J-S28015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S-S.T.R, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.R., FATHER,
No. 3684 EDA 2015
Appeal from the Decree October 14, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000651-2015
IN RE: T.S.S.F.M, IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: D.R., FATHER,
No. 3685 EDA 2015
Appeal from the Decree October 14, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000650-2015
IN RE: K.D.O.C.R, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
APPEAL OF: D.R., FATHER,
Appellant No. 3686 EDA 2015
Appeal from the Decree October 14, 2015
J-S28015-16
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000652-2015
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 29, 2016
D.R. (“Father”) appeals from the decrees entered on October 14,
2015, which terminated his parental rights to his three daughters,
K.D.O.C.R. (“K.R.”), S-S.T.R. (“S-S.R.”), and T.S.S.F.M. (“T.M.”), collectively
(the “children”), ages sixteen, thirteen and eleven respectively. 1 We affirm
and grant the petition filed by Jennifer A. Santiago, Esquire seeking leave to
withdraw from representation.
During the evidentiary hearing on the petitions filed by the
Philadelphia Department of Human Services (“DHS”) to terminate Father’s
parental rights, Father’s counsel stipulated that, if called to testify, Dawn
Roberts, the caseworker assigned to the family for approximately three
years, would testify in accordance with the statement of facts that the
agency attached to each of the respective petitions. N.T., 10/14/15, at 19-
20. We rely upon that stipulation in summarizing the relevant facts and
procedural history.
____________________________________________
1
The trial court also involuntarily terminated the parental rights of the
children’s mother, S.M., who is not a party to this appeal.
* Retired Senior Judge assigned to the Superior Court.
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This family has had a prolonged relationship with DHS since 2011,
when the agency discovered that S.M. (“Mother”), the children, and three
half-siblings that are not relevant to this appeal had been evicted from a
family member’s home. K.R. and T.M. were regularly truant during the
2011-2012 school year. All three children had been diagnosed with
attention deficit hyperactivity disorder (“ADHD”), but they went six months
between July and December 2012 without medication. The family’s housing
was uncertain and the children’s lives were unstable. Father has a history of
substance abuse and domestic violence, and his whereabouts throughout
this period were often unknown. In addition to intermittent homelessness,
chronic truancy, parental neglect, and domestic violence, the children were
forced to endure emotional, physical, and sexual abuse committed by
relatives acting as caretakers.
On February 11, 2013, the juvenile court adjudicated the children
dependent. The trial court ordered Father to submit to drug and alcohol
screens, and to complete a substance abuse assessment and evaluation. It
ordered DHS to refer Father to the Achieving Reunification Center (“ARC”).
DHS developed a family service plan (“FSP”) outlining several goals for
Father including, inter alia, 1) maintain safe and suitable housing; 2) satisfy
the children’s basic nutritional and clothing needs; 3) participate in drug and
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alcohol evaluation with the Clinical Evaluation Unit (“CEU”) and comply
with dual diagnosis treatment; and 4) meet with ARC on a weekly basis.
Father’s compliance was minimal, and he failed to demonstrate that he
was able to safely and appropriately care for his daughters. On June 30,
2014, the trial court terminated Father’s telephone contact with the children.
Approximately two weeks later, the trial court suspended Father’s supervised
visitations pending the implementation of a therapeutic component to
visitation. He was also prohibited from contacting his daughters by email or
social media. On April 21, 2015, Father was discharged from ARC and drug
and alcohol counseling due to his lack of participation. That fall, Father
submitted two positive urine screens to the CEU that confirmed his use of
PCP.
