In Re: J.D.H., Appeal of: A.S.H., natural mother , 171 A.3d 903 ( 2017 )


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  • J-S54015-17
    
    2017 Pa. Super. 313
    IN RE: J.D.H.                                :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    :
    :
    :
    :
    APPEAL OF: A.S.H., NATURAL                   :
    MOTHER                                       :    No. 374 WDA 2017
    Appeal from the Order January 30, 2017
    In the Court of Common Pleas of Jefferson County
    Orphans’ Court at No(s): CP-33-DP-030-2016
    BEFORE:      OTT, MOULTON, and FITZGERALD*, JJ.
    OPINION BY OTT, J.:                                            FILED OCTOBER 2, 2017
    A.S.H. (“Mother”) appeals from the order entered January 30, 2017, in
    the Court of Common Pleas of Jefferson County, which changed the
    permanency          goal   of   her   minor    son,   J.D.H.    (“Child”),   to   adoption.
    Additionally, Mother’s counsel has filed a petition to withdraw and brief
    pursuant      to     Anders      v.    California,    
    386 U.S. 738
       (1967),   and
    Commonwealth v. Santiago, 
    978 A.2d 349
    (Pa. 2009).                      Upon review, we
    grant counsel’s petition to withdraw and affirm the goal change order.1
    The record reveals that Jefferson County Children and Youth Services
    (“CYS”) filed an application for emergency protective custody of Child
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    Child’s putative father, B.M., did not file a brief in connection with this
    appeal, nor did he file his own separate appeal.
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    several days after his birth in June 2016.    In its application, CYS averred
    that it received a report from Penn Highlands Hospital, alleging that Mother
    suffers from mental health issues, and lacks the ability to care for Child.
    Application for Emergency Protective Custody at 3. CYS further averred that
    Mother acknowledged a history of depression and bipolar disorder, that she
    was not taking her mental health medications, and that she reported hitting
    others when angry or upset.      
    Id. The trial
    court entered an order for
    emergency protective custody that same day, and placed Child in foster
    care. Child remained in foster care pursuant to a shelter care order entered
    later that month, and the court adjudicated Child dependent by order
    entered August 1, 2016.
    Following Child’s adjudication of dependency, the trial court conducted
    permanency review hearings on October 26, 2016, and January 25, 2017.
    On January 30, 2017, the court entered a permanency review order
    changing Child’s permanency goal from reunification to adoption.       Mother
    timely filed a notice of appeal on March 1, 2017, along with a concise
    statement of errors complained of on appeal.      On June 6, 2017, Mother’s
    counsel filed a petition to withdraw and Anders brief in this Court.
    Before reaching the merits of Mother’s appeal, we must first address
    the propriety of counsel’s petition to withdraw and Anders brief.          The
    Anders procedure, whereby court-appointed counsel may seek to withdraw
    if he or she concludes that an appeal is wholly frivolous, initially applied to
    direct appeals in criminal matters. In In re V.E., 
    611 A.2d 1267
    (Pa. Super.
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    1992), this Court extended the Anders procedure to appeals from decrees
    involuntarily terminating parental rights.          Since then, we have routinely
    applied the Anders procedure to appeals from goal change orders, so long
    as the appellant also is appealing from an involuntary termination decree.
    Here, Mother is appealing only from an order changing Child’s
    permanency goal to adoption, as there is no order terminating her parental
    rights. Further, our review of the record does not reveal that CYS has filed a
    petition requesting that Mother’s parental rights be terminated. Moreover,
    our research has uncovered no published decision by this Court, or by our
    Supreme Court, applying the Anders procedure to an appeal from a goal
    change order only, with no accompanying involuntary termination.
