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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.A.T., A : IN THE SUPERIOR COURT OF
MINOR A/K/A K.T. : PENNSYLVANIA
:
:
APPEAL OF: A.T., FATHER :
:
:
:
: No. 1302 EDA 2017
Appeal from the Order Entered March 20, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000173-2017,
CP-51-DP-0001051-2015
IN THE INTEREST OF: K.A.T., A : IN THE SUPERIOR COURT OF
MINOR A/K/A K.T. : PENNSYLVANIA
:
:
APPEAL OF: E.B., MOTHER :
:
:
:
: No. 1502 EDA 2017
Appeal from the Order Entered March 20, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000173-2017,
CP-51-DP-0001051-2015
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 31, 2017
A.T. (“Father”) and E.B. (“Mother”) appeal from the decrees and order
dated and entered on March 20, 2017, granting the petitions filed by the Child
Advocate, Attorney Carla Beggin, on behalf of the male, dependent child,
J-S65002-17 & S65003-17
K.A.T. a/k/a K.T. (“Child”) (born in January of 2015), to involuntarily
terminate their parental rights to Child, pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and change Child’s permanency
goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.1 Mother’s
counsel, Attorney Michael J. Graves (“Mother’s Counsel”), has filed with this
Court a motion for leave to withdraw as counsel and a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967). We affirm, and grant
Mother’s Counsel leave to withdraw.
In its opinion entered on May 19, 2017, the trial court set forth the
factual background of this appeal, as follows.
The family in this case became known to DHS [Philadelphia
Department of Human Services (“DHS” or the “Agency”)] on
January 8, 2015, when DHS received a General Protective
Services (“GPS”) report which alleged that on January 2, 2015,
and January 3, 2015, Mother tested positive for cocaine,
methadone, and benzodiazepines; that on January 2, 2015,
Mother was admitted to Thomas Jefferson University Hospital
(“TJUH” [or “Jefferson”]); that Mother admitted to recently using
cocaine; that on January [ ], 2015, Mother gave birth to Child.
The report also alleged that Mother was prescribed methadone
through the Narcotic Addiction Rehabilitation Program (“NARP”)
and benzodiazepines for mental health issues; that Child was born
prematurely at twenty-six weeks’ gestation; that Child weighed
one pound and fifteen ounces at birth; that Child was being
monitored in the neonatal intensive care unit (“NICU”); and that
Mother was scheduled to be discharged from the hospital on
January 8, 2015. The report further alleged that Child had two
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1 In a separate decree dated and entered on March 20, 2017, the trial court
terminated the parental rights of any unknown father of Child. No unknown
father has filed an appeal, nor is any such individual a party to the present
appeal.
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older siblings, an eight-year-old (“Sibling 1”) and a one-year-old
(“Sibling 2”); that Sibling 1 lived in kinship care with the maternal
grandmother (“MGM”) and Sibling 2 lived with Mother and Father;
that Mother and Father lived together in the home of the paternal
grandparents; that Mother was unemployed; that Father may be
employed; that Mother and Father were both receiving methadone
maintenance; and that Mother was diagnosed with anxiety,
depression, and bipolar disorder. The report was found to be
valid.
On April 1, 2015, DHS received a GPS report that Child was
gaining weight at the hospital and was scheduled to be
discharged; that now Mother and Father live in a shelter; and that
Mother and Father were still receiving methadone maintenance for
drug addictions. The report also alleged that Mother receives
mental health treatment through CATCH [Citizens Acting Together
Can Help] and last had an appointment scheduled in February
2015, which she cancelled; and that CATCH prescribed Mother
medication to treat her symptoms. DHS requested that Mother
go to the Clinical Evaluation Unit (“CEU”) to submit for a random
drug screen, but Mother refused, claiming she had conflicting
appointments scheduled for that day. Mother and Father denied
being under the influence of drugs and claimed that they were just
tired from their hectic daily schedule.
