In the Interest of: A.H., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.H. :
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: No. 1601 MDA 2017
Appeal from the Order Entered September 20, 2017
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000144-2015
IN THE INTEREST OF: K.H., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.H. :
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: No. 1602 MDA 2017
Appeal from the Order Entered September 20, 2017
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000146-2015
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 04, 2018
Appellant K.H. (“Father”) appeals from the orders terminating the
dependency of two of his biological children, A.H. and K.H., Jr. (“K.H.”)
(together, “the Children”), and placing them with a relative. Father’s counsel
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* Retired Senior Judge assigned to the Superior Court.
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has filed an Application for Leave to Withdraw and an Anders1 brief, stating
that the appeal is wholly frivolous. We affirm the orders of the trial court and
grant counsel leave to withdraw.
The underlying facts are as follows:
The Children and another minor sibling were adjudicated
dependent on August 6, 2015. Mother and Children had been
living with Maternal Grandmother until Mother suffered a
catastrophic medical episode which rendered her permanently
incapacitated. The Children remained with Maternal Grandmother
after Mother was placed in a long-term care facility. They were
living with her at the time of the referral and adjudication. Father
was not a caregiver at the time of adjudication, nor did he have
adequate housing. His involvement in the Children’s lives had
been sporadic up until the summer of 2015.
[Cumberland County Children and Youth Services (“CYS”)]
was referred to the family following an incident in which a family
friend was charged for hitting the [C]hildren with a belt. A criminal
investigation concerning an older sibling’s sexual abuse of K.H.
was also launched during that time. [CYS] became concerned
about unsanitary conditions in the home and Maternal
Grandmother’s ability to supervise the [C]hildren. She was having
difficulty caring for the three children due to her age. Paternal
Aunt moved into the home to help Maternal Grandmother with the
caregiving and was temporarily given physical and legal custody
of all three children. She left the home on December 31, 2015,
and Maternal Grandmother was again given physical and legal
custody of the three children. On July 17, 2016, Maternal Cousin
moved into the home in order to help Maternal Grandmother with
the caregiving. She left within a month and [CYS] began to look
for foster homes.
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1 Anders v. California, 386 U.S. 738 (1967); see also In re J.D.H., 171
A.3d 903, 906 (Pa.Super. 2017) (holding “the Anders procedure should also
apply in appeals from goal change orders” as “[p]arents have a right to
counsel at every stage of a dependency proceeding”).
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On November 28, 2016, K.H. and another sibling were
accepted into the Milton Hershey School, which required them to
reside there. Maternal Grandmother retained legal custody of the
children. On January 15, 2017, A.H. was placed in the physical
and legal custody of Paternal Aunt.[2] Paternal Aunt stated that
she was willing to be a permanent resource for the Children. On
April 5, 2017, physical and legal custody of K.H. was also placed
with Paternal Aunt.[3] Despite more than two years of Agency
involvement, Father remained unable to care for the Children.
Trial Court Opinion, filed Nov. 29, 2017, at 1-2. Father did not appeal the
initial adjudication of dependency in 2015 or any of the subsequent placement
or custody decisions.
The court held a routine permanency review hearing4 on September 20,
2017, after the Children had been dependent for 25 months. Prior to the
hearing, CYS requested that the permanency goal for the Children be changed
to placement with a “fit and willing relative,” that the Children remain in the
physical and legal custody of Paternal Aunt, and that dependency be
terminated. See Petition for Permanency Hearing and Dispositional Review
Hearing, filed 8/24/17, at 1 (unpaginated). The permanency goal for the
Children until that point had been to “return to parent or guardian.” See
Permanency Review Order, 4/5/17, at 3.
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2 Father retained shared legal custody of A.H.
3 Father retained shared legal custody of K.H.
4 See 42 Pa.C.S.A. § 6351(e) (unless aggravated circumstances exist or are
alleged, the court shall conduct permanency review hearings for dependent
children at least once every six months until child is returned to his or her
parent, guardian, or custodian, or removed from the jurisdiction of the court);
see also Pa.R.J.C.P. 1608.
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At the hearing, the court heard testimony from Gan Fry, the CYS
caseworker assigned to the Children’s case. Fry testified that Father has
repeatedly stated that he does not have adequate housing for the Children,
and has refused to provide an address to CYS. See N.T., 9/20/17, at 10-11.
