In Re: H.B., Appeal of D.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: H.B., MINOR CHILD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.B., MOTHER :
:
:
:
:
: No. 146 WDA 2022
Appeal from the Order Entered December 29, 2021,
in the Court of Common Pleas of Allegheny County,
Civil Division at No(s): CP-02-AP-0000078-2020.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 30, 2022
In this matter, D.B. (Mother) appeals the order terminating her parental
rights to her three-year-old son H.B. pursuant to the Adoption Act. See 23
Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). Additionally, Mother’s counsel has
filed an application to withdraw and a brief, pursuant to Anders v. California,
386 U.S. 738 (1967). After review, we affirm, and grant counsel leave to
withdraw.1
The record discloses the following factual and procedural history: The
Child was born in September 2018. At the time of his birth, Mother had an
active case with the Allegheny County Office of Children, Youth and Families
(the Agency) involving the Child’s older sibling. Mother’s involvement with
the Agency was due to her mental health history, drug and alcohol issues,
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1 The trial court also terminated the rights of an unknown father.
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intimate partner violence, physical neglect of the Child’s older sibling, and
homelessness. Mother had not remedied these conditions by the time of
Child’s birth and she remained homeless. Thus, two days following his birth,
the Agency placed the Child in foster care where he has remained.
The Child was adjudicated dependent on January 9, 2019. Mother’s
Family Service Plan (FSP) goals were to: address mental health problems,
address domestic violence, complete a parenting program, have a drug and
alcohol assessment, and acquire appropriate housing. The Agency’s primary
concern, however, was that Mother needed to understand and accept her
mental health diagnosis and receive appropriate treatment.
On June 12, 2020, the Agency petitioned to terminate Mother’s rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). The orphans’ court
conducted a hearing over the course of three days between May and October
2021. At the May 28, 2021, the Agency presented the testimony from two
caseworkers that worked with Mother, as well as Dr. Terry O’Hara. The
orphans’ court summarized its factual findings as to the Agency caseworkers’
testimony as follows:
The testimony by the [Agency’s] caseworker . . . outlines
[Mother’s] mental health history, the issues that she presented,
her involvement with the [Agency] attempting to make reasonable
efforts to resolve her mental health issues, and the fact that
[Mother’s] mental health issues have never been resolved. Most
importantly, the Agency considered [Mother’s] mental health to
be the primary issue regarding the Child. [Mother’s] mental
health goal required that [she] receive, understand and accept her
diagnosis in order to receive the correct treatment. [Mother] was
diagnosed with a psychotic disorder and she sent numerous
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different [diagnoses] to the Agency through various providers.
[Mother] would continue to state that she has an anxiety disorder.
The overtures, responses and interactions by [Mother] with the
[Agency] caseworker, demonstrated [Mother’s] volitivity and
instability. . . . [The caseworker] testified that the interactions
with [Mother remained] combative until she began treatment with
Mercy Behavioral Health in March of 2020. This program reports
that [she] has a therapist and gets an Invega shot once a month.
Repeatedly, [Mother] continues to declare that she only suffers
from an anxiety disorder despite being diagnosed with an
additional psychotic disorder. Historically, [Mother], prior to her
treatment at Mercy Behavioral Health has a number of admissions
at Western Psychiatric Hospital in Pittsburgh and in December
2019, [she] was involuntarily committed by a homeless shelter to
The Western Psychiatric Institute due to her out of control
behavior.
0rphans’ Court Opinion 2/14/22 at 3-4 (capitalization adjusted).
The orphans’ court further determined from the Agency caseworker’s
testimony that Mother “has had no experience caring for the [Child] outside
of visitation.” Id. at 4. With regard to the visitation issue, the court found
that Mother created “quite concerning and significant circumstances
associated with her visitation,” and recounted an incident in which Mother’s
actions during a visit required police intervention and caused the Agency to
look for a more secure facility for future visits. See id.
