In Re: Z.I.W., Jr., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Z.I.W., JR., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.S., MOTHER :
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: No. 265 MDA 2018
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 0063 of 2017
IN RE: Z.M.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.S., MOTHER :
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:
:
: No. 266 MDA 2018
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 0064 of 2017
IN RE: Z.I.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.S., MOTHER :
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: No. 267 MDA 2018
J-S32032-18
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 0065 of 2017
IN RE: Z.M.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.S., MOTHER :
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:
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: No. 268 MDA 2018
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 0066 of 2017
IN RE: Z.J.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.S., MOTHER :
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:
: No. 269 MDA 2018
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 0067 2017
IN RE: Z.J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.S., MOTHER :
:
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: No. 270 MDA 2018
Appeal from the Decree January 8, 2018
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No.: 2017-00068
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 10, 2018
In these consolidated cases1, E.S. (Mother) appeals the decrees of the
Court of Common Pleas of Lancaster County (trial court), entered January 8,
2018, that terminated her parental rights to her son Z.I.W., Jr. (born 8/04),
her daughter, Z.M.W. (12/06), her son Z.I.W. (8/08), her daughter Z.M.W.
(1/10), her son Z.J.W. (12/10), and her son Z.J.S. (10/12) (Children).
Mother’s counsel has filed a motion to withdraw as counsel and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the
trial court decrees and we grant counsel’s motion to withdraw.2
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* Retired Senior Judge assigned to the Superior Court.
1 This Court consolidated these cases, on Mother’s motion, in an order entered
on March 23, 2018, because they involve the same appellant and similar
issues.
2 The trial court also terminated the parental rights of Z.I.W., Sr., the father
of Z.I.W., Jr., Z.M.W., Z.I.W., Z.M.W. and Z.J.W., and the parental rights of
S.T.C., Jr., the father of Z.J.S. Neither father appealed those terminations,
and neither is a party to this appeal.
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The Lancaster County Children and Youth Social Services Agency
(Agency) filed its petition to terminate Mother’s parental rights on January 11,
2017. The trial court summarized the facts that led to the filing of that petition
in its Memorandum of January 8, 2018:
The [C]hildren have been in the legal custody of the Agency
since July 14, 2015 and in the physical custody of the Agency since
August 5, 2015. Mother was given a Child Permanency Plan (CPP)
that contained objectives for her to complete to be reunified with
her [C]hildren. To complete the objectives Mother had to be
evaluated and seek appropriate treatment for mental health,
domestic violence, and drug and alcohol abuse. Mother also had
to learn parenting skills, demonstrate financial and housing
stability, and maintain an ongoing commitment for [C]hildren.
Based on the testimony at the September 26, 2017 hearing and
after examining the full juvenile record, the [c]ourt finds that
Mother has made only moderate progress on this plan over the
two years her [C]hildren have been in the Agency’s care, that she
lacks the ability to independently and consistently parent and
meet the needs of her [C]hildren, and that the termination of her
parental rights would be in the best interest of all the [C]hildren.
Mother has not demonstrated any sense of urgency in
having her [C]hildren return to her care throughout the duration
of this case. Even though Mother was given a plan on September
8, 2015, she did not attend her mental health evaluation until
February 2016 and by then, her health insurance had expired.
The Agency made further attempts to connect Mother with
providers and, on October 7, 2016, almost a year after her
[C]hildren were placed, she attended her first evaluation for
mental health. The recommendation of the evaluation was that
she continue with treatment, but, to this day, and after missing
multiple scheduled intake assessments that could have provided
sufficient treatment for the mental health and domestic violence
goals, she was unable to provide evidence to the [c]ourt that she
completed treatment.
Mother has also not provided the Agency or the [c]ourt with
any evidence that she has appropriate housing for the [C]hildren.
While Mother has maintained various jobs during the placement
of her [C]hildren, she has not provided documentation of her
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income or proof that it would be sufficient to meet the needs of
her six [C]hildren. Most troubling to this [c]ourt is the minimal
effort that Mother has made to see her [C]hildren. During the
past year, Mother was offered an increase in her visits with her
[C]hildren from bi-weekly to weekly, which she did not accept.
The [C]hildren have been consistently disappointed by Mother’s
failure to complete her child permanency plan and are in need of
permanency and stability.
The reports from each [C]hild’s [Court Appointed Special
Advocate (CASA)] were admitted into the record. All CASAs
recommend that the parental rights of the parents be terminated.