Father had been visiting with the Children, but not as often as he had
previously. Id. at 4-5, 12. During one of Father’s visits with the Children at
Paternal Aunt’s home, Paternal Aunt and Father got in a heated argument and
Paternal Aunt called the police; Father left before the police arrived. Id. at 9.
However, Fry testified that Paternal Aunt “is open to the [Children] having
continued contact with [Father].” Id. at 14. Fry requested that Paternal Aunt
be given sole legal custody of the Children. Id. at 7. This was because Father
had removed Maternal Grandmother from K.H.’s visitation list at school,
something he would not be able to do if he did not share legal custody. Id. at
8.
Chris Rich, a social worker at the Milton Hershey School, also testified.
He stated that Father is on the school’s visitation list for the Children, and
Father is therefore able to visit the Children at the school during weekends or
take the Children home during several long weekends throughout the school
year. Id. at 19-21.
Father testified that he would not provide CYS with his address because
there is no need for a home visit from CYS, as Father has no extra bedroom
in which to house the Children. Id. at 23. Father stated that he complied with
the court’s previous order that he take a drug test, but that he had not
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attended parenting classes due to a scheduling conflict. Id. at 26. Father
testified that he is no longer welcome to visit the Children at Paternal Aunt’s
home due to the disagreement they had, but that he has since visited with
the Children at a public location with a bowling alley and laser tag arena. Id.
at 16. According to Father, he removed Maternal Grandmother from K.H.’s
school visitation list because she had failed at protecting the Children while
they were in her care. Id. at 27.
The Guardian ad litem for the Children was also present at the hearing,
and stated that she agreed with the recommendations of CYS to give Paternal
Aunt sole legal custody. Id. at 29.
Paternal Aunt did not formally testify,5 but the court asked her if she
was willing to “work out the visitation with [Father],” and she responded that
Father could retrieve the Children for a visit “whenever he wants to.” Id. at
31. She told the court,
Never would I ever try to stop him from getting the kids, nor would
I ever say, you know, well, if I have custody of the kids, you can’t
have the kids back. No. My plan has never changed. It’s just like
I told Gan [Fry]. My plans are to keep the kids until he gets a place
for them to live.
Id.
At the conclusion of the testimony, Father’s court-appointed counsel
objected to the goal change and termination of dependency. Counsel argued
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5 See 42 Pa.C.S.A. § 6336 (hearings under the Juvenile Act shall be conducted
in an informal manner).
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briefly that if the court granted sole legal custody to Paternal Aunt, such an
order would be a punitive measure against Father and a way to referee the
adult relationships rather than an effort to advance the best interests of the
Children. Id. at 32.
Following the hearing, the court entered separate orders for A.H. and
K.H., changing the placement goal to “placement with a fit and willing
relative,” Paternal Aunt, and entered orders terminating the dependency and
court supervision of the Children. See Permanency Review Order (A.H.),
9/25/17, at 1-3; Permanency Review Order (K.H.), 9/25/17, at 1-3; Order for
Termination of Court Supervision (A.H.), 9/25/17, at 1; Order for Termination
of Court Supervision (K.H.), 9/25/17, at 1. The court found that, regarding
Father’s compliance with the prior permanency plan, Father had been
minimally compliant, “in that [Father] has only taken minimal steps towards
locating housing to accommodate his children. [Father] has not cooperated
with the Agency’s request to conduct a home visit and [Father] has not
participated in individual mental health counseling.” Permanency Review
Order (A.H.), at 1; Permanency Review Order (K.H.), at 1. The court stated
that it would “encourage dad to visit more often with the [C]hildren,” and
“[Father] shall remain on the visitation list for [K.H.] . . . at Milton Hershey
absent further Order of Court.” Permanency Review Order (A.H.), at Additional
Findings of Fact; Permanency Review Order (K.H.), at Additional Findings of
Fact.
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At Father’s request, Father’s counsel filed a Notice of Appeal.6 As noted
above, counsel thereafter filed an Anders brief with this Court and an
Application for Leave to Withdraw.
Before assessing the merits of Father’s appeal, we must first examine
counsel’s request to withdraw. See Commonwealth v. Orellana, 86 A.3d
877, 879 (Pa.Super. 2014). Counsel who wishes to withdraw must both file
Anders brief in this Court and provide a copy of that brief to the client. Id. at
880. The brief 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. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Counsel must also send a letter “that advises the client of his right to: ‘(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
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6 “An order granting a goal change pursuant to the Juvenile Act, 42 Pa.C.S.A.
