In the Int. of: K.T., Appeal of: M.W.T. ( 2021 )

J-S10020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.W.T., FATHER :
:
:
:
:
: No. 1245 MDA 2020
Appeal from the Order Entered September 8, 2020
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000100-2019
IN THE INTEREST OF: K.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.W.T., FATHER :
:
:
:
:
: No. 1262 MDA 2020
Appeal from the Decree Entered September 9, 2020
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 051-ADOPT-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 8, 2021
M.W.T. (“Father”) appeals from the order changing the placement
permanency goal for his daughter, K.T. (“Child”), to adoption, and the decree
terminating his parental rights to Child. Father’s counsel has filed an Anders
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* Retired Senior Judge assigned to the Superior Court.
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brief1 and motion to withdraw. We affirm both the order and decree of the trial
court and grant counsel’s motion to withdraw.
Child was born in October 2015. In early 2019, the Cumberland County
Children and Youth Services (“the Agency”) learned that both Father and
Child’s mother (“Mother”) had relapsed in their cocaine addictions, and
Father’s mobility had been impaired due to a stroke. See Trial Court Opinion,
filed 12/28/2020, at 3; N.T., 8/25/20, at 19. When the Agency caseworker
visited Child’s home, both of her parents were under the influence of drugs or
alcohol to the extent that neither could appropriately care for Child.
Confirmation of Verbal Order for Emergency Protective Custody, 7/16/19, at
1. In July 2019, the trial court held a shelter care hearing and entered an
emergency protective order placing Child in kinship care. Id. Child has
remained in kinship care since that time.
The court thereafter held a dependency adjudication hearing and found
Child to be dependent due to her parents’ drug and/or alcohol addictions and
Father’s physical limitations and domestic abuse toward Mother.
Recommendation for Adjudication and Disposition, 8/20/19, at 1. The court
ordered Father to cooperate with the Agency in developing a sobriety plan and
participate in a domestic violence program. Id. at 2-3. The court listed the
permanent placement goal as reunification of Child with her parents, with a
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1 See Anders v. California, 386 U.S. 738 (1967); In re V.E., 611 A.2d 1267,
1275 (Pa.Super. 1992) (extending Anders to appeals from involuntary
termination of parental rights).
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concurrent goal of adoption. Id. at 2. The court held a judicial conference in
November 2019, and permanency review hearings in January and June 2020.
The Agency filed a Petition for Goal Change Permanency Hearing in June
2020, requesting the trial court change Child’s permanent placement goal to
adoption. The Agency also filed a Petition for Involuntary Termination of
Parental rights in August 2020, seeking termination of Father’s parental rights
to Child under 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b).
The court2 held a two-day hearing on both petitions on August 25 and
September 1, 2020. At the hearing, the Agency introduced evidence that
Father had failed to complete domestic violence counseling and drug and
alcohol outpatient services. See Trial Court Op. at 6-7; N.T. 8/25/20, at 28-
30, 42-43, 54, 56. Father was discharged from his drug testing program for
noncompliance in June 2020. Trial Court Op. at 7. The Agency also introduced
evidence that Father stopped having weekly visits with Child in March 2020
due to the Covid-19 public health emergency. Father and Child continued with
weekly telephone visits until April 2020, when Child began to refuse to speak
with Father on the phone and alluded to witnessing his violence against
Mother. See N.T., 8/25/20, at 32-34, 40-41, 54-55, 57. Meanwhile, the
Agency presented evidence that Child “appears healthy, happy, and well-
adjusted” to her kinship home, and “all of her physical and emotion[al] needs
are being met.” Trial Court Op. at 5; see also N.T., 8/25/20, at 35-36, 61.
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2 A single judge presided over both the dependency and orphan’s court cases.
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Father testified that he was enrolled in a domestic abuse counseling
program and was regularly attending drug and alcohol counseling. N.T.,
9/1/20, at 13-14, 24. Father testified his weekly visits with Child had been
happy until the onset of the Covid-19 pandemic quarantine restrictions in
March 2020, and that he had tried to maintain telephone contact with Child
until she refused. Id. at 25-37. Father claimed Mother had falsely accused
him of assaulting her and explained that he had initially refused to undergo
domestic violence counseling because he had previously completed the same
program. Id. at 18-23. Father requested the court allow him more time to
achieve compliance with his objectives. Id. at 39.
