In the Interest of: L.S., Appeal of: G.T.S. ( 2023 )

J-S29031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: G.T.S., FATHER :
:
:
:
:
: No. 433 WDA 2022
Appeal from the Order Entered March 25, 2022
In the Court of Common Pleas of Erie County Domestic Relations at
No(s): CP-25-DP-0000069-2022
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JANUARY 10, 2023
G.T.S. (“Father”) appeals from the order that adjudicated his minor
child, L.S. (“Child”), dependent, found aggravating circumstances against
Father, found that no reasonable efforts towards reunification were necessary,
and established adoption as the placement goal for Child. March 25, 2022
Order of Adjudication and Disposition (”3/25/22 Order”). In the 3/25/22
Order, the trial court further found that aggravating circumstances also
existed against E.M.T., Child’s mother (“Mother”).1 Additionally, Father’s
counsel has filed a petition for leave to withdraw and accompanying brief
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Mother also appealed the 3/25/22 Order. This Court affirmed the 3/25/22
Order as to Mother on November 4, 2022. In Interest of L.S., No. 434 WDA
2022 (Pa. Super. filed November 14, 2022), unpublished memorandum, 2022
WL 16911854.
J-S29031-22
pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm and grant
the petition to withdraw.
The trial court set forth the factual and procedural history of this matter
in its Pa.R.A.P. 1925(a) opinion, issued on May 19, 2022 (“TCO”):
On March 6, 2022, the [Erie County Office of Children & Youth
(“OCY”)] received a General Protective Services Referral (“GPS”)
after [Child]’s twin sister, A.S., was found unresponsive in her
pack ‘n play. A.S. was transported to the hospital, where she was
pronounced dead on arrival. [Mother and Father] reported to the
Erie Police Department (“EPD”) that A.S. was fed around 9:00
a.m. and then put down for a nap around 10:30 a.m. in the pack
‘n play on a boppy pillow.[2] When [Mother and Father] ;went to
check on A.S., she was face down on the side of the boppy pillow,
unresponsive, at which time they reported they called 911. It was
determined that A.S. died due to suffocation.
On March 7, 2022, [OCY] went to [Mother and Father’s residence]
to follow up on the GPS referral and observed Child lying in the
pack ‘n play sleeping on a boppy pillow. Through a follow-up
investigation, [OCY] learned that Mother had been instructed
repeatedly through Project First Step, Nurse-Family Partnership,
and [OCY] about safe sleeping techniques and not using the boppy
pillow without supervision.
TCO at 2 (citations to record omitted). An application for an emergency
protective order was filed setting forth OCY’s concerns that Child was not safe
in the care of her parents due to: (i) the continued use of the boppy pillow
even after the death of A.S. on the previous day and despite attempts by
____________________________________________
2A “boppy pillow” is a feeding and infant support pillow introduced by the
Boppy Company and designed for support during “supervised awake time.”
See www.boppy.com/pages/safe-product-use (last visited on December 30,
2022).
-2-
J-S29031-22
numerous health providers to instruct them on its danger; (ii) Mother’s history
of failure to meet the needs of her other children;3 (iii) Mother’s mental health
history; and (iv) Mother’s limited intellectual abilities. An Emergency
Protective Order for Child was issued on March 9, 2022. On March 14, 2022,
OCY filed a petition for dependency, seeking a finding of aggravated
circumstances against both Mother and Father.4
An adjudication and disposition hearing was held on March 21, 2022.
Following the hearing, the trial court found that OCY had established, by clear
and convincing evidence, that Child was without proper parental control, and
adjudicated Child dependent pursuant to 42 Pa.C.S. § 6302(1)(A). A
disposition hearing was held immediately following the adjudication, and
there, the trial court found OCY had established by clear and convincing
evidence that aggravated circumstances existed with regard to both Mother
and Father pursuant to 42 Pa.C.S. § 6341(c.1). By its March 25, 2022 order,
adoption was established as the placement goal for child and OCY was directed
____________________________________________
3 Mother’s parental rights were terminated as to her two other children on
October 18, 2018 and July 16, 2019, respectively. See Order of Adjudication
and Disposition, March 25, 2022, at 1.
4 OCY sought aggravated circumstances against Father based upon his
conviction of an equivalent crime in another jurisdiction. See 42 Pa.C.S. §
6302(3)(iv). The dependency petition alleges that, in addition to Father’s
continued disregard for safe sleeping techniques despite repeated warnings,
he has a significant criminal history in the state of Illinois and the
Commonwealth of Pennsylvania, including sexual offenses with a minor child
victim under the age of 9 in Illinois, and two prior convictions for simple
assault and criminal conspiracy-robbery in Pennsylvania. Dependency Petition
at 4.
