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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.L.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.R., MOTHER :
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: No. 1802 MDA 2019
Appeal from the Decree Entered October 3, 2019,
in the Court of Common Pleas of York County,
Orphans' Court at No(s): 2019-0106a.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 20, 2020
A.R. (Mother) appeals from the decree terminating her parental rights
to her 4-year-old son E.L.D. (Child) under the Adoption Act.1 See 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8) and (b). Mother’s counsel has filed an application
to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738
(1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
review, we conclude that Mother’s counsel complied with the procedural
requirements necessary to withdraw. Furthermore, after independently
reviewing the record, we conclude that the appeal is wholly frivolous. We
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1 In a separate appeal, also before this panel, Mother also challenges the
termination of her other 4-year-old son J.M.D.; the children are twins. See
1803 MDA 2019. In both cases, the court also terminated the rights of M.A.D.,
Sr. (Father), who does not appeal either case.
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grant counsel’s application to withdraw and affirm the decree terminating
Mother’s parental rights.
Child was born in 2015. The York County Office of Children, Youth and
Families (the Agency) became involved with the family in early 2018. The
reasons included ongoing domestic violence, Mother’s mental health, unstable
living conditions, parenting concerns and lack of supervision. Child was placed
in foster care on August 31, 2018. A shelter care hearing was held on
September 4, 2018, and Child was adjudicated dependent on September 26,
2018. After Mother made minimal progress over the course of 12 months, the
Agency filed a petition to terminate Mother’s rights. The orphans’ court held
a hearing on September 10, 2019 and granted the Agency’s petition. This
timely appeal followed.
Mother’s counsel raises two issues in her Anders brief:
1. Whether the court abused its discretion in finding that
[the Agency] established by clear and convincing
evidence that the statutory grounds existed to justify
terminating the parental rights of [Mother] pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), and (8).
2. Whether the [orphans’] court made an error of law or
abused its discretion in concluding that an involuntary
termination of parental rights of [Mother] would best
serve the needs and welfare of [Child] pursuant to
Section 2511(b) of the Adoption Act.
Anders Brief at 4.
Initially, because counsel filed a petition to withdraw and an Anders
brief, “this Court may not review the merits of the underlying issues without
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first passing on the request to withdraw.” Commonwealth v. Daniels, 999
A.2d 590, 593 (Pa. Super. 2010) (citing Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted)). This Court
extended the Anders principles to appeals involving the termination of
parental rights. In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citation omitted).
In order for counsel to withdraw from an appeal pursuant to Anders,
certain requirements must be met. In the Anders brief, 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. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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 new 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).
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“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.” In re X.J., 105 A.3d at 4 (citing Commonwealth v. Goodwin,
928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (further citation omitted).
Furthermore, this Court’s independent review must also “discern if there are
any additional, non-frivolous issues overlooked by counsel.” Commonwealth
v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Flowers does not require us “to act as counsel or otherwise advocate on
behalf of a party.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.
Super. 2018) (en banc). “Rather, it requires us only to conduct a simple
review of the record to ascertain if there appear on its face to be arguably
meritorious issues that counsel, intentionally or not, missed or misstated.” Id.
Preliminarily, we find counsel has substantially complied with the
technical requirements to withdraw. See Commonwealth v. Reid, 117 A.3d
777, 781 (Pa. Super. 2015) (observing that substantial compliance with the
Anders requirements is sufficient). We now turn to merits of the issues raised
and examine whether this appeal is wholly frivolous.
We review an order involuntarily terminating parental rights for an
abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa. Super.
2018) (citation omitted). “The party seeking termination must prove by clear
and convincing evidence that the parent's conduct satisfies the statutory
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grounds for termination[.]” In re Adoption of J.N.M., 177 A.3d 937, 942
(Pa. Super. 2018), appeal denied, 183 A.3d 979 (Pa. 2018) (citation omitted).
The first issue raised in counsel's Anders brief is whether the trial court
erred in concluding that the requirements of Section 2511(a) were satisfied.
“In order to affirm the termination of parental rights, this Court need only
agree with any one subsection under Section 2511(a).” In re Interest of
D.F., 165 A.3d 960, 966 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa.
2017) (citation omitted). The orphans’ court found that the requirements
of sections 2511(a)(1)(2), (5), and (8) were satisfied.
We focus our attention on Section 2511(a)(2), which provides in
relevant part:
§ 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:
***
(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.A. §2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
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without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted).
