Opinion
J-S35013-17 No. 1822 WDA 2016
06-06-2017
IN THE MATTER OF THE ADOPTION OF: I.J.A. APPEAL OF: L.R.A.-S., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree October 28, 2016
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 39 In Adoption 2016 BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
L.R.A.-S. (Father) appeals from the decree, entered in the Court of Common Pleas of Erie County, involuntarily terminating his parental rights to his minor daughter, I.J.A. (Child), (born 6/2013), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), & (b) of the Adoption Act. Father's counsel has also filed a petition to withdraw from representation, pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. McClendon , 434 A.2d 1185, (Pa. 1981). After careful review, we affirm and grant counsel's petition to withdraw.
See 23 Pa.C.S. §§ 2101-2910.
Child was born in June 2013 in Marion, Florida. In July 2014, Mother moved to Erie County, Pennsylvania, with Child; Father remained in Florida where he was incarcerated on a probation violation in Marion County jail. On October 31, 2014, Child was removed from Mother's care and placed in the temporary protective custody of Erie County Office of Children and Youth (ECOCY/the Agency); the Agency had concerns about Mother's history of drug abuse, unstable mental health, and unstable housing. On November 4, 2014, the Agency filed a dependency petition alleging that Child was without proper parental care or control due to Mother's drug and mental health issues and Father's incarceration. After a hearing, Child was adjudicated dependent on November 18, 2014.
Father has a criminal history dating back to 2010, in Florida, for strong armed robbery, resisting arrest, fleeing and eluding law enforcement, battery, and grand theft auto.
On October 29, 2016, the court entered a decree acknowledging that Mother executed a consent to adopt petition with regard to Child and that her parental rights were terminated. Decree, 10/27/16. Mother is not a party to this appeal.
After a dispositional hearing in December 2014, the court implemented permanency plans for Mother and Father. Father's plan included the following conditions: that Father contact the Agency upon his release from prison in order to have a treatment plan, including visitation, developed; and that Father avail himself of any services that he may benefit from while incarcerated. At subsequent permanency hearings held in April 2015, June 2015, and October 2015, the court found that Father was not in compliance with the plan. Following the October 2015 permanency hearing, Child was returned to Mother's care. In December 2015, Child was removed from Mother's care and placed in the protective physical and legal custody of the Agency. At a January 2016 combined shelter care and permanency hearing, the court found sufficient evidence was presented to prove that continuation or return of Child to parents was not in her best interest; the court ordered the placement goal be changed to adoption. Child was placed in a pre-adoptive foster home where she bonded with her foster family.
On May 11, 2016, the Agency filed a petition to involuntarily terminate Mother's and Father's parental rights to Child. On October 28, 2016, the court held a termination hearing at which Father, ECOCY caseworkers and counselors, and Child's foster mother testified. On October 28, 2016, the court entered an order terminating Father's parental rights to Child. On November 23, 2016, Father's attorney, W. Charles Sacco, Esquire, filed a timely notice of appeal as well as a statement of intent to file an Anders brief, alleging that "no-non-frivolous appellate issues exist and [that he] intends to file a Petition to Withdraw as counsel and brief [and that he] filed this statement in lieu of a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(c)(4)." See In the Interest of J.T., 983 A.2d 771, 772 (Pa. Super. 2009) (applying Anders procedures and Rule 1925(c)(4) to appeals involving the termination of parental rights).
Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record . . ., counsel has determined the appeal would be frivolous;In re: S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (emphasis in original) (citation omitted). Moreover, "[w]hen considering an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw." Id. at 1237. In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders , i.e., the contents of an Anders brief, and instructed that the brief must:
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no-merit" letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points he deems worthy of the court's attention.
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361. After our Court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, our Court then undertakes an independent examination of the record to determine whether the appeal is wholly frivolous. In re: S.M.B., supra. With respect to the third requirement of Anders , that counsel inform the defendant of his rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [his] petition to withdraw a copy of the letter sent to [his] client advising him . . . of [his] rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
(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.
Here, Attorney Sacco filed a petition indicating that he reviewed the record and determined that an appeal would be frivolous. Petition for Leave to Withdraw as Counsel, 3/10/17, at ¶ 5. In his petition, counsel refers to any issues he believes could arguably support an appeal, including anything in the record that could support an appeal. Attached to his petition to withdraw, counsel included a copy of the letter he sent to Father. In this letter, counsel informed Father of his intention to seek leave to seek permission to withdraw because there are no meritorious issues. Letter, 3/8/17. In that letter counsel also advised Father that he has the right to retain new counsel, proceed pro se, and to raise any points he believes are worthy of this Court's attention. Id. Accordingly, we conclude that counsel has complied with the aforementioned requirements, and will proceed to address the merits of the issued raised on appeal as well as conduct our own independent review of the entire record.
On appeal, Father presents the following issues for our review:
(1) Whether the orphan's court commit[t]ed an abuse of discretion or error of law when it concluded that the [Erie County Office of Children & Youth (ECOCY)] established grounds for termination of parental rights under 23 Pa.C.S.A. [§§ ]2511(a)(1)(2)(5) and (8)[?]
2. Whether the orphan's court commit[t]ed an abuse of discretion or error of law when it concluded that the termination of appellant's parental rights was in the child's best interest pursuant to 23 Pa.C.S.A. [§§] 2511(b)[(1)] including the developmental, physical and emotional needs and welfare of the child[?]
We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id. Moreover,
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
We note that this Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc).
After reviewing the parties' briefs, the record, and the relevant case law, we affirm the trial court's order involuntarily terminating Father's parental rights to Child on the basis of the well-written decision authored by the Honorable Robert A. Sambroak, Jr. Father was incarcerated in Florida at the time that Child was adjudicated dependent. Even after his release from prison in early 2015, he only saw Child on one occasion and talked to her on the phone twice. During the entire time of her placement, Father never sent Child birthday cards, gifts or letters. Father was arrested again in Florida in September of 2015 for unarmed burglary and is currently serving a sentence of 188 months' imprisonment.
Father testified that his conviction is on appeal and that if he is afforded relief he could receive a reduced sentence of five years' imprisonment. See N.T. Termination Hearing, 10/28/16, at 24. --------
Child is thriving with her pre-adoptive, foster family. The record bears out the fact that Father has failed to assert a place of importance in Child's life while he has been incarcerated, even acknowledging that he was not in a position to parent Child. See N.T. Termination Hearing, 10/28/16, at 24, 29 ("I don't have any resources to be able to write . . . letters or call . . . any time I want to."); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (while incarceration neither compels nor precludes termination, it is potentially determinative factor in court's conclusion that grounds for termination exist under section 2511(a)(2) where repeated and continued incapacity to parent due to incarceration has caused child to be without essential parental care, control or subsistence and causes of incapacity cannot or will not be remedied).
Moreover, Father simply cannot meet the "developmental, physical and emotional needs and welfare of [Child]." 23 Pa.C.S. § 2511(b). Father has not seen Child for most of her young life; there is no apparent parent-child bond. The positive impact that Child's pre-adoptive foster parents have had on Child's emotional and developmental needs is significant and supports the trial court's decision to terminate Father's parental rights under section 2511(b). See In the Interest of T.A.C., 110 A.3d 1028 (Pa. Super. 2015).
We instruct the parties to attach a copy of Judge Sambroak's decision in the event of further proceedings in the matter.
Order affirmed. Petition to Withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/6/2017
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