Adoption of I.A.I.R., Appeal of: N.R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF I.A.I.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: N.R., MOTHER :
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: No. 2104 EDA 2018
Appeal from the Order Entered June 21, 2018
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2016-A0181
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 23, 2019
Appellant, N.R. (“Mother”), appeals from the June 21, 2018 Order
entered in the Montgomery County Orphans’ Court, which involuntarily
terminated her parental rights to I.A.I.R. (“Child”). Mother’s counsel has filed
an Anders Brief, together with an Application to Withdraw as Counsel.1 After
careful review, we affirm the June 21, 2018 Order and grant counsel’s
Application to Withdraw.
The relevant factual and procedural history is as follows. Child was born
in February of 2016. On or around March 22, 2016, Montgomery County Office
of Children and Youth (“OCY”) and the Norristown Police Department (“Police”)
received a report that Child was born as a result of incest and had not received
any pre-natal or post-natal medical care. OCY and Police went to the home
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1 See Anders v. California, 386 U.S. 738 (1967).
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* Former Justice specially assigned to the Superior Court.
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of then-48-year-old H.R (“Father”) and his daughter, then-21-year-old
Mother, where Father admitted to Police that he was the biological father to
both Mother and Child. Mother told Police that she was Child’s biological
mother and confirmed that Father was the biological father. Mother told OCY
that Jesus had instructed her to engage in a sexual relationship with Father,
which started when Mother was 20 years old. Mother and Father also told
OCY that Child was born at home without medical care and that Jesus did not
want Child to receive medical care. Police subsequently arrested Father and
OCY obtained an Order for Emergency Custody.
On April 5, 2016, the trial court adjudicated Child dependent and placed
Child in foster care after hearing evidence that Father was incarcerated,
charged with Incest, and that OCY had concerns about Mother’s mental health
and the safety of Child. Moreover, OCY presented evidence that Mother was
unwilling to cooperate with OCY, was unwilling to accept services and baby
supplies from OCY, and was unwilling to obtain medical care for Child.
On November 14, 2016, OCY filed a Petition to Terminate Mother’s
Parental Rights. The trial court held hearings on March 1, 2017, and June 21,
2018.2
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2 Father entered a guilty plea to Incest on September 9, 2016, but the court
did not sentence him until April 17, 2018. The trial court continued the
termination hearing until after the criminal court entered Father’s Judgment
of Sentence.
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Relevant to this appeal, OCY presented testimony from Stephen Miksic,
Ph.D., who completed a Forensic Psychological Parenting Evaluation of Mother
on August 19, 2016. Dr. Miksic diagnosed Mother with Schizophrenia and
Delusional Disorder. N.T. TPR Hearing, 3/1/17, at 40. He testified that Mother
experiences hallucinations and delusions of the Lord talking to her, seeing the
Lord, and having special knowledge from the Lord of what the future would
hold for Mother. Id. at 37-38. Dr. Miksic clarified that Mother’s religious
ideations were not simply religious beliefs, but rather a mental health disorder
because “[w]hen [the beliefs] begin to impact the safety and welfare of that
person or others around them, then [the beliefs] become a psychiatric
disorder in need of treatment.” Id. at 44.
Dr. Miksic explained how Mother’s mental health diagnoses would affect
her ability to parent, stating: “[t]he beliefs that she expressed and the
thoughts of evil spirits that could intrude, her constantly relying on the Lord
to provide, interfered with her ability to plan or anticipate consequences for
herself or a child, caused her to be very passive, and definitely posed a
problem for her to act in a protected capacity for her child.” Id. at 40-41.
Dr. Miksic recommended that Mother participate in a psychiatric
consultation, individual counseling, and parenting education. He concluded to
a reasonable degree of psychological certainty that if Mother did not engage
in mental health treatment, her prognosis for having the capacity to parent
Child would be poor. Id. at 42. Specifically, Dr. Miksic testified:
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[Mother has] very persistent beliefs, even when not necessarily
experiencing auditory or visual hallucinations, that those
experiences, the evil spirits, were definitely real; that she had
encountered them; that she needed to be ready for them; and
that the Lord would tell her what to do on a daily basis so she
wouldn’t need to plan ahead suggest[s] that without treatment
the prognosis for her improving independent skills or parenting
capacity would be very poor.”
