Opinion
J-S65027-19 No. 1062 MDA 2019 No. 1063 MDA 2019 No. 1064 MDA 2019
01-13-2020
IN RE: K.J.K., A MINOR APPEAL OF: J.L.C., MOTHER IN RE: E.J.K., A MINOR APPEAL OF: J.L.C., MOTHER IN RE: W.P.J.K., A MINOR APPEAL OF: J.L.C., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered, May 30, 2019, in the Court of Common Pleas of Berks County, Orphans' Court at No(s): 86415. Appeal from the Decree Entered, May 30, 2019, in the Court of Common Pleas of Berks County, Orphans' Court at No(s): 86416. Appeal from the Decree Entered May 30, 2019 in the Court of Common Pleas of Berks County, Orphans' Court at No(s): 86417. BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY KUNSELMAN, J.:
Retired Senior Judge assigned to the Superior Court.
J.L.C. (Mother) appeals from the decrees entered by the Berks County Orphans' Court, which involuntarily terminated her parental rights to three of her children (four-year-daughter K.J.K, two-year-daughter E.J.K., and one-year-son W.P.J.K.) pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Additionally, Mother's counsel has filed a petition to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738 (1967) and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm the termination decrees.
The orphans' court also terminated the parental rights of J.K. (Father). He filed a separate appeal, which is also before this panel.
The orphans' court summarize the factual and procedural history of this matter as follows:
[Father] and [Mother] (collectively "Parents") are the natural parents of K.J.K. (born October [] 2014), E.J.K. (born January [] 2017) and W.P.[J.]K. (born January [] 2018) (collectively "the Children"). Mother and Father were not married when the Children were born. Mother has three additional children who do not reside with her and Father has two additional children that do not reside with him.
Berks County Children and Youth Services ("BCCYS") first engaged Parents and Children ("the Family") in 2013, though services were discontinued when Parents moved into Montgomery County. In November of 2015, upon referral from BCCYS and the Family moving into Montgomery County, Montgomery County Children and Youth Services ("MCCYS") became involved in funding services and supervision of the case due to ongoing mental health, domestic violence and housing stability issues.
In 2017, upon referral from MCCYS indicating that the Family had moved back into Berks County, BCCYS was re-engaged with the Family in order to address ongoing issues with both Mother and Father. After several months within which several incidents and continuing issues prompted safety plans from BCCYS, but the safety plans were repeatedly broken. On October 12, 2017, BCCYS filed an emergency petition for custody of K.J.K. and E.J.K. that was granted by the court. BCCYS then filed a dependency petition for K.J.K. and E.J.K., and upon a hearing before this court, legal custody was transferred to BCCYS for placement purposes. The primary established goal was return of K.J.K. and E.J.K. to the most appropriate parent with a concurrent goal of adoption.
Mother gave birth to W.J.K. [i]n January [] 2018. After no reported prenatal care and both Mother and W.[P.]J.K. tested positive for methamphetamines, BCCYS filed a petition on March 13, 2018 seeking dependency of W.[P.]J.K. The court ordered that W.[P.]J.K. would remain with Parents as he was still hospitalized, but also ordered that foster parents were allowed to visit W.[P.]J.K. due to Parents' inconsistent visits. Upon his discharge from the hospital, BCCYS filed for emergency custody of W.[P.]J.K. and after a hearing, legal custody was transferred to BCCYS on March 28, 2018.
[***]
On October 31, 2018, [BCCYS] filed a petition for the involuntary termination of the parental rights of both Mother and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). The petition cited the same following factual support for grounds for termination:
a. Failure of Mother and Father to obtain and maintain a legal/stable source of income;
b. Failure of Mother and Father to obtain and maintain stable and appropriate housing;
c. Inability of Mother and Father to appropriately parent the Children;
d. Failure of Mother and Father to show progress with parenting skills;
e. Failure of Mother and Father to remediate substance abuse issues;
f. Concerns remaining regarding Mother's and Father's mental health; and
g. Concerns remaining regarding issues of domestic violence.
Trial Court Opinion, 8/15/19, at 1-16 (citations to the record omitted).
A hearing on the petition was held on May 13, 2019 and continued for a second day on May 23, 2019.
[***]
Upon conclusion of the hearing, the court took the matter under advisement. Thereafter, [the court] filed separate orders dated May 30, 2019 terminating the parental rights of both Mother and Father as to K.J.K., E.J.K., and W.[P.]J.K.
