Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: C.M.Z., JR., IN THE SUPERIOR COURT OF : A MINOR PENNSYLVANIA APPEAL OF: C.M.Z., FATHER No. EDA 2016
: Appeal from the Decree Entered May 5, 2016 the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP- 51 -AP- 0000347 -2016,
FID: 51 -FN- 004123 -2013
IN THE INTEREST OF: C.L.Z., A IN THE SUPERIOR COURT OF : MINOR PENNSYLVANIA APPEAL OF: C.M.Z., FATHER No. EDA 2016
: Appeal from the Decree Entered May 5, 2016 the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP- 51 -AP- 0000346 -2016,
FID: -FN- 004123 -2013 BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* FILED OCTOBER 24, 2016
MEMORANDUM BY STEVENS, P.J.E.: Appellant, C.M.Z. ( "Father "), files these consolidated appeals from decrees entered May Philadelphia County Court of Common * Former Justice specially assigned the Superior Court.
Pleas, by the Honorable Jonathan Q. Irvine, granting the petition of Department of Human Services ( "DHS ") and involuntarily terminating Father's parental rights his minor, dependent children, C.M.Z., Jr., a male born in September of 2005, and C.L.Z., a female born in November of 2002 (collectively, "the Children "), pursuant 23 Pa.C.S. § 2511(a)(1), (2), and (b).1 Counsel Father ( "Counsel ") has also filed a petition withdraw her representation. After careful review, we grant Counsel's petition withdraw affirm the trial court's decrees.
The trial court summarized the relevant procedural factual history, part, follows: On July 22, 2013, DHS received General Protective Services (GPS) report alleging that there was no food the home for two days the [C]hildren were accustomed to not eating often. The report also alleged the [Children's mother, H.N.S. ( "Mother ")], had filed Protection from Abuse petition against [Father]. report was substantiated.
On July 31, 2013, In -Home Protective Services (IHPS) was implemented Community Umbrella Agency (CUA). From August 6, until September 19, 2013, CUA tried on several occasions visit home. They were unsuccessful on most attempts. CUA discovered there were ongoing issues no food home. Furthermore, used needles were found inside home yard.
On October an adjudicatory hearing was held before the Honorable Jonathan Q. Irvine. Judge Irvine adjudicated i By separate decrees entered the same date, the court involuntarily terminated the parental rights of the Children's mother, H.N.S. ( "Mother "). Mother not filed an appeal party instant appeal.
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C.M.Z. and C.L.Z. dependent and ordered DHS supervise the family.
On October 25, 2013, DHS received GPS report alleging that [M]other tested positive for cocaine and opioids and [F]ather tested positive for cocaine, opioids and marijuana. DHS [(Order for Protective Custody)] the obtained an OPC [C]hildren and they were subsequently placed foster care. A shelter care hearing was held on October 28, 2013 before the Honorable Jonathan Q. Irvine. Judge Irvine lifted the OPC and ordered the temporary commitment of the [C]hildren care and custody of DHS.
Trial Court Opinion (T.C.O.), 6/16/16, at -2 (unpaginated).
The trial court held permanency review hearings on February 11, 2014, May 15, 2014, September 24, 2014, December 30, 2014, April 1, 2015, August 19, 2015, December 23, 2015. DHS Exhibits and 4. Throughout these reviews, court maintained the Children's commitment placement assessed their permanency goals. Id.
