In Re: E.E.W., a Minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.E.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.C., FATHER :
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:
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: No. 814 MDA 2021
Appeal from the Decree Entered May 27, 2021
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2021-0475
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 8, 2021
M.C. (“Father”) appeals from the May 27, 2021 Decree entered in the
Lancaster County Court of Common Pleas that terminated his parental rights
to then-twenty-two month old E.E.W. (“Child”) pursuant to 23 Pa.C.S. §
2511(a) and (b). With this appeal, Appellant’s counsel, H. Allison Wright,
Esq., has filed an Application for Leave to Withdraw as Counsel (“Motion to
Withdraw”) and an Anders1 Brief. After careful review, we grant counsel’s
Motion to Withdraw and affirm the Decree.
FACTUAL AND PROCEDURAL HISTORY
The relevant factual and procedural history, as gleaned from the trial
court’s Pa.R.A.P. 1925(a) Opinion, is as follows. Father and E.A.G-F.
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1Anders v. California, 386 U.S. 738 (1967). See also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) (applying Anders). Although counsel
has labeled the brief “Brief for Appellant,” we refer to it throughout this
Memorandum as an Anders Brief.
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(“Mother”) are parents to Child, who was born in July 2019.2 Mother, who
was homeless at the time, voluntarily placed Child with the Lancaster Children
and Youth Social Service Agency (the “Agency”) and on November 27, 2019,
the trial court awarded temporary custody of child to the Agency. On January
23, 2020, the court held an adjudicatory hearing. Father, who sustained a
traumatic brain injury as a child and suffers from bipolar disorder, depression,
and paranoia, was present at the hearing and conceded that he was not ready,
willing, and able to parent the Child.3 The trial court proceeded to adjudicate
Child dependent and place Child in a pre-adoptive foster home.
The trial court approved a permanency plan for reunification, which
included the following objectives for Father to complete to reunify with Child:
improve mental health, remain crime-free, learn and utilize appropriate
parenting skills, remain financially stable, obtain appropriate housing, remain
free from domestic violence, and visit with Child.
The trial court held permanency review hearings on July 9, 2020,
December 23, 2020, and May 12, 2021, and at each hearing found that Father
was minimally compliant with the permanency plan objectives and had made
minimal progress towards reunification with Child. Notably, in August 2020,
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2 J.G.F. is listed as Child’s parent on Child’s birth certificate. Genetic testing
confirmed that Father is Child’s biological parent. Mother and J.G.F. both
voluntarily relinquished their parental rights to Child and are not subjects of
this appeal.
3When Father was eight years old he was involved in a car crash that killed
both of his parents and caused him to sustain a traumatic brain injury.
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Father left a voice message for the Agency caseworker stating he did not want
to visit with Child and did not want to be involved with Child. Father
subsequently failed to visit with Child or communicate with the Agency for
approximately three months until November 2020, when Father informed the
Agency that he had moved to Florida, but that he had now returned and
wanted to resume visitation with Child.
On March 4, 2021, the Agency filed a Petition to Terminate Parental
Rights of Father. On April 22, 2021, the trial court held a hearing on the
petition.4 The court heard testimony from Agency caseworker Kara Davis and
Father. Additionally, per the Agency’s request, the trial court incorporated the
dependency proceedings into the record.
In sum, Ms. Davis testified that Father failed to: engage in mental health
counseling; inform the Agency what, if any, medication he was on; appear or
stay to complete for his scheduled parenting capacity evaluation on
approximately six occasions; participate in parenting program referred by
Agency; provide the Agency with a copy of his lease; obtain appropriate
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4 Consistent with our Supreme Court’s holding In re Adoption of K.M.G.,
240 A.3d 1218 (Pa. 2020), we verify that the trial court appointed Catharine
Roland, Esquire, the guardian ad litem during the dependency proceedings, to
represent Child in the termination proceedings pursuant to 23 Pa.C.S. §
2313(a). See K.M.G., supra at 1224. (reiterating that, absent a conflict
between legal interest and best interests, one attorney may serve dual role of
guardian ad litem and Section 2313 counsel). The trial court found that Child
was too young to express a preferred outcome of the termination proceedings.
Trial Ct. Op., dated August 24, 2021, at 33.
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housing; and complete domestic violence counseling. N.T. Termination
Hearing, 4/22/21, at 8-28.
