In the Int. of: K.A.Z., Appeal of E.Z. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: K.A.Z., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.Z., FATHER :
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:
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: No. 877 MDA 2022
Appeal from the Order Dated May 10, 2022
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 23 AD 2022
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 16, 2022
E.Z. (“Father”) appeals from the order terminating his parental rights as
to his minor child, K.A.Z. (“Child”).1 Father’s counsel has filed an Anders2
brief and a petition to withdraw as counsel. We grant counsel’s petition to
withdraw and affirm the termination order.
Child was born in February 2019. In February 2020, Dauphin County
Social Services for Children & Youth (“Agency”) received a referral concerning
domestic violence between Mother and Father, substance abuse, and lack of
supervision of Child. N.T., 5/9/22, at 5. The Agency had previous involvement
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* Former Justice specially assigned to the Superior Court.
1 The trial court also terminated the parental rights of Child’s mother, M.E.S.,
(“Mother”) and her appeal is pending separately at No. 887 MDA 2022.
2Anders v. California, 386 U.S. 738 (1967); see also In re V.E., 611 A.2d
1267, 1275 (Pa.Super. 1992) (holding Anders protections apply to appeals
of involuntary termination of parental rights).
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with the family. Id. In July 2020, Child was adjudicated dependent and was
placed in the custody of the Agency. Id. at 6. Child has remained in the
custody of the Agency since that time. Id. Child’s current foster home is a
pre-adoptive home. Id. at 32.
In March 2022, the Agency filed petitions for involuntary termination of
Mother’s and Father’s parental rights. A hearing on the petitions was held on
May 9, 2022. Despite being served with notice of the hearing,3 neither parent
appeared at the hearing, although each was represented by counsel. Id. at 3-
4, 10. During the hearing, Mother’s counsel received a text message from
Mother stating that she had not had a phone for some time and could not get
a ride to the hearing. Id. at 8. Based on this message, Mother’s counsel asked
for a continuance. Id. The court denied the request and found that the parents
had received notice of the hearing based on the publication notice, the
caseworker’s testimony, and Mother’s own admission in her text message to
counsel. Id. at 12. However, the court agreed to keep the record open to allow
Mother and Father a second opportunity to appear the following day. Id. at
13-14. Mother and Father’s counsel notified Mother and Father that they were
ordered to appear in court the next day. N.T., 5/10/22, at 54-55. However,
neither parent appeared. Id. at 54.
At the hearing, the Agency presented the testimony of its caseworker,
Amber Torres. Torres testified that Father’s goals were to cooperate with the
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3Notice of the hearing was made by publication in the Philadelphia Inquirer
and the Dauphin County Reporter. See Termination H’rg Ex. 37.
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Agency, maintain sobriety, complete domestic violence treatment, complete a
parenting program, and complete a psychological evaluation. N.T., 5/9/22, at
27-31.
Torres testified that Father was not compliant with his goal of
cooperating with Agency. Id. at 27. She stated that Father does not contact
the Agency. Id. Rather, Father requested that all communication from the
Agency go through Mother because they were “always together.” Id. at 27,
40. Mother had recently informed the Agency that she and Father were
homeless. Id. at 24-25.
Torres testified that although Father completed a drug and alcohol
evaluation, he failed to engage in the recommended treatment. Id. at 27-28.
Torres also stated that Father was inconsistent with providing urine screens
to the Agency. Id. at 28.
Torres testified that Father failed to complete domestic violence
treatment and couples counseling. Id. at 28-29. Mother had filed three
protection from abuse complaints against Father. Id. at 29. However, they
were dismissed because Mother failed to appear at the hearings. Id.
Torres testified that although Father completed a parenting program, he
failed to complete a psychological evaluation. Id. at 30-31.
In terms of visitation with Child, Torres testified that although Mother
and Father had unsupervised visits for a short period of time, visits were
reverted to supervised in January 2022 following a referral from the
Philadelphia Department of Human Services (“DHS”) regarding allegations of
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substance abuse, domestic violence, and lack of supervision of Child. Id. at
6-7. DHS reported that the parents were found to have been fighting over a
crack pipe in front of Child. Id. at 16. The foster parent also reported concerns
regarding Child’s appearance, demeanor, and care after she returned from an
unsupervised weekend visit with the parents. Id. at 7. Mother and Father have
not visited Child since January 2022. Id. at 26.
Torres stated that although Child has a bond with Mother and Father,
she has been in care for over 19 months, and she is very happy in her foster
home. Id. at 31, 33-34. Torres said that all of Child’s needs are being met in
her foster home and the foster home is willing to provide permanency for her.
Id. at 31-33. Torres believed it was in Child’s best interest for the parental
rights to be terminated and that Child would suffer no detrimental harm. Id.
at 31.
Foster mother testified that she is willing and able to be a long-term
resource for Child. Id. at 47. She stated that Child is very loved in the home,
and Child has built a relationship with her husband and four other children.
Id. at 51. Foster mother testified that neither parent has reached out to her
to try to communicate with Child but that she would encourage contact
between the parents and Child if the parents were safe, sober, and healthy.
Id. at 47, 49.