-3-
J-S29031-22
to offer no services to Mother and Father, and to proceed with the filing of a
petition to terminate parental rights. 3/25/22 Order. Father filed both a
notice of appeal and a concise statement of matters complained of on appeal
on April 20, 2022.
On appeal, counsel has filed an Anders Brief in which he presents the
following questions for our review:
1. Whether the Juvenile Court committed an abuse of discretion
and/or error of law when it determined that [OCY] established,
by clear and convincing evidence, that reasonable efforts to
reunify were not necessary?
2. Whether the Juvenile Court committed an abuse of discretion
and/or error of law when it determined that [OCY] established,
by clear and convincing evidence, the grounds for a change in
goal to adoption pursuant to 42 Pa.C.S. § 6351(f)?
Anders Brief at 3 (reordered for ease of discussion).
Before reaching the merits of this appeal, we must first address whether
counsel’s petition to withdraw and accompanying brief comply with the
procedure outlined in Anders and related case law. See In re J.D.H., 171
A.3d 903, 906 (Pa. Super. 2017) (holding that Anders procedure for
withdrawal of court-appointed counsel applies in a dependency and adoption
proceeding, even in the absence of an involuntary termination decree). In
order to withdraw under 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
-4-
J-S29031-22
additional arguments that the appellant deems worthy of the
court’s attention.
Id. at 907 (quoting Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.
Super. 2013) (en banc); brackets omitted).
With respect to the third requirement, counsel must “attach to their
petition to withdraw a copy of the letter sent to their client advising him or
her of their rights.” Id. (quoting Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005)). Because a parent has a continuing right to
counsel in dependency proceedings, an attorney seeking to withdraw in an
appeal from an order establishing adoption as the placement goal is required
to
inform the parent of his or her right to counsel in any subsequent
dependency or involuntary termination proceedings. Counsel
must also inform the parent that, if he or she cannot afford
counsel, he or she may contact the trial court in order to obtain
new counsel. This information must be conveyed to the parent at
the same time that counsel informs the parent of his or her other
rights pursuant to Anders[.]
Id. at 906-07.
Furthermore, 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.
-5-
J-S29031-22
Id. at 907 (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009)).
In his petition to withdraw, counsel indicated that he had thoroughly
reviewed the record and determined that there are no non-frivolous grounds
for this appeal. Counsel sent a letter to Father advising him of his right to
retain new counsel or proceed pro se and raise any additional issues he
deemed worthy of this Court’s attention.5 Counsel’s letter also advised Father
of his right to appointed counsel in any subsequent dependency or termination
proceeding and that he should contact the court to obtain new counsel if he
could not afford it. See id. at 906-07. This letter was attached to counsel’s
petition for withdrawal, and it indicates that counsel provided Father with the
petition to withdraw and Anders brief; counsel’s certificates of service
likewise demonstrate that the relevant filings were served on Father.
Counsel’s amended brief contains a summary of the relevant procedural
and factual history of this case, states his reasons for concluding that Father’s
appeal is frivolous and articulates relevant facts of record, controlling case
law, and relevant statutes that have led to his conclusion that the appeal is
frivolous.6
____________________________________________
5As of the date of this decision, Father has not filed a pro se brief with this
Court, nor has privately retained counsel entered an appearance on Father’s
behalf.
6Counsel filed an Amended Brief on December 3, 2022 in response to this
Court’s Memorandum dated November 4, 2022 denying counsel’s petition to
(Footnote Continued Next Page)
-6-
J-S29031-22
We thus conclude that counsel has complied with the procedural
requirements for withdrawal, and we may therefore proceed to review the
merits of this appeal, and “conduct an independent review of the record to
discern if there are any additional, non-frivolous issues overlooked by
counsel.” J.D.H., 171 A.3d at 908 (quoting Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa. Super. 2015)).
In the Anders brief, counsel raises the issues of whether the trial court
abused its discretion in its determination that reasonable efforts to reunify
were not necessary and in establishing the goal of adoption.7 With respect to
reunification efforts, counsel identifies the primary questions as whether
Father’s sex offense, which occurred in 2008 when he was a juvenile, was too
remote to be considered, whether he demonstrated his capacity for
rehabilitation through his sex offender treatment, and whether he was given
sufficient opportunity to improve his parenting abilities. Anders Brief at 11-
12.
Where the court has found, as here, that aggravated circumstances
exist, it must then determine whether reasonable efforts to prevent the need
from removing the child from the home shall be made, and it “may end
____________________________________________
withdraw and directing counsel to file either a compliant Anders brief and
petition to withdraw or an advocate’s brief. See In Interest of L.S., No. 433
WDA 2022 (Pa. Super. filed November 4, 2022), unpublished memorandum,
2022 WL 16707816.
7 Father does not challenge the dependency adjudication of Child or the
existence of aggravating circumstances.