Id. Finally, Dr. Miksic testified that he had concerns about Mother’s ability to
demonstrate emotional attachment to Child. Id. at 52-53.
OCY also presented testimony from the OCY caseworker, Monica
Monaghan. Ms. Monaghan testified that Mother’s Family Service Plan
Objectives included: (1) address mental health needs with an evaluation and
follow through with all recommendations; (2) prove financial stability; (3)
show an understanding of age appropriate behaviors; (4) successfully engage
in and complete a parenting program; (5) have safe and stable housing; (6)
understand and use responsible sexual behaviors; (6) work with and meet
with Time Limited Family Reunification (“TLFR”) worker; and (7) write a home
and care plan if Child were to return home. Id. at 81.
Ms. Monaghan testified that Mother participated in two psychiatric
evaluations, which both recommended follow-up treatment and therapy, but
Mother failed to engage in any ongoing mental health treatment. Id. at 80.
Ms. Monaghan testified to a specific incident on September 28, 2016, when
she met with Mother to discuss treatment recommendations. Id. at 83.
Mother stated that she did not need treatment because Jesus talks to her and
became extremely agitated and angry. Id. Mother refused to leave the office
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and Ms. Monaghan had to call the Adult Mobile Crisis team to assist, who
eventually convinced Mother to leave after several hours. Id.
Ms. Monaghan testified that Mother began to work on a home and care
plan, but never finished it; Mother was discharged from TLFR services because
she was not meeting any goals; Mother failed to obtain employment and did
not have her own home; and although Mother participated in a parenting
program, Mother did not demonstrate any improvement in parenting skills.
Id. at 84-86.
Ms. Monaghan explained to the trial court that Mother consistently
attended visitation but Ms. Monaghan had concerns about her parenting ability
during the visits. Specifically, Ms. Monaghan testified that Mother had a hard
time deviating from a schedule; she would refuse to feed or change Child as
needed if it deviated from the schedule. Id. at 89-90. Ms. Monaghan
expressed concern about Mother’s ability to care for Child independently and
testified that Mother would not respond to Child’s needs during the visits. Id.
at 90.
With respect to a bond between Mother and Child, Ms. Monaghan
testified that she observed “minimal bond” between Mother and Child. She
stated that Child was familiar with Mother, but not bonded to Mother and
observed that their relationship did not improve over time. Id. at 90-91. Ms.
Monaghan explained that Child was “[v]ery bonded” to his foster parents and
his needs were being met. Id. at 92-93. Ms. Monaghan stated that it was in
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Child’s best interest to be adopted and Child would not suffer harm if the trial
court terminated Mother’s parental rights. Id. at 93-94.
Finally, OCY presented testimony from Rebecca Wheeler, a TLFR social
worker who worked with Mother. Ms. Wheeler explained that Mother was
willing to work with TLFR but would not accept help from other community
resources because Jesus did not say it was okay. Id. at 59. Ms. Wheeler
testified that Mother was not willing to get a job because Jesus would provide
for her financially. Id. at 60. Mother was unwilling to follow up with any
ongoing mental health treatment recommendations for medication or therapy.
Id. at 61. Ms. Wheeler also observed Mother’s visitations with Child and did
not see an overall improvement in Mother’s parenting skills or Mother’s
relationship with Child. Id. at 63. Ms. Wheeler testified that Mother was
unable to be flexible and responsive and “pick up those cues of [Child]” to be
fed or changed. Id. at 65.
On June 21, 2018, the trial court granted the Petition and involuntarily
terminated Mother’s parental rights to Child pursuant to 23 Pa.C.S. §
2511(a)(2) and (a)(5), and found that termination would be in Child’s best
interest pursuant to 23 Pa.C.S. § 2511(b).3
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925. On September 6, 2018, counsel filed an Anders Brief and
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3 The trial court also terminated Father’s parental rights.
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Application to Withdraw as Counsel. Mother did not file a pro se or counseled
response to either the Brief or the Application.
