Opinion
1860 EDA 2023
01-11-2024
IN RE: M.R.M., A MINOR APPEAL OF: K.M., FATHER
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered June 23, 2023 In the Court of Common Pleas of Bucks County Orphans' Court at No(s): 2023-A9031
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM
DUBOW, J.
Appellant, K.M. ("Father"), appeals from the June 23, 2023 decree that involuntarily terminated his parental rights to two-year-old M.R.M. ("Child"). Appellant's counsel, Katrina Ihrer, Esq., has filed a petition to withdraw as counsel and an Anders Brief, to which Appellant has not filed a response. Upon review, we grant counsel's petition to withdraw and affirm the decree.
Anders v. California, 386 U.S. 738 (1967).
In its Pa.R.A.P. 1925(a) opinion, the trial court has authored a thorough and accurate factual and procedural history, which we adopt for purposes of this appeal. Trial Ct. Op., dated 8/16/23, at 1-4. Briefly, C.G. ("Mother") and Father are parents to Child, who was born in July of 2021. The Bucks County Children and Youth Social Services Agency ("the Agency") first became involved with Child on October 14, 2021, following a report of Child's failure to thrive as a newborn. Mother executed a voluntary placement agreement on October 18, 2021, and Child was placed in a pre-adoptive foster home. On November 16, 2021, the trial court adjudicated Child dependent and Child remained in the same foster home.
Father has not seen Child since she came into the custody of the Agency. Father is a convicted sex offender and lifetime registrant under Megan's Law. He was convicted of Indecent Assault of a Person Under Thirteen in 2001 and again in 2004; the victims were a three-year-old male and a five-year-old female. At the time that Child came into the care of the Agency, Father was on probation for failure to register. As a condition of his probation, Father was required to comply with recommended sexual offender treatment programs, and he was generally prohibited from contact with minors unless he complied with sex offender treatment and the treatment center approved a safety plan for contact. Father was never in compliance with a sex offender treatment plan to the extent that the program would authorize a safety plan. Most recently, in April 2022, John J. Peters Institute ("JJPI") discharged Father from its sex offender treatment program for noncompliance and Father has not successfully re-enrolled in a program to date.
In February 2023, the court revoked Father's probation for noncompliance, including noncompliance with treatment recommendations, missing bi-weekly probation appointments, leaving the County of Philadelphia in violation of the terms of his probation, and being dishonest about his whereabouts. After the court revoked Father's probation, the court specifically ordered that Father was not allowed to have contact with minors until at least February 16, 2024.
On March 2, 2023, the Agency filed a petition for the involuntary termination of Father's parental rights. The trial court appointed Christine McMonagle, Esq., to serve as both Child's legal counsel and guardian ad litem ("GAL"), after determining there was no conflict between the dual roles.
The Agency filed a petition to involuntarily terminate Mother's parental rights, as well, and the court terminated Mother's parental rights to Child on June 23, 2023. Mother is not a subject of this appeal.
On June 20, 2023, the court held a hearing on the petition. With regards to Father, the court heard testimony from Victoria Villone, Probation and Parole Officer with the Philadelphia Adult Probation and Parole Department; David Attryde, JJPI Director of Outpatient Services; Carrie Albright, Agency caseworker; and Maura McCormick, Agency caseworker, all of whom testified in accordance with the above stated facts.
In addition, Ms. Albright testified that Father last saw Child in October of 2021, when she was a newborn, and does not have a bond with Child. Ms. Albright explained that Child has been in the same pre-adoptive foster home since she was a newborn. Child lives with foster mother, A.S ("Foster Mother"). Child is bonded to Foster Mother, whom Child looks to for comfort and for all of her needs. Foster Mother ensures that Child receives Early Intervention Services including physical therapy, occupational therapy, and speech therapy, and ensures that Child receives ongoing medical treatment from various specialists. Ms. Albright testified that she believed it was in Child's best interest to terminate Father's parental rights.