On September 21, 2015, DHS filed petitions to terminate Father’s
parental rights to K.R., T.M., and S-S.R. Although Attorney Santiago
stipulated that Father had been served with notice of the hearing date and
despite his statements to her indicating his intent to appear at the hearing
and oppose the petitions, Father failed to attend. Id. at 5. In addition to
the stipulations regarding Father’s failure to comply with the FSP, DHS
presented Ms. Robert’s testimony to establish the lack of a meaningful bond
between Father and the children and to explain why severing the existing
bond would not result in irreparable harm. Ms. Roberts observed that K.R.
does not want to maintain a relationship with Father. Id. at 23. Similarly,
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T.M. informed Ms. Roberts that “she’s ready to move on” from her
relationship with Father. Id at 24. As it relates to the youngest daughter,
S-S.R., Ms. Roberts reported that Father had not had any contact with S-
S.R. since the court terminated visitation on July 2014, and like her sisters,
she was prepared to put her relationship with Father behind her. Id. at 25-
26. In sum, Ms. Roberts concluded that it would be in the children’s best
interest to terminate Father’s parental rights in order to pursue the goal of
adoption. Id. at 23, 25.
Citing Father’s lack of compliance with his FSP goals, Beth Kahn,
Esquire, the child advocate that was appointed to represent the children’s
best interest during the dependency and termination proceedings, joined
DHS’s petition to terminate Father’s parental rights and requested that the
trial court change the children’s permanency goal to adoption. Id. at 28-29.
Attorney Santiago did not present any evidence on Father’s behalf. At the
close of the hearing, the trial court ruled from the bench that DHS satisfied
its burden of proving by clear and convincing evidence the statutory grounds
for terminating Father’s parental rights pursuant to § 2511 (a)(1), (2), (5),
(8), and (b).2 Specifically, the court reasoned,
____________________________________________
2
The pertinent sections of the Adoption Act provides as follows.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
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.
....
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.
....
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
(Footnote Continued Next Page)
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[B]ased upon [the] clear and convincing evidence the Court has
heard today, the Court finds [DHS] has sustained its burden as
to all the children.
....
As it relates to Father, . . . the Court finds that [DHS]
sustained its burden as to [§] 2511 (a)(1), (2), (5), and (8).
As it relates to [§] 2511 (b), the Court is well aware that
no true bond exists. The Court is aware that with regard to the
children, visitation was suspended, based upon the fact that
[Father] proved to be a detriment emotionally to his children
coming to whatever visits he came to in an intoxicated state,
which put the children in jeopardy. And from July of 2014, if the
Court's memory is correct, that those visits were terminated and
[Father] did nothing to attempt to move beyond -- move beyond
the suspension.
Wherefore, the Court finds with regard to these children
and [Father], that no true parent bond exists between Father
and children [that] would be detrimental or [cause] irreparable
harm if that bond was terminated[.] [T]here is a bond between
_______________________
(Footnote Continued)
....
(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)(1), (2), (5), (8), and (b).
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the respective children and their foster caregivers -- that bond
being more consistent with a true loving and parental and
supportive family environment.
It is in the best interest of th[e]se children for the bond
between . . . Father and children to be terminated. The goal of
adoption is approved.
Id. at 29-31.
This timely appeal followed the entry of the written decrees that
formally terminated Father’s paternal rights. In lieu of a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal, Attorney Santiago filed a
Rule 1925(c)(4) statement that asserted her intention to submit an Anders
brief, which she filed with this Court along with a petition to withdraw from
representation. See Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).3 We may not
address the merits of the appeal without first reviewing the request to
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3
The trial court erroneously determined that any issue Father sought to
raise would be waived due to the inapplicability of Rule 1925(c), ostensibly
because the introductory phrase to the rule states, “In a criminal case.” See
Pa.R.A.P. 1925(c)(4). Contrary to the trial court’s perspective, it is a well-
ensconced principle that counsel appointed to represent an indigent parent
in an appeal concerning the involuntary termination of parental rights may
submit an Anders brief and petition for withdrawal from representation. It
is axiomatic that a rule of appellate procedure that outlines the precise
procedure for counsel to follow in anticipation of withdrawal pursuant to
Anders would necessarily apply to counsel representing parents in cases
involving the involuntary termination of parental rights. Thus,
notwithstanding the trial court’s declaration of waiver and consistent with
Rule 1925(c), if our independent review of the record had discerned
arguably meritorious issues, they would not have been deemed waived.
