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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: INVOLUNTARY TERMINATION OF IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO M.A.S.W., JR., PENNSYLVANIA
A/K/A M.A.W., JR., A MINOR
APPEAL OF: C.L.W., MOTHER
No. 617 MDA 2016
Appeal from the Decree entered March 15, 2016,
in the Court of Common Pleas of Berks County,
Orphans' Court, at No(s): 84435.
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 06, 2016
C.L.W. (“Mother”) appeals from the Decree involuntarily terminating
her parental rights to M.A.W., Jr., (“Child”) pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a) and (b). Concluding that her appeal is frivolous, Mother’s
counsel has filed an application to withdraw. We grant counsel’s application
to withdraw, and affirm the Decree terminating Mother’s parental rights.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Mother has had a long history with Berks County Children and Youth
Services (“the Agency”), beginning when she herself was a child. In March
2008, at the age of fourteen and while in foster care, Mother gave birth to
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*
Retired Senior Judge Assigned to the Superior Court.
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her first child, a son. Due to issues with Mother’s inability and, at times
refusal to parent, the child was removed from her care. On January 10,
2013, Mother executed an affidavit of consent to the child’s adoption.
In November 2012, Mother gave birth to her second child, a daughter.
Because Mother had not remediated ongoing concerns regarding her
unstable housing, mental health, drug abuse, and lack of appropriate
parenting skills, the child was promptly removed from Mother’s care.
Thereafter, Mother made minimal effort to engage in services and missed
many appointments. Although at times Mother would state she would take
certain steps towards her goals, she never followed through. Several
evaluations conducted throughout Mother’s involvement with the Agency all
indicated that Mother (1) had a consistent pattern of seeking partners who
were abusive or drug-involved; and (2) needed to engage in long-term
mental health treatment. Mother’s parental rights to her second child were
involuntarily terminated on August 14, 2013.
While she was pregnant with Child, the subject of this appeal, Mother
experienced physical and emotional abuse from M.A.W., Sr., (“Father”). In
March 2015, Mother gave birth to Child. At the hospital, Mother and Father
had a heated argument, which culminated in Father’s spitting in Mother’s
face and hospital security becoming involved. As a result of this
confrontation, Mother suffered a panic attack. Given her prior involvement
with the Agency, there were immediate concerns regarding her ability to
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parent and to keep Child safe. The Agency obtained immediate emergency
custody of Child.
The Orphans’ Court subsequently adjudicated Child dependent and
awarded custody to the Agency for placement purposes. The court ordered
the primary goal to be adoption with a concurrent goal of return to the most
appropriate parent. The court ordered Mother to participate in services
including parenting education, visitation, domestic violence evaluation and
treatment, mental health treatment, casework services, and to establish and
maintain stable and appropriate housing and income.1 The court found that
aggravated circumstances existed because Mother’s parental rights to her
second child had been involuntarily terminated.
At the first permanency review hearing on August 18, 2015, the court
found that Mother had made no progress toward remediating the
circumstances that had led to Child’s placement. Mother and Father had
been offered casework services on an as-requested basis. However, they
often failed to attend sessions after they requested them, and argued with
one another and the Agency’s staff when they did attend. In individual
counseling sessions, Mother expressed feelings of depression and agreed
that Father was violent, physically and verbally abusive, controlling, and not
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1
These same goals were established for Father. The Orphans’ Court granted
the Agency’s subsequent petition to terminate his parental rights. Father did
not appeal.
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appropriate for her or Child. She nonetheless made excuses for him and
otherwise justified his behavior.
On September 22, 2015, the Agency filed a petition to terminate the
parental rights of Mother (“TPR petition”) pursuant to 23 Pa.C.S. §
2511(a)(1), (2), and (5), and § 2511(b). Despite the receipt of notice of the
TPR petition, Mother continued to comply only minimally with her goals.
Mother was uncooperative and dishonest in her drug and alcohol
evaluations. She failed to accept responsibility for Child’s continuing
placement and placed blame on others, including the Agency’s staff.
On February 3, 2016, the Agency informed Mother that it would be
requesting a hearing date on the TPR petition. Later that month, Mother
confirmed the Agency’s suspicions that she was pregnant with her second
child with Father. On doctor’s orders, Mother stopped taking medication
prescribed to treat her mental health issues.
Despite domestic violence issues which prompted her to inform the
Agency on several occasions that the she was leaving Father, she resided
with him until February 19, 2016, and left him only after learning that he
had been unfaithful. Mother began residing at a Berks Women in Crisis
shelter, then obtained housing on March 1, 2016, through Berks Counseling
Center’s transitional housing program. Mother did not consistently begin to
seek domestic violence treatment until January 2016, and, at the time of the
TPR hearing, had yet to achieve any of her goals.
