Adoption of L.B., Appeal of: A.M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF L.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M. :
:
:
:
:
: No. 1239 WDA 2019
Appeal from the Decree Entered July 15, 2019
In the Court of Common Pleas of Butler County Orphans' Court at No(s):
O.A. 24 of 2019
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 8, 2021
A.M. (Mother) files this appeal from the order granting the petition of
the Butler County Children and Youth Agency (the Agency) and involuntarily
terminating her parental rights to L.B., born in December 2012 (Child),
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).1 This Court
previously remanded this matter for Mother’s counsel, Nicole L. Thurner
(Counsel), to file a new petition to withdraw from representation and an
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1 The trial court also terminated the parental rights of J.M.B., Jr. (Natural
Father) and D.W.M., Jr. (Presumptive Father). Neither the natural or
presumptive father of Child has filed an appeal nor participated in the present
appeal.
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amended Anders/Santiago2 brief or an advocate’s brief.3 Counsel has filed
a new petition to withdraw and an amended Anders/Santiago brief. For the
reasons that follow, we affirm and grant Counsel leave to withdraw.
The trial court summarized the facts and procedural history of this
appeal as follows:
The Agency received a referral on June 13, 2017, indicating that
Mother and Father were residing together and using drugs. The
couple had an extensive history of domestic violence. [The
Agency] conducted a home visit at residence of Mother and Father
[(collectively, Parents)]. Neither parent appeared under the
influence, but appeared to have just woken. However, the Parents
were unable to provide a urine screen at that time. Father agreed
with and signed the safety plan. On July 6, 2017, Father called
the Agency to report that he was at Butler Memorial Hospital
detoxing from cocaine use, Mother was homeless and using drugs.
Father informed the agency that he had left the Child in the care
of [Child’s] paternal cousins . . . (the “Kinship [Placement]
Family”). [Child] was placed on a 30 day safety plan with the
Kinship Placement Family. After that, Father had no contact with
the Agency for some time. [The Agency] attempted to contact
Mother multiple times. On July 24, 2017, Mother contacted the
Agency and acknowledged that she did not have a residence and
could not care for [Child]. Mother explained that she was helping
a friend remodel, had an interview, and was getting a car fixed.
Just before the safety plan was scheduled to end, Father left the
hospital. Mother was believed to be homeless. She had not met
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2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009); see also In re V.E., 611 A.2d 1267, 1275 (Pa.
Super. 1992) (extending Anders to appeals in involuntary termination
matters).
3 Counsel filed the notice of appeal docketed at 1239 WDA 2019 on August
19, 2019 from the order granting the petition to terminate her parental rights.
She filed the notice of appeal docketed at 1544 WDA 2019 on October 11,
2019 from an order granting a goal change. Although we previously
consolidated these matters for disposition, we now address these appeals
separately, as they now present different issues.
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with [the Agency] or provided a drug test. [Child] was detained
on August 7, 2017, when the safety plan ended as both of her
parents were homeless and unable to care for her. Upon her
detention, [Child] remained with the Kinship [Placement] Family.
Neither Mother nor Father attended the Shelter Care Hearing.
An Adjudication Hearing was held on August 23, 2017, at which
time [Child] was adjudicated dependent. Mother attended this
hearing in person, while Father attended via telephone. Both
Parents placed sufficient admissions on the record to support an
adjudication of dependency. Mother also submitted to a drug
screen on this day, which was positive.
On September 11, 2017, Mother attended the hearing in person,
while Father again attended via telephone. Following the hearing,
the [c]ourt concluded that it was in the best interest of [Child] to
be removed from Mother’s and Father’s homes. Visitation was
ordered, permitting Mother supervised visits twice per week, and
Father supervised visits one every other week. The following
objectives were also set for Mother:
• Maintain a legal source of income to meet [Child’s] needs;
• Choose healthy relationships with people who are drug -free
and safe for [Child] to be around;
• Maintain safe and stable[] housing with utili[t]es that are in
working order;
• Attend and actively participate in [Child’s] medical, dental,
educational and developmental appointments to the best of
her ability;
• Participate in weekly drug screens with two random drug
screens;
• Schedule and attend drug and alcohol assessment and will
notify caseworker the date and time;
• Follow any/all recommendations of the drug and alcohol
assessment;
• Participate in mental health assessment of a provider of her
choice and follow any recommendations made; and
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• Inform her mental health providers that information shall be
shared with the Agency and will sign any necessary
releases.
* * *
On September 12, 2017, Mother was assessed at [Gaiser].
[Gaiser] recommended that Mother received drug treatment.
Mother started, but was unable to attend due to the fact that she
was residing in Pittsburgh. Mother requested a referral to another
agency. Family Pathways also conducted a mental health
assessment on the same day and recommended mental health
treatment as well. Mother did enter an inpatient treatment
program at Cove Forge in October of 2017. Upon her discharge
in November of 2017, Mother moved back to her parents’
residence in Butler County. Mother then began intensive
outpatient treatment at [Gaiser] providing weekly drug screens
while residing with her parents, which were negative. Mother also
began receiving Mental Health treatment at the Care Center.
On December 4, 2017, a permanency review hearing was held at
which Mother attended . . . . Mother was found to have been in
substantial compliance with her permanency plan. She had
completed treatment in intensive outpatient treatment at
[Gaiser], begun Vivitrol treatments for alcoholism (ultimately,
Mother only received 4 treatments before leaving treatment), was
living with her parent, and seeking employment. She had
generally been providing clean drug screens, though she did have
3 refusals. The [c]ourt found that she had made moderate
progress toward alleviating the circumstances which necessitate
the original placement. . . .
While living in the highly supportive environment of her parents’
home, Mother had been doing very well. Mother secured
employment as a Manager at BiLo. She was attending all of the
Child’s medical and educational appointments. She had also been
attending mental health treatment at The Care Center. Mother
successfully completed her intensive outpatient treatment with
[Gaiser] on February 16, 2017. She was then stepped-down to
outpatient treatment. While Mother had been progressing, she
experienced a major setback. Mother had a very serious
argument with Maternal Grandmother on February 23, 2018,
which ended in her being kicked out of the home.
As usual, Mother took no responsibility for her actions and placed
the blame on others. Mother alleges that it involved Maternal
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Grandmother’s refusal not to argue in front of the Child. Maternal
Grandmother ultimately kicked Mother out. Mother claims that
she was unable to get to work and was fired since Maternal
Grandmother provided her transportation to work. Mother
explained that because Maternal Grandmother did not help her,
she relapsed. Mother was discharged from [Gaiser] and the Care
Center shortly thereafter for noncompliance. Rather than turn to
the Agency for help, or even inform the Agency of her change in
residence, Mother states that she went to Catholic Charities for
assistance, but was turned downed. Mother failed to maintain
contact with the Child or [the Agency] during this period. With
the next hearing looming, she entered Cove Forge again on March
25, 2018.
Mother attended the March 26, 2018 Hearing by telephone.
Mother failed to acknowledge that had been discharged from her
last IOP [(intensive outpatient program)] with [Gaiser] or the Care
Center for non-compliance. Without this information, the [c]ourt
gave Mother the benefit of the doubt, concluding that she was in
moderate compliance with her plan and had made moderate
progress. . . .
Mother had been successfully discharged from Cove Forge on May
30, 2018. Following her discharge, Mother entered the Cove
Forge Renewal Center, which is a halfway house for women in
recovery. Mother again did very well in this highly supportive
environment and visited consistently with [Child].
As of the July 10, 2018 permanency review hearing, the [c]ourt
again concluded that Mother was in substantial compliance and
had made substantial progress. The court noted that Mother was
addressing her drug and alcohol addiction, receiving appropriate
treatment, and had maintained her sobriety. Mother’s lack of
stable housing was the only goal that she had not met at that
point.
The next Permanency Review Hearing was held on October 9,
2018. At this point, Mother continued to progress. She was still
residing in the Renewal half-way house and [maintaining] her
sobriety and mental health treatment. However, she was still
working on providing stable housing. Consequently, the [c]ourt
concluded that she was in substantial compliance with her
permanency plan and had made substantial progress. . . .
