In the Matter of: Q.M.H., Appeal of: K.J.H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION OF IN THE SUPERIOR COURT OF
Q.M.H. PENNSYLVANIA
APPEAL OF: K.J.H.
No. 1759 WDA 2013
Appeal from the Decree September 27, 2013
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): Number 27 in Adoption 2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 08, 2014
K.J.H. (“Mother”) appeals from the decree entered in the Court of
Common Pleas of Erie County involuntarily terminating her parental rights to
her legally adopted son, Q.M.H., born in November of 2002. We affirm the
decree, and grant the petition for leave to withdraw as counsel filed by
Mother’s counsel.
On May 3, 2013, the Erie County Office of Children and Youth (“the
Agency”) filed a petition for the involuntary termination of Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). The
orphans’ court appointed counsel for Mother on July 1, 2013. The
termination hearing was held on September 27, 2013, during which the
following witnesses testified: Cassie Lambert-Mierke, the Agency
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caseworker; Duane Arnold, by telephone, the treatment coordinator at
Beacon Light Behavioral Health Systems, a facility in which Q.M.H. then
resided; June M. Stacy, Mother’s friend; and Mother.
The testimonial evidence revealed as follows:
In December of 2002, when Q.M.H. was approximately four-weeks-
old, the Agency removed Q.M.H. from his biological parents and placed him
with Mother. N.T., 9/27/13, at 6. In 2005, Mother adopted Q.M.H.
Prior to the underlying dependency case which resulted in this appeal,
the Agency was involved twice with this family after Q.M.H.’s legal adoption.
In December of 2009, the Agency received an allegation that Q.M.H., then
age seven, had performed oral sex. Ms. Lambert-Mierke testified that “[t]he
case was opened for ongoing services, and closed in November of 2010[,]
due to [Mother’s] refusal to participate in any further services by the
[A]gency.” Id. at 7. In October of 2011, the Agency received a report that
Mother was incarcerated. Ms. Lambert-Mierke testified that “the [A]gency
was looking at adjudicating [Q.M.H.] dependent at that point in time, but
[Mother] was released from jail and able to take care back [of] him.” Id. at
8. As such, Ms. Lambert-Mierke testified that a case “was not opened; it
was actually closed at the intake level.” Id.
The instant matter arose from Mother contacting the Agency on
October 24, 2012, and requesting the Agency take custody of Q.M.H. Ms.
Lambert-Mierke, the Agency caseworker, testified Mother stated “that she
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wanted the [A]gency to come and pick up [Q.M.H.], that she could no longer
handle or manage his medical or mental health issues and his behaviors in
her home.” Id. at 8. She continued,
[Mother] wasn’t cooperative with the [A]gency at that time when
they went to assess the situation on the 24th, and she refused to
allow the intake specialist into her home and refused to state
where the child was.
Apparently [Q.M.H.] was not at her home at that time; however,
on October 25th, the following day, the [A]gency received a
referral that [Q.M.H.] had open wounds on his lower back and a
mark on his arm, and it was reported by [Q.M.H.] that his
mother had hit him with a belt the night before. On October 25th
he was removed from the home and placed at Edmund L.
Thomas dependent shelter, and at that time the child was
requesting to be removed from the home.
Id. at 8-9.
Ms. Lambert-Mierke described Q.M.H.’s behavioral and other problems
as follows:
[Q.M.H.] is developmentally disabled. He does have a full-scale
IQ of around 66. He does have some mental health issues as
well. He has behavioral issues that he can become verbally and
physically aggressive. He can be very noncompliant when he
wants to be. He requires caregivers who are very consistent,
very structured with specific behavioral plans. Right now he has
a lot of anxiety issues as well that are exhibited in different
ways.
Again, he acts out in different settings when he has to transition.
School is very difficult for him, very difficult environment for
him. So he does have behavioral issues, but at the STRIDE
program they’ve been able to provide consistent behavioral
plans, consistent structure, consistent consequences, and he has
made significant improvements.
Id. at 18-19.
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On October 25, 2012, the Agency placed Q.M.H. at the Edmund L.
Thomas shelter. Id. at 10. A shelter care hearing was held on October 26,
2012, and an adjudication hearing on November 1, 2012, neither of which
Mother attended. Id. at 9. Mother did attend, however, the disposition
hearing on November 19, 2012. Ms. Lambert-Mierke testified Mother
“declined [at the disposition hearing] to have a treatment plan offered to
her[1] and stated that she wanted to terminate her parental rights. . . .” Id.
at 11. As such, the court set the permanency goal as adoption.