On April 8, 2015, DHS learned that Child was ready for discharge
from TJUH; however, DHS and the Community Umbrella Agency
(“CUA”) Wordsworth were unable to locate an appropriate medical
foster home for Child. Mother and Father provided DHS with the
names of their Pastor and his wife (“foster parents”). The foster
parents successfully completed the necessary medical training
necessary to appropriately care for Child. After April 8, 2015,
while still at TJUH, Child had four separate breathing episodes and
was not feeding well. On April 23, 2015, Child was discharged
from TJUH. That same day, DHS obtained an Order for Protective
Custody (“OPC”) for Child and he was placed with the foster
parents through CUA-Wordsworth. A shelter care hearing was
held on April 24, 2015, at which the OPC was lifted and the
temporary commitment to DHS was ordered to stand. The CUA
social worker testified that Father was not ready, willing, or able
to take custody of the Child upon discharge. (N.T. 3/20/17, pgs.
6-7).
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Sibling 1 is committed to DHS with a goal of Permanent Legal
Custody (“PLC”) and lives in the home of the maternal
grandparents. At Sibling 1’s dependency hearing on March 25,
2015, the [c]ourt referred Mother to the CEU for a forthwith drug
screen, three random drug screens, a dual diagnosis assessment,
and monitoring and she was to be referred to the Achieving
Reunification Center (“ARC”) for parenting. Mother went to the
CEU and tested positive for high levels of benzodiazepines and
methadone; there were also traces of cocaine, phencyclidine and
opiates present in her urine. At a permanency review hearing on
November 18, 2015, the [c]ourt found aggravated circumstances
against Father pursuant to 42 Pa.C.S.A. §6302(3)(ii). Father was
convicted on June 9, 1998, for statutory sexual assault and
corrupting a minor.
On May 19, 2015, Child was adjudicated dependent and fully
committed to DHS custody. The [c]ourt ordered Mother and
Father to have supervised visits twice weekly; Mother and Father
were ordered to go to the CEU for dual diagnosis and random drug
screens; and Mother and Father were to attend ARC for parenting,
housing, and employment.
At a permanency review hearing on November 18, 2015, the
[c]ourt ordered both Mother and Father back to the CEU for dual
diagnosis and random drug screens and monitoring. Mother and
Father were also referred to ARC, and visits were changed to
supervised at the agency only. At a permanency review on
February 17, 2016, Mother’s drug screens from November 18,
2015, January 15, 2016, and February 11, 2016, were entered
into evidence. Mother had tested positive with high levels of
amphetamines on the January and February drug screens.
Father’s drug screens for November 18, 2015, December 2, 2015,
and February 10, 2016, were also entered into evidence. Father
had tested positive for high levels of benzodiazepines on all drug
screens and positive for amphetamines on the February drug
screen. The CEU could not confirm any treatment for Father. It
was testified that Mother and Father smell like smoke around Child
at visits. The Child Advocate entered into evidence a letter from
Child’s doctor indicating the harmful effects on [] Child when he is
around cigarette smoke and the odor of smoke. At a permanency
hearing on May 18, 2016, the [c]ourt ordered that Mother and
Father have supervised visits twice each week at the agency; that
Mother and Father confirm twenty-four hours in advance, and on
the day of the visit; and if Mother or Father is late more than two
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times, visits are to be modified to once each week. The [c]ourt
also ordered that Mother and Father sign consents for Child to
receive tubes in his ears; and that a prior court order that there
be no contact between the foster parents and Mother and Father
stand. Mother and Father had missed eight visits with Child since
the prior court date. Mother was referred to the CEU for a
forthwith drug screen, five random drug screens before the next
court date, and dual diagnosis. Father was referred to the CEU
for a forthwith drug screen, monitoring, and three randoms prior
to the next court date. At an August 10, 2016, permanency
review, the [c]ourt ordered that Mother and Father have weekly
supervised visits at the agency with Child for two hours on
Mondays; that Mother and Father provide twenty-four hours’ and
day of notice for the visit; that if Mother and Father are fifteen
minutes late, the visit is cancelled; that MGM is permitted to have
thirty minutes to an hour of visitation with Child before Mother
and Father’s visit; and that if MGM acts out of hand two times, her
visits are suspended. The [c]ourt also ordered Mother to the CEU
for a forthwith drug screen, three random screens, dual diagnosis
assessment, and monitoring; that Mother sign all appropriate
releases; that CUA follow up with Jefferson in regards to Mother’s
treatment; that Father go to the Behavioral Health System
(“BHS”) for a forthwith consultation and evaluation. At a
November 19, 2016, permanency review, the [c]ourt ordered
Mother and Father to the CEU for assessment, forthwith drug
screen, and three random drug screens prior to the next court
date; Mother and Father to comply with all Single Case Plan
(“SCP”) objectives and recommendations, and attend all of Child’s
medical appointments.