* * *
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Following the December 11, 2018 Permanency Review Hearing,
the [c]ourt once more concluded that Mother was in substantial
compliance with her permanency plan. While Mother continued to
reside in her half-way house, she was compl[ia]nt with her dual
diagnosis treatment, attended visitation and actively sought
opportunities to better herself through services. Mother’s
Counselor at Renewal, Kimberly Benna, testified at the hearing
that Mother had successfully completed Renewal’s program and
would be released in a few days. Ms. Benna further testified that
Mother . . . would continue care through a dual counseling
intensive outpatient program at Alternative Community Resource
Program (“ACRP”). Mother’s appointment with ACRP had been
already made by Renewal. Mother’s progress was also found to
be substantial for these reasons. Mother’s lack of stable housing
was the only goal that she had not met at that point. Though,
Mother was actively involved in Cove Forge’s Renewal program,
she was working full-time at a call center. . . .
Mother was successfully discharged from her half-way house at
the Renewal Center on December 14, 2018. At that point, Mother
moved into an apartment that she found and paid for herself.
Mother spoke with [the Agency] on numerous occasions, stating
that she would be staying in Johnstown[, Cambria County] area
because she had developed a positive support network there.
Following her discharge from Renewal, Mother was granted
overnight weekend visits with the Child. Transportation of the
Child, drug testing and monitoring of the visits was provided by
SOS [(Specialty Outreach Services)]. According to SOS, Mother
continually tested “negative” and visits with the Child went well.
Clearly, Mother returned to her cycle of struggle following her
discharge from the highly structured and supportive environment
of the half-way house, though she remained drug-free. Mother
asserts that she had significant difficulty finding another program
in Johnstown to continue her mental health treatment and drug
and alcohol treatment following her release. Mother claims to
have called multiple facilities without much success. According to
Mother, the facilities all failed to return her calls. Mother
specifically stated that she had made numerous phone calls to get
into Twin Lakes, but had much difficulty getting a hold of them.
She testified that she also relied on friends to call for her. Mother
related that a friend finally drove . . . her to Twin Lakes on
December 27, 2018, because she could not get a hold of the
facility via phone. The [c]ourt finds Mother’s testimony
concerning her alleged difficulty continuing care following
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discharge from Renewal not credible. Ms. Benna testified at the
previous Permanency Review Hearing that Mother’s continuing
care was arranged and scheduled at ACRP prior to her discharge
from Renewal, Mother simply did not follow through, which is
consistent with her pattern of behavior when she is not residing
in a high structured and supportive environment.
Mother alleges that she completed an intake at Twin Lakes
December 27, 2018. Twin Lakes recommended that she attend
their recovery group, but it met during her work hours. Again,
Mother provided no documentation concerning this intake to the
Agency no[r] the [c]ourt. The [Agency] counselor reached out to
Renewal to see what is available as he was not familiar with
Cambria County. He also called Twin Lakes, looking for
alternatives but did not receive a return call. Renewal was going
to compile some options, but [the Agency] never received a list.
Mother claims that she was then laid off from her call center job
in January of 2019. However, she never provided any
documentation of her employment or subsequent termination of
employment. At the time, she was not in any active treatment for
drugs and alcohol. Despite claiming that she could not attend
Twin Lake’s recovery group due to a conflict with her work
schedule, Mother chose not to begin any treatment during the
three months that she was unemployed.
A Permanency Review Hearing was scheduled for February 15,
2019. However, by consent of all parties, the hearing was
continued to May 10, 2019. On March 1, 2019, the Agency filed
a Petition for the Involuntary Termination of Parental Rights of
[Mother. The trial court appointed Ronald N. Thomas, Esq., Child’s
dependency guardian ad litem (GAL), to represent Child at the
termination hearing. The clerk of the court issued a notice to
Mother regarding the petition to terminate and the scheduling of
a hearing for June 26, 2019. The notice advised Mother that she
had a right to counsel if she could not afford one. Neither the
record nor the docket contains a petition by Mother seeking
appointed counsel for the purpose of the termination hearing.]
Following the filing of the Petition, Mother contacted her [Agency]
caseworker on March 21, 2019, claiming to have finally started
mental health treatment at ACRP. She claimed to have completed
an intake and met with a counselor by the name of Tessa at ACRP,
but had not started treatment. However, she failed to provide any
treatment records or sign a release. When [the Agency] called
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ACRP with whom Mother claimed to be treating, the voice mail
system did not include any employee by the name of Tessa.
Despite leaving messages on two different occasions, [the
Agency] was unsuccessful in making contact with anyone at ACRP
to confirm Mother’s claims of treatment.
Mother also claimed to have begun a part-time posit[i]on with
Giant Eagle. While her hours varied, she stated that she did not
work weekends while she had overnight visitations with [Child].
Mother was unaware of any specific dates of her employment.
Moreover, Mother has never provided documentation of her
employment to the Agency.
On April 5, 2019, an incident occurred where Mother contacted
SOS, the entity providing transportation of [Child] and case
management in Cambria County, and indicated that she was not
available when [Child] was to be dropped off for her weekend
visits. Mother asserts that she asked SOS to transfer custody to
a friend. SOS contacted the Agency stating that Mother wanted
[Child] to be given to her “boyfriend.” The Agency stated that this
was not acceptable as [the Agency] w[as] completely unaware of
who[] this person was. Mother’s casework[er] then testified that
he received a follow up call from SOS stating that the issue had
been resolved, with no further information. The SOS
represent[ative], and Mother testified that she believed, that [the
Agency] had stated that SOS could release [Child] to a female
caregiver of Mother’s choosing, with no additional clearances or
information needed, so long as the Caregiver provided
identification to SOS. The court specifically found this testimony
lacked credibility. Despite knowing that she needed to provide
drug testing, she did not believe this would be necessary of her
caregiver despite the fact that the caregiver was also in recovery.
Mother does not dispute that she never informed the Agency that
she would be working during [Child’s] visit, despite speaking with
her caseworker regularly.[4]
On May 10, 2019, the final Permanency Review Hearing was held.
Mother testified during that hearing that she was working two
jobs. She had recently secured a new full-time job at a call center
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4 As noted by the trial court, Corri Dunn, Esq., and Andrea Boyle, Esq.,
represented Mother in the dependency proceeding from August 8, 2017, to
February 2019. The trial court appointed Counsel for Mother on February 5,
2019.
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and was still working at Giant Eagle on the weekends. Again, she
failed to provide any documentation. Consequently, she claimed
to be working during her overnight visitation with [Child].
However, Mother did not inform the Agency that she would be
working, nor did she inform the Agency who would be caring for
the Child during this time. The caregiver(s) chosen by Mother was
not known to nor cleared by the Agency. Furthermore, Mother
had failed to provide any documentation of any mental health or
drug and alcohol treatment since her discharge from Renewal.
Given the safety concerns following Mother’s decision to leave the
Child with a caregiver unknown to the Agency, Mother’s visitations
were reduced from overnights to weekly six-hour visits.
On June 10, 2019, Mother was incarcerated for a violation of
house arrest. At no point prior to this day did Mother inform the
Agency of the charges pending against her or the fact that she
had pled guilty to the charges.[fn1] Mother violated the terms [of
her house arrest] by failing to communicate with the Cambria
County Probation office on numerous occasions. According to
Mother, it was again someone else’s fault. This time it was the
Cambria County Office of Probation and Parole that failed to return
her phone calls. It is important to note that despite being in
contact with the Agency, SOS, and the [c]ourt [in the instant
matter], she did not seek assistance in attempting to contact her
Parole officer.
[fn1] Mother’s current incarceration arose from a guilty plea
in August of 2018, arising out of . . . separate [driving under
the influence] charges in late 2017. Pursuant to that plea,
Mother was sentenced to 6 months of Intermediate[ ]
Punishment, which involved 42 days of house arrest
followed by restorative sanctions. According to her plea,
Mother had 30 days to arrange for her house arrest through
Cambria County. Mother failed to do so. Consequently, on
June 14, 2019, she was incarcerated in the Butler County
Jail with a sentence of 32 days to 1 year. She is expected
to be released on July 15, 2019, with the remainder of her
sentence to be served through parole.
