In the Int. of: E.F., Appeal of: A.A., Mother ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: E.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.A., MOTHER :
:
:
:
:
: No. 725 MDA 2023
Appeal from the Order Entered April 21, 2023
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000120-2023
BEFORE: MURRAY, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 20, 2023
A.A. (“Mother”) appeals from the order adjudicating her minor child,
E.F., born 2010 (“Child”), dependent. Additionally, Mother’s counsel has filed
a petition for leave to withdraw and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738 (1967). After careful review, we affirm
and grant the petition to withdraw.
On March 6, 2023, the Newberry Township Police Department
responded to a report that a girl—later determined to be Child, who has been
diagnosed with Down syndrome and is believed to be non-verbal—was seen
walking unaccompanied along a road approximately ¼ mile from the home
where Child resides with Mother. N.T., 4/21/23, at 8-9. The Newberry
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* Retired Senior Judge assigned to the Superior Court.
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Township Police Department had responded to a similar report involving Child
wandering alone in November 2022. Id. at 11-12, 30.
On April 6, 2023, the York County Office of Children, Youth, and Families
(“Agency”) filed the instant dependency petition. On that same date, the trial
court issued an order and summons scheduling a hearing on the dependency
petition for April 21, 2023, and directing that Mother, Child, and Child’s father,
G.F.-D. (“Father”), attend the hearing. Order and Summons, 4/6/23, at 1-2.
The order also appointed a guardian ad litem (“GAL”) to represent Child,
directed the parents to permit the GAL’s access to Child for an interview in
preparation for the hearing, and advised the parents that they had the right
to counsel in the dependency proceedings, as well as the right to appointed
counsel if they lacked sufficient financial resources. Id.; see also 42 Pa.C.S.
§ 6311(a), (b)(1) (providing that trial court shall appoint a GAL to represent
child’s legal and best interests in dependency proceeding and that the GAL
shall “[m]eet with the child as soon as possible following appointment . . . and
on a regular basis thereafter in a manner appropriate to the child’s age and
maturity”); 42 Pa.C.S. § 6337 (“[A] party is entitled to representation by legal
counsel at all stages of any proceedings under [the Juvenile Act] and if he is
without financial resources or otherwise unable to employ counsel, to have
the court provide counsel for him.”). An affidavit of service was filed indicating
that the scheduling order and summons were posted at Mother’s address on
April 13, 2023. Affidavit of Service, 4/19/23.
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The hearing occurred as scheduled on April 21, 2023; neither Mother
nor Father attended, nor were they represented by counsel at the hearing. 1
Child likewise was not present. Child’s GAL stated that she had made several
attempts to contact Mother so she could meet with Child and that Mother
either did not respond to voicemails or picked up the phone and hung up
without speaking; Mother also did not answer the door when the GAL went to
her residence. N.T., 4/21/23, at 4-5. Counsel for the Agency reported at the
hearing the caseworker’s inability to make contact with Mother despite recent
attempts since the filing of the dependency petition as well as the Agency’s
failure to locate Father to date as he was believed to be in Puerto Rico. Id.
at 4-6.
Officer Jonathan Taylor of the Newberry Township Police Department,
David Surovec of Insight PA Cyber Charter School, and Nicole Cuevas-Rios,
the assigned Agency caseworker, testified at the hearing. Officer Taylor
testified that he responded to the residence of the individual who found Child
on March 6, 2023, but Mother had already arrived to pick Child up. Id. at 8-
9. The individual who made the police report described Mother as combative
and argumentative when Mother retrieved Child. Id. at 9. Officer Taylor
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1 A bench warrant was issued during the April 21, 2023 hearing based upon
Mother’s failure to appear, and Mother was arrested, brought before the trial
court, and released on that date. N.T., 4/21/23, at 38-40, 48-60; Bench
Warrant, 4/21/23; Order Vacating Bench Warrant, 4/21/23. Mother filed a
petition for court-appointed counsel on April 26, 2023, and Mother’s current
counsel was appointed to represent her on May 1, 2023.
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proceeded to Mother’s residence and found that Mother was “very
argumentative,” refused to step out of her home, and only allowed the officer
to see Child through the open doorway. Id. at 10, 13. Officer Taylor did not
respond to the November 2022 incident of Child wandering, but he was aware
of it through the police database. Id. at 11-12. No charges were filed as a
result of either of the incidents. Id. at 12.
Surovec, who is the student resource coordinator at Child’s cyber
charter school, testified that Mother enrolled Child in that school for the 2022-
2023 school year and that Child had 3 excused absences and 95 unexcused
absences for the school year out of an approximate 100 school days as of the
date of his testimony. Id. at 17-20. Surovec stated that Child had not been
seen on camera or logged into the school’s system during the school year.