Initially, we note that Mother's counsel filed an Anders brief and a petition to withdraw. Before reaching the merits of Mother's appeal, we must first address counsel's request to withdraw. See Commonwealth v. Rojas , 874 A.2d 638, 639 (Pa. Supr. 2005) ("'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.'") (quoting Commonwealth v. Smith , 700 A.2d 1301, 1303 (Pa. Super. 1997)). "[T]his Court extended the Anders principles to appeals involving the termination of parental rights." In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citation omitted). 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 [ Anders ] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citing Commonwealth v. Lilley , 978 A.2d 995, 997 (Pa. Super. 2009)). With respect to the third requirement of Anders , that counsel inform the appellant 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).
Additionally, an Anders brief must comply with the following requirements:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361.
(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.
In the instant matter, counsel has filed a petition to withdraw, certifying that he has reviewed the case and determined that Mother's appeal is wholly frivolous. Counsel also has filed a brief that includes a summary of the history and facts of the case, issues raised by Mother, and counsel's assessment of why those issues are frivolous, with citations to relevant legal authority. Counsel has included in his brief a copy of his letter to Mother, advising her that she may obtain new counsel or raise additional issues pro se.
Accordingly, counsel has substantially complied with the requirements of Anders and Santiago. See Commonwealth v. Reid , 117 A.3d 777, 781 (Pa. Super. 2015) (observing that substantial compliance with the Anders requirements is sufficient). Therefore, we may proceed to review the issues outlined in the Anders brief. In addition, we must "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers , 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Counsel's Anders brief lists the following in the section entitled statement of questions presented:
1. Did the [orphans' court] err by terminating [Mother's] parental rights because the evidence presented by [BCCYS] was insufficient to support the lower court's decision?Anders Brief at 4.
We are mindful of our well-settled standard of review:
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Termination of parental rights is governed by section 2511 of the Adoption Act, which requires a bifurcated analysis:
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.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The petitioner must prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
When terminating parental rights under section 2511(a), this court has stated that the focus is on the parent; but under section 2511(b), the focus in on the child. See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the evidence in support of termination under section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, "the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations omitted). Although it is often wise to have a bonding evaluation and make it part of the certified record, "[t]here are some instances...where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child." In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008).
A parent's abuse and neglect are also a relevant part of this analysis. See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental rights, despite existence of some bond, where placement with mother would be contrary to child's best interests). "[A] parent's basic constitutional right to the custody and rearing of ... her child is converted, upon the failure to fulfill ... her parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).
In the argument section of the brief, counsel presents three reasons that support Mother's appeal. First, counsel cites to the fact that Mother is the biological parent of the Children. The fact alone does not merit a reversal. "[T]he goal of preserving the family unit cannot be elevated above all other factors when considering the best interests of the children, but must be weighed in conjunction with other factors." In re K.D., 144 A.3d 145, 153 (Pa. Super. 2016) (citing In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa. Super. 2011).
Second, counsel argues that Mother became substantially compliant with the supervised visiting protocol. The orphans' court found the opposite, that Mother repeatedly missed or cancelled visitation with the Children. See T.C.O. at 14, 15, 18, 19. This finding is supported by the record.
Third, counsel argues that Mother did receive treatment for "medical management and anxiety[.]" See Anders Brief at 5. The apparent inference is that Mother's ailments were legitimate. We do not question the legitimacy of Mother's struggle to maintain suitable mental health. However, that does not excuse Mother from her duty to parent the Children. If anything, the question becomes whether Mother's mental health renders hers incapable of parenting, pursuant to 23 Pa.C.S.A. § 2511(a)(2). In any event, the orphans' court determined that Mother failed to treat her mental health in such a meaningful way that it would alleviate the concerns of BCCYS. While we conclude that this determination was supported by the record, we emphasize that Mother's mental instability was but one of several reasons that led to the Children's removal from her care. Mother could not remedy the other concerns either.
We have reviewed the certified record, the briefs of the parties, the applicable law, and the extremely thorough 20-page opinion of the Bucks County Orphans' Court. We conclude that the court's well-reasoned opinion accurately disposes of the issues relating to the parental rights termination issues presented on appeal and we discern no abuse of discretion or error of law. Accordingly, we adopt orphans' court opinion as our own and employ that discussion as part of our basis for affirming the decrees from which these appeals arose.
In sum, our independent review of Mother's claims does not persuade us that she is entitled to relief. Moreover, our review of the record does not reveal any non-frivolous issues overlooked by counsel. See Flowers , 113 A.3d at 1250. Therefore, we grant counsel's petition to withdraw, and affirm the orphans' court decrees.
Decrees affirmed. Petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/13/2020
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