Term. of Par. Rights to: A.L., Appeal of: C.L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
TERMINATION OF PARENTAL RIGHTS : IN THE SUPERIOR COURT OF
TO: A.L., A MINOR : PENNSYLVANIA
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APPEAL OF: C.L., MOTHER :
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: No. 1647 MDA 2022
Appeal from the Decree Entered November 16, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 058-ADOPT-2022
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 1, 2023
C.L. (“Mother”) appeals from the November 16, 2022 decree that
terminated her parental rights to her daughter, A.L., born in October 2007.1
In this Court, Mother’s counsel has filed an application to withdraw pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that Mother’s
appellate claims are frivolous, along with a brief. After careful review, we
affirm the decree of the orphans’ court and grant counsel’s application.
Cumberland County Children & Youth Services (“CYS” or “the agency”)
first became involved with this family following two referrals in February 2021
regarding allegations of inappropriate discipline by Mother and A.L.’s truancy.
See N.T., 11/15/22, at 6. Specifically, the agency received reports that
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* Retired Senior Judge assigned to the Superior Court.
1 A.L.’s father was G.S., who passed away on February 1, 2008.
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Mother was expressing inappropriate anger towards A.L., threatening to throw
her out of the family home, and that A.L. had over fifty unexcused absences
from school between November 2020 and January 2021. Id. at 19-20. Upon
establishing contact, CYS also became concerned regarding Mother’s mental
health due to her “erratic behavior,” which included excessive “yelling and
screaming” and threats to file “criminal charges” against CYS representatives
for defamation of her character. Id. at 6, 24-25. During this initial meeting,
Mother claimed that certain unidentified individuals were “following her and
trying to kill her.” Id. at 84. Mother was also unwilling, or unable, to
acknowledge A.L.’s serial educational absences. Id. at 7. Shortly thereafter,
A.L. self-reported that she was “not feeling safe in Mother’s home.” Id. at 8.
On April 13, 2021, CYS filed a dependency petition with respect to A.L.,
which was granted on June 23, 2021. A.L. was placed with a foster family and
the court initially set a permanency goal of reunification with Mother.
Following evaluation, A.L. was diagnosed with a generalized anxiety disorder
and an “attachment injury,” or an inability to form an appropriate maternal
bond with Mother. Id. at 67-70. These disorders were directly attributable
to Mother’s upbringing of A.L., and her symptoms worsened during her
interactions with Mother. Id. Specifically, A.L. would experience negative
changes in her eating behavior and exhibit despondent behavior on days she
was scheduled to visit her Mother. Id. at 59.
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With respect to her permanency objectives, Mother was ordered to: (1)
present records from her mental healthcare provider(s) or, in the alternative,
obtain a mental health assessment and sign related medical releases; (2)
complete a parenting evaluation with Alternative Behavior Consultants
(“ABC”); and (3) cooperate with the agency’s efforts to provide services. Id.
at 13; see also Order, 6/23/21. Initially, Mother was permitted supervised
visitations with A.L. in the community. However, A.L. quickly expressed she
was “not comfortable” continuing with these visits. N.T., 11/15/22, at 35-39,
60-62. In response, CYS offered in-person visitations at ABC, which Mother
declined due to her concerns regarding the staff. Id. at 38-39. Consequently,
Mother had no physical visits with A.L. for approximately one year and little
other contact aside from a limited number of supervised video calls that took
place between May and September 2022. Id. at 35-39, 50-51.
On September 22, 2022, CYS filed a petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),
and (b).2 Six days later, Mother reached out to CYS and, for the first time,
expressed a willingness to go forward with in-person visits at ABC. Id. at 28.
The orphans’ court held a termination hearing on November 15, 2022, wherein
CYS adduced testimony from, inter alia, CYS caseworkers Pricylla Derosier and
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2 On July 13, 2022, the orphans’ court appointed Jennifer Archer, Esquire, to
serve as A.L.’s guardian ad litem (“GAL”) and separately designated Cindy
Martin, Esquire, as her legal counsel pursuant to 23 Pa.C.S. § 2313(a).
