In Re: N.J.H., Appeal of: N.M. ( 2022 )

J-A01030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.J.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., MOTHER :
:
:
:
:
: No. 993 MDA 2021
Appeal from the Decree Entered June 17, 2021
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87034
IN RE: A.L.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M.M. :
:
:
:
:
: No. 994 MDA 2021
Appeal from the Decree Entered June 17, 2021
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87035
IN RE: M.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., MOTHER :
:
:
:
:
: No. 995 MDA 2021
Appeal from the Decree Entered June 17, 2021
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87036
IN RE: M.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-A01030-22
:
APPEAL OF: N.M., MOTHER :
:
:
:
:
: No. 996 MDA 2021
Appeal from the Decree Entered June 17, 2021
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87309
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 09, 2022
N.M. (“Mother”) appeals from the decrees,1 entered in the Court of
Common Pleas of Berks County, Orphans’ Court Division, terminating her
parental rights to her minor children, N.J.H. (born May 2012), twins A.L.H.
(born September 2018) and M.H., Jr.2 (born September 2018), and M.H. (born
January 2020) (collectively, “Children”).3 Counsel has filed an Anders4 brief
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1 We have, sua sponte, consolidated these appeals. See Pa.R.A.P. 513;
Pa.R.A.P. 2138.
2Two of the children have the initials “M.H.” To avoid confusion, we have
added the suffix “Jr.” to distinguish the older child from the younger one.
3 The trial court contemporaneously terminated Mother’s parental rights to a
fifth child, M.L.McK.M. Mother does not contest that order on appeal.
4 Anders v. California, 386 U.S. 738 (1967). See In re V.E., 611 A.2d
1267 (Pa. Super. 1992) (extending Anders principle to appeals involving
termination of parental rights and requiring counsel seeking to withdraw in
such an appeal to do so only after conscientious and thorough review of
record, petitioning court for leave to withdraw, and submitting Anders brief).
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and accompanying petition to withdraw. After careful review, we affirm the
decrees of the Orphans’ Court and grant counsel’s petition to withdraw.
N.M. and her family have been involved with Berks County Children and
Youth Services (“BCCYS”) since approximately September 2016 in connection
with unstable housing, domestic violence, inappropriate parenting, and
substance abuse issues. See Dependency Petitions, 9/7/18, at 6. On
September 4, 2018, a City of Reading police officer found Mother passed out
on the streets of Reading with N.J.H., A.L.H., and M.H., Jr. See id. The officer
had to shake Mother to awaken her and believed that she had been smoking
K2.5 See id. On September 7, 2018, BCCYS petitioned for emergency
custody of the three children, who were removed from Mother’s care. After a
hearing on October 4, 2018, the three children were adjudicated dependent,
with physical and legal custody transferred to BCCYS. See Orders of
Adjudication and Disposition, 10/4/18, at 2. The court ordered a primary goal
of reunification with a concurrent goal of adoption. See id. Mother was
ordered to comply with the following goals: parenting education; a mental
health evaluation and any recommendations; a drug and alcohol evaluation
and any recommendations; random urinalysis; casework services through
BCCYS and any recommendations; establish and maintain stable and
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5 K2, also known as “spice,” is a synthetic version of tetrahydrocannabinol
(THC), the psychoactive ingredient in marijuana, and is a mixture of plant
material sprayed with synthetic psychoactive chemicals. See
https://www.dea.gov/factsheets/spice-k2-synthetic-marijuana (last visited
February 14, 2022).
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appropriate housing and income; notify BCCYS of any changes in income or
residence; sign all releases for all providers; visitation as scheduled and
interact in an appropriate manner; and a domestic violence evaluation and
any recommendations. See id.In November 2018, BCCYS referred Mother for an Adult Alternatives to
Violence Evaluation with Commonwealth Clinical Group (“CCG”). The CCG
social worker recommended mental health counseling, domestic violence
counseling, the Nurturing Parenting Program, a drug and alcohol evaluation
and compliance with any treatment deemed necessary, and to follow all
recommendations of CCG and BCCYS. See Adult Alternatives to Violence
Evaluation, 12/15/18, at 8. Mother failed to attend five sessions of the
Nurturing Parenting Program and, on January 10, 2019, was unsuccessfully
discharged. See Aimee Halpin Letter, 1/14/19. She was also unsuccessfully
discharged form Berks Counseling Center for failure to respond to requests to
schedule appointments. See Berks Counseling Discharge Summary, 1/14/19,
at 2.
