Opinion
J-S23031-17 No. 3207 EDA 2016 No. 3208 EDA 2016 No. 3209 EDA 2016
05-05-2017
IN THE INTEREST OF: Y.K.W., a Minor APPEAL OF: K.I.H., Mother IN THE INTEREST OF: K.D.W., a Minor APPEAL OF: K.I.H., Mother IN THE INTEREST OF: I.T.W., a Minor APPEAL OF: K.I.H., Mother
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order dated September 16, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000786-2015; CP-51-DP-0001907-2013 Appeal from the Order dated September 16, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000785-2015; CP-51-DP-0001908-2013 Appeal from the Order dated September 16, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000784-2015; CP-51-DP-0001909-2013 BEFORE: OLSON, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
K.H. ("Mother") appeals from the Orders granting the Petitions, filed by the Philadelphia Department of Human Services ("DHS"), involuntarily terminating Mother's parental rights to her children, Y.K.W., K.D.W. and I.T.W. (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother's counsel, Gary Server, Esquire ("Counsel"), has filed a Motion to Withdraw from his representation of Mother, and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant Counsel's Motion to Withdraw and affirm the Orders of the trial court.
This Court consolidated Mother's appeals for disposition. We additionally note that Children's father has filed separate appeals of the orders terminating his parental rights to Children, and changing their placement goals to adoption, at Nos. 3340, 3341 & 3342 EDA 2016.
This Court has extended the Anders principles to cases involving the termination of parental rights. In the Interest of J.J.L., 150 A.3d 475, 479 (Pa. Super. 2016).
We adopt the trial court's comprehensive summary of the facts and procedural history for the purpose of this appeal. See Trial Court Opinion, 12/6/16, at 1-5.
On September 16, 2016, the trial court entered its Orders terminating Mother's parental rights to Children, and changing Children's placement goals to adoption. Mother filed timely Notices of Appeal, accompanied by a Pa.R.A.P. 1925(b) Concise Statements of matters complained of on appeal.
Subsequently, Counsel filed with this Court a Motion to Withdraw from his representation of Mother, and an Anders brief.
When presented with an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw. J.J.L., 150 A.3d at 479. To be permitted to withdraw, 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 brief to the client; and (3) advise the client that he or she has the right to retain private counsel or raise additional arguments that the client deems worthy of the court's attention. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).
In his Motion to Withdraw, Counsel states that he "has made a thorough and conscientious examination of the record[,]" and "believes that this appeal[,] in its present procedural posture[,] is wholly frivolous and without support in the law or facts." Motion to Withdraw, 1/22/17, at ¶¶ 4, 5. Counsel represents that he has notified Mother in writing of his conclusion that the appeal has no merit, that "[C]ounsel is moving to withdraw[,]" and that Mother "has the right to represent herself and to participate in the appeal or to hire private counsel." Id. at ¶ 3. Counsel states that he has notified Mother of the withdrawal request, supplied her with copies of the Motion to Withdraw and the Anders brief, and sent Mother a letter explaining her right to proceed pro se or with new, privately- retained counsel to raise any additional points or arguments that Mother believes have merit. See id. at ¶ 3; Letter, 1/22/17. Consequently, we conclude that Counsel has met the procedural requirements of Anders.
We must next determine whether counsel's Anders brief meets the requirements established by the Pennsylvania Supreme Court in Santiago. In Santiago , our Supreme Court stated that the 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.Santiago , 978 A.2d at 361. Further, "[a]fter establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa. Super. 2006) (quoting Commonwealth v. Townsend , 693 A.2d 980, 982 (Pa. Super. 1997)).
In the Anders brief, Counsel has provided a summary of the facts and procedural history of the case, referred to evidence of record that might arguably support the issues raised on appeal, provided citations to relevant case law, stated his conclusion that the appeal is wholly frivolous, and provided his reasons for concluding that the appeal is frivolous. Accordingly, counsel has complied with the requirements of Anders and Santiago .
We note that Counsel failed to include the Pa.R.A.P. 1925(b) Concise Statement in the Anders brief. Cf. Pa.R.A.P. 2111(d) (there shall be appended to the brief of the appellant a copy of the statement of errors complained of on appeal ...."). As Counsel's omission does not affect our review, we will address the claims raised in the Anders brief.