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John Bouder, CYS casework supervisor Katherine Whitney, case manager
Lauren Taylor, A.L’s foster father, and Leslie Londre, a mental health clinician
who evaluated A.L. for the purposes of this matter. A.L. also testified at the
hearing and expressed, inter alia, her preference that Mother’s parental rights
be terminated. Id. at 103. Mother testified on her own behalf.
Ultimately, the orphans’ court concluded that CYS had met its burden
and terminated Mother’s parental rights to A.L. in a final decree filed on
November 16, 2022. On December 2, 2022, Mother filed a timely notice of
appeal along with a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the orphans’
court filed a responsive opinion pursuant to Rule 1925(a)(ii).
In this Court, Mother’s counsel has filed an application to withdraw
pursuant to Anders along with a brief expressing his belief that Mother’s
potential appellate claims are frivolous. This Court has extended the Anders
procedures to appeals taken from decrees terminating parental rights
involuntarily. See In re Adoption of B.G.S., 240 A.3d 658, 661 (Pa. Super.
2020) (citing In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)).
Accordingly, we will begin our review by considering counsel’s petition to
withdraw and the accompanying brief. See B.G.S., 240 A.3d at 661 (“When
faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.”).
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In order to withdraw pursuant to Anders, counsel must: (1) petition
the court for leave to withdraw and aver that, after making a conscientious
examination of the record, he has determined that an appeal would be
frivolous; (2) furnish a copy of the Anders brief to the appellant; and (3)
advise the appellant that they have the right to retain private counsel or bring
additional arguments to the court’s attention. Id. By way of confirming that
client notification has taken place, our precedent requires that counsel provide
this Court with a copy of the letter advising the appellant of his or her rights
in conformity with Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.
Super. 2005). See B.G.S., 240 A.3d at 661.
Our Supreme Court has also set forth substantive requirements for
counsel’s Anders brief, which 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 would arguably support 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. Id. (citing
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)). Thus, a
compliant Anders brief 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.” Id. (quoting Santiago, 978 A.2d at 361).
Instantly, counsel has submitted both a petition to withdraw and an
Anders brief averring that Mother’s appeal is frivolous. Attached to counsel’s
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application is a Millisock letter dated February 7, 2023, indicating that
counsel provided a copy of the brief to Mother. See Application to Withdraw,
2/9/23, at 6-7. This letter properly advised Mother of her right to retain
alternative counsel or raise supplemental arguments on her own.3 Id. Our
review similarly confirms that counsel’s Anders brief provides a cogent and
well-cited summary of the factual and procedural history of this matter. See
Anders Brief at 6-9. Furthermore, the brief contains an orderly and well-
researched discussion of governing Pennsylvania law. Counsel refers to
several lines of argument that might support Mother’s appeal, but ultimately
explains that these potential points of contention are frivolous in light of the
unchallenged evidence supporting the orphans’ court’s involuntary
termination of her parental rights. Id. at 10-19.
Based on the foregoing, we find that counsel has complied with the
requirements attendant to Anders. Accordingly, we will proceed to review
the issues outlined in his brief. In so doing, we must also “conduct an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” B.G.S., 240 A.3d at 662 (quoting
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)).
Our standard of review in this context is well-settled:
In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the
decree of the termination court is supported by competent
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3 Mother has not tendered a response to counsel’s application to withdraw.
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evidence. When applying this standard, the appellate court must
accept the trial court’s findings of fact and credibility
determinations if they are supported by the record. Where the
trial court’s factual findings are supported by the evidence, an
appellate court may not disturb the trial court’s ruling unless it
has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion or the
facts could support an opposite result. Instead, an appellate court
may reverse for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-
will. This standard of review reflects the deference we pay to trial
courts, who often observe the parties first-hand across multiple
hearings.
In considering a petition to terminate parental rights, a trial court
must balance the parent’s fundamental right to make decisions
concerning the care, custody, and control of his or her child with
the child’s essential needs for a parent’s care, protection, and
support. Termination of parental rights has significant and
permanent consequences for both the parent and child. As such,
the law of this Commonwealth requires the moving party to
establish the statutory grounds by clear and convincing evidence,
which is evidence that is so clear, direct, weighty, and convincing
as to enable a trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.
