Adoption of: J.L.H., Appeal of: A.Y. ( 2022 )

J-S29016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.L.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.Y., MOTHER :
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: No. 291 WDA 2022
Appeal from the Order Entered February 3, 2022
In the Court of Common Pleas of Westmoreland County
Orphans’ Court at No. 134 of 2021
IN RE: ADOPTION OF: A.R.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.Y., MOTHER :
:
:
:
:
: No. 292 WDA 2022
Appeal from the Order Entered February 3, 2022
In the Court of Common Pleas of Westmoreland County
Orphans’ Court at No. 132 of 2021
IN RE: ADOPTION OF: O.B.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.Y., MOTHER :
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:
: No. 293 WDA 2022
Appeal from the Order Entered February 3, 2022
In the Court of Common Pleas of Westmoreland County
Orphans’ Court at No. 133 of 2021
J-S29016-22
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: September 09, 2022
A.Y. (Mother) appeals from the orders accepting her voluntary
relinquishment of parental rights to her three children and terminating her
parental rights. In addition, Andrew Skala, Esquire (Counsel), has filed a
petition to withdraw and Anders1 brief asserting that this appeal is frivolous.
After careful review, we grant Counsel’s petition to withdraw and affirm the
orders.2
This case involves J.L.H. (born November 2015), O.B.B. (born October
2011), and A.R.G. (born October 2009).3 The children were in protective care
in August 2019, when the Westmoreland County Children’s Bureau (Agency)
initiated dependency proceedings. The Agency alleged aggravated
circumstances based on Mother being an indicated perpetrator of physical
discipline, which resulted in Mother being charged with aggravated assault of
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2 This Court consolidated the appeals sua sponte. Order, 6/2/22.
3 J.C.D.H. is the biological father of J.L.H and putative father of A.R.G.; T.F.G.
is the father of O.B.B. The orphans’ court terminated the parental rights of
J.C.D.H., T.F.G., and “any unknown biological father of A.R.G.” Orphans’
Court Opinion, 3/25/22, at 1. No father has appealed.
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a child less than six years old and endangering the welfare of children. 4
Mother also struggled with drug abuse and mental health issues. The juvenile
court entered an order confirming the Agency’s custody “in light of Mother
being in police custody.” Order, 9/9/19, at 1. The order included the following
findings:
The case [has] remained open … with ongoing providers and
services to the family. There have been extensive and continued
referrals to the [A]gency. There has been a lack of compliance
with services over time. … Mother’s arrest on August 16, 2019,
was relative to an incident that occurred with [J.L.H.], on April 21,
2019, when Mother caused physical injuries to the minor child[.]
Order, 9/9/19 (with attached Findings of Fact at 1, 3).
Thereafter, the juvenile court held regular permanency review hearings.
On October 7, 2021, the Agency petitioned to involuntarily terminate Mother’s
parental rights to the children. A hearing was scheduled for November 17,
2021, and continued to February 3, 2022. In January 2022, the Agency filed
a pre-trial statement listing witnesses and exhibits. The court explained:
This matter came before the [c]ourt on February 3, 2022,
at a time and place originally scheduled for an involuntary
termination of parental rights [hearing] for [Mother,] pertaining
to all three minor children, A.R.G., O.B.B., and J.L.H. Additionally,
the [c]ourt heard on that date the involuntary terminations of
Appellee J.C.D.H., who is birth father of J.L.H. and the putative
father of A.R.G., and T.F.G., who is the biological father of O.B.B.,
as well as any unknown biological father of A.R.G.
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4 On July 20, 2020, at CP-65-CR-0003657-2019, Mother entered a negotiated
guilty plea to endangering the welfare of children, 18 Pa.C.S.A. § 4304. The
felony charges were dismissed and the trial court sentenced Mother to two
years of probation.
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Prior to the start of the hearing, Mother and her counsel
reached the decision that it was in both Mother’s best interest and
in the best interests of the children for her to voluntarily relinquish
her parental rights, rather than proceed with a hearing on the
petition for involuntary termination. Mother’s counsel
prepared and presented three (3) separate Petitions for
Voluntary Relinquishment of Parental Rights and Waivers
of 10-Day Notice, which Mother properly executed prior to
the [c]ourt going on the record.
When the [c]ourt called the case, Mother’s counsel indicated
that Mother had executed the said Petitions and Waivers and now
wished to voluntarily relinquish her parental rights. A full colloquy
pertaining to Mother’s rights to have a hearing on the voluntary
relinquishment was offered, during which Mother indicated that
she fully understood and was voluntarily relinquishing her parental
rights to the children. After the colloquy was completed, the
[c]ourt determined that Mother was making a knowing and
voluntary decision and granted her petition to voluntarily
relinquish her parental rights to A.R.G., O.B.B., and J.L.H.
Orphans’ Court Opinion, 3/25/22, at 1-2 (emphasis added).