Id. at 19. The school made truancy referrals for Child on October 12 and
November 10, 2022, through the ChildLine system. Id. at 21-22. Surovec
also relayed that Mother had failed to attend an individualized education
program, or IEP, meeting on December 19, 2022, despite three invitations
being sent. Id. at 23. The school also requested a wellness check on
December 20, 2022, and later received a report that an officer made contact
with Mother and Child on that date. Id. at 23-24. Surovec explained that the
December 20, 2022 wellness check was the only time that the school had
contact with Mother. Id. at 28. Surovec testified that Mother missed a
student attendance meeting on January 20, 2023, and the school referred
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Mother to the York County truancy diversion program on that same date. Id.
at 24.
Cuevas-Rios, the Agency caseworker, testified that an Agency employee
contacted Mother in November 2022 after the prior incident in which Child was
found to have walked into a stranger’s home, but Mother did not allow direct
interaction with Child and instead only allowed the employee to see Child
through a window. Id. at 30. Cuevas-Rios attempted follow-up contact with
Mother after that incident but received no answer to her telephone calls or
when she knocked on the door. Id. at 30-31. Cuevas-Rios spoke to neighbors
who said that Mother was always home and Child was almost never seen
outside. Id. at 31. Cuevas-Rios also spoke with Mother’s mother
(“Grandmother”) who stated that she was worried about Mother’s
psychological health and isolation from the family; Grandmother further
reported to Cuevas-Rios that Mother made a false report to police that
Grandmother was attempting to poison Child by feeding her a homemade
soup, with any poisoning being ruled out after a hospital visit. Id. at 31-33.
Grandmother was the only family member Cuevas-Rios spoke to who
volunteered to be a kinship resource, but Grandmother resided in Florida and
had health issues. Id. at 32-33. Mother’s cousin also refused to be a kinship
resource based upon Mother’s perceived mental health issues. Id. at 32-35.
Cuevas-Rios stated that a foster parent was available should Child be
immediately removed from Mother’s home. Id. at 40-41.
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The GAL stated at the hearing that she had “pretty significant concerns”
for Child’s safety based upon the instances of Child being found walking alone
in the community and the fact that no one at the Agency had seen Child since
November 2022, the cyber charter school likewise had no knowledge of Child’s
safety, and Officer Taylor only had fleeting visual contact with Child in March
2023. Id. at 41. The GAL noted Child’s Down syndrome, her lack of education
during the current school year, and Mother’s mental health issues. Id. at 41-
42. The GAL accordingly recommended that Child be removed from Mother’s
home and be placed in foster care. Id. at 42.
At the conclusion of the hearing, the trial court adjudicated Child
dependent; the court concluded that the Agency had presented clear and
convincing evidence to satisfy paragraphs 1 and 5 of the definition of a
“dependent child” in the Juvenile Act because Child was without proper
parental care or control and habitually truant from school. Id. at 42-43; Order
of Adjudication and Disposition, 4/21/23, at 2; see also 42 Pa.C.S. § 6302.
The court further determined that it was in the best interests of Child that she
be removed from Mother’s home and that the Agency had undertaken
reasonable efforts to prevent Child’s removal from the home. N.T., 4/21/23,
at 43-44; Order of Adjudication and Disposition, 4/21/23, at 2. The trial court
accordingly transferred legal and physical custody of Child to the Agency for
her placement in foster care based upon the absence of any suitable kinship
resources. N.T., 4/21/23, at 43; Order of Adjudication and Disposition,
4/21/23, at 2. Additionally, while the court found that the Agency had
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undertaken adequate efforts to locate additional family members to date, see
Pa.R.J.C.P. 1149, the court directed the trial court to continue attempts to
locate family, including Father. N.T., 4/21/23, at 43, 46-47; Order of
Adjudication and Disposition, 4/21/23, at 2-3.
Mother filed a timely notice of appeal, as well as a contemporaneous
concise statement of errors complained of on appeal, as required by Pa.R.A.P.
1925(a)(2)(i). The trial court filed an opinion on June 6, 2023.
Before reaching the merits of this appeal, we must first address whether
counsel’s petition to withdraw and accompanying brief comply with the
procedure outlined in Anders and related case law. See In re J.D.H., 171
A.3d 903, 906 (Pa. Super. 2017) (holding that Anders procedure for
withdrawal of court-appointed counsel applies in a dependency matter, even
in the absence of an involuntary termination decree). In order to withdraw
under 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.
Id. at 907 (quoting Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.
Super. 2013) (en banc)) (brackets omitted).