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At the beginning of TPR Hearing on March 14, 2016, Mother’s counsel
informed the court that because Mother had “started to resolve a lot of her
issues,” she was “requesting the Court to consider giving a three-month
delay in having the termination hearing in order to allow [Mother] to
continue with all of her services.” N.T., 3/14/16, at 23. The Orphans’ Court
deferred decision on Mother’s request and heard evidence regarding the
Agency’s TPR petition. The Agency presented the testimony of an expert
regarding domestic violence and mental health, and the adoption caseworker
who had worked with Mother. Mother testified on her own behalf. At the
conclusion of the hearing, the Orphans’ Court denied Mother’s request for a
continuance and took the TPR petition under advisement. By Decree
entered March 15, 2016, the court terminated Mother’s parental rights.
Mother timely appealed.
ISSUES ON APPEAL
Mother raises the following issues on appeal:
1. Did the [Orphans’] Court err by terminating [Mother’s]
parental rights because [the Agency] did not establish
by clear and convincing evidence that [Mother’s]
parental rights should be terminated pursuant to [the]
Pennsylvania Adoption Act, 23 Pa.C.S.A. §2511(a)(1)?
2. Did the [Orphans’] Court err by terminating [Mother’s]
parental rights by failing to consider Mother’s
presentation of evidence that she had remedied
conditions leading to [Child’s] placement based on the
grounds for involuntary termination set forth in 23
Pa.C.S.A. §2511(a)(2)?
3. Did the [Orphans’] Court err by terminating [Mother’s]
parental rights by abusing its discretion in failing to take
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into consideration [Mother’s] presenting evidence that
she remedied the circumstances for which [Child] had
been removed from her care and the strides she made
post filing [of the TPR petition] on September 15, 2015
when [the Orphans’] Court had consolidated [the TPR
hearing] with [the] Permanency Review Hearing?
Mother’s Brief at 3. We will address these claims together.
COUNSEL’S APPLICATION TO WITHDRAW
On June 28, 2016, 2013, Mother’s counsel filed an application to
withdraw as counsel and an Anders2 brief. We begin by addressing the
motion to withdraw before reaching the merits of the issues raised in the
Anders brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303
(Pa. Super. 1997)) (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”).
In In re V.E., 611 A.2d 1267, 1275 (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 a first 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 representation and must submit an Anders
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2
See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
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brief. Id. at 1275. To withdraw pursuant to Anders, counsel must: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise the appellant of his or her right to obtain new counsel
or to file a pro se brief to raise any additional points that the appellant
deems worthy of review. In re V.E., 611 A.2d at 1273. Thereafter, this
Court examines the record and determines 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:
(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, 978 A.2d at 361.
The Santiago Court reaffirmed the principle that indigents “generally
have a right to counsel on a first appeal, [but] . . . this right does not include
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the right to bring a frivolous appeal and, concomitantly, does not include the
right to counsel for bringing such an appeal.” Santiago, 978 A.2d at 357
(citation omitted). Our Supreme Court stated:
In the Court’s view, this distinction gave meaning to the Court’s
long-standing emphasis on an indigent appellant’s right to
“advocacy.” . . . As the Court put it, “[a]lthough an indigent
whose appeal is frivolous has no right to have an advocate make
his case to the appellate court, such an indigent does, in all
cases, have the right to have an attorney, zealous for the
indigent’s interests, evaluate his case and attempt to discern
nonfrivolous arguments.”
Santiago, 978 A.2d at 357-358 (citation omitted). Mother’s counsel has
complied with all of the requirements of Anders/Santiago. We thus
proceed to consider her assessment of Mother’s claims.
LEGAL ANALYSIS
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result. Id. at 826-827.
We give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings. In re T.S.M., 71
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A.3d 251, 267 (Pa. 2013). The Orphans’ 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. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination
of parental rights, this Court need only agree with any one subsection under
Section 2511(a). See, e.g., In re B.L.W. 843 A.2d 380, 384 (Pa. Super.
2004) (en banc).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of 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 hesitance, of
the truth of the precise facts in issue.” Id. (citations omitted).
Termination Pursuant to 2511(a)(1)
Section 2511(a)(1) provides that the trial court may terminate
parental rights if the Petitioner establishes that for six months, the parent
demonstrated a settled intent to relinquish a parental claim or a refusal or
failure to perform parental duties:
a) 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
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the petition has evidenced a settled purpose of
relinquishing parental claim to a child or has
refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as
requiring the Petitioner to demonstrate a settled intent to relinquish a
parental claim to a child or a refusal or failure to parent:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties.