Following the hearing, the court entered an order changing the
permanency goal for Child to adoption, and a decree terminating Father’s
parental rights to Child.3 Father appealed.
Father’s counsel has submitted an Anders Brief and motion to
withdraw. Counsel seeking to withdraw pursuant to Anders must file a brief
in which counsel (1) summarizes the procedural history and facts of the case,
with citations to the record; (2) refers to anything in the record that arguably
supports the appeal; (3) sets forth counsel’s conclusion that the appeal is
frivolous; and (4) sets forth counsel’s reasons for so concluding.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel’s
withdrawal request must also state that counsel has examined the record and
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3 The court also terminated Mother’s parental rights to Child.
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determined the appeal is frivolous. Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa.Super. 2013) (en banc). Counsel must furnish a copy of the
Anders brief to the appellant, and advise the appellant that he or she has the
immediate right to retain other counsel or proceed pro se. Id.We find counsel’s brief conforms to the above requirements. Counsel
has also attached a copy of the letter he sent to Father, in which counsel
enclosed a copy of his Anders brief and withdraw request, explaining to
Father his right to pursue the appeal pro se or through other counsel. Father
has not exercised these rights. We therefore turn to our own review of whether
Father’s appeal is wholly frivolous. Santiago, 978 A.2d at 355 n.5.
In the Anders brief, Father’s counsel poses the following issues:
1. Did the trial court abuse its discretion and commit an error of
law when it found, despite a lack of clear and convincing
evidence, that the child’s permanent placement goal of
reunification was neither appropriate, nor feasible[,] and
ordered a goal change to adoption, thus contravening section
6351(f) of the Juvenile Act, 42 Pa.C.S. § 6531(f)?
2. Did the trial court abuse its discretion and commit an error of
law when it found, despite a lack of clear and convincing
evidence, that sufficient grounds existed for a termination of
appellant’s parental rights in his child, and when it failed to
primarily consider the child’s developmental, physical and
emotional needs and welfare, thus contravening sections
2511(a) and 2511(b) of the Adoption Act, 23 Pa.C.S. §§
2511(a) & 2511(b)?
Anders Br. at 4. (suggested answers omitted).4
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4 The Agency has not submitted an appellee’s brief, instead relying on the trial
court opinion and counsel’s Anders brief.
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We review an order changing a placement goal to adoption or a decree
terminating parental rights for an abuse of discretion. In re Adoption of K.C.,
199 A.3d 470, 473 (Pa.Super. 2018); In re N.C., 909 A.2d 818, 822
(Pa.Super. 2006). We “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record,” but we
are not required “to accept the lower court’s inferences or conclusions of law.”
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010); see also K.C., 199 A.3d at 473.
The Juvenile Act authorizes the trial court to determine, at each
permanency hearing, the placement goal of a dependent child. 42 Pa.C.S.A. §
6351(f.1). The court makes this determination based on the following
statutory factors:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance with
the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement
goal for the child.
(5) The likely date by which the placement goal for the child might
be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
Id. at § 6351(f)(1)-(6). However, the controlling factor is the best interests
of the child. In re N.C., 908 A.2d at 823.
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A party seeking termination of parental rights must present clear and
convincing evidence that termination is warranted under 23 Pa.C.S.A. §§
2511(a) and (b). K.C., 199 A.3d at 473. Relevant here, Subsection 2511(a)(2)
provides for termination when
[t]he 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.
23 Pa.C.S.A. § 2511(a)(2).
“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 D.L.B., 166 A.3d 322, 327 (Pa.Super. 2017) (quoting In re
Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)); see also In
re B.L.W., 843 A.2d 380, 387-88 (Pa.Super. 2004) (“A parent who is
incapable of performing parental duties is just as parentally unfit as one who
refuses to perform the duties”) (citation omitted). When a parent “fail[s] to
demonstrate a concrete desire or ability to remedy the problems that led to
Child’s placement,” such as by failing to cooperate with agency services or
participate in drug and alcohol treatment and mental health counseling,
grounds for termination under Subsection 2511(a)(2) exist. See, e.g., In re
D.L.B., 166 A.3d at 327-38.