Interest of M.E., 283 A.3d 820, 829-30 (Pa. Super. 2022) (internal citations
and quotation marks omitted).
The involuntary termination of parental rights is governed at statute by
23 Pa.C.S. § 2511 of the Adoption Act, which necessitates a bifurcated analysis
that first focuses upon the “eleven enumerated grounds” of parental conduct
that may warrant termination pursuant to Section 2511(a)(1)-(11). M.E., 283
A.3d at 830. If the orphans’ court determines that a petitioner has established
grounds for termination under at least one of these subsections by “clear and
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convincing evidence,” the court then assesses the petition under Section
2511(b), which focuses primarily upon the child’s developmental, physical and
emotional needs and welfare. Id. at 830 (citing In re T.S.M., 71 A.3d 251,
267 (Pa. 2013)); see also 23 Pa.C.S. § 2511(b). This Court “need only agree
with any one subsection of § 2511(a), in addition to § 2511(b), in order to
affirm the termination of parental rights.” T.S.M., 71 A.3d at 267 (citing In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc)).
Our analysis in this proceeding implicates Section 2511(a)(8) and (b),
which provide as follows:
(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), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(8), (b).
In order to satisfy Section 2511(a)(8), the petitioner must prove that:
(1) the child has been removed from the parent’s care for at least 12 months;
(2) the conditions which led to the removal or placement still exist; and (3)
that termination of parental rights would best serve the needs and welfare of
the child. See In re Adoption of J.N.M., 177 A.3d 937, 943 (Pa. Super.
2018). Furthermore, termination pursuant to Section 2511(a)(8) does not
require an evaluation of a parent’s willingness or ability to remedy the
conditions that led to the removal or placement of the child. See In re
M.A.B., 166 A.3d 434, 446 (Pa. Super. 2017). Rather, the relevant inquiry is
focused upon whether the at-issue “conditions” have been “remedied” such
that “reunification of parent and child is imminent at the time of the hearing.”
In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). This Court has acknowledged:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child's
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This 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. Indeed, we
work under statutory and case law that contemplates only a short
period of time, to wit eighteen months, in which to complete the
process of either reunification or adoption for a child who has been
placed in foster care.
Id. at 11-12 (emphasis in original; internal citations omitted).
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Finally, this Court has explained that,
while both Section 2511(a)(8) and Section 2511(b) direct us to
evaluate the “needs and welfare of the child,” we are required to
resolve the analysis relative to Section 2511(a)(8), prior to
addressing the “needs and welfare” of [the child], as pr[e]scribed
by Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).
With respect to Section 2511(b), we are required to “give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b). It is well-established that this inquiry
“requires the trial court to consider the nature and status of bond between a
parent and child.” M.E., 283 A.3d at 837 (citing In re E.M., 620 A.2d 481,
484-85 (Pa. 1993). “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 Adoption of J.N.M., 177 A.3d
937, 944 (Pa. Super. 2017) (quoting E.M., 640 A.2d at 484-485). However,
the “bond examination” is only one amongst many factors to be considered in
assessing the soundness of termination:
In 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. In determining needs
and welfare, the court may properly consider the effect of the
parent’s conduct upon the child and consider whether a parent is
capable of providing for a child’s safety and security or whether
such needs can be better met by terminating a parent’s parental
rights.
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M.E., 283 A.3d at 837 (internal citations omitted).