Ms. Davis further testified that Father failed to consistently attend in-
person and virtual visitation with Child, and that out of a total of 48 visits he
missed 21 and attended 27. Id. at 17. Ms. Davis explained that during the
weekly supervised visits, Father is engaged and affectionate, but that Child
has recently been crying at the beginning of the reinstated in-person visits.
Id. at 18. Ms. Davis stated that Child is living in a pre-adoptive home with
his foster parents and foster sister, is “extremely attached to them,” and runs
to them and smiles after the visits. Id. at 19-20.
Father testified that he graduated high school but cannot read, does
occasional odd jobs for money, volunteers at a church to “do security” several
times a week, and receives monthly social security benefits due to his mental
health issues. Id. at 31-33, 37-38. Father also testified that he suffers from
a traumatic brain injury caused by a car accident that killed his parents when
he was eight years old. Id. at 37-38. Father stated that a doctor has
diagnosed him with bipolar disorder, depression, and paranoia. Id. 37 Father
repeatedly informed the court that he cannot focus his mind, he lost his mind,
and he cries every day for several hours at a time. Id. at 37, 38, 41, 43, 48,
49. Father explained that he was not currently taking medication because he
did not have insurance and did not trust medication. Id. at 39, 49. However,
Father informed the court that he was going to try to obtain a prescription for
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medical marijuana to help him overcome his mental health issues and care for
Child. Id. at 49.
Father testified that he was currently renting a room, without access to
a kitchen, but that he had filled out eight applications to obtain appropriate
housing for himself and Child. Id. at 30. Father testified that he does not
remember the Agency helping him register for parenting classes, he
completed domestic violence classes but did not provide his certificate to the
Agency, and he did not know why he did not stay to complete the parenting
capacity evaluation and missed several appointments. Id. at 33-36, 50-51.
Father further testified that he would attend a newly scheduled appointment
for an evaluation, but he did not want to stay late because he has “things to
do at nighttime.” Id. at 34.
Father explained that he enjoys visits with Child, and that he changes
Child’s diapers, buys him juice and snacks, and talks with him. Id. at 42.
Father stated that he and Child both cry at the end of the visits and that he
wants to “fight for his son.” Id. at 42, 43.
At the conclusion of the hearing, Child’s court-appointed attorney and
guardian ad litem advocated that termination of Father’s parental rights was
in Child’s best interest. Id. at 53.
On May 27, 2021, after considering the presented evidence and
reviewing the incorporated dependency record, the trial court granted the
Agency’s petition to terminate Father’s parental rights to Child. Father timely
appealed. Both Father and the trial court complied with Pa.R.A.P. 1925.
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Motion to Withdraw
On September 21, 2021, Father’s counsel filed a Motion to Withdraw
and an Anders Brief. Appellant did not respond.
In the Anders Brief, appellate counsel asks us to consider, “whether the
court erred in terminating Father’s parental rights to [C]hild because the
[Agency] failed to prove by clear and convincing evidence that Father’s
parental rights should be terminated under 23 Pa.C.S.[] Section 2511.”
Anders Br. at 8.
As a preliminary matter, we address appellate counsel’s request to
withdraw as counsel. “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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010). In order for counsel to withdraw from an appeal pursuant
to Anders, our Supreme Court has determined that counsel must meet the
following requirements:
(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).
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Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that she sent Father a copy of
the Anders Brief and Motion to Withdraw, as well as a letter explaining to
Father that he has the right to retain new counsel, proceed pro se, and to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa. Super. 2005) (describing notice requirements).
Having addressed counsel’s technical compliance with Anders, we will
address the substantive issue raised by counsel. In addition, we must 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.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
LEGAL ANALYSIS
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court’s decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted). We may not reverse merely because the record could
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support a different result. T.S.M., 71 A.3d at 267. We give great deference
to the trial courts “that often have first-hand observations of the parties
spanning multiple hearings.” Id. Moreover, “[t]he 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) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “The party seeking
termination must prove by clear and convincing evidence that the parent’s
conduct satisfies the statutory grounds for termination delineated in Section
2511(a).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages in “the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the standard of best
interests of the child.” Id. (citation omitted). Notably, we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S.,
946 A.2d 753, 758 (Pa. Super. 2008).
Termination Pursuant to Section 2511(a)(1)
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Upon review, we conclude that the Agency presented clear and
convincing evidence to terminate Father’s parental rights pursuant to Section
2511(a)(1).
