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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF C.A.J.-B.Y., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: S.T.J., FATHER
No. 1818 EDA 2016
Appeal from the Order April 28, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000301-2016
CP-51-DP-0001468-2013
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED JANUARY 10, 2017
S.T.J. (“Father”) appeals from the April 28, 2016 decree terminating
his parental rights to C.A.J.-B.Y. (“Child”). Father’s counsel has also filed an
Anders1 brief and a motion to withdraw from representation on the ground
that the appeal is frivolous. We affirm and grant counsel’s motion to
withdraw.
On April 12, 2013, when Child was seven months old, the Philadelphia
Department of Human Services (“DHS”) received a Child Protective Service
report stating that Child had been taken to Albert Einstein Medical Center in
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*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967); see In re V.E., 611
A.2d 1267, 1275 (Pa.Super. 1992) (extending Anders principles to appeals
involving termination of parental rights).
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Philadelphia with a near-fatal stab wound to the back of his head. The
wound was 7 centimeters deep and penetrated Child’s brain. At the time of
the incident, Father and S.K.J. (“Mother”) were in the midst of a domestic
dispute in Child’s presence. At the hospital, the parents reported that Child
had accidentally fallen on the knife during their altercation. Child was later
transferred to St. Christopher’s Hospital for Children and remained
hospitalized until July 11, 2013.
On April 13, 2013, Father was arrested and charged with attempted
murder, aggravated assault, endangering the welfare of children, possessing
an instrument of crime (“PIC”), simple assault, and recklessly endangering
another person.2
On July 11, 2013, upon Child’s release from the hospital, DHS
obtained order of protective custody (“OPC”) and placed Child in medical
foster care. After a shelter-care hearing on July 12, 2013, the trial court
lifted the OPC and ordered Child temporarily committed to DHS custody. On
July 19, 2013, the trial court adjudicated Child dependent and committed
him to the care and custody of DHS. The trial court also issued a stay-away
order as to Father.
On June 17, 2015, Father pled guilty to endangering the welfare of a
child. On the same day, he proceeded to a jury trial on the charges of
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2
Mother was also arrested as a result of the stabbing incident and, at
the time of Father’s termination hearing, was incarcerated.
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aggravated assault and PIC. However, the trial court declared a mistrial due
to a hung jury.3
On July 30, 2015, the trial court found aggravating circumstances as
to both Father and Mother and found that Child had been a victim of physical
abuse resulting in serious bodily injury. At a permanency review hearing on
December 17, 2015, the trial court ordered that the stay-away order as to
Father remain in place.
On March 29, 2016, DHS filed a petition to involuntarily terminate
Father’s parental rights and a petition for a goal change to adoption. After a
hearing on April 28, 2016, the trial court concluded that DHS proved by clear
and convincing evidence that Father’s parental rights should be terminated
and that it was in Child’s best interest to change the goal to adoption as to
Father. The trial court, however, deferred changing Father’s goal until after
Mother’s termination hearing.4
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3
Father’s retrial was scheduled to take place after the date of this
appeal, as was his sentencing on the child endangerment conviction. See
Anders Br. at 8.
4
The trial court stated that although DHS had “met [its] burden by
clear and convincing evidence to involuntarily terminate [Father’s] parental
right[s],” the court could not “change the goal to adoption without hearing
testimony regarding [Mother].” N.T., 4/28/16, at 39-40. Mother’s
termination hearing was scheduled for August 22, 2016, after the date of
this appeal. See Opinion, 7/1/16, at 2 (“1925(a) Op.”).