At the conclusion of the termination hearing, the court involuntarily
terminated Mother and Father’s parental rights. This appeal followed.
Father’s counsel’s Anders brief identifies one issue:
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Did the trial court abuse its discretion, or commit an error
of law by determining it was in the [Child’s] best interest to
have Father’s parental rights terminated by clear and
convincing evidence?
Anders Br. at 4.
Before reviewing the merits of this appeal, we must first determine
whether counsel has satisfied the necessary requirements for withdrawing as
counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (“When 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”). 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 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).
Additionally, in the Anders brief, counsel seeking to withdraw 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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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)).
We find that counsel has complied with all of the above technical
requirements.4 In her Anders brief, counsel has provided a summary of the
factual history of the case with citations to the record. Further, counsel’s brief
identifies one issue that could arguably support the appeal, as well as
counsel’s assessment of why the appeal is frivolous, with citations to the
record. Additionally, counsel served Father with a copy of the Anders brief
and advised him of his right to proceed pro se or to retain a private attorney
to raise any additional points he deemed worthy of this Court’s review. See
Pet. to Withdraw as Counsel, 8/23/22, at ¶ 5; Anders Br., App. D. Father has
not responded to counsel’s petition to withdraw. As counsel has met the
technical requirements of Anders and Santiago, we will proceed to the issue
counsel has identified.
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). In
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4 Counsel’s initial Anders brief and petition to withdraw were deficient. By
order dated August 16, 2022, we denied the petition to withdraw without
prejudice to refile a new Anders brief and petition to withdraw.
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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 is evidence
“that is so clear, direct, weighty, and convincing as to enable the trier of fact
to come to a clear conviction, without hesitation, of the truth of the precise
facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29 (Pa.Super.
2008)).
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:
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
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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.
Id. (citations omitted). To affirm the termination of parental rights, this Court
need only affirm the trial court’s decision as to any one subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
The court terminated Father’s parental rights pursuant to Section
2511(a)(1), (2), (5), and (8). As only one basis for termination under Section
2511(a) is necessary, we will focus our attention on the court’s termination of
Father’s parental rights pursuant to Section 2511(a)(8). That subsection
states:
(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:
***
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S.A. § 2511(a)(8).
Section 2511(a)(8) “sets a 12-month time frame for a parent to remedy
the conditions that led to the children’s removal by the court.” In re A.R.,
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837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has been
proven, the court “must next determine whether the conditions that led to the
children’s removal continue to exist.” Id. “As a result, the relevant inquiry in
this regard is whether the conditions that led to removal have been remedied
and thus whether reunification of parent and child is imminent at the time of
the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.Super. 2009). “Termination under
Section 2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of Agency services.” In re Z.P., 994 A.2d 1108,
1118 (Pa.Super. 2010).
Here, it is undisputed that, at the time of the filing of the termination
petitions, Child had been out of Mother and Father’s care in excess of 19
months. Therefore, we next focus our inquiry on whether the conditions which
led to Child’s removal from parental care continued to exist at the time the
court terminated the parental rights.
The record supports the court’s finding that the conditions that led to
Child’s removal from Father’s care continue to exist. The conditions that led
to removal were domestic violence, substance abuse, and lack of supervision
of Child. The record shows that Father failed to complete domestic violence
treatment and couples counseling. Mother had filed at least three protection
from abuse complaints against Father, though they were dismissed because
Mother failed to appear at the hearings. Father also failed to complete drug
and alcohol treatment and was inconsistent with providing urine screens to
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the Agency. It was also reported at the termination hearing that Mother and
Father were homeless.
After the last visit with the parents, Child was returned to foster mother
in a disheveled state. Father has had no contact with Child since January 2022.
Child cannot linger in care waiting for Father to be in a position to meet Child’s
needs. This Court has explained:
We recognize that the application of Section (a)(8) may
seem harsh when the parent has begun to make progress
toward resolving the problems that had led to removal of
her children. . . . However, by allowing for termination when
the conditions that led to removal of a child continue to exist
after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while a parent attempts to
attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).
Because Father failed to remedy the situation that led to Child’s removal
from his care, and as discussed below, termination of parental rights would
best serve the needs and welfare of Child, we find no reasonable basis on
which to argue that the trial court improperly concluded that the requirements
of Section 2511(a)(8) were satisfied. This issue is frivolous.
Under Section 2511(b), the trial court must consider “the
developmental, physical and emotional needs and welfare of the child” to
determine if termination of parental rights is in the best interest of the child.
See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles
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such as love, comfort, security, and stability[.]” In re C.M.S., 884 A.2d 1284,
1287 (Pa.Super. 2005). 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.
Here, the court found that termination of Father’s parental rights was in
Child’s best interests. There was evidence that Child is happy, secure, loved,
and thriving in her foster home, and there was testimony showed that Child
would suffer no detrimental harm if Father’s parental rights were terminated.
We perceive no reasonable basis on which to challenge the court’s conclusion
that termination of Father’s parental rights would be in Child’s best interests.
To summarize, 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 petition to withdraw. Having determined that the appeal is wholly
frivolous, we affirm the order terminating Father’s parental rights.
Petition to withdraw as counsel granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
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