With respect to the third requirement, counsel must “attach to their
petition to withdraw a copy of the letter sent to their client advising him or
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her of their rights.” Id. (quoting Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005)). Because a parent has a continuing right to
counsel in dependency proceedings, an attorney seeking to withdraw during
a dependency proceeding must
inform the parent of his or her right to counsel in any subsequent
dependency or involuntary termination proceedings. Counsel
must also inform the parent that, if he or she cannot afford
counsel, he or she may contact the trial court in order to obtain
new counsel. This information must be conveyed to the parent at
the same time that counsel informs the parent of his or her other
rights pursuant to Anders[.]
Id. at 906-07; see also 42 Pa.C.S. § 6337; 23 Pa.C.S. § 2313(a.1).
Furthermore, the Anders brief must:
(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.
J.D.H., 171 A.3d at 907 (quoting Commonwealth v. Santiago, 978 A.2d
349, 361 (Pa. 2009)).
In her petition to withdraw, counsel indicated that she has thoroughly
reviewed the record and determined that there are no non-frivolous grounds
for this appeal. Counsel’s Anders brief includes a summary of the relevant
procedural and factual history of this case and discusses the reasons upon
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which counsel bases her conclusion that the appeal is frivolous, with citations
to the record and applicable case law. Additionally, Counsel sent a letter to
Mother advising her of her right to retain new counsel or proceed pro se and
raise any additional points she deemed worthy of this Court’s attention.2 This
letter was attached to counsel’s petition to withdraw, and it indicates that
counsel provided Mother with a copy of the petition to withdraw and Anders
brief. Counsel’s letter did not advise Mother of her right to appointed counsel
in any subsequent dependency or termination proceeding and that she should
contact the court to obtain new counsel if she could not afford it. See id. at
906-07. Therefore, on September 6, 2023, this Court issued a per curiam
order directing counsel to send Mother a new letter advising her of her
continuing right to counsel in future dependency and termination proceedings
and to file the letter in this Court within 14 days. Mother has complied with
our order.
We thus conclude that counsel has complied with the procedural
requirements for withdrawal, and we proceed to review the merits of this
appeal. We first consider the issues raised by counsel in her Anders brief and
determine whether they are in fact frivolous. Id. at 908. In addition, if we
determine that the issues raised by counsel are frivolous, we then proceed to
“conduct an independent review of the record to discern if there are any
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2 As of the date of this decision, Mother has not filed a pro se brief with this
Court, nor has privately retained counsel entered an appearance on Mother’s
behalf.
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additional, non-frivolous issues overlooked by counsel.” Id. (quoting
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)).
Counsel raises the following issues in her brief:
[1.] Whether or not the Lower Court erred as a matter of law
and/or abused its discretion in finding that clear and convincing
evidence existed to find the minor child dependent based on the
minor child being without proper care and control, subsistence,
education as required by law, or other care, or control necessary
for her physical, mental, or emotional health or morals.
[2.] Whether or not the Lower Court erred as a matter of law
and/or abused its discretion in finding that clear and convincing
evidence existed to find the minor child dependent based on the
minor child being subject to compulsory school attendance and is
habitually and without justification truant from school.
[3.] Whether or not the Lower Court erred as a matter of law
and/or abused its discretion in finding that it was in the minor
child’s best interests to be removed from the home of Mother and
Father.
Anders Brief, at 4.
We review a trial court’s ruling in a dependency matter for an abuse of
discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010); In re A.B., 63 A.3d
345, 349 (Pa. Super. 2013). We accept the trial court’s findings of fact and
credibility determinations when supported by the record, but we are not
required to accept the lower court’s inferences or conclusions of law. R.J.T.,
9 A.3d at 1190; A.B., 63 A.3d at 349. “[W]e accord great weight to the court's
fact-finding function because the court is in the best position to observe and
rule on the credibility of the parties and witnesses.” In re A.W., 162 A.3d
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1117, 1120 (Pa. Super. 2017) (quoting In re D.P., 972 A.2d 1221, 1225 (Pa.
Super. 2009))
As relevant to this case, the Juvenile Act defines a “dependent child,” as
a child who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk, including evidence of the parent’s,
guardian’s or other custodian’s use of alcohol or a controlled
substance that places the health, safety or welfare of the child at
risk;
* * *
(5) while subject to compulsory school attendance is habitually
and without justification truant from school;
42 Pa.C.S. § 6302. Under the Public School Code of 1949, a student is of
compulsory school age from ages six to eighteen. 24 P.S. §§ 13-1326
(defining “compulsory school age”), 13-1327(a) (requiring compulsory school
attendance). A child subject to compulsory school attendance is habitually
truant if she has six or more unexcused absences during the current school
year. 24 P.S. § 13-1326 (defining “habitually truant”). Proper parental care
is defined in our caselaw as care that is geared towards the particularized
needs of the child and, at a minimum, is likely to prevent serious injury to the
child. A.B., 63 A.3d at 349; In re C.R.S., 696 A.2d 840, 845 (Pa. Super.
