J-S87037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.W.R.R., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: K.W.W., FATHER
No. 1028 MDA 2016
Appeal from the Order Entered May 24, 2016
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 023-AD-2016 CP-22-DP-67-2014
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 19, 2016
K.W.W. (Father)1 appeals from the trial court’s order involuntarily
terminating his parental rights to his minor daughter, M.W.R.R. (born
11/2013) and changing M.W.R.R.’s placement goal to adoption. 2 In
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*
Retired Senior Judge assigned to the Superior Court.
1
Child’s guardian ad litem joins in the brief filed by Appellee, Dauphin
County Social Services for Children and Youth, agreeing with its position that
termination of Father’s parental rights is in the best interest of Child.
2
When reviewing a trial court’s decision to grant or deny a termination of
parental rights petition, an appellate court should apply an abuse of
discretion standard, accepting the findings of fact and credibility
determinations if they are supported by the record, and reversing only if the
trial court made an error of law or abused its discretion. In re D.C.D., 105
A.3d 662, 670-71 (Pa. 2014), citing In re Adoption of S.P., 47 A.2d 817,
826 (Pa. 2012). “A decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness, partiality, prejudice,
(Footnote Continued Next Page)
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addition, Father’s counsel has filed an application to withdraw on appeal,
together with an Anders3 brief, averring the appeal is frivolous. After
careful review, we affirm and grant counsel’s application to withdraw.4
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(Footnote Continued)
bias, or ill-will.” Id. An appellate court employs a de novo standard of
review, however, when faced with questions of law, such as whether an
agency must provide reasonable services to a parent before a court may
grant a petition seeking termination of parental rights. In re Adoption of
S.E.G., 901 A.2d 1017 (Pa. 2006).
3
Anders v. Santiago, 386 U.S. 738 (1967).
4
Father’s counsel has filed an application for leave to withdraw. See In re
V.E., 611 A.2d 1267 (Pa. Super. 1992) (extending Anders briefing criteria
to appeal from decrees involuntarily terminating parental rights). To
withdraw, 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. In the Interest of
J.J.L., 2016 PA Super 249, at *8 (Pa. Super. filed Nov. 15, 2016). We
further review counsel's Anders brief for compliance with the requirements
set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In his
brief, counsel must also: (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. Id. We conclude
that 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 Father advising him of his rights, and enclosed a copy of
(Footnote Continued Next Page)
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In February 2014, when Child was three months old, Dauphin County
Social Services for Children and Youth (“Agency”) was notified that Child’s
parents were using illegal drugs. Parents tested positive for opiates,
oxycodone, benzodiazepines, and marijuana. In May 2014, the Agency
received court-ordered protective custody of Child. On May 19, 2014, Child
was adjudicated dependent as a result of Parents overdosing on heroin and
being arrested. Child was placed in a pre-adoptive foster home where she
currently resides. The Agency implemented a family service plan (“FSP”) for
Parents to promote their reunification with Child. Father’s FSP objectives
required him to:
Attend all court hearings, agency meetings, and treatment
plan meetings;
Cooperate with the Agency and comply with its directives;
Participate in all scheduled visits with Child;
Participate in Child’s health care appointments;
Participate in family reunification services;
Maintain safe, sanitary housing;
Obtain a drug/alcohol evaluation;
Complete all recommended drug treatment plans; and
Refrain from using illegal drugs.
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(Footnote Continued)
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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Over the following months, Father successfully completed an inpatient
drug/alcohol treatment program; however, he achieved no other FSP
objectives. In August 2014, Father was incarcerated for various probation
violations. The following month, Father was hospitalized for another heroin
overdose. Father failed to participate in permanency review hearings held in
August and November 2015. On April 6, 2016, the Agency petitioned for the
involuntary termination of Father’s parental rights on the basis of 23 Pa.C.S.
2511(a)(1), (2), (5), (8) and (b) of the Adoption Act. 5 Subsequently, Father
expressed his intention to voluntarily relinquish his parental rights to Child.
