In the Int. of: K.M., Appeal of: D.M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.M., MOTHER :
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: No. 521 EDA 2022
Appeal from the Order Entered January 25, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000285-2021
IN THE INTEREST OF: K.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.M., MOTHER :
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: No. 522 EDA 2022
Appeal from the Decree Entered January 25, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000765-2021
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 13, 2022
D.M. (“Mother”) appeals from the decree involuntarily terminating her
parental rights to her child, K.M. (“Child”), born in August 2020, and the order
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* Retired Senior Judge assigned to the Superior Court.
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changing Child’s permanency goal from reunification to adoption.1 In addition,
Michael Angelotti, Esquire, Mother’s counsel (“Counsel”) has filed in this Court
a petition to withdraw and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant the petition to withdraw.
The trial court summarized the procedural history and its findings of fact
as follows:
On March 4, 2021, the Department of Human Services (DHS)
received a Child Protective Services (CPS) report alleging that
K.M. was at St. Christopher’s Hospital for Children with a frontal
brain bleed; that [Mother], had stated that the Child had fallen on
his back on the cushioned futon he was sitting on when she
pushed the futon back to lay it flat; that the Child’s injuries were
not consistent with Mother’s explanation; and that the Child was
being admitted to the hospital for further testing…On March 6,
2021, Mother called DHS and stated that she wanted to tell the
truth. She stated that an ironing board had hit the Child on the
front of his head while he was sitting in his car seat. DHS learned
that this explanation was also not consistent with [Child’s]
injuries.
On March 8, 2021, [Child] was ready for discharge from the
hospital. Mother identified [Child’s] maternal aunt, V.B., to be
considered as a placement resource for the Child. DHS conducted
clearances and a home assessment for V.B. and determined that
she was an appropriate Caregiver for [Child]. On March 8, 2021,
[Child] was discharged from the hospital and began residing with
V.B., with a Safety Plan.
***
DHS received a Child Protection Team Consultation Report from
St. Christopher’s Hospital for Children dated March 5, 2021. In
the Report, it was noted that [Child] had sustained acute bilateral
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1 Child’s putative father’s parental rights were also terminated by decree
issued on January 25, 2022; putative father, who lives in Georgia, did not file
an appeal.
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subdural hemorrhages, a left front hemorrhagic contusion, retinal
hemorrhages, bruising on his left eyelid, and four hypopigmented
scars on his lower extremities. It was reported that Mother’s
account of the cause of [Child’s] injuries would not account for
widespread subdural bleeding and retinal hemorrhages; that at
that time, [Child’s] injuries appeared to be consistent with non-
accidental trauma, specifically abusive head trauma; that neither
[Child] scratching himself nor hitting himself with a toy would
cause his eye bruising; and that the scars on his lower extremities
could not have been caused by scratching himself.
DHS has determined that there was a sufficient basis to find that
aggravated circumstances exist pursuant to 42 Pa.C.S. § 6302
(aggravated circumstances (2)).
Trial Court Opinion (“TCO”) at 2-4 (citations to record omitted).
Following an April 20, 2021 hearing, Child was adjudicated dependent;
legal custody was transferred to DHS and Child was placed in kinship care,
with permitted weekly supervised visits with Mother. On May 17, 2021,
Mother was arrested and charged, inter alia, with aggravated assault-attempts
to cause serious bodily injury or causes injury with extreme indifference. On
May 20, 2021, at a meeting Mother did not attend, the Community Umbrella
Agency (“CUA”) established a Single Case Plan (“SCP”); the goal identified for
Child was “Return to Parent” and Mother’s objectives were set forth in the SCP
as: (1) be available to provide ongoing care for Child; (2) enhance parenting
skills, knowledge, and motivation; (3) maintain stable behavioral health; (4)
have safe, suitable living conditions for Child; and (5) maintain a healthy
relationship with Child. See DHS Petition for Involuntary Termination of
Parental Rights, 12/20/21, Exhibit A, Statement of Facts.
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After a Permanency Review hearing in June 2021, the trial court found
Child to be a victim of child abuse inflicted by Mother, with clear and
convincing evidence to establish the existence of aggravated circumstances.
Permanency Review Order, 6/2/21; Aggravated Circumstances Order, 6/2/21.
Mother was released from jail in August, 2021 and on October 12, 2021, the
trial court held another Permanency Review hearing, which Mother did not
attend; at that time, in reliance upon a criminal stay-away order, the court
ruled that visits between Mother and Child would be suspended pending
further court order. Permanency Review Order, 10/12/21. On October 28,
2021, the trial court held another case plan meeting, which Mother attended;
there, in addition to re-communicating the SCP objectives to Mother, Mother
was referred to the Achieving Reunification Center (“ARC”) to help her meet
her objectives and instructed to call her caseworker to schedule a home
evaluation.