On January 30, 2013, the Agency placed Q.M.H. in the STRIDE
program at Beacon Light Behavioral Health, a residential facility, where he
remained at the time of the instant proceedings. Id. at 10, 18. Mr. Arnold
testified that his facility is treating Q.M.H. for oppositional defiant disorder,
impulse control disorder, autism spectrum disorder, and physical abuse. Id.
at 47.
By decree dated September 27, 2013, and entered on September 30,
2013, the orphans’ court involuntarily terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). On October 25,
2013, Mother, acting pro se, filed a notice of appeal. Mother did not
concurrently file a concise statement of errors complained of on appeal
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1
The treatment, or reunification, plan included Mother participating in a
mental health evaluation and following all recommendations, participating in
random urinalysis, cooperating with the Agency, and participating in the
recommendations for Q.M.H.’s treatment. N.T., 9/27/13, at 11.
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pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). By order dated November 19,
2013, the orphans’ court directed Mother to file a concise statement within
ten days. Mother did not comply with the orphans’ court order. In addition,
on November 19, 2013, the orphans’ court issued a Rule 1925(a) opinion.
By order dated January 3, 2014, this Court remanded the record and
directed the Prothonotary to forward a new docketing statement to Mother’s
attorney of record, who was court-appointed on July 1, 2013, along with
Mother’s pro se notice of appeal. Further, this Court directed Mother,
through her counsel, to file a concise statement nunc pro tunc within
fourteen days, and directed the orphans’ court to file a new Rule 1925(a)
opinion in response.
Mother’s counsel did not file a concise statement nunc pro tunc;
rather, in lieu of a concise statement, on January 17, 2014, he filed with the
orphans’ court a statement of intent to file an Anders2 brief. See In the
Interest of J.T., 983 A.2d 771, 772 (Pa. Super. 2009) (holding that,
“[b]ecause the Anders procedure has been engrafted onto parental
termination cases by In re V.E. and J.E., [ ], 611 A.2d 1267, 1275 (Pa.
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2
Anders v. California, 386 U.S. 738 (1967).
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Super. 1992), counsel’s decision to follow the [Pa.R.A.P.] 1925(c)(4)
procedure in this parental termination case was proper”).3
On March 19, 2014, Mother’s counsel filed the Anders brief. On
March 20, 2014, counsel filed an application to withdraw as Mother’s
counsel. On April 23, 2014, Mother filed pro se a response to the Anders
brief in the form of a letter.
Before reaching the merits of the issues raised in the Anders brief, we
must address counsel’s request to withdraw. See Commonwealth v.
Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating, “[w]hen faced with a
purported Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw[]”)
(citation omitted).
To withdraw pursuant to Anders, counsel must perform each of the
following tasks:
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3
Rule 1925(c)(4) provides as follows:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an Anders[] brief in lieu of
filing a Statement. If, upon review of the Anders[] brief, the
appellate court believes that there are arguably meritorious
issues for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a
supplemental opinion pursuant to Rule 1925(a), or both. Upon
remand, the trial court may, but is not required to, replace
appellant’s counsel. Pa.R.A.P. 1925(c)(4).
Pa.R.A.P. 1925(c)(4).
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal, but which does not resemble a “no merit” letter or
amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se or raise any
additional points that he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Thereafter, this
Court must make an independent examination of the record to determine
whether the appeal is wholly frivolous. Id.Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349(Pa. 2009), stated that an Anders brief must comply with the following
factors:
(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 361.
With respect to the third requirement of Anders, that counsel inform
the defendant of his or her rights in light of counsel’s withdrawal, this Court
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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.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
In his petition, Mother’s counsel has satisfied the first requirement of
Anders by filing a petition to withdraw wherein he asserts that he has made
a conscientious review of the record and determined the appeal would be
frivolous. Counsel has satisfied the second requirement by filing an Anders
brief that complies with the requirements set forth in Santiago, supra.
With respect to the third requirement, counsel has attached to the petition
to withdraw a copy of the letter sent to Mother advising her of her rights,
and enclosing a copy of the Anders brief. Thus, we conclude that counsel
has complied with the Anders requirements.
We next determine whether Mother’s claim is wholly frivolous. The
Anders brief filed by counsel raises four issues, as follows:
1. Whether the [orphans’] court committed an abuse of discretion
or error of law by concluding that the Agency established
sufficient grounds to involuntarily terminate the Mother’s
parental rights as required by 23 Pa.C.S.A. § 2511(a)(1)[?]
2. Whether the [orphans’] court committed an abuse of discretion
or error of law by concluding that the Agency established
sufficient grounds to involuntarily terminate the Mother’s
parental rights as required by 23 Pa.C.S.A. § 2511(a)(2)[?]
