In the Interest of: C.M.Z., Jr.,a Minor ( 2016 )

J-S74001-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.M.Z., JR., : IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: C.M.Z., FATHER
: No. 1594 EDA 2016
Appeal from the Decree Entered May 5, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP- 51 -AP- 0000347 -2016,
FID: 51 -FN- 004123 -2013
IN THE INTEREST OF: C.L.Z., A : IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: C.M.Z., FATHER
: No. 1595 EDA 2016
Appeal from the Decree Entered May 5, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP- 51 -AP- 0000346 -2016,
FID: 51 -FN- 004123 -2013
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 24, 2016
Appellant, C.M.Z. ( "Father "), files these consolidated appeals from the
decrees entered May 5, 2016, in the Philadelphia County Court of Common
* Former Justice specially assigned to the Superior Court.
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Pleas, by the Honorable Jonathan Q. Irvine, granting the petition of the
Department of Human Services ( "DHS ") and involuntarily terminating
Father's parental rights to his minor, dependent children, C.M.Z., Jr., a male
born in September of 2005, and C.L.Z., a female born in November of 2002
(collectively, "the Children "), pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and
(b).1 Counsel for Father ( "Counsel ") has also filed a petition to withdraw her
representation. After careful review, we grant Counsel's petition to withdraw
and affirm the trial court's decrees.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
On July 22, 2013, DHS received a General Protective Services
(GPS) report alleging that there was no food in the home for two
days and the [C]hildren were accustomed to not eating often.
The report also alleged that the [Children's mother, H.N.S.
( "Mother ")], had filed a Protection from Abuse petition against
[Father]. The report was substantiated.
On July 31, 2013, In -Home Protective Services (IHPS) was
implemented by the Community Umbrella Agency (CUA).
From August 6, 2013 until September 19, 2013, CUA tried on
several occasions to visit the home. They were unsuccessful on
most attempts. CUA discovered that there were ongoing issues
with no food in the home. Furthermore, used needles were
found inside the home and yard.
On October 23, 2013, anadjudicatory hearing was held before
the Honorable Jonathan Q. Irvine. Judge Irvine adjudicated
i By separate decrees entered the same date, the trial court involuntarily
terminated the parental rights of the Children's mother, H.N.S. ( "Mother ").
Mother has not filed an appeal and is not a party to the instant appeal.
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C.M.Z. and C.L.Z. dependent and ordered DHS to supervise the
family.
On October 25, 2013, DHS received a GPS report alleging that
[M]other tested positive for cocaine and opioids and [F]ather
tested positive for cocaine, opioids and marijuana. DHS
obtained an OPC [(Order for Protective Custody)] for the
[C]hildren and they were subsequently placed in foster care.
A shelter care hearing was held on October 28, 2013 before the
Honorable Jonathan Q. Irvine. Judge Irvine lifted the OPC and
ordered the temporary commitment of the [C]hildren to the care
and custody of DHS.
Trial Court Opinion (T.C.O.), 6/16/16, at 1 -2 (unpaginated).
The trial court held permanency review hearings on February 11,
2014, May 15, 2014, September 24, 2014, December 30, 2014, April 1,
2015, August 19, 2015, and December 23, 2015. DHS Exhibits 3 and 4.
Throughout these reviews, the trial court maintained the Children's
commitment and placement and assessed their permanency goals. Id.
DHS filed petitions to terminate Father's parental rights on April 20,
2016. The trial court held a termination hearing on May 5, 2016, at which
DHS presented the testimony of the following witnesses: Teanna Brown,
CUA case aide; Shantel Dowdell, CUA case supervisor; and Tisha Morales,
CUA social worker. Additionally, Father testified on his own behalf. By
decrees entered May 5, 2016, the trial court involuntarily terminated the
parental rights of Father pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b).2
2 Upon review, it appears the trial court additionally entered separate orders
changing the Children's permanency goal to adoption. N.T. at 44. As Father
does not appeal these orders, any such claims related thereto are not
(Footnote Continued Next Page)
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On May 20, 2016, Father, through appointed counsel, filed notices of
appeal, which this Court consolidated sua sponte on June 13, 2016. Father's
Counsel did not file concise statements of errors complained of on appeal as
required by Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(a)(2)(i), but instead
contemporaneously filed statements pursuant to Pa.R.A.P. 1925(c)(4),
noting that there are no non -frivolous issues to be raised on appeal and
indicating her intent to file a petition and brief pursuant to Anders v.