    After careful consideration, we conclude that the Anders procedure
    should also apply in appeals from goal change orders, even in the absence of
    an involuntary termination decree. Parents have a right to counsel at every
    stage of a dependency proceeding.              Section 6337 of the Juvenile Act, 42
    Pa.C.S.A. § 6337 provides that “a party is entitled to representation by legal
    counsel at all stages of any proceedings under this chapter and if he is
    without financial resources or otherwise unable to employ counsel, to have
    the court provide counsel for him.”2
    ____________________________________________
    2
    Section 2313(a.1) of the Adoption Act governs the appointment of counsel
    for parents in involuntary termination proceedings. See 23 Pa.C.S.A. §
    2313(a.1) (“The court shall appoint counsel for a parent whose rights are
    subject to termination in an involuntary termination proceeding if, upon
    (Footnote Continued Next Page)
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    Furthermore, court-appointed counsel can be placed in the same
    position as a criminal defense attorney. A parent may direct counsel to file
    an appeal from a goal change order, even if counsel advises him or her that
    any such appeal would be frivolous. Similarly, counsel may file an appeal
    believing it to be meritorious, only to discover its frivolousness later.   In
    either scenario, counsel cannot pursue what he or she believes is a frivolous
    appeal without violating the Rules of Professional Conduct. See specifically
    Pa.R.P.C. 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or
    controvert an issue therein, unless there is a basis in law and fact for doing
    so that is not frivolous[.]”). The Anders procedure provides a solution to
    this problem, by ensuring that parents receive the benefit of a counseled
    appeal, while also allowing counsel to act in accordance with the Rules. See
    Commonwealth v. Donaghy, 
    33 A.3d 12
    , 17 (Pa. Super. 2011),
    reargument denied (Oct. 14, 2011), appeal denied, 
    40 A.3d 120
    (Pa. 2012)
    (quoting Commonwealth v. McClendon, 
    434 A.2d 1185
    , 1187 (Pa. 1987))
    (explaining that the Anders procedure provides counsel “with a mechanism
    whereby he can satisfy his client’s desire for a direct appeal without having
    to ‘compromise principle or to act contrary to his own conscience.’”).
    However, allowing counsel to withdraw prior to the entry of an
    involuntary termination decree presents certain complications unique to
    _______________________
    (Footnote Continued)
    petition of the parent, the court determines that the parent is unable to pay
    for counsel or if payment would result in substantial financial hardship.”).
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    dependency and adoption proceedings. As discussed above, parents have a
    right to counsel at every stage of a dependency proceeding, and dependency
    proceedings do not end merely because a trial court enters a goal change
    order. Thus, if we permit counsel to withdraw in this case, Mother still would
    be entitled to counsel pursuant to Section 6337. If Mother could not afford
    counsel, the trial court would need to appoint new counsel for her in any
    subsequent proceedings.
    We believe that the most prudent way to address this issue is to
    require that any court-appointed counsel who wishes to withdraw under
    these circumstances must inform the parent of his or her right to counsel in
    any   subsequent   dependency    or   involuntary   termination   proceedings.
    Counsel must also inform the parent that, if he or she cannot afford counsel,
    he or she may contact the trial court in order to obtain new counsel. This
    information must be conveyed to the parent at the same time that counsel
    informs the parent of his or her other rights pursuant to Anders, as
    discussed below.
    Accordingly, we may now proceed to consider whether Mother’s
    counsel complied with the requirements of Anders. To withdraw pursuant
    to Anders, counsel must:
    1) petition the court for leave to withdraw stating that, after
    making a conscientious examination of the record, counsel has
    determined that the appeal would be frivolous; 2) furnish a copy
    of the [Anders] brief to the [appellant]; and 3) advise the
    [appellant] that he or she has the right to retain private counsel
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    or raise additional arguments that the [appellant] deems worthy
    of the court’s attention.
    Commonwealth v. Cartrette, 
    83 A.3d 1030
    , 1032 (Pa. Super. 2013) (en
    banc) (citing Commonwealth v. Lilley, 
    978 A.2d 995
    , 997 (Pa. Super.
    2009)).   With respect to the third requirement of Anders, that counsel
    inform the appellant 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).
    Additionally, an   Anders    brief   must   comply   with 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.
    
    Santiago, 978 A.2d at 361
    .
    Here, counsel complied with the first two Anders requirements by
    filing a petition to withdraw, certifying that he has reviewed the case and
    determined that Mother’s appeal is frivolous.      Counsel also filed a brief,
    which includes a summary of the history and facts of the case, a potential
    issue that could be raised by Mother, and counsel’s assessment of why that
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    issue is meritless, with citations to the record and to relevant legal authority.
    Counsel attached a copy of a letter to Mother to his petition to withdraw,
    indicating that he enclosed a copy of the brief.
    With respect to the third Anders requirement, counsel’s letter to
    Mother also informed her of her right to hire a private attorney, to proceed
    on her own, or to raise any additional points she deems worthy of this
    Court’s attention.   However, counsel’s letter stated incorrectly that Mother
    would need to wait until this Court rules on his petition to withdraw before
    exercising those rights. See Letter, 6/5/2017 (explaining that Mother may
    exercise her rights “if the Superior Court allows me to withdraw”).         As a
    result, this Court issued a per curiam order on August 22, 2017, instructing
    counsel that he must provide Mother with a new letter advising her of her
    rights, and clarifying that she must exercise those rights now, before this
    Court rules on his petition to withdraw.           In addition, for the reasons
    discussed above, we instructed that counsel must inform Mother that she
    has the right to counsel in any subsequent dependency or involuntary
    termination of parental rights proceedings, and that, if she cannot afford
    private counsel, she may contact the trial court in order to have new counsel
    appointed for her.
