J-S66031-16
2016 PA Super 249
IN THE INTEREST OF: J.J.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: B.B.L., MOTHER :
:
:
:
: No. 412 MDA 2016
Appeal from the Decree February 12, 2016
In the Court of Common Pleas of Dauphin County
Orphans’ Court at No(s): 85-AD-2015
BEFORE: BOWES, PANELLA, JENKINS, JJ.
OPINION BY JENKINS, J.: FILED NOVEMBER 15, 2016
B.B.L. (“Mother”) appeals from the decree entered February 12, 2016,1
in the Court of Common Pleas of Dauphin County, Orphan’s Court, granting
the petition of the Dauphin County Children and Youth Services Agency (the
“Agency”) and involuntarily terminating her parental rights to her dependent
child, J.J.L. (“Child”), a male born in July of 2014, pursuant to the Adoption
Act, 23 Pa.C.S. §§ 2511(a) (2), (5), (8), and (b).2 In addition, on May 24,
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1
While the decree was dated February 11, 2016, notice pursuant to
Pa.R.C.P. 236 was not provided until February 12, 2016. See Frazier v.
City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding that “an order
is not appealable until it is entered on the docket with the required notation
that appropriate notice has been given”).
2
By separate decree entered the same date, the court additionally
terminated the parental rights of unknown father. No appeal was filed on
behalf of any unknown father. Further, the parental rights of legal father,
D.L., were terminated by decree entered January 27, 2016, pursuant to
petition to confirm consent to adoption. D.L. has not filed an appeal and is
not a party to this appeal.
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2016, Mother’s counsel filed a petition to withdraw, together with an
Anders3 brief, averring the within appeal is frivolous. After careful review,
we affirm and grant counsel’s petition to withdraw.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
Mother first became involved with [the Agency] after the
agency received a referral from Hershey Medical Center on
August 1, 2014. The referral expressed concerns regarding the
parents’ ability to care for the child’s basic needs as they needed
continued guidance on basic parenting skills. The hospital staff
reported that Mother needed repeated instruction on how to
diaper, hold and feed her infant son, and was unable to answer
questions about basic infant care. In addition, there were
concerns regarding Mother’s intellectual disabilities and concerns
for both parents’ mental health.
On August 5, 2014, the Agency developed a Safety Plan
wherein Mother and legal father, [D.L.], would reside with
paternal grandparents, [K.L.] and [C.L.], who became 24-hour
caretakers to assist the parents in caring for [Child]. The
Agency parenting educator, Carianne Bardine, went out to the
home on August 8, 2014 and worked with Mother for
approximately five (5) hours. At the end of the session, Ms.
Bardine concluded that it would not be possible for Mother to
learn the skills needed to care for [Child] prior to the end of the
Safety Plan, which expired on August 15, 2014.
The Agency filed a Dependency Petition on August 11,
2014, as [K.L.] and [C.L.] were unable to continue as 24-hour
caregivers. In addition, [K.L.] expressed concerns regarding
Mother’s ability to care for [Child]. On that date, J.J.L. was
placed in the foster home of [R.F.] and [L.E.] A shelter hearing
was held on August 14, 2014 wherein Mother and [D.L.] were
present. Following the shelter care hearing, Mother refused to
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3
Anders v. California, 386 U.S. 738 (1967).
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sign release forms related to services for [Child], and also had
difficulty understanding the reasons for the Agency’s
involvement and stated that she had not been told the reasons
despite being present at the shelter hearing. Thereafter, the
parents began attending the Samara Parenting Program on
Tuesday and Thursday evenings beginning on August 24, 2014.
An adjudication and disposition hearing was held on
August 27, 2014, at which time the Court adjudicated [Child]
dependent and placed him in the Agency’s care and custody. In
addition, Mother and [D.L.] were ordered to obtain a
psychological evaluation to address their ability to parent, and to
include IQ testing and recommendations regarding appropriate
methods to teach parenting skills.[4] At said hearing, the Agency
established a reunification plan, which required both Mother and
[D.L.] to comply with specific objectives.
