Opinion
J-S95033-16 No. 1725 EDA 2016 No. 1726 EDA 2016
02-01-2017
IN THE INTEREST OF: C.P.S.B., a Minor v. APPEAL OF: C.B., Father IN THE INTEREST OF: A.N.S.B., a Minor v. APPEAL OF: C.B., Father
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 9, 2016 in the Court of Common Pleas of Philadelphia County, Family Court at No(s): CP-51-AP-0000100-2016, CP-51-DP-0001739-2014 Appeal from the Order May 9, 2016 in the Court of Common Pleas of Philadelphia County, Family Court at No(s): CP-51-AP-0000101-2016, CP-51-DP-0001149-2012 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
C.B. ("Father") appeals from the Orders granting the Petitions filed by the Philadelphia Department of Human Services ("DHS") to involuntarily terminate his parental rights to his daughter, A.N.S.B., born in February 2011, and his son, C.P.S.B., born in July 2012 (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changing their permanency goals to adoption. Additionally, Gary S. Server, Esquire ("Attorney Server"), Father's counsel, has filed a Petition to Withdraw as counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We grant Attorney Server's Petition to Withdraw, and affirm the trial court's termination Orders.
This Court, sua sponte, consolidated Father's appeals from the termination Orders.
DHS included S.S. ("Mother") in its Petitions for involuntary termination of parental rights. On June 6, 2016, the trial court involuntarily terminated Mother's parental rights to Children. Mother is not a party to the instant appeal.
The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 9/9/16, at 1-2.
Father, through counsel, filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. On October 12, 2016, Attorney Server filed a Petition to Withdraw as counsel.
In the Anders Brief, the following questions are presented for our review:
I. Whether[,] under the Juvenile Act, 42 Pa.C.S.A. [§] 6351, and 55 Pa. Code [§] 3130.74, in accordance with the provisions of the federal Adoption and Safe Families Act ["ASFA"], 42 U.S.C. [§] 671 et seq., reasonable efforts were made to reunite [] Father with [] Children[?]Anders Brief at 6 (numbering added, claims separated to conform to arguments set forth in brief). Father neither filed a pro se brief, nor retained alternate counsel for this appeal.
II. [W]hether the goal changes to adoption were the dispositions best suited to the safety, protection and physical, mental and moral welfare of [] Children[?]
III. Whether it was proven by clear and convincing evidence that Father's parental rights should be terminated under [23 Pa.C.S.A. §] 2511(a) [and] (b)[?]
We must first determine whether Attorney Server has complied with the dictates of Anders in petitioning to withdraw from representation. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (stating that "[w]hen counsel files an Anders brief, this Court may not review the merits without first addressing counsel's request to withdraw."). This Court has extended the Anders principles to a first appeal by an indigent parent from a decree involuntarily terminating his or her parental rights. See In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992). Pursuant to Anders , when an attorney believes that an appeal is frivolous and wishes to withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the [client], counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to [the client] and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention.In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted). With respect to the third requirement of Anders , that counsel inform the client of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [a] petition to withdraw a copy of the letter sent to the[] client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a proper 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.Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009). Once counsel has satisfied the above requirements, this Court "must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." In re S.M.B., 856 A.2d at 1237.
Here, Attorney Server has complied with the requirements set forth in Anders by indicating that he "made a thorough and objective review" of the record and determined that an appeal would be frivolous. Further, the record contains a copy of the letter that Attorney Server sent to Father, informing him of Attorney Server's intention to withdraw and advising him of his right to proceed pro se, retain counsel, and file additional claims. Finally, Attorney Server's Anders Brief meets the standards set forth in Santiago. Because Attorney Server has complied with the procedural requirements for withdrawing from representation, we will independently review the record to determine whether Father's appeal is, in fact, wholly frivolous.
In his first claim, Father asserts that DHS did not make reasonable efforts to reunite Father and Children. Anders Brief at 18. Father argues that the social workers assigned to his case "simply did not complete the tasks necessary to verify[] his employment or to show the [c]ourt that his housing was appropriate and safe for [C]hildren." Id. Based on these contentions, Father claims that DHS violated the Juvenile Act and AFSA. Id.
Citing to 42 U.S.C. § 675(1)(B), Attorney Server asserts that AFSA "requires that a social service agency formulate a plan for assuring that the child receives safe and proper care and that services are provided to the parents." Anders Brief at 19.