(Trial Court Memorandum and Decree, 1/08/18, at 2-4).
The trial court held hearings on the Agency’s petition on May 9, 2017
and September 26, 2017. The trial court adjourned the hearing on May 9,
2017 to permit bonding assessments to be conducted on each of the Children.
The trial court named a CASA for each of the Children and a guardian ad litem
(GAL) who represented the Children as counsel at the hearings.3
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3 This Court has recently held that we will address sua sponte the failure of
an orphans’ court to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a). See
In re K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme Court, in
In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), held that
Section 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court defined a child’s legal interest as synonymous with his
or her preferred outcome. With respect to this Court’s holding in In re K.M.,
53 A.3d 781 (Pa. Super. 2012), that a GAL who is an attorney may act as
counsel pursuant to Section 2313(a) so long as the dual roles do not create a
conflict between the child’s best interest and legal interest, the L.B.M. Court
did not overrule it.
While the trial court did not appoint separate legal counsel for the
Children in this matter, the trial court did appoint Attorney Pamela Breneman
to act as the Children’s GAL, and appointed individual CASAs for the Children.
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The trial court entered its decree terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b) on January 8,
2018. Mother filed her notice of appeal and statement of errors complained
of on appeal on February 7, 2018. Mother’s attorney has filed an application
to withdraw as counsel and an Anders brief.
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our scope
of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
We are bound by the findings of the trial court which
have adequate support in the record so long as the findings
do not evidence capricious disregard for competent and
credible evidence. The trial court is free to believe all, part,
or none of the evidence presented, and is likewise free to
make all credibility determinations and resolve conflicts in
the evidence. Though we are not bound by the trial court’s
inferences and deductions, we may reject its conclusions
only if they involve errors of law or are clearly unreasonable
in light of the trial court’s sustainable findings.
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We have reviewed the record carefully and, viewed in the light of the
participation of these individuals, we have no doubt that the preferred
outcome for each of the Children is adoption.
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In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ .2511(a)(1), (2), (5), (8), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Requests
to have a natural parent’s parental rights terminated are governed by 23
Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 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:
* * *
(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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence 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.” In re
T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting for
a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal
citations omitted).
The trial court concluded that termination was appropriate under
§ 2511(a)(8).
“With regard to Section 2511(a)(8), in order to terminate
parental rights, an agency must prove by clear and convincing
evidence that (1) that the child has been removed from the care
of the parent for at least twelve (12) months; (2) that the
conditions which had led to the removal or placement of the child
still exist; and (3) that termination of parental rights would best
serve the needs and welfare of the child.”
In re: C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc) (citations
omitted).
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The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make specific
reference to an evaluation of the bond between parent and child but our case
law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481,
484 (Pa. 1993). However, this Court has held that the trial court is not
required by statute or precedent to order a formal bonding evaluation
performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super.
2008).
Before we begin our analysis, we must dispose of the motion to withdraw
as counsel filed by Mother’s counsel. Mother’s counsel, Catherine I. Roland,
has filed an application with this Court to withdraw from representation
pursuant to Anders, supra and McClendon, supra.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., 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 he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
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In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., supra at 1237.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief. Briefly summarized, it required that the brief:
(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.
See Santiago, supra 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
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).
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Here, Mother’s attorney, in her motion to withdraw as counsel, has
stated that she has made a conscientious review of the record, concluded that
her client’s appeal is wholly frivolous, and specified the reasons for her
conclusion. In addition, she timely mailed her client: (1) a copy of her petition
to withdraw; (2) a copy of her Anders brief; and (3) a letter advising her
client of her rights to proceed pro se or to retain private counsel and to raise
any additional issues. Mother’s counsel has filed the required Anders brief in
this Court setting forth the issues she believes might arguably support her
client’s appeal. Thus, counsel for Mother has satisfied the procedural
requirements of Anders and we will grant her leave to withdraw as counsel.
We have reviewed the trial court’s memorandum in this matter and
conclude that it is a thorough and correct analysis of the facts and the law as
they apply to each of the Children.4 Accordingly, we affirm the decree of the
Court of Common Pleas of Lancaster County that terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b) on the basis of the
concise and well-written opinion of the Honorable Jay J. Hoberg.
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4 This Court has stated, “[o]nce counsel has satisfied the above requirements
[for a motion to withdraw and Anders brief], 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.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.
2004)); see also Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.
Super. 2015) (following Goodwin). On independent review, we conclude that
the Agency has established sufficient grounds for the termination.
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Decree affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2018
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