Trial Ct. Findings of Fact, Op. & Order, 7/15/19, at 1-12.
The trial court held a hearing on the termination petition on June 26,
2019. At the beginning of the hearing, Counsel requested a continuance
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noting that the trial court had not formally appointed her as Mother’s
termination of parental rights counsel and that Mother was currently
incarcerated. N.T., 6/26/19, at 12. Following a discussion with the trial court,
Counsel represented that she was prepared and asked the court to appoint
her as Mother’s counsel for the termination hearing.5 Id. at 13.
The Agency presented testimony from (1) Mother’s probation officer,
Gregory Bowers, (2) Agency caseworkers Tanya Montgomery, Serena
Johnston, and Matthew Duncan, (3) Agency casework supervisors Rochelle
Graham and Nicole Burdett, and (4) Maggie Lynn Kerry, who provided child
preparation services at Family Pathways, (5) Patricia Duare, a supervisor with
the Bair Foundation, and (6) a psychologist, Bruce Chambers, Ph.D. Mother
testified on her own behalf and presented testimony from Brenda Alter of SOS.
Attorney Thomas, Child’s GAL, represented Child at the termination hearing.
By the decree entered on July 15, 2019, the trial court involuntarily
terminated Mother’s parental rights to Child pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b). Mother timely filed the instant appeal at
1239 WDA 2019 and statement of concise errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed a responsive
Rule 1925(a) opinion.
Counsel originally filed a petition to withdraw and an Anders/Santiago
brief in each appeal. This Court denied Counsel’s petitions to withdraw, finding
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5 The trial court did not enter a separate order appointing Counsel to represent
Mother as termination of parental rights counsel.
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that Counsel’s letters to Mother were confusing as to when Mother could
respond pro se or with new counsel to Counsel’s request to withdraw. In re
L.B., 1239 & 1544 WDA 2019, at 6-7 (Pa. Super. filed May 11, 2020)
(unpublished mem.). We further noted, in relevant part, that Counsel’s
Anders/Santiago briefs did not discuss possible termination of parental
rights issues regarding Child’s right to counsel as set forth in In re Adoption
of L.B.M., 161 A.3d 172 (Pa. 2017), or Section 2511(b). Id. at 11. This
Court struck the original Anders/Santiago briefs and remanded the matter
to the trial court for Counsel to file advocates’ briefs or new petitions to
withdraw along with amended Anders/Santiago briefs.
On June 30, 2020, the trial court issued an addendum to its Rule
1925(a) opinion. Therein, the trial court concluded that Mother failed to
preserve a challenge to Child’s counsel under L.B.M. and that, in any event,
her claim did not warrant relief. Trial Ct. Op.—Addendum, 6/30/20, at 5.
Counsel filed a new petition to withdraw and a new Anders/Santiago
brief. Id. Neither the Agency nor Child’s counsel filed briefs prior to remand,
and they have not filed any response to Counsel’s amended Anders/Santiago
briefs. Similarly, Mother has not responded to Counsel’s original or amended
Anders/Santiago brief either pro se or through new counsel.
In her present Anders/Santiago brief, Counsel notes that upon
Mother’s request, she originally filed a notice of appeal and a concise
statement of errors complained of on appeal. Am. Anders/Santiago Brief,
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1239 WDA 2019, at 10. Counsel now summarizes her issues from her original
Rule 1925(b) statement, which we have reordered as follows:
(1) Failure of the [GAL] to Fully and Faithfully Investigate;[6]
(2) Failure to Timely Appoint Counsel in Violation of Due Process
Rights;
(3) Failure to Meet Burden of Proof under 23 Pa.C.S. § 2511(a);
(4) Cursory and Unsupported Analysis under 23 Pa.C.S. §
2511(b);
(5) Failure to Make Findings of Fact as to the Nature and Strength
of the Bond and Relationship of the Child with the Parents or
Guardians; [and]
(6) Failure to Feasibly or Adequately Provide [Mother] with
Services Necessary to Complete her Tasks and Objectives[.]
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6 As we noted in our previous decision, Counsel’s Rule 1925(b) statement
included the following claim:
The [GAL] failed to fully and faithfully investigate all relevant
witnesses and documents and as such her report to the [trial]
court was wholly inadequate and did not provide a solid basis for
the [trial] court to render any reasonable decision. The [GAL] did
not meet with [Mother] nor did she interview any of [Mother’s]
family to determine whether or not a relationship exists between
[Child] and [Mother] and [Mother’s] family. The [GAL] met with
[Child] on one occasion prior to the hearing and did not
present any supporting witnesses or documents for the
[trial] court to support h[is] findings. As is such, the [GAL]
failed to fully and faithfully investigate and was unable to
provide the [trial] court with any relevant information for
the [trial] court to wholly and adequately make its decision and
therefore its decision should be reversed.
Rule 1925(b) Statement, 1239 WDA 2019, 8/19/19, at 4 (unpaginated) (some
formatting altered) (emphases added).
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See id. (some formatting altered). Counsel concludes that these issues are
without merit and wholly unsupported by the record. Id. Further, although
this Court previously identified an issue concerning Child’s right to legal
counsel , Counsel has not discussed that issue in her Anders/Santiago brief.
General Standard of Review
When faced with an Anders/Santiago brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). As
this Court has stated:
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.
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.”
In re J.D.H., 171 A.3d at 903, 907 (Pa. Super. 2017) (citations omitted).
Additionally, counsel must file a brief that meets the following requirements
established by the Pennsylvania Supreme Court in Santiago:
(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;
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(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.
In re Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020) (citation
omitted).
“After an appellate court receives an Anders brief and is satisfied that
counsel has complied with the aforementioned requirements, the Court then
must undertake an independent examination of the record to determine
whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d 1235, 1237
(Pa. Super. 2004) (citation omitted). Our independent review is not limited
to the issues discussed by counsel, but extends to “additional, non-frivolous
issues” that may have been overlooked by counsel. J.D.H., 171 A.3d at 908
(citation omitted). An appeal is frivolous when it lacks any basis in law or
fact. See M.C.F., 230 A.3d at 1220; accord Santiago, 978 A.2d at 355.
Here, following remand, Counsel has complied with the
Anders/Santiago procedures by filing a petition to withdraw and supplying
Mother with a copy of the Anders/Santiago brief and a letter explaining
Mother’s appellate rights. Ex. A to Counsel’s Mots. to Withdraw, 6/29/20, at
1 (informing Mother “[y]ou have the right to retain new counsel, proceed pro
se or raise any additional points that you deem worthy of the court’s attention.
Should you decide to proceed, you must do so quickly”). Moreover, Counsel’s
brief includes a summary of the relevant facts and procedural history, and
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Counsel explains her reasons for concluding that the issues preserved in the
Rule 1925(b) statement lack merit. Because Counsel has complied with the
procedural requirements to withdraw, we proceed to an independent review
of whether the issues raised lack merit. See S.M.B., 856 A.2d at 1237-38.
1. Child’s Right to Counsel
In the first issue identified by Counsel, Counsel states that “[i]n the
termination of parental rights case, there was no [GAL] appointed, but rather
counsel for [Child]. Pursuant to 23 Pa.C.S.[] § 2511, there is no requirement
of the child’s counsel or [GAL] to investigate.” Am. Anders/Santiago Brief
at 17. Although this Court previously identified possible issues concerning
Child’s right to legal counsel in a termination of parental rights proceeding,
Counsel provides no further discussion in response to our prior decision.
However, the trial court, in its addendum to its Rule 1925(a) opinion,
directly addresses the issue of Child’s right to counsel. Specifically, the trial
court discusses: (1) L.B.M., (2) the Pennsylvania Dependency Benchbook as
it pertains to evidence of a Section 2511(b) analysis and considering a child’s
preferences during permanency review hearings, (3) the statutory provisions
concerning a child’s consent to adoption, and (4) the Rules of Professional
Conduct governing the confidentiality of information. Trial Ct. Op.—
Addendum, at 1-3 (unpaginated). Additionally, the trial court refers to the
ethical obligation of a child’s attorney to disclose potential conflicts of interest.
