In Re: J.S., Appeal of: J.S., Sr. ( 2021 )

J-S15032-21
J-S15033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., SR., FATHER :
:
:
:
:
: No. 1137 WDA 2020
Appeal from the Order Entered September 23, 2020
In the Court of Common Pleas of Jefferson County Civil Division at
No(s): CP-33-DP-0000052-2017
IN RE: J.D.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., SR., FATHER :
:
:
:
:
: No. 1138 WDA 2020
Appeal from the Order Entered September 23, 2020
In the Court of Common Pleas of Jefferson County Civil Division at
No(s): CP-33-DP-0000053-2017
J-S15032-21
J-S15033-21
IN RE: J.D.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.S., MOTHER :
:
:
:
:
: No. 1139 WDA 2020
Appeal from the Order Entered September 25, 2020
In the Court of Common Pleas of Jefferson County Civil Division at
No(s): CP-33-DP-0000053-2017
IN RE: J.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.S., MOTHER :
:
:
:
:
: No. 1140 WDA 2020
Appeal from the Order Entered September 25, 2020
In the Court of Common Pleas of Jefferson County Civil Division at
No(s): CP-33-DP-0000052-2017
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JULY 1, 2021
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
-2-
J-S15032-21
J-S15033-21
Appellants, J.S., Sr. (“Father”) and K.S. (“Mother”) appeal1 the September 23,
2020 Orders that changed the permanency goal for their children, J.S., a
female born in December 2003, and J.D.S., a male born in July 2007
(collectively, “the Children”), from reunification to adoption, pursuant to the
Juvenile Act, 42 Pa.C.S. § 6351. Additionally, Father’s counsel filed a motion
to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
we affirm the goal change orders and grant counsel’s motion to withdraw.
As a matter of background, Jefferson County Children and Youth
Services (“CYS”) has been involved with this family since 2017. On July 13,
2017, CYS filed dependency petitions and alleged that the Children were
without proper parental care or control. 42 Pa.C.S. § 6302(1). Specifically,
CYS received a report that indicated that the Children were physically fighting
with one another, throwing things, and not listening to Mother. Mother stated
several times to a service provider that she could not handle the Children any
longer and she wanted them out of her home. On August 30, 2017, the trial
court held a hearing on the dependency petitions. In orders dated August 30,
2017, and entered on September 6, 2017, the trial court adjudicated the
____________________________________________
1 This Court, on November 25, 2020, sua sponte consolidated Father’s appeals
with regard to each of the Children. On December 1, 2020, this Court also
sua sponte consolidated Mother’s appeals with regard to each of the Children.
On December 8, 2020, the trial court filed one Opinion in this matter that
addressed both parents’ challenges to the goal change of the Children. Thus,
we address both parents’ challenges in one memorandum for ease of
disposition.
-3-
J-S15032-21
J-S15033-21
Children dependent. The orders directed that the Children remain in their
separate foster care placements. On June 27, 2018, the trial court ordered
termination of court supervision, and reunified the Children with Mother and
Father. However, CYS continued to receive multiple referrals regarding the
family.
On November 10, 2019, CYS received a report that J.S. returned home
from the Meadows Psychiatric Center and resumed her previous behaviors of
screaming, not listening, and refusing to follow instructions. Mother and J.S.
engaged in a verbal altercation that prompted the caseworker to call the
police. On November 12, 2019, the trial court granted CYS emergency
protective custody of J.S., and she was placed in foster care. On December
5, 2019, J.S. was placed in a Group Home at Pathways Adolescent Center
because her foster care placement was not able to manage J.S.’s behaviors.
Mother and Father eventually ended their tumultuous relationship, and J.D.S.
remained in Father’s home. On July 24, 2020, J.S. moved to a Group Home
at Bethesda Lutheran Services because her previous placement did not believe
that J.S. would make any more progress with them. On September 17, 2020,
J.S. moved to a Residential Treatment Facility at Perseus House-Andromeda
House for her to receive the mental health services she requires.
On or about July 31, 2020, the trial court granted CYS emergency
custody of J.D.S. due to lack of parental care and control in Father’s home.
N.T., 9/23/20, at 5. At that time, Mother was incarcerated because she
-4-
J-S15032-21
J-S15033-21
violated a PFA order that Father filed against her. Id. at 20 and 25. J.D.S.
was placed in the same foster care home where he previously resided. On
August 4, 2020, the trial court adjudicated J.D.S. dependent. On September
2, 2020, the trial court entered a no-contact order between Father and CYS
because Father was continuously verbally abusive, harassing, and behaved
inappropriately to all personnel assigned to assist the family in the home.
