In the Int. of: T.J.J., Appeal of: T.M.G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.J.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: T.M.G., MOTHER : No. 2450 EDA 2019
Appeal from the Decree Entered July 31, 2019
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000003-2018
BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 11, 2020
T.M.G. (Mother) appeals from the decree entered July 31, 2019, in the
Court of Common Pleas of Philadelphia County, which terminated
involuntarily her parental rights to her minor daughter, T.J.J., who was born
in November 2014.1 Mother’s counsel has filed a petition to withdraw and
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
grant counsel’s petition to withdraw and affirm the decree terminating
Mother’s parental rights.
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* Retired Senior Judge assigned to the Superior Court.
1 The parental rights of T.J.J.’s putative father, L.J. (Father), were also
terminated involuntarily. Father did not file an appeal or participate in
Mother’s appeal.
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We provide the following background. Philadelphia Department of
Human Services (DHS) became involved with the family in November 2014,
after learning that Mother was positive for cocaine at T.J.J.’s birth. N.T.,
7/31/2019, at 13. In addition to Mother’s drug use, DHS was concerned
about domestic violence between Mother and Father, and criminal activity in
the home. Id. T.J.J. went home with Mother and Father from the hospital,
and DHS arranged for the Community Umbrella Agency (CUA) to provide in-
home safety services. Id. CUA established single case plan objectives for
Mother to achieve based on the issues Mother was facing. The objectives
included obtaining suitable and safe housing; complying with dual-diagnosis
mental health and substance abuse treatment; complying with random drug
screens; participating in domestic violence counseling; participating in
parenting classes; attending all supervised visits with T.J.J.; and providing
documentation of her participation and/or completion of her court-ordered
case plan goals. Id. at 14-15.
In February 2016, DHS filed a petition for shelter care, followed by a
petition seeking to adjudicate T.J.J. dependent under subsection (1) of the
Juvenile Act. See 42 Pa.C.S. § 6302 (setting forth definition of
dependency). Both petitions were granted, and T.J.J. entered foster care.
DHS Exhibit 1. The juvenile court ordered Mother to undergo an assessment
for substance abuse by the court’s Clinical Evaluation Unit (CEU), enroll in
dual-diagnosis treatment for mental health and substance abuse, undergo
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drug screen monitoring, and undergo domestic violence counseling. Id.
The juvenile court permitted Mother to visit with T.J.J., who was one year
old, two times a week under supervision. Id.
On March 15, 2016, Mother entered an inpatient dual-diagnosis
substance abuse facility that permitted mothers and children to reside
together, and Mother regained legal and physical custody of T.J.J. with
protective supervision by DHS. Id. By June 2016, however, Mother lost
custody of T.J.J. again after the inpatient program discharged Mother. Id.;
N.T. 7/31/2019, at 14. DHS obtained an emergency custody authorization
on June 2, 2016, and placed T.J.J. in foster care. DHS Exhibit 1. At the
shelter hearing following T.J.J.’s removal, the juvenile court ordered T.J.J. to
remain in foster care, permitted Mother to visit with T.J.J. twice a week
under supervision, and ordered Mother to undergo outpatient treatment and
drug screens. DHS Exhibit 1.
Over the next three years, Mother never made enough progress to
regain custody of T.J.J. Mother never provided CUA with any verification
that she had completed a dual-diagnosis treatment program. N.T.,
7/31/2019, at 17-18, 63. Mother initially participated in outpatient dual-
diagnosis treatment, but the program discharged her in March 2017 due to
her lack of compliance with the program. Id. at 14, 36, 50. At some point
after her discharge, Mother told CUA that she was re-enrolled in treatment,
but the facilities Mother named told CUA that was not the case. Id. at 17,
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51, 63. She never demonstrated a sustained period of sobriety and did not
appear for all of her court-ordered random screens. Id. Her screens were
positive for cocaine in August 2016, November 2017, November 2018, and
January 2019; the January 2019 screen was also positive for
benzodiazepines. DHS Exhibit 2. Additionally, Mother never underwent the
court-ordered CEU drug assessment, as she either failed to appear for the
assessment, sign necessary consents, and/or provide verification of
outpatient treatment. Id.
Mother was also court-ordered to undergo domestic violence
counseling. She declined to address this goal, and never provided
documentation of successful completion of counseling. N.T., 7/31/2019, at
20, 51, 53. She had obtained a protection from abuse (PFA) order against
Father in 2016, but continued to live with Father.2 Id.
Mother declined services for obtaining employment. Id. at 20-21.