Instantly, the orphans’ court concluded that termination of Mother’s
parental rights was appropriate pursuant to section 2511(a)(8) and set forth
the following rationale for its holding:
[A.L. has] indisputably been removed from [Mother’s] care for a
period of 12 months or more. The reasons for the [c]hild’s
removal from [Mother’s] care were based in [Mother’s] untreated
mental health affecting her ability to parent, and the most critical
piece of reunification has always been [Mother] obtaining a mental
health assessment and subsequent mental health treatment,
which turned into a directive for a psychiatric assessment, and the
corollary directive to obtain the parenting assessment to assess
parenting skills needs. [Mother’s] refusal to engage with these
goals and directives on the basis that she feels they are
unnecessary has left the case essentially where it began over a
year ago. It is clear to us, as it always has been, based both on
reports of [Mother’s] fabricated allegations akin to conspiracy
theories that participants in the dependency action have labored
to keep her daughter from her and in unsafe conditions, on
[Mother’s] demeanor in the courtroom, and on obvious sorrow and
trauma displayed by her daughter in the courtroom and to her
[GAL], that [Mother] requires mental health treatment.
Unpredictability in [Mother’s] behavior is the touchstone of this
case. [A.L.] was removed from her care on the basis of such
unpredictability, making [A.L.] feel unsafe and miss extensive
school, and which has played out in [Mother’s] inability to discern
what is reality, or act sensibly, and practically speaking, in the
ability of the parent and child to communicate in a health or safe
manner or for [A.L.] to feel secure in the home with [Mother].
This condition has not been remedied in any manner and has in
fact increased in severity based on our observations of [Mother]
and on continued reports of [Mother’s] fantastical allegations.
....
We found competent evidence of record and are convinced that it
is in [A.L.’s] best interests to terminate [Mother’s] parental rights
and allow for her to be adopted by her foster parents. [A.L.] feels
safe, stable, and loved in the home she has come to feel like her
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own since April of last year. [A.L.] feels love for [Mother], worries
about her, and believes she will have contact with her in the
future, but does not feel the relationship is presently emotionally
healthy or comfortable for her and wishes to be adopted by her
foster family.
Trial Court Opinion, 1/11/23, at 9-11. Our review of the certified record
reveals ample support for the orphans’ court’s above-recited findings.
With respect to the first prong of Section 2511(a)(8), there is no dispute
that A.L. was removed from Mother’s care and placed with her foster family in
June 2021, more than twelve months prior to the agency’s filing of a
termination petition in September 2022. Thus, this first factor is satisfied.
Removal was mandated after CYS became concerned regarding the
status of Mother’s mental health and its effects upon A.L. See N.T., 11/15/22,
at 6-8, 24-25. Specifically, A.L. described Mother’s parenting as “very
unpredictable” and testified that Mother regularly resorted to “yelling and
throwing stuff and just not really caring about what anyone else thinks or like
has to say[.]” Id. at 100, 106. In addition to threatening to kick A.L. out of
her home at the age of fourteen, Mother’s mental state contributed to A.L.
accruing more than fifty school absences in a mere three-month period. Id.
at 19-20. Moreover, A.L. was diagnosed with both a generalized anxiety
disorder and an “attachment injury” due to her inability to “feel safe” with
Mother. Id. at 67-70.
In the fifteen months since A.L.’s removal, the record reflects that
Mother has flatly declined numerous opportunities to address these concerns.
See id. at 10-13. Instead, Mother advanced unfounded claims concerning her
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daughter, including that A.L. was pregnant, being starved and abused by her
foster family, and had been diagnosed with a heart condition that prevented
her from attending school. Id. at 31-35, 43, 53, 56-57. Mother also contacted
both local law enforcement and the Federal Bureau of Investigation and
claimed that A.L. was the victim of human trafficking being perpetrated by her
foster family, which triggered an investigation that found no basis for the
allegations. Id. at 33-35. To be clear, none of these assertions have ever
been substantiated, and A.L. vigorously denied them during the termination
hearing. Id. at 33-35, 107. Furthermore, Mother has been unable to adduce
alleged proof of these claims when asked to do so. Id. at 57-58.
Mother has also largely refused to provide releases that would permit
the disclosure of her psychological evaluations and related medical records.
Id. at 11. She provided a single, limited release with respect to one
healthcare provider in June 2021, which confirmed only that she had been
diagnosed with post-traumatic stress disorder. Id. However, the agency was
unable to obtain any follow-up information concerning Mother’s prognosis or
recommended treatment. Furthermore, despite receiving two referrals for
parenting evaluations in September 2021 and March 2022, Mother was
“unsuccessfully discharged” from the program on both occasions for failing to
schedule an initial appointment. Id. at 15. On another occasion in February
2022, Mother threatened to assault Ms. Derosier with a pair of scissors during
a home visit. Id. at 30, 53-54.
