Adoption of: R.S., Appeal of: R.S. & C.D.

J-S14016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE ADOPTION OF: R.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: R.S., FATHER :
AND C.D., MOTHER : No. 1493 WDA 2021
Appeal from the Decrees Entered November 19, 2021
In the Court of Common Pleas of Fayette County Orphans’ Court at
No(s): No. 34 Adopt 2021
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: SEPTEMBER 6, 2022
R.S. (Father) and C.D. (Mother) (collectively, Parents) appeal together
from the decrees entered in Fayette County Court of Common Pleas, Orphans’
Court, involuntarily terminating their parental rights to their son, R.S. (Child),
born in February 2020.1 Consistent with this panel’s June 15, 2022,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Although the orphans’ court issued separate decrees, counsel filed one notice
of appeal on behalf of the Parents. However, as both Parents’ decrees were
issued under the same trial docket, Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), is not implicated. See Walker, 185 A.3d at 977 (“Rule
341(a) . . . require[s] that when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be filed.”).
Additionally, we note Counsel does not raise any issue concerning his
representation of both parents, who are not married and appear to be living
separately. While Subsection § 2313(a.1) of the Pennsylvania Adoption Act
provides, “The court shall appoint counsel for a parent . . . in an involuntary
termination proceeding if . . . the court determines that the parent is unable
to pay for counsel or if payment would result in substantial financial hardship,”
(Footnote Continued Next Page)
J-S14016-22
memorandum, Parents’ attorney, James Natale, Esquire (Counsel), has filed
an amended petition to withdraw and amended brief, pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).2 After careful review, we grant the petition to withdraw
and affirm the termination decrees.
I. Facts & Procedural History
Child was born in February 2020 and tested positive for opiates,
fentanyl, and cocaine. N.T., 10/14/2021, at 3. Upon CYS’ petition, Child was
adjudicated dependent on February 13th, when he was less than two weeks
____________________________________________
the statute is silent as to whether each parent is entitled to separate counsel
when both parents’ rights are subject to termination. See 23 Pa.C.S. §
2313(a.1) (emphasis added). We have also not discovered any case authority
addressing this particular question. But see In re K.R., 200 A.3d 969, 984
(Pa. Super. 2018) (en banc) (where a child’s legal and best interests do not
diverge in a termination proceeding, an attorney-guardian ad litem may
represent both; but where there is a conflict between a child’s legal and best
interests, a GAL cannot simultaneously represent both, and a separate
attorney shall be appointed to represent the child’s legal interests).
2 In our June 15, 2022, memorandum, we denied Counsel’s initial request to
withdraw from representation, on the ground his brief failed to address
Subsection 2511(b), which concerns the child’s best interests. Counsel filed
the instant amended Anders petition and brief on July 8th.
In response to the amended Anders brief, Fayette County Children and
Youth Services (CYS) has filed a “Supplemental Brief.” Child’s guardian ad
litem, Meghann Mikluscak, Esquire (GAL), has not filed a responsive brief,
although we note she previously joined the initial brief filed by CYS, and
recommended this Court should affirm the termination of Parents’ parental
rights.
-2-
J-S14016-22
old, and placed with a foster family, where he has since remained. Id. at 3-
8.
CYS established the following permanency plan goals for Parents:
Cooperation with [CYS], mental health evaluation, and treatment,
if necessary, drug and alcohol evaluation and recommended
treatment, parenting classes, maintain a bond with [C]hild
through visitation, and domestic violence counseling.
Orphans’ Ct. Op., 2/14/2022, at 2. CYS established the domestic violence
goal due to Mother, in February of 2020, having a “baseball size section” of
hair missing and her allegation that Father ripped it out while he was high.
N.T., 10/14/2021, at 6.
