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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADOPTION OF J'L.M.O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.M.O., NATURAL :
MOTHER :
:
:
:
: No. 530 WDA 2019
Appeal from the Decree Entered March 22, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
133 In Adoption 2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 18, 2019
J.M.O. (“Mother”) appeals from the decree terminating her parental
rights to J’L.M.O. (“Child”). Counsel has filed a petition to withdraw as counsel
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude the
trial court did not abuse its discretion in terminating Mother’s parental rights
and agree with counsel that Mother’s appeal is wholly frivolous. We therefore
grant counsel’s petition to withdraw and affirm the trial court decree.
Child was born in September 2017, and suffered from drug withdrawal
symptoms at birth. The court entered an emergency protective order for Child,
and, after a shelter care hearing, the court found that it would not be in Child’s
best interest to return to Mother at that time. In October 2017, the trial court
adjudicated Child dependent. Mother stipulated to the adjudication of
dependency. The grounds for the adjudication included, among other things,
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that Mother had a severe drug addiction that affected her ability to safely
parent Child, and Mother had reported her use of cocaine and illegally-
obtained Vicodin; Mother tested positive for cocaine and opiates at the time
of Child’s birth and Child suffered from withdrawal symptoms; the Erie County
Office of Children and Youth (“OCY”) had significant concerns regarding
Mother’s ability to safely parent Child as she was observed to be under the
influence of narcotics and incoherent, and hospital staff had to remove Child
from Mother’s room due to safety concerns. Trial Court Opinion, filed May 10,
2019, at 1-2 (“1925(a) Op.”).
Mother had the following permanency plan goals:
1. Participate in a drug and alcohol assessment with the
inclusion of information from the ongoing and intake
caseworkers and follow all recommendations;
2. Refrain from the use of drugs and/or alcohol and submit
to random urinalysis testing through the color code system
at the Esper Treatment Center;
3. Obtain and/or maintain gainful employment to ensure
that she can meet the basic needs of [Child] and provide
proof of such income;
4. Participate in a parenting program that addresses . . .
[Child’s] needs and incorporate these parenting concepts
during visitation;
5. Provide the name and pertinent information for any and
all household members on an ongoing basis to ensure that
the household members are appropriate and safe to be
around children;
6. Sign any and all releases of information as requested by
the Agency regarding [Child];
7. Sign any and all releases of information as requested by
the Agency regarding past, current and future drug and
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alcohol treatment, mental health treatment and medical
treatment for herself;
8. Cooperate with providing information regarding the
paternity of [Child];
9. Attend all medical appointments for [Child]; and
10. Participate in a mental health assessment and
participate in any recommendation.
Id. at 2-3.
In December 2018, OCY filed a petition to terminate Mother’s parental
rights to Child. At a hearing, the case supervisor, Lisa Langer, testified that
between October 2017 and October 2018, Mother had failed to show for 123
urine tests and had tested positive for narcotics five times. N.T., 3/7/19, at
12. At the July 2018 permanency review hearing, the court had told Mother
she needed to be 100% compliant with the treatment plan by October 2018.
Id. Mother, however, tested positive for cocaine in August 2018 and had drug-
related charges filed against her in September 2018. Id. at 12-13. Although
Mother spent two weeks in drug treatment, she discharged herself before
completion of the program. Id. at 13. Further, Mother attended a mental
health evaluation, but failed to follow through with the recommended
medication and counseling. Id. Mother did not attend parenting training and
failed to cooperate with OCY, as she did not identify Child’s father until June
2018,1 and did not allow caseworkers to visit her home. Id. at 13, 25, 28.
____________________________________________
1 The Court also terminated the parental rights of K.H. (“Father”). Father also
filed an appeal, which we will address by a memorandum to be filed at Docket
No. 565 WDA 2019.
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Mother contacted OCY the day before the March 2019 hearing, but, before
that, Mother’s last contact with OCY was at the October 2018 hearing, and,
prior to that, was on August 21, 2018. Id. at 18.