On December 20, 2021, DHS filed a petition to terminate Mother’s
parental rights as well as a petition to change goals from reunification to
adoption. The trial court conducted a joint hearing on DHS’s petitions on
January 25, 2022. Faryl Bernstein, Esquire appeared as guardian ad litem for
Child. DHS presented the testimony of Destiny Vargas-Febles, who was a
case manager from CUA assigned by DHS to work with the family. Mother
testified on her own behalf. As reported by the CUA caseworker at the joint
hearing, Mother failed to complete any of her SCP objectives, did not complete
any ARC programs, and failed to make herself available for a visit to her home
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by the social worker. N.T. at 13-15. At the conclusion of the hearing, the trial
court announced its decision to grant DHS’s petition to terminate parental
rights under all subsections pleaded and to change Child’s permanency goal
from reunification to adoption. N.T. at 40-41. On February 19, 2022, Mother,
by Counsel, filed a timely notice of appeal and statement of matters
complained of on appeal regarding each of the orders issued and the trial court
issued its Pa.R.A.P. 1925(a) opinion on March 22, 2022. Counsel then filed a
petition to withdraw and an accompanying Anders brief in this Court.2 Mother
has not filed a response.
We begin by addressing the petition to withdraw and Anders brief filed
by Counsel.3 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 or
raise additional arguments that the [appellant] deems
worthy of the court’s attention.
With respect to the third requirement of Anders, that counsel
must 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.”
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2These matters were consolidated sua sponte on April 4, 2022. Neither Child’s
guardian ad litem nor DHS has filed a brief.
3 When faced with a purported Anders brief, we may not review the merits of
the underlying issues without first passing on counsel’s request to withdraw.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).
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In re J.D.H., 171 A.3d 903, 907 (Pa. Super. 2017) (citations omitted).
Additionally, counsel must file a brief that meets the following requirements
established by the Pennsylvania Supreme Court in Santiago:
(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.
In re Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020) (citation
omitted). Once we have received an Anders brief and concluded that counsel
has complied with these requirements, we must then undertake an
independent examination of the record to determine whether the appeal is
wholly frivolous; our review is not limited to those issues identified and
discussed by counsel, but must extend to additional, non-frivolous issues that
counsel may have overlooked. Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015).
Instantly, Counsel has filed a petition to withdraw that states that he
(1) has conscientiously reviewed the record and despite Mother’s expressed
desire, has determined that the appeal is frivolous; (2) served Mother with a
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copy of his petition to withdraw, and the Anders/Santiago brief; and (3)
served a letter advising Mother of her rights. We note that Counsel’s April 1,
2022 letter to Mother contains a typographical error which omits the word
“raise” in the second paragraph as follows: “you have the right to retain
private counsel, or pro se, [raise] any additional arguments that you deem
worthy of the court’s attention.” However, paragraph eight of Counsel’s
petition to withdraw, served to Mother, duly advises of her right to “raise pro
se additional arguments that she deems worthy of the court’s attention,” and
we do not therefore find this error to be a substantial defect.
Additionally, our review of Counsel’s Anders/Santiago brief reveals
that he has provided a summary of the essential facts and procedural history
of the case, two issues that arguably support Mother’s appeal, and an
assessment of why those issues are frivolous, with citations to the record and
relevant legal authority. For these reasons, we conclude that Counsel has
substantially complied with the technical requirements set forth above, and
we proceed to an independent review of his assessment that there was
sufficient evidence to terminate Mother’s parental rights and change Child’s
permanency goal from reunification to adoption.
Our standard of review in appeals from orders terminating parental
rights is deferential:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
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or abused its discretion. A decision may be reversed for an abuse
of discretion only upon determination of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re J.R.R., 229 A.3d 8, 11 (Pa. Super. 2020) (citation omitted).
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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The
clear and convincing evidence standard 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. (citation and internal quotation marks omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act. “Subsection (a) provides eleven enumerated grounds
describing particular conduct of a parent which would warrant involuntary
termination.” In re Adoption of C.M., 255 A.3d 343, 359 (Pa. 2021); 23
Pa.C.S. § 2511(a)(1)-(11). In evaluating whether the petitioner proved
grounds under subsection 2511(a), the trial court must focus on the parent’s
conduct and avoid using a “balancing or best interest approach.” Interest of
L.W., 267 A.3d 517, 524 n.6 (Pa. Super. 2021). If the trial court determines
the petitioner established grounds for termination under subsection 2511(a)
by clear and convincing evidence, the court then must assess the petition
under subsection (b), which focuses on the child’s needs and welfare. In re
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T.S.M., 71 A.3d 251, 267 (Pa. 2013). “One major aspect of the needs and
welfare analysis concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.” In re L.M., 923 A.2d 505, 511 (Pa.