The orphans’ court also noted the testimony of the Agency’s expert
witness, Dr. Terry O’Hara, a forensic psychologist. Dr. O’Hara conducted three
evaluations—one between Mother and the Child, one between the Child and
Foster Mother, and one with Mother alone. Dr. O’Hara expressed concerns
that Mother refused to participate in any type of psychological testing, refused
to consent to Dr. O’Hara speaking with her psychiatrist, and refused to permit
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him to obtain updated records from Western Psychiatric. As the court further
explained:
Dr. O’Hara indicated for the benefit of the court’s
consideration and when judging [Mother’s] ability for long-term
parental capacity, that individuals, based on his experience, who
refused to believe they suffer from psychosis, that this
unfortunately prevents appropriate treatment because there is no
motivation for the relevant treatment. Further, that when a major
mental illness, like a psychotic disorder is not appropriately
addressed, one could become preoccupied with hallucination and
delusions. Under those circumstances, Dr. O’Hara opined that it
would be extremely difficult for a parent to prioritize the
developmental and emotional needs of a child. Dr. O’Hara
specifically articulated that a parent suffering from such delusions
is preoccupied with their own psychotic brain work. In this case,
concerns about the parent who believes they are being sabotaged,
watched or manipulated. In support of [his] findings, Dr. O’Hara
stated that the research into this dynamic shows that this can be
an adverse childhood experience and places the child at risk for
mental illness, substance abuse and medical concerns as well as
noting that there are a multitude of studies on this subject.
Orphans’ Court Opinion, 2/14/22, at 7-8 (citations to record omitted;
capitalization adjusted).
At the next hearing date, August 6, 2021, Mother presented testimony
from a doctor who treated her and discharged her from Western Psychiatric in
February of 2020. In addition, Mother called her own mother to testify on this
date.
The final evidentiary hearing occurred on October 1, 2021. Mother first
presented testimony from an adult outpatient therapist at Mercy Behavioral
Health that had been providing Mother therapy since September of 2020, as
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well as a parenting mentor and a family support partner. Mother then testified
on her own behalf. As the orphans’ court explained:
Importantly, the court carefully reviewed and considered
the testimony of [Mother] as she presented for the court’s
consideration. The court appreciates [Mother] sharing her
feelings with the court, her intentions, and her world view
of her own personal history and her perspective of her
experience and preparedness to parent the [Child]. The
court recognizes that a significant portion of [Mother’s]
testimony was historic in nature and her attempt to
persuade the court that the [reality] of this case as refenced
throughout the court’s record is not an accurate reality.
When the court reviews the substantiated testimony
provided for the court’s consideration including the
testimony of the CYF caseworker, Dr[.] O’Hara and related
portions of the testimony of other witnesses, this court finds
that it is [Mother’s] view which is not realistically based.
Portions of her testimony [were] in the form of dialogue that
this court finds, as critical to assessing [Mother’s]
testimony, that her testimony was not only unrealistic in
parts but also unfounded and also contrary to the social and
legal expectations of her and her ability to achieve
reunification with the [Child]. Aside from the historical
information that [Mother] provided by way of her testimony,
her testimony concerning the events which were more
recent and her current intentions, can best be described as
too little, too late. In that, the four corners of [Mother’s]
testimony lends support to this court finding that [Mother’s]
incapacities are on-going, that the reasons for the [Child’s]
removal continue to exist, and that [Mother’s] incapacities
will not be resolved within a reasonable amount of time.
Orphans’ Court Opinion, 2/14/22, at 14-15 (capitalization adjusted).
By order entered December 29, 2021, the court granted the Agency’s
petition. Mother appealed. Both Mother and the orphans’ court complied with
Pennsylvania Rule of Appellate Procedure 1925.
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Before we address her appeal, we note that Mother’s counsel has filed
a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 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;
(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
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2 This Court extended the Anders principles to appeals involving the
termination of parental rights. In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014)
(citation omitted).