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “[t]he parent by conduct continuing for
a period of at least six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.” 23 Pa.C.S. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, the court must consider the whole history
of a given case and may consider a parent’s inaction before the six-month
statutory provision. K.Z.S., 946 A.2d at 758. Additionally, “[t]he court must
examine the individual circumstances of each case and consider all
explanations offered by the parent facing termination of his parental rights, to
determine if the evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.” Id. (citations omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
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There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty . . . requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
a benefactor, parental duty requires that a parent exert
himself to take and maintain a place of importance in the
child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal
quotation marks, and internal paragraph breaks omitted).
Moreover, “[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
maintain the parent-child relationship to the best of his or her ability, even in
difficult circumstances.” Id. (citation omitted). “A parent must utilize all
available resources to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path of maintaining
the parent-child relationship.” Id. (citation omitted).
Instantly, the trial court emphasized that Father chose to move to a
different state for three of the six months preceding the Agency’s filing of the
termination petition, precluding him from performing parental duties or
advancing his objectives for reunification. The trial court opined:
For the six months period preceding the filing of the Agency’s
termination of parental right’s petition[,] which was on or about
September 1, 2020, Father did nothing to advance the completion
of [the] permanency plan objectives. Father had left a message
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for the caseworker in August that Father wanted nothing to do
with [] Child and had then moved to Florida. Father’s course of
conduct and failure to work on his objectives confirms Father’s
decision to relinquish his parental role. . . . Father failed to
complete the parenting capacity evaluation after the evaluation
had been scheduled on six occasions. . . . After disavowing further
participation in the juvenile dependency case, Father left for
Florida and had no contact at all with [] Child for approximately
three months between August and November 2020. When Father
returned to Pennsylvania, [] Child did not recognize Father and
cried at the beginning of visits. Over the course of this case,
Father made only nominal efforts to build and maintain the
parent-child relationship between him and [] Child.
Trial Ct. Op., dated August 24, 2021, at 36-37. Moreover, the trial court
credited Ms. Davis’ testimony that Father failed to complete or advance his
permanency plan objectives and utilize all available resources to maintain a
parent-child relationship with Child and facilitate reunification. The trial court
further opined:
Father’s patterns of behavior illuminates his inability to honor
obligations and commitments. The record is replete with
instances where Father missed appointments and visits and failed
to engage or complete trainings or therapies which might have
helped him become capable of parenting [] Child. These behaviors
lead inevitably to the conclusion that Father would not fulfill the
duties attendant to raising [] Child in a healthy environment.
Grounds for termination of Father’s parental rights under
[Section] 2511(a)(1) have been proved by clear and convincing
evidence.
Id. at 38. Our review of the record supports the trial court’s findings. We
decline to reweigh the evidence or interfere with the trial court’s credibility
determinations. Accordingly, we find no abuse of discretion in the trial court’s
conclusion that the Agency presented clear and convincing evidence to
terminate Father’s parental rights pursuant to Section 2511(a)(1).
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Termination Pursuant to Section 2511(b)
Upon review, we conclude that the Agency also presented clear and
convincing evidence to terminate Father’s parental rights pursuant to Section
2511(b).
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. This Court reviews
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). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted).
One major aspect of the “needs and welfare” analysis concerns the
nature and status of the emotional bond that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). The fact that a child has a bond with a parent does
not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
termination would destroy an existing, necessary, and beneficial relationship.
Id. at 898. Moreover, the trial court may consider intangibles, such as the
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love, comfort, security, and stability the child might have with the adoptive
resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the
concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010).
Instantly, the trial court found that Child did not have a meaningful bond
with Father, and that terminating Father’s parental rights would be in Child’s
best interest. The trial court opined:
At this time [] Child is approaching two years of age. It is fair to
state that, given the minimal contact which has existed between
[] Child and Father, [] Child has no meaningful bond with Father.
The only family this Child knows is his resource family. [] Child
deserves the permanency the resource family can provide.
Trial Ct. Op. at 39. The record supports the trial courts findings, and we
discern no abuse of discretion.
CONCLUSION
In conclusion, our review of the record supports the trial court’s findings.
We discern no error of law or abuse of discretion with respect to the trial
court’s conclusion that the Agency presented clear and convincing evidence to
terminate Father’s parental rights pursuant to Section 2511(a) and (b).
Furthermore, our independent review of the record, conducted in
accordance with Dempster, 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. Accordingly, we grant counsel’s Motion to Withdraw and
affirm the Decree involuntarily terminating Father’s parental rights.
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Counsel’s Motion to Withdraw granted. Decree affirmed.
Judge McCaffery joins the memorandum.
Judge McLaughlin concurs in results.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2021
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