In his Anders Brief, counsel raises the following issues:
1. Whether the honorable court committed an error of law and/or
abuse of discretion when it held that [OCY] had proven by
“clear and convincing evidence” that [Mother]’s parental rights
should be terminated pursuant to 23 Pa.C.S. § 2511(a)(2) in
that the repeated and continued incapacity, abuse, neglect or
refusal of the parent has caused [Child] to be without essential
parental care, control, or subsistence necessary for their
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.
2. Whether the honorable court committed an error of law and/or
abuse of discretion when it held that [OCY] had proven by
“clear and convincing evidence” that [Mother]’s parental rights
should be terminated pursuant to 23 Pa.C.S. § 2511(a)(5) in
that the child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for a
period of at least six months, the conditions which led to the
removal or placement of [Child] continue to exist, the parent
cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available
to the parent are not likely to remedy the conditions which led
to the removal or placement of [Child] within a reasonable
period of time and termination of the parental rights would best
serve the needs and welfare of [Child].
3. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible grounds
for appeal and finds the appeal frivolous?
Anders Brief at 6 (reordered for ease of disposition; some capitalization
omitted).
Before this Court may consider the merits of the issue raised, we must
address counsel’s Application to Withdraw. See Commonwealth v. Daniels,
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999 A.2d 590, 593 (Pa. Super. 2010) (“When presented with an Anders brief,
this Court may not review the merits of the underlying issues without first
passing on the request to withdraw.”).
In order for counsel to withdraw from an appeal pursuant to Anders,
our Supreme Court has determined that counsel must meet certain
requirements, including:
(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). See also In
re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (explaining that this Court has
extended the Anders principles to appeals involving termination of parental
rights).
In the instant case, counsel has complied with all of the requirements
of Anders as articulated in Santiago. Additionally, counsel confirms that he
sent Mother a copy of the Anders Brief, as well as a letter explaining to Mother
that she has the right to proceed pro se or retain new counsel. See
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)
(describing notice requirements). Counsel appended a copy of the letter to
his Petition to Withdraw.
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Because counsel has satisfied the above requirements, it is now this
Court’s duty to conduct an independent review of the record to discern if there
are any additional, non-frivolous issues overlooked by counsel and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting that Anders requires the reviewing court to “review ‘the case’
as presented in the entire record with consideration first of issues raised by
counsel.”).
The first issue presented in the Anders Brief avers that OCY failed to
present clear and convincing evidence that Mother has a continuing incapacity
to perform parental duties pursuant to 23 Pa.C.S. § 2511(a)(2). Anders Brief
at 10.
The standard of review in termination of parental rights cases requires
appellate courts “to accept the findings of fact and credibility determinations
of the trial court if they are supported by the record.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse of
discretion only upon demonstration of “manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” Id. We may not reverse, however, merely because
the record would support a different result. Id. at 826-27.
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[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. (citations omitted).
We give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings. In re T.S.M., 71 A.3d
251, 267 (Pa. 2013). The trial court is free to believe all, part, or none of the
evidence presented and is likewise free to make all credibility determinations
and resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004).
Finally, this Court only needs to agree with the trial court as to
any one subsection of Section 2511(a), as well as Section 2511(b), in order
to affirm. In re Adoption of C.D.R., 111 A.3d 1212, 1215 (Pa. Super. 2015).
Instantly, the trial court terminated Mother’s parental rights pursuant to
23 Pa.C.S. § 2511(a)(2) and (a)(5). To satisfy the requirements of Section
2511(a)(2), the moving party must produce clear and convincing evidence
that the following three conditions are met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or
refusal caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
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remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(emphasis added); 23 Pa.C.S. § 2511(a)(2). The grounds for termination of
parental rights under Section 2511(a)(2), due to parental incapacity that
cannot be remedied, are not limited to affirmative misconduct; those grounds
may include acts of refusal as well as incapacity to perform parental duties.