    Counsel complied with our order by filing a copy of a new letter to
    Mother in this Court on September 1, 2017.           In his new letter, counsel
    advised Mother correctly that she has the right to hire a private attorney, to
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    proceed on her own, or to raise any additional points she deems worthy of
    this Court’s attention now, and that she cannot wait until this Court rules on
    counsel’s petition to withdraw. In addition, counsel advised Mother that she
    has the right to counsel in any future dependency or termination of parental
    rights proceedings. Counsel informed Mother that, since she cannot afford
    counsel, she should contact the court administrator in order to have counsel
    appointed for her. Thus, counsel now has complied with the requirements of
    Anders and Santiago.       We therefore may proceed to review the issue
    outlined in counsel’s Anders brief. We must also “conduct an independent
    review of the record to discern if there are any additional, non-frivolous
    issues overlooked by counsel.”       Commonwealth v. Flowers, 
    113 A.3d 1246
    , 1250 (Pa. Super. 2015) (footnote omitted).
    Counsel’s Anders brief raises the following issue for our review.
    “Whether the [trial] court erred in changing the permanency placement goal
    to adoption[?]” Anders brief at 4.
    We address this issue mindful of the following.
    [T]he standard of review in dependency cases requires an
    appellate court to accept the 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. Accordingly, we
    review for an abuse of discretion.
    In re R.J.T., 
    9 A.3d 1179
    , 1190 (Pa. 2010).
    Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act,
    when considering a petition for a goal change for a dependent
    child, the juvenile court is to consider, inter alia: (1) the
    continuing necessity for and appropriateness of the placement;
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    (2) the extent of compliance with the family service plan; (3) the
    extent of progress made towards alleviating the circumstances
    which    necessitated      the   original placement;     (4)   the
    appropriateness and feasibility of the current placement goal for
    the children; (5) a likely date by which the goal for the child
    might be achieved; (6) the child’s safety; and (7) whether the
    child has been in placement for at least fifteen of the last
    twenty-two months. The best interests of the child, and not the
    interests of the parent, must guide the trial court. As this Court
    has held, a child’s life simply cannot be put on hold in the hope
    that the parent will summon the ability to handle the
    responsibilities of parenting.
    In re A.B., 
    19 A.3d 1084
    , 1088-89 (Pa. Super. 2011) (citations and
    quotation marks omitted).
    Instantly, Mother argues that the trial court abused its discretion by
    changing Child’s permanency goal to adoption after only seven months.
    Anders brief at 8. According to Mother, the Juvenile Act envisions that a
    child should be placed in foster care for fifteen of the last twenty-two
    months before his or her goal is changed. 
    Id. The trial
    court explained its decision to change Child’s permanency
    goal to adoption as follows.
    In her Statement of Matters Complained of on Appeal,
    Mother alleges that the Court erred in changing the permanency
    goal to adoption since the child had not been in placement for 15
    of the preceding 22 months. She thereby assumes a legislative
    intent not supported by the plain language of the relevant
    statute.
    ***
    That is but one of the matters to be determined at a permanency
    hearing, and contrary to Mother’s implicit assumption, it is a
    consideration designed to protect the child, not the parent. More
    specifically, it is designed to ensure that children will not
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    languish in foster care indefinitely, not to guarantee parents a
    minimum of 15 months to achieve an acceptable level of
    parental capacity.
    The idea that a court must always wait until a child has
    been in placement for 15 of 22 months before changing his
    permanency goal to adoption is, in fact, antagonistic to the
    Juvenile Act’s overall purpose of protecting children’s best
    interests and the appellate courts’ repeated directive that a
    child’s safety, permanency, and well-being must take
    precedence over all other considerations.         What must be
    undertaken, then, is a case-by-case, hearing-by-hearing, and
    child-by-child analysis of the relevant circumstances, and in this
    case, the circumstances were such that the Court deemed a goal
    change to be in the child’s best interests.
    As the record reflects, CYS took custody of the child when
    he was only a month old, and six months later, Mother was no
    more capable of parenting him than she had been at the outset.
    By January 25, 2017, in fact, she was showing signs of
    regression. This was not a case where the parent was close to
    meeting her goals and then had a setback, though. Rather,
    Mother’s parenting skills did not approach satisfactory in the first
    place, and her increased deficiencies posed a very real threat to
    the child’s safety and well-being. To put it bluntly, the child
    would probably be dead were it not for the fact that Mother was
    not given the opportunity to interact with him absent a
    supervisor. Given Mother’s cognitive challenges and the limited
    progress she made even with the services provided, moreover,
    the Court did not believe she could acquire and retain adequate
    parenting skills within any reasonable timeframe, especially in
    light of the fact that the child would only become more difficult
    and demanding as he grew.
