In the Int. of: C.J.M., a Minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.J.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.R., MOTHER :
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: No. 936 EDA 2021
Appeal from the Order Entered April 14, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000661-2019
IN THE INTEREST OF: C.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.R., MOTHER :
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: No. 937 EDA 2021
Appeal from the Decree Entered April 14, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000158-2021
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 21, 2021
L.R. (“Mother”) appeals from the decree and order1 entered April 14,
2020, which terminated her parental rights as to her three-year-old son,
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1 Although Mother filed separate notices of appeal on the termination and
adoption dockets, her brief does not raise any challenges to the goal change
order.
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C.J.M. (“Child”).2 Mother’s counsel has filed an Anders3 brief and motion to
withdraw as counsel. Upon review, we grant counsel’s motion to withdraw and
affirm the decree and order.
Child was born in June 2018 and was two years old at the time of the
termination hearing. N.T., 4/14/21, at 4. When Child was 10 months old, then-
17-year-old Mother came to the Department of Human Services of
Philadelphia (“DHS”) and requested placement for herself and Child because
she was overwhelmed, in mental distress, and feared that she might harm
Child. Id. at 10. DHS received an order of protective custody (“OPC”) and
placed Child in a foster home. Child was adjudicated dependent on May 15,
2019. See Order of Adjudication, 5/15/19, at 1.
DHS filed a petition for involuntary termination on March 22, 2021. The
court held a hearing on the petition in April 2021; Mother appeared and
testified on her own behalf, although ultimately, the court found that her
testimony was contradictory. N.T., 4/14/21, at 103. DHS presented the
testimony of Janel McDowell, the social worker assigned to Mother’s case, and
S.F. (“Foster Mother”).
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2 At the termination hearing, the DHS caseworker assigned to the matter
indicated that Mother knew the identity of Child’s father but refused to disclose
it to DHS or the court. N.T., 4/14/21, at 29. The court terminated the parental
rights to any unknown or putative father and no one claiming to be Child’s
father has filed an appeal in the instant matter.
3 See Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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McDowell testified that Mother’s objectives were to maintain contact
with the community umbrella association (“CUA”); participate in intellectual
disability services (“IDS”); participate in domestic violence counseling;
participate in mental health treatment; participate in Achieving Reunification
Center (“ARC”) services for parenting, housing, and employment; maintain
stable housing and employment; provide proof of income; participate in
visitation with Child; participate in “family school.” N.T. 4/14/21, at 11-12.
Mother called McDowell only once between August 2020 and January 2021.
Id. at 12-13. After January 2021, Mother was in more consistent contact. Id.
at 13.
McDowell testified that Mother did not provide a residential address or
schedule visits with Child. Id. Nor did Mother believe she needed IDS services
and accordingly, refused to engage. McDowell had ongoing concerns with
Mother’s cognitive limitations and ability to care for Child. Id. at 14-15. Mother
initially declined domestic violence services and, while she did schedule an
appointment, it was not until the Tuesday before the termination hearing. Id.
at 17-18. Mother had completed mental health services in 2017, prior to
Child’s entrance into care, but has not completed any mental health services
since 2017. Id. at 20. Mother did complete parenting classes through ARC in
November 2019, but did not complete housing or employment services, and
did not have stable housing or employment at the time of the termination
hearing. Id. at 21, 28. Mother did not complete her Family School intake until
the day of the hearing. Id. at 26.
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Although Mother was ordered to attend weekly supervised visits with
Child, McDowell testified that she attended one visitation between May and
December 2019. Id. at 26. Mother participated in six virtual visits with Foster
Mother in 2020 but did not complete any agency or virtual visit in 2021. Id.
at 27. Mother arrived 45 minutes late for her sole in-person visit with Child,
and stayed for only 15 minutes. Id. at 34. McDowell testified she did not
believe there was a parental bond between Mother and Child and Child would
not suffer irreparable harm if separated from Mother. Id. at 30.
Foster Mother testified that Mother and Child had six or seven virtual
visits because Mother would call at times Child was already asleep, despite
being told the appropriate times to call. Id. at 83-84. Child refers to Foster
Mother as “Mom,” and at the last in-person interaction with Mother, Child did
not recognize her. Id. at 85.
At the end of the hearing, the trial court granted the termination petition
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), and (b). This timely appeal
followed.
Counsel’s Anders brief identifies one issue:
Did the trial court commit an error of law and abuse of
discretion by involuntarily termination [Mother’s] parental
rights?
Mother’s Br. at 2.
Before reviewing the merits of this appeal, we must first determine
whether counsel has met the procedural requirements for withdrawing as
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counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (stating that “[w]hen faced with a purported Anders brief,
this Court may not review the merits of any possible underlying issues without
first examining counsel’s request to withdraw”).
In order to withdraw pursuant to Anders, counsel must: 1) petition the
court for leave to withdraw stating that, after a conscientious examination of
the record, counsel has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the client; and 3) advise the client that he or she
has the right to retain other counsel or proceed pro se. Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc). The Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel
meets all of the above obligations, “it then becomes the responsibility of the
reviewing court to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id. at 355, n.5 (quoting Commonwealth v. McClendon, 434 A.2d
1185, 1187 (Pa. 1981)).