California, 386 U.S. 738 (1967). See Pa.R.A.P. 1925(c)(4) (counsel for
criminal defendants may file of record and serve on the judge a statement of
intent to file an Anders brief in lieu of filing a statement under Rule
1925(b)); see also Interest of 1.T., 983 A.2d 771 (Pa. Super. 2009)
(holding that the Anders procedure set forth in Rule 1925(c)(4) is proper in
a termination of parental rights case).3 Counsel filed an Anders brief on
July 20, 2016, and a petition to withdraw on July 26, 2016.
When counsel files an Anders brief, this Court may not review the
merits of the appeal without first addressing counsel's request to withdraw.
In re S.M.B., A.M.B., & G.G.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).
(Footnote Continued)
preserved. Pa.R.A.P. 903(a) (a notice of appeal shall be filed within thirty
days after the entry of the order from which the appeal is taken).
3 By order dated June 13, 2016, this Court directed Counsel to file
statements of errors complained of on appeal by June 23, 2016. In
response, on June 17, 2016, counsel submitted correspondence referencing
her contemporaneously filed statements pursuant to Pa.R.A.P. 1925(c).
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In In re V.E. & 1.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. Counsel appointed to represent an indigent parent on a first
appeal from a decree involuntarily terminating parental rights may therefore
petition this Court for leave to withdraw representation and submit an
Anders brief. In re S.M.B., A.M.B., & G.G.B., 856 A.2d at 1237. To
withdraw, 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.
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)).
We further review Counsel's Anders brief for compliance with the
requirements set forth in Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (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.
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Id. at 178 -79, 978 A.2d at 361. "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)).
Counsel has satisfied the first requirement of Anders by filing a
motion to withdraw, wherein she asserts that she has made a conscientious
review of the record and determined the appeal would be frivolous.
Likewise, Counsel has satisfied the second requirement by filing an Anders
brief that complies with the requirements set forth in Santiago, supra.
With respect to the third requirement, Counsel has attached to the motion to
withdraw a copy of the letter sent to Father advising him of his rights, and
enclosing a copy of the Anders brief. Hence, we conclude that Counsel has
complied with the procedural Anders requirements and proceed to a review
of the merits.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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., 616 Pa. 309, 47 A.3d
817, 826 (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. "[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill- will."
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Id. The trial court's decision, however, should not be reversed
merely because the record would support a different result. Id.
at 827. We have previously emphasized our deference to trial
courts that often have first -hand observations of the parties
spanning multiple hearings. See In re R.J.T., [608 Pa. 9, 27, 9
A.3d 1179, 1190 (2010)].
In re T.S.M., T.R.M., T.J.M., T.A.M., & N.D.M., 620 Pa. 602, 71 A.3d 251,
267 (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. & J.G., 855 A.2d 68, 73-
74 (Pa. Super. 2004) (citation omitted). "[I]f competent evidence supports
the trial court's findings, we will affirm even if the record could also support
the opposite result." In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.
Super. 2003) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101 -2938, controls
the termination of parental rights, and requires a bifurcated analysis, as
follows:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. 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).
Only if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court engage 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. 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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which 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." In
re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc).
In the case sub judice, the trial court terminated Father's parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (2), as well as (b). We have
long held that, in order to affirm a termination of parental rights, we need
only agree with the trial court as to any one subsection of Section 2511(a),
well as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court's termination order pursuant
to subsections 2511(a)(2) and (b), which provide as follows:
(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:
* **
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his 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.
* **
(b) Other considerations. --The court terminating the rights
in
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,
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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. § 2511(a)(2), (b).
We first examine the court's termination of Father's parental rights
under Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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 remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). "The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties." In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa. Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002)).
The record supports the trial court's finding of grounds for termination
of Father's parental rights under Section 2511(a)(2). Father did not attempt
to meet his single case plan objectives to seek mental health treatment,
drug and alcohol treatment/screening, parenting classes, and visitation with
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the Children. N.T. at 21, 24 -25, 29 -30. Father admitted missing three
months of mental health treatment, which resulted in his case being closed.
Since re- enrollment in January 2016, he has been "noncompliant," missing
"a few weeks here or there." Id. at 36 -37. Despite Father's assertion that
he was currently attending drug and alcohol treatment and had completed
parenting classes, he provided no documentation to DHS. Id. at 21, 24 -25,
30, 35, 37 -38. With regard to missed drug screenings, Father explained
that he was "busy" and "life caught up to him." Id. at 36.4
Moreover, documentation from ARC ( "Achieving Reunification Center ")
noted Father's case was closed in January 2014 as Father's "attempt[s] to
address everything were unsuccessful." Id. at 24 -25, 30. Shantel Dowdell,
case supervisor, believed ARC's statement means "[Father] did not attend as
he should have been." Id. at 24 -25. Further, Father has not visited the
Children since October 29, 2015. Id. at 9. Lastly, Father expressed his
desire for the Children to remain with Foster Mother, acknowledging she can
provide more for the Children than he can. Id. at 38.
