time cleaning job. Id. at 15-16, 35-36. By the time of
the termination hearing, Mother no longer was employed. Id. at 15-16.
Ms. Hulek further testified that Mother never progressed beyond
biweekly supervised visitation with the Children, that Mother was “frequently
overwhelmed” even during these limited visits, and that Mother displayed
poor parenting skills. Id. at 21-28. For example, Ms. Hulek described a
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visit during which the Children were playing outside, near a busy road. Id.
at 25-26. Ms. Hulek requested on multiple occasions that Mother position
herself so that she could prevent D.M.D. from running out into the road if he
attempted to do so. Id. at 26-27. Mother declined these requests, and only
“angle[d] her back slightly so she had a little bit of a more clear view of the
busy road . . . .” Id. at 27. When D.M.D. attempted to run toward the
road, it was Ms. Hulek who was there to stop him. Id. at 39. Ms. Hulek
concluded that Mother is unable to ensure the safety of the Children, or to
meet their basic needs. Id. at 33.
Accordingly, the record supports the conclusion of the orphans’ court
that the Children have been out of Mother’s care for greater than 12 months,
and that Mother has failed to remedy the conditions resulting in their
removal. Moreover, it is clear that termination of Mother’s parental rights
would meet the needs and welfare of the Children. CYS caseworker Robin
Cain testified that the Children reside together in a preadoptive foster home.
Id. at 59. The Children have “a very strong and appropriate bond” with
their foster parents and, when the Children are upset, they seek out their
foster parents for the comfort that they need. Id. at 57-58. Ms. Hulek
agreed that the Children are very comfortable and affectionate with their
foster parents, that the Children seek out the foster parents when they need
something, and that the Children call the foster parents “mother and father.”
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Id. at 44-45. The Children have been “bonding with them appropriately.”
Id. at 45.
Although Mother does not raise a claim regarding Section 2511(b), we
recognize:
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, Section 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.
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 concluded that a bond exists between Mother
and the Children, but that the termination of Mother’s parental rights would
best serve the Children’s needs and welfare. Orphans’ Court Opinion,
3/19/15, at 5-6. The court emphasized the bond between the Children and
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their foster parents, and the safe, stable, and nurturing environment that
the foster parents provide. Id.
Again, we conclude that the orphans’ court did not abuse its discretion.
Ms. Hulek testified that D.M.D. and H.R.D. refer to Mother as “mother,” but
that they also refer to their foster parents as “mother and father.” N.T.,
1/27/15, at 40. B.A.D. sometimes refers to Mother as “mother,” and
sometimes refers to her by her first name. Id. Ms. Hulek noted that B.A.D.
occasionally is hesitant to interact with Mother, and that she at times
actively avoids interacting with her. Id.
Ms. Cain testified that the Children have a bond with Mother. Id. at
57-58. However, she opined that it would be in the Children’s best interest
for Mother’s parental rights to be terminated due to Mother’s inability to care
for them. Id. at 58. Ms. Cain noted that there have been times when the
Children have returned visibly upset and crying after visits with Mother. Id.
at 52.
Thus, the record again supports the conclusion of the orphans’ court
that terminating Mother’s parental rights would serve the needs and welfare
of the Children. While the Children still retain a bond with Mother, it is clear
that this bond is outweighed by Mother’s inability to care for the Children,
and by the Children’s need for permanence and stability. See C.D.R., 111
A.3d at 1220 (concluding that the appellant/mother’s bond with C.D.R was
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outweighed by the mother’s “repeated failure to remedy her parental
incapacity,” and by C.D.R.’s need for permanence and stability).
Accordingly, our independent review supports counsel’s determination
that Mother has no meritorious issues for appeal. Therefore, we grant
counsel’s petition for leave to withdraw and affirm the orphans’ court’s
orders and decrees.
Petition for leave to withdraw granted. Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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