Trial Court Opinion, 5/19/17, at 1-4.
On February 15, 2017, the Child Advocate filed the termination and goal
change petitions. The trial court held a hearing on the petitions on March 20,
2017. The trial court found the following from the testimony at the hearing.
At the time, Child was two years of age and had spent
twenty-three months in care. Neither Mother nor Father were
[sic] present for the termination trial. Both Father and Mother
were properly served. Prior to taking testimony, the [c]ourt noted
that Mother and Father were served with the petitions and the
court date by regular mail and overnight mail, which was delivered
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on March 10, 2017, to their last known address as per the Parent
Locator Search ran [sic] by DHS in February 2017. The [c]ourt
found that reasonable efforts for good faith service on Father and
Mother were made by the Child Advocate at their last known
address. The [c]ourt also noted that Mother has an outstanding
bench warrant for failure to appear on November 24, 2016, in
another court [i.e., not Family Court, N.T., 3/20/17, at 5]. After
agreement by all parties, the [c]ourt accepted a stipulation as to
the facts alleged in the petition, but not to the veracity. (N.T.
3/20/17, pgs. 4-6).
Father has been minimally compliant with his SCP objectives. CUA
testified that Father’s SCP objectives were to comply with CEU
random drug screens; to attend Jefferson for a drug and alcohol
methadone maintenance program; to obtain stable housing; to
obtain employment; to complete a court ordered Parenting
Capacity Evaluation; to attend parenting classes; and to comply
with visitation. Father was aware of his SCP objectives. (N.T.
3/20/17, pgs. 12-13, 15). CUA testified that Father was called for
random drug screens, but he did not attend any of them. CUA
testified that Father was attending Jefferson for methadone
maintenance as of February 2017, but it could not be verified if
Father is still currently attending. Father was last enrolled at Moss
Rehab for mental health treatment. CUA testified that she last
received information regarding Father’s enrollment at Moss Rehab
in February 2017. CUA has not received anything more recent
and Father did not provide any documentation when asked. (N.T.
3/20/17, pgs. 13-15). Father does not have appropriate housing.
Father is pending eviction from the home where he currently
resides. Father lives with Mother. Father was referred to ARC for
an employment workshop. Father is not currently employed.
Father completed a Parenting Capacity Evaluation. Father did
attend parenting classes. (N.T. 3/20/17, pgs. 12-14). Father did
not attend any of Child’s medical appointments since the last court
date as court ordered. Father did not attend any visits with Child
since the last court date. Father had a visitation schedule sent to
him. (N.T. 3/20/17, pg. 14-15).
Mother has also been minimally compliant with her SCP
objectives. CUA testified that Mother’s SCP objectives were to
comply with the CEU for dual diagnosis; to attend random drug
screens; to continue drug and alcohol treatment at Jefferson; to
obtain stable housing; to complete the second portion of Parenting
Capacity Evaluation; to attend parenting classes; to obtain
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employment; and to comply with visitation. (N.T. 3/20/17, pgs.
7, 9, 12). Mother was aware of her objectives. During monthly
meetings between CUA and Mother, CUA testified that SCP
objectives are discussed, and Mother participated in conferences
with CUA and DHS. (N.T. 3/20/17, pgs. 10-11).
CUA testified that she called Mother for three separate random
CEU drug screens since the last court date, but Mother did not
attend any of them. CUA testified that Mother is attending
Jefferson’s drug and alcohol and methadone maintenance
program. Jefferson reported that Mother receives random drug
screens, but Jefferson is not able to release the results to CUA.
Mother has not provided CUA with any documentation regarding
her drug screens. At the last court date on November 19, 2016,
there was a concern about Mother’s drug levels and the [c]ourt
ordered that Mother contact her provider to get a letter explaining
why her drug levels are so up and down on her drug screens.
Mother did not comply with the court order. CUA testified that
Mother was referred to the CEU to be enrolled in an effective drug
and alcohol treatment program. Mother was previously enrolled
at CATCH for mental health treatment, but CUA testified that
Mother was inconsistent with her attendance. CUA was unable to
verify whether Mother is still currently attending CATCH. (N.T.