Hence, the record substantiates the conclusion that Father's repeated
and continued incapacity, abuse, neglect, or refusal has caused the Children
to be without essential parental control or subsistence necessary for their
4 We note that Shantel Dowdell, CUA case supervisor, could not testify as to
whether Father was ever actually called for screenings subsequent to the
two that were completed. Id. at 29, 36.
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physical and mental well- being. See In re Adoption of M.E.P., 825 A.2d
at 1272. Moreover, Father cannot or will not remedy this situation. See id.Thus, we find the trial court had sufficient grounds for termination of
Father's parental rights under Section 2511(a)(2). As noted above, in order
to affirm a termination of parental rights, we need only agree with the trial
court as to any one subsection of Section 2511(a). In re B.L.W., 843 A.2d
at 384.
We next determine whether termination was proper under Section
2511(b). With regard to Section 2511(b), our Supreme Court has stated as
follows:
[I]fthe grounds for termination under subsection (a) are met, a
court "shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child." 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include "[i]ntangibles such as
love, comfort, security, and stability." In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M. [a /k/a E.W.C. & L.M.
a /k/a L.C., Jr.], [533 Pa. 115, 122 -23, 620 A.2d 481, 485
(1993)], this Court held that the determination of the child's
"needs and welfare" requires consideration of the emotional
bonds between the parent and child. The "utmost attention"
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791. However, as discussed below, evaluation of a child's bonds
is not always an easy task.
In re T.S.M., 71 A.3d at 267. "[I]n cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond -effect analysis necessarily
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depends on the circumstances of the particular case." In re Adoption of
1.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citations omitted).
When evaluating a parental bond, "the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted).
In the instant matter, the trial court found that termination was proper
under Section 2511(b), explaining as follows:
In the instant matter, the children look to the foster mother for
love, care and support. The foster mother provides the children
with their day to day needs. Additionally, she meets all of their
medical and academic needs. The children do not look to the
father for love, care and support. The children do not want to
visit with the father. Furthermore, the children want to be
adopted by the foster mother. Moreover, the testimony
indicated that the children would not suffer permanent emotional
harm if the father's parental rights were terminated. Lastly, the
social workers testified that it would be in the best interest of the
children if the father's parental rights were terminated and the
children's goal changed to adoption.
T.C.O. at 5 (citations to record omitted).
The record likewise corroborates the trial court's termination order
pursuant to Section 2511(b). As referenced above, Father has not visited
with the Children since October 29, 2015. Teanna Brown, who supervised
the visitation between Father and the Children, indicated that the Children
did not enjoy visitation with Father. N.T. at 9. When asked to explain this
conclusion, Ms. Brown indicated, "[C.L.Z.] usually would get upset during
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visits. Sometimes we had to go out and talk to her about even coming in for
the visits. . . . C.L.Z. usually didn't want to visit." Id. at 13. In addition,
one or both children sought to end visits early. Id. at 14. Although C.L.Z.
"would like to reach out to [Father]" when she gets older, both Children
have indicated that they do not want to see Father. Id. at 9, 16, 23.
Therefore, both Ms. Brown and Ms. Dowdell opined that the Children would
not suffer permanent emotional harm and /or damage if Father's parental
rights were terminated. Id. at 12 -13, 24. They both further expressed that
it would be in the Children's best interests for Father's rights to be
terminated. Id.
Moreover, the Children are in a pre- adoptive home with Foster Mother,
whom they "look to for love, care and support" and "to take care of their
everyday needs," as opposed to Father. Id. at 9 -10, 14. Moreover, and
more significantly, the Children want to be adopted by and remain with
Foster Mother. Id. at 16, 25 -26. Thus, as confirmed by the record, the
emotional needs and welfare of the Children favor termination. Accordingly,
based upon our review of the record, we find no abuse of discretion and
conclude that the trial court appropriately terminated Father's parental rights
under Sections 2511(a)(2) and (b).
Based on the foregoing independent analysis of the trial court's
termination of Father's parental rights, we agree with Counsel for Father that
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the within appeal is wholly frivolous.5 As such, we affirm the decrees of the
trial court and grant Counsel's petition to withdraw.
Decrees affirmed. Petition to withdraw granted.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 10/24/2016
5 Further, we note that our independent review of the record did not reveal
any additional, non -frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(citing Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (en
banc)) .
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