In the Int. of: A.D.F., Appeal of: R.F. ( 2021 )

J-S13016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.D.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: R.F., MOTHER : No. 2300 EDA 2020
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-000020-2020
IN THE INTEREST OF: A.M.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: R.F., MOTHER : No. 2302 EDA 2020
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-000021-2020
IN THE INTEREST OF: M.D.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: R.F., MOTHER : No. 2303 EDA 2020
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000022-2020
J-S13016-21
IN THE INTEREST OF: M.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: R.F., MOTHER : No. 2304 EDA 2020
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0003349-2017
IN THE INTEREST OF: A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: R.F., MOTHER : No. 2323 EDA 2020
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0003350-2017
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JULY 20, 2021
Appellant, R.F. (“Mother”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas, which granted the petitions of
the Philadelphia Department of Human Services (“DHS”) for involuntary
termination of Mother’s parental rights to her minor children, A.D.F., A.M.S.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
-2-
J-S13016-21
and M.D.S. (“Children”),1 and changed Children’s permanency goals to
adoption.2 We affirm and grant counsel’s petition to withdraw.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On December 18, 2017, [DHS] received a General
Protective Services (“GPS”) report which alleged Mother left
her Children [A.D.F.] (9 months old); [A.M.S.] (2 years old)
and [M.D.S.] (3 years old) in the family home without adult
supervision. Mother had a history of mental health issues
and demonstrated a history of unstable housing. On
December 20, 2017, as a result of the GPS report, DHS
obtained an Order of Protective Custody (“OPC”) for
Children. On March 14, 2018, …Children were adjudicated
dependent and Mother was referred to the Family Court of
Philadelphia Clinical Evaluation Unit (“CEU”) for a forthwith
drug screen. On April 17, 2018, Mother failed to report to
the CEU to submit to a random drug screen. On June 6,
2018, CEU reported that Mother tested positive for cannabis
following a random drug screen. On December 17, 2019,
the Community Umbrella Agency (“CUA”) held a revised
Single Case Plan (“SCP”) meeting. … The objectives
identified for Mother were (1) to attend a drug and alcohol
assessment and comply with any recommendations of the
____________________________________________
1 A.M.S. and A.S. refer to the same child. M.D.S. and M.S. refer to the same
child.
2 Mother filed notices of appeal from each of the orders involuntarily
terminating her parental rights to each child. Mother, however, only filed
notices of appeal from the orders changing A.M.S.’s and M.D.S.’s permanency
goals to adoption. Mother did not file an appeal from the order changing
A.D.F’s permanency goal to adoption. Thus, Mother has waived any claims
concerning A.D.F’s goal change. See In re Adoption of A.H., 247 A.3d 439(Pa.Super. 2021) (waiving mother’s issue concerning change of child’s
permanency goal to adoption where mother filed single notice of appeal from
termination decree and failed to file notice of appeal from separate goal
change order). Nevertheless, we will continue to refer to A.M.S., M.D.S., and
A.D.F. collectively as “Children” when discussing the termination and goal
change issues.
-3-
J-S13016-21
assessment; (2) to complete three random drug screens;
(3) to attend CEU for dual diagnosis recommendations; (4)
to attend supervised visitation with …Children; (5) to attend
and complete parenting classes; (6) to obtain appropriate
housing; (7) to provide proof of employment and participate
in employment services and (8) comply with CUA services
and sign the required releases for herself and …Children.
On January 9, 2020, DHS filed separate Petitions to
Terminate Mother’s Parental Rights as to each child alleging
that Mother failed to achieve certain [SCP] objectives
including obtaining suitable housing and maintaining regular
visitation with …[C]hildren. These SCP objectives were
made known to Mother on more than one occasion by DHS
and the trial court. At the conclusion of a hearing on
November 12, 2020, the trial court found clear and
convincing evidence to involuntarily terminate the parental
rights of Mother and to change the goal of …Children to
adoption pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8) and 23 Pa.C.S.A. § 2511(b). The Notice[s] of Appeal
[and Pa.R.A.P. 1925 concise statements of matters
complained of on appeal were] filed by Mother on December
7, 2020.
(Trial Court Opinion, dated November 12, 2020, at 2-3) (internal citations
omitted). On February 10, 2021, this Court consolidated Mother’s appeals sua
sponte.3 Additionally, on March 11, 2021, Mother’s counsel filed an Anders4
brief and application to withdraw in this Court.
As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
____________________________________________
3 Children’s fathers are not parties to this appeal.
4 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
-4-
J-S13016-21
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise her of
her right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
-5-
J-S13016-21
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361. See also In re J.D.H., 171 A.3d 903, 905-
06 (Pa.Super. 2017) and In re V.E., 611 A.2d 1267, 1275 (Pa.Super. 1992)
(explaining that Anders procedure applies in appeals from termination of
parental rights and goal change orders).