3/20/17, pgs. 7-9, 18). Mother does not have appropriate
housing. Mother is pending eviction in the home where she
currently resides with Father. Mother does not have employment,
and she was referred to ARC for employment resources. Mother
only completed the first part of a Parenting Capacity Evaluation,
and has yet to complete the second part. Mother did complete
parenting classes. (N.T. 3/20/17, pgs. 9-10). Mother has not
attended any of Child’s medical appointments as ordered by the
court. Mother was granted biweekly supervised visits with the
Child on Mondays. Since the last court date, three visits were
offered to Mother. Mother did not attend any visits. Mother had
a visitation schedule sent to her. Mother had the current contact
information for CUA, who has been on this case since August
2016. Mother did not contact CUA with any reasons for missing
visits. (N.T. 3/20/17, pgs. 11, 17-18).
Child is currently placed in kinship care through Delta. CUA
testified that Child is doing very well in kinship care. Child is
medically needy. CASA testified that Child is receiving ongoing
speech and swallowing therapy on a weekly basis, as well as in-
home occupational therapy through Early Intervention. Child also
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has a series of ongoing chronic medical issues that are addressed
as needed. The kinship care foster parents have been meeting all
of Child’s needs and Child is thriving. CUA testified that Child
would suffer irreparable harm if removed from the kinship home.
(N.T. 3/20/17, pgs. 16-17, 19).
At the time of the termination trial, neither Father nor Mother had
successfully completed drug and alcohol treatment or complied
with CEU random drug screens. Mother did not complete her
mental health objective. Father and Mother live together and do
not have stable housing. They are pending eviction. Neither
Father nor Mother are [sic] employed. Mother only completed the
first part of her Parenting Capacity Evaluation, and still must
complete the second part. Neither Father nor Mother attended
Child’s medical appointments or visits since the last court date.
Father and Mother were only minimally compliant with their SCP
objectives. Neither Father nor Mother is able to take custody of
Child. The [c]ourt found clear and convincing evidence that
changing the permanency goal to adoption and involuntarily
terminating Father’s and Mother’s parental rights were in Child’s
best interests. The [c]ourt also found that Child would not suffer
irreparable harm if Father’s and Mother’s parental rights were
terminated.
Trial Court Opinion, 5/19/17, at 4-6.2
On March 20, 2017, the trial court entered the decrees and order that
terminated Father’s and Mother’s parental rights to Child under 23 Pa.C.S.
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2 We note that the Child Advocate filed the termination and goal change
petitions and presented testimony regarding service of the petitions on the
parents. Counsel for DHS presented the testimony of the DHS social worker,
Kennisha White. Counsel for Mother cross-examined Ms. White. Counsel for
Father had no questions for Ms. White, nor did the Child Advocate. The trial
court then questioned the Court-Appointed Special Advocate, Jennifer Lott.
Counsel for DHS also questioned Ms. White concerning any unknown father of
Child. Neither counsel for Mother nor counsel for Father, nor the Child
Advocate had any questions on cross-examination regarding any unknown
father.
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§2511(a)(1), (2), (5), (8), and (b), and changed the permanency goal to
adoption pursuant to 42 Pa.C.S. § 6351. On April 18, 2017, and April 19,
2017, Father and Mother, respectively, filed the notices of appeal, along with
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).3 On June 21, 2017, Mother’s counsel filed a motion to
withdraw as counsel and an Anders brief on behalf of Mother. On July 31,
2017, Mother’s counsel filed a second motion to withdraw as counsel and a
revised Anders brief on behalf of Mother. In Father’s brief, Father’s counsel
states that he decided not to file an Anders brief because he could not
conclude that Father’s appeal would be “wholly frivolous.” Father’s Brief, at
ix.
In the Anders brief, Mother’s counsel raises the following issues:
IN ACCORDANCE WITH ANDERS V. CALIFORNIA, IS THERE
ANYTHING IN THE RECORD THAT MIGHT ARGUABLY SUPPORT
THE APPEAL THAT UPON INDEPENDENT REVIEW OF THE RECORD
THE COURT SHOULD CONCLUDE THAT THE APPEA[L] IS NOT
WHOLLY FRIVOLOUS?
WHETHER THERE WAS A LEGAL BASIS FOR TERMINATING
MOTHER’S PARENTAL RIGHTS PURSUANT TO 23 Pa.C.S.A. [§]
2511(a)(1), (a)(2), (a)(5), (a)(8) AND (b) AS MOTHER WAS
MODERATELY COMPLIANT WITH OBJECTIVES WHILE THE GOAL
WAS REUNIFICATION[?]