As we discuss in detail infra, throughout Child’s dependency, Parents
did not cooperate with efforts made by CYS and other service providers. N.T.,
10/14/2021, at 13. Parents visited Child sporadically and, during the COVID-
19 pandemic, refused to schedule virtual visits. See id. at 21. Their last visit
with Child occurred on July 30, 2021. N.T., 11/19/2021, at 29. Parents also
failed to complete a drug and alcohol program and a domestic violence
program. N.T., 10/14/2021, at 18-19, 24. Finally, Parents failed to meet
their mental health-related goals. CYS received records for Father from
Connellsville Counseling, where he had an evaluation but was unsuccessfully
discharged due to non-compliance. N.T., 11/19/2021, at 14. Mother claimed
she also went to Connellsville Counseling, but she did not sign a release for
CYS to confirm this. Id.
-3-
J-S14016-22
On April 28, 2021, when Child was almost fifteen months old, CYS filed
petitions for the involuntary termination of Parents’ parental rights pursuant
to Subsections 2511(a)(1), (2), (5), (8), and (b). As stated above, Parents’
last visit occurred on July 30, 2021.
The orphans’ court conducted evidentiary hearings on October 14 and
November 19, 2021. At this time, Child was 20 months old and was
represented by Attorney Mikluscak, the GAL.3 Parents were represented by
Counsel and appeared at the first hearing only. Counsel requested a
continuance of the second day of hearing, stating he intended to call Parents
to testify. N.T., 11/19/2021, at 2, 49. The court denied a continuance, as
Counsel acknowledged Parents had notice of the hearing. Id. at 2-3.
CYS presented the testimony of four caseworkers involved in this
matter, as well as employees of the Fayette County Drug and Alcohol
Commission. Parents did not testify. However, Father’s second cousin, who
adopted Father’s older child and has hosted and supervised parental visits,
testified as Parents’ only witness.
____________________________________________
3 We note the orphans’ court did not appoint separate legal counsel for Child.
See In re T.S., 192 A.3d 1080, 1092-1093 (Pa. 2018) (“[I]f the preferred
outcome of a child is incapable of ascertainment because the child is very
young and pre-verbal, there can be no conflict between the child’s legal
interests and . . . best interests; as such, the mandate of Section 2313(a)
[(that counsel be appointed “to represent the child)] is satisfied where the
court has appointed an attorney-guardian ad litem who represents the child’s
best interests[.]”
-4-
J-S14016-22
At the close of the November 19, 2021, hearing, the orphans’ court
granted CYS’ petitions to terminate Parents’ parental rights pursuant to
Subsections 2511(a)(1), (2), (5), (8), and (b). Parents filed a timely notice
of appeal and Pa.R.A.P. 1925(a)(2)(i) concise statement of errors complained
of on appeal.
II. Anders Petition to Withdraw & Brief
On March 11, 2022, Counsel filed an Anders petition and brief to
withdraw. As stated above, on June 15, 2022, this panel denied Counsel’s
petition and ordered Counsel to either file a compliant Anders brief or an
advocate’s brief, which addressed, inter alia, Subsection 2511(b). Counsel
filed the instant amended Anders petition to withdraw and brief on July 8th.
We begin by reviewing Counsel’s request. This Court has explained:
When counsel files an Anders brief, this Court may not review the
merits without first addressing counsel’s request to withdraw.
[T]his Court [has] extended the Anders principles to appeals
involving the termination of parental rights. . . .
In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citations omitted).
In Santiago, our Supreme 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.
-5-
J-S14016-22
Additionally, . . . “[c]ounsel also must provide a copy
of the Anders brief to his client[, along with] a letter that
advises the client of his right to: (1) retain new counsel
to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of
the court[‘]s attention in addition to the points raised by
counsel in the Anders brief.”
“Once counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.”
In re X.J., 105 A.3d at 3-4, quoting, inter alia, Santiago, 978 A.2d at 361.
Instantly, Counsel’s amended petition to withdraw avers he made a
thorough review of the record and has determined Parents’ appeal would be
frivolous. Counsel’s Petition to Withdraw as Counsel, 7/8/22, at 2
(unpaginated). Counsel attached to the petition letters he sent to Parents
advising of their rights to retain new counsel or proceed pro se, and to raise
any points they deem worthy of this Court’s attention. Furthermore, Counsel’s
amended brief includes: a summary of the procedural history and facts of the
case, with citations to the record; the issues raised by Parents that could
arguably support the appeal; and Counsel’s assessment of why the appeal is
frivolous, with discussion of relevant legal authority. Pertinently, Counsel’s
amended brief addresses the statutory grounds for termination under both
Subsections 2511(a) and (b). In light of the foregoing, we conclude Counsel
has complied with the technical requirements of Anders and Santiago.