Super. 2007).
Initially, we note that both DHS and the trial court included as grounds
for termination, subsections (a)(1), (2), (5), and (8), as well as subsection
(b). Petition for Involuntary Termination of Parental Rights at 3; TCO at 17.
However, and as correctly noted in the Anders brief, the requirements of
subsection (a)(8) were unquestionably not met here, where the first element
of the subsection, i.e., that the child must have been removed from the parent
by an order of court for twelve months, was clearly not satisfied. See Anders
Brief at 31. Instantly, Child was removed from Mother’s care when he was
adjudicated dependent in April 2021, less than twelve months before the
termination petition was filed, in December 2021. Nevertheless, this Court
need only agree with any one subsection of Section 2511(a), in addition to
Section 2511(b), in order to affirm the termination of parental rights. See In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, we analyze the trial court’s decision pursuant to Section
2511(a)(5) and (b) of the Adoption Act. To satisfy the requirements of Section
2511(a)(5), the moving party must produce clear and convincing evidence
regarding the following elements: (1) the child has been removed from
parental care for at least six months; (2) the conditions which led to the child’s
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removal or placement continue to exist; (3) the parent cannot and will not
remedy the conditions which led to removal or placement within a reasonable
period of time; (4) the services reasonably available to the parent are unlikely
to remedy the conditions which led to removal or placement within a
reasonable period of time; and (5) termination of parental rights would best
serve the needs and welfare of the child. 23 Pa.C.S. § 2511(a)(5); In re
Adoption of M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003).
Here, our review of the record confirms that DHS presented clear and
convincing evidence that the termination of Mother’s parental rights was
appropriate pursuant to Section 2511(a)(5). First, there is no dispute that
Child was removed from Mother’s care immediately upon his discharge from
the hospital on March 8, 2021, adjudicated dependent on April 20, 2021, and
that he remained in kinship care at the time the Petition for Involuntary
Termination of Parental Rights was filed nine months later, on December 20,
2021. See TCO at 3, 7.
In addition, DHS presented ample testimony that despite its efforts,
Mother has failed to act on any opportunity to obtain the services to which she
was referred or to complete the SCP objectives that had been established by
CUA. As noted by the trial court:
Ms. Vargas-Febles [the CUA caseworker] testified another SCP
meeting was held on 10/28/2021 and Mother was present.
Mother’s objectives have remained the same throughout the case:
parenting class, mental health treatment, employment, and
housing. Various referrals were made for Mother to ARC for
parenting classes, however, on 5/12/21, Mother told [Ms. Vargas-
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Febles] she was attending parenting classes at Turning Points for
Children. Mother did not provide documentation of her enrollment
and has yet to provide documentation of the completion of
parenting classes and that remains as an outstanding objective
for Mother. Regarding counseling and mental health, Mother was
referred to BHS and had an evaluation and intake appointment at
JFK for behavioral health, but the agency only had a record of
Mother attending in April of 2021. Since that time, Ms. Vargas-
Febles testified no other information has been provided by Mother
regarding participation in mental health and counseling.
Therefore, that is also an outstanding objective.
Regarding employment, Ms. Vargas-Febles testified she has not
received a verification or pay stub to show that Mother was
employed. Regarding housing, before Mother was arrested, [Ms.
Vargas-Pebles] visited her at the Shelter at 413 Master Street,
Philadelphia, PA. On 10/28/21 Mother disclosed that she now lives
at 1418 Church Street, Philadelphia PA 19124. Ms. Vargas-Febles
noted that she attempted pop-up visit at that address, however,
she was not successful. At the present time, Mother has not
complied with any SCP objectives.
TCO at 11-12 (citations to notes of testimony omitted).
Of particular concern to the trial court was the fact, as testified to by
Ms. Vargas-Febles, that Mother has never taken responsibility for Child’s
injuries and her role in the incident that resulted in his removal from her care.