    In the best interests of the Child, then, the Court changed
    the goal to adoption, thereby affording him the opportunity to
    become a permanent part of a family that is willing and able to
    love him and meet his needs.
    Trial Court Opinion, 4/20/2017, at 1-2 (citations omitted).
    We agree with the trial court’s well-reasoned analysis. As this Court
    has explained, the fifteen-to-twenty-two-month timeframe set forth in the
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    Juvenile Act is not prerequisite to a goal change, but rather is “an
    aspirational target in which to attain permanency.” In the Interest of L.T.,
    
    158 A.3d 1266
    , 1279 (Pa. Super. 2017) (citing 42 Pa.C.S.A. § 6351(f.1)(9)).
    While trial courts should not rush to change a child’s permanency goal to
    adoption in circumstances where a parent is making progress toward
    reunification, neither should courts persist in attempting to reunite a family
    when further reunification efforts would be futile and/or contrary to a child’s
    best interest.
    In this case, the record amply supports the trial court’s conclusion that
    Mother will not attain the skills necessary to parent Child within a reasonable
    period of time, and that requiring further reunification efforts would only
    serve to delay permanency for Child. During the goal change hearing, CYS
    caseworker, Krista Geelen, testified that Mother’s parenting abilities have
    been “significantly regressing” since Child entered foster care.           N.T.,
    1/25/2017, at 5. Mother struggles to perform basic tasks, such as feeding
    Child and changing his diaper. 
    Id. at 5-7,
    10, 12. Mother also is unable to
    ensure Child’s safety while he is in her care. Ms. Geelen recalled speaking
    with one of Mother’s service providers, who detailed these concerns.
    [The service provider] also stated that during the meeting -- a
    meeting at [the foster mother’s] home, [Mother] had actually
    unbuckled [Child] from his seat and kind of walked away. He
    was sitting up on a coffee table. So she didn’t get him out of it.
    She walked away, and [the service provider] had to step in to
    make sure that he didn’t fall out of the seat. She had said that
    she observed him hitting his head on the floor numerous times.
    She had observed that when they were trying to bathe [Child],
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    [Child’s] head was almost going under the water, and [the
    service provider] had to step in because [Mother] didn’t think to
    make sure he wasn’t going under the water.
    
    Id. at 10-11.
    In addition, while Mother had been compliant with service providers in
    the past, she recently has become noncompliant by missing several
    appointments. 
    Id. at 7.
    Specifically, Ms. Geelen testified that Mother has
    difficulty canceling and rescheduling appointments.     
    Id. Mother “will
    no-
    show a lot of appointments. . . . She’ll say that she’s canceling, but she’ll
    forget to actually cancel.” 
    Id. at 7-8.
    Finally, Ms. Geelen testified that Child is bonding well with his foster
    parents. 
    Id. at 4.
    Child’s foster parents meet all of his needs, and he is
    thriving in their care.   
    Id. She explained,
    “He’s growing and developing
    wonderfully. He is trying to crawl. He’s Dada, Dada now all the time. . . .
    He’s doing great there.” 
    Id. Thus, we
    conclude that the trial court did not abuse its discretion by
    changing Child’s permanency goal to adoption.        The record confirms that
    Mother has made no progress since Child entered foster care, and has
    actually regressed in her parenting abilities. Moreover, Child entered foster
    care several days after his birth, and has not resided with Mother for any
    significant period of time.     Child is bonded with his foster parents and is
    thriving in their care.    As this Court has explained in the context of
    involuntary termination of parental rights proceedings, “a child’s life cannot
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    be held in abeyance while a parent attempts to attain the maturity
    necessary to assume parenting responsibilities.    The court cannot and will
    not subordinate indefinitely a child’s need for permanence and stability to a
    parent’s claims of progress and hope for the future.”    In re Adoption of
    R.J.S., 
    901 A.2d 502
    , 513 (Pa. Super. 2006).
    Accordingly, our independent review of Mother’s issue demonstrates
    that it does not entitle her to relief.   Moreover, our review of the record
    does not reveal any non-frivolous issues overlooked by counsel.          See
    
    Flowers, 113 A.3d at 1250
    .        Therefore, we grant counsel’s petition to
    withdraw, and we affirm the January 30, 2017 order.
    Petition to withdraw granted. Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/2/2017
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