-6-
J-S14016-22
III. Independent Review of the Record
We next conduct an independent review of the record to determine
whether this appeal would be, in fact, wholly frivolous. See In re X.J., 105
A.3d at 4. We note Counsel’s Anders brief raises the following issue:
Did the lower court abuse its discretion in terminating the parental
rights of [Father and Mother], as [CYS] failed to present sufficient
evidence to sustain its burden of proof?
Amended Anders Brief at 3.
We note the standard of review of a ruling on the involuntary
termination of parental rights:
[A]ppellate review is limited to a determination of whether the
decree of the termination court is supported by competent
evidence. This standard of review corresponds to the standard
employed in dependency cases, and requires appellate courts to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record, but it does not
require the appellate court to accept the lower court’s inferences
or conclusions of law. . . . An abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion; we reverse for an abuse of discretion “only
upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill will.” . . . “We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.” However,
“[w]e 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 Adoption of C.M., 255 A.3d 343, 358-59 (Pa. 2021) (citations omitted).
In considering a petition to terminate parental rights, a trial court must
balance the parent’s fundamental “right to make decisions concerning the
care, custody, and control” of their child with the “child’s essential needs for
-7-
J-S14016-22
a parent’s care, protection, and support.” C.M., 255 A.3d at 358. The court
must separately consider Subsections 2511(a) and (b):
Termination of parental rights is controlled by statute. See
23 Pa.C.S.A. § 2511[.] 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 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) (some citations omitted &
paragraph break added).
Our Supreme Court has explained:
[T]he burden of proof is upon the party seeking termination to
establish by “clear and convincing” evidence the existence of the
statutory grounds for doing so. “[C]lear and convincing evidence
is defined as testimony that is so ‘clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in
issue.’”
Adoption of C.M., 255 A.3d 343 at (citations omitted). To affirm a
termination of parental rights, we need only agree with the trial court as to
any one subsection of Section 2511(a), as well as Section 2511(b). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
-8-
J-S14016-22
The orphans’ court terminated Parents’ parental rights pursuant to
Subsections 2511(a)(1), (2), (5), (8), and (b). We consider the termination
decrees pursuant to Section 2511(a)(2) and (b), which provide:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
* * *
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
* * *
(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. § 2511(a)(2), (b).
With regard to termination under Section 2511(a)(2), we have stated:
[T]he following three elements must be met: (1) repeated and
continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the child to be
without essential parental care, control or subsistence necessary
for his physical or mental well-being; and (3) the causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied.
-9-
J-S14016-22
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal[,] as well as incapacity to perform
parental duties.” In re S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021) (citation
omitted).
“[W]hen a parent has demonstrated a continued inability to
conduct [their] life in a fashion that would provide a safe
environment for a child, whether that child is living with the parent
or not, and the behavior of the parent is irremediable as supported
by clear and competent evidence, the termination of parental
rights is justified.” “A parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability
of services, may properly be rejected as untimely or
disingenuous.”
Id. at 1105 (citation omitted).
In the instant case, the orphans’ court determined:
[P]arents have failed the family service plan in every respect . . .
Parents have not addressed obvious problems of drug usage and
correlated domestic violence. Parents have never met the present
caseworker and rarely spoke to prior caseworkers. Parents were
unsuccessfully discharged from drug and alcohol treatment as well
as mental health treatment for noncompliance. The only item
completed on the family service plan was parenting classes and
Mother was observed as impaired during those classes
online. . . .