She also did not resolve the concerns with her housing situation. CUA had
last visited her home in May 2019. Id. at 64. Mother resides with Father
and his parents. Id. The house had working utilities, but it was very
cluttered to the point of possibly inhibiting egress from the home during an
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2 In addition to the domestic violence concerns, Mother’s continued
relationship with Father complicated matters because Father was only
minimally compliant with his case plan objectives. Id. at 37.
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emergency. Id. at 64-65, 75-76. Moreover, Mother would not allow the
CUA worker in one of the rooms. Id.
Although initially the juvenile court permitted Mother to visit with T.J.J.
twice a week, it decreased her visitation to once a week in October 2016.
DHS Exhibit 1. It also required Mother to confirm 24 hours in advance and
be supervised with a line-of-sight restriction. Id. Mother never made
enough progress to begin unsupervised visitation, and she was not close to
achieving reunification by the time of the termination of parental rights
(TPR) hearing. N.T., 7/31/2019, at 34. Although she was consistent with
visiting T.J.J. at one point, her more recent visitation attendance drastically
decreased, with Mother only making 10 out of 18 visits prior to the hearing.
Id. at 36. Out of the ten she attended, she was late to three of them. Id.
at 22.
Based upon Mother’s lack of progress, DHS filed a petition to terminate
Mother’s parental rights on January 3, 2018, as well as a petition to change
T.J.J.’s permanency goal to adoption. The juvenile court conducted a
hearing on the petitions on July 31, 2019. T.J.J., who was four years old at
the time, was represented by an attorney serving as guardian ad litem and
an attorney serving as legal counsel.3
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3 Both T.J.J.’s guardian ad litem and legal counsel advocated in favor of
granting DHS’s petition at the hearing. N.T., 7/31/2019, at 140-47. T.J.J.’s
legal counsel indicated that he had met with T.J.J. prior to the hearing, but
(Footnote Continued Next Page)
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During the hearing, DHS presented the testimony of CUA workers who
were assigned to the family’s case, and introduced without objection
Mother’s drug screen results, CEU progress reports, and the docket from
T.J.J.’s dependency matter, which contained the text of the various court
orders. In addition to the history discussed supra regarding Mother’s lack of
progress on her case objectives, DHS presented testimony regarding T.J.J.’s
needs and welfare. Angela Rivers, the family’s CUA case manager since late
2018, testified that based on the four or five times she had observed T.J.J.
with Mother at visits, she believes T.J.J. has a “connection” with Mother and
their visits are “positive.” N.T., 7/31/2019, at 73. T.J.J. is excited to see
her at the beginning of the visit. Id. at 87. At the end of the visits, T.J.J.
sometimes cried a bit and told Mother, “Mommy, I want to go with you,” but
ultimately T.J.J. was redirected easily and left with her foster parents
without a problem. Id. at 56-57. Ms. Rivers does not believe that severing
the relationship with Mother would negatively impact T.J.J. Id. at 73. Once
Mother leaves, T.J.J. goes about her activities and does not mention Mother.
Id. Based upon this, it appears to Ms. Rivers that the adage “out of sight,
out of mind” is applicable. Id. When Mother missed visits, T.J.J. did not
(Footnote Continued) _______________________
due to her young age, he did not believe T.J.J. understood the “complexities”
of termination. Id. at 142-43. When counsel referenced T.J.J.’s parents,
T.J.J. identified her foster parents as her parents. Id. at 147.
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complain or act out. Id. at 66. T.J.J. does not talk about Mother to Ms.
Rivers when Ms. Rivers visits T.J.J. in the foster home. Id. at 88.
At the time of the TPR hearing, T.J.J. had been in foster care for three-
and-one-half years. She moved to a pre-adoptive foster home in March
2019. Id. at 34. Ms. Rivers had observed T.J.J. refer to both of her foster
parents as “Daddy,” and when Ms. Rivers asked her where she wanted to
live, T.J.J. responded, “with [D]addy,” while pointing to the foster parent
who was in the room. Id. at 55. Ms. Rivers believed the foster parents
were meeting all of her medical and developmental needs, whereas Mother
had not inquired about such needs. Id. at 55-56. T.J.J. looked to her foster
parents to meet her needs when she was sick, upset, or otherwise. Id. at
56. Her foster parents enrolled her in soccer, and planned to enroll her in
dance. Id. They provided T.J.J. with “love, safety, stability, and support.”
Id. at 55.
In the opinion of Ms. Rivers, T.J.J. had flourished in the pre-adoptive
foster home; she is quite outgoing, “runs the house,” has “wonderful”
interactions with her foster parents, and really has “integrated into her
surroundings.” Id. at 55. Ms. Rivers believes T.J.J. is bonded to her foster
parents. Id. at 57. Mother told Ms. Rivers that she thought T.J.J. had
gained independence since moving to the pre-adoptive foster home, because
she now could spell her name, dress herself, and was secure enough to
respond to questions. Id. at 59.