3. Whether the [orphans’] court committed an abuse of discretion
or error of law by concluding that the Agency established
sufficient grounds to involuntarily terminate the Mother’s
parental rights as required by 23 Pa.C.S.A. § 2511(a)(5)[?]
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4. Whether the [orphans’] court committed an abuse of discretion
or error of law by concluding that termination of [Mother’s]
parental rights would be in the best interests of the child as
required by 23 Pa.C.S.A. § 2511(b)[?]
Anders brief at 8.
Our standard of review is as follows:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., [___
Pa. ___, ___, 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
As has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
630, 634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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
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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) (citing 23 Pa.C.S.A. §
2511). The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
This Court need only agree with any one subsection of 2511(a), in
addition to section 2511(b), in order to affirm the termination of parental
rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Instantly, we review the decree pursuant to section 2511(a)(1) and (b),
which provide as follows:
(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.
...
(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
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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), (b).
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. In re C.M.S., 832 A.2d
457, 462 (Pa. Super. 2003) (emphasis added). Our Supreme Court has
stated that parental duty “is best understood in relation to the needs of a
child.” In re Burns, 379 A.2d 535, 540 (Pa. 1977).
A child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this court
has held that the parental obligation is a positive duty which
requires affirmative performance. This affirmative duty
encompasses more than a financial obligation; it requires
continuing interest in the child and a genuine effort to maintain
communication and association with the child. . . .
Id.; see also In re C.M.S., supra.Our Supreme Court has held,
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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998). Further,
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the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
Finally, with respect to section 2511(b), the requisite analysis is as
follows:
Subsection 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Instantly, the Agency filed the petition seeking the involuntary
termination of Mother’s parental rights on May 3, 2013. The operative
period for the application of section 2511(a)(1) is the six-month period
preceding the filing of the petition, i.e., November 3, 2012 – May 3, 2013.
The orphans’ court found on the record and in open court that the Agency
proved by clear and convincing evidence that Mother evidenced a settled
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purpose of relinquishing her parental claim and/or failed to perform her
parental duties. Further, the orphans’ court found that the Agency proved
by clear and convincing evidence that termination of Mother's parental rights
would be in Q.M.H.’s best interest. The court stated that terminating
Mother’s parental rights would “offer [Q.M.H.] the best opportunity for a
permanent resolution of his current circumstances in a way that would
provide him with the care necessary to ensure a loving and safe
environment in the future.” N.T., 9/27/13, at 35.
The record evidence supports the decree terminating Mother’s parental
rights pursuant to section 2511(a)(1). Mother did not appear for the shelter
care hearing on October 26, 2012, or the adjudication hearing on November
1, 2012. Although she appeared for the disposition hearing on November
19, 2012, at which time the Agency’s permanency goal was reunification
concurrent with adoption, Mother requested at the hearing to terminate her
parental rights, and she refused the Agency’s reunification plan. Id. at 11.
As such, following the disposition hearing, the court set the permanency goal
as adoption, and Mother did not file a notice of appeal from that order. Id.
at 12. Ms. Lambert-Mierke, the Agency caseworker, testified that, on
November 29, 2012, Mother contacted the Agency “twice in one day and
stated to get the paperwork taken care of as quickly as possible to
[voluntarily relinquish her parental rights].” Id. at 14.
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The record reveals that Mother thereafter changed her mind on
voluntarily relinquishing her parental rights. The record includes a letter,
dated December 10, 2012, written by Mother to the juvenile court judge,
indicating that she did not want to terminate her parental rights. See N.T.,
9/27/13, at Mother’s Exhibit 1. On January 17, 2013, Mother, through
counsel, filed a petition for reunification, which requested a change of goal.
N.T., 9/27/13, at 13; see also Petitioner’s Exhibit 3. However, on March
14, 2013, Mother, through counsel, filed a motion to withdraw the petition
for reunification, which the juvenile court granted on March 15, 2013. See
id. In addition, on March 13, 2013, Mother again requested that the Agency
prepare the paperwork to voluntarily relinquish her parental rights. N.T.,
9/27/13, at 14.
On direct examination, Ms. Lambert-Mierke testified as follows:
Q. In your review of the [A]gency records, this desire of
[Mother] to relinquish her rights to [Q.M.H.], did that just start
in October of 2012?
A. No. Actually during the time that [the case] was open in
2010 she had started expressing that she wanted to give him
back, that he was just very difficult. She wanted to drop him off
at the [A]gency. . . . She felt that he was too difficult to handle,
that she had to file for bankruptcy to care for him, nobody
wanted to manage his behaviors, and that she just couldn’t
handle him.