DHS filed petitions terminate Father's parental rights on April 20, 2016. trial court held hearing on May 2016, at which DHS presented the testimony of the following witnesses: Teanna Brown, CUA case aide; Shantel Dowdell, CUA case supervisor; Tisha Morales, CUA social worker. Additionally, Father testified on his own behalf. By decrees entered May 2016, the trial court involuntarily terminated parental rights of Father pursuant 23 Pa.C.S. § 2511(a)(1), (2), (b).2 Upon review, it appears the trial court additionally entered separate orders changing the Children's permanency goal to adoption. N.T. at 44. As Father does appeal these orders, any such claims related thereto are not (Footnote Continued Next Page)
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On May 20, 2016, Father, through appointed counsel, filed notices of appeal, which this Court consolidated sua sponte on June 13, 2016. Father's Counsel did not file concise statements errors complained of on appeal as required Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(a)(2)(i), but instead contemporaneously filed statements pursuant to Pa.R.A.P. 1925(c)(4), noting there are no non -frivolous issues to be raised on appeal and indicating her intent file a petition brief pursuant Anders v. California, U.S. 738 (1967). See Pa.R.A.P. 1925(c)(4) (counsel for criminal defendants may file of record serve on the judge a statement of intent file an Anders brief lieu of filing statement under Rule 1925(b)); see also Interest of 1.T., 983 A.2d 2009) (holding Anders procedure set forth Rule 1925(c)(4) is proper in of parental rights case).3 Counsel filed an Anders brief on July 20, 2016, petition withdraw on July 26, 2016.
When counsel files an Anders brief, this Court may not review the merits of appeal without first addressing counsel's request withdraw. S.M.B., A.M.B., & G.G.B., 856 A.2d 1235, 1237 2004). (Footnote Continued)
preserved. Pa.R.A.P. 903(a) (a notice of appeal shall filed within thirty days after entry of the order from which the appeal taken). By order dated June 13, 2016, this Court directed Counsel to file
statements errors complained of on appeal by June 2016. In response, on June 17, counsel submitted correspondence referencing her contemporaneously filed statements pursuant Pa.R.A.P. 1925(c).
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In In re V.E. & 1.E., 611 A.2d 1275 (Pa. 1992), this Court extended the Anders principles to appeals involving the of parental rights. Counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating parental rights may therefore petition this Court for leave to withdraw representation submit an S.M.B., A.M.B., & G.G.B., 856 A.2d at 1237. To Anders brief. withdraw, counsel must:
1) petition the court for leave to withdraw stating that, after making conscientious examination of the record, counsel has determined that the appeal would frivolous; 2) furnish copy the [Anders] brief the [appellant]; and 3) advise the [appellant] that he or she has the right retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.
Commonwealth v. Cartrette, (en banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 Super. 2009)).
We further review Counsel's Anders brief for compliance the requirements set forth Commonwealth v. Santiago, Pa. 159, 978 A.2d 349 (2009).
[W]e hold that the Anders brief that accompanies court -appointed counsel's petition withdraw, counsel must: (1) provide summary of the procedural history facts, with citations the record; (2) refer anything record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that appeal is frivolous; (4) state counsel's reasons concluding that appeal is frivolous. Counsel should articulate relevant facts of record, controlling law, and /or statutes on point have case led conclusion appeal frivolous.
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Id. at -79, 978 A.2d at 361. "Once counsel has satisfied the above requirements, it is then this Court's duty conduct its own review of the court's proceedings render an independent judgment as whether appeal is, fact, wholly frivolous." Commonwealth v. Goodwin, 928 A.2d 287, 291 (en banc) (quoting Commonwealth v. Wright, 2004)).
Counsel has satisfied the first requirement of Anders by filing a motion withdraw, wherein she asserts that she has made a conscientious review of the record determined the appeal would frivolous. Likewise, Counsel has satisfied the second requirement by filing an Anders brief complies with requirements set forth Santiago, supra. With respect to third requirement, Counsel attached the motion to withdraw copy of the letter sent Father advising him of his rights, and enclosing copy of the Anders brief. Hence, we conclude Counsel has complied the procedural Anders requirements proceed to review of the merits.
