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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF P.K.K., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.C.J., MOTHER :
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: No. 1151 EDA 2016
Appeal from the Decree March 7, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-AP-0000668-2014,
CP-51-DP-0000993-2013
IN THE THE INTEREST OF: J.Z.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.C.J., MOTHER :
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: No. 1152 EDA 2016
Appeal from the Decree March 7, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-AP-0000669-2014,
CP-51-DP-0000994-2013
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 09, 2017
Appellant, R.C.J., (“Mother”), appeals from the decree in the
Philadelphia County Court of Common Pleas, which terminated her parental
rights to her minor children, P.K.K. and J.Z.K. Counsel for Mother has also
filed with this Court both a petition for leave to withdraw as counsel and a
brief pursuant to Anders v. California, 87 S. Ct. 1396 (1967). We grant
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counsel’s petition for leave to withdraw and affirm the decision of the trial
court.
In May 2013, the Department of Human Services (“DHS”) received a
General Protective Services (“GPS”) report which alleged that Mother was
wandering the street with her children, while high on “wet”.1 Mother was
transported to Albert Einstein Medical Center (“AEMC”) and, once stabilized,
transferred to Germantown Crisis Response Center (“CRC”). The children
were transported to DHS by police. DHS was unable to locate any family
members, and the children were temporarily placed at Baring House until
DHS was able to locate an appropriate placement for the children. The GPS
report was substantiated. Upon discharge from Germantown CRC, Mother
arrived at DHS and denied illegal drug use. Mother further stated that she
was diagnosed as suffering from anxiety, depression, and bipolar disorder
for which she was prescribed clonazepam and lamotrigine.
In May 2013, DHS obtained an Order of Protective Custody (“OPC”) for
the children, and they were placed in a foster home through Children’s
Choice. A Shelter Care Hearing was held in May of 2013, at which time the
court lifted the OPC and ordered the temporary commitment to stand.
Mother was referred the Clinical Evaluation Unit (“CEU”) for a drug screen,
an assessment, and monitoring. (Shelter Care Order, 5/15/13). At the
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1
We derive the following facts from the trial court opinion which is
supported by the record. See, Trial Court Opinion, 6/17/16 at 2-13.
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Adjudicatory Hearing, the court discharged the temporary commitment,
adjudicated the children dependent, and committed them to DHS. The court
further ordered that (1) a Family Service Plan (“FSP”) meeting be held within
30 days; (2) Mother be granted weekly supervised visitation; (3) Mother to
continue with treatment through Community Organization for Mental Health
and Retardation (“COMHAR”); (4) that Mother comply with the scheduled
CEU appointment; and (5) that Mother be re-referred to CEU for a forthwith
drug screen and monitoring. (Orders of Adjudication and Disposition
5/21/13)
In August 2013, the CEU submitted a report of non-compliance as to
Mother, which stated that Mother was evaluated in June 2013, and the
treatment recommendation was for Mother to attend a short term dual
diagnosis program. Mother failed to attend her intake appointment at
Gaudenzia Together House for Women. The report further stated that
Mother tested positive on May 15, 2013, for phencyclidine (“PCP”), and on
May 21, 2013, tested positive for PCP and marijuana. Mother continued to
test positive for PCP in June 2013, August 2013, November 2013, March
2014, and June 2014. Mother failed to comply with subsequent orders for
drug screens and assessments. DHS filed goal change to adoption petitions
and petitions for involuntary termination of parental rights on December 1,
2014. After several continuances, the goal change termination hearing was
held on March 7, 2016.
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By decree dated March 7, 2016, the trial court terminated Mother’s
parental rights and changed the goal to adoption. In April 2016, Mother’s
counsel timely filed a notice of appeal on Mother’s behalf as well as a
statement pursuant to Pa.R.A.P. 1925(b). On July 18, 2016, Mother’s
counsel filed an application to withdraw as counsel and a brief pursuant to
Anders.
The Anders brief raises the following issues on appeal:
(1) The trial court erred in finding Mother did not meet her
objectives regarding drug and alcohol treatment and drug
testing as Mother asserts that she did not intentionally use
any controlled substance at the time she was drug tested
by order of the court.
(2) The trial court erred in finding that the foster mother has a
strong bond with the children. Mother argues that her
children are bonded with her and not to foster mother.
Appellant’s Brief at 12.
Initially, we address the Anders brief and petition seeking permission
to withdraw. The principles that guide our review are as follows:
When counsel files an Anders brief, this Court may not review
the merits without first addressing counsel’s request to
withdraw. Commonwealth v. Washington, 63 A.3d 797, 800
(Pa. Super. 2013). In In re V.E., 611 A.2d 1267 (Pa. Super.
1992), this Court extended Anders principles to appeals
involving the termination of parental rights. Id. at 1275. In
these cases, 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). We review counsel’s
Anders brief for compliance with the requirements set forth by
our Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
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[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 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.