§§ 6301-6365, is final and appealable.” In re C.J.R., 782 A.2d 568, 569
(Pa.Super. 2001) (citation omitted).
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addition to the points raised by counsel in the Anders brief.’” Id. (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2017)).
Following our assessment of counsel’s request to withdraw, we “must
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); see, e.g., In re X.J., 105
A.3d 1, 4-6 (Pa.Super. 2014) (denying application to withdraw where court
found, on independent review pursuant to Flowers, a meritorious issue
overlooked by counsel).
Here, counsel’s brief contains the required Anders elements. Counsel
has restated the facts of the case at reasonable length; has put forth a cogent
argument on behalf of Father’s appellate issue; has stated his belief that the
appeal is frivolous; and has duly articulated the facts and law that have led to
his conclusion that the appeal is frivolous. Orellana, 86 A.3d at 879. In
addition, counsel sent a letter to Father explaining his rights, including his
rights to raise issues with this Court pro se in support of his appeal. Id. at
880. We therefore turn to an independent review of the merits of the appeal
and the record as a whole. Flowers, 113 A.3d at 1250.
Father’s issue, as presented by counsel, is:
Did the trial court abuse its discretion and commit an error of law
when it found [Father’s] minor [Children] to be no longer
dependent, placed the [Children] in the legal and physical custody
of a fit and willing relative, and terminated court supervision over
the [Children], thereby subjecting [Father] to a de facto
involuntary termination of his parental rights, which contravened
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sections 2511-2521 of the Adoption Act, 23 Pa.C.S. §§ 2511-
2521?
Anders Br. at 4. Appointed counsel elucidates that, according to Father,
because the trial court did not give due regard to the mutual hostility between
Father and Paternal Aunt, the court “effectively empowered [P]aternal [A]unt
to exercise unrestricted control over [F]ather’s access to [the Children].”
Anders Br. at 7-9. Father maintains that this amounted to a de facto
termination of Father’s parental rights without meeting the requirements for
termination of parental rights under the Adoption Act, and it deprives Father
of his constitutional right to the care and custody of his children. Id. Moreover,
Father contends that the court’s termination of dependency leaves Father
without legal recourse in the Juvenile Act, should Paternal Aunt prevent him
from seeing his Children. Id. Father has not submitted, pro se, any additional
arguments to buttress his issue as presented by counsel.
In its Rule 1925(a) Opinion, the trial court explained that it placed
Children with Parental Aunt because Father was “unwilling, unready, and
unable” to provide a home for the children, whereas a placement with Parental
Aunt would foster “the care, protection, and wholesome mental and physical
development” of the Children in a “family environment,” in accordance with
the purpose of the Juvenile Act. Id. Trial Ct. Op. at 3-4 (citing 42 Pa.C.S. §
6301(b); In Re M.L., 757 A.2d 849, 851 (Pa. 2000)). The court also
expressed that because a fit and willing relative was “ably providing parental
care and control, and Agency services were no longer needed, the Children by
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statutory definition were no longer dependent.” Id. at 4. The court also
concluded that terminating court supervision would be best for the Children
because doing so would allow the Children to prosper “without the interruption
of court appearances and government oversight.” Id. The court explained that
it gave Paternal Aunt sole legal and physical custody because Father “has
demonstrated alienating behaviors that could compromise the integrity of his
children’s relationship with their family members,” citing, as an example, that
Father “removed Maternal Grandmother from the visitation list at K.H.’s school
out of personal spite.” Id. at 4 n.9. The court noted that “Father may revisit
the issue of custody at a later time, outside of dependency court.” Id.
We review an order granting a goal change under the Juvenile Act for
an abuse of discretion. See In re C.J.R., 782 A.2d at 569. “When reviewing
such a decision we are bound by the facts as found by the trial court unless
they are not supported in the record.” Id. (citations omitted).