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T.J.J.’s legal counsel called Mother to testify at the hearing. Mother
claimed to be enrolled in a dual-diagnosis program, but she had no
documentation of her participation. Id. at 96. She also testified that she
had engaged in domestic violence counseling while she was in dual-diagnosis
inpatient treatment, and claimed she gave the documentation to prior CUA
caseworkers. Id. Mother admitted that her cocaine use was still an issue.
Id. at 112. Mother believes there is an “[u]nconditional” bond between her
and T.J.J. and they have a “great relationship.” Id. at 102, 109. Mother
testified that she had asked T.J.J. whether she wanted to be reunified with
Mother, and T.J.J. told her, “I want to be with you, [M]ommy,” although
Mother acknowledged T.J.J. also loves and cares about her foster parents.
Id. at 102.
At the conclusion of the hearing, the juvenile court entered a decree
terminating the parental rights of Mother pursuant to 23 Pa.C.S.
§§ 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b) of the Adoption Act, 23 Pa.C.S.
§§ 2101-2938. Mother timely filed a notice of appeal, along with a concise
statement of errors complained of on appeal. Mother’s counsel later filed a
petition to withdraw and Anders brief.
We begin by addressing the petition to withdraw and Anders brief.
See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)) (“When faced with a purported Anders brief, this Court may not
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review the merits of the underlying issues without first passing on the
request to withdraw.”). This Court extended the Anders procedure to
appeals from decrees terminating parental rights involuntarily in In re V.E.,
611 A.2d 1267 (Pa. Super. 1992). To withdraw pursuant to Anders,
counsel must comply with the following requirements:
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 the [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)). Counsel must provide this Court with a copy of the letter advising
the appellant of his or her rights. Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005).
Additionally, our Supreme Court has set forth the following
requirements for Anders briefs.
(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,
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controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
In the instant matter, counsel states she filed a petition to withdraw
and Anders brief stating that she conducted a review of the record and
determined that Mother’s appeal is frivolous. Counsel’s brief includes a
summary of the facts and procedural history of this case, a list of issues that
could arguably support the appeal, and counsel’s assessment of why those
issues are frivolous, with citations to relevant legal authority. Counsel also
provided this Court with a copy of her letter to Mother, which enclosed the
petition to withdraw and Anders brief, and advised Mother of her right to
obtain new counsel or proceed pro se.4 However, counsel’s citations to the
record are rather sparse, with only two appearing in counsel’s seven-page
statement of the case. Anders and Santiago contemplate more thorough
citation, as does Pa.R.A.P. 2117(a)(4). Nevertheless, because we have
reviewed the record in its entirety, and Anders and Santiago require
substantial compliance, not perfect compliance, see Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007), we will not order counsel
to submit a new brief with more thorough citations.
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4 Mother has filed neither a response to counsel’s petition to withdraw nor a
brief pro se or through new counsel.
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Since counsel complied substantially with the requirements of Anders
and Santiago, we may proceed to review the issues outlined in her brief.
We must also “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); see also Commonwealth v. Dempster, 187 A.3d 266,
272 (Pa. Super. 2018) (en banc).
Counsel raises the following issues of arguable merit: (1) whether the
juvenile court erred by terminating Mother’s parental rights without clear
and convincing evidence to support termination under 23 Pa.C.S.
§§ 2511(a)(1), (2), (5), and (8); and (2) whether the juvenile court erred by
terminating Mother’s parental rights without clear and convincing evidence
that termination would best serve the needs and welfare of T.J.J. pursuant
to 23 Pa.C.S. § 2511(b).5
We review these issues mindful of our well-settled standard of review.
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5 Counsel alludes to error by the juvenile court in changing the permanency
goal to adoption. However, Mother only appealed the termination of her
parental rights pursuant to the Adoption Act, and did not appeal the goal
change pursuant to the Juvenile Act. Nevertheless, even if she had, we note
that the juvenile court may terminate parental rights even if the permanency
goal remains reunification. See In re Adoption of S.E.G., 901 A.2d 1017,
1029 (Pa. 2006). Any goal-change challenge would be moot in light of our
decision to affirm the court’s termination decrees. In re D.R.-W., __ A.3d
__, 2020 WL 465686 at 9 (Pa. Super. Jan. 29, 2020) (quoting In re D.A.,
801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court is moot if in
ruling upon the issue the court cannot enter an order that has any legal
force or effect.”)).
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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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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 [subs]ection 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 [subs]ection
2511(b): determination of the needs and welfare of the child[.]