The Agency referred the parents for family reunification
services on October 1, 2014. These services were declined at
the time due to the parents’ participation in the Samara
Parenting Program. Thereafter, the parents began supervised
visitation at the Agency three (3) times a week for sessions two
(2) hours in length. Reunification services were not requested at
the time Samara closed their services.
In June of 2015, Mother indicated that she wanted
reunification services through the Agency, which were
subsequently ordered by the court. At a family engagement
meeting on August 3, 2015, Mother formally stated her intent to
consent to adoption. Prior to the September 2, 2015
permanency review hearing, Mother signed a form consenting to
adoption, and the Agency goal was changed from reunification to
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4
During the evaluation, Mother tested within the “mild range of intellectual
disability,” scoring the equivalent to a Weschler IQ of 54, which “ranks her in
the lowest 1% of adults” and equates to “a mean age equivalent of 10.3
years.” Exhibit 16, Hempfield Behavioral Health Psychological Evaluation, at
4 (unpaginated); N.T., 1/28/15, at 52. Mother was diagnosed with
Depression NOS and Mild Intellectual Disability. Exhibit 16, at 6. Mother
additionally tested in the “very high risk range on three of the five scales
and in the moderate risk in two others” on the adult adolescent parenting
inventory which serves as a predictor of child abuse or neglect. N.T.,
1/28/15, at 54; Exhibit 16, at 3.
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adoption by order of court. Mother subsequently revoked her
consent to adoption on October 2, 2015. Despite the revocation
of consent, there was no appeal of the Agency’s goal change to
adoption.
On November 16, 2015 the Agency filed a Petition for
Involuntary Termination of Parental Rights (“Petition”). The
statutory grounds for which the agency based its Petition are 23
Pa.C.S.[] § 2511(a)(2), § 2511(a)(5), § 2511(a)(8), and §
2511(b). Mother filed a Motion for Disqualification and Recusal
on December 14, 2015, which was subsequently granted by the
Honorable John F. Cherry. Thereafter, this case was assigned to
the Honorable William T. Tully. . . .
Trial Court Opinion, 4/21/16, at 1-4 (citations to record omitted).
The trial court conducted hearings on the Petition on January 26, 2016
and February 4, 2016. Mother testified on her own behalf. Additionally, the
trial court heard from Agency workers Susan Krawchuk and Morgan
Goodling. Further, counsel stipulated to the prior testimony of Dr. Howard
S. Rosen regarding his November 22, 2014 evaluation of Mother.5
By decree entered February 12, 2016, the trial court terminated
Mother’s parental rights to Child. Mother, through appointed counsel, filed a
timely notice of appeal on March 11, 2016. Mother did not file a concise
statement of errors complained of on appeal with her notice of appeal, as
required by Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(a)(2)(i). The notice of
appeal filed by appointed counsel on behalf of Mother indicated that, as he
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5
This testimony was taken on January 28, 2015 at a permanency review
hearing.
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concluded there are no non-frivolous issues to be raised on appeal, he
intended to file an Anders petition and brief, and he was not required to file
a concise statement. See Pa.R.A.P. 1925(c)(4) (in a criminal case, counsel
may file of record and serve on the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a statement); see also Interest
of J.T., 983 A.2d 771 (Pa. Super. 2009) (holding that the Anders procedure
set forth in Rule 1925(c)(4) is proper in a termination of parental rights
case). Counsel filed an Anders petition and brief on May 24, 2016.
On appeal, Mother raises the following issues for our review:
1. Did the trial court abuse its discretion, or commit an error of
law by ordering the termination of mother’s parental rights,
although the agency failed to modify its policies, practices,
and procedures to accommodate mother’s intellectual
disability, thereby depriving her of meaningful and equal
access to the agency’s reunification services in contravention
of the Americans with Disabilities Act of 1990?
2. Did the trial court abuse its discretion, or commit an error of
law by ordering the termination of mother’s parental rights,
although the agency failed to make reasonable efforts to
enable mother to achieve timely reunification with her child?
Anders Brief, at 4.