The trial court held an adjudication hearing on September 23, 2020.
Rebecca Sallack, a caseworker for CYS, testified that the underlying basis for
emergency custody of J.D.S. was due to the “continuous trauma that this child
has dealt with over the course of his life.” Id. at 29. More specifically, she
testified that Father constantly “badmouthed” and made “inappropriate
comments” about Mother, in front of J.D.S., to the home health nurse, to CYS
and to service providers. Id. at 7. Ms. Sallack stated that Father was
argumentative when asked if pest management could perform an evaluation
after reports of a bed bug infestation of the home. Id. at 8. Ms. Sallack
explained that Father “fought” CYS until “after multiple attempts he eventually
gave in and said, Whatever, with an attitude, to have the home looked at….
[W]hen pest management did the evaluation, they found bed bugs in the
home. [Father] then stated that [CYS] asked pest management to say there
was [sic] bed bugs in the home.” Id. Father was also argumentative
regarding counseling for J.D.S. Id. at 9. Ms. Sallack stated that multiple
service providers indicated that Father behaved inappropriately, was
-5-
J-S15032-21
J-S15033-21
aggressive, and made them feel uncomfortable. Id. at 10-11. Ms. Sallack
explained that Father was “constantly argumentative, belligerent, verbally
aggressive, takes very little responsibility for his part of the kids being
removed, [and] blames [Mother] for the majority of the issues.” Id. at 12.
Ms. Sallack recounted an incident where Father choked J.S. and admitted that
he told J.S. “she will have to be a little [f------] whore to keep a roof over her
head.” Id. at 13-14.
With regard to Mother, Ms. Sallack testified that there was an extensive
history of Mother’s aggressive behavior towards Father and the Children. Id.
at 27. Notably, Ms. Sallack testified that a no-contact order was put in place
between J.S. and Mother because “the phone calls [between them] were
getting aggressive, and [J.S.’s] behaviors were increasing…she was fighting
with peers, fighting with staff, threatening to harm herself, [and] threatening
suicide.” Id. at 17 and 26. Ms. Sallack testified that chaos, noise, and
arguments exacerbate symptoms of anxiety for J.S. Id. at 34. Ms. Sallack
explained that J.S. should avoid conflicts and interactions with people who
cannot manage their behaviors, and recommended a goal change for J.S. Id.
Ms. Sallack opined that the Children need a plan for permanency. Id.
at 27. She explained, “[t]his has gone on entirely too long, and it’s- - like I
said, this is not something that’s new. If you go back through the case record,
and this fighting and this bickering and the police [being] called, this is years
and years and years on these kids.” Id. at 27.
-6-
J-S15032-21
J-S15033-21
On the record at the conclusion of the September 23, 2020 hearing, the
trial court stated it would change the Children’s goals to adoption, and it
entered the orders on that same date. On October 29, 2020, Father and
Mother timely filed notices of appeal, along with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
January 29, 2021, Father’s counsel filed a motion to withdraw and Anders
brief in this Court.
Initially, we must consider the motion to withdraw that Father’s counsel
filed before we may consider counsel’s Anders brief. Here, Father is
appealing the orders changing the Children’s permanency goal to adoption,
but there have not yet been any termination decrees. Previously, this Court
has addressed whether Anders is applicable in a matter involving a goal
change. We stated that, where an appeal from a termination decree was
present, there was no question that Anders applied to the goal change as
well. We stated:
The Anders procedure, whereby court-appointed
counsel may seek to withdraw if he or she concludes
that an appeal is wholly frivolous, initially applied to
direct appeals in criminal matters. In In re V.E., 611
A.2d 1267 (Pa. Super. 1992), this Court extended the
Anders procedure to appeals from decrees
involuntarily terminating parental rights. Since then,
we have routinely applied the Anders procedure to
appeals from goal change orders, so long as the
appellant also is appealing from an involuntary
termination decree.
In re J.D.H., 171 A.3d 903, 905 (Pa Super. 2017).
-7-
J-S15032-21
J-S15033-21
However, this Court, in In re J.D.H., held that the Anders procedure
also applies in appeals from goal change orders, even in the absence of an
involuntary termination decree. Any court-appointed counsel who wishes to
withdraw under these circumstances must inform the parent of his or her right
to counsel in any subsequent dependency or involuntary termination
proceedings. Counsel must also inform the parent that, if he or she cannot
afford counsel, he or she may contact the trial court to obtain new counsel.
This information must be conveyed to the parent at the same time counsel
informs the parent of his or her other rights pursuant to Anders, as discussed
below. See In re J.D.H., 171 A.3d at 906-907.