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Based on the foregoing testimony, we also find ample support for the
orphans’ court’s finding that the conditions that led to A.L.’s removal persist.
Thus, the second prong of Section 2511(a)(8) has been satisfied.
Turning to the third and final statutory prong, the record also supports
the orphans’ court’s conclusion that A.L.’s needs and welfare will be best
served by severing Mother’s parental rights. At the termination hearing, Ms.
Londre averred that A.L.’s mental trauma and resulting diagnoses were
attributable to her upbringing by Mother. Id. at 69-70. Furthermore, Ms.
Londre reported that A.L.’s mental health symptoms initially improved
following her removal, but worsened once in-person visitations with Mother
began in September 2022. Id. at 73 (“[A]fter the in-person visits began is
when we noticed the uptick in severity of symptoms.”). As noted above, A.L.
was a chronic truant under Mother’s care. Since entering foster care, by
contrast, A.L. has greatly improved her educational performance and is
currently earning “all A’s” at school.4 Id. at 17. Taken as a whole, the record
uniformly indicates that Mother causes A.L. to experience serious anxiety and
detrimentally affects her ability to thrive. Accordingly, we discern no error in
the orphans’ court’s assessment that termination of parental rights best
served A.L.’s needs and welfare pursuant to Section 2511(a)(8).
Having determined that there are sufficient grounds for termination
pursuant to at least one subsection of 23 Pa.C.S. § 2511(a), we now turn to
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4 At the termination hearing, her foster father expressed the family’s intention
to pursue adoption, which A.L. also desires. See N.T., 11/15/22, at 73, 91.
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Section 2511(b), which affords “primary consideration” to “the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S. § 2511(b).
With respect to the bond assessment required under this subsection, we
acknowledge that Mother clearly professed that she loves A.L. and desires that
she be returned to her care. See N.T., 11/15/22, at 41, 118. However, the
record equally reflects that A.L. does not share these feelings for Mother and
does not feel a bond with her. Id. at 97. Specifically, Ms. Taylor reported
that A.L. did not want to have any contact with Mother: “[A.L.] was not
comfortable with visits period. . . . [S]he would’ve preferred no visits
entirely.” Id. at 61. To that end, Ms. Taylor testified that A.L. and Mother
“primarily communicated through bickering and arguing.” Id. at 62.
The following exchange is demonstrative of A.L.’s preferences:
Q [A.L.], do you believe your mom loves you?
A Yes.
Q Do you believe that she wants the best for you.
A I think she wants what’s best for her.
Q Why do you say that?
A Because in the long run she doesn’t think about how
anything she’s done has affected me, and she only thinks about
her own reputation out of this.
Q Do you understand that if the [c]ourt does terminate your
mom’s rights that that’s it, it’s final? Her rights will be completely
and finally terminated, do you understand that?
A Yes.
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Q Okay. But you’re still asking the [c]ourt to do that?
A Yes.
Id. at 103. Stated succinctly, there is no evidence of a positive bond between
Mother and A.L. and there is no indication that termination will destroy a
“necessary and beneficial relationship,” or otherwise cause A.L. to suffer
“extreme emotional consequences.” J.N.M., 177 A.3d at 944.
Moreover, as detailed above in our analysis of the third prong of Section
2511(a)(8), there is more-than-adequate support for the orphans’ court’s
finding that terminating Mother’s parental rights served A.L.’s developmental,
physical, and emotional needs and welfare. Thus, we discern no error.
In sum, our independent review confirms that Mother is not entitled to
relief and we are satisfied that the record does not contain any non-frivolous
issues overlooked by Mother’s counsel. Therefore, we grant counsel’s petition
to withdraw pursuant to Anders and we affirm the decree of the orphans’
court involuntarily terminating Mother’s parental rights to A.L.
Petition to withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2023
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