In Int of: L.C., a Minor Appeal of: J.A.B. (memorandum)
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J-S35016-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: L.C. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.A.B., MOTHER No. 206 MDA 2014 Appeal from the Decree Entered December 23, 2013 In the Court of Common Pleas of Luzerne County Court at No.: A 8068 IN THE INTEREST OF: D.A.C., III IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.A.B., MOTHER No. 207 MDA 2014 Appeal from the Decree Entered December 23, 2013 In the Court of Common Pleas of Luzerne County Court at No.: A 8070 BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY WECHT, J.: FILED JULY 01, 2014 In these consolidated cases,1 J.A.B. ( Mother ) appeals the December 23, 2013 decrees that terminated her parental rights to her daughter, L.C., ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 On March 11, 2014, this Court consolidated these cases sua sponte. J-S35016-14 born in January 1999, and her son, D.A.C., III, ( the Children ), born in June 2004. to withdraw as counsel pursuant to Anders/Santiago.2 We affirm, and we petition.3 The Children have been in placement since April 6, 2010. The Children were removed due to sexual abuse perpetrated against their older siblings and because of physical abuse inflicted upon them. Mother did not attempt to stop the abuse and was the perpetrator of some of the physical abuse. The Children were placed also due to other parenting concerns stemming that the Children have been in placement, Mother has not made gains in addressing those issues. On June 18, 2013, Luzerne County Children and Youth Services ( CYS ) filed petitions f ights. The trial court held a hearing on those petitions on December 19, 2013. When Mother and her court-appointed counsel appeared at the hearing, Mother stated that she only ____________________________________________ 2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 3 [sic] It is less than clear what relief Mother sought in this petition. On March 13, 2014, we denied without prejudice the application for relief to the extent that it raised any issues that were properly preserved for merits review before this panel. All other requested relief was denied. To the extent that any requested relief remains to be resolved by this panel, it is disposed of within this memorandum. -2- J-S35016-14 approximately two weeks earlier while paying her property taxes. Notes of Testimony N.T. 12/19/2013, at 24. After a discussion with Mother, her counsel, and counsel for CYS, the trial court concluded that Mother was not credible regarding the lack of notice and ordered the hearing to proceed. N.T. at 29. However, arguing that her participation would jeopardize a refused to participate and left the courtroom. N.T. at 29al motion to withdraw his appearance and counsel left the courtroom as well. N.T. at 31. At the hearing, CYS presented the testimony of L.C., CYS caseworker supervisor Kelly Horning, and CYS caseworker Sherry Hartman. CYS also introduced the expert report of Dr. Lenora Hermann Finn, an expert in the field of clinical psychology, and the expert report of Dr. Sharma,4 who conducted the psychiatric exam of Mother. In addition, the trial court 013 permanency review hearing, at which the trial court changed the permanency plans for the Children from custodianship to adoption. Robert Blaskie, a therapist at Northeast Counseling; Sarah Luvender, a licensed clinical social worker; and Ms. Horning testified at that hearing. ____________________________________________ 4 does not appear in the record. -3- J-S35016-14 on December 23, 2013. Mother filed her notice of appeal, which she titled 5 The trial court then appointed new counsel for Mother for the purpose of this appeal. On January 27, 2014, the trial court filed its opinions pursuant to Pa.R.A.P. 1925(a), and the case now is ripe for review. Mother raises the following question for our review: Whether the [t]rial [c]ourt abused its discretion, committed an error of law and/or there was insufficient evidentiary support for its decision to terminate the parental rights of [Mother] to her minor children, L.C. and D.A.C.[?] Anders Brief at 5. Our standard of review is as follows: In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence conclusions. However, our standard of review is narrow: we will court abused its discretion, made an error of law, or lacked 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). ____________________________________________ 5 Mother filed her notice of appeal with this Court on December 30, 2013. On January 17, 2014, we sent the notice of appeal to the trial court and directed that court to docket the notice with a December 30, 2013 filing date. However, the trial court did not do so; rather, the court recorded a filing date of January 23, 2014. Regardless of which filing date is credited, the appeal is timely. -4- J-S35016-14 evidence of record, we must affirm the hearing court even though the record could support an opposite result. 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. deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted). 