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the juvenile court terminated Mother’s parental rights
pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of 2511(a), as well as
subsection 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). Here, we analyze the court’s decision to
terminate under subsections 2511(a)(8) and (b), which provide as follows.
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(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.
***
(b) Other considerations.--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) … 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. § 2511.
We have summarized the requirements of subsection 2511(a)(8) as
follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 2511(a)(8), the following factors must be demonstrated: (1)
[t]he child has been removed from parental care for 12 months
or more from the date of removal; (2) the conditions which led
to the removal or placement of the child continue to exist; and
(3) termination of parental rights would best serve the needs
and welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
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In the instant case, there is no dispute that T.J.J. has been removed
from Mother’s care for more than 12 months, having been removed for the
second time in June 2016 when Mother was discharged from her inpatient
dual-diagnosis program. The juvenile court noted that T.J.J. was removed
from Mother’s care twice due to Mother’s substance abuse, and Mother had
not progressed in the substance abuse treatment offered to her throughout
T.J.J.’s time in foster care. Juvenile Court Opinion, 10/23/2019, at 9.
We discern no abuse of discretion in this conclusion. As reviewed in
more detail supra, Mother’s substance abuse continued to exist at the time
of the termination proceedings. She was discharged from inpatient
treatment in 2016 without completing the program, discharged from
outpatient treatment in 2017, and failed to enroll in or complete any further
treatment. She tested positive for cocaine and/or benzodiazepines
throughout the life of the case; repeatedly failed to undergo screens and
assessments; and admitted at the hearing that she continued to abuse
cocaine.
In addition, other longstanding issues continued to be a problem: DHS
could not verify that her housing was safe; she had not completed mental
health treatment; she remained unemployed; and she remained in a
relationship with Father despite domestic violence in the relationship and
Father’s failure to complete his own court-ordered goals.
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In light of the above, it is clear that the conditions, which led to the
removal and placement of T.J.J. on two occasions, continued to exist, and
the juvenile court did not abuse its discretion in terminating Mother’s rights
pursuant to subsection 2511(a)(8).6
We now examine the juvenile court’s determination that termination of
parental rights best served T.J.J.’s needs and welfare. We have explained
the analysis under subsection 2511(b) as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term “bond” is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
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6As our analysis of the last prong of subsection 2511(a)(8) is similar to our
analysis under subsection 2511(b), we will address the last prong infra.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015)
(quotation marks and citations omitted).
Parental rights may be terminated notwithstanding the existence of a
parent-child bond. When examining the effect upon a child of severing a
bond, courts must examine whether termination of parental rights will
destroy a “necessary and beneficial relationship,” thereby causing a child to
suffer “extreme emotional consequences.” In re E.M., 620 A.2d 481, 484-
85 (Pa. 1992).
Here, the juvenile court examined the evidence of record and
concluded that T.J.J.’s primary bond was with her pre-adoptive foster
parents, not Mother, and that T.J.J. would not suffer irreparable emotional
harm if Mother’s parental rights were terminated. Juvenile Court Opinion,
10/23/2019, at 9-11. Further, the juvenile court noted that Mother has
been unable to provide T.J.J. with a healthy, safe environment or meet her
emotional, physical, and developmental needs for multiple years in a row.
Id. Since 2016, T.J.J.’s relationship with Mother had been largely forged
during hour-long visitation sessions, and due to Mother’s spotty attendance,
such contact had been increasingly inconsistent. Id. T.J.J. was bonded with
her foster parents, and she had experienced progress and stability in their
care. Id.
Based on the evidence of record as detailed earlier in this
memorandum, we discern no abuse of discretion in the juvenile court’s
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conclusions. T.J.J. has spent most of her short life in foster care. Therefore,
the juvenile court did not abuse its discretion in concluding that at this point,
the relationship T.J.J. has with her foster parents is the one to protect over
the one she has with Mother. While it is clear that T.J.J. enjoys her time
with Mother, we agree with the juvenile court that nothing in the record
suggests that terminating Mother’s parental rights would cause T.J.J. to
suffer extreme emotional consequences and sever a relationship that is
necessary to T.J.J. Therefore, the juvenile court did not abuse its discretion
by determining that T.J.J.’s needs and welfare was best served by
terminating Mother’s parental rights.
Based upon the foregoing, we agree with counsel that a challenge to
the sufficiency of evidence to support the juvenile court’s decision to
terminate Mother’s parental rights pursuant to subsections 2511(a) and (b)
has no merit. Additionally, our review of the record reveals no “arguably
meritorious issues that counsel, intentionally or not, missed or misstated.”
Dempster, 187 A.3d at 272. Accordingly, we affirm the decree terminating
Mother’s parental rights and grant counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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