On June 23, 2023, the trial court terminated Father's parental rights to Child pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8) and (b). Child's GAL agreed that the termination of Father's parental rights is in Child's best interests.
Father timely appealed. Both Father and the trial court complied with Pa.R.A.P. 1925.
On September 19, 2023, Attorney Ihrer filed an Anders Brief indicating that, upon review, Father's appeal is wholly frivolous. Father failed to respond.
In the Anders Brief, counsel indicated that Father wished to raise a sole issue for our review, "Did the trial court commit an error of law and abuse of discretion by involuntarily terminating [Father's] parental rights?" Anders Br. at 2.
A.
As a preliminary matter, we address appellate counsel's request to withdraw as counsel. "When presented with an Anders Brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010). In order for counsel to withdraw from an appeal pursuant to Anders, our Supreme Court has determined that counsel must meet the following requirements:
(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).
Counsel has complied with the mandated procedure for withdrawing as counsel. Additionally, counsel confirms that she sent Appellant a copy of the Anders Brief and petition to withdraw, as well as a letter explaining to Appellant that he has the right to retain new counsel, proceed pro se, and to raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will address the substantive issue raised in the Anders Brief. Subsequently, we must "make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5 (citation omitted). See also Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires the reviewing court to "review 'the case' as presented in the entire record with consideration first of issues raised by counsel").
B.
In addressing Father's issues, we are mindful of our well-settled standard of review. When we review a trial court's decision to grant or deny a petition to involuntarily terminate parental rights, we must accept the findings of fact and credibility determinations of the trial court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). "If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion." Id. (citation omitted). "Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs termination of parental rights, and requires a bifurcated analysis. "Initially, the focus is on the conduct of the parent." In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (citation omitted). "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)." Id. (citation omitted). "Only if the court determines that the parent's conduct warrants termination of his or her parental rights," the court then engages 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." Id. (citation omitted). Notably, we need only agree with the court's decision as to any one subsection of Section 2511(a), as well as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008). We concentrate our analysis on subsection 2511(a)(1).
C.
Section 2511(a)(1) provides that the trial court may terminate parental rights if the petitioner establishes that "[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." 23 Pa.C.S. § 2511(a)(1). The focus of involuntary termination proceedings is on the conduct of the parent and whether that conduct justifies a termination of parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). Although the statute focuses on an analysis of the six months immediately preceding the filing of the petition, the court must consider the whole history of a given case and may consider a parent's inaction before the six-month statutory provision. In re K.Z.S., 946 A.2d at 758.Additionally, "[t]he court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination." Id. (citations omitted). Notably, "[w]ith respect to any petition filed pursuant to subsection (a)(1) . . . the court shall not consider any efforts of the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition." 23 Pa.C.S. § 2511(b).
This Court has repeatedly defined "parental duties" in general as the affirmative obligation to provide consistently for the physical and emotional needs of a child:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty . . . requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal quotation marks, and internal paragraph breaks omitted).
Moreover, "[p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances." Id. "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." Id.
Our review of the record reveals that the trial court did not abuse its discretion when it concluded that the Agency presented clear and convincing evidence to terminate Father's parental rights under Section 2511(a)(1). The trial court considered the totality of the circumstances and concluded that Father had refused or failed to perform parental duties. The court credited the testimony of Officer Villone and Ms. Albright that Father failed to comply with the terms of his probation, and most notably failed to comply with sex offender treatment, so that he could visit with Child. The court opined:
Here, Father clearly failed to establish and maintain a place of importance in the Child's life. Father, in his prehearing statement, argued it was not his purpose to relinquish his claim to the Child, but that he was not given the opportunity to care for the Child and that the Agency failed to assist him in reunification. However, testimony at hearing indicated to the contrary. Ms. Albright, the Agency caseworker, testified that Father neither engaged in services, nor were any offered to him. Instead, Father informed Ms. Albright that he was "doing what he needed to do through probation." The testimony of Father's probation officer made it clear that Father was not doing what he needed to do. He did not comply with the terms of his probation, he did not follow through with his treatment programs, he did not establish a safety plan, and he did not request the Agency to set up supervised visits during the year that he may have been eligible for such visits while the Child was in care.