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Id. at 14-15.4 Significantly, Ms. Lambert-Mierke testified,
Q. Did [Mother] at any time represent to you a desire to work
with the [A]gency to have [Q.M.H.] returned to her care?
A. No, she did not.
Id. at 24.
Since Q.M.H. was removed from her care on October 25, 2012, Mother
visited him once, on November 30, 2012, for fifteen minutes, and she
telephoned him once, both while he was residing at the Edmund L. Thomas
shelter. N.T., 9/27/13, at 10, 16, 29. Mother has not contacted Q.M.H. or
inquired as to his welfare since that time. Mr. Arnold, the treatment
coordinator at Beacon Light Behavioral Health, testified Mother has not
contacted the facility since Q.M.H. has been in residence, i.e., January 30,
2013. Id. at 48. Mother brought birthday presents to the disposition
hearing on November 19, 2012, which was subsequent to Q.M.H.’s birthday.
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4
Ms. Lambert-Mierke testified Q.M.H. was receiving respite care in 2010,
and that he was likely receiving respite care before then. N.T., 9/27/13, at
31, 33. She testified that the Agency provided Mother with a subsidy to
assist her with paying for Q.M.H.’s respite care. Id. at 15. In the 2012-
2013 fiscal year, Mother was approved for a subsidy in the amount of
$30,000. Id. Further, Ms. Lambert-Mierke testified that the Agency
continued to pay Mother the subsidy even after Q.M.H. was removed from
her care. She explained that “Domestic Relations [does a] child support
order, which she was [c]ourt-ordered to pay the exact amount that she was
receiving in the subsidy back to Domestic Relations. That would then, again,
be funneled to the [A]gency for the reimbursement of the subsidy.” Id. at
24. Ms. Lambert-Mierke testified that Mother had not been complying with
the child support order. Id.
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Id. at 17. However, she did not give him Christmas or Easter gifts. Id.
Mother has not sent him any cards or letters. Id. Mother testified she did
not visit Q.M.H. more than once because the Agency did not permit her. Id.
at 73. In addition, she testified she was not allowed to contact Q.M.H. Id.
On cross-examination by the Agency, Mother denied that she
requested the Agency remove Q.M.H. from her custody on October 24,
2012. N.T., 9/27/13-II, at 3.5 However, Mother acknowledged that she
wanted to voluntarily relinquish her parental rights at the time of the
disposition hearing. On cross-examination by the Agency’s counsel, Mother
testified as follows:6
Q. So if I understand your testimony right, when you’re in front
of [the juvenile judge] in November and you stated what you did
about your son, it was because you were worried about yourself
being charged with a felony, is that right?
A. Worried, scared.
Q. But that’s what motivated you, you were worried about . . .
yourself and what was going to happen to you as a result of your
son’s actions?
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5
The notes of testimony from the termination hearing on September 27,
2013, are in two separate transcripts, reflecting the morning and afternoon
testimony. We identify the second transcript, which includes the
continuation of Mother’s testimony, counsels’ closing arguments, and the
court’s findings, as “N.T., 9/27/13-II”.
6
We note that Mother was represented by three separate counsel in the
underlying dependency matter prior to her current counsel being appointed
on July 1, 2013. See N.T., 9/27/13, at 70-71.
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A. Yes.
N.T., 9/27/13-II, at 11-12. Specifically, Mother indicated in her testimony
she was afraid of felony charges related to Q.M.H. allegedly slapping an
elderly woman who assists him and the other school children in the van that
transports them to and from school, and Q.M.H. allegedly breaking the
glasses of a child on the school van. N.T., 9/27/13, at 61. Further, Ms.
Lambert-Mierke testified that Mother stated “she was concerned about
criminal charges against her due to [Q.M.H.’s] behaviors and him accusing
her of abusing him.” N.T., 9/27/13, at 12.
With respect to why she withdrew the petition for reunification, i.e., to
change the goal from adoption to reunification, Mother testified on inquiry by
the orphans’ court as follows:
THE COURT: -- you filed a request to withdraw the petition for
reunification?
[MOTHER]: Without prejudice.
THE COURT: Without prejudice, yes, and I signed that order.
[MOTHER]: Yes.
THE COURT: [] And it seemed from your testimony this
morning --
[MOTHER]: Yes.
THE COURT: -- that you wanted to wait to see how your son’s
treatment went –
[MOTHER]: Yes.
THE COURT: -- before doing anything?
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[MOTHER]: Yes.
N.T., 9/27/13-II, at 17-18.
Finally, Mother testified on cross-examination by the Guardian Ad
Litem (“GAL”) as follows:
Q. With regard to [Q.M.H.], what have you done to try to get
him back?