Id. at 3. The trial court concludes that “it is not appropriate for the trial court
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to demand [a] child’s counsel to place the child’s preference on the record in
a [termination of parental rights] case.” Id.
The trial court emphasizes that in the instant case, it appointed Attorney
Thomas as Child’s counsel in the termination proceeding. Id. at 1. The trial
court asserts that there was no conflict between Child’s legal and best
interests. Id. at 2. The trial court notes that no party raised a potential
conflict between Attorney Thomas acting as GAL in the dependency
proceeding and as Child’s counsel in the termination proceeding, and that
Mother did not raise the issue on appeal. Id. at 5. The trial court concludes
that it appropriately considered Child’s preferences during the dependency
proceeding, and it “knew of no conflict which would prevent [the GAL] from
advancing Child’s legal interests” at the termination of parental rights hearing.
Id.
Background to Child’s Right to Counsel
Section 2313(a) states:
(a) Child.—The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the proceeding is
being contested by one or both of the parents. The court may
appoint counsel or a guardian ad litem to represent any child who
has not reached the age of 18 years and is subject to any other
proceeding under this part whenever it is in the best interests of
the child. No attorney or law firm shall represent both the child
and the adopting parent or parents.
23 Pa.C.S. § 2313(a).
Our Supreme Court, in L.B.M., considered whether Section 2313(a),
“which mandates the appointment of counsel for children involved in contested
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involuntary termination of parental rights . . . proceedings, is satisfied by the
appointment of a [GAL] provided that the GAL is an attorney.” L.B.M., 161
A.3d at 174. In L.B.M.,
a majority of the Court agreed on several points: (a) in the
context of contested termination-of-parental rights . . .
proceedings, the first sentence of Section 2313(a) requires
that the common pleas court appoint an attorney to
represent the child’s legal interests, i.e., the child’s
preferred outcome; (b) where there is a conflict between the
child’s legal interests and his best interests, [a GAL], who
advocates for the child’s best interests, cannot
simultaneously represent the child’s legal interests; and (c)
in such a circumstance, the failure to appoint a separate
attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-
error analysis.
In re T.S., 192 A.3d 1080, 1082 (Pa. 2018) (footnotes omitted). The L.B.M.
Court noted the definitions of best and legal interests in the comment to
Pa.R.J.C.P. 1154, which read:
“Legal interests” denotes that an attorney is to express the child’s
wishes to the court regardless of whether the attorney agrees with
the child's recommendation. “Best interests” denotes that a [GAL]
is to express what the [GAL] believes is best for the child’s care,
protection, safety, and wholesome physical and mental
development regardless of whether the child agrees.
L.B.M., 161 A.3d at 175 n.2 (citation omitted).
In T.S., our Supreme Court initially explained that a challenge to the
trial court’s failure to appoint counsel to represent the children’s legal interests
was not subject to waiver and that a party could raise it for the first time on
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appeal.7 Id. at 1087. Our Supreme Court held that the trial court did not err
in allowing the children’s GAL to act as the children’s counsel during the
termination of parental rights proceeding because, at two and three years old,
the children were incapable of expressing their preferred outcome. Id. at
1089, 1092. The Court explained that Section 2313(a) was satisfied by the
representation of the children by the GAL because “if the preferred outcome
of [the children are] incapable of ascertainment because [they are] very young
and pre-verbal, [then] there can be no conflict between the [children’s] legal
interests and his or her best interests.” Id. at 1092-93. The Court further
stated that “where there is no conflict between a child’s legal and best
interests, [a GAL] representing the child’s best interests can also represent
the child’s legal interests.” Id. at 1092.
In In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), our Supreme
Court then held that while an appellate court may “verify that the orphans’
court appointed counsel to represent [a] child’s legal interest, it may not
assess sua sponte the performance of that representation.” K.M.G., 240 A.3d
at 1224. The High Court reasoned that sua sponte verification of whether the
orphan’s court appointed counsel to represent a child’s legal interest involves
____________________________________________
7 Although a parent has standing to challenge a violation of Section 2313(a)
on behalf of a child, the right to counsel under Section 2313(a) belongs to the
child. See T.S., 192 A.3d at 1087. The non-waivable right to legal counsel
in a termination of parental rights proceeding has not been expressly extended
to dependency matters.
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relatively straightforward issues determinable from the face of the record. Id.
at 1236.
The K.M.G. Court specifically concluded that when the issue of a child’s
right to counsel is not raised by a party, this verification requires an appellate
court to consider: “(1) whether the orphans’ court appointed counsel to
represent the legal interests of the children and (2) if the appointed counsel
also serves as GAL, whether the orphans’ court determined that the child's
best interests and legal interests did not conflict.” Id. at 1239 (emphasis
added). The Court emphasized that this verification “does not involve second-
guessing whether GAL/Counsel in fact had a conflict . . . but solely whether
the orphans’ court made the determination in the first instance.” Id. at 1235.
The Court noted that “this limited review strikes an appropriate balance
between protecting children who cannot assert their own right to counsel,
while insuring the least disruption to ‘the process of orderly judicial decision
making’ in termination proceedings.” Id. at 1236.
Conversely, the K.M.G. Court held that an appellate may not review
sua sponte whether a child’s legal counsel, who also served as GAL, had a
conflict when representing a child’s legal and best interests. Id. at 1236. The
Court reasoned:
The determination of whether a conflict exists does not necessarily
result in a yes or no answer but involves a nuanced determination.
Indeed, both the attorney’s view of the child’s best interests and
the child’s preferred outcome likely lie, somewhat nebulously, on
a continuum between strongly favoring termination and strongly
disfavoring termination. It is not for an appellate court to
determine how closely the interests must align or overlap
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to negate the existence of a conflict. We are especially
hesitant to have appellate courts reweigh an orphans’
court’s determination that the interests do not conflict,
where the orphans’ court has witnessed the parties over
the course of the dependency and termination proceedings
and is presumably aware of the relationship formed
between the GAL/Counsel and the children.
. . . Unlike the appointment of legal counsel, the potential conflict
of interest in a GAL/Counsel’s representation of a child is not
something that appellate courts should review sua sponte, without
the benefit of appellate advocacy.
Id. at 1236-37 (citation omitted) (emphasis added).
The K.M.G. Court also refused to permit sua sponte review of whether
legal counsel effectively advocated for a child’s legal interest at a termination
hearing, reasoning that Section 2313(a) spoke only to the appointment of
counsel. Id. at 1237. The High Court specifically expressly rejected an
assumption that the “absence of a child’s preference on the record”
demonstrated counsel’s failure to ascertain a child’s legal interest. Id. at
1237. The K.M.G. Court explained:
While we recognize that it may be a best practice for a child’s legal
counsel to divulge the child’s preferences in order to advocate for
their client’s preferred outcome, we find nothing in the language
of the Adoption Act requiring that their preference be placed on
the record, which instead only requires that the child be appointed
counsel. Moreover, we observe that the child’s legal counsel has
a duty of confidentiality to their client, the child, such that they
should not be compelled to disclose the child’s preferences. We
are thus wary to create a bright-line rule requiring counsel and
the courts to place [a child’s] preferred outcome on the record as
we are concerned by both the potential violation of a child’s
attorney-client privilege and with the real specter of placing
unconscionable stress on a child by mandating that her feelings
regarding her parents and caretakers be made public and
permanently enshrined in the record.
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Instead, we leave the decision of whether to place the child’s
preference on the record to the child’s counsel based upon
counsel’s legal determinations in representing his client, as well
as the orphans’ court which has often witnessed the child, relevant
family members, and other stakeholders through months of
hearings, sitting as both the juvenile court and orphans’ court.
Accordingly, we reject sua sponte review of whether counsel
placed the child's interest on the record.
Id. at 1237-38 (citation omitted).
Relatedly, in In re P.G.F., 247 A.3d 955 (Pa. 2021), our Supreme Court
considered “whether an attorney could act as both [GAL] and legal counsel for
a minor child, where legal counsel failed to expressly inquire into the child’s
preferred outcome of a termination proceeding.” P.G.F., 247 A.3d at 961. In
P.G.F., this Court initially raised the issue of a conflict sua sponte and
remanded, in part, for the child’s counsel to ascertain the child’s preferred
outcome. Id. at 960. On remand to the trial court, child’s counsel asserted
that she consulted with the child, that the child wanted to remain with the
mother, who was seeking the termination of the biological father’s parental
rights, and that the child was not familiar with the biological father. Id. This
Court subsequently affirmed the order terminating the father’s parental rights,
noting, in relevant part, that the record supported the trial court’s
determination that the child’s legal and best interests did not conflict and that
child’s counsel properly discharged her duties. Id. at 960-61.