In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
Parents have an “affirmative duty” to work toward the return of their
children. In re Julissa O., 746 A.2d 1137, 1141 (Pa. Super. 2000) (citations
omitted). At a minimum, this “affirmative duty” requires the parent to show
a willingness to cooperate with the agency to obtain the services necessary
for the performance of parental duties and responsibilities. Id.Here, the trial court concluded that OCY presented clear and convincing
evidence that Mother “is not capable of performing minimal parental duties.”
Trial Ct. Op., dated 7/13/18, at 25. Our review of the record supports the
trial court’s findings of fact and conclusions of law.
OCY presented evidence that Mother suffered from Schizophrenia and
Delusional Disorder, which, if left untreated, would adversely affect her ability
to parent Child and keep Child safe. OCY presented evidence that Mother
refused to engage in any recommended mental health services or take
medication. Likewise, Mother refused to obtain employment or complete her
home plan. The trial court heard testimony from both the caseworker and the
TLFR social worker that Mother did not demonstrate appropriate parenting
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skills during her weekly visitation with Child, and that Mother refused to feed
or change Child’s diaper as needed. Importantly, both testified that her
parenting skills did not improve over time. Accordingly, the record confirms
that Mother is incapable of parenting Child and that she cannot or will not
remedy her parental incapacity.
The certified record supports the trial court’s findings of fact and
conclusions of laws. We, thus, conclude that the trial court did not abuse its
discretion in concluding that OCY met its burden of proof with respect to
Section 2511(a)(2).
We also agree with the Orphans’ Court’s determination that OCY met its
burden under 23 Pa.C.S. § 2511(b), and that terminating Mother’s parental
rights is in the best interest of the Child.
With respect to Section 2511(b), our analysis shifts focus from parental
actions in fulfilling parental duties to the effect that terminating the parental
bond will have on the child. Section 2511(b) “focuses on whether termination
of parental rights would best serve the developmental, physical, and
emotional needs and welfare of the child.” In re: Adoption of J.M., 991 A.2d
321, 324 (Pa. Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “[i]ntangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the Orphans’ Court must also discern the nature and status of the parent-child
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bond, with utmost attention to the effect on the child of permanently severing
that bond. Id.Most significantly, whether a meaningful bond exists is determined, first,
by the extent to which a parent provides safety, security, and support for the
child’s physical and mental needs, on a daily basis. If a meaningful bond is
found to exist, the analysis hinges on the extent to which the child will be
harmed by the severance of that bond. Thus, the bond-effect analysis
necessarily depends on the circumstances of the particular case. In re K.Z.S.,
946 A.2d 753, 763 (Pa. Super. 2008). Importantly, in cases where there is
no evidence of meaningful and extensive contact between a parent and a child,
it is reasonable to infer that no bond exists. Id. at 762-63.
In the instant case, the trial court had the benefit of a formal bond
assessment as well as testimony from child welfare professionals. The trial
court made a finding that Dr. Miksic testified credibly that Mother is unable to
emotionally attach to Child. Trial Ct. Op., dated 7/13/18, at 27. Moreover,
the trial court made a finding that there was no improvement in the bond
between Mother and Child during approximately thirty visits, despite one-on-
one assistance provided by caseworkers. Id. at 27-29. Finally, the trial court
made a finding that Child has a strong bond with the foster/pre-adoptive
family with whom the Child has lived since infancy such that termination of
Mother’s parental rights will not negatively impact the Child. Id. at 28. The
certified record supports the trial court’s findings of fact and credibility
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determinations, and, thus, the trial court did not abuse its discretion when it
determined that termination of Mother’s parental rights would be in Child’s
best interest pursuant to Section 2511(b).
The certified record supports the trial court’s findings of fact and
credibility determinations. We discern no error of law and conclude that the
trial court properly exercised its discretion in terminating Father’s parental
rights pursuant to Section 2511(a) and (b). Accordingly, we agree with
counsel and conclude that the issues raised in the Anders Brief are wholly
frivolous.
Furthermore, our independent review of the record, conducted in
accordance with Yorgey, supra, confirms counsel’s assertion that there are
no issues of merit to be considered by this Court and this appeal is, thus,
wholly frivolous. Thus, we grant counsel’s Application to Withdraw and affirm
the Order terminating Mother’s parental rights.
Order affirmed. Application to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/19
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