Father is not eligible to have contact with the Child again until February of 2024 at the earliest. Father cannot delay his relationship with the Child until a more "convenient time." Father showed no history or efforts of an "affirmative performance," resisting "obstacles placed in [his] path," or any personal exertion in an attempt to develop or maintain a parent-child relationship with the Child. Father continued on the same path he was on before the Child came into care: inconsistent in his reporting, not staying in compliance with the terms of his probation, and not taking personal responsibility for his actions. We perceive that the Agency demonstrated by clear and convincing evidence that
Father has failed to perform his parental duties during more than the six months prior to filing the petition for termination and that termination is warranted pursuant to Section 2511(a)(1) of the Adoption Act.Trial Ct. Op. at 8-9 (internal citations omitted). We agree. Father's refusal to engage in treatment prevented him from having contact with Child for well-over the six months preceding the filing of the termination petitions, and for most of Child's life. The record supports the trial court's findings. We decline to reweigh the evidence or interfere with the trial court's credibility determinations. Accordingly, we find no abuse of discretion.
D.
With respect to Section 2511(b), our analysis focuses on the effect that terminating the parental bond will have on the child. This Court reviews whether "termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child." In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that "[i]ntangibles such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of the child." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted).
One major aspect of the "needs and welfare" analysis concerns the nature and status of the emotional bond that the child has with the parent, "with close attention paid to the effect on the child of permanently severing any such bond." In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super. 2018) (citation omitted). "In cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." In re K.Z.S., 946 A.2d at 762-63. "In addition to a bond examination, the court can equally emphasize the safety needs of the child under subsection (b), particularly in cases involving physical or sexual abuse, severe child neglect or abandonment, or children with special needs." Id. at 763. Moreover, the trial court may consider intangibles, such as the love, comfort, security, and stability the child might have with the adoptive resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).
Instantly, the trial court placed great weight on the fact that Father had not seen Child since Child was a newborn. The court credited Ms. Albright's testimony that Child was bonded to Foster Mother and that termination of parental rights would be in Child's best interest. The court opined:
The uncontroverted evidence heard by this Court established that no bond exists between Father and the Child. The record is devoid of any testimony that Father may have any plans to connect with the Child, provide for the Child, or fulfill any of his parental duties. The evidence revealed that Father has never assumed a parental role in the Child's life and has never contributed to the Child's developmental, physical and emotional needs. All those needs are provided for the Child by her foster mother. Accordingly, this Court found that the Child's best interests, needs, and welfare were served by terminating Father's parental rights. We perceive that any potential harm caused by severing Father's legal relationship to the Child is greatly outweighed by the bond the Child shares with her foster mother, who is an adoptive resource.Trial Ct. Op. at 18. The court also considered Child's safety and well-being, emphasizing that Father has not participated in necessary sex offender treatment to keep Child safe. The court observed, "the victims in Father's indecent assault convictions were three and five years old. [C]hild is now just over two years old, and Father has not complied with the treatment necessary to ensure her safety, were he to have contact." Id. at 17 (internal citation omitteed). The record supports the trial court's findings, and we discern no abuse of discretion. Once again, we decline to usurp the trial court's credibility determinations or reweigh the evidence.
D.
Following our review of the issues raised in counsel's Anders Brief, we agree with counsel that the trial court did not abuse its discretion in terminating Father's parental rights pursuant to Section 2511(a) and (b). In addition, our independent review of the proceedings reveals there are no issues of arguable merit to be raised on appeal. Accordingly, we grant counsel's petition to withdraw and affirm the decree terminating Father's parental rights.
Decree affirmed; petition to withdraw as counsel granted.
Judgment Entered.