At Father’s request, the court arranged for Father to participate in the
termination proceeding via teleconference. However, on the scheduled date
of the termination hearing, Father decided not to participate and, instead,
chose to participate in recreational activities in prison.
After the hearing, at which the Agency presented evidence, the trial
court found, by clear and convincing evidence, that termination was proper
and in Child’s best interests. On May 24, 2016, the court entered its order
terminating Father’s parental rights to Child and changing the goal to
adoption. This timely appeal follows. On appeal, Father presents the
following issue for our review: Did the trial court abuse its discretion, or
commit an error of law by ordering a goal change to adoption and the
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5
23 Pa.C.S. §§ 2101-2910.
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involuntary termination of [F]ather’s parental rights, although the agency
failed to make reasonable efforts to enable [F]ather to achieve timely
reunification with his child?
Father claims that the Agency was “required to make reasonable
efforts – over a reasonable period of time – to promote [his] reunification
with [C]hild.” Appellant’s Brief, at 8. Because the Agency did not transport
the Child to his place of confinement for visits, Father asserts that he was
unable to form a bond with Child. Father claims that to terminate his rights
under such circumstances was an abuse of discretion.
In In re D.C.D., supra, our Supreme Court held that:
Neither subsection (a) nor (b) [of 23 Pa.C.S. § 2511] requires a
court to consider the reasonable efforts provided to a parent
prior to termination of parental rights. Nevertheless, the
provision or absence of reasonable efforts may be relevant to a
court's consideration of both the grounds for termination and the
best interests of the child. For example, as applicable to
subsection (a)(2), a court may find an agency’s lack of
assistance to a parent relevant to whether a parent’s incapacity
cannot or will not be remedied by the parent. 23 Pa.C.S §
2511(a)(2).
* * *
[T]he Pennsylvania legislature [also] has not incorporated
reasonable efforts into the language of 23 Pa.C.S. § 2511(a)(2),
and it would be improper and, indeed, unwise for this Court to
add such an element to the statute by judicial fiat.
* * *
We also do not find reasonable efforts are required prior to
termination when Section 2511 of the Adoption Act, entitled
“Grounds for termination,” is read in conjunction with Section
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6351 of the Juvenile Act, entitled “Disposition of dependent
child.” Rather, we conclude that the Superior Court and Father
conjured a requirement in Section 6351(f)(9), when none exists.
Instead of a requirement to provide reasonable efforts prior to
the filing of a termination petition, Section 6351 actually creates
an exception that excuses the filing of an otherwise required
termination petition[.]
Id. at 672-73. Accordingly, proof that the Agency made reasonable efforts
to reunify Father with Child was not a prerequisite to ordering termination of
his parental rights. In re D.C.D., supra.
However, even if the statute required that the Agency expend such
efforts prior to termination, the record supports the fact that the Agency
attempted to facilitate Father’s compliance with his FSP and aid in his
reunification with Child. The Agency referred Father to drug and alcohol
treatment programs and parenting programs. It also attempted to arrange
visits with Child and Father after he was released from rehabilitation. In
fact, it was a result of Father’s failure to inform the Agency that he had
moved to Maryland that prevented the Agency from facilitating more visits.
In sum, Father’s continued incapacity to perform his parental duties,
due to his heroin addiction and repeated incarcerations, caused Child to be
without essential care necessary for her physical and mental well-being. As
a result, the court properly terminated Father’s parental rights under section
2511(a)(2). See In re Z.P. (Pa. Super. 2010) (termination proper under
section 2511(a)(2) where father was incarcerated prior to child’s birth, had
history of drug and alcohol abuse and arrests, and needs and welfare of child
would be met by termination); see also 23 Pa.C.S. § 2511(a)(2) (rights of
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parents in regard to child may be terminated where “[t]he 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.”).
Order affirmed. Petition to withdraw granted.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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6
Although Father references section 2511(b) on page 13 of his appellate
brief, he does so only to acknowledge that in order to terminate parental
rights a court must consider the effect of the termination on the child.
Father makes no claim or legal argument regarding that prong of the
termination analysis in the instant case. Therefore, we have confined our
review to section 2511(a).
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