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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).
Preliminarily, we find that Counsel has substantially complied with the
technical requirements to withdraw.3 See Commonwealth v. Reid, 117 A.3d
777, 781 (Pa. Super. 2015) (observing that substantial compliance with the
Anders requirements is sufficient).
In addition to verifying that Counsel substantially complied with Anders
and Santiago, this Court also must “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). Flowers does not require us “to act as counsel or
otherwise advocate on behalf of a party.” Commonwealth v. Dempster, 187
A.3d 266, 272 (Pa. Super. 2018) (en banc). “Rather, it requires us only to
conduct a simple review of the record to ascertain if there appear on its face
to be arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Id. Traditionally, we would start our review by giving “a most
generous reading and review of ‘the case’ as presented in the entire record
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3 We note that counsel filed a separate petition to withdraw as counsel and
referenced therein that he sent a letter to Mother advising her of her rights
pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005)
and enclosing a copy of his Anders brief.
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with consideration first of issues raised by counsel.” See id. (citing Anders,
386 U.S. at 744).
Before we conduct our independent review, however, we first address
the issues counsel presented in the Anders brief that arguably support
Mother’s appeal. See M.C.F., 230 A.3d at 1219. The three issues presented
are as follows:
1. Did the [orphans’] court abuse its discretion and commit an
error of law when it terminated [Mother’s] parental rights under
[23 Pa.C.S.A.] §§ 2511(a)(2), (5) and (8) when [Mother]
disagreed with her mental health diagnosis, showed a
willingness to perform minimal parental duties, addressed the
[Agency’s FSP] goals, and held a relationship with the [Child]?
2. Did the [orphans’] court abuse its discretion and commit an
error of law when it found the [Agency] formulated a
reunification plan that made a reasonable effort to resolve
[Mother’s] mental health needs?
3. Did the [orphans’] court abuse its discretion and commit an
error of law when it terminated the parental rights of [Mother]
under Section 2511(b) when [Mother] loves [the Child] and
made efforts to satisfy the [Agency’s] goals for parenting the
[Child]?
Anders Brief at 9.
We review these issues mindful of our well-settled standard of review.
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
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the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Here, the trial court terminated Mother’s parental rights pursuant
to Section 2511(a)(2), (5), (8), and (b). We need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Moreover, 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).
Mother’s first and second issues involve the court’s Section 2511(a)
analysis and conclusions. As we need only agree with the orphans’ court as
to one subsection of Section 2511(a), we analyze whether the Agency properly
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established grounds for termination under Section 2511(a)(2). That section
provides in relevant part:
(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.A. § 2511(a)(2).
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
re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted). 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.Here, the orphans’ court determined that Mother’s incapacity and/or her
refusal to parent has caused the Child to be without parental care, and that
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Mother cannot or will not remedy the causes of her incapacity and/or refusal
to parent:
[Mother] in this case has continued with on-going
challenges which the court finds to be both acute and
chronic given the mental health issues that [Mother]
continues to present and which the record indicates continue
to exist. By [Mother’s] own testimony, it becomes apparent
that [she] has a world view with the manifestation of
behaviors which are clearly not stable to ensure the [Child’s]
safety or otherwise [ensure] the [Child’s] needs being met.
Despite the best efforts of the [Agency], [Mother’s]
incapacities are on-going and unrelenting. [She] is in denial
in a number of respects and fails to understand those
commitments required of her to herself in maintaining
stability.
Furthermore, [Mother] has not demonstrated sufficient
progress to the degree that her stabilization has allowed for
her own independence emotionally and therefore [is] unable
to respond to the [Child’s] needs. [Mother] at times has
been resistant to participating in the necessary level of
therapeutic services and lacks the understanding to make
the good faith efforts required of her towards reunification.