In this case, the orphans’ court concluded that Mother did not have the
ability to change or improve her situation or parenting. Specifically, Mother
submitted to a parenting capacity evaluation, which concluded that Mother did
not have the intellectual capacity to parent on her own. Mother engaged in
parenting classes and individual therapy to overcome this obstacle, but they
were to no avail. For instance, Mother and Father visited with Child; when
Father left, Mother became too overwhelmed to continue with the visit.
To that end, Mother’s dependence on Father was alarming, considering
the toxic relationship between the parents. The significant domestic violence
between the parents was an ongoing issue throughout this case, including the
day of the termination hearing. To illustrate, five days prior to the termination
hearing, service provider Tahami Samphilipo helped Mother move in with
Mother’s sister to avoid Father’s abuse. One the day of the termination
hearing, Ms. Samphilipo went to the sister’s house to give Mother a ride to the
hearing, only to discover that Mother returned to Father. Additionally, Regina
Pike, another service provider, testified that the ongoing violence created a
chronic crisis. The court determined that this violence created “a toxic and
unsafe space for [Child].”
We agree the Agency provided sufficient evidence to terminate Mother’s
rights pursuant to Section 2511(a)(2). Mother’s inability to parent has caused
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Child to be without parental care, and she has demonstrated that she either
cannot or will not remedy this inability.
We next consider whether the Agency proved the requirements of
Section 2511(b). That section provides:
(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(b).
When examining the needs and welfare of the child under this section,
the court must consider the nature and status of the emotional bond between
parent and child. See C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation
omitted). The court must pay close attention to whether permanently
severing the bond will have a negative the effect on the child. See id. (citation
omitted). The bond question is not simply whether one exists, but whether
the bond is worth saving.
As we have said:
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 nonetheless only one of many factors to be
considered by the court when determining what is in the
best interest of the child. The mere existence of an
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emotional bond does not preclude the termination of
parental rights. Rather, the orphans' court must examine
the status of the bond to determine whether its termination
would destroy an existing, necessary and beneficial
relationship.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotations and citations
omitted).
In the instant case, all parties acknowledge that there is a bond between
Mother and Child. However, that bond is demonstrably unhealthy. At the
time of the termination hearing, Child had lived with the foster parents for just
over a year. When Child came into foster care, he was developmental
delayed. Child had difficulty eating food because he had 15 cavities. Child
would eat out of trash cans and try to eat rocks. Child spoke very little when
he came into foster care. Child was not potty-trained. While in foster care,
Child has thrived and many of the health and developmental concerns have
been alleviated. After visits with Mother, Child would regress and throw
tantrums.
Given these facts, we conclude the Agency presented sufficient evidence
to warrant termination under Section 2511(b). While Child knows and
recognizes Mother, it is clear termination best serves his needs and welfare.
Termination would not sever a beneficial relationship, but instead would
provide Child with essential stability and permanency.
In sum, we conclude that both issues raised in counsel's Anders brief
are wholly frivolous.
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Next, we conduct an independent review of the entire record to discern
whether any other issue of arguable merit exists. See Flowers, supra. In
doing so, we note that Mother’s counsel failed to appeal one of the four
grounds upon which termination was granted under 23 Pa.C.S.A. § 2511(a).
In this matter, the Agency petitioned to terminate under four sections
under the Adoption Act, namely, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).
The orphans’ court granted the petition under all four sections. Counsel’s
Anders Brief raised Section 2511(a)(2), (5), and (8), but omitted Section
2511(a)(1). Although counsel’s oversight is significant, it does not warrant
relief under our Anders protocol.
As we mentioned above, when this Court discovers a non-frivolous
issue, we will deny the petition to withdraw and remand for the filing of an
advocate’s brief. See Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016). Notably,
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. 2004) (en banc). Thus, even if we
remanded for an advocate’s brief, and even if Mother proved successful in her
challenge under Section 2511(a)(1), termination would still be warranted
under Section 2511(a)(2). Consequently, we cannot conclude that counsel’s
failure to challenge the termination under Section 2511(a)(1) constitutes a
non-frivolous issue under the facts of this case.
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Having determined that the issues raised on appeal are wholly frivolous
and that no other issue would have arguable merit, we grant counsel's request
to withdraw and affirm the decree terminating Mother’s parental rights.
Application to withdraw as counsel granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/20/2020
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