The High Court in P.G.F. affirmed this Court. Specifically, the P.G.F.
Court set forth additional guidance for counsel to discern a child’s legal
interests and for the trial court to determine whether counsel “fulfilled his
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obligations” to a child. Id. at 966-67. The P.G.F. Court noted that while
K.M.G. was not controlling because that case involved the scope of sua sponte
review, K.M.G. provided “significant considerations” informing its decision.8
Citing K.M.G., the P.G.F. Court reiterated that “significant deference must be
accorded to counsel’s approach in discerning a child’s preferences and the
child’s articulation thereof.” Id. The Court concluded that an appellate court
must give substantial deference to the trial court’s “determination regarding
whether the interests of legal counsel and [GAL] conflict, especially where the
court has witnessed the parties during numerous proceedings.” Id. at 961
n.4, 967.
____________________________________________
8 The P.G.F. Court also noted that the facts before it presented “unique
circumstances.” P.G.F., 247 A.3d at 959. In P.G.F., the father had limited
contact with the child. Id. The father moved out of the home when the child
was two months old and only personally exercised custody on alternate
weekends for six to eight months when the child was around three years old.
The mother and her new husband filed a petition to terminate the father’s
parental rights when the child was five years old.
The trial court appointed one attorney as GAL and legal counsel and, following
several hearings, terminated the father’s parental rights. Id. Following the
sua sponte remand by this Court, the child’s GAL/counsel reported that (1)
she consulted with the child, (2) the child identified the stepfather as his
father, (3) the prospect of not living with his mother and stepfather upset the
child, and (4) child did not recall spending time with the father and did not
recognize the father’s name. Id. at 960. The trial court found no conflict
existed between the child’s best and legal interests and re-entered its order
terminating the father’s parental rights. Id. In the appeal before our
Supreme Court, the father asserted that GAL/counsel’s consultation with the
child was inadequate, in part, because GAL/counsel did not directly inquire as
to whether the child wanted the father’s parental rights to be terminated. Id.
at 961. Therefore, the father asserted that the trial court erred in finding no
conflict in the child’s interests. Id. at 962.
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Sua Sponte Review and Independent Review under Anders
The present case is in a different procedural posture than the matters
at issue in L.B.M., T.S., K.M.G., and P.G.F. Here, Counsel has filed a petition
for leave to withdraw and filed an Anders brief.
As noted above, in the Anders context, this Court’s case law requires
an independent review, which this Court explained as follows:9
“[P]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or
misstated.” This view comports with the main purpose of Anders,
which is to make sure that an appellant is provided with adequate
counsel as required by the Sixth Amendment of the U.S.
Constitution. Ultimately, our Court’s overriding task is to ensure
that a criminal defendant’s loss of liberty is reviewed with the
gravity to which it is entitled. When counsel seeks to withdraw,
Anders requires nothing less.
In light of the constitutional rights at issue, we must give Anders
a most generous reading and review “the case” as presented in
the entire record with consideration first of issues raised by
counsel. . . . [T]his review does not require this Court to act as
counsel or otherwise advocate on behalf of a party. Rather, it
requires us only to conduct a review of the record to ascertain if
on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze
those issues of arguable merit; just identify them, deny the
motion to withdraw, and order counsel to analyze them.
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (citations omitted). The same principles of independent review apply
to cases involving the termination of parental rights. See M.C.F., 230 A.3d
____________________________________________9 Our Supreme Court has yet to directly consider the precise scope of this
independent review in the Anders context.
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at 1219-20 (raising an issue not identified by Anders counsel in a termination
of parental rights case). Cf. In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009)
(noting that our Supreme Court recognized the unique nature of termination
of parental rights cases and held that an indigent parent has a constitutional
right to counsel).
It is clear that sua sponte review pursuant to K.M.G. and independent
review in the Anders context both require that this Court “verify if the trial
court appointed legal counsel” as required by Section 2313(a), even if the
issue was not raised by counsel. However, there is tension between the
appropriate scope of sua sponte review authorized by K.M.G., and
independent review in the Anders context, particularly on the issues of
whether a child’s appointed legal counsel had a conflict of interest and
adequately represented a child’s preferred outcome in a termination
proceeding.
However, sua sponte review under K.M.G. strikes a balance for an
appellate court’s role in ensuring a child’s right to legal counsel in a
termination proceeding. The Anders process strikes a balance between a
party’s constitutional right to appellate counsel and a frivolous appeal. See
Yorgey, 188 A.3d at 1197. Because a parent may challenge whether
GAL/legal counsel labored under a conflict for the first time on appeal, we
conclude that independent review in the Anders context must include a
review of the record to determine whether Anders counsel “missed or
misstated” an issue that a conflict existed. See id.; J.D.H., 171 A.3d at 908.
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Although we conclude that independent review includes a review of the
record for the existence of a conflict, we remain bound by the principle that
this Court must not act as a party’s counsel or advocate guides independent
review. See Yorgey, 188 A.3d 1190, 1197. Further, our Supreme Court, in
K.M.G. and P.G.F., cautioned that issues regarding the existence of a conflict
and meaningful representation are fact-sensitive and require nuanced
determinations made by counsel and the trial court. See P.G.F., 247 A.3d
960-61; K.M.G., 240 A.3d at 1236-37. Our Supreme Court also disfavors
bright-line rules when reviewing the record for the existence of a conflict and
appropriateness of counsel’s representation of a child. See P.G.F., 247 A.3d
960-61; K.M.G., 240 A.3d at 1237-38. If the trial court opines on these
issues, this Court must afford the trial court’s opinion substantial deference.
See P.G.F., 247 A.3d at 966-67.
Application
Turning to issue of Child’s right to legal counsel in the present case, we
first note that the record shows that the trial court appointed Attorney
Thomas, Child’s GAL in dependency, to represent Child’s legal interests.
Further, the trial court made a determination that there was no conflict
between Child’s best interests and legal interests. Therefore, sua sponte
verification under K.M.G. confirms the trial court’s appointment of counsel in
a termination proceeding. K.M.G., 240 A.3d at 1224.
Second, for the reasons stated herein, we must conduct an independent
review of the record to determine whether there is a non-frivolous issue as to
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whether Attorney Thomas had a conflict of interest. We reiterate, however,
that the “substantially deferential” standard of review discussed by our
Supreme Court requires us to “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record” and
“determine if the trial court made an error of law or abused its discretion.” In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting
altered), cited with approval in K.M.G., 240 A.3d at 1236, 1238; see also
P.G.F., 247 A.3d at 965. Notably, “the trial court’s decision . . . should not
be reversed merely because the record would support a different result” and
this Court must defer to the trial court’s first-hand observations of the parties
spanning multiple hearings.” Id.
Instantly, an independent review of the record reveals the following.
Child was six-years-old at the time of the hearing. Ms. Kerry, who provided
child preparation services for Child, described Child as “very social,” and being
able to “fully communicate.” N.T. at 99. Ms. Kerry testified that on May 10,
2019, approximately one month before the termination of parental rights
hearing, she met with Child during a permanency review hearing. Id. at 94,
96. According to Ms. Kerry, Child stated that “she wanted to go home.” Id.
at 94. However, after Mr. Duncan, the Agency caseworker, spoke with Child,
Ms. Kerry noted that “[Child] just seemed a little confused again.” Id. Ms.
Kerry explained that Child “did go from wanting to go home with [Mother] to
feeling -- I’m trying to think of the best way to explain this. [Child] didn’t
appear to exhibit any sort of distress with the visits [with Mother] being
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decreased.” Id. at 96. Additionally, there was evidence that Child bonded
with her kinship placement family. Id. at 121, 140-41, 180-82.
