In Re: G.M.B., Appeal of: D.J.B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: G.M.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.J.B., NATURAL :
MOTHER :
:
:
:
: No. 566 WDA 2020
Appeal from the Order Entered April 22, 2020
In the Court of Common Pleas of Jefferson County Orphans' Court at
No(s): 3A-2020-O.C.
IN RE: V.R.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.J.B., NATURAL :
MOTHER :
:
:
:
: No. 567 WDA 2020
Appeal from the Order Entered April 22, 2020
In the Court of Common Pleas of Jefferson County Orphans' Court at
No(s): 4A-2020-O.C.
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 16, 2020
D.J.B. (“Mother”) appeals from the decree entered on April 22, 2020,
which terminated her parental rights as to G.M.B. and V.R.B. (“Children”).
Mother’s counsel has filed an Anders1 brief and a petition to withdraw as
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1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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counsel. Upon review, we grant counsel’s petition to withdraw and affirm the
decree.
G.M.B. and V.R.B. were born in September 2013 and November 2015,
respectively. Jefferson County Children and Youth Services (“CYS”) became
involved in January 2019. N.T., 4/15/20, at 10. At that time, Mother was
incarcerated and the Children were living with their maternal grandmother
(“Grandmother”). Id. CYS put services in place to assist Grandmother with
the Children’s aggressive and sexualized behaviors. Id. at 10, 12. Despite
those services, the Children continued to engage in those behaviors and
Grandmother could no longer handle the Children. Id. at 12. The Children also
had severe dental neglect. Id. at 7, 49. On January 28, 2019, the Children
were removed from Grandmother’s care and placed into two separate foster
homes within a mile and a half of each other. Id. at 8-9, 11. The Children
have remained in those foster homes, which are both pre-adoptive homes,
continuously since they were placed there. Id. at 9-10.
CYS filed petitions for involuntary termination as to Mother’s parental
rights on February 6, 2020. A hearing on the petitions was held on April 15,
2020. At the hearing, Rebecca Sallack, the CYS caseworker assigned to the
case, testified that Mother was ordered to undergo drug and alcohol and
mental health evaluations. Id. at 14. Ms. Sallack indicated that Mother did not
complete her mental health evaluation. Id. She further stated that Mother
only attended her in-take appointment for her drug and alcohol evaluation on
March 13, 2020 but that she “was discharged from services due to no-shows”
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after her in-take appointment. Id. at 14-15. Ms. Sallack said that Mother was
also ordered to undergo random drug testing but she only submitted to one
drug test on the day of the December 11, 2019 permanency review hearing,
which was positive for methamphetamines and THC. Id. at 23.
Ms. Sallack further testified that Mother had no visits or contact with her
Children since the Children were placed. Id. at 10. She also stated that Mother
had no contact with CYS since her release from jail in June 2019 and CYS did
not know her whereabouts. Id. at 17. Ms. Sallack testified that the trial court
made a finding of aggravated circumstances on August 28, 2019 due to Mother
not making any efforts toward reunification for a period of six months. Id. at
24. In sum, Ms. Sallack stated:
[Mother has] not done anything that was court ordered or
has been put into, implemented into the family service plan
based on the mental health treatments, the drug and alcohol
treatments, keeping in contact with the agency on [her]
whereabouts, not scheduling, not calling to try to set up
visits with the [C]hildren[.]
Id. at 33.
Ms. Sallack further testified that the Children are very bonded to their
respective foster parents. Id. at 9, 29. She stated that the Children call their
respective foster parents “Mommy,” “Dad,” and “Daddy.” Id. at 29-30, 51.
Ms. Sallack said that the Children’s dental issues have been resolved and their
aggressive behaviors have subsided since living with their foster parents. Id.
at 27, 50. Both foster homes are pre-adoptive homes and the foster parents
maintain sibling visits between the Children. Id. at 10, 30. The foster parents
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also take the Children to therapy and support them in their therapy. Id. at
26-27. Ms. Sallack testified that the Children are “thriving” in their current
homes and all of their needs are being met. Id. at 10, 35. She opined that it
would be in the Children’s best interest for Mother’s parental rights to be
terminated and for the Children to be adopted by their foster parents. Id. at
34-36, 54.
Mother testified at the termination hearing and admitted that the last
contact that she had with the Children was at a February 2019 review hearing,
over one year before the termination hearing. Id. at 63, 80. Mother stated
that she was aware that she needed to pass a drug test in order to have visits
with the Children but admitted that she failed a drug test in December 2019.
