In the Int. of: M.S.-L., Appeal of: R.L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.S.-L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.L., FATHER :
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: No. 2348 EDA 2022
Appeal from the Order Entered August 16, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001249-2020
IN THE INTEREST OF: M.S.-L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: R.L., FATHER :
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: No. 2349 EDA 2022
Appeal from the Decree Entered August 16, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000080-2022
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 23, 2023
R.L. (“Father”) appeals from the decree terminating his parental rights
as to his minor child, M.S.-L. (“Child”), as well as from the order changing the
goal to adoption. Father’s counsel has filed an Anders1 brief and a motion to
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1Anders 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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withdraw as counsel. Upon review, we grant counsel’s motion to withdraw,
affirm the termination decree, and dismiss the appeal from the goal-change
order as moot.
Child was born in September 2020. Less than two months later, he was
placed in the legal custody of the Philadelphia Department of Human Services
(“DHS”) due to his mother’s non-compliance with mental health treatment and
medication management.2 N.T., 7/20/22, at 10-11; Shelter Care Order,
11/23/20. Child’s mother was also transient and lacked housing. N.T.,
7/20/22, at 11. Father was 16 years old at that time and was not involved in
Child’s care. See Dependency Petition, 12/3/20, at ¶ 5(x). Child was
adjudicated dependent in March 2021. See Order of Adjudication and
Disposition, 3/16/21. Child has been in care continuously since November
2020. N.T., 7/20/22, at 61. Child’s current foster home is a pre-adoptive
home. Id. at 39.
On February 8, 2022, DHS filed a petition for involuntary termination of
Father’s parental rights. A hearing on the petition was held on July 20, 2022
and August 16, 2022. Although Father was served with notice of the hearing,
he did not appear on either date. Id. at 2, 8-9; N.T., 8/16/22, at 2.
At the termination hearing, DHS presented the testimony of its
caseworker, Edward McNichol. McNichol testified that Father’s goals were to
complete parenting classes and a father’s initiative program at the Achieving
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2 Child’s mother is not involved in this appeal.
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Reunification Center (“ARC”), as well as supervised visitation with Child. N.T.,
7/20/22, at 59, 74. McNichol rated Father’s compliance with his case plan
objectives as “[n]one.” Id. at 63. He testified that Father’s referral to ARC was
closed out due to Father’s non-compliance. Id. at 61-62. McNichol was also
unaware of Father’s current whereabouts and did not know whether Father
was employed. Id. at 62. McNichol additionally stated that Father had failed
to stay in contact with DHS. Id. at 62-63; N.T., 8/16/22, at 30.
McNichol further testified that Father had visited Child at the agency
“less than a dozen” times and had never progressed to unsupervised visits.
N.T., 7/20/22, at 60-61. At the time of the termination hearing, Father had
not visited Child in over four months. Id. at 74; N.T., 8/16/22, at 28.
McNichol also testified that there is not a parent/child bond between
Child and Father, and he believed Child would suffer no irreparable harm if
Father’s parental rights were terminated. N.T., 7/20/22, at 63. He stated that
Child has a very strong bond with his foster parents and is happy and thriving
in their home. Id. at 38, 42-43. Child calls his foster mother “Mom-mom” and
looks to his foster parents for his daily needs and medical appointments. Id.
at 43-44.
Child’s maternal cousin, M.B., testified that Child has been in her care
since December 2021. N.T., 8/16/22, at 21. She stated that Father has never
visited Child at her home since he was placed with her. Id. at 22, 26. M.B.
testified that Child has no relationship with Father and would not be upset if
he did not have contact with Father. Id. at 26.
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At the conclusion of the hearing, the court terminated Father’s parental
rights. Id. at 45. This appeal followed.
Counsel’s Anders brief identifies two issues:
1. Whether the trial court abused its discretion and erred as
a matter of law in terminating [Father’s] parental rights
under 23 Pa.C.S.A. [§] 2511(a) and (b) because the
decision was not supported by competent evidence[?]
2. Whether the trial court abused its discretion and erred as
a matter of law in changing the permanency goal to
adoption because the decision was not supported by
competent evidence[?]
Anders Br. at 8.
Before we consider whether the appeal is frivolous, 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”). 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).
Further, in the Anders brief, counsel seeking to withdraw must:
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(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 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 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 two 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 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. Motion
to Withdraw, 11/14/22, at ¶ 7, Ex. A. 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 issues counsel has identified.
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The first issue raised in counsel’s Anders brief challenges the sufficiency
of the evidence supporting termination of Father’s parental rights under 23
Pa.C.S.A. § 2511(a) and (b).
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
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
the precise facts in issue.” Id. (citation omitted).
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
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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). 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 court found termination proper under subsections
2511(a)(1), (2), (5), and (8), as well as under section 2511(b). See Trial
Court Opinion, 10/14/22, at 2. As only one basis for termination under
2511(a) is necessary, we will focus on the court’s termination of Father’s
parental rights under subsection 2511(a)(1). That subsection provides that a
parent’s rights to a child may be terminated if:
[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).
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Pursuant to subsection 2511(a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six months
prior to the filing of the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to perform parental
duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008). A parental
obligation is a “positive duty which requires affirmative performance” and
“cannot be met by a merely passive interest in the 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, the trial court found that Father had made no efforts to perform
any parental duties since the time Child was placed in foster care in November
2020. The evidence was that Father has never been involved in the care of
Child since he was born. Except for less than a dozen supervised visits with
Child, Father has done entirely nothing to parent Child. He did not avail himself
to DHS services throughout the life of the case, his whereabouts were
unknown, and he failed to complete any of his goals. In sum, Father has made
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no attempts to perform any parental duties or work toward reunification with
Child. We perceive no non-frivolous basis on which to challenge the sufficiency
of the evidence to support the finding under subsection 2511(a)(1).
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
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. 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 it was in Child’s best interest to terminate Father’s
parental rights under section 2511(b). Trial Ct. Op. at 2. There was ample
testimony that Child has no relationship with Father and no parental bond with
him. In contrast, there was evidence that Child is thriving and strongly bonded
to his foster family, who are eager to adopt him. We agree that the challenge
to the finding under section 2511(b) is frivolous.
In sum, we find 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 motion to
withdraw. Having determined the appeal is wholly frivolous, we affirm the
decree terminating Father’s parental rights. Because we affirm the termination
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order, the appeal from the goal-change order is moot, and any appeal would
be frivolous. See Int. of A.M., 256 A.3d 1263, 1272-73 (Pa.Super. 2021)
(finding issues regarding goal change moot in light of termination of parental
rights); see also In re D.K.W., 415 A.2d 69, 73 (Pa. 1980) (stating once
parental rights are terminated, issues of custody and dependency under
Juvenile Act are moot). We therefore dismiss that appeal.
Motion to withdraw as counsel granted. Decree affirmed at No. 2349
EDA 2022. Appeal dismissed at No. 2348 EDA 2022.
Judge McCaffery joins the memorandum.
Judge Dubow did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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