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3 This Court listed the appeals consecutively for disposition, but we will
address them in the same memorandum decision, as did the trial court, for
ease of disposition.
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Mother’s Anders Brief, at 7.4
In his brief, Father raises the following issues:
1. Did the Trial Court err when it found that the Department of
Human Services by clear and convincing evidence had met its
burden to terminate Appellant's parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1), § 2511(a)(2), § 2511(a)(5), and
§ 2511(a)(8)?
2. Did the Trial Court err when it found that the termination of
father's parental rights was in the child’s best interests and that
the Department of Human Services had met its burden pursuant
to 23 Pa. C.S.A. §2511(b)?
3. Did the Trial Court err in changing the permanent placement
goal from reunification to adoption?
Father’s Brief, at vi.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal. . .; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se, or raise any
additional points he deems worthy of the court’s attention.
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4 Mother has waived any challenge to the change in the Children’s permanency
goal to adoption under 42 Pa.C.S. § 6351 by failing to raise the issue in her
concise statement and Statement of Questions Involved in her brief. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (holding that an appellant waives issues that are not raised
in both his concise statement of errors complained of on appeal and the
Statement of Questions Involved in his brief on appeal).
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In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., 856 A.2d at 1237.
In Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009),
our Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(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, 602 Pa. at 178-79, 978 A.2d at 361. “After an appellate court
receives an Anders brief and is satisfied that counsel has complied with the
aforementioned requirements, the Court then 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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With respect to the third requirement of Anders, that counsel inform
the defendant of his or her rights in light of counsel’s withdrawal, this Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Here, in his motion for leave to withdraw, Mother’s Counsel has complied
with each of the requirements of Anders. Mother’s Counsel indicates that he
conscientiously examined the record and determined that an appeal would be
frivolous. Further, Mother’s Counsel’s Anders brief comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, attached to his motion for leave to withdraw is a copy of his letter to
Mother, dated July 31, 2017. In compliance with Millisock, the letter advised
Mother of her right to proceed pro se or retain alternate counsel, and stated
counsel’s intention to seek permission to withdraw. Accordingly, Mother’s
Counsel has complied with the procedural requirements for withdrawing from
representation, and we will proceed with our own independent review.5
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5 This Court has stated, “[o]nce counsel has satisfied the above requirements
[for a motion to withdraw and Anders brief], 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)). See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (following Goodwin). Thus, we address whether the Child Advocate
established the grounds for termination.
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In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[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 determinations of 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.; R.I.S., [614 Pa. 275,
284,] 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 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 observed 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 parents. R.J.T., [608 Pa. at 28-
30], 9 A.3d at 1190. 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 Atencio, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (Pa.
2012).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the 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)).
In the Anders brief, Mother’s Counsel contends that the trial court
abused its discretion or erred as a matter of law in concluding that the Child
Advocate presented clear and convincing evidence that was sufficient to
support the involuntary termination of his parental rights under section
2511(a)(1), (2), (5), (8), and (b). Mother’s Anders Brief, at 16. In his brief,
Father likewise contends that there was insufficient evidence to support the
termination of his parental rights, and to support the change of the
permanency goal to adoption.
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). We confine
our analysis to subsection (2) of section 2511(a). Section 2511(a)(2) and (b)
provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
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(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.
***
(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. § 2511.
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
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A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based
upon parental incapacity. The legislature, however, in
enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891
(Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383
A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. at 340.
The trial court addressed Mother’s and Father’s sufficiency issues as
follows.
Child was taken into DHS custody because Father and Mother
were unable to provide essential parental care: Father and Mother
had substance abuse problems; Father and Mother were unable
to provide stable housing; Mother was in need of mental health
treatment; and Mother tested positive for cocaine,
benzodiazepines, and methadone at the time of Child’s birth.
Father and Mother were unable to remedy the causes of their
repeated and continued incapacity to provide Child with essential
parental care, control, or subsistence necessary for Child’s
physical and mental well-being. Father did not successfully
complete his SCP objectives. Father did not comply with his court
ordered random drug screens at the CEU, though CUA testified
that he was called. As of February 2017, Father was still attending
a drug and alcohol program with methadone maintenance at
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Jefferson. Father has not successfully completed his drug and
alcohol objective. Father did not complete his mental health
objective, either, as he was enrolled at Moss Rehab as of February
2017. CUA has been unable to verify that Father is still attending
at the time of the termination trial, and Father has not provided
any progress reports or treatment plan. Father, who lives with
Mother, does not have appropriate housing, and is pending
eviction at his current home. Father was referred to ARC for an
employment workshop, but Father is currently unemployed.