At the termination hearing, Attorney Thomas did not state Child’s
preference on the record. Moreover, he did not detail whether and when he
consulted with Child as legal counsel for the termination proceeding.
However, Attorney Thomas advocated in favor of termination of parental
rights. Id. at 266 (indicating that as GAL, he believed that Child’s placement
was appropriate and that as “counsel” it was his position that Child “is where
she needs to be and the proceeding should come to a conclusion” with the
termination of Mother’s and Father’s parental rights).
Following our independent review, and mindful of the deferential
standard of review set forth by our Supreme Court, the record does not
support a challenge to the appropriateness of the trial court’s appointment of
GAL as legal counsel. We emphasize that despite “best practices,” our
Supreme Court has confirmed that Attorney Thomas, as Child’s counsel, was
not required to expressly state Child’s preferences at a termination hearing.
See K.M.G., 240 A.3d at 1237 (noting that there is “nothing in the language
of the Adoption Act requiring that [a child’s] preference be placed on the
record, which instead only requires that the child be appointed counsel”).
Critically, our Supreme Court “rejected any assumption that the absence of a
child’s preference stated on the record equated to counsel’s failure to ascertain
the child’s preferred outcome or to provide effective representation of the
child.” See P.G.F., 247 A.3d at 965.
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The record here contains some evidence that Child may have had a
divergent preferred outcome prior to the termination hearing and that Child
has a bond with Mother. However, there is also some record support for the
trial court’s determination that there was no actual conflict between Child’s
best and legal interests at the time of legal counsel’s appointment and
representation at the termination hearing, in that Child was also bonded with
her kinship care family, expressed wishes to remain with them, and looked to
them for comfort and affection. Moreover, the record contains no evidence
that Child expressed an interest to go home with Mother after May 10, 2019.
Therefore, our Supreme Court’s recent case law compels the conclusion
that the trial court’s appointment of GAL as legal counsel was appropriate.
Accordingly, and notwithstanding Counsel’s failure to address this issue in any
meaningful fashion, we are constrained to conclude that any possible conflict
here does not rise to the level of a non-frivolous issue based on the evolving
principles surrounding Child’s right to legal counsel under Section 2313.
2. Mother’s Right to Counsel
In the next issue identified by Counsel, Mother intends to challenge the
trial court’s failure to timely appoint counsel on her behalf prior to the
termination hearing. Counsel asserts that this claim is frivolous because the
trial court appointed her as Mother’s counsel during the dependency
proceedings and she was prepared to proceed as Mother’s counsel at the
termination hearing.
Section 2313(a.1) states:
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(a.1) Parent.—The court shall appoint counsel for a parent whose
rights are subject to termination in an involuntary termination
proceeding if, upon petition of the parent, the court determines
that the parent is unable to pay for counsel or if payment would
result in substantial financial hardship.
23 Pa.C.S. § 2313(a.1).
This Court has stated:
Parents in involuntary termination proceedings have a
constitutionally-protected right to counsel. This Court has held
that trial courts need not appoint counsel for indigent parents
automatically. However, courts must advise parents of their right
to petition for counsel. A parent waives his or her right to counsel
if he or she is provided with clear instructions on how to petition
for counsel, but fails to take action.
In re Adoption of C.A.S., 166 A.3d 353, 356 (Pa. Super. 2017) (citations
omitted).
Instantly, the record confirms that the trial court appointed Counsel to
represent Mother in the dependency proceedings. The Agency’s petition to
terminate Mother’s parental rights provided notice of her right to counsel in
the termination proceeding. Mother, however, took no affirmative action to
request the appointment of counsel. Instead, as indicated by the trial court,
Counsel requested a continuance and an appointment on Mother’s behalf six
days before the scheduled hearing. However, the trial court declined to rule
on the motion because Attorney Thomas, Child’s GAL, was not present.
At the beginning of the termination hearing, the following exchange
occurred:
[Counsel]: I attempted to present a Motion for a
Continuance on last Thursday due to Mother’s incarceration.
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THE COURT: It would have been denied.
[Counsel]: And -- thank you. But I just need to make a
record, if that’s okay. She was incarcerated for a probation
violation. She’s only there for 30 days. The Agency was
under the impression she was there for six months. On top
of that, I would have requested [to] be appointed on the
[termination] case. I am not appointed on that at this time.
So, I did want to present a Motion for a Continuance on this
matter at this point in time just due to the fact that she is
incarcerated. She will be released on July 15th.
THE COURT: First of all, I understand the reason why you
could not present the motion last Thursday because I didn’t
have the [GAL] present. Secondly, there will be no
continuances. Regardless of [Father’s availability] on the
phone, we are proceeding with the hearing today. We are
not continuing it. Everybody will just have to deal with the
legal issues.
. . . [to Counsel], if you are prepared to proceed on the [the
termination petition] today and you wish to be appointed
since your client is incarcerated, I will appoint you on that.
But I would not grant a continuance for you to prepare if
you are not. So, if you don’t feel prepared, then, you know,
if that is something you want to talk to your client about or
you want to make a decision on, that’s fine.
[Counsel]: I think I’m prepared. We had that discussion
yesterday. And, so, I would just ask the [c]ourt to appoint
me.
N.T. at 11-13.
Following our review, we discern no basis to challenge the trial court’s
rulings. Mother did not request counsel for the termination proceeding,
despite having had counsel throughout the dependency proceeding and having
notice of both the termination hearing and her right to appointed counsel.
Rather, Counsel initiated the process of appointment six days before the
scheduled termination hearing. Counsel further represented that she was
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prepared to represent Mother regarding the termination matter and sought a
continuance based on Mother’s incarceration at the time. Therefore, we agree
with Counsel that this claim lacks any support in the record or the law.
3. Termination of Parental Rights Issues
The final issues identified by Counsel focus on the trial court’s decisions
concerning the termination of Mother’s parental rights under Section
2511(a)(1), (2), (3), (5), and (8) and (b). Although initially listed as four
issues in her Rule 1925(b) statement, Counsel discusses three major points,10
focusing on Section 2511(a), Section 2511(b), and the adequacy of the
Agency’s reunification efforts.
First, as to Section 2511(a), Counsel notes:
At the time [C]hild was adjudicated dependent, Mother was
battling her addiction and mental health. Mother was incarcerated
on at least two separate occasions through the duration of this
case, most notably and recently in June 2019. Mother sought
treatment on several occasions for her mental health and sobriety
and completed her treatment successfully on at least two
occasions. However, Mother’s follow through once she was
discharged from Cove Forge was lacking, most particularly as it
pertains to her mental health. The record supports the trial courts
finding that Mother did not show an ability to remedy the
circumstances that necessitated placement of the child and thus
Mother's claim to the contrary is without merit and frivolous to
bring before this Court.
Am. Anders/Santiago Brief at 15.
____________________________________________
10 It appears that Counsel, in her amended Anders/Santiago brief, combined
her discussion of two of her claims set forth in her Rule 1925(b) statement.
See Am. Anders/Santiago Brief at 15.
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Second, as to Section 2511(b), Counsel states that Mother’s intended
challenge to the trial court’s failure to consider the nature and the strength of
the bonds and relationships among her and the kinship placement family is
frivolous. Counsel notes that Dr. Chambers conducted a bonding assessment
and found that Mother and Child were bonded, but concluded that the “the
risk to [C]hild of being unsafe, unstable and not having permanency
outweighed the bond between Mother and [C]hild.” Id. at 17. Counsel further
notes that the “[t]he trial court adequately made findings of fact as to the
nature and strength of the bond and relationship between [C]hild and Mother
as well as [C]hild and the kinship provider.” Id.
Third, as to the adequacy of the Agency’s provision of services, Counsel
notes that “Mother never requested assistance from CYS to obtain her mental
health treatment, help in scheduling any mental health appointments or
assessments, nor did Mother request any additional services to help address
her mental health.” Id. at 15.
Standard of Review
As noted above, our standard of review is as follows:
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
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emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
T.S.M., 71 A.3d at 267 (citations omitted).
Termination 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 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). We
focus our analysis on subsections (a)(2) and (b).
Section 2511(a)(2)
Section 2511(a)(2) and (b) provide:
(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.