Orphans’ Ct. Op. at 8. The court concluded:
[P]arents have repeatedly and continuously engaged in an
incapacity to care for [Child] and . . . the failure to care and bond
with [Child] shows gross incapacity . . . and neglect. Further,
[P]arents’ conduct causes [Child] to be without essential parental
care, control, and subsistence necessary for his physical and
- 10 -
J-S14016-22
mental wellbeing[,] and [Parents’] conduct will not be remedied
by [them]. . . .
Id.Our review of the record supports the orphans’ court’s findings.
Throughout the dependency, Parents did not cooperate with efforts made by
CYS and other service providers. CYS caseworker Jennifer Guseman testified
to the following: Justice Works was a service provider for CYS and was to
perform random drug screens. See N.T., 10/14/2021, at 13. Justice Works
made 111 attempts to contact Parents at their home from June 25, 2020, to
February 18, 2021, but only made direct contact with Parents 42 times. N.T.,
Id. at 13-14. When contact was made, Parents refused to submit to drug
tests. Id. at 14. After February 18, 2021, Justice Works discontinued drug
testing services with Parents because of their lack of cooperation. Id. CYS
also requested Parents obtain hair tests for drug and alcohol. Id. at 25.
Caseworker Guseman scheduled testing on four separate occasions for each
Parent from October of 2020 to February of 2021, but Parents failed to appear
for the tests. Id.
Similarly, CYS caseworker Jessica Provance testified that each time she
visited with Parents from March through July 2021, she attempted to have
them drug tested, but was unsuccessful. N.T., 11/19/2021, at 12.
Additionally, although Parents agreed to hair testing and Caseworker Provance
scheduled four tests between March and July 2021, Parents did not attend
any. Id. at 13.
- 11 -
J-S14016-22
The record also shows that Parents inconsistently visited Child.
Caseworker Guseman testified that from February of 2020 to February of 2021
(the first year of Child’s life), there were 76 scheduled visits at Justice Works,
but Parents only attended 36 visits. N.T., 10/14/2021, at 21. On some of
these 36 visits, only Mother or only Father appeared, and on more than one
occasion, Parents appeared impaired.4 Id. at 22-23. Caseworker Provance
likewise testified that Parents were inconsistent with visitation between March
and August 2021. N.T., 11/19/2021, at 26-29. She testified that Parents’
last visit occurred on July 30, 2021, more than two months before the first
termination hearing, and that Parents missed eight visits in August 2021. Id.
at 28-29.
Parents also failed to meet their mental health goals. CYS received
records for Father from Connellsville Counseling, where he had an evaluation
completed but was unsuccessfully discharged due to non-compliance. N.T.,
11/19/2021, at 14. Mother claimed she also went to Connellsville Counseling,
but she did not sign a release for CYS to confirm this. Id.
Additionally, Parents did not complete their drug and alcohol goal. N.T.,
11/19/2021, at 11. County Drug & Alcohol Commission staff member Stacey
Valenta testified that Mother completed an intake on November 4, 2020, and
____________________________________________
4 Caseworker Guseman stated she was not sure how often Parents appeared
impaired for visits, but stated that it happened more than once. N.T.,
10/14/2021, at 22-23.
- 12 -
J-S14016-22
six treatment sessions were scheduled. Id. at 5. However, Mother did not
attend any. Id. Due to non-compliance, the Commission discharged her. Id.
at 6. Father twice scheduled an intake with the Commission, for November
24 and December 29, 2020, but he missed both appointments and did not
reschedule. Id. at 8.
Furthermore, the record indicates that Parents did not attend domestic
violence classes. N.T., 10/14/2021, at 7, 24. Caseworker Guseman testified
that Parents did attend online parenting classes via the Crime Victim Center.
Id. at 24. However, the facilitator of the class noted that she observed Mother
to be under the influence on various occasions. Id.
Based on the foregoing, we discern no abuse of discretion by the
orphans’ court in concluding Parents’ conduct warranted termination pursuant
to Section 2511(a)(2). The record demonstrates that Parents’ repeated and
continued incapacity, neglect, or refusal to comply with their permanency
goals, as well as failure to resolve their mental health and drug issues, have
caused Child to be without essential parental care, control, or subsistence
necessary for his physical or mental well-being. See 23 Pa.C.S. § 2511(a)(2);
Adoption of M.E.P., 825 A.2d at 1272. Further, the conditions and causes
of Parents’ incapacity, neglect, or refusal cannot or will not be remedied. See
id.We next consider Subsection 2511(b).