Father did, however, successfully complete his parenting classes
and the Parenting Capacity Evaluation. Father did not comply with
the [c]ourt’s order to attend Child's medical appointments. Child
is a very medically needy child and has chronic medical issues. At
the permanency hearing in November 2016, Father had missed
four out of seven medical appointments, and Father did not attend
any medical appointments since that hearing. Father has not
visited with Child since the November 2016 hearing. (N.T.
3/20/17, pgs. 12-15).
Mother was minimally compliant with her SCP objectives as well.
Mother did not comply with her court ordered random drug
screens at the CEU, though CUA testified that she called Mother
to attend. Mother was also ordered to provide a letter from her
drug and alcohol program explaining the highs and lows of her
drug screen results; Mother never provided such a letter. Mother
did not complete her drug and alcohol objective as she is still
attending Jefferson’s drug and alcohol and methadone
maintenance program. CUA is unable to obtain Mother’s drug
screen results from Jefferson and Mother has not provided any
documents, either. Mother was inconsistent in her mental health
treatment at CATCH and CUA was unable to verify whether Mother
was still attending. (N.T. 3/20/17, pgs. 7-9, 18). Mother does
not have appropriate housing, as she lives with Father, and is
pending eviction from her last known residence. Mother was
referred to ARC for employment services, but is presently
unemployed and has not completed the ARC employment
workshop. Mother did not complete the full Parenting Capacity
Evaluation; she has to complete the second part. Mother did,
however, complete parenting classes. (N.T.. 3/20/17, pgs. 9-10).
At the November 2016 permanency hearing, Mother was ordered
to attend Child’s medical appointments and had already missed
four out of seven of Child’s medical appointments. Mother did not
attend any of Child’s medical appointments since the November
2016 review hearing. Mother did not attend any visits with Child
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since that November 2016 review hearing, either. Father and
Mother failed to take affirmative steps to place themselves in
positions to parent Child. Father and Mother are unable to remedy
the causes of their incapacities to meet Child’s safety and medical
needs. Child needs permanency, which Father and Mother cannot
provide. Child is a medically needy child with chronic medical
issues. Neither Father nor Mother is able to take immediate
custody of Child.
Trial Court Opinion, 5/19/17, at 9-11.
After a careful review of the record, we find that termination of Mother’s
and Father’s parental rights to Child was warranted pursuant to section
2511(a)(2), as Mother and Father clearly lack parental capacity, and the
evidence showed that they will be unable to remedy that situation within a
reasonable period of time, if ever. As there is competent evidence in the
record that supports the trial court’s findings and credibility determinations,
we would find no abuse of the trial court’s discretion in terminating Mother’s
and Father’s parental rights to Child under section 2511(a)(2). In re
Adoption of S.P., 616 Pa. at 325-326, 47 A.3d at 826-827.
Next, this Court has stated that the focus in terminating parental rights
under section 2511(a) is on the parent, but it is on the child pursuant to
section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super 2008) (en banc). In reviewing the evidence in support of termination
under section 2511(b), our Supreme Court as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
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“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533
Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond. In
re K.M., 53 A.3d at 791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (Pa. 2013).
With regard to section 2511(b), the trial court stated the following:
Father has not visited with the Child since the last court date in
November 2016. Father has not attended Child’s medical
appointments since that court date, either. (N.T. 3/20/17, pgs.
14-15). Similarly, Mother has not visited Child since the last
November 2016 review hearing, nor has she attended any of his
medical appointments. (N.T. 3/20/17, pgs. 11, 17-18). CUA
testified that Child would not suffer any irreparable harm if
Father’s and Mother’s rights were terminated. Child does not have
a healthy, positive paternal bond with Father. Child does not have
a healthy, positive maternal bond with Mother. Child is currently
placed with the kinship foster parents who have cared for him
since entering care, as soon as he was discharged from the
hospital’s NICU. The kinship parents are the only parents Child
knows. Child is medically needy. Child receives ongoing speech
therapy and swallowing therapy each week. Child also receives
in–home occupational therapy through Early Intervention. The
kinship foster parents meet all of Child’s needs. Child is thriving
in the kinship home. CUA testified that Child would suffer
irreparable harm if removed from the kinship home. (N.T.