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. * * * (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the -5- J-S35016-14 parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child. * * * (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. * * * (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. 23 Pa.C.S.A. § 2511. rsuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). However, in order to affirm the termination of parental rights, this Court need only agree as to any one subsection of Section 2511(a) in addition to subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). bears the burden of proving the grounds to so do by clear and convincing -6- J-S35016-14 evidence, a standard that ty, and convincing as to enable the trier of fact to come to a clear conviction, In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). 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 parentchild relationship. Parental rights are not preserved by waiting for a more suitable or 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) (citation omitted). To terminate parental rights under Section 2511(a)(2): three things must b s rights in a child will be terminated: (1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011) (citing In re Geiger, 331 A.2d 172 (Pa. 1975)). shall give primary consideration to the developmental, physical and emotional needs and welfare of the chi Although the Act specifically does not require an evaluation of the bond between parent and child, our -7- J-S35016-14 case law requires the court to consider any such bond. See In re E.M., 620 A.2d 481 (Pa. 1993). However, a trial court is not required to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008). -appointed counsel, Louis J. Mattioli, III, filed an Anders brief with this Court and an application to withdraw as counsel for Mother pursuant to Anders v. California, 386 U.S. 738 (1967). We must address that petition to withdraw as counsel before reaching the merits of the case. See Commonwealth v. Rojas, 874 A.2d a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the ability of counsel to withdraw when counsel believed an appeal to be frivolous from criminal direct appeals to appeals involving the termination of parental rights. We stated that counsel appointed to represent an indigent parent on an appeal from a decree terminating parental rights, after a conscientious and thorough review of the record, may petition this Court for leave to withdraw as counsel and must submit a compliant Anders brief. In re V.E., 611 A.2d at 1275. To withdraw pursuant to Anders, counsel must: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might -8- J-S35016-14 arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him or her of the right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. Id. at 1273 (citing Anders 386 U.S. at 744). Thereafter, this Court must examine the record independently and must determine whether the appeal is wholly frivolous. Id. Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), stated that an Anders brief must meet the following criteria: (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; and 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. We also require counsel to send a letter advising the appellant of his or her rights. Commonwealth v Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). In his brief, counsel has provided a summary of the procedural and factual history of the case. Anders -7. Attorney Mattioli presents the only possible argument that he believes would support the appeal, . He provides the facts and case law that support his conclusion that the appeal is -9- J-S35016-14 frivolous, noting that CYS provided ample evidence and Mother did not participate, such that no countervailing evidence was offered. Id. at 7-14. In his application to withdraw as counsel, Attorney Mattioli states that he has made a conscientious review of the record and has concluded that the appeal is wholly frivolous. Petition to Withdraw, 3/20/2014, at 1 ¶1. In addition, on March 20, 2014, Attorney Mattioli mailed Mother the petition to withdraw, a copy of the Anders brief, and a letter advising Mother of her rights to proceed pro se or to retain private counsel and to raise any additional issues that she deems worthy of consideration. attached to his petition to withdraw. The letter was Thus, counsel has complied substantially with the requirements of Anders and Santiago. Prior to disposing of , we must conduct an independent review of the record to ascertain whether any non-frivolous issues could have been raised. We have conducted that review, and we conclude s under Sections 2511(a)(2) and (b) is supported by clear and convincing evidence. There are no non-frivolous issues that counsel could have raised. Having review the record, we are satisfied that the learned analysis in both of its opinions is accurate and complete. Accordingly, we thorough trial court opinions, and we adopt them as our own. A copy of the trial court opinions are attached for reference. - 10 - J-S35016-14 Decrees affirmed. Petition to withdraw as counsel granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/1/2014 - 11 -
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