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Father timely appealed to this Court on May 25, 2016. On September
1, 2016, Father’s counsel filed an Anders brief and a motion to withdraw
from representation.5
When presented with an Anders brief, this Court may not review the
merits of the underlying issues until we address counsel’s request to
withdraw. To comply with Anders, appellate counsel must:
(1) petition the court for leave to withdraw stating that
after making a conscientious examination of the record
and interviewing the defendant, counsel has determined
the appeal would be frivolous;
(2) file a brief referring to anything that might arguably
support the appeal, but which does not resemble a “no
merit” letter or amicus curiae brief; and
(3) furnish a copy of the brief to [the] defendant and
advise him of his right to retain new counsel, proceed pro
se or raise any additional points that he [or she] deems
worthy of the court's attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa.Super. 2004) (quoting
Commonwealth v. Ferguson, 761 A.2d 613, 619 (Pa.Super. 2000)).6 If
counsel satisfies these requirements, we will then independently examine
the record to determine if the appeal is frivolous. Id.
In her motion to withdraw, counsel states that she can no longer
effectively represent Father because she and Father disagree about case
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5
Although counsel titled her motion a “motion to vacate counsel,” we
will refer to it herein as a motion to withdraw.
6
See also Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009) (setting forth requirements for contents of Anders brief).
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strategy. Counsel further states that she thoroughly reviewed the record
and concluded that the appeal would be frivolous. In addition, counsel has
filed a brief raising all issues that might possibly support an appeal, has
furnished Father with a copy of the brief, and has advised Father of his
appellate rights and his right to retain counsel or proceed with the appeal
pro se. Based on our review of the record, we conclude that counsel has
complied with Anders.
We now must determine whether Father’s claims are frivolous. The
Anders brief raises two issues:
1. Whether the termination of [F]ather’s parental rights
was supported by “clear and convincing” evidence and
whether the court erred by disregarding the “totality of
the circumstances” and not taking into account
[F]ather’s explanation for his failure to perform parental
duties[.]
2. Whether it was in [Child’s] best interests to be severed
from [F]ather and adopted by his current caretakers.
Anders Br. at 2.7
Our standard of review in termination cases is as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
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7
After our independent review of the record, we do not discern any
additional issues for appeal. Thus, we will address only the issues raised in
counsel’s Anders brief.
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rights, this Court must accord the hearing judge’s decision
the same deference that we would give a jury verdict. We
must employ a broad, comprehensive review of the record
in order to determine whether the trial court’s decision is
supported by competent evidence.
S.M.B., 856 A.2d at 1238 (quoting In re C.S., 761 A.2d 1197, 1199
(Pa.Super. 2000)) (internal citations omitted).8
The termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. § 2511. The trial court must conduct a bifurcated
analysis in which it initially focuses on the conduct of the parent. In
Interest of B.C., 36 A.3d 601, 606 (Pa.Super. 2012). The party seeking
termination must prove by clear and convincing evidence that the parent’s
conduct satisfies at least one of the nine statutory grounds for termination in
section 2511(a). Id. If the trial court determines that the parent’s conduct
warrants termination under section 2511(a), then it must analyze the best
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8
The Pennsylvania Supreme Court has explained the reason for
applying an abuse of discretion standard to termination decisions as follows:
[U]nlike 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 parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and 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 S.P., 47 A.3d 817, 826 (Pa. 2012).
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interests of the child under section 2511(b), primarily considering the child’s
developmental, physical, and emotional needs. Id.
First, Father asserts that the trial court erred in failing to consider the
“totality of the circumstances,” including “[his] pending criminal trial, his
incarceration[,] and the stay-away order,” before terminating his parental
rights. Anders Br. at 3. We disagree.
The trial court terminated Father’s parental rights under sections
2511(a)(1), (2), (5), (8). However, we need only agree with the trial court’s
determination as to one subsection of section 2511(a) in order to affirm. In
re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Thus, we will
analyze the trial court’s decision to terminate under section 2511(a)(2),
which provides:
(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:
...
(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.
23 Pa.C.S. § 2511(a)(2).
To terminate parental rights under section 2511(a)(2), DHS must
establish: (1) the parent’s repeated and continued incapacity, abuse,
neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused
the child to be without essential parental care, control or subsistence
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necessary for his physical or mental well-being; and (3) the causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied. S.P.,
47 A.3d at 828. A parent’s incarceration is relevant to the section
2511(a)(2) analysis and may be dispositive of a parent’s ability to provide
the “essential parental care, control or subsistence” that the statute
contemplates. Id. Furthermore, “[t]he cause of [the parent’s] incarceration
may be particularly relevant to the Section 2511(a) analysis, where
imprisonment arises as a direct result of the parent’s actions which were
‘part of the original reasons for the removal’ of the child.” In re Z.P., 994
A.2d 1108, 1120 (Pa.Super. 2010) (quoting In re C.L.G., 956 A.2d 999,
1006 (Pa.Super. 2008)).