On February 8, 2019, after a hearing, the court ordered that visitation
between Mother and A.L.H. be suspended due to a therapeutic
recommendation from A.L.H.’s therapist, Marta Smith. See Order, 2/8/19.
Smith advised BCCYS caseworker Adrianne Wetzel that A.L.H. had reported
that she did not want to visit with either of her parents and that A.L.H. gets
angry with her foster mother for making her go on parental visits. See Email
from Marta Smith to Adrianne Wetzel, 1/7/19. Smith reported that A.L.H.
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became “highly anxious prior to visits and is relieved when visits are
cancelled.” Id. A.L.H. demonstrated “escalated, oppositional behaviors
during visits” and had also begun exhibiting concerning behaviors in the home
and community, such as difficulty falling asleep, nightmares, bedwetting,
chewing on her bed, and oppositional defiance. Id.At a permanency review hearing held on February 21, 2019, Mother was
deemed to be moderately compliant with her permanency plan, but had made
no progress toward alleviating the circumstances that necessitated the
placement. See Permanency Review Recommendation, 2/21/19, at 1.
On March 22, 2019, Mother completed an Adult Mental Health Evaluation
with CCG. Recommendations following the evaluation included mental health
counseling, a psychiatric evaluation and compliance with any
recommendations, domestic violence counseling, the Nurturing Parenting
Program, and a drug and alcohol evaluation, including compliance with any
recommended treatment. See Adult Mental Health Evaluation, 3/22/19, at
11. Mother completed a psychiatric evaluation with Larry A. Rotenberg, M.D.,
on July 11, 2019. Doctor Rotenberg diagnosed Mother with K2 use disorder
with some months of sobriety, marijuana use disorder with uncertain time of
sobriety, and paranoid personality disorder. See Report of Dr. Rotenberg,
7/11/19, at 8. Doctor Rotenberg found that Mother “takes absolutely no
responsibility for her behavior.” Id. at 9. He concluded that “[t]he idea that
she could become a responsible parent seems, at best, farfetched,” and that
“one could not possibly contemplate returning any children to her care.” Id.
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Mother’s youngest child, M.H., was born on January 17, 2020. Two days
later, BCCYS received a report that M.H. was ready for discharge from the
hospital and petitioned for—and received—emergency custody. See Order,
1/19/20. M.H. was subsequently adjudicated dependent and, on March 5,
2020, after a dispositional hearing, temporary legal and physical custody was
transferred to BCCYS. See Dispositional Order, 3/5/20, at 1. Mother was
given the following permanency goals: casework services through BCCYS and
any recommendations; parenting education; mental health treatment and any
recommendations; domestic violence treatment and any recommendations;
random urinalysis; establish and maintain stable and appropriate housing and
income; keep BCCYS informed regarding any changes in residence or income;
visitation with M.H. as scheduled and act in an appropriate manner; and
signing releases of information as requested. See id. at 2.
A permanency review hearing was held on March 16, 2020, at which
Mother was found to be moderately compliant with her permanency plan, but
had made only minimal progress towards alleviating the circumstances that
necessitated the children’s placement. See Permanency Review Orders,
3/17/20, at 1.
After a hearing on June 26, 2020, Mother’s visitation rights as to N.J.H.,
M.H., Jr., and M.H. were suspended “based on Mother’s current mental health
status.” Orders, 6/26/20. A permanency review hearing was held on July 20,
2020, at which Mother was deemed not compliant with her permanency plan
and the court found she had made no progress towards alleviating the
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circumstances that necessitated the children’s placement. See Permanency
Review Orders, 7/30/20, at 1.