TCO at 12. As previously stated, Mother initially reported to DHS and to the
healthcare workers at St. Christopher’s Hospital that Child had fallen off a
futon; later, she averred that an ironing board hit Child in the head. As
indicated by Dr. Norelle Kristin Atkinson, in the Child Protection Team
Consultation Report (“Consultation Report”), the minor injury history provided
by Mother would not account for Child’s widespread subdural bleeding and
retinal hemorrhages. Consultation Report at 9. Dr. Atkinson further noted
that bruising to Child’s left eye, which Mother explained, first, as having been
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caused by Child scratching himself, and later, as having been caused by Child
hitting himself in the eye with a toy, could not have been caused a Child of his
age and developmental ability. Id. at 10. Also concerning to Dr. Atkinson
were hypopigmented scars to Child’s lower extremities that were patterned,
or linear and which, in her opinion, could not have resulted from Child’s actions
to himself. Id. Ms. Vargas-Febles stated that given Mother’s continuing
inability to take responsibility for Child’s injuries coupled with her non-
compliance with SCP objectives, she did not believe that Child would be safe
in Mother’s care. N.T. at 17. We can discern no basis in the record to disturb
the trial court’s determination that the conditions which led to Child’s removal
continue to exist and that termination of Mother’s parental rights best serve
his needs and welfare. Ms. Vargas-Febles testified that Child looks to his
kinship provider, whom Child calls “mommy,” for love, support, and care. Id.
at 20, 23, 37.
Mother testified at the hearing, asserting that she did want to have her
parental rights terminated; she further stated, however, that “I know in my
heart [Child] is used to [his kinship care provider], and I don’t want to mess
that up” and that if Child is “best being raised by [his kinship care provider]”
she will “openly and willingly allow her to adopt [Child].” Id. at 37-38. We
conclude that the trial court properly found that the termination of Mother’s
parental rights best served Child’s needs and welfare pursuant to Section
2511(a)(5). Accordingly, our review confirms that an appeal challenging the
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trial court’s ruling under Section 2511(a)(5) lacks any basis in the facts or law
and would, therefore, be frivolous.
We next consider whether the termination was proper under Section
2511(b), which 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). As we
have explained, “Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any, between parent
and child is a factor to be considered” as part of our analysis. In re K.K.R.-
S., 958 A.2d 529, 533 (Pa. Super. 2008).
In addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted).
In its opinion, the trial court acknowledged that it had carefully
examined both the tangible and intangible dimension of the needs and welfare
of Child. TCO at 15. The trial court determined that it had adequate evidence
of the status of the parent-child bond to determine whether Mother’s parental
rights would destroy a necessary and beneficial relationship, and concluded
that there was no such necessary and beneficial relationship. Id. The CUA
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caseworker testified that Child is happy and thriving in foster care, and
developmentally on track. N.T. at 19. Ms. Vargas-Febles stated that Mother
did not make efforts to have any type of relationship with Child or to be
involved in his life; she allowed that notwithstanding the fact that Mother was
subject to a stay-away order and could not visit Child, she never called her to
ask how he was doing or sent cards or gifts, even after she was no longer
incarcerated. Id. at 18. We find no abuse of discretion in the trial court’s
decision, and agree with Mother’s counsel that a challenge to the sufficiency
of evidence to support its decision to terminate Mother’s parental rights
pursuant to subsections 2511(a) and (b) is frivolous.
Finally, Mother appeals the order changing Child’s placement goal from
reunification to adoption. We review decisions changing a placement goal for
an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). In
making such a goal change, the trial court must determine the matters set
forth at 42 Pa.C.S. § 6351(f) of the Juvenile Act, including the
appropriateness, feasibility, and likelihood of attaining the current goal, the
parent’s progress toward alleviating the circumstances that necessitated the
original placement, and the child’s safety. In re S.B., 943 A.2d 973, 978 (Pa.
Super. 2008). The best interests of the child, and not the interests of the
parent, must guide the trial court. In re A.B., 19 A.3d 1084, 1088-89 (Pa.
Super. 2011). Here, the trial court ably set forth its rationale for the goal
change:
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Adoption has been clearly established as the appropriate goal in
the best interest of this Child. This Court heard credible,
persuasive testimony that [Child], who is eighteen months old, is
bonded to his pre-adoptive caregiver, [], and that it would be in
his best interest to be adopted. The Court finds the record
sustains the factual findings and legal conclusions regarding the
Child’s current placement, Mother’s lack of compliance, and lack
of willingness to gain the skills to be a responsible parent for this
Child. Most importantly, this Court must act to fulfill [Child’s] right
to have proper parenting and fulfillment of his potential in a
permanent, healthy, safe environment. Here the totality of the
evidence supports this [c]ourt’s conclusion that termination of
Mother’s parental rights and a goal of adoption is in [Child’s] best
interests.
TCO at 16. We find no non-frivolous issues to support Mother’s appeal from
the order changing Child’s placement goal from reunification to adoption and
discern no abuse of discretion.
As our independent review of the record reveals no non-frivolous issues,
we affirm the decree terminating Mother’s parental rights and the order
changing Child’s permanency goal from reunification to adoption, and grant
counsel’s petition to withdraw.
Decree affirmed. Goal change order affirmed. Petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2022
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