The Juvenile Act, in pertinent part, defines a dependent child as one who
is “without proper parental care or control” or who is “without a parent,
guardian, or legal custodian.” See 42 Pa.C.S.A. § 6302. After a child has been
adjudicated dependent under this definition, the court may enter an order
transferring permanent legal custody to a relative who “is found by the court
to be qualified to receive and care for the child.” Id. at § 6351(a)(2.1). In
considering a permanent placement for the child, the court may determine
that the child shall be placed with a “fit and willing relative in cases where
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return to the child’s parent, guardian or custodian, being placed for adoption
or being placed with a legal custodian is not best suited to the safety,
protection and physical, mental and moral welfare of the child.” Id. at §
6351(f.1)(4); see also In re K.J., 27 A.3d 236, 242 (Pa.Super. 2011) (“If
the court decides that neither reunification, adoption, or placement with a
legal guardian is appropriate, the court may place the child with a fit and
willing relative”). The best-interests standard controls the court’s decision.
See In re C.J.R., 782 A.2d at 569 (“[I]n a change of goal proceeding, the
trial court must focus on the child and determine the goal in accordance with
the child’s best interests and not those of his or her parents”). The court may
terminate dependency when “the child has been placed in the physical and
legal custody of a fit and willing relative and services from the county agency
are no longer needed[.]” Pa.R.J.C.P. 1631(A)(6), (F).
Here, the court amended the placement goal to placing the Children with
Paternal Aunt (who already had physical and shared legal custody of the
children), as the court found she was a fit and willing relative — an assessment
which Father does not dispute. See Anders Br. at 8. Due to their placement
with Paternal Aunt, and the court’s finding that court-ordered services were
no longer needed, the Children ceased to fit the definition of dependent under
the Juvenile Act, and the court properly closed the case. See Pa.R.J.C.P.
1631(A)(6), (F).
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Father’s argument—that the court’s termination of dependency will
prevent him from visiting his children and therefore amounts to a de facto
termination of his parental rights—lacks a reasonable basis in the law. In In
re S.H., 71 A.3d 973, 977 (Pa.Super. 2013), we examined Section
6351(a)(2.1) of the Juvenile Act, which allows the Juvenile Court to grant
“permanent” legal custody of a dependent child to a non-parent. We noted
that if such an award of custody were not challengeable in other divisions of
the trial court after the juvenile proceedings had concluded, “that would
amount to a de facto termination of Mother's and Father's legal and primary
physical custodial rights. Our legislature could not have intended that result
because the legislature has provided a process to terminate parental rights in
separate, specific legislation.” Id. at 979 (citing 23 Pa.C.S.A. § 2511).
Instead, the less stringent and less “permanent” award of custody under
the Juvenile Act “preserve[s] a parent’s right to seek primary custody if it
serve[s] the best interests of the child.” Id. at 980. We explained that the
Child Custody Act “specifies that, without limitation, a parent of a child may
file an action ‘for any form of physical custody or legal custody.’” Id. (quoting
23 Pa.C.S.A. § 5324). The Act also provides that “‘any custody order entered
by a court of this Commonwealth’ may be modified if it serves the ‘best
interests of the child.’” Id. (quoting 23 Pa.C.S.A. § 5338). We concluded,
“Clearly, our legislature did not exclude from parents the right to petition to
modify a custody order entered in a dependency proceeding.” Id. In addition
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to the foregoing, we note that Section 6351(a)(2.1) states that “[t]he court
shall refer issues related to support and continuing visitation by the parent to
the section of the court of common pleas that regularly determines
support and visitation.” 42 Pa.C.S.A. § 6351(a)(2.1) (emphasis added).
Here, while Paternal Aunt currently has full custody of the Children,
Father’s parental rights have not been affected. See S.H., 71 A.3d at 980.
There is nothing preventing Father from pursuing custody or visitation in the
appropriate division of the common pleas court under the Child Custody Act.
See 23 Pa.C.S.A. § 5321-5340; see also Pa.R.C.P. 1915.1 et seq (“Actions
for Custody, Partial Custody and Visitation of Minor Children”). In fact,
Paternal Aunt stated that she would not prevent off-site visitation with Father,
or challenge Father should he ever seek full physical custody of the Children.
The trial court, likewise, encouraged Father to engage more frequently with
the Children. Given these circumstances, we agree with counsel’s assessment
that Father’s issue is frivolous.
In sum, we conclude that Father has presented no non-frivolous issues
for which relief is due. In addition, we have reviewed the certified record
consistent with Flowers, 113 A.3d at 1250, and have discovered no additional
arguably meritorious issues. We therefore grant counsel's Application for
Leave to Withdraw and affirm the orders of the trial court.
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Orders affirmed.
Judge Platt joins the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2018
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