In matters involving involuntary termination of parental rights, our standard of review follows: standard of review of parental rights cases
requires appellate courts "to accept the findings fact and credibility determinations of the trial court if they are supported record." re Adoption of S.P., Pa. 47 A.3d "If the factual findings are supported, 817, 826 (2012). appellate courts review determine if trial court made an error law or abused its discretion." Id. "[A] decision may be reversed an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will." -6-
Id. The trial court's decision, however, should reversed merely because the record would support different result. Id. at 827. We have previously emphasized our deference to trial courts that often have first -hand observations of the parties spanning multiple hearings. See In re R.J.T., [608 Pa. 27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., T.R.M., T.J.M., T.A.M., & N.D.M., Pa. 71 251, (2013). "The trial court is free believe all, part, or none of evidence presented and is likewise free make all credibility determinations resolve conflicts the evidence." In re M.G. & J.G., 855 A.2d 68, 73- 2004) (citation omitted). "[I]f competent evidence supports the court's findings, we will affirm even if the record could also support the opposite result." Adoption of T.B.B., 835 A.2d 387, 394 (Pa. (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. §§ -2938, controls termination of parental rights, requires bifurcated analysis, as follows:
Our case law has made clear that under Section 2511, the court must engage bifurcated process prior terminating Initially, focus on the conduct of the parental rights. parent. party seeking termination must prove clear and convincing evidence the parent's conduct satisfies the statutory grounds for termination delineated Section 2511(a). Only if the court determines the parent's conduct warrants his or her parental rights does court engage in 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. One major aspect of the needs welfare analysis concerns the nature status of the emotional bond between parent child, close attention paid the effect on child permanently severing any such bond.
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In re L.M., 923 A.2d 505, (Pa. 2007) (citations omitted). We have defined clear and convincing evidence as that which 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." In re C.S., 2000) (en banc). case sub judice, trial court terminated Father's parental
rights pursuant 23 Pa.C.S. § 2511(a)(1) and (2), as well as (b). We have long held that, order affirm a termination of parental rights, we need only agree trial court as any one subsection of Section 2511(a), well as Section 2511(b). See In B.L.W., 843 A.2d 380, 384 Super. (en banc). Here, we analyze the court's order pursuant subsections 2511(a)(2) (b), which provide as follows:
(a) General rule. --The rights of a parent regard a child may be terminated after petition filed on any of the following grounds:
[*] **
(2) The repeated continued incapacity, abuse, neglect or refusal of the parent caused child be without essential parental care, control or subsistence necessary his physical or mental well -being the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied the parent.
[*] **
(b) Other considerations. --The court terminating the rights of parent shall give primary consideration to developmental, physical emotional needs welfare of the child. rights parent shall terminated solely on basis environmental factors such inadequate housing, -8
furnishings, income, clothing 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), court shall not consider any efforts the parent remedy the conditions described therein which are first initiated subsequent the giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
We first examine the court's Father's parental rights under Section 2511(a)(2).
In order terminate parental rights pursuant Pa.C.S.A § 2511(a)(2), the following three elements must be met: (1) repeated continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused child to be without essential parental care, control or subsistence necessary his physical or mental well- being; (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. (citation "The grounds for termination due parental incapacity that omitted). cannot remedied are not limited to affirmative misconduct. To contrary, those grounds may include acts refusal well as incapacity to perform parental duties." In re Adoption of C.D.R., 1216 2015) (quoting A.L.D., 797 A.2d 326, 337 Super. 2002)).
The record supports the court's finding of grounds for termination of Father's parental rights under Section 2511(a)(2). Father did attempt meet his single case plan objectives to seek mental health treatment, drug alcohol treatment /screening, parenting classes, visitation with
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the Children. N.T. at 21, 24 -25, 29 -30. Father admitted missing three months mental health treatment, which resulted his case being closed. Since re- enrollment January 2016, he has been "noncompliant," missing "a few weeks here or there." Id. at 36 -37. Despite Father's assertion that he was currently attending drug alcohol treatment had completed parenting classes, he provided no documentation DHS. Id. at 21, 24 -25, 30, 35, 37 -38. With regard to missed drug screenings, Father explained that he was "busy" "life caught up him." Id. at 36.4
Moreover, documentation from ARC ( "Achieving Reunification Center ") noted Father's case was closed January as Father's "attempt[s] to address everything were unsuccessful." Id. at 24 -25, 30. Shantel Dowdell, case supervisor, believed ARC's statement means "[Father] did not attend as he should have been." Id. at -25. Further, Father has not visited the Children since October 2015. Id. at 9. Lastly, Father expressed his desire for the Children remain Foster Mother, acknowledging she can provide more for the Children than he can. Id. at 38.