Id. at 81. Mother conceded that she had not completed her mental health or
drug and alcohol evaluations. Id. at 79, 89. Mother further admitted that she
had struggled to maintain housing, employment, and sobriety, and that she
experienced difficulty in meeting the Children’s needs in the past year. Id. at
83. Mother testified that she called her CYS caseworker on March 20, 2020,
less than one month before the termination hearing, panicking about what she
needed to do. Id. at 87. Mother said that she told her caseworker that she
was not able to undergo drug and alcohol treatment because “the groups were
being cancelled because of the quarantine [due to COVID-19].” Id. Upon
cross-examination, Mother admitted that treatment centers were open prior
to this time and that she did not attend treatment because the treatment
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center was located next to the county’s domestic relations division and she
did not want to get “picked up” for an outstanding warrant. Id. at 88-89.
Following the hearing, the court entered a decree involuntarily
terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(a)(2), and (b). This appeal followed.
Counsel’s Anders brief identifies three issues:
1. Whether the lower court erred in terminating parental
rights under 23 Pa.C.S.A. § 2511(a)(1)[?]
2. Whether the lower court erred in terminating parental
rights under 23 Pa.C.S.A. § 2511(a)(2)[?]
3. Whether the lower court erred in determining termination
was in the [C]hildren’s best interest[?]
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) (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
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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.
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)).
Here, we find that counsel has complied with all of the above technical
requirements. In his 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 three issues 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 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
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review. Petition to Withdraw, 7/20/20, at ¶ 4. Mother 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 issues counsel has identified.
The first two issues presented in counsel’s Anders brief are whether the
trial court erred in terminating Mother’s parental rights under 23 Pa.C.S.A. §
2511(a)(1) and (2).
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
trier of fact to come to a clear conviction, without hesitation, of the truth of
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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:
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
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). In order 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).
Instantly, the trial court found termination proper pursuant to
subsections 2511(a)(1) and (2), as well as under Section 2511(b). As only
one basis for termination under Section 2511(a) is necessary, we will focus
our attention on the trial court’s termination of Mother’s parental rights
pursuant to subsection 2511(a)(1). That subsection permits termination if
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“[t]he parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.” 23 Pa.C.S.A. § 2511(a)(1). Since CYS filed the
petitions in this case on February 6, 2020, the relevant six-month period
began on August 6, 2019. The trial court found as a fact that Mother made no
efforts to perform any parental duties since the time the Children were placed
into foster care in January 2019.
Upon review, we find no reasonable basis in the record to support a
challenge to the court’s conclusion. The evidence presented demonstrated that
Mother had no contact or visits with the Children since the Children were
placed into care, except for one time at a permanency review hearing in
February 2019. The CYS caseworker testified, and Mother, in fact, conceded
that Mother failed to complete her drug and alcohol and mental health
evaluations, and that she struggled to maintain housing, employment, and
sobriety. Mother also failed to maintain contact with CYS and CYS did not know
her whereabouts at times. Mother acknowledged that she experienced
difficulty in meeting the Children’s needs in the past year. It is thus clear from
the record that Mother had not attempted to perform any parental duties or
work toward reunification with the Children.
A parental obligation is a “positive duty which requires affirmative
performance” and “cannot be met by a merely passive interest in the
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development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(citation omitted). Indeed,
[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path
of maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Here, nothing in the record would support a conclusion that Mother
performed any parental duties for the Children for at least six months prior to
the filing of the termination petitions. We thus conclude any challenge to the
findings and conclusions pursuant to Sections 2511(a)(1) and (2) would be
frivolous.
The last issue presented in counsel’s Anders brief is whether the trial
court erred in determining termination was in the Children’s best interest
pursuant to 23 Pa.C.S.A. § 2511(b). 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
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
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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 251, 268 (Pa. 2013).
Here, the trial court found that terminating Mother’s parental rights was
in the best interest of the Children and would best serve their developmental,
physical, and emotional needs and welfare. Trial Court Opinion, filed 4/22/20,
at 8. The court explained that there was “no credible evidence to suggest that
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[the Children] currently share a bond with Mother[.]” Id. In contrast, the court
found that the Children were unquestionably bonded to their foster parents
and that the Children have thrived in their care. Id.Our review of the record reveals no reasonable basis on which to
challenge the trial court’s findings. We agree with the trial court that there
was no evidence of an emotional bond between Mother and the Children.
Mother has failed to maintain any contact with the Children since they were
placed. There was evidence presented that the Children are currently thriving
in their foster homes and are very bonded to their respective foster parents.
The Children call their respective foster parents “Mommy,” “Dad,” and
“Daddy.” The Children’s dental issues have been resolved and their aggressive
behaviors have subsided since living with their foster parents. Both foster
homes are pre-adoptive homes and the foster parents maintain sibling visits
between the Children. The trial court found that the foster parents are willing
and able to provide the Children with loving, nurturing, and stable
environments. We agree with this finding. Accordingly, we also find the second
issue to be frivolous.
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 petition to withdraw. Having determined that the appeal is wholly
frivolous, we affirm the decree terminating Mother’s parental rights.
Petition to withdraw as counsel granted. Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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