Instantly, Mother’s counsel filed a petition to withdraw and an Anders
brief. Counsel claims to have conducted a conscientious review of the record
and determined the appeal is wholly frivolous. Counsel supplied Mother with
a copy of the brief and a letter explaining Mother’s rights to retain new counsel
or to proceed pro se. In the brief, counsel provides a summary of the facts
and procedural history of the case. Counsel’s argument refers to relevant law
that might arguably support Mother’s issues. Counsel further states the
reasons for her conclusion that the appeal is wholly frivolous. Thus, counsel
has substantially complied with the requirements of Anders and Santiago.
See Wrecks, supra.-6-
J-S13016-21
Counsel raises the following issues on Mother’s behalf:5
Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights, under 23
Pa.C.S.A. sections 2511(a)(1), (2), (5) & (8) when Mother
presented evidence that would have substantiated the
denial of the petitions to involuntarily terminate her parental
rights and change the goal to adoption.
Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights, and
changed the child’s goal to adoption pursuant to 23
Pa.C.S.A. Section 2511(b), when DHS failed to prove by
clear and convincing evidence that involuntarily terminating
her parental rights best served the needs and welfare of her
children.
(Anders Brief at 6).
In Mother’s issues combined, she challenges the trial court’s decision to
terminate her parental rights and change Children’s permanency goals to
adoption. Mother claims she complied with some of her SCP objectives while
Children’s permanency goal was reunification. Mother also insists she has a
strong bond with Children and terminating her parental rights to them and
changing their permanency goals to adoption is not in Children’s best interest.
Mother concludes that the trial court erred in terminating her parental rights
and changing Children’s goals to adoption where the court lacked clear and
convincing evidence that the statutory grounds for termination were met
under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). We disagree.
____________________________________________
5 Mother has not responded to the Anders brief pro se or with newly-retained
private counsel.
-7-
J-S13016-21
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
-8-
J-S13016-21
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
DHS filed petitions for the involuntary termination of Mother’s parental
rights to Children on the following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to
a child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or subsistence
necessary for [her] physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
-9-
J-S13016-21
reasonable period of time and termination of the parental
rights would best serve the needs and welfare of the
child.
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led
to the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
* * *
(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, 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.A. § 2511(a)(1), (2), (5), (8) and (b). “Parental rights may be
involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117. When conducting a termination 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…[her] parental rights does the court engage
in the second part of the analysis pursuant to Section
- 10 -
J-S13016-21
2511(b): determination of the needs and welfare of the child
under the standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to the
filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his or her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
- 11 -
J-S13016-21
close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
In this context, 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.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
Instantly, Children have been in placement since December 20, 2017,
due to Mother’s drug use and abandonment of Children at home without adult
supervision. At the termination hearing on November 12, 2020, Carolyn
Smith, a CUA representative, testified that Mother has not visited Children
since February 2018, and has repeatedly failed to meet her SCP objectives.
Specifically, Ms. Smith testified that Mother has failed to complete parenting
classes or drug, alcohol, and mental health treatment, and has failed to
provide proof of adequate housing.
Additionally, Ms. Smith testified that Children share a parent-child bond
with their respective foster parents. Ms. Smith agreed that Children’s foster
parents give Children love, safety, stability, and support, and provide for
Children’s medical, emotional, and developmental needs. Ms. Smith
concluded there would be no irreparable harm to Children if separated from
Mother, and adoption was in Children’s best interest.
- 12 -
J-S13016-21
Similarly, Roya Paller, an independent social worker, testified that
Children appeared to have bonded with their respective foster parents and
that each foster home was adequate. Ms. Paller testified that the two older
children, A.M.S. and M.D.S., indicated that they were amenable to adoption.
Ms. Paller explained that the youngest child, A.D.F, was preverbal at the time
of her interview. Nevertheless, Ms. Paller testified that she observed
nonverbal signs of attachment and bonding between A.D.F and his foster
parent.
Finally, Mother testified at the November 12th hearing, as well. Mother
admitted that she failed to complete the majority of her SCP objectives, and
only completed the housing and financial management programs. Mother also
explained that she stopped visiting Children because “[she] just really had a
lot going on.” (N.T. Hearing, 11/12/20, at 58). Mother testified that she was
living with her mother at the time.
On this record, Mother has demonstrated a refusal or failure to perform
parental duties warranting termination of her parental rights under Section
2511(a)(1). See 23 Pa.C.S.A. § 2511(a)(1); Z.S.W., supra. Thus, we need
not address the remaining Section 2511(a) subsections. See In re Z.P.,
supra at 1117. Further, the record makes clear termination will best serve
the needs and welfare of Children, per Section 2511(b). See 23 Pa.C.S.A. §
2511(b); Z.P., supra. By virtue of our decision to affirm the court’s
termination orders, Mother’s goal change complaints are moot. See A.H.,
- 13 -
J-S13016-21
supra at 445 (explaining that effect of our decision to affirm termination
decree necessarily renders moot dependency court’s decision to change
Child’s goal to adoption); Interest of D.R.W., 227 A.3d 905, 917 (Pa.Super.
2020) (stating: “An issue before a court is moot if in ruling upon the issue the
court cannot enter an order that has any legal force of effect”).
Following our independent review of the record, we agree with counsel
that the appeal is frivolous. See Dempster, supra. Accordingly, we affirm
and grant counsel’s petition to withdraw.
Orders affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
- 14 -