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withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).
Accordingly, we review Attorney Santiago’s petition at the outset.
In In re V.E., 611 A.2d 1267 (Pa.Super. 1992), this Court extended
the Anders principles to appeals involving the termination of parental rights.
We stated that counsel appointed to represent an indigent parent on appeal
from a decree involuntarily terminating parental rights may, after a
conscientious and thorough review of the record, petition this Court for leave
to withdraw from representation and submit an Anders brief. Id. at 1275.
In Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), our
Supreme Court altered our application of the Anders briefing requirements
to require counsel to fully articulate the legal basis for his conclusion that the
appeal is frivolous.
In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the parent; and 3) inform the parent that he has the right to retain
private counsel or raise, pro se, additional arguments that the parent deems
worthy of the court’s attention. Id.
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Attorney Santiago’s petition to withdraw sets forth that she reviewed
the record and found no meritorious claims to argue.4 She served Father
with copies of the petition to withdraw, the Anders brief, and a letter
informing Father of her decision and explaining his right to retain new
counsel or proceed on a pro se basis and raise any additional issues he
deemed worthy of this Court’s review. A copy of counsel’s letter to Father is
appended to the Anders brief.5 Thus, Attorney Santiago complied with the
procedural aspects of Anders.
We must now examine whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an Anders brief
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.
Santiago, supra at 361.
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4
While Attorney Santiago styled Father’s claims as meritless rather than
frivolous, the obvious intent of her review of the record was that the instant
appeal is wholly frivolous, a position she expressed explicitly in the Anders
brief.
5
Father failed to respond to counsel’s petition to withdraw.
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In her brief, Attorney Santiago summarized the factual and procedural
history of the case and referenced the portions of the record that she
believed ultimately fail to support any issues of merit. Counsel delineated
case law that demonstrates that DHS proved by clear and convincing
evidence the statutory grounds to terminate Father’s parental rights
pursuant to § 2511(a)(1), (2), (5), (8) and (b). She asserts that no non-
frivolous issues are preserved for appeal. Thus, the brief is compliant with
Santiago.
Next, we turn to whether Father’s appeal is, in fact, frivolous. Our
standard of review is well settled.
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 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).
Involuntary termination of parental rights is governed by § 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938. As the party petitioning for
termination of parental rights, CYS “must prove the statutory criteria for that
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termination by at least clear and convincing evidence.” In re T.R., 465 A.2d
642, 644 (Pa. 1983). Clear 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 hesitancy, of the truth of
the precise facts in issue.” Matter of Sylvester, 555 A.2d 1202, 1203–04
(Pa. 1989).
After a thorough review of the Anders brief and the pertinent law, and
following our independent examination of the certified record, we agree with
Attorney Santiago’s assessment that the appeal is wholly frivolous and
unsupported in law or in fact. Stated simply, Father was chronically
noncompliant with his FSP goals and he never demonstrated an interest in
performing his parental duties. One example of Father’s pointed indifference
toward his children is the fact that he was conspicuously absent during the
hearing on DHS’s petition to terminate his parental rights despite discussing
the anticipated proceeding with his attorney. It is also relevant that Father
failed to comply with the drug and alcohol treatment component of the FSP
since his prolonged substance abuse was one of the primary reasons for
DHS’s involvement with the family. Father was twice discharged from
treatment programs for nonparticipation, and he submitted two urine
screens that were positive for PCP.
Most importantly, Father has not maintained a parent-child
relationship with any of the children, who are sufficiently mature to
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articulate their disillusionment with Father and their disinterest in
reunification. Indeed, Ms. Roberts confirmed that neither K.R., T.M., nor S-
S.R. desires any type of relationship with Father, with whom they have not
interacted since the trial court suspended visitations during July 2014, more
than one year before DHS filed its petition to terminate Father’s parental
rights.
Petition of Jennifer A. Santiago, Esquire, to withdraw as counsel is
granted. Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2016
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