J-S30034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.T., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.T., Natural Mother : No. 2058 MDA 2016
Appeal from the Decree entered November 18, 2016
in the Court of Common Pleas of Luzerne County,
Orphans' Court Division, No(s): A-8454
IN THE INTEREST OF: K.R.T., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.T., Natural Mother : No. 2059 MDA 2016
Appeal from the Decree entered November 18, 2016
in the Court of Common Pleas of Luzerne County,
Orphans' Court Division, No(s): A-8455
IN THE INTEREST OF: N.N.T., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.T., Natural Mother : No. 2060 MDA 2016
Appeal from the Decree entered November 18, 2016
in the Court of Common Pleas of Luzerne County,
Orphans' Court Division, No(s): A-8457
BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 12, 2017
J-S30034-17
J.T. (“Mother”) appeals from the Decrees1 voluntarily terminating her
parental rights to N.N.T., a daughter born in September 2012, J.M.T., a son
born in November 2013, and K.R.T., a son born in December 2014
(collectively, “Children”).2 Additionally, Thomas W. Sharkey, Esquire
(“Attorney Sharkey”), Mother’s counsel, has filed a Petition for Leave to
Withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We grant Attorney Sharkey’s Petition
for Leave to Withdraw and affirm the trial court’s Decrees.
Relevantly, on August 8, 2016, Luzerne County Children and Youth
Services (“CYS”) filed Petitions to involuntarily terminate Mother’s parental
rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). In the
Petitions, CYS alleged that Children have been in CYS custody since
December 2014, Mother has not had any contact with Children since January
2016, and Mother has not performed any parental duties since that time.
The trial court conducted a hearing on the Petitions on November 16,
2016, at which Mother appeared with Attorney Sharkey. On the same date,
Mother filed Petitions for voluntary relinquishment of her parental rights to
Children. The guardian ad litem appointed to represent Children, conducted
a colloquy of Mother with respect to her voluntary relinquishment of parental
rights. Counsel for CYS cross-examined Mother, during which Mother waived
1
This Court, sua sponte, consolidated Mother’s appeals from the Decrees.
2
The trial court also entered Decrees terminating the parental rights of
Children’s father, D.T., who is not a party to the instant appeal.
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notice of a voluntary relinquishment proceeding. At the conclusion of the
colloquy, the trial court indicated to Mother that it accepted her voluntary
relinquishment of her parental rights, believing that she had done so
knowingly, willingly and voluntarily.
The trial court then received evidence from CYS caseworker Cindy
Jones (“Jones”) regarding Children’s best interests, pursuant to Section
2511(b). At the conclusion of the evidentiary hearing, the trial court noted
on the record that it had signed the Decrees accepting Mother’s voluntary
relinquishment of parental rights.3
Attorney Sharkey, on behalf of Mother, filed timely Notices of Appeal,
and a Concise Statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). On February 21, 2017, Attorney Sharkey filed a
Petition for Leave to Withdraw as Counsel.
Before reviewing the merits of Mother’s claims, we must first
determine whether Attorney Sharkey has complied with the dictates of
Anders in petitioning to withdraw from representation. See In re X.J., 105
A.3d 1, 3 (Pa. Super. 2014). This Court has extended the Anders principles
to a first appeal by an indigent parent from a decree involuntarily
terminating his or her parental rights. See In re V.E., 611 A.2d 1267, 1275
(Pa. Super. 1992). Pursuant to Anders, when an attorney believes that an
appeal is frivolous and wishes to withdraw as counsel, he or she must
3
Although the trial court signed the Decrees during the termination hearing,
they were not entered on the docket until November 18, 2016.
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the [client], counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
[the client] and advise him of his right to retain new counsel or
to raise any additional points that he deems worthy of the
court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
With respect to the third requirement of Anders, that counsel inform the
client of his or her rights in light of counsel’s withdrawal, this Court has held
that counsel must “attach to [a] petition to withdraw a copy of the letter
sent to the[] client advising him or her of their rights.” Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once
counsel has satisfied the above requirements, this Court “must undertake an
independent examination of the record to determine whether the appeal is
wholly frivolous.” In re S.M.B., 856 A.2d at 1237.
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Here, Attorney Sharkey has complied with the requirements set forth
in Anders by indicating that he made a conscientious review of the record
and determined that an appeal would be wholly frivolous. Further, the
record contains a copy of the letter that Attorney Sharkey sent to Mother,
informing her of Attorney Sharkey’s intention to withdraw and advising her
of her right to proceed pro se, retain counsel, and file additional claims.
Finally, Attorney Sharkey’s Anders Brief meets the standards set forth in
Santiago. Because Attorney Sharkey has complied with the procedural
requirements for withdrawing from representation, we will independently
review the record to determine whether Mother’s appeal is, in fact, wholly
frivolous.
In the Anders Brief, the following questions are presented for our
review:
I. Whether the [t]rial [c]ourt erred in granting voluntary
relinquishment of parental rights pursuant to the requirements
of the Adoption Act of 1980, October 15, [P.L.] 934, No. 163 § 1,
et [s]eq.[?]
a. Whether the trial court abused its discretion, committed
an error of law, and/or that there was insufficient
evidentiary support for the [c]ourt’s decision[,] in
accepting [Mother’s] voluntary relinquishment as
knowingly, voluntarily, and willingly given?
b. Whether the trial court abused its discretion, committed
an error of law, and/or that there was insufficient
evidentiary support for the [c]ourt’s decision that the best
interests of [Children] would be served by terminating
[Mother’s] parental rights?