When counsel files an Anders brief, this Court may not review the
merits of the appeal without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super.2013); see
also 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
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request to withdraw[]”)(citation omitted). In In re V.E., this Court
extended the Anders principles to appeals involving the termination of
parental rights. 611 A.2d 1267, 1275 (Pa.Super.1992). It follows that
counsel appointed to represent an indigent parent on a first appeal from a
decree involuntarily terminating parental rights may petition this Court for
leave to withdraw representation and submit an Anders brief. In re
S.M.B., 856 A.2d 1235, 1237 (Pa.Super.2004).
To withdraw, pursuant to Commonwealth v. Millisock, 873 A.2d 748
(Pa. Super. 2005) and its progeny, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super.2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997
(Pa.Super.2009)). See also Commonwealth v. Orellana, 86 A.3d 877,
880 (Pa.Super.2014). We further review counsel’s Anders brief for
compliance with the requirements set forth in Commonwealth v.
Santiago, 978 A.2d 349 (Pa.2009).
[W]e hold that in 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
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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. “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.” 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)).
Counsel has satisfied the first requirement of Anders by filing a
motion to withdraw, wherein he asserts that he has made a conscientious
review of the record and determined the appeal would be frivolous.
Likewise, 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 motion to
withdraw a copy of the letter sent to Mother advising her of her rights, and
enclosing a copy of the Anders brief. Hence, we conclude that counsel has
complied with the Anders requirements and proceed to a review of the
merits.
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We first address Appellant’s claim under the Americans with
Disabilities Act (“ADA”).6 42 U.S.C. § 12132 provides:
Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
A qualified person with a disability is defined as follows:
The term “qualified individual with a disability” means an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2). A public entity includes “any department, agency,
special purpose district, or other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1)(b).
Further, 28 C.F.R. § 35.130 states, in part:
(a) No qualified individual with a disability shall, on the basis of
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any public entity.
(b)(1) A public entity, in providing any aid, benefit, or service,
may not, directly or through contractual, licensing, or other
arrangements, on the basis of disability—
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6
Mother avers that she is “attacking the credibility” of the evidence in
terminating parental rights, as opposed to attempting to litigate a claim of
discrimination under the ADA. Anders Brief, at 24.
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(i) Deny a qualified individual with a disability the
opportunity to participate in or benefit from the aid,
benefit, or service;
(ii) Afford a qualified individual with a disability an
opportunity to participate in or benefit from the aid,
benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an
aid, benefit, or service that is not as effective in affording
equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement as
that provided to others[.]
In examining the ADA, while we have not previously examined its
applicability to the Adoption Act and the termination of parental rights, we
have held that the ADA is not applicable to a dispositional review proceeding
under the Juvenile Act, specifically 42 Pa.C.S. § 6351(e). In re A.P., 728
A.2d 375, 378–80 (Pa.Super.1999).7 In so holding, we noted the
importance of the child’s best interests with regard to a dispositional review.
In reaching this conclusion, we stated:
Assuming arguendo that Mother falls within the ADA’s
definition of a “qualified individual with a disability,” the relevant
inquiry would become whether CYS provided her with reasonable
accommodations to allow her to participate and receive the
benefits from the services offered on an equal footing with
persons who are not disabled. In the context of a disposition
review proceeding under 42 Pa.C.S.[] § 6351(e), we find such an
inquiry to be untenable. As previously explained the trial court’s
focus is on the child’s best interests. To accept Mother’s
assertion would require the trial court and this Court to ignore
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7
In A.P., Mother, appealed a goal change from reunification to adoption,
asserting that the Agency failed to comply with the ADA and accommodate
her mental illness. 728 A.2d at 378.
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the best interests of the Child and focus instead on the needs of
Mother. This we cannot do. See In re J.S.W., [] 651 A.2d 167
([Pa.Super.]1994) (stating “[o]nce a child is adjudicated
dependent, the issues of custody and continuation of foster care
are determined according to [the] child’s best interests.”). Since
the ADA adds nothing to the trial court’s fulfillment of its
mandates pursuant to § 6351(f) of the Juvenile Act, we find its
application is not properly before this Court for review.