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. 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 … requires continuing
interest in the child and a genuine effort to maintain
communication and association with the child. Because a
child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
Id.
Moreover, a parent must exercise reasonable firmness in resisting
obstacles placed in the path of maintaining the parent child relationship:
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Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. 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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations
omitted).
Most importantly, “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 her physical and emotional needs.” Id.
In the instant case, the Orphans’ Court properly concluded that the
Agency met the requirements of Section 2511(a)(1). The Orphans’ Court
found that, in the relevant period prior to the Agency’s filing of the TPR
Petition on September 22, 2015, Child had remained in placement, and
Mother had failed to meet her established goals. While recognizing Mother
had recently taken positive steps toward achieving an ability to parent, the
court concluded that Child’s need for permanency should not await Mother’s
attempt to reach her goals in the future:
Mother [has] failed to perform [her] parental duties for a
full year and [has] not remedied the conditions that led to
Child’s placement. . . . Until recently, Mother failed to
extricate herself from the abusive relationship with Father.
She put her needs above Child’s. She has yet to
successfully complete domestic violence and mental health
treatment, parenting education, and casework services.
She has failed to obtain and maintain stable housing and
income. She has only recently entered transitional
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housing and has stated no plan for what she is
transitioning to. Mother’s recent, short period of
“independent” living has not been long enough to
demonstrate that she is, or will remain, free of her cycle of
abusive relationships. Mother remains at a high risk of
returning to Father or another abusive relationship.
Independent living will be difficult for her, especially since
she has only part-time employment that does not provide
an income sufficient to support herself, let alone Child too.
Mother asked that she be given three months to show
she is ready to have Child returned to her. The [Agency’s]
testimony reflected that Mother would need a minimum of
six months to demonstrate that has remedied the
conditions that led to Child’s placement. Mother expects
that her parental rights should for some reason be
preserved until a time that is more suitable for her;
however, she has already had a full year to comply with
services and show she can keep herself and Child safe and
has not done so. Allowing Mother another three to six
months, or more, to remedy the conditions that led to
Child’s placement is not reasonable under the
circumstances and would not best serve the needs and
welfare of Child.
Orphans’ Court Opinion, dated 5/25/16, at 8-9.
Mother argues that the termination of her parental rights is not
supported by the evidence of record, because the Agency failed to meet its
burden under Section 2511(a)(1). According to Mother, the evidence
presented during the TPR Hearing “failed to establish that [she] showed a
settled purpose, refused or failed to perform parental duties.” Mother’s Brief
at 20. Moreover, she asserts that her testimony demonstrates that “she has
shown effort and consistency in making progress with services required by
the [Orphans’ Court] and [the Agency] to remediate issues for which [Child]
came into care.” Id. at 17.
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Our review of the record refutes Mother’s claims. It was for the
Orphans’ Court, as a matter of credibility, to accord the weight to be given
Mother’s testimony. In re M.G., supra. Moreover, even if Mother is now
truly making strides toward her ability to parent, she presented no evidence
as to why she had made no progress toward her goals prior to that time.
Finally, we note that the Orphans’ Court was not to consider Mother’s efforts
made after the TPR petition was filed when considering termination under 23
Pa.C.S. section 2511(a)(1). See 23 Pa.C.S. § 2511(b) (providing that
“[w]ith 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 [TPR Petition].”
Accordingly, the court did not abuse its discretion in terminating
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and we need
not consider the other bases for termination under this section. See
B.L.W., supra.
Termination Pursuant to Section 2511(b)
While Mother does not expressly challenge the termination of her
parental rights pursuant to 23 Pa.C.S. § 2511(b), we also agree with the
Orphans’ Court’s determination that the Agency met its burden under that
subsection, and that terminating Mother’s parental rights is in the best
interest of the Child. The court explained:
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Child has been receiving his essential parental care,
control, protection, and subsistence from a foster family
for his whole life, and he is bonded with this family.
Severing any bond that Child might have with [Mother] in
favor of giving him a permanent, healthy, and safe home
where his developmental, physical, and emotional needs
will be met clearly is in his best interest.
Orphans’ Court Opinion, 5/25/16, at 8-9.
CONCLUSION
In sum, our review of the record supports the conclusion by Mother’s
counsel that the claims Mother wished to raise on appeal are frivolous. We
agree with the Orphans’ Court’s conclusion that the Agency met its burden
of proving by clear and convincing evidence that Mother’s parental rights
should be terminated pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b).
Accordingly, we grant Mother’s counsel’s application to withdraw and affirm.
Application to Withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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