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II. Whether [CYS] acted improperly in seeking to terminate
[Mother’s] parental rights[?]
Anders Brief at 4. Mother neither filed a pro se brief, nor retained alternate
counsel for this appeal.
We will address Mother’s claims together. In her first claim, Mother
argues that the trial court erred in accepting her voluntary relinquishment as
knowingly, voluntarily, and willingly given. Anders Brief at 7. Mother also
claims that the trial court erred in concluding that the best interests of
Children would be served by the termination of her parental rights. Id. at
10-11. In her second claim, Mother asserts that CYS acted improperly in
seeking to terminate her parental rights. Id. at 12-13.
Appellate 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 determinations of the
trial court if they are supported by the record. If the factual
findings are supported, appellate courts review to determine if
the trial court made an error of law or abused its discretion. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
In re C.M.C., 140 A.3d 699, 704 (Pa. Super. 2016) (brackets and internal
citations omitted).
A parent may relinquish her parental rights to an agency with written
notice and court approval. See 23 Pa.C.S.A. § 2501. Further, “[a] party
seeking to disturb a termination decree must show that the consent given to
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terminate parental rights was not intelligent, voluntary and deliberate.” In
re M.L.O., 416 A.2d 88, 90 (Pa. 1980).
During the colloquy, Mother testified, inter alia, that she understood
the nature of the proceedings; she wished to voluntarily relinquish her rights
to Children; she had the opportunity to consult counsel; her decision was
voluntary; and she believed the voluntary relinquishment of her parental
rights was in Children’s best interests. See N.T., 11/16/16, at 13-17. The
trial court noted in its Opinion, and we agree, that nothing in the record
suggests that Mother misunderstood the impact of her choice. See Trial
Court Opinion, 1/17/17, at 8. Upon review, and discerning no abuse of
discretion by the trial court, we conclude that Mother’s voluntary
relinquishment of her parental rights was intelligent, voluntary and
deliberate.
With regard to Section 2511(b), the trial court inquires whether the
termination of parental rights would best serve the developmental, physical
and emotional needs and welfare of the child. See In re T.S.M., 71 A.3d
251, 267 (Pa. 2013). The 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. See id. In conducting a bonding analysis,
the court is not required to use expert testimony, but may rely on the
testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010). There is no bond worth preserving between a child
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and a biological parent where the child has been in foster care for most of
the child’s life, and the resulting bond with the natural parent is attenuated.
In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Further, it is
appropriate to consider a child’s bond with his or her foster parent(s). In re
T.S.M., 71 A.3d at 268.
At the termination hearing, Jones testified that N.N.T. and J.M.T. have
been living with their foster parents since March 2015,4 and K.R.T. was
placed with his foster parents shortly after his birth in December 2014. See
N.T., 11/16/16, at 27, 28, 30. Jones testified that Children have been
assimilated into their respective pre-adoptive homes, and stated her belief
that the foster families would be permanent resources for Children. See id.
at 28-29. According to Jones, both families are willing to facilitate the
relationship between the siblings. See id. at 30. Jones also testified that
Children’s respective pre-adoptive parents meet their physical,
developmental and emotional needs. See id. at 30-31. Regarding the bond
between Mother and Children, Jones testified that “there’s certainly a
comfort level with [Mother], but it’s more of a play time.” Id. at 32. By
contrast, Jones described the bond between Children and their pre-adoptive
parents as a parent-child bond. See id. at 33. According to Jones,
Children’s bond with their pre-adoptive parents is stronger than their bond
with Mother. See id. Jones testified that there would be no detrimental
4
N.N.T. and J.M.T. were placed with their maternal aunt in December 2014,
and subsequently with another foster family prior to their current placement.
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effect if the trial court terminated Mother’s parental rights. See id. at 34.
Additionally, Jones testified that the termination of Mother’s parental rights
would have a beneficial impact on Children, because they “would be able to
stay in the homes that they’ve been familiar with and have been thriving
in[,] and they’d be provided with permanency.” Id. at 35.
Based on Jones’s testimony, the trial court concluded that it is in
Children’s best interests to terminate Mother’s parental rights, and their
respective pre-adoptive parents adequately provide for their needs and
welfare. See Trial Court Opinion, 1/17/17, at 10-11. Upon review, we
agree with the trial court’s determination that termination was in Children’s
best interests pursuant to Section 2511(b).
Finally, we decline to afford Mother relief on her claim that CYS acted
improperly in seeking to terminate her parental rights. The record reflects
that Mother has failed to perform her parental duties for a period of at least
6 months. See 23 Pa.C.S.A. § 2511(a)(1). Children have been in CYS care
since December 2014. At the time of the termination hearing, Mother had
not visited N.N.T. and J.M.T. since January 2016, and she had not visited
K.R.T. since March 2015. See N.T., 11/16/16, at 32. Jones also testified
that Mother was not compliant with her drug and alcohol treatment, as
required by the family services plan. Id. at 40. According to Jones, Mother
was not eligible to participate in her required parenting education because
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she had not been compliant with the other services. Id. at 41. Thus, CYS
had sufficient reason to seek the termination of Mother’s parental rights.
Further, our independent examination of the record indicates that
there are no other non-frivolous claims that can be raised. See In re
S.M.B., 856 A.2d at 1237. Accordingly, we conclude that Mother’s appeal is
frivolous, and Attorney Sharkey is entitled to withdraw as counsel.
Petition for Leave to Withdraw granted; Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
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In the Interest of: J.M.T., a minor
Combined Opinion