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If grounds for termination are met under a subsection of Section
2511(a), Section 2511(b) requires the court to consider the best interest of
the child by giving “primary consideration to the developmental, physical and
emotional needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b); K.C., 199
A.3d at 474. “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 D.L.B., 166 A.3d at 328 (quoting In re T.S.M., 71 A.3d 251,
267 (Pa. 2013)).
The instant goal-change order stated the court found Father “has not
been fully cooperative with his goals and objectives . . . provided minimal drug
screens . . . abused crack/cocaine during the review period[,] engaged in
domestic violence with [Mother, and] never made 30 consecutive days of
negative drug screens in 13 months of placement.” Permanency Review Order,
9/11/20, at 1. The court also found there was “minimal progress toward
alleviating the circumstances which necessitated the original placement,” and
that visitation with Father was “not adequate, in that the child refuses to have
contact with [F]ather.” Id. at 2.
The decree terminating Father’s parental rights to Child stated the court
found Child has been in Agency care for more than 13 months, Father was in
denial of addiction problems and unable to provide proof of 30 consecutive
days of sobriety, and that termination was warranted by the parents’ “failures
to fulfill their parental duties” and “Child’s right to have proper parenting [and]
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fulfill her potential in a permanent, healthy, and safe environment.” Final
Decree, 9/8/20, at 1.
In its Rule 1925(a) opinion, which addressed both the order and decree,
the court noted “Father’s non-verbal communications over the two days of in-
person hearings were like Jekyll and Hyde.” Trial Court Op. at 8. The court
stated that on “the first day he was unable to sit still, excusing himself
numerous times to use the bathroom, and overall breaking social distancing
rules that were enforced by the court,” but on the second day, “Father was
docile and sedentary.” Id. The court also drew the following conclusions:
Father’s conduct throughout the reviewed thirteen (13) months
demonstrates that the circumstances leading to the child’s
removal and placement continue to exist; specifically, Father’s
substance abuse addiction that fuels his anger management
issues, both of which continue unabated notwithstanding the
considerable resources offered to him by the Agency and, to some
degree, support of the family.
...
Father clearly knew from August 2019 what abilities were
expected of him, sobriety and temper regulation, but he
steadfastly disputed or attempted to circumvent the expectations
that would provide the proof that he was meeting these tangible
objectives. Indeed, what he has done – relapsed, lied, denied.
Father does not want help because in his drug[-]addlepated mind
he does not need help. This repeated and continuous incapacity
by Father leaves [Child] without crucial parental care and control
necessary for her own well-being; moreover, the underlying cause
of the incapacity is a refusal on Father’s part that has not, cannot,
or will not be remedied by him.
Father’s disability should not be inflicted upon the child. [Child]
appears now to be in an environment with proper parenting, with
people who are dedicated to the promotion of her development.
Unlike the situation in Father’s home, [Child] is now in [a] home
that is a healthy or safe environment.
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The above reasoning is singularly focused on Father’s own willful
failure to minimally address and then to correct his addictive
behaviors and domestic violence that led to the child’s removal. .
. . [H]owever, the record is replete with other equally clear and
convincing proofs of Father’s unaltered incapacity to meet the
child’s needs and promote her welfare. Many opportunities have
been given to Father and sadly all have been missed.
Id. at 17-18.
Counsel states that after reviewing the record and relevant law, counsel
concluded that any argument furthering the above issues would lack a
reasonable basis in fact and law, and that the appeal is wholly frivolous. We
agree that the issues counsel flagged are frivolous and our independent review
has uncovered no non-frivolous issues. We therefore affirm both the order and
decree under appeal. We also grant counsel’s motion to withdraw.
Order affirmed. Decree affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2021
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