Langer testified that when Child was in the neonatal intensive care unit
(“NICU”), Mother only visited him two times. Id. at 14. After his release,
Mother had only one visit with Child, in June 2018. Id. Langer further testified
that she believed it would be in Child’s best interest to terminate Mother’s
parental rights. Id. at 14.
A permanency case worker at OCY, Gaylene Abbott-Fay, testified that
the foster home that Child has been in since he was discharged from the
hospital is an adoptive resource. Id. at 65-66. The foster parents began
working with Child prior to his discharge. Id. at 67. Child is on track
developmentally. Id. He has thrived in the foster home and receives the
stability, structure, support, and routine he needs. Id. at 66-68. Abbott-Fay
testified that Child’s best interests would be served by terminating Mother’s
parental rights. Id. at 68. She did not believe that terminating Mother’s
parental rights would detrimentally impact Child. Id.
Mother testified at the hearing and agreed that Child was born drug
dependent, that she did not appear for drug screens on 123 occasions, and
that she did not complete drug treatment or parenting classes. Id. at 37-40.
She further agreed that she was in the “same, if not worse, condition” than
when Child was found dependent. Id. at 41.
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Following the hearing, the trial court found that OCY established by clear
and convincing evidence that grounds for termination existed under 23
Pa.C.S.A. § 2511(a)(1), (2), (5), and (8),2 and that termination was proper
under 23 Pa.C.S.A. § 2511(b).
Mother filed a timely Notice of Appeal. Counsel for Mother raises two
issues in her Anders brief:
A. Whether the orphans’ court committed an error of law
and/or abused its discretion when it concluded that
termination of parental rights was supported by clear and
convincing evidence pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), [(5), and] (8)?
B. Whether the orphans’ court committed an error of law
and/or abused its discretion when it concluded that
termination of parental rights was supported by clear and
convincing evidence pursuant to 23 Pa.C.S.A. § 2511(b)?
Anders Br. at 3 (some capitalization and suggested answers omitted).
Before reviewing the merits of this appeal, we must first determine
whether counsel has satisfied the requirements for withdrawing as counsel.
See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
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2 The decree terminating Mother’s rights also list Section 2511(a)(4) as a
ground for termination. However, the trial court’s opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a) does not list Section
2511(a)(4) as a ground for termination, and, as Mother’s whereabouts were
known to the CYS, we conclude the subsection is inapplicable here. See 23
Pa.C.S.A. § 2511(a)(4) (“The child is in the custody of an agency, having been
found under such circumstances that the identity or whereabouts of the parent
is unknown and cannot be ascertained by diligent search and the parent does
not claim the child within three months after the child is found.”).
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examining counsel’s request to withdraw”). To withdraw pursuant to Anders,
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 brief to the defendant; and 3) advise
the defendant that he or she has the right to retain private
counsel or raise additional arguments that the defendant
deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc). Further, in the Anders brief, counsel seeking to withdraw 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. If counsel meets all of the above obligations, “it
then becomes the responsibility of the reviewing court to make a full
examination of the proceedings and make an independent judgment to decide
whether the appeal is in fact wholly frivolous.” Id. at 355, n.5 (citation
omitted).
We conclude that counsel has complied with all of the above technical
requirements. In her Anders brief, counsel has provided a summary of the
procedural history and facts of the case. Further, counsel’s brief identifies
materials in the record that could arguably support the appeal, and includes
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counsel’s assessment of why those issues are frivolous, with citations to
relevant legal authority. In addition, counsel served Mother a copy of the
Anders brief and advised her of her right to proceed pro se or to retain a
private attorney to raise any additional points she deemed worthy of this
court’s review. Petition to Withdraw, 5/17/19, at ¶ 6; Ex. A. Mother has not
responded to counsel’s petition to withdraw. As we find the technical
requirements of Anders and Santiago are met, we will proceed to the issues
on appeal.
When we review termination of parental rights cases, we “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting
In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings
have support in the record, we then determine if the trial court committed an
error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470,
473 (Pa.Super. 2018). We may reverse a trial court decision for an abuse of
discretion “only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d at 826.
Our Supreme Court has explained the reasons for applying an abuse of
discretion standard of review in termination of parental rights cases:
[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
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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.