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Instantly, we find that counsel has complied with all of the above
technical requirements. In her Anders brief, counsel has provided a summary
of the procedural and factual history of the case with citations to the record.
Further, counsel’s brief identifies two issues that could arguably support the
appeal, and offers counsel’s assessment of why the appeal is frivolous, with
citations to the record. Counsel served Mother with a copy of the Anders brief
and advised her of her right to proceed pro se or to retain a private attorney
to raise any additional points she deemed worthy of this Court’s review.
Response to Order, 9/28/21, at 1. Mother has not responded to counsel’s
motion to withdraw. As counsel has met the technical requirements of Anders
and Santiago, we will proceed to the issues counsel has identified.
The first issue noted in counsel’s Anders brief relates to the
effectiveness of counsel. Where an ineffective assistance of counsel claim is
made in a termination of parental rights proceeding, this Court must
determine:
whether on the whole, the parties received a fair hearing,
the proof supports the decree by the standard of clear and
convincing evidence, and upon review of counsel’s alleged
ineffectiveness, any failure of his stewardship was the cause
of a decree of termination. Mere assertion of ineffectiveness
of counsel is not the basis of a remand or rehearing, and
despite a finding of ineffectiveness on one or more aspects
of the case, if the result would unlikely have been different
despite a more perfect stewardship, the decree must stand.
In re Adoption of T.M.F., 573 A.2d 1035, 1044 (Pa.Super. 1990).
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Counsel does not identify any reason Mother might seek to raise such a
claim beyond the fact that all parents have the right to do so in termination
proceedings. Anders Br. at 9-10. An examination of the record does not
reveal any further basis to claim that counsel’s handling of the matter was the
cause of the termination decree. Id. Accordingly, any ineffectiveness claim
would be frivolous.
The final issue noted in counsel’s Anders brief relates to the sufficiency
of the evidence to meet the requirements of 23 Pa.C.S.A. § 2511(b). We
review an order involuntarily terminating parental rights for an abuse of
discretion. In re G.M.S., 193 A.3d 395, 399 (Pa.Super. 2018) (citation
omitted). In termination cases, we “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record.” In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012)). “If the factual findings have support in the record,
we then determine if the trial court committed an error of law or abuse of
discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).
We will reverse a termination order “only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of
S.P., 47 A.3d at 826.
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
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trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (internal quotation marks and citation omitted
in original).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under this
provision, the trial court must engage in a bifurcated analysis prior to
terminating parental rights. The court must first find grounds for termination
under 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.” Id. 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. Id.Here, the trial court found termination proper pursuant to subsections
2511(a)(1) and (2), as well as under Section 2511(b). With regard to Section
2511(b), counsel asserts that Mother could seek to bring a claim that there
was “inadequate evidence of record to address the impact on the children of
the severance of any bond that she shares with them.” Anders Br. at 11.
Section 2511(b) provides:
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
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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(b).
The focus under Section 2511(b) is not on the parent, but on the child.
In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.Super. 2006). Section
2511(b) requires the trial court to determine “whether termination of parental
rights would best serve the developmental, physical and emotional needs and
welfare of the child[.]” In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super.
2005). This inquiry involves assessment of “[i]ntangibles such as love,
comfort, security, and stability . . . .” Id. at 1287. The court must also examine
the parent-child bond, “with utmost attention to the effect on the child of
permanently severing that bond.” Id.However, the “mere existence of an emotional bond does not preclude
the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.
2011). Rather, the trial court must consider whether severing the bond “would
destroy an existing, necessary and beneficial relationship.” Id. (citation and
internal quotation marks omitted). The court must also examine any pre-
adoptive home and any bond between the child and the foster parents. In re
T.S.M., 71 A.3d at 268. “In cases where there is no evidence of any bond
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between the parent and child, it is reasonable to infer that no bond exists.”
In re K.Z.S. , 946 A.2d 753, 762–63 (Pa.Super. 2008).
At the termination hearing, the court observed that Mother had had at
most eight to 10 visits in total with Child. N.T., 4/14/21, at 110. There was no
evidence of any parent-child bond between Mother and Child, and that Child
instead had a parent-child bond with Foster Mother, who has been his
consistent parental figure since his placement. Id. While Child now seems to
recognize his mother, he needed to be encouraged to interact with her by
Foster Mother. Id. at 111. Thus, because there was no bond, there would be
no detrimental impact to Child if Mother’s rights were terminated. Id.
It is undisputed that Mother did not visit regularly with Child. In Mother’s
testimony, she stated only that she believed he recognized her and that
attending Family School, which she had at that time failed to do, might
improve the mother-child bond, and the caseworker testified that there was
no parental bond between Mother and Child and Child would not suffer
irreparable harm if separated from Mother. Any sufficiency challenge under
Section 2511(b) would thus lack a reasonable basis in the record.
In sum, we find that the issues raised in counsel’s Anders brief are
wholly frivolous. Further, after an independent review of the record, we
conclude that no other, non-frivolous issue exists. Therefore, we grant
counsel’s motion to withdraw. Having determined that the appeal is wholly
frivolous, we affirm the decree terminating Mother’s parental rights.
Motion to withdraw as counsel granted. Decree and order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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