However, Attorney Server points out that this argument is rendered frivolous by the Supreme Court of Pennsylvania's holding, in In re D.C.D., 105 A.3d 662, 673-74 (Pa. 2014), that it is unnecessary to demonstrate that an agency has made reasonable efforts to reunite a parent with his child before the parent's rights may be terminated. Anders Brief at 18. Attorney Server also indicates that, even if Father could present such a claim, it would not be supported by the evidence of record. Id. at 19. Attorney Server states that "[t]he appropriate referrals, opportunities and services were provided to [F]ather. It was [F]ather's inability[,] over the course of 21 months[,] to completely avail himself of the services that were offered to him, or to provide the necessary documentation, or to abide by the simple common sense rules of his visitation that ensured the safety of [C]hildren, that thwarted the attempt to reunify this family." Id. at 20.
As Attorney Server correctly points out, the Juvenile Act does not require a showing of reasonable efforts in order to terminate parental rights. See In re D.C.D., 105 A.3d at 673-74. Specifically, the Supreme Court of Pennsylvania has held that,
Although Attorney Server suggests that there may be a question as to whether Pennsylvania state law is in conflict with federal law, he fails to identify the particular conflict, or cite to any legal authority in support of such argument. See Pa.R.A.P. 2119(a) (requiring that each point in an argument contain "such discussion and citation of authorities as are deemed pertinent."). Nevertheless, our independent research reveals no legal authority supporting such a claim. --------
while reasonable efforts should be considered and indeed, in the appropriate case, a trial court could insist upon their provision, we hold that nothing in the language or the purpose of Section 6351(f)(9) [of the Juvenile Act] forbids the granting of a petition to terminate parental rights, under Section 2511, as a consequence of the agency's failure to provide reasonable efforts to a parent.Id. at 675. Thus, we conclude that Father's first claim is frivolous.
As Father's second and third claims are related, we will address them together. In his second claim, Father argues that the change in Children's permanency goal to adoption "was not the disposition best suited to the safety, protection and physical, mental and moral welfare of [Children]." Anders Brief at 20. Father asserts that, during the hearing, Father "claimed to have fulfilled some of his objectives," and "denied that he had received the necessary continuity in [social] workers that he needed." Id. Father also claims that he has a strong bond to Children, he has obtained stable housing, and he is ready to assume his parental responsibilities. Id.
However, Attorney Server points out that "[F]ather[,] throughout the case[,] refused to accept completely the service[s] that could have been provided to him ... service[s that were] designed to keep him free of drugs and to provide him with the necessary skills to avoid drug addiction and to keep [C]hildren safe." Id. at 21. Attorney Server further indicates that "a goal change to adoption in a loving family setting would be the disposition best suited to the safety, protection and physical, mental and moral welfare of [C]hildren ... [b]ecause [F]ather failed to affirmatively assume his parental duties within the 21 months and failed to ... fully complet[e] the rather simple objectives imposed upon him in this case[.]" Id. at 22.
In his third claim, Father contends that DHS failed to prove by clear and convincing evidence that his parental rights to Children should be terminated under Sections 2511(a)(1), (2), (5), (8) and (b). Anders Brief at 23. Father claims that he sufficiently fulfilled his objectives, is "clean from substances," has stable housing and employment, and is capable of providing Children with the essential parental care, control and subsistence necessary for their physical and mental well-being. Id. at 25-26. Father asserts that the conditions and causes that led to his incapacity, abuse, neglect or refusal have been remedied within the time allotted by the Adoption Act. Id. at 26. Father argues that he is "best suited to provide [for] the developmental, physical and emotional needs and welfare of [C]hildren." Id.
However, Attorney Server contends that Father's third claim is frivolous because he refused or was unable to achieve stability for himself or for Children. Id. Attorney Server asserts that "[F]ather demonstrated a total lack of insight into the problems that led to the placement of [C]hildren" and blamed the social workers for the termination of his parental rights. Id. Attorney Server also claims that Father failed to avail himself of drug treatment, obtain documentation of his employment, or allow access to his home. Id. Further, Attorney Server states that "the conditions that led to the incapacity, abuse and neglect had not been remedied" due to Father's failure to cooperate with his social workers. Id. at 27. Attorney Server argues that "[t]he evidence showed that [C]hildren had been in placement for almost two years, that they did not appear to have a meaningful bond with [F]ather, ... and that they would not be harmed in any way by terminating [Father's] parental rights." Id. at 27-28.
In its Opinion, the trial court set forth the relevant law, addressed Father's second and third claims, and concluded that they lack merit. See Trial Court Opinion, 9/9/16, at 3-6. We agree with the reasoning of the trial court and affirm on this basis as to Father's second and third claims. See id.
Further, our independent examination of the record indicates that there are no other non-frivolous claims that can be raised. See In re S.M.B., 856 A.2d at 1237. Accordingly, we conclude that Father's appeal is frivolous, and Attorney Server is entitled to withdraw as counsel.
Petition to Withdraw granted; Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/1/2017
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