Mother has not filed a pro se brief or a counseled brief with new, privately-retained counsel. We, therefore, review the following issues raised in the Anders brief:
[1.] WHETHER UNDER THE JUVENILE ACT, 42 PA.C.S.A. SECTION 6351, AND 55 PA. CODE SECTION 3130.74, IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL ADOPTION AND SAFE FAMILIES ACT [("ASFA")], 42 U.S.C.[A.] SECTION 671 ET SEQ., REASONABLE EFFORTS WERE MADE TO REUNITE [] MOTHER WITH [] CHILDREN[,] AND WHETHER THE GOAL CHANGES TO ADOPTION WERE THE DISPOSITIONS BEST SUITED TO THE SAFETY, PROTECTION AND PHYSICAL, MENTAL AND MORAL WELFARE OF [] CHILDREN[?]Anders Brief at 6.
[2.] WHETHER IT WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT MOTHER'S PARENTAL RIGHTS SHOULD BE TERMINATED UNDER SECTIONS 2511(a) & (b)[?]
In the Anders brief, Mother claims that the Department of Human Services ("DHS") and its contracted agencies failed to make reasonable efforts to reunite her with Children. Id. at 17. Mother asserts that DHS failed to give her necessary paperwork and the Family Service Plan ("FSP"). Id. Mother also contends that the social workers told her what to do, without providing her objectives in writing. Id. Mother claims that she failed to comply with the objectives through no fault of her own. Id. For these reasons, Mother argues that DHS did not make reasonable efforts to reunite her with Children, thereby violating the Juvenile Act and the ASFA. Id.
Our Supreme Court has set forth the following standards in reviewing the termination of parental rights:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. ... [O]ur standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (some internal citations omitted).
The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Moreover, as we have explained, "[t]he 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.'" Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
In its Opinion, the trial court set forth the relevant law and its reasons for terminating Mother's parental rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b). See Trial Court Opinion, 12/6/16, at 5-7, 8-10. The trial court's findings are supported in the record; its legal conclusions are sound; and we discern no abuse of discretion by the trial court. See id. We therefore affirm on the basis of the trial court's Opinion, with regard to the termination of Mother's parental rights to Children. See id.; see also In re D.C.D., 105 A.3d 662, 675 (Pa. 2014) (stating that, "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.").
In her second claim, Mother argues that it was not proven, by clear and convincing evidence, that her parental rights should be terminated. Anders Brief at 19. Mother asserts that a change of goal is "not the disposition best suited to the safety, protection and physical, mental and moral welfare of [C]hildren." Id. In support, Mother claims to have a strong bond with [C]hildren[,] which was demonstrated by the attention she lavished on them during the visits she kept[,] and by the affection they showed her during her visits." Id. Mother asserts that Children were asking to come home, and that she has stable housing. Id.
"When we review a trial court's order to change the placement goal for a dependent child to adoption, our standard is abuse of discretion." In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). "[T]he best interests of the child and not the interests of the parent must guide the trial court, and the burden is on the child welfare agency involved to prove that a change in goal would be in the child's best interest." In re R.I.S., 36 A.3d 567, 573 (Pa. 2011) (citations omitted). The safety, permanency, and well-being of the child must take precedence over all other considerations. In the Matter of S.B., 943 A.2d 973, 978 (Pa. Super. 2008).
Having already determined that it is in Children's best interests to terminate Mother's parental rights, we also agree that it is in Children's best interests to change their permanency goals to adoption. Accordingly, we affirm the termination of Mother's parental rights as to Children, and the change of Children's permanency goals to adoption.
Our independent review discloses no further non-frivolous issues that could be raised by Mother. Accordingly, we grant Counsel's Motion to Withdraw, and affirm the Orders of the trial court.
Our review discloses that the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8). On appeal, Mother challenges only the trial court's termination pursuant to subsection (a)(2). As we affirm the trial court's termination pursuant to subsection (a)(2), we need not address potential challenges to termination pursuant to subsections (a)(1), (5) or (8). See In re S.M.B., 856 A.2d 1235, 1240 (Pa. Super. 2004) (stating that this Court need only agree with the trial court's decision as to any one subsection of 23 Pa.C.S.A. § 2511(a), in order to affirm a termination of parental rights). --------
Motion to Withdraw granted. Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/5/2017
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