On March 31, 2021, Mother was discharged from CCG for noncompliance
with engagement and attendance. See CCG Client Discharge Summary,
3/31/21, at 2. Specifically, Mother had 24 cancellations/no-shows, followed
by 1½ months of no-shows at the scheduled time. See id. In addition,
between September 20, 2018 and February 22, 2021, Mother failed to attend
a total of 65 drug screenings. See Redwood Toxicology Laboratory No-Show
Report, 2/25/21. At the time of the termination hearing on May 10, 2021,
Mother was not engaged in any casework services, and had failed to keep
BCCYS apprised of her employment or housing situation. See N.T.
Termination Hearing, 4/22/21, at 89-90. BCCYS caseworker Christine Esterly
testified that her contact with Mother had been
sporadic and[,] often times, honestly, nonsensical. I get random
e-mails from her sometimes on the weekends, sometimes in the
middle of the night[,] that don’t make any sense. Specifically, I
had one that said [“]red, white, blue[”] with an exclamation point.
I had one that just said [“]it’s on.[”] I had one that said[,]
simply[, “]canceled.[”] I had one that she included her name, but
then also signed it from [Father]. So[,] it’s been very difficult to
communicate with her.
Id. at 89.
On November 14, 2020, BCCYS filed petitions as to N.J.H., A.L.H., and
M.H., Jr., seeking termination of Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). On July 22, 2020, BCCYS filed
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a petition to terminate Mother’s parental rights as to M.H. pursuant to sections
2511(a)(1), (2), (5), and (b).
The court held hearings on April 22 and May 10, 2021. Children were
represented by attorney/guardian ad litem Gary Fronheiser, Esquire (“GAL”).6
Mother did not appear for the hearing,7 although her counsel, Emily Cherniack,
Esquire, was present. Prior to the hearing, BCCYS submitted Findings of Fact
and Conclusions of Law; Mother’s counsel stipulated to the Findings of Fact.
See N.T. Termination Hearing, 4/22/21, at 15 (“I can stipulate that the
Findings of Fact, which BCCYS is basing [its] termination hearing on, can be
stipulated to.”).
By orders dated June 17, 2021, the court involuntarily terminated
Mother’s parental rights to Children.8 On July 14, 2021, Mother filed timely
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6 See In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested
termination-of-parental-rights proceedings, where there is no conflict between
a child’s legal and best interests, an attorney-guardian ad litem representing
the child’s best interests can also represent the child’s legal interests.”).
7 Mother was duly served with the termination petition as to N.H., A.H., and
M.H., Jr., in accordance with the requirements of 23 Pa.C.S.A. § 2513(b), by
certified mail, return receipt requested, and regular mail. Mother was served
with the petition as to M.H. by personal service, through BCCYS caseworker
Esterly. See Proof of Notice, 3/11/21. At the termination hearing, counsel
for BCCYS noted that Mother indicated to Esterly that she was aware of the
hearing and would not be attending. See N.T. Termination Hearing, 4/22/21,
at 12.
8The relevant grounds for termination, as set forth 23 Pa.C.S.A. § 2511, are
as follows:
(Footnote Continued Next Page)
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____________________________________________
(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
(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.
...
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.
...
(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.
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) & (8).
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notices of appeal and Mother’s counsel contemporaneously filed Pa.R.A.P.
1925(c)(4) statements of her intent to file an Anders/Santiago brief with
this Court.
On appeal, counsel seeks to withdraw her representation of Mother.
Accordingly, before reaching the merits of Mother’s appellate issues, we must
first address whether counsel has properly sought to withdraw from this
appeal. 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, 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
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(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). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Upon review, it appears that counsel has substantially complied with the
procedural requirements of Anders and its progeny. Counsel filed a petition
to withdraw, certifying that she has reviewed the case and determined that
Mother’s appeal is frivolous. Counsel has also filed a brief, which includes a
summary of the history and facts of the case, two potential issues that could
be raised by Mother, and counsel’s assessment of why those issues are
frivolous, with citations to the record and to relevant legal authority. See
Santiago, supra. Finally, counsel has sent Mother a letter advising her of
her rights pursuant to Millisock, supra. 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).