Id. at 826-27 (citations omitted).
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29
(Pa.Super. 2008)).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under section
2511, the trial court must engage in a bifurcated analysis prior to terminating
parental rights:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child under the standard of best interests of the child.
One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the
effect on the child of permanently severing any such bond.
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Id. (citations omitted).
To affirm the termination of parental rights, this Court need only agree
with the trial court’s decision as to any one subsection of section 2511(a), as
well as section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). We focus our attention on whether the trial court abused its
discretion by terminating Mother’s parental rights pursuant to section
2511(a)(1), which provides that a parent’s rights to a child may be terminated
if:
[t]he parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either 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.A. § 2511(a)(1). “With respect to any petition filed pursuant to
subsection (a)(1) . . . , 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(b).
Pursuant to 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 at 730. The parental obligation is a “positive
duty which requires affirmative performance” and “cannot be met by a merely
passive interest in the development of the child.” In re C.M.S., 832 A.2d 457,
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462 (Pa.Super. 2003) (quoting In re Burns, 379 A.2d 535 (Pa. 1977)).
Indeed,
[p]arental 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. 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 his or her physical and
emotional needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Here, the trial court found that OCY established grounds for termination
under Section 2511(a)(1). 1925(a) Op. at 7-8. The Court explained:
[Child] was born drug exposed due to [Mother’s] drug use.
The child was in NICU at the hospital for about a month, yet
the mother only visited two times, and since his release,
[Mother] had one visit in June, 2018 with her son. [Mother]
did nothing to learn how to care for [a] child, especially one
born under the circumstances as [Child]. Her response to
being ordered to undergo drug testing was 123 no-shows
and 5 positive results. Her answer as to why she failed to
attend testing was “I had trouble with that.” Further,
ordered to participate in drug therapy, [M]other discharged
herself after two weeks. After being told by the Court in July,
2018 that she needed to be 100% compliant with the
treatment plan, [Mother] tested positive for cocaine in
August. [M]other admitted to attending no parenting
training, and never follow[ing] through with mental health
therapy and medications recommended by an evaluation.
All this failure and/or refusal for a year to abide by the
treatment plan devised to help the mother get her son
returned evidences a complete lack of desire by [Mother] to
perform parental duties. The conditions which led to
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[Child’s] placement continue to exist, and in [Mother’s] own
admission, are worse than October, 2017.
Id. at 7-8.
The record supports the trial court’s factual findings and it did not abuse
its discretion or err as a matter of law in finding termination proper under
Section 2511(a)(1). Mother has not met any of her permanency plan goals,
remains addicted to drugs, and visited Child only two times while he was in
the NICU and one time since his release from the hospital.
We next address whether the trial court erred in finding termination
would best meet Child’s developmental, physical and emotional needs and
welfare under Section 2511(b).
Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
Court has explained that “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into [the] needs and welfare of the child.”
In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). The trial court “must
also discern the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that bond.” Id.
Importantly, “[t]he mere existence of an emotional bond does not preclude
the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.
2011). Instead, the trial court “must examine the status of the bond to
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determine whether its termination would destroy an existing, necessary and
beneficial relationship.” Id. (internal quotation marks and citation omitted).
Here, the trial court found that Child was “thriving and developmentally
on target due to the attention provided by his foster parents.” 1925(a) Op. at
8. It found Child was “in a good, stable home and has bonded well with the
potential adoptive parents.” Id. It concluded the termination of [Mother’s]
parental rights is in the best interests of [Child].” Id.
The record supports the trial court’s factual findings and it did not err as
a matter of law or abuse its discretion in finding termination would best meet
Child’s interests under Section 2511(b). The testimony established that Child
bonded with his foster parents and that he was thriving in their care. Further,
Mother has had minimal contact with Child during Child’s life.
We agree with counsel that the issues raised in counsel’s Anders brief
are wholly frivolous. Moreover, after an independent review of the record, we
conclude that no other non-frivolous issue exists. Therefore, we grant
counsel’s petition to withdraw and affirm the decree terminating Mother’s
parental rights.
Petition to withdraw as counsel granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 10/18/2019
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