Mother timely filed notices of appeal and concise statements pursuant
to Pa.R.A.P. 1925. Mother claimed the court erred in finding she “knowingly,
deliberately and voluntarily relinquished” her parental rights under 23
Pa.C.S.A. § 2501. Rule 1925 Concise Statement, 3/2/22, at 2.
As noted, Counsel has filed a petition to withdraw and Anders brief.5
Therefore, we first address Counsel’s request to withdraw.
See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(“‘When faced with a purported Anders brief, this Court may not review the
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5Anders principles apply to appeals involving termination of parental rights.
See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citation omitted).
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merits of the underlying issues without first passing on the request to
withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.
Super. 1997)). 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 [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)). With respect to the third requirement of Anders, that counsel inform
the appellant of 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.” Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an 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. Super. 2009).
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Instantly, Counsel has filed a petition to withdraw, certifying that he has
reviewed the case and determined that Mother’s appeal is frivolous. Counsel
attached to his petition to withdraw a copy of his letter to Mother, advising
Mother of her right to respond. In addition, Counsel has filed a brief that
includes a summary of the case history, issues raised by Mother, and Counsel’s
assessment of why the issues are frivolous, along with citations to legal
authority. We conclude that Counsel has substantially complied with the
requirements of Anders. See Commonwealth v. Reid, 117 A.3d 777, 781
(Pa. Super. 2015) (observing that substantial compliance with
Anders requirements is sufficient).
We next review the issues in the Anders brief, and “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) (footnote omitted).
Counsel presents the following issues on Mother’s behalf:
I. Did the Trial Court err when it terminated the parental rights
of [Mother] pursuant to 23 Pa.C.S. [§] 2501 (PA Adoption
Act)?
II. [Did t]he Trial Court err when it made a finding that [Mother]
knowingly, deliberately and voluntarily relinquished her
parental Rights at the hearing[?]
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Anders Brief at 7.6
The Pennsylvania Supreme Court has explained:
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
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
With respect to a parent’s voluntary relinquishment of rights:
Chapter 25 of the [Adoption] Act governs both voluntary
relinquishment and involuntary termination of parental rights.
This Court has stated, “Parental relinquishment and involuntary
termination are ... mutually exclusive, and a determination must
be made as to which and when one or the other applies. This is a
judicial function in which the judge exercises his discretion in
conformity with the facts and the law.” A.M.B., 812 A.2d [659,]
666 [(Pa. Super. 2002)].
The Act provides two alternative procedures with respect to the
voluntary relinquishment of parental rights. The parent may file
a petition to relinquish parental rights pursuant to Section 2501
(Relinquishment to agency) or Section 2502 (Relinquishment to
adult intending to adopt the child). … We explained therein:
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6The Agency advised it would not be filing a brief, stating that “[a]fter review
of these pleadings, [the Agency] agrees with the position detailed in the
Anders Brief that Mother’s appeal of the Voluntary Relinquishment Petitions
has no merit. [The Agency] believes the record and the well-reasoned Opinion
of the trial court stand for themselves in this matter.” Letter, 7/25/22.
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The Adoption Act requires the trial court to hold a hearing,
and for the relinquishing parent to ratify his or her consent
to termination, no less than 10 days after the petition is
filed. See 23 Pa.C.S. § 2503(a). The comment to Section
2503 explained:
Subsection (a) is amended to make the petitioner’s
appearance at the hearing mandatory. The
petitioner’s in-court ratification of consent
assures due process requirements in view of the
finality of the termination decree as to the
parent.
23 Pa.C.S. § 2503(a) cmt.
C.M.C., 140 A.3d [699,] 709 [(Pa. Super. 2016)].
Our Supreme Court has stated that the “consent prescribed by the
Adoption Act is a parental consent that is intelligent, voluntary and
deliberate.” In re M.L.O., 490 Pa. 237, 416 A.2d 88, 90 (1980)
(citation omitted). As such, this Court has explained “that the
purpose of the hearing on the petition for voluntary
relinquishment is to insure an intelligent, voluntary, and
deliberate consent to the termination of parental rights.” C.M.C.,
140 A.3d at 711 (citation omitted).
In re Adoption of A.W., 230 A.3d 1139, 1143-44 (Pa. Super. 2020)
(emphasis added). The party must show that the consent was not intelligent,
voluntary and deliberate. In re M.L.O., 416 A.2d at 90.
The procedural history of this case is analogous to Interest of A.F.,
277 A.3d 1126 (Pa. Super. Apr. 8, 2022) (unpublished memorandum).7 In
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7The Superior Court’s unpublished non-precedential decisions filed after May
1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b).
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that case, the agency filed petitions for the involuntary termination of mother
and father’s parental rights. Id. at *2.
[P]rior to the commencement of the hearing, the parents advised
of their desire to voluntarily terminate their parental rights and
presented petitions for voluntary relinquishment of parental
rights. Father waived the requisite 10-day notice requirement and
requested that the hearing proceed on his petitions that day,
instead of completing the hearing on the involuntary termination
petitions. Counsel then proceeded to conduct a colloquy of
Father[.]