Counsel raises the following issue in her Anders brief:
1. BCCYS failed to prove by clear[] and convincing evidence that
Mother’s parental rights should have been terminated pursuant to
23 Pa.C.S.[A.] §§ 2511(a)(1), (2), (5), and (8)[,] since she had
substantially completed her objectives as required.
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2. There was a strong emotional and parental bond between N.M.
and the children[,] which would [result in] a negative effect on the
[children] if the parental bond was permanently severed.
Anders Brief, at 5.
Our standard of review in cases involving challenges to the involuntary
termination of parental rights is well-settled:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result.
Interest of M.V., 203 A.3d 1104, 1111 (Pa. Super. 2019), quoting In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).
The termination of parental rights is governed by section 2511 of the
Adoption Act.9
Our case law has made clear that under [s]ection 2511, the [trial]
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 [s]ection 2511(a). Only if the [trial]
court determines that the parent’s conduct warrants termination
of his or her parental rights does the [trial] court engage in the
second part of the analysis pursuant to [s]ection 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
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9 See 23 Pa.C.S.A. §§ 2101-2938.
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emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re C.B., 230 A.3d 341, 347 (Pa. Super. 2020) (emphasis omitted).
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. 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.” It is well
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
section 2511(a) exists and that termination promotes emotional needs and
welfare of child set forth in section 2511(b)).
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting for
a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs.
In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).
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Here, the trial court terminated Mother’s rights under section
2511(a)(5).10 Because Mother has made little to no progress in remedying
the conditions which led to her children’s removal, and is not likely to do so
within a reasonable period of time, the court did not abuse its discretion in
terminating her rights.
As detailed above, over the life of this case, Mother has repeatedly failed
to complete—or was unsuccessfully discharged from—programs and
counseling recommended by her caseworkers. She has never been deemed
more than moderately compliant with her permanency plan, made—at best—
minimal progress toward alleviating the circumstances which led to the
removal of her children, and failed to attend 65 drug screenings. She has
failed to establish a stable home or income. Mother’s failure to participate in
mental health services led to the suspension of her visitation rights with all
four children as of June 2020, and she has not seen them since. The
psychiatrist who evaluated her opined that “one could not possibly
contemplate returning any children to her care.” Report of Dr. Rotenberg,
7/1/19, at 9. Finally, Mother failed to attend the termination hearings.
In light of the foregoing, we can discern no abuse of discretion on the
part of the trial court in its determination that BCCYS proved, by clear and
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10 We can affirm the trial court’s decision regarding the termination of parental
rights with regard to any single subsection of section 2511(a). In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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convincing evidence, that termination was proper under section 2511(a)(5).
In re C.B., supra.
We also find that the trial court properly found, by clear and convincing
evidence, that termination of Mother’s parental rights best serves the needs
and welfare of Children pursuant to section 2511(b).
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.A. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485
(Pa.1993) ], [the Supreme] Court held that the determination of
the child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Here, A.H. has not seen Mother since February 8, 2019; the rest of the
children have not seen her since June 2020. At the first termination hearing,
BCCYS caseworker Esterly testified that the children are all “comfortable and
happy” in their resource homes, and that they wish to remain there. N.T.
Termination Hearing, 4/22/21, at 95-96. She testified that the older children
explicitly expressed to her that they did not wish to have contact with Mother
and have “expressed fear of her.” Id. at 96-97. Esterly further testified that
she “absolutely” saw no detriment to Children resulting from the termination
of Mother’s parental rights. Id. at 97.
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Finally, GAL/Attorney Fronheiser testified that the most important thing
for the children is permanency and that the case has gone on “far too long.”
N.T. Termination Hearing, 5/10/21, at 177. Attorney Fronheiser opined that
it was in the best interests of the children that Mother’s parental rights be
terminated. Id. at 178.
In sum, there is competent, clear, and convincing evidence in the record
to support the conclusion that the termination of Mother’s parental rights
serves Children’s best interests. Mother cannot meet their needs and welfare,
and their foster homes are currently doing so. The evidence also supports a
determination that there is no bond between Children and Mother that, if
severed, would cause a detrimental effect on them. In re: T.S.M., supra.
Finally, upon our independent review of the record, we discern no other non-
frivolous issues.
Decrees affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2022
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