Opinion
J-S01040-17 No. 1208 MDA 2016 No. 1209 MDA 2016
02-27-2017
IN THE INTEREST OF: Z.J.M., a Minor APPEAL OF: M.B., Mother IN THE INTEREST OF: Z.O.B., a Minor APPEAL OF: M.B.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree entered June 28, 2016 in the Court of Common Pleas of Dauphin County, Orphans' Court at No(s): 39-AD-2016; CP-22-DP-117-2013 Appeal from the Decree entered June 28, 2016 in the Court of Common Pleas of Dauphin County, Orphans' Court at No(s): 38-AD-2016; CP-22-DP-116-2013 BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
M.B. ("Mother") appeals from the Decrees granting the Petitions filed by Dauphin County Social Services for Children and Youth ("SSCY"), involuntarily terminating her parental rights to her son, Z.O.B., born in August 2011, and her daughter, Z.J.M., born in December 2012 (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changing their permanency goals to adoption. Additionally, Damian J. DeStefano, Esquire ("Attorney DeStefano"), has filed a Petition to Withdraw as counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We grant Attorney DeStefano's Petition to Withdraw, and affirm the trial court's Decrees.
This Court, sua sponte, consolidated Mother's appeals from the termination Decrees.
SSCY included A.M. ("Father") in its Petitions. In its June 28, 2016 Decrees, the trial court also involuntarily terminated Father's parental rights to Children. Father filed separate appeals from the Decrees, which include Nos. 1164 MDA 2016, 1165 MDA 2016, 1240 MDA 2016 and 1241 MDA 2016, and is not a party to the instant appeal.
In its Opinion, the trial court aptly summarized the facts underlying this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 8/31/16, at 1-5, 6-8. By Decrees dated June 28, 2016, the trial court granted SSCY's Petitions, involuntarily terminating Mother's parental rights to Children, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changing Children's permanency goals to adoption.
Mother, through counsel, filed timely Notices of Appeal. Attorney DeStefano subsequently filed a Petition to Withdraw as counsel and an Anders Brief, in lieu of a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
We observe that it was improper for Mother to file a single Notice of Appeal as to each child with the Orphans' Court, as each Decree identified, and was entered on, both the Juvenile Court and the Orphans' Court dockets. See Pa.R.A.P. 341, Note (stating that "[w]here, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.") (emphasis added). Nevertheless, because we discern no prejudice arising from this procedural misstep, we decline to quash Mother's appeal. --------
In the Anders Brief, the following claims are presented for our review:
I. Whether the trial court erred [or] abused its discretion when it[] changed the [permanency] goal from reunification to adoption?Anders Brief at 11. Mother neither filed a pro se brief, nor retained alternate counsel for this appeal.
II. Whether the trial court erred [or] abused its discretion when it involuntarily terminated [] Mother's parental rights?
We must first determine whether Attorney DeStefano has complied with the dictates of Anders in petitioning to withdraw from representation. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (stating that "[w]hen counsel files an Anders brief, this Court may not review the merits without first addressing counsel's request to withdraw."). This Court has extended the Anders principles to a first appeal by an indigent parent from a decree involuntarily terminating his or her parental rights. See In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992). Pursuant to Anders , when an attorney believes that an appeal is frivolous and wishes to withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the [client], counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to [the client] and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention.In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted). With respect to the third requirement of Anders , i.e., that counsel inform the client of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [a] petition to withdraw a copy of the letter sent to the[] client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a proper 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.Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009). Once counsel has satisfied the above requirements, this Court "must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." In re S.M.B., 856 A.2d at 1237.
Here, Attorney DeStefano has complied with the requirements set forth in Anders by indicating that he made a thorough review of the record and determined that an appeal would be frivolous. Further, Attorney DeStefano provided a letter to Mother, informing her of Attorney DeStefano's intention to withdraw, and advising Mother of her rights to retain counsel, proceed pro se, and file additional claims. Finally, Attorney DeStefano's Anders Brief meets the standards set forth in Santiago. Because Attorney DeStefano has complied with the procedural requirements for withdrawing from representation, we will independently review the record to determine whether Mother's appeal is, in fact, wholly frivolous.
As Mother's claims are related, we will address them together. In her first claim, Mother argues that the trial court erred in changing Children's permanency goal to adoption. Anders Brief at 18. In her second claim, Mother argues that the trial court abused its discretion by involuntarily terminating her parental rights to Children. Id. at 21.
In its Opinion, the trial court set forth the relevant law, addressed Mother's first claim, and concluded that it lacks merit. See Trial Court Opinion, 8/31/16, at 8-14; see also id. at 12 (wherein the trial court adopted its reasoning as set forth on the record during the termination hearing); N.T., 6/28/16, at 117-25. We agree with the reasoning of the trial court and affirm on this basis as to Mother's first claim. See Trial Court Opinion, 8/31/16, at 8-14.
Additionally,
[p]ursuant to [Section] 6351(f) of the Juvenile Act, [42 Pa.C.S.A. § 6351(f),] when considering a petition for a goal change for a dependent child, the juvenile court is to consider, inter alia: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child's safety; and (7) whether the
child has been in placement for the last fifteen of the last twenty-two months. The best interests of the child, not the interests of the parent, must guide the trial court. As this court has held, a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation marks omitted).
At the time SSCY filed the Petitions, Children had been in SSCY's care for 32 months. See Trial Court Opinion, 8/31/16, at 5. At the termination hearing, the trial court stated, on the record, that Children's needs "have not and will not be met with Mother...." N.T., 6/28/16, at 122. The trial court reasoned that Mother failed to satisfy her service objectives because she had not found suitable housing and had not provided proof of employment; Mother did not complete her mental health objectives; Children have a close emotional bond with the foster family, but not with Mother; and there are new substance abuse concerns because Mother tested positive for cocaine and oxycodone within the three weeks before the termination hearing. See id. at 121-22. The trial court also stated that the evidence "screams, cries for [C]hildren to be placed in a home where they're going to be loved and cared for," and noted that the foster family has been providing love, care and discipline for Children for more than two years. See id. at 122-23. Upon review, we conclude that sufficient competent evidence supports the goal change to adoption. Thus, we conclude that Mother's second claim is frivolous.
Further, our independent examination of the record indicates that there are no other non-frivolous claims that can be raised. See In re S.M.B., 856 A.2d at 1237. Accordingly, we conclude that Mother's appeal is frivolous, and grant Attorney DeStefano permission to withdraw as counsel.
Petition to Withdraw granted; Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/2017
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