This Court explained:
[t]o withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw
stating that, after making a conscientious
examination of the record, counsel has
determined that the appeal would be
frivolous; 2) furnish a copy of the
[Anders] brief to the [appellant]; and 3)
advise the [appellant] that he or she has
the right to retain private counsel or raise
additional arguments that the [appellant]
deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032
(Pa. Super. 2013) (en banc) (citing Commonwealth
v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009)). With
respect to the third requirement of Anders, that
counsel inform the appellant of his or her rights in light
of counsel’s withdrawal, this Court has held that
counsel must “attach to their petition to withdraw a
copy of the letter sent to their client advising him or
-8-
J-S15032-21
J-S15033-21
her of their rights.” Commonwealth v. Millisock,
873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the
following requirements:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
(2) refer to anything in the record that
counsel believes arguably supports the
appeal;
(3) set forth counsel’s conclusion that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding
that the appeal is frivolous. Counsel
should articulate the relevant facts of
record, controlling case law, and/or
statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
See In re J.D.H., 171 A.3d 907.
Here, Father’s counsel filed a brief, which includes a summary of the
history and facts of the case, a potential issue that could be raised by Father,
and counsel’s assessment of why that issue is meritless, with citations to the
record and to relevant legal authority. However, counsel initially did not file
her motion to withdraw, nor did she attach a letter to Father informing him of
his right to hire a private attorney, to proceed on his own, or to raise any
additional points he deems worthy of this Court’s attention. As a result, this
Court issued a per curiam order on February 3, 2021, instructing counsel that
-9-
J-S15032-21
J-S15033-21
she must provide Father with a new letter advising him of his rights, and
clarifying that he must exercise those rights now, before this Court rules on
his motion to withdraw.
Counsel complied with our order by filing a motion to withdraw and a
copy of a letter to Father in this Court on February 17, 2021. In her new
letter, counsel advised Father correctly that he has the right to hire a private
attorney, to proceed on his own, or to raise any additional points he deems
worthy of this Court’s attention now, and that he cannot wait until this Court
rules on counsel’s motion to withdraw. Father has not exercised any of these
rights. Thus, counsel now has complied with the requirements of Anders and
Santiago. We therefore may proceed to review the issue outlined in counsel’s
Anders brief. We must also “conduct an independent review of the record to
discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (footnote omitted). See In re J.D.H., 171 A.3d at 907.
Counsel’s Anders brief for Father raises one issue:
Whether the trial court erred in changing the
permanency goal to adoption?
Father’s (Anders) Brief, at 5.
In her brief, Mother raises the identical issue:
Whether the [trial court] erred in changing the
permanency goal to adoption?
Mother’s Brief, at 4.
- 10 -
J-S15032-21
J-S15033-21
We address this issue mindful of the following.
[T]he standard of review in dependency cases
requires an appellate court to accept the findings of
fact and credibility determinations of the trial court if
they are supported by the record, but does not require
the appellate court to accept the lower court’s
inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Further, we have instructed:
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
guide the trial court. As this Court has held, a child’s life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted).
Essentially, Mother and Father argue that CYS failed to prove that
changing the Children’s permanent placement goals from reunification to
adoption would be in their best interests. More specifically, Mother contends
that she previously demonstrated an ability to properly parent the Children
- 11 -
J-S15032-21
J-S15033-21
and that separating from Father alleviated the source of conflict. Mother’s
Brief at 11.
The trial court explained its decision to change the Children’s goals to
adoption as follows, in relevant part:
With regard to appellants’ daughter, it could not be
clearer that the goal change is in her best interests.
When CYS first became involved with the family in
2017, both parents wanted her (and her brother) out
of the home, as they could not control her (or her
brother). That was Father’s preference in November
of 2019. Neither he nor Mother could control their
daughter’s aggressive behavior, which simply
mirrored their own, and neither recognized, then or
now, his or her contribution to the girl’s anxiety and
belligerence. In the months to follow, Mother
reaffirmed her inability to create the sort of
environment her daughter needed to thrive, making it
necessary for the [c]ourt to discontinue contact
between the two when their telephone calls became
combative and caused the girl to regress in her
treatment.
Father, meanwhile, thought that telling his then 13-
year-old daughter that she would have to be a “little
[f------] whore” to keep a roof over her head was
excusable as merely the sort of thing one person tells
another in anger but does not mean. The problem,
though, was that the incident was not anomalous. On
the contrary, Father apparently thrives on anger and
turmoil, which trigger his daughter’s anxiety, and
seems to be unwilling or unable to change in that
regard. That is, in any event, the only reasonable
conclusion the [c]ourt could reach when, after
extensive [counseling]- one of the few Agency
requirements with which he has willingly complied- he
shows a disturbing lack of insight about his own
temper and other ill-considered behaviors, as well as
the psychological harm he has inflicted on his children.