“Section 2511(b) “focuses on whether termination of parental
rights would best serve the developmental, physical, and
- 13 -
J-S14016-22
emotional needs and welfare of the child.” . . . “Section 2511(b)
does not explicitly require a bonding analysis and the term ‘bond’
is not defined in the Adoption Act. Case law, however, provides
that analysis of the emotional bond, if any, between parent and
child is a factor to be considered as part of our analysis.”
In re K.R., 200 A.3d at 982 (citation omitted).
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, . . . the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
Id. (citation omitted). “In cases where there is no evidence of any bond
between the 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). A court should also
consider “whether a parent is capable of providing for a child’s safety and
security or whether such needs can be better met by terminating a parent’s
parental rights.” Interest of L.W., 267 A.3d 517, 524 (Pa. Super. 2018).
In addition, “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” In re T.S.M.,
71 A.3d 251, 268 (Pa. 2013). Finally, our Supreme Court has stated: “In
weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of
years, and we have an obligation to see to their healthy development quickly.”
Id. at 269.
- 14 -
J-S14016-22
Here, the orphans’ court found that Child’s pre-adoptive family has
“provided [Child] with love, care, and nurture. They intend to adopt [Child]
and will continue to provide a stable and healthy environment in order for
[him] to grow and develop with his family, the only family he has ever known.
To break this bond would be against his emotional and physical well-being.”
Orphans’ Ct. Op. at 9.
The record supports the orphans’ court conclusion that termination was
proper under Subsection 2511(b). Caseworker Provance testified that Parents
did not adequately watch Child during visits, often left the visits to smoke,
and were often “on” their phones. N.T., 11/19/2021, at 28. On one occasion,
Child put chalk in his mouth and the Justice Works worker had to redirect
because had Mother stepped away from Child. Id. On another occasion, the
Justice Works staff member had to redirect Mother because she stepped away
and did not see that Child had climbed toward the steps of the home. Id.
CYS was concerned by Parents’ “lack of motivation to engage with [Child].”
Id. Child was “more interested with the Justice Works worker than [Parents].”
Id.
The testimony also supported a finding that Child does not have a bond
with Parents. Caseworker Guseman testified that Child had no problems
separating from Parents after visits. N.T., 10/14/2021, at 23. Caseworker
Provance also testified she did not notice any bond between Parents and Child,
and she was unaware of Child having any adverse reactions when separating
- 15 -
J-S14016-22
from Parents. N.T., 11/19/2021, at 28. Even Parents’ only witness, D.K.,
Father’s second cousin, testified, “Sometimes [Child] didn’t really know
[Parents]. If there was a long time in between visits, just like a child coming
into daycare when they first come in, [the child is] upset, but after they’re
with the parents for a while then they relax and get comfortable.” Id. at 44.
Finally, Caseworker Provance testified that Child was placed with his
current pre-adoptive family shortly after he was born, and they were the only
family Child has ever known. N.T., 11/19/2021, at 29. CYS caseworker
Jessica Roberts testified that Child’s pre-adoptive family intends to adopt
Child. Id. at 37. On this record, we conclude the orphans’ court did not abuse
its discretion in finding termination of Parents’ parental rights was consistent
with Child’s developmental, physical, and emotional needs and welfare
pursuant to Section 2511(b).
In light of the foregoing, our independent review of the certified record
reveals no non-frivolous issue that would arguably support Parents’ appeals.
Therefore, we grant Counsel’s petition to withdraw from representation, and
affirm the decrees terminating both Parents’ parental rights pursuant to
Subsections 2511(a)(2) and (b).
Counsel’s petition to withdraw granted. Decrees affirmed.
Judge Pellegrini joins the Memorandum.
Judge McLaughlin Concurs in the Result.
- 16 -
J-S14016-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2022
- 17 -