Here, in its section 2511(a) analysis, the trial court carefully
considered Father’s present circumstances and the reasons for Child’s
removal from his custody. The trial court focused not only the fact that
Father has been incarcerated for most of Child’s life, but also on the fact that
Father’s incarceration was the direct result of the stabbing incident that
seriously injured Child. The trial court found:
In the instant case, the stay away order was issued due to
[Father’s] own conduct. Furthermore, [Father] has been
incarcerated during the entire time [Child] has been in the
care and custody of DHS. [Father’s] release date from
prison is unknown. He still has an open criminal case
regarding the stabbing incident with [Child]. . . .
Moreover, the [Community Umbrella Agency] supervisor
testified that the conditions which brought this case into
the care of DHS have not been remedied.
...
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. . . [T]he court found that a domestic violence incident
between [Mother] and [F]ather resulted in [Child] incurring
a stab wound. The stab wound caused [Child] to suffer
permanent disabilities. The evidence presented in this
case clearly warrants the involuntary termination.
1925(a) Op. at 4 (internal citations omitted). The trial court, as the
factfinder, was required to make all credibility determinations and resolve
the conflicts in the evidence. Z.P., 994 A.2d at 1115-16. We find no abuse
of discretion.9
Next, Father asserts that the trial court erred in concluding that
changing the goal to adoption was in Child’s best interests.10 We disagree.
To terminate parental rights, DHS must prove by clear and convincing
evidence that termination is in the child’s best interests under section
2511(b). “While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is . . . only one of
many factors to be considered by the court when determining what is in the
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9
Father also argues that at the time of the termination proceeding, he
was awaiting retrial on the aggravated assault and PIC charges and, thus, “it
was conceivable that he may have been found not guilty of the more serious
charges and would have been eligible for release [from prison].” Anders Br.
at 8. However, the evidence credited by the trial court established that
Father’s release date was unknown and that he would be unable to care for
Child within a reasonable amount of time. N.T., 4/28/16, at 10-11, 13-14.
10
We recognize that the April 28, 2016 decree from which Father
appealed did not formally change Father’s goal to adoption. See supra n.3.
However, the trial court stated on the record at the termination hearing that
DHS had satisfied its burden of proof under section 2511(b), N.T., 4/28/16,
at 40, and also concluded in its opinion that adoption was in Child’s best
interests, 1925(a) Op. at 5-6. Therefore, we will address Father’s claim.
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best interest of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011).
The trial court must also consider the child’s safety needs and “intangibles,
such as the love, comfort, security, and stability the child might have with
the foster parent.” Id. (quoting In re A.S., 11 A.3d 473, 483 (Pa.Super.
2010)). Moreover, the trial court must consider “whether any existing
parent-child bond can be severed without detrimental effects on the child.”
Id.
With regard to section 2511(b), the trial court found:
[T]he testimony established that [Child] would not suffer
any irreparable harm if [Father’s] rights were terminated.
There is no evidence that a bond exists between [Father]
and [Child]. The bond was never able to develop because
there was a stay away order issued against [Father] when
[Child] was less than eight months old. . . . [F]ather has
been convicted of endangering the welfare of his child.
The child sustained stab wounds to the head resulting in
major ongoing medical needs. The child is placed in a
medical foster home. The testimony indicated that it
would be in the best interest of [Child] to change the goal
to adoption.
1925(a) Op. at 5-6 (internal citations omitted). The record supports the trial
court’s findings. Therefore, we conclude that DHS established, by clear and
convincing evidence, that termination of Father’s parental rights was in
Child’s best interests.
Decree affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
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