Hence, record substantiates the conclusion that Father's repeated continued incapacity, abuse, neglect, or refusal caused the Children without essential parental control or subsistence necessary for their We note Shantel Dowdell, CUA case supervisor, could testify to whether Father was ever actually called screenings subsequent two were completed. Id. at 36.
- - physical and mental well- being. See In re Adoption of M.E.P., 825 A.2d at 1272. Moreover, Father cannot or will not remedy this situation. See id. Thus, we find the trial court had sufficient grounds for termination of Father's parental rights under Section 2511(a)(2). As noted above, order affirm termination of parental rights, we need only agree the trial court as any one subsection of Section 2511(a). In re B.L.W., 843 A.2d at 384.
We next determine whether was proper under Section 2511(b). With regard Section 2511(b), our Supreme Court stated as follows:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, stability." In re K.M., 53 A.3d 781, In re E.M. [a /k /a E.W.C. & L.M. 2012). a /k /a L.C., Jr.], [533 Pa. -23, 620 A.2d 485 (1993)], this Court held determination of the child's "needs welfare" requires consideration of the emotional bonds between the parent child. "utmost attention" should paid discerning effect on child of permanently severing the parental bond. In re K.M., at 791. However, discussed below, evaluation child's bonds is not always an easy task.
In T.S.M., A.3d at 267. "[I]n cases where there is no evidence of a bond between parent child, it reasonable infer no bond exists. Accordingly, extent bond -effect analysis necessarily depends on the circumstances of the particular case." In re Adoption of 1.M., 991 A.2d 321, 324 2010) (citations omitted).
When evaluating parental bond, "the court not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require formal bonding evaluation." Z.P., 994 A.2d 1108, (internal citations omitted).
In the instant matter, the trial court found that termination was proper under Section 2511(b), explaining follows:
In the instant matter, the children look to the foster mother for love, care support. The foster mother provides the children with their day day needs. Additionally, she meets all their medical academic needs. The children do not look the father for love, care support. children do not want to visit with the father. Furthermore, the children want be adopted foster mother. Moreover, the testimony indicated that the children would not suffer permanent emotional harm if father's parental rights were terminated. Lastly, the social workers testified it would best interest of the children if the father's parental rights were terminated children's goal changed to adoption.
T.C.O. at (citations record omitted).
The record likewise corroborates the court's order pursuant Section 2511(b). As referenced above, Father not visited with the Children since October 2015. Teanna Brown, who supervised visitation between Father the Children, indicated Children did enjoy visitation Father. N.T. at 9. When asked to explain this conclusion, Ms. Brown indicated, "[C.L.Z.] usually would get upset during
- - visits. Sometimes we had to go out talk to her about even coming for . C.L.Z. usually didn't want to visit." Id. at 13. In addition, the visits. . . one or both children sought end visits early. Id. at 14. Although C.L.Z. "would like to reach out [Father]" when she gets older, both Children have indicated they do want see Father. Id. at 9, 16, 23. Therefore, both Ms. Brown Ms. Dowdell opined the Children would not suffer permanent emotional harm and /or damage if Father's parental rights were terminated. Id. at 12 -13, 24. They both further expressed that the Children's best interests for Father's rights be it would be terminated. Id.
Moreover, the Children are pre- adoptive home with Foster Mother, whom they "look for love, care support" "to take care their everyday needs," as opposed to Father. Id. at 9 -10, 14. Moreover, and more significantly, the Children want adopted by and remain with Id. at -26. Thus, confirmed the record, the Foster Mother. emotional needs and welfare of the Children favor termination. Accordingly, based upon our review of the record, we find no abuse discretion and conclude that court appropriately terminated Father's parental rights under Sections 2511(a)(2) (b).
Based on the foregoing independent analysis of the trial court's of Father's parental rights, we agree Counsel Father that - - within appeal wholly frivolous.5 As such, we affirm decrees of the
trial court grant Counsel's petition withdraw.
Decrees affirmed. Petition to withdraw granted.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 10/24/2016 [5] Further, we note our independent review of the record did not reveal any additional, non -frivolous See issues overlooked counsel. Commonwealth v. Flowers, 1250 2015) (citing Commonwealth v. Goodwin, A.2d 287 (en banc)) .
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