The outcomes that [she] has demonstrated have resulted in
impediments to [her] ability to provide day-to-day care and
address the [Child’s] needs and welfare. Unfortunately,
given the mental health history associated with [Mother]
and all of her children being out of her care, there appears
to be a cycle that apparently [Mother] cannot resolve and
has rendered her incapable of safely and rationally providing
parental duties for the [Child]. The court acknowledges that
in several of the areas related to [Mother’s] Family Service
Plans, that [she] has made some progress but this progress
comes in the late hours of the [Child’s] need for
permanency.
Orphans’ Court Opinion, 2/14/22, at 21-22 (formatting and capitalization
adjusted).
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Thus, the orphans’ court concluded that the Agency produced clear and
convincing evidence that Mother’s “repeated and continued incapacity” has
caused the Child to be “without essential care” necessary for his “physical and
mental well-being” and that these conditions could not or would not be
remedied. Id. at 24.
Upon our review, the orphans’ court properly determined that the
Agency established grounds under Section 2511(a)(2) by clear and convincing
evidence. Moreover, our review of the record supports a conclusion that the
Agency employed reasonable efforts in assisting Mother with reunification;
any perceived shortcoming by the Agency was caused by Mother’s refusal to
cooperate and/or failure to perceive what was required of her. Thus, Mother’s
first and second issues are without merit.
In her third Anders issue, Mother argues the orphans’ court abused its
discretion when it found that termination best served the Child's needs and
welfare. 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, 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(b).
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This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id.However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular
case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see
also K.Z.S., 946 A.2d at 764 (holding there was no bond worth preserving
where the child had been in foster care for most of the child's life, which
caused the resulting bond to be too attenuated). We add, the court is not
required to use expert testimony to resolve the bond analysis but may rely on
the testimony of social workers and caseworkers. Z.P., 994 A.2d at 1121.
Finally, we emphasize that “[w]hile a parent's emotional bond with her and/or
her child is a major aspect of the § 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the court when
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determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
Here, the orphans’ court determined that no bond existed between
Mother and the Child. Orphan’s Court Opinion, 2/14/22, at 22. The court
further noted that it considered the Child’s safety needs, and the Child’s bond
with Foster Mother. The court then concluded:
The relationship between the [Child] and [Mother] is not beneficial
to him. The court is then presented with a perspicuous record to
conclude as a matter of law that the parental rights [of Mother
could be] terminated without any detriment to the [Child] and
further that it best meets the needs and welfare of the [Child] for
the parental rights of [Mother] to be terminated, for the [Child] to
remain in the care of his current foster parent, and for the [Child]
to assume and proceed in the most appropriate and permanency
direction of adoption. [The Child] will evolve and will be the
recipient and the beneficiary of a relationship with [Foster Mother]
which is robust and enriched with the appropriate provision of care
and committed emotional support through his years of
adolescence and process of childhood, without the risk of safety
being placed in jeopardy.
Id. at 23.
After review, we conclude the court did not abuse its discretion when it
found that termination would best serve the Child’s needs and welfare under
Section 2511(b), and that no bond existed. As the orphans’ court noted, the
Child has only been in Mother’s unsupervised custody for two days, and the
Child is now three years old. The record also establishes that the Child has a
strong bond with Foster Mother. Thus, Mother’s third issue is meritless.
Finally, we must conduct our independent review to discern whether
there are any additional, non-frivolous issues overlooked by counsel, pursuant
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to Flowers, 113 A.2d at 1250. Here, Mother’s mental health issues, coupled
with her refusal to understand and treat those issues, have jeopardized the
Child’s well-being. Upon a “generous” review of the record, we discover no
other issues of arguable merit. See Dempster, 187 A.3d at 272.
In sum, after review, we agree with trial counsel’s assessment that
Mother’s issues on appeal are frivolous and that the Agency presented clear
and convincing evidence to support the termination of Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a) and (b). We therefore grant counsel’s
petition to withdraw and affirm the orphans’ court order terminating Mother’s
parental rights.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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