23 Pa.C.S. § 2511(a)(2).
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To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The grounds for
termination are not limited to affirmative misconduct, but concern parental
incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010). Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties. Id.Instantly, the trial court explained its decision concerning Section
2511(a)(2) as follows:
Child was initially adjudicated dependent, in part, due to Mother’s
refusal to provide Child with essential parental care, control, or
subsistence necessary for [Child’s] physical and mental well-
being. The record evidence established by clear and convincing
evidence that while Mother had made some progress while
residing in highly structured and supportive environments, she
has not provided parental care, control, or subsistence necessary
for . . . Child’s physical or mental well-being while residing out of
those environments. Mother continues to make decisions
detrimental to her own best-interests, which has resulted in her
complete inability to provide any stability. Despite having many
opportunities to do so, she has not adequately addressed her
mental health or continued the necessary drug and alcohol
treatment to remain sober. Moreover, she still lacks employment
and the complete ability to care for and provide for . . . Child now
that she is incarcerated due to the fact that she simply failed to
contact the appropriate Probation and Parole Office. Therefore,
the conditions and causes of Mother’s incapacity, neglect or
refusal cannot or will not be remedied by her and continue to exist.
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See Trial Ct. Op., 7/15/19, at 17.
Ms. Montgomery, an intake caseworker for the Agency, handled the
initial referral due to parents’ drug use, including intake, and conducted the
initial home visit in June 2017. N.T. at 32-34. Ms. Montgomery could not
make contact with Mother until July 2017, at which point she advised Mother
of Child’s placement and safety plan. Id. at 35. Mother stated that she could
not take care of Child at that time. Id. At that time, Mother was homeless
and could not provide a urine screen. Id. at 36. In August 2017, Mother
provided Ms. Montgomery an address in Pittsburgh where she was living with
a friend, but again fell out of contact. Id. at 40-41.
Mother’s reunification goals were to maintain stable housing and
income, attend drug and alcohol treatment, attend mental health treatment,
participate in Child’s medical appointments when necessary, maintain “healthy
relationships with individuals to be around [Child],” and attend drug screening
a minimum of once per week. Id. at 44, 100. Mother successfully completed
inpatient treatment from October 2017 through November 2017 and moved
in with her mother (Maternal Grandmother). Mother completed intensive
outpatient drug and alcohol treatment beginning in November 2017, and was
stepped down to outpatient in February 2018. Id. at 102-04.
However, Mother was discharged for noncompliance in February 2018,
had a positive screen in March 2018, and fell out of contact with caseworkers
and providers. Id. at 102-05. Mother was also kicked out of her home by
Maternal Grandmother in March 2018. Id. As a result of Mother’s setbacks
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in early 2018, the Agency reassessed her and returned her to “square one” in
terms of reunification. Id. at 107.
Mother reentered inpatient treatment from March 2018 through June
2018. Id. at 102-05. During that time, case management services were still
available to Mother, but she did not utilize them, nor did Mother visit with
Child. Id. at 106. Ms. Graham, an Agency casework supervisor, testified that
during the fall of 2018, Mother was participating in treatment programming,
working with staff to get an apartment, and attending supervised visits with
Child. Id. at 51-52, 83. During a December 2018 hearing, Mother had been
employed for several months and was moving into an apartment, but did not
provide a copy of the lease. Id. at 83. Ms. Graham testified that the Agency
would conduct a home safety check so Child could begin in-home visits. Id.
at 84.
Ms. Burdett, an Agency casework supervisor, testified that Mother did
not follow up after the December 2018 hearing, and she had Cambria County
Children and Youth Services complete a home safety check at Mother’s home.
Id. at 118. At that time, there were no concerns in the home. Id. at 118.
However, Mother informed Ms. Burdett that she was not in treatment for either
mental health or drug and alcohol abuse. Id. at 120. Mother claimed to be
employed as a grocery store cashier and as a certified nursing assistant, but
did not provide documentation. Id. Ms. Burdett encouraged Mother to
provide documentation of housing, employment, and treatment, as well as
what her daycare plans would be for Child. Id. Mother replied that she had
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“friends” lined up. Id. Ms. Burdett informed Mother that she would have to
provide information for background checks for Child’s caretakers. Id. Mother
never provided this information. Id.
Mr. Duncan, a caseworker for the Agency, testified that from the January
2019 hearing through the May 2019 hearing, Mother had her own residence,
and was drug testing through SOS when workers dropped Child off for visits.
Id. at 56, 134. Mother only tested positive for drugs she was prescribed. Id.
Mother informed Mr. Duncan that she was moving to Johnstown, Cambria
County because she had a solid support system there. Id. at 135. Upon
Mother’s discharge from her latest treatment program, Mr. Duncan spoke with
Kimberly Beaver, Mother’s counselor, about her further recommendations for
Mother’s care. Id. Mother informed Mr. Duncan that she had made several
phone calls to agencies in the area and had completed an intake in February
2019, but Mr. Duncan never received confirmation that she had done so. Id.
at 136, 148. Mother also informed Mr. Duncan that she had met with a
counselor at ACRP named Tessa, but, when Mr. Duncan called ACRP, no
employee named Tessa existed. Id. To Mr. Duncan’s knowledge, Mother was
not involved in drug and alcohol treatment or mental health treatment after
that time. Id. at 137. Mother continued to submit negative drug screens
after the May 2019 hearing. Id. The last time Mr. Duncan spoke with Mother
was the day prior to the termination hearing. Id. at 138. Mother stated she
was able to keep her housing in Johnstown, but she did not provide proof of
a rent receipt. Id.
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Mr. Bowers testified that he is employed by the Butler County Adult
Probation and Parole Department. N.T., 6/26/19, at 17. Mr. Bowers
supervised Mother after she was sentenced for two DUIs in August 2018. Id.
Although Mother was living in Cambria County, Pennsylvania, at the time, she
was not contacting the probation department there, and the case was sent
back and forth between Butler and Cambria counties until Mother was brought
in for a probation violation hearing in June 2019 for failing to complete the
terms of her house arrest. Id. at 17-19. Although Mother had originally been
sentenced to intermediate punishment, a court revoked that sentence and
resentenced Mother to thirty-two days to one year in prison. Id. Mr. Bowers
believed Mother was due to be released July 15, 2019. Id.
Mr. Duncan testified that Mother did not provide any explanation as to
why she had not checked in with Cambria County’s probation and parole
department. Id. at 138-39. Mother did not advise Mr. Duncan that she would
be in need of child care during her parenting time or provide the name of any
child care providers, and there was no explanation provided as to why SOS
was leaving Child in the care of someone the Agency did not know and who
had not been given a background check. Id. at 165-68.
Dr. Chambers testified that he is a licensed psychologist who conducted
bonding assessments and a psychological examination of Mother in October
2018. Id. at 170-71, 179. Mother had an extensive mental health history
which included inpatient treatment for suicidal ideation, as well as years of
drug and alcohol addiction. Id. at 170-72. Mother also had a criminal history
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with multiple DUIs in one month. Id. at 172. Personality testing conducted
on Mother revealed significantly elevated levels on the scales of depression
and antisocial behavior, and elevated levels of schizophrenia and social
isolation. Id. at 175. These findings were consistent with Mother’s extensive
chronic mental health history. Id. Dr. Chambers believed that Mother was at
high risk for relapse based upon her history. Id.
The trial court also heard conflicting testimony regarding Mother’s
apparent attempts to have Child left with unknown individuals in April of 2019.
Mother testified that M.A. is a friend she met in recovery, and that “Brenda
from SOS” told Mother that she could have M.A. watch Child so long as she
had a photo identification. Id. at 238-39. Ms. Brenda Alter, the executive
director at SOS, testified that, in April 2019, she was informed by one of her
workers that Mother’s boyfriend would be taking Child following Child’s
transportation for a visit. Id. at 208. Ms. Alter testified that she was “not
okay” with that as she had not met this individual, and she contacted Mother’s
caseworker and Mother. Id. Mother told Ms. Alter that M.A. would be taking
Child and that she did not have a boyfriend. Id. Ms. Alter contacted Mr.
Duncan. Id. Ms. Alter testified that she spoke personally with Mr. Duncan.
