In the Matter of: G.E.S., A Minor, Appeal of: W.S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: G.E.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.S., LEGAL FATHER :
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:
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: No. 12 WDA 2017
Appeal from the Decree November 30, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 69 In Adoption 2016
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 27, 2017
Appellant, W.S. (“Father”), appeals from the decree in the Erie County
Court of Common Pleas, which terminated his parental rights to his minor
child, G.E.S (“Child”). Counsel for Father has also filed with this Court both
a petition for leave to withdraw as counsel and a brief pursuant to Anders v.
California, 87 S. Ct. 1396 (1967). We grant counsel’s petition for leave to
withdraw and affirm the decision of the trial court.
On August 6, 2015, the Erie County Office of Children and Youth
(“OCY”) obtained an emergency protective order to ensure Child’s safety
after Child’s mother (“Mother”) was admitted to a hospital for a report of
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*
Former Justice specially assigned to the Superior Court.
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chest pain.1 Child was with Mother at the time, and they were homeless.
OCY learned of Mother’s mental health problems, history of substance
abuse, unstable housing, and lack of necessities for Child. Father was not
known to OCY at the time, and Mother refused to cooperate with OCY. Child
was placed in the legal and physical custody of OCY.
OCY filed a dependency petition on August 10, 2015, which listed
Mother as the only parent. On August 14, 2015, OCY amended its petition
to include Father. As to Father, OCY alleged he was not an active caregiver
for Child, might not be Child’s biological parent, and was the subject of a
protection from abuse (“PFA”) order for multiple domestic violence incidents
against Mother. At least one of the domestic violence incidents occurred in
the presence of Child.
At the August 18, 2015 adjudicatory hearing before a master, the
parties agreed to amend the dependency petition to reflect that Father and
Mother married in May of 2012, approximately one month before Child’s
birth and that Father participated in the upbringing of Child until he and
Mother separated in April of 2015. At the hearing, Mother asserted Child’s
biological father was E.A. OCY requested paternity testing, but Father
objected based on estoppel. The master concluded paternity testing was not
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1
We derive the relevant facts from a previous decision in this matter. In
Interest of G.S., 159 A.3d 1009 (Pa. Super. 2016) (unpublished
memorandum).
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required at that time and found child dependent. The trial court adopted the
master’s recommendations on August 21, 2015.
Following a permanency review hearing in September 2015, the trial
court entered a dispositional order indicating that the current placement goal
for Child was “return to parent or guardian.” The court ordered Father to (1)
cooperate with OCY, (2) attend and complete a domestic violence/anger
management program, (3) provide for the health and safety of Child during
visitation, (4) alternate attendance at Child’s medical appointments with
Child’s mother, and (5) demonstrate an understanding of the information
provided by healthcare professionals. The court directed Father to undergo
a psychological assessment.
In December 2015, the trial court convened a permanency review
hearing. OCY called Dr. Peter von Korff to testify regarding his psychological
evaluations of Father. According to Dr. von Korff, Father exhibited a
schizotypal personality disorder that affected his ability to care for Child and
would need an anger management program, as well as years of individual
mental health treatment, before he could safely parent Child. The doctor
noted that Father did not acknowledge having mental health issues or a
need for treatment.
In December 2015, the trial court entered its permanency review
order. The court permitted Father one supervised visit with Child and
granted OCY’s request to add the concurrent goal of adoption. The court did
not order services for Father, but directed the parties to address whether a
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paternity test was performed and whether it was in Child’s best interest to
continue providing services to Father.
At the permanency review hearing on February 1, 2016, the trial court
indicated DNA testing confirmed that Father was not Child’s biological
parent. OCY again requested cessation of services to Father, arguing that it
did “not want to look at [Father] as a resource” because he was not a
natural parent, he exposed Child to domestic violence, and he continued to
have serious mental health issues that remained untreated. OCY and Child’s
guardian ad litem asserted it would be in Child’s best interest to discontinue
Father’s visitation. Father’s counsel requested a bonding assessment. At
the conclusion of the hearing, the trial court questioned Father. Father
denied having mental health issues and requested a new mental health
evaluation. The court denied the request for an independent mental health
evaluation.