1997). “[W]hen determining whether a parent is providing a minor with
proper care and control . . . the caretaker’s acts and omissions should weigh
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equally.” In re R.P., 957 A.2d 1205, 1217 (Pa. Super. 2008) (citation and
emphasis omitted).
After conducting a hearing, the trial court may find a child dependent if
clear and convincing evidence has been presented that the child meets the
statutory definition. 42 Pa.C.S. § 6341(a); In re L.Z., 111 A.3d 1164, 1176
(Pa. 2015); In re E.B., 898 A.2d 1108, 1112 (Pa. Super. 2006). Clear and
convincing evidence has been defined as evidence that is “so clear, direct,
weighty, and convincing as to enable the trier of facts to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.” A.B.,
63 A.3d at 349 (citation omitted).
Upon finding a child dependent, the court must then enter an order of
disposition that is “best suited to the safety, protection and physical, mental,
and moral welfare of the child.” 42 Pa.C.S. §§ 6341(c), 6351(a). If the court
determines that removal of the dependent child from her home is appropriate,
it must make findings that continuation in the home would be contrary to her
welfare, safety, or health and further that reasonable efforts were made to
eliminate the need for the child’s removal. 42 Pa.C.S. § 6351(b)(1), (2). This
Court has explained:
The law is clear that a child should be removed from her parent’s
custody and placed in the custody of a state agency only upon a
showing that removal is clearly necessary for the child’s well-
being. In addition, this court had held that clear necessity for
removal is not shown until the hearing court determines that
alternative services that would enable the child to remain with her
family are unfeasible.
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A.B., 63 A.3d at 349-50 (citation omitted); see also In re A.N., 39 A.3d 326,
331 (Pa. Super. 2012).
The first two issues raised by counsel concern whether the trial court
properly adjudicated Child dependent under paragraph 1 of the Juvenile Act’s
definition of a dependent child, related to proper parental care or control, and
also under paragraph 5, related to habitual truancy. See 42 Pa.C.S. § 6302.
We agree with counsel that the Agency presented clear and convincing
evidence on each of these grounds and that any challenge to the dependency
adjudication would be frivolous.
First, with respect to the question of whether Child was “without proper
parental care or control . . . necessary for h[er] physical, mental, or emotional
health, or morals,” id., the evidence at the April 21, 2023 hearing showed that
Mother allowed Child, who has been diagnosed with Down syndrome, to
wander unattended in public twice within a six-month period with both of these
incidents leading to a police response. N.T., 4/21/23, at 8-12, 30. Testimony
was also presented showing that two of Mother’s relatives indicated that
Mother suffered from apparent mental health issues, with Grandmother
specifically reporting that Mother had falsely accused Grandmother of
poisoning Child. Id. at 31-35. Additional testimony demonstrated that
Mother refused multiple requests by police, the Agency, and the GAL to verify
Child’s safety, and Mother also failed to appear or bring Child to the
adjudication hearing, notwithstanding being directed to do so in a court order.
Id. at 3-5, 10, 13, 30-31; Order and Summons, 4/6/23, at 1-2. Such
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evidence provides clear and convincing support for the trial court’s
adjudication of Child as dependent based upon inadequate parental care or
control by Mother that placed Child’s health, safety, and welfare at risk. See
42 Pa.C.S. § 6302 (“A determination that there is a lack of proper parental
care or control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or welfare of the
child at risk . . .”); A.B., 63 A.3d at 349 (providing that a parent’s proper
parental care and control must be measured according to “the particularized
needs of the child”); R.P., 957 A.2d at 1217 (a caretaker’s omissions should
be assessed equally to her voluntary acts in dependency proceeding).