A. What have I done? I’m here right now, okay, trying to get
him back.
Q. Hm-hmm, a year later?
A. A year later, yeah.
N.T., 9/27/13-II, at 16.
We conclude that the foregoing record and testimonial evidence
supports the decree terminating Mother’s parental rights pursuant to section
2511(a)(1) in that Mother, for a period of six months before the filing of the
termination petition, evidenced a settled purpose of relinquishing her
parental claim to Q.M.H. or failed to perform her parental duties. To the
extent the court’s decision that Mother’s conduct warrants termination under
section 2511(a)(1) is based on credibility determinations in favor of the
Agency’s witnesses and against Mother, we will not disturb it. See In re
Adoption of S.P., supra. Indeed, the testimonial evidence demonstrates
that Mother first considered relinquishing her parental rights in 2010. In
October of 2012, she requested that the Agency remove Q.M.H. from her
home, and, on November 19, 2012, during the disposition hearing, she
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expressed her desire to relinquish her rights. Even after Mother changed her
mind to voluntarily relinquish her parental rights, she did not perform any
parental duties or cooperate with the Agency for the purpose of reunifying
with Q.M.H. As such, we discern no abuse of discretion by the court with
respect to section 2511(a)(1).
With respect to section 2511(b), Mr. Arnold, the treatment coordinator
at Beacon Light Behavioral Health, testified as follows:
Q. In your time observing [Q.M.H.], would you say there’s been
any negative impact on him of being away from his mother. . . ?
A. In my professional opinion, I would say since he’s been here
overall he has improved since he first got here.
Q. Is that your way of saying there has been or has not been an
impact from being away from [Mother]?
A. Actually I think it[]s been a plus that he has not had any
interaction with family due to the relationship problems that we
have seen when he came in.
N.T., 9/27/13, at 49. Although Mr. Arnold testified that Q.M.H. gets upset
when he observes other children in the facility going home with their
families, he does not express the desire to go home to Mother; rather, he
expresses the desire to be part of a family in general. Id. at 48, 50-51. Mr.
Arnold testified,
Q. In your observation of [Q.M.H.], what kind of caregiver does
this young man need?
A. He needs someone that is going to be very patient, be
involved highly on a daily basis, because he requires someone to
observe him almost right around the clock due to his behaviors.
Id. at 49.
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With respect to Q.M.H.’s progress while at the Beacon Light facility,
Mr. Arnold testified:
Q. The program that you have, what would you be looking at?
Do you have a discharge date?
A. We do not have a discharge date at this time due to the
difficulty in developing relationships and maintaining them in a
proper manner.
Q. His discharge date then, is it based mainly on improving his
behaviors to a level where he can go into the community or to
another resource?
A. Correct.
Q. And he still has some work to do to get there?
A. Yes.
Id. at 49-50.
Ms. Lambert-Mierke testified that there would be no detrimental effect
to Q.M.H. if Mother’s parental rights are terminated. Id. at 22. She testified
that there is no bond between Q.M.H. and Mother, and that Q.M.H. has not
requested to return to Mother’s home. Id. at 20-21. Ms. Lambert-Mierke
testified with respect to the Agency’s plan for Q.M.H. as follows:
Q. And what would be the [A]gency’s plan for this child should
rights be terminated?
A. We have been, again, looking at discharge resources, long-
term discharge resources for [Q.M.H.] He may need a step-
down to a therapeutic foster care home and then go to the long-
term discharge resource. . . . [Q.M.H.] requires a patient,
tolerant, consistent, structured caregiver.
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Id. at 20. We conclude that the foregoing testimonial evidence supports the
orphans’ court determination that terminating Mother’s parental rights will
serve the developmental, physical and emotional needs and welfare of
Q.M.H. pursuant to section 2511(b). Upon our independent review of the
record, we agree with Mother’s counsel that the instant appeal is wholly
frivolous.
Finally, we have considered Mother’s letter response to counsel’s
Anders brief, wherein she baldly asserted that she was “misrepresented” by
her court-appointed counsel during the termination hearing. Mother denied
that she physically abused Q.M.H. She also implied that she does not trust
the Agency or the orphans’ court judge. Mother provides no citations to the
record or to legal authority to support her position that the orphans’ court
should not have terminated her parental rights. Thus, we are not persuaded
by Mother’s response to counsel’s Anders brief. We further observe that
the GAL filed a brief in support of the orphans’ court decision to terminate
Mother’s parental rights pursuant to section 2511(a)(1), (2), (5), and (b).
Accordingly, we affirm the decree terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).
Decree affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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