In February 2016, the court entered its permanency review order
directing OCY to discontinue services to Father until a bonding assessment
was completed. However, the goal of reunification concurrent with adoption
remained unchanged. The court indicated Father made “moderate progress”
toward alleviating the circumstances necessitating placement.
In May 2016, the trial court held a permanency review hearing, Father
was not present, but was represented by counsel. OCY requested to have
Father “removed from the case” and asserted it would pursue termination of
his rights under 23 Pa.C.S. § 2511(a)(3). Dr. von Korff’s bonding
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assessment was made part of the record without objection. The trial court
entered an order indicating that Father was noncompliant and made no
progress in alleviating the problems that necessitated the original
placement. The court discontinued OCY’s services to Father. Child’s goal,
however, remained reunification concurrent with adoption. Father’s counsel
filed a motion to withdraw the May 2016 order and reopen the record based
on Father’s nonattendance. The court denied the motion. Father filed a
Notice of Appeal as to the goal change. This Court affirmed the decision of
the trial court. See In Interest of G.S., 159 A.23 1009 (Pa. Super. 2016)
(unpublished memorandum).
In July 2017, OCY filed a petition for involuntary termination of
parental rights. A termination hearing was held in November 2016, and by
decree dated November 30, 2016, the trial court terminated Father’s
parental rights. In December 2016, Father’s counsel timely filed a notice of
appeal on Father’s behalf as well as a statement pursuant to Pa.R.A.P.
1925(b). The trial court issued a responsive opinion. On March 7, 2017,
Father’s counsel filed an application to withdraw as counsel and a brief
pursuant to Anders.
The Anders brief raises the following issues on appeal:
A. Whether the Orphans’ Court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing
evidence pursuant to 23 Pa. C.S.A. §2511(a)(2)?
B. Whether the Orphans’ Court committed an error of law and/or
abused its discretion when it concluded that termination of
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parental rights was supported by clear and convincing
evidence pursuant to 23 Pa. C.S.A. §2511(a)(5), (8)?
C. Whether the Orphans’ Court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing
evidence pursuant to 23 Pa. C.S.A. §2511(b)?
Initially, we address the Anders brief and petition seeking permission
to withdraw. The principles that guide our review are as follows:
When counsel files an Anders brief, this Court may not review
the merits without first addressing counsel’s request to
withdraw. Commonwealth v. Washington, 63 A.3d 797, 800
(Pa. Super. 2013). In In re V.E., 611 A.2d 1267 (Pa. Super.
1992), this Court extended Anders principles to appeals
involving the termination of parental rights. Id. at 1275. In
these cases, counsel appointed to represent an indigent parent
on a first appeal from a decree involuntarily terminating parental
rights may petition this Court for leave to withdraw
representation and submit an Anders brief. In re S.M.B., 856
A.2d 1235, 1237 (Pa. Super. 2004). We review counsel’s
Anders brief for compliance with the requirements set forth by
our Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel must: (1)
provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Id. at 361.
Additionally, pursuant to Commonwealth v. Millisock, 873
A.2d 748 (Pa. Super. 2005) and its progeny, “[c]ounsel also
must provide a copy of the Anders brief to his client. Attending
the brief must be a letter that advises the client of his right to:
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(1) retain new counsel to pursue the appeal; (2) proceed pro se
on appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Orellana,
86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks
and citation omitted). “Once counsel has satisfied the above
requirements 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).
In re X.J., 105 A.3d 1, 3-4 (Pa. Super. 2014).
Here, we conclude that Father’s counsel has complied with the
requirements as set forth above. Counsel has provided Father with a copy
of the Anders brief and indicated in her correspondence that Father may
proceed pro se or retain new counsel. In her brief, counsel references facts
of record that might arguably support Father’s appeal and sets forth her
conclusion that the appeal is frivolous. See Anders Brief at 14-19.