3/20/17, pgs. 15-17, 19). Child is in a safe home. The DHS
witness was credible. Consequently, the trial court did not abuse
its discretion when it found, by clear and convincing evidence, that
there was no parental bond between Father and Child or Mother
and Child and that termination of Father’s and Mother’s parental
rights would not destroy any existing beneficial relationship.
Father and Mother also allege that the court erred in changing
Child’s permanency goal from reunification to adoption. In a
change of goal proceeding, the child’s best interest must be the
focus of the trial court’s determination. The child’s safety and
health are paramount considerations. In re A.H., 763 A.2d 873
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(Pa. Super. 2000). Pennsylvania’s Juvenile Act recognizes family
preservation as one of its primary purposes. In the Interest of
R.P. a Minor, 957 A.2d 1205 (Pa. Super. 2008). As a result,
welfare agencies must make efforts to reunify the biological
parents with their child. Nonetheless, if those efforts fail, the
agency must redirect its efforts toward placing the child in an
adoptive home. Agencies are not required to provide services
indefinitely when a parent is unwilling or unable to apply
instructions received. In re R.T., 778 A.2d 670 (Pa. Super.
2001). The trial court should consider the best interest of the
child as it exists presently, rather than the facts at the time of the
original petition.
Neither Father nor Mother is currently ready or able to parent
Child. At the time of the termination trial, neither Father nor
Mother had successfully completed all of their SCP objectives.
Father did not attend any of his court ordered random drug
screens since the last court review hearing in November 2016. As
of February 2017, Father was still attending Jefferson and Moss
Rehab for methadone maintenance and mental health treatment,
respectively. Father has not completed his drug and alcohol and
mental health objectives. Father has tested at very high levels for
benzodiazepines and amphetamines as per exhibits in the record.
Father does not have appropriate housing and is pending eviction
from his current residence. Father was referred to ARC for an
employment workshop, but did not attend. Father remains
unemployed. Father did, however, complete a Parenting Capacity
Evaluation and parenting classes. Since the November 2016
review hearing, Father has not attended any of Child’s medical
appointments as court ordered, nor has he visited with [] Child.
(N.T. 3/20/17, pgs. 12-15). Child is medically needy with many
chronic medical issues. Mother also has not attended any of her
court ordered random drug screens at the CEU. Mother did not
provide a letter from her drug and alcohol program regarding the
extreme fluctuations in her drug screens’ substance level as court
ordered. Mother has tested at very high levels for amphetamines
as per the exhibits in the record. Mother did not complete her
drug and alcohol objective as she is still attending Jefferson for a
methadone maintenance program and has not attended the CEU
for a dual diagnosis assessment. Mother was inconsistent with
her attendance for mental health treatment at CATCH[,] and CUA
was unable to verify whether Mother was still attending or her
treatment progress. (N.T. 3/20/17, pgs. 7-9, 18). Mother lives
with Father and is also facing eviction from her current home, so
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she does not have stable housing. Mother was referred to ARC for
an employment workshop, but she did not attend. Mother
remains unemployed. Mother did not complete the Parenting
Capacity Evaluation as she still has to complete the second part.
Mother did, however, complete parenting classes. (N.T. 3/20/17,
pgs. 9-10). Mother has not attended Child’s medical
appointments as court ordered since the last review hearing in
November 2016. Mother has not visited with Child since that last
November 2016 court review hearing. (N.T. 3/20/17, pgs. 11, 17-
18). Child has been in a safe and permanent home for almost two
years. The trial court heard testimony that adoption is in Child’s
best interests. (N.T. 3/20/17, pg. 17). Child needs permanency,
which Father and Mother cannot provide at this time. The DHS
witness was credible. The record established by clear and
convincing evidence that the change of permanency goal from
reunification to adoption was proper. The court did not err or
abuse its discretion when it changed the goal to adoption.
Conclusion:
For the aforementioned reasons, the court properly found that
DHS met its statutory burden by clear and convincing evidence
regarding termination of Father’s and Mother’s parental rights
pursuant to 23 Pa.C.S.A. §2511(a) . . . (2). . . and (b) since it
would best serve Child’s emotional needs and welfare. The court
also properly found that changing the Child’s permanency goal
from reunification to adoption was in Child’s best interest. The
trial court’s termination of Father’s and Mother’s parental rights
and change of goal to adoption were proper and should be
affirmed.