Additionally, pursuant to Commonwealth v. Millisock,
873 A.2d 748 (Pa. super. 2005) and its progeny,
“[c]ounsel also must provide a copy of the Anders brief to
his client. Attending the brief must be a letter that advises
the client of his right to: (1) retain ne counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[‘]s
attention in addition to the points raised by counsel in the
Anders brief.” Commonwealth v. Orellana, 86 A.3d
877, 880 (Pa. Super. 2014) (internal quotation marks and
citation omitted). “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).
In re X.J., 105 A.3d 1, 3-4 (Pa. Super. 2014).
Here, we conclude that Mother’s counsel has complied with the
requirements as set forth above.2 Counsel has provided Mother with a copy
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2
Counsel should have included citations when he discussed facts of record.
See Santiago, 978 A.2d at 361. Counsel is advised to adhere more closely
to the requirements as set forth in Santiago in the future.
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of the Anders brief and indicated in his correspondence that Mother may
proceed pro se or retain new counsel. In his brief, counsel references facts
of record that might arguably support Mother’s appeal and sets forth his
conclusion that the appeal is frivolous. See Anders Brief at 11-13.
Accordingly, we undertake our independent review of the record to
determine whether Mother’s appeal is wholly frivolous.
Our review of an order granting a petition for involuntary termination
of parental rights is well settled:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determination fo the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). 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.; [In re]
R.I.S., [36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id., see also Samuel Bassett v. Kia
Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011); Christianson
v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may
be reversed for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-
will. Id.
As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observe that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and the parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
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termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
“[T]he burden is upon [the petitioner] to prove by clear and convincing
evidence that its asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained
[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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court terminated Mother’s parental rights under sections
2511(a)(1), (2), (5), (8) and 2511(b). This Court may affirm the trial
court’s decision regarding the termination of parental rights with regard to
any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380,
384 (Pa. Super. 20014) (en banc). As such we will focus on 2511(a)(2) and
2511(b), which provide as follows:
§ 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:
* * *
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(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.
* * *
(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.A. § 2511(a)(2), (b).
We first examine the court’s termination of Mother’s parental rights
pursuant to Section 2511(a)(2). This Court has previously addressed
termination under this provision, stating,
Parental rights may be terminated under Section 2511(a)(2) if
three conditions are met: (1) repeated and continued incapacity,
abuse, neglect or refusal must be shown; (2) such incapacity,
abuse, neglect or refusal must be shown to have caused the
child to be without essential parental care, control or
subsistence; and (3) it must be shown that the causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied. In re Geiger, 459 Pa. 636,, 331 A.2d 172, 174
(1975).
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008). “The grounds for
termination due to parental incapacity that cannot be remedied are not
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limited to affirmative misconduct. To the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties.” In
re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (quoting In
re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)).
The evidence of Mother’s unwillingness and unfitness to exercise
parental responsibility within the meaning of Section 2511(a)(2) is well-
documented in the record. The children came into care due to Mother’s
substance abuse. Notes of Testimony (N.T.) 3/7/16, 10-11. Mother’s
objectives were to comply with case management services, comply with
drug and alcohol services, reengage and comply with mental health services,
reengage and comply with ARC (“Achieving Reunification Center”), and
comply with supervised visitation. Id. Mother was referred to the CEU to
comply with the drug and alcohol objectives; however, she continually tested
positive for PCP. Id. While Mother did complete anger management and
consistently visited the children, she failed to obtain stable housing or
comply with ARC. Id. at 11-13. Given Mother’s inability to resolve her
substance abuse issues, she has not remedied the issue which caused the
children to come into care. The record demonstrates Mother’s continued
incapacity and inability to resolve these issues has caused the children to be
without the essential parental control necessary for their physical and mental
well-being.
As there is clear and convincing evidence in the record that supports
the trial court’s termination of Mother’s parental rights under Section
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2511(a)(2), we affirm the trial court’s decision. In re Adoption of S.P., 47
A.3d at 826-827.
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). Pursuant to Section 2511(b), the court, in
terminating the rights of a parent, shall give primary consideration to the
developmental, physical, and emotional needs and welfare of a child.
Jared Burr, CUA case manager from Wordsworth 5, testified that he
observed Mother during visits and the quality of visits was inconsistent. N.T.
at 13. Mother would take out her anger on the children and, while she
helped the children with their homework, she had little patience so the
quality of visits suffered. Id. at 13-14. Mr. Burr further testified that due to
Mother’s inability to control the children’s behavior, J.Z.K. displayed behavior
issues and P.K.K. shut down during visits. Id. at 14.
The children have been with the same pre-adoptive Children’s Choice
foster parent since May 2013. Id. at 15. Mr. Burr testified that they have a
strong bond with the foster mother and call her “Mom.” Id. Mr. Burr
testified that neither P.K.K. nor J.Z.K. would suffer irreparable harm if
Mother’s parental rights were terminated. Id. at 14. He further testified
that adoption would be in the children’s best interest. Id. 15.
Upon review, we find no abuse of discretion in the trial court’s
termination of Mother’s parental rights. Our independent review of the
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record reveals no non-frivolous claims that Mother could have raised, and we
agree with Counsel that this appeal is wholly frivolous. We therefore affirm
the termination decree and grant Counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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