At the same time, to say that he has refused to
- 12 -
J-S15032-21
J-S15033-21
cooperate with CYS would be an understatement.
More than passively refusing to comply with its
requirements, Father has been consistently
argumentative, inappropriate, and even threatening
to the point that the [c]ourt granted its request to
terminate all contact with him.
The September 23, 2020 hearing transcript, in and of
itself, is less enlightening with respect to appellants’
son. When CYS petitioned for emergency custody in
the latter half of 2020, though, it recounted various
incidents of abuse, mostly psychological, perpetrated
against the boy by both appellants. The [c]ourt
deemed those allegations to be credible, including
that the child’s denials and apparent equanimity were
occasioned by successful coaching and thus did not
necessarily reflect his actual experiences and feelings.
Those experiences, as the caseworker testified,
included constant arguments with Father, repeated
efforts by Father to belittle Mother and blame her for
all the family’s problems, and expecting a 13-year-old
boy to make adult decisions no child should be asked
to make.
Little was said about Mother’s interactions with her
son, though it was clear from the original petition that
they, too, were problematic. Without question,
moreover, Mother exposed both her daughter and her
son to the violence and ugliness that punctuated her
and Father’s relationship for years and, as indicated
above, has not gained the skills or self-awareness to
control her own impulses in order to provide the
nurturing, positive kind of environment her son needs
to become an emotionally healthy adult.
By changing the permanency goal from reunification
to adoption, the [c]ourt thereby ensured that neither
child would be returned to a volatile home situation.
As the case worker [sic] testified, the appellants’
daughter has improved since communications with
her parents were severed, and changing her goal
means that CYS can work toward finding her a stable
foster family once she returns from the residential
treatment facility she was transferred to earlier this
- 13 -
J-S15032-21
J-S15033-21
year. Out of their care, the appellants’ son is also
doing well in counselling and living with a family he
stayed with previously and which is willing to provide
a long-term home for him. By changing the
permanency goal from reunification to adoption, then,
the [c]ourt did not abuse its discretion; it instead
acted in the children’s best interests, which were the
only interests the law instructed it to consider on
September 23, 2020.
Trial Court Opinion, December 8, 2020, at 1-3.
Our review of the certified record supports the trial court’s decision. The
trial court credited Ms. Sallack’s opinion that the Children’s permanency goal
should be changed to adoption and explained the following:
I reviewed all the referrals and references to this
family and these altercations, the name-calling, Crisis
being called, police being called. None of this is new
to this family. This has been going on for many years.
Caseworkers struggle working with the family, trying
to keep them focused. It’s constant going back to the
past, and it’s so hard to get them to move forward.
Neither parent has been able to set aside their
differences with each other, the agency, anybody to
do what’s needed or necessary for their kids.
N.T., 9/23/20, at 14.
Significantly, Ms. Sallack testified that J.D.S. is doing well in his current
foster home. N.T., September 23, 2020, at 5. J.D.S. is attending counseling
and doing well in school. Id. at 5-6. His current placement is a long-term
placement option. Id. at 37. At the time of the hearing, J.S. was in placement
twenty months and twenty-nine days since 2017. Id. at 15. J.D.S. was in
placement for thirteen months and nine days since 2017. Id.
- 14 -
J-S15032-21
J-S15033-21
Our independent review of the record does not reveal any non-frivolous
issues overlooked by Father’s counsel. See Flowers, 113 A.3d at 1250; In
re J.D.H., 171 A.3d at 910. Thus, the record demonstrates that Mother and
Father remained in no position to provide appropriate parental care or control
for Children at the time of the goal change hearing, despite years of
opportunities. It was within the trial court’s discretion to conclude that the
Children’s lives should not remain on hold indefinitely, and that a goal change
to adoption would be in their best interests. See In re J.D.H., 171 A.3d at
910 (quoting In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006))
(“‘[A] child’s life cannot be held in abeyance while a parent attempts to attain
the maturity necessary to assume parenting responsibilities. The court cannot
and will not subordinate indefinitely a child’s need for permanence and
stability to a parent’s claims of progress and hope for the future.’”).
Based on the foregoing analysis, the trial court did not abuse its
discretion by changing the Children’s permanent placement goals to adoption.
Therefore, we affirm the trial court’s September 23, 2020 order. Father’s
counsel’s motion to withdraw pursuant to Anders is granted.
Order affirmed. Father’s counsel’s motion to withdraw granted.
- 15 -
J-S15032-21
J-S15033-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2021
- 16 -