Id. at 215-16. Mr. Duncan indicated this would be fine as long as there was
photo I.D. indicating that M.A. was who she said she was. Id. On April 6,
2019, Child was dropped off with M.A. Id. at 209.
Mr. Duncan denied approving of having Child left with M.A. Id. at 153-
54. According to Mr. Duncan, he spoke with Ms. Alter, and she informed him
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that Mother would not be present for Child’s drop-off. He informed Ms. Alter
that they would need additional information “so that [the Agency] can do what
we need to do on our end.” Id. at 153. Ms. Alter then left a message
indicating that “[e]verything is good, we’re good to go,” which he took to
mean that Mother had rearranged her schedule. Mr. Duncan stated that Ms.
Alter and Mother provided him no additional information or names. Id. at
153-54.
Based on the foregoing review of the record, we find support for the trial
court’s findings that while Mother made progress in structured environments,
she failed to complete her mental health goals and was unable to demonstrate
an ability to maintain stability for herself and Child on her own. We
acknowledge that Mother testified to her difficulties arranging for mental
health treatment following her move to Cambria County and that she
attempted to comply with the terms of her probation. However, the record
supports the trial court’s credibility determinations and findings of fact on this
issue. Accordingly, this Court will not disturb them. Furthermore, based on
the trial court’s findings, we agree with Counsel’s conclusion that an appeal of
the trial court’s ruling under Section 2511(a)(2) is frivolous.
Section 2511(b)
Section 2511(b) provides:
(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,
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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. § 2511(b).
It is well settled that “the court must take into account whether a bond
exists between child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.” Z.P., 994 A.2d at 1121. The
court is not required to use expert testimony, and social workers and
caseworkers may offer evaluations as well. Id. Ultimately, the concern is the
needs and welfare of a child. Id.We have stated:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011); see also In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
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2008) (stating that the court may emphasize the safety needs of the child).
Where there is no evidence of a bond between the parent and child, it is
reasonable to infer that no bond exists. Id. “[A] parent’s basic constitutional
right to the custody and rearing of . . . her child is converted, upon the failure
to fulfill . . . her parental duties, to the child’s right to have proper parenting
and fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal
citations omitted).
Here, the trial court observed:
This case, like so many others, underscores unfortunate and
disheartening effect these actions may have on parents.
However, the effect the action has on a parent cannot be used as
a reason to set aside the best interest of a child where the parent
has failed to fulfill his or her parental duties. The overwhelming
need for the child to have timely permanency must be considered.
* * *
While Mother may have a bond with Child, the mere existence of
the bond between Mother and Child is not sufficient. This bond
should be positive for [C]hild. Stability and family permanence
are critical to the health and welfare of dependent [c]hildren. In
considering this bond, the trial court must consider damage that
may be done to the child by a prolonged, unhealth bond with a
parent, especially as it may affect the child’s ability to form
attachments to foster families who could provide the necessary
love, care and stability that the child needs.
In this case, Mother’s long-term drug use, failure to seek
appropriate mental health care, and inability to maintain stability
has created significant negative consequences for Child.
Mother[’s] failure to understand the consequences of her choices
makes the likelihood of her ability to develop an appropriate
parental bond to enable her to provide Child with the necessary
stability and permanency that she requires highly unlikely. Dr.
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Chambers explained that Mother has a significant mental health
history, with chronic anti-social behavior, and struggles with drug
and alcohol problems. Specifically, Mother experiences significant
issues with depression, anxiety, impulse control and a low
frustration tolerance. Dr. Chamber[s] specifically opined that
Mother . . . has a high potential for relapse, and that her
subsequent incarceration for failure to communicate with the
Cambria County Probation and Parole Office only provides further
[support to] his opinion. Dr. Chambers explained that Mother’s
personal struggles concerning her mental health and significant
potential for relapse will compromise her ability to effectively
parent [C]hild. While Mother was able to maintain a drug-free
lifestyle during the year prior to the hearing while primarily
residing in a highly structured and supportive setting, her
significant history of relapse, the most recent being March of
2018, combined with her significant mental health problems, and
failure to accept responsibility for her actions, lead this [c]ourt to
the inescapable [conclusion] that any negative consequences
[C]hild may experience from the severance of any bond with
Mother is greatly outweighed by her need for stability and
permanency.
[C]hild’s need for permanency and the close bond between [C]hild
and the Kinship Placement Family outweigh any potential harm to
[C]hild from the severing of Mother’s parental rights. As stated
above, the [foster family] have been [C]hild’s parental figures
since July 6, 2017. [C]hild has bonded with the [foster family]
and has formed a family unit living in [the foster family’s] home
with their other two [children]. The [foster family] provide[s
C]hild with the stability, love and support that Child needs.
Moreover, the [foster family] are a pre-adoptive resource for
[C]hild.
See Trial Ct. Op., 7/15/19, at 21-23 (citations omitted).
A review of the record reveals that Ms. Burdett observed Child
interacting with her kinship foster parents. Id. at 121. Child seemed
comfortable with her foster parents and sought them out for her needs. Id.
at 122. Child has not visited with Mother since Mother’s incarceration. Id. at
128.
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Mr. Duncan testified that Child is receiving services solely for child
preparation. Id. at 139. She is up to date medically and physically. Id. Child
is doing well in school and is involved in gymnastics and other activities with
her kinship family and their biological children. Id. at 140. Child seeks out
her foster mother for her needs and for comfort and affection. Id. Child is
very bonded with her foster siblings. Id. at 140-41.
Dr. Chambers testified that, in his observations, Mother’s interactions
with Child were appropriate and affectionate. Id. at 173. Mother did have a
bond with Child, but her parenting ability was compromised by her history of
mental health and drug and alcohol issues. Id. at 177. Dr. Chambers felt
that Mother’s personal struggles would compromise her capacity to effectively
parent going forward and recommended that any eventual reunification be
based upon Mother’s maintenance of sobriety for a year and to engage in dual
diagnosis treatment. Id. at 178-79.
Based on the foregoing, we discern no abuse of discretion in the trial
court’s conclusion that Child’s needs and welfare are best served by
termination. Moreover, we agree with Counsel’s assessment that a challenge
to the trial court’s analysis of Section 2511(b) based on a failure to consider
the nature and extent of bonding is frivolous.
Reasonable Efforts
In In re D.C.D., 105 A.3d 662 (Pa. 2014), our Supreme Court concluded
that neither Section 2511(a) nor (b) “requires a court to consider the
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reasonable efforts provided to a parent prior to termination of parental rights.”
D.C.D., 105 A.3d at 672. Further, the Court explained:
We also do not find reasonable efforts are required prior to
termination when Section 2511 of the Adoption Act, entitled
“Grounds for termination,” is read in conjunction with Section
6351 of the Juvenile Act, entitled “Disposition of dependent child.”
. . . Instead of a requirement to provide reasonable efforts prior
to the filing of a termination petition, Section 6351 actually
creates an exception that excuses the filing of an otherwise
required termination petition, as explained below.
* * *
Accordingly, while reasonable efforts should be considered and
indeed, in the appropriate case, a trial court could insist upon their
provision, we hold that nothing in the language or the purpose of
Section 6351(f)(9) forbids the granting of a petition to terminate
parental rights, under Section 2511, as a consequence of the
agency's failure to provide reasonable efforts to a parent.
Id. at 672–75.
Instantly, it appears that Counsel raises this issue as a challenge to the
trial court’s dependency ruling rather than the termination ruling. However,
as our Supreme Court has made clear, an agency’s failure to provide
reasonable efforts will not prevent the trial court from granting a petition to
terminate a parent’s rights under Section 2511(a)(2) or (b). See id. In any
event, we agree with the trial court that the record does not support a claim
that the Agency’s efforts were unreasonable under the circumstances of this
case. See Trial Ct. Op., 11/12/19, at 34-36. Accordingly, this issue is
frivolous.
Conclusion
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Having reviewed the issues raised by Counsel in her amended
Anders/Santiago brief, we agree that Mother’s intended issues in this appeal
are frivolous. Our independent review also reveals no issues of arguable
merit. Accordingly, we affirm the order terminating Mother’s parental rights
and grant Counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2021
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