Accordingly, we undertake our independent review of the record to
determine whether Father’s appeal is wholly frivolous.
Our review of an order granting a petition for involuntary termination
of parental rights is well settled:
[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 determination 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.; [In re]
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R.I.S., [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., 34 A.3d 1, 51 (Pa. 2011); Christianson
v. Ely, 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
observe 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 the parents. R.J.T., 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, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
“[T]he burden is upon [the petitioner] to prove by clear and convincing
evidence that its 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)).
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The trial court terminated Father’s parental rights under sections
2511(a)(2), (3), (5), (8) and 2511(b). 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. 20014) (en banc). As such we will focus on 2511(a)(3) and
2511(b), which provide as follows:2
§ 2511. Grounds for involuntary termination
(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:
* * *
(3) [T]he parent is presumptive but not the natural
father of said child[.]
* * *
(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.A. § 2511(a)(2), (b).
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2
Technically, Father does not preserve a challenge to this ground for
termination.
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We will first examine the court’s termination of Father’s parental rights
pursuant to Section 2511(a)(3). The trial court reasoned as follows:
W.S. is the presumptive, not the natural father of the Child,
therefore, his parental rights were terminated under, inter alia,
Section 2511(a)(3). In doing so, the court was cognizant of the
Adoption Act’s use of discretionary wording in relation to the
grounds upon which it “may” terminate a parent’s rights.
Arguably, there are a number of legal theories/considerations
the court may have used to deny OCY’s Petition under Section
2511(a)(3), regardless of W.S.’s lack of paternity, had it
believed doing so was in the Child’s best interest, most notably
paternity by estoppel. However, such is not the case here. As
discussed in more detail below regarding alternative grounds for
termination, this court is confident that the Child’s interests are
best served by eliminating all means by which W.S. might
continue to exercise dominion or control over the Child, her
natural mother, and/or any prospective adoptive resources in the
future.
Trial Court Opinion, 1/12/17, at 5 (citations omitted).
As there is clear and convincing evidence in the record that supports
the trial court’s termination of Father’s parental rights under Section
2511(a)(3), we affirm the trial court’s decision. In re Adoption of S.P., 47
A.3d at 826-827.
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). Pursuant to Section 2511(b), the court, in
terminating the rights of a parent, shall give primary consideration to the
developmental, physical, and emotional needs and welfare of a child.
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In March of 2016, Appellant and Child participated in a bonding
assessment. In the evaluation, Dr. Peter von Korff opined:
The assessment evidence[s] a tenuous and troubled attachment
between [Father] and [Child]. Observations obtained in the
office setting were consistent with an insecure attachment…
There was generally little eye contact and very little sense of
developing shared ideas. His departure from the room and his
subsequent return did nothing to alter [Child’s] pattern of
behavior. [Child] simply carried on with her independent play
interest.
A mixture of affectionate feeling, emotional strain and
remoteness was observed. Examples of confusion and
uncertainty in the emotional relationship included the contrast
between [Child’s] very slow warming to [Father] and her tearful
request to go with him at the close of the meeting.
* * *
The writer’s observations suggested that a sub-optimal and
insecure early attachment relationship between parent and child
has been significantly degraded by their protracted separation[.]
Bonding Assessment, 3/23/16, at 7-8.
Gregory Phillips, caseworker for the Erie County Office of Children and
Youth, testified that Father never contacted him to inquire about Child’s
well-being. Notes of Testimony, 11/29/16, at 63. Mr. Phillips further stated
that Child has never asked about Father. Id. at 66. Mr. Phillips testified
that termination of Father’s rights would not cause a detrimental impact of
Child and that termination is in her best interest. Id.
Upon review, we find no abuse of discretion in the trial court’s
termination of Father’s parental rights. Our independent review of the
record reveals no non-frivolous claims that Father could have raised, and we
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agree with Counsel that this appeal is wholly frivolous. We therefore affirm
the termination decree and grant Counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw is granted.
Judge Lazarus joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
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