Id. (footnotes and citations omitted). At the close of the hearing, the orphans’
court announced its decision to grant father’s petitions and voluntarily
terminate his parental rights. Id. at 3. The court entered its decision on the
record, and father appealed. Id. This Court consolidated the appeals and
father’s counsel filed an Anders brief. Id. at 3-4. After finding that counsel
had complied with Anders, we reviewed father’s claim that the orphans’ court
erred in finding his consent to termination to be intelligent, voluntary and
deliberate. Id. at 4. Upon review, we concluded that father was not entitled
to relief.
As noted, we review the orphans’ court’s decision for an abuse of
discretion. In re T.S.M., supra. The law provides that a parent may
voluntarily relinquish parental rights to an agency pursuant to 23 Pa.C.S.A. §
2501. Orphans’ Court Rule 15.2 governs the content of a voluntary
relinquishment petition, exhibits, and the notice and hearing (including the
provision that a “parent may waive in writing the right to such notice.”).
Pa.O.C.R. 15.2(a)-(c); see also In re C.M.C., 140 A.3d at 710 (“pursuant to
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Pa. O.C. Rule 15.2(c), Mother could have waived notice of the relinquishment
hearing in writing”).
Here, like the father in Interest of A.F., Mother presented petitions for
voluntary relinquishment of parental rights as to each child, consistent with
the aforementioned rules and statutory requirements.
At the hearing, [Mother’s counsel] informed the [c]ourt that
Mother signed the voluntary termination petitions for all three (3)
children along with the Waivers of Notice. (Termination of
Parental Rights Hearing, Page No. 1). As a result, Mother was
called to the stand by [her counsel]. Mother informed the [c]ourt
that she was thirty-one (31) years of age and is presently
employed by Eat N Park. She has never been married. (T.P.R. P.
No. 2). Mother informed the [c]ourt that she was the natural
mother of A.G., O.B, and J.H. and stated their birthdates on the
record along with who was their natural father. (T.P.R. P. No. 5 -
6). During the colloquy conduction, Mother acknowledged that
once her rights were voluntarily relinquished, it is final and
irrevocable. (T.P.R. P. No. 6). Mother further stated that she had
adequate time to consider her decision, her decision was
deliberate and voluntary, and that she was not threatened by
anybody to give up her parental rights. (T.P.R. P. No. 7). An
inquiry was made by [Mother’s counsel], asking Mother as to
whether or not she had taken any medication, drugs or alcohol
that would affect her ability to understand her rights and what she
is doing in the courtroom. Mother responded “no”. Mother
additionally stated that she was not a patient in a mental
institution or hospital. And, she wanted to receive counseling.
(T.P.R. P. No. 8).
At the proceeding, Mother testified that she wanted to
proceed in relinquishing her parental rights to her three children.
She signed the petitions on February 3, 2022. And, she believed
that it was in her best interest to terminate her rights. (T.P.R. P.
No. 9). On cross-examination, [the Agency’s counsel] inquired if
it would be in [Mother’s] best interest to terminate her rights.
Consequently, Mother testified “yes”. (T.P.R. P. Nos. 9 - 10).
Anders Brief at 13-14.
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Mother’s testimony was “plain and unequivocal.” See Interest of A.F.
at *7. The orphans’ court explained:
As part of the colloquy, Mother was asked if she had
received or was interested in receiving counseling for the decision
to voluntarily relinquish her rights, as is required by 23 Pa.C.S.A.
[§] 2505. When asked, she responded, “Yes.” See Transcript of
February 3, 2022 Hearing (hereinafter “2/3/22 Hrg.”), p. 8.
According to Mother’s Petition for Voluntary Relinquishment,
Mother had not received any counseling prior to that date, so it
can be inferred that Mother was expressing a desire to have
counseling in the future.
Section 2505 of the Adoption Act requires that a court shall
compile a list of providers available for counseling parents who
are contemplating relinquishment of parental rights. Additionally,
a court must inquire prior to terminating a parent’s rights if he or
she had received counseling; if a request is made by the parent,
section 2505(c) states that a court “may, with the parent’s
consent, refer the parent...” for counseling, but the court shall not
delay the completion of any hearing by a period of more than
fifteen days. Lastly, section 2505 (d) grants the court discretion
to make such a referral or not, depending upon whether the court
believes that such a referral would be in the best interest of the
parent.
Orphans’ Court Opinion, 3/25/22, at 2-3.
The orphans’ court concluded, “Mother completed her colloquy on the
record and did so without appearing to the [c]ourt to be overly distraught or
struggling with her decision. Finally, Mother never requested a continuance
of the matter in order to receive counseling.” Id. at 3.
Upon review, we discern no abuse of discretion in the orphans’ court’s
determination that Mother’s consent to termination was deliberate and
voluntary. We therefore agree with Counsel that Mother’s issues lack merit.
In addition, our independent review of the record reveals no non-frivolous
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issues to support Mother’s appeal. Accordingly, we grant Counsel’s petition
to withdraw and affirm the orphans’ court.
Counsel’s petition to withdraw granted. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/09/2022
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