-7-
J-S29031-22
reasonable efforts at its discretion.” See In re L.V., 127 A.3d 831, 839 (Pa.
Super. 2015); In re A.H., 763 A.2d 873, 878 (Pa. Super. 2000).
The trial court noted the testimony of OCY supervisor Rhiannon
Bernardini, who performed the GPS investigation on March 7, 2022, when
Father was present at the home, and spoke to the service providers who had
been assisting the parents with parenting; Ms. Bernardini voiced OCY’s
concerns that Father and Mother were allowing the infant twins to sleep
together, despite instructions not to do so, and that they were allowing them
to sleep in a crib with boppy pillows and blankets. TCO at 4; N.T. at 14. The
trial court also noted the testimony of Lisa Kobusinski, a senior family
specialist at Project First Step, who was helping Mother with feeding after the
birth of the twins; she stated that Father was present for only one of her five
visits to the home, after having been told that he was required to be there,
and he otherwise remained in the bedroom with the dogs while she was
instructing Mother. TCO at 8; N.T. at 77, 80. The trial court also noted the
testimony of Tiffany Thomas, a nurse home visitor, who stated that she tried
to instruct and educate Father and Mother on safe sleeping and the dangers
of utilizing incorrect sleeping techniques to no avail. TCO at 9; N.T. at 96.
At the hearing, the trial court set forth its reasoning for declining to offer
services to Father, noting that the criminal allegations against Father were
severe, and involved a female child; the trial court further found significant
that Father was in the home, had knowledge that Mother had had children
removed from her in the past due to her inability to care for them, and could
-8-
J-S29031-22
have stepped in to assist Mother, but chose instead to sit back and allow her
to take over. N.T. at 138.
We find that the trial court properly relied on the witnesses’ credible
testimony regarding Father’s unwillingness to receive instruction or to follow
their guidance with regard to safe sleeping techniques and acted within its
discretion in finding that no reunification services should be provided to
Father, who had committed a sexual offense against a minor child.
With respect to the goal change of adoption, counsel notes in the
Anders brief that Child’s guardian ad litem stated at the adjudication hearing
that she would not oppose the court deciding to offer services to Father for a
short period of time, so long as they were provided wholly independently of
Mother, and that such services could further the development of a bond
between Father and Child and potential reunification. N.T. at 137; Anders
Brief at 9-10.
We review decisions changing a placement goal for abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). To hold that the trial court
abused its discretion, we must determine its judgment was “manifestly
unreasonable,” that the court disregarded the law, or that its action was “a
result of partiality, prejudice, bias or ill will.” In re N.C., 909 A.2d 818, 822
(Pa. Super. 2006). We emphasize that, in determining whether a goal change
is appropriate, the focus is on the child’s best interests. Id. at 823 (noting
that “[s]afety, permanency, and well-being of the child must take preference
-9-
J-S29031-22
over all other considerations, including the rights of the parents”) (emphasis
in original).
In its opinion, the trial court considered Father’s adjudication for
aggravated criminal sexual abuse of a child under the age of nine, while Father
was under the age of seventeen, and the fact that his juvenile court petition
specified he “knowingly placed his penis in the vagina” of the minor. TCO at
14; Exhibits 16, 17. The court determined that for those reasons, as well as
Father’s failure to participate in the services that he was offered, i.e., staying
in the bedroom with the dogs while service providers were there to teach safe
parenting, OCY was not required to make reasonable efforts for reunification
as it pertained to Father and the goal of adoption was established. TCO at
14-15. We find no abuse of discretion in the trial court’s determination to
establish adoption as Child’s permanency goal. We have explained in the
context of involuntary termination of parental rights proceedings 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).
Accordingly, our independent review of the issues raised in the Anders
brief demonstrates that they are frivolous. Moreover, our review of the record
- 10 -
J-S29031-22
does not reveal any non-frivolous issues overlooked by counsel.8 See
Flowers, 113 A.3d at 1250. Therefore, we grant counsel’s petition to
withdraw, and we affirm the 3/25/22 Order as to Father.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/10/2023
____________________________________________
8 Specifically, we detect no abuse of discretion in the trial court’s
determination in the 3/25/22 Order that Child is dependent. Furthermore, the
trial court appropriately determined that aggravated circumstances exist
based upon Father’s 2008 Illinois conviction for aggravated criminal sexual
assault of a child under the age of nine, when Father was 16 years old. (42
Pa.C.S. § 6302(3)(ii),(iv); In re R.J.T., 9 A.3d at 1190.)
- 11 -