Opinion
J-S28044-16 No. 3391 EDA 2015
05-20-2016
IN RE: Z.A.S., A MINOR APPEAL OF: D.T., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree September 22, 2015 in the Court of Common Pleas of Bucks County
Orphans' Court at No.: 2015-9065-36 BEFORE: BOWES, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
In these related cases, D.T. (Father) and K.E.S. (Mother), each appeal from the decrees, entered in the Court of Common Pleas of Bucks County on September 22, 2015, independently terminating their parental rights to their son, Z.A.S. (Child), born in April of 2007. Both parties' counsel have filed Anders briefs, and petitions to withdraw from further representation. We affirm the involuntary termination of both parents' parental rights on the basis of the trial court's opinions, and we grant counsel's petitions to withdraw from further representation.
See Anders v. California , 386 U.S. 738 (1967).
In the interest of judicial economy, we address both appeals in one memorandum which will be entered as our decision in each of these appeals.
Preliminarily, we observe that the trial court properly relates the facts and procedural history of these cases in its two separate opinions entered on December 4, 2015. Therefore, we need not repeat the details of this history here.
We refer the reader to those opinions for a more detailed recitation of the facts of these cases.
For the convenience of the reader we note briefly that both parents originally lived in Maine. Father continues to live there, in an assisted living facility. He is disabled and receives social security disability payments. Father claims the benefit of a relatively small trust fund, but was vague about details and could not obtain funds to travel to Bucks County for the hearing. In any event there is some question whether he was medically fit to travel.
Father reportedly suffers from a history of rheumatoid arthritis, stroke, diabetes, high blood pressure, and hepatitis C. He has had osteomyelitis, and had toes amputated, which led to infections, and the administration of antibiotics which adversely affected his liver. ( See N.T. Hearing, 9/18/15, at 26-27, 45-46, 49).
Mother apparently took Child from Maine without Father's knowledge or permission. Father's recent contact with Child has been limited and sporadic. Until 2014 Child apparently did not know Father was his biological father. He thought his father was one of Mother's other paramours. Father admitted he was not currently able to care for himself, or for Child. ( See N.T. Hearing, 9/18/15, at 56).
Mother has a long history of substance abuse, including heroin. When Child was born he tested positive for opiates and cocaine. ( See id. at 10-11). Mother has endured episodes of homelessness. She was admitted to a shelter but was evicted for drug use. She obtained Section 8 housing in Bucks County, but lost it for failure to pay rent. She had reportedly been living with a boyfriend, but her current whereabouts are unknown. Mother has three active bench warrants outstanding.
In the summer of 2013, Mother moved to Pennsylvania with a boyfriend and with Child. Mother has long suffered from mental health issues, for which she has failed to obtain continuing treatment or medication. Child was removed from Mother's custody and care on reports she was abusing heroin, and neglecting Child. She twice refused to take a drug test. Child was subsequently declared dependent. He has been living with his foster parents since March, 2014.
The trial court held hearings in this matter on September 18 and September 22, 2015. Mother failed to attend either hearing. Father participated in the September 18 hearing by telephone. At the September 18 hearing, the court heard the testimony of Bucks County Children and Youth Social Services Agency (BCCYS) caseworker, Brenda Bunting, and of Father.
Mother failed to appear at the hearing on September 18, 2015, even though a BCCYS caseworker personally served her with notice of the hearing and after BCCYS confirmed with Mother's attorney, one day before the hearing, that Mother was aware of the hearing. To accommodate Mother, the trial court scheduled an additional hearing for September 22, 2015. ( See Trial Court Opinion [in Mother's case], 12/04/15, at 7-8). The trial court entered the decrees at issue after Mother failed to appear on September 22.
The trial court entered its decrees terminating Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8) and (b) on September 22, 2015. Mother, through counsel, filed a notice of appeal and statement pursuant to Pa.R.A.P. 1925(c)(4) on October 14, 2015. Father, through his counsel, filed a notice of appeal and statement pursuant to Pa.R.A.P. 1925(c)(4) on October 22, 2015.
See In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (holding that decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in a termination of parental rights case was proper).
Counsel raises the following question on appeal on behalf of Mother:
1. Did the trial court commit an error of law and abuse of discretion by involuntarily terminating [Mother's] parental rights?(Mother's Brief, at 2).
Father's counsel presented the following questions for our review:
A. Should [Father's] counsel be permitted to withdraw his appearance because the appeal is wholly frivolous?(Father's Brief, at 3).
B. Was the termination of the [Father's] parental rights premature in light of his disability and consequent inability to maintain contact with [Child]?
Our standard of review is well-settled:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.
Here, the trial court terminated Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(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:
* * *
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
* * *
23 Pa.C.S.A. § 2511(a)(2), (b).
(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 which are first initiated subsequent to the giving of notice of the filing of the petition.
A party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,
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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger , 459 Pa. 636, 331 A.2d 172 (1975). There the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), the petitioner for involuntary termination must prove:
"[t]he repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent."Id. at 173.
The Adoption Act provides in pertinent part that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
Before we begin our analysis, we must dispose of the applications to withdraw as counsel filed by the attorneys representing both Mother and Father.
Both counsel have filed a petition with this Court to withdraw from representation pursuant to Anders v. California , 386 U.S. 738 (1967) and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).
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) (citation omitted) (emphasis in original).
(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.
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. "When considering an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw." In re S.M.B., supra 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 required that the brief:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , supra at 361. "After an appellate court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." In re S.M.B., supra at 1237.
(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.
With respect to the third requirement of Anders , that counsel inform the defendant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to their petition to withdraw a copy of the letter sent to their client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Here both attorneys have stated in their petitions that they have made a conscientious review of the record, concluded that their client's appeal is wholly frivolous, and stated the reasons for their conclusion. In addition, each has timely mailed their respective client: (1) a copy of their petition to withdraw; (2) a copy of their Anders brief; and (3) letters advising their clients of their rights to proceed pro se or to retain private counsel if the petition is granted and to raise any additional issues that they deem worthy of consideration. Each counsel has filed the required Anders brief in this Court setting forth the issues they believe might arguably support their client's appeal. Thus, we conclude that counsel for both Mother and Father have substantially satisfied the procedural requirements of Anders and we will grant them leave to withdraw as counsel.
Neither party responded.
We have thoroughly reviewed the record, briefs, and the applicable law, and determined that the evidence presented is sufficient to support the trial court's decrees terminating Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2) and (b).
Our analysis of the trial court's opinions confirms that the trial court carefully and methodically reviewed the evidence and ably addressed both Mother's and Father's issues presented on appeal. Accordingly, we will affirm both dispositions based on the concise, thoughtful, and well-written opinions of the Honorable Gary B. Gilman, entered in each case on December 4, 2015. Specifically, as to Mother, the trial court concluded that she had failed to pursue the avenues open to her for assistance, and clear and convincing evidence confirmed that Child's needs and welfare would be better served by termination of Mother's parental rights. ( See Trial Ct. Op. [in Mother's case], at 10-11). As to Father, the trial court concluded that termination was warranted where the record confirmed by clear and convincing evidence that Father has not been, and continues not to be, capable of adequately parenting Child; Child's needs and welfare, including the need for permanence and stability, would be better served by the involuntary termination of Father's parental rights. ( See Trial Court Opinion [in Father's case], 12/04/15, at 11).
Accordingly, we affirm the trial court's decrees, entered September 22, 2015, terminating Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).
Decrees affirmed. Petitions to withdraw as counsel granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/20/2016
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