Turning to the question of whether Child was appropriately adjudicated
dependent based upon habitual truancy, see 42 Pa.C.S. § 6302 (a dependent
child is one who, “while subject to compulsory school attendance[,] is
habitually and without justification truant from school”), the evidence at the
hearing showed that Child was twelve years’ old during the 2022-2023 school
year and therefore was subject to compulsory school attendance under the
Public School Code. 24 P.S. §§ 13-1326, 13-1327(a). Child also far exceeded
the statutory threshold for habitual truancy of six or more unexcused absences
during a school year, 24 P.S. § 13-1326, as the testimony of the cyber charter
school representative established that the school had recorded Child having
95 unexcused absences (and 3 excused absences) out of approximately 100
days during the current school year. N.T., 4/21/23, at 17-20. Further, Child
had not been seen on screen by school staff at any point during the school
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year. Id. at 19. Mother refused any contact with the school such that she
could have justified Child’s unexcused absences, including by failing to attend
Child’s IEP meeting and a conference specifically convened to discuss Child’s
attendance issues. Id. at 23-24. Mother also failed to appear at the
adjudication hearing to explain Child’s attendance record. The Agency thus
demonstrated by clear and convincing evidence that Child, who was “subject
to compulsory school attendance,” was “habitually and without justification
truant from school.” 42 Pa.C.S. § 6302; In re C.M.T., 861 A.2d 348, 353-54
(Pa. Super. 2004) (agency establishes habitual truancy through school
attendance records showing that absences are unexcused, which raises an
inference that the absences are “without justification” that may be rebutted
by the parent or child).
Concerning counsel’s third issue related to Child’s removal from
Mother’s home, the trial court determined that removal was in Child’s best
interests because Child was unsafe in the home due to Mother’s mental health
issues, her inadequate supervision of Child, the fact that her educational needs
were not being met, and the current inability of the Agency to verify Child’s
wellbeing.3 N.T., 4/21/23, at 43-44; Order of Adjudication and Disposition,
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3 As the trial court aptly summarized:
[A] primary safety concern is [Mother’s] possible danger to [C]hild due
to [Mother’s] alleged mental health issues and inability to confirm
whether [C]hild’s medical needs are being met. The Agency was unable
to assess the severity of [Mother’s] instability or whether medical care
was provided to [C]hild due to [Mother’s] unwillingness to communicate
(Footnote Continued Next Page)
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4/21/23, at 2; Trial Court Opinion, 6/6/23, at 11-13; see also 42 Pa.C.S. §
6351(a), (b)(1) (disposition ordered by court must be “best suited to the
safety, protection and physical, mental, and moral welfare of the child” and
an order of removal must be supported by finding that continuation in the
home would be contrary to child’s welfare, safety, or health); A.B., 63 A.3d
at 349 (removal must be based upon finding that such action is “clearly
necessary for the child’s well-being”) (citation omitted). The trial court further
determined that the Agency made reasonable efforts to prevent removal
based upon its various attempts to meet with Mother and Child that were
refused, the inability to locate suitable kinship resources, and the fact that
Father could not be located at the time of the adjudication hearing. N.T.,
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or cooperate in any way. [Mother] has placed [C]hild in harm’s way
multiple times [by] allowing [C]hild to wander through the streets of the
neighborhood . . .
Any uncertainty surrounding the safety of [C]hild directly stems from
[Mother’s] conscious effort to keep [C]hild from being seen by the
police, the Agency, [her s]chool, and the trial court alike.[12] Safety of
the child is the primary consideration in removing a child from the home.
Absent any evidence to the contrary, the trial court was required to take
steps to ensure that [C]hild was safe from harm. The trial court submits
that it was in the best interest of [C]hild to remove her temporarily from
the custody of her mother to ensure her safety until further safety
assessments could be made, and appropriate services could be put in
place.
[FN 12] [Mother] not only failed to appear before the court, but
also repeatedly failed to make [C]hild available to her GAL.
[C]hild’s GAL expressed that there were significant safety
concerns about the circumstances surrounding [C]hild’s
unavailability.
Trial Court Opinion, 6/6/23, at 11-13 (record citations omitted).
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4/21/23, at 43, 46-47; Order of Adjudication and Disposition, 4/21/23, at 2-
3; Trial Court Opinion, 6/6/23, at 10-11; see also 42 Pa.C.S. § 6351(b)(2)
(trial court may not order a child’s removal absent finding that reasonable
efforts were made to eliminate the need for the removal); A.B., 63 A.3d at
349-50 (removal is not appropriate unless trial court finds that alternative
services that would enable child to remain with family are unfeasible). We
conclude that the trial court’s dispositional ruling was supported by the clear
and convincing evidence outlined above and was proper under the Juvenile
Act and related caselaw. Accordingly, any challenge to that ruling would be
frivolous.
Based on the foregoing, we agree with counsel that the issues raised in
the Anders brief are wholly frivolous and that the trial court acted within its
discretion in adjudicating Child dependent and ordering her removal from
Mother’s home. In addition, we have reviewed the certified record and have
discovered no additional non-frivolous issues. Therefore, we grant counsel’s
petition to withdraw and affirm the trial court’s April 21, 2023 order.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/20/2023
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