We recognize that an agency must put forth a good faith
effort in making services available to a parent. In re Adoption
of J.J., [] 515 A.2d 883 ([Pa.]1986). To the extent Mother
complains that the trial court erred in finding CYS put forth a
good faith effort in providing services, such a contention is belied
by the record. Moreover, Mother fails to even explain what
services were denied or how the services provided were not on
an equal footing with nondisabled individuals. A parent, whether
disabled or not, must be able to meet the irreducible minimum
parental requirements contained in the Juvenile Act for return of
a child in CYS’s care. If a parent cannot or will not meet her
irreducible minimum parental responsibilities, the needs of the
child must prevail over the rights of the parent. We do not
believe the ADA requires that a disabled parent be offered a plan
the parent can meet if such plan would then be insufficient to
address the irreducible minimum parental responsibilities.
Congress enacted the ADA to eliminate discrimination and
to create causes of action for qualified people who have faced
discrimination. See 42 U.S.C. § 12101(b). We do not believe
Congress intended to change the obligations imposed by
unrelated statutes. Mother may have a separate cause of action
against CYS pursuant to the ADA; however, such claim does not
form a basis upon which to attack an order entered under §
6351(g) of the Juvenile Act. The complex issues associated with
a claim of discrimination under the ADA are best resolved by
resort to a separate suit in another forum.
Id. at 378-79.
Similarly, in the instant matter, the ADA is not applicable to a
proceeding regarding the termination of parental rights under the Adoption
Act, 23 Pa.C.S. §§ 2101-2938. Addressing such a claim in the context of the
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ADA would, as we recognized and acknowledged in A.P., supra, require the
trial court to shift its attention from the needs of the Child to those of the
Mother. As suggested, Mother’s claims related to any alleged discrimination
are more appropriately handled in a suit separate from the termination of
her parental rights, and not as a basis to attack the determination regarding
termination of parental rights.8 Hence, this claim is without merit.
Even if we were to overlook this reasoning, we would find that the
record supports accommodation to Mother by the Agency. The Agency’s
parenting educator spent approximately five hours working one-on-one with
Mother where she lived at the home of paternal grandparents, who were
serving as twenty-four hour caregivers at the time. N.T., 1/26/16, at 48-49,
51. Additionally, after the Agency caseworker spent two hours reviewing the
family service plan with Mother, the Agency consulted Lancaster-Lebanon
IU-13 for assistance in “simplify[ing] the language.” Id. at 51-52, 75-76.
As a result and in response, Mother’s caseworker and a special education
teacher met with and reviewed Mother’s family service plan and goals with
her. Id. at 52-53, 76-77. Subsequently, the Agency referred Mother for
family reunification services. However, such services were declined and
were not immediately requested when the self-obtained services Mother was
receiving were terminated. N.T., 1/26/16, at 57-59, 81-82; N.T., 2/4/16, at
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8
We note that Mother has filed an ADA discrimination complaint. Exhibit 19,
ADA Discrimination Complaint Form.
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97-99. Moreover, when Mother requested these services several months
later, and the Agency made a referral, Mother expressed a desire to
voluntarily consent to adoption. N.T., 2/4/16, at 97-99, 100-01.
We next turn to whether reasonable efforts were made at reunification
of Mother and Child. In so doing, we note that our Supreme Court has held
that Section 6351(f) does not require reasonable efforts as it relates to
termination of parental rights. In re D.C.D., 105 A.3d 662, 673-74
(Pa.2014).
[W]hile reasonable efforts should be considered and indeed, in
the appropriate case, a trial court could insist upon their
provision, we hold that nothing in the language or the purpose of
Section 6351(f)(9) forbids the granting of a petition to terminate
parental rights, under Section 2511, as a consequence of the
agency’s failure to provide reasonable efforts to a parent.
Id. at 675. Thus, we also find this claim to be without merit.
Based on the foregoing independent analysis of the trial court’s
termination of Mother’s parental rights, we agree with counsel for Mother
that the within appeal is wholly frivolous.9 As such, we affirm the decree of
the trial court and grant counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw granted.
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9
Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel, this includes any
claims as to sufficiency of the evidence to terminate her parental rights
pursuant to 23 Pa.C.S. §§ 2511(a)(2), (5), (8), and (b). See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super.2015), citing
Commonwealth v. Goodwin, 928 A.2d 287 (Pa.Super.2007) (en banc).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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