Trial Court Opinion, 5/19 /17, at 15-17.
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
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direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d 753, 763-64 (Pa. Super. 2008)
(affirming the involuntary termination of the mother’s parental rights, despite
the existence of some bond, where placement with the mother would be
contrary to the child’s best interests, and any bond with the mother would be
fairly attenuated when the child was separated from her, almost constantly,
for four years). “[A] parent’s basic constitutional right to the custody and
rearing of . . . her child is converted, upon the failure to fulfill . . . her parental
duties, to the child’s right to have proper parenting and fulfillment of [the
child’s] potential in a permanent, healthy, safe environment.” In re B.,N.M.,
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856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted). It is well-
settled that “we will not toll the well-being and permanency of [a child]
indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re
Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.”)).
As there is competent evidence in the record that supports the trial
court’s findings and credibility determinations, we find no abuse of the trial
court’s discretion in terminating Mother’s and Father’s parental rights to the
Children under section 2511(b). In re Adoption of S.P., 616 Pa. 309, 325-
26, 47 A.3d 817, 826-27. We, therefore, affirm the termination decrees.
Next, we address whether there was sufficient evidence in the record to
support the change in Child’s permanency goal to adoption. 6 The
Pennsylvania Supreme Court set forth our standard of review in a dependency
case as follows.
____________________________________________
6 Although Mother waived any argument as to the goal change order, we will
review the sufficiency of the evidence to support the order, since Father raised
the issue, and goal change is not in regard to an individual parent. See
generally In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010) (stating that
dependency of a child is not determined “as to” one person, but rather must
be based upon two findings by the trial court: whether the child is currently
lacking proper care and control, and whether such care and control is
immediately available). Further, we note that Mother’s concise statement
included the challenge to the goal change, so we will review the issue as part
of our independent review of Mother’s Counsel’s motion to withdraw. See
Goodwin, 928 A.2d at 291; Wright, 846 A.2d at 736; Flowers, 113 A.3d at
1250.
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“The standard of review in dependency cases requires an appellate
court to accept findings of fact and credibility determinations of
the trial court if they are supported by the record, but does not
require the appellate court to accept the lower court’s inferences
or conclusions of law.” In re R.J.T., 608 Pa. 9, [27], 9 A.3d 1179,
1190 (Pa. 2010). We review for abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 641 Pa. 343, 360, 111 A.3d 1164, 1174
(2015).
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of the
child.
When considering a petition for goal change for a dependent child, the
trial court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made
towards alleviating the circumstances which necessitated
the original placement; the appropriateness and feasibility
of the current placement goal for the child; and, a likely date
by which the goal for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S. § 6351(f)).
Additionally, Section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
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evidence presented at the hearing, the court shall determine
one of the following:
* * *
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent,
guardian or custodian is not best suited to the safety,
protection and physical, mental and moral welfare of the
child.
42 Pa.C.S. § 6351(f.1).
On the issue of a placement goal change, this Court has stated:
When a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not
on what the parent wants or which goals the parent has
achieved. See In re Sweeney, 393 Pa. Super. 437, 574
A.2d 690, 691 (1990) (noting that “[o]nce a child is
adjudicated dependent . . . the issues of custody and
continuation of foster care are determined by the child’s
best interests”). Moreover, although preserving the unity of
the family is a purpose of [the Juvenile Act], another
purpose is to “provide for the care, protection, safety, and
wholesome mental and physical development of children
coming within the provisions of this chapter.” 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, “[t]he relationship of parent and
child is a status and not a property right, and one in which
the state has an interest to protect the best interest of the
child.” In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263,
1267 (1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
We find that there was sufficient evidence in the record to support the
change of Child’s permanency goal to adoption, for the reasons expressed by
the trial court. See Trial Court Opinion, 5/19/17, at 15-17. We, therefore,
affirm the goal change order.
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Moreover, as we agree with Mother’s Counsel that Mother’s appeal is
frivolous, and we cannot find any meritorious issues in the record, we grant
Mother’s Counsel’s motion for leave to withdraw.
Decrees and order affirmed. Mother’s Counsel’s motion for leave to
withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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In the Interest of: K.A.T., a Minor
Combined Opinion