Adoption of I.A.I.R., Appeal of: N.R.

• Court: Superior Court of Pennsylvania
• Decided: January 23, 2019
• Docket: 2104 EDA 2018
• Status: Unpublished

Opinion

J-A29029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF I.A.I.R. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: N.R., MOTHER : : : : : : No. 2104 EDA 2018

Appeal from the Order Entered June 21, 2018 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): No. 2016-A0181

BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JANUARY 23, 2019

Appellant, N.R. (“Mother”), appeals from the June 21, 2018 Order

entered in the Montgomery County Orphans’ Court, which involuntarily

terminated her parental rights to I.A.I.R. (“Child”). Mother’s counsel has filed

an Anders Brief, together with an Application to Withdraw as Counsel.1 After

careful review, we affirm the June 21, 2018 Order and grant counsel’s

Application to Withdraw.

The relevant factual and procedural history is as follows. Child was born

in February of 2016. On or around March 22, 2016, Montgomery County Office

of Children and Youth (“OCY”) and the Norristown Police Department (“Police”)

received a report that Child was born as a result of incest and had not received

any pre-natal or post-natal medical care. OCY and Police went to the home

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1 See Anders v. California, 386 U.S. 738 (1967). ____________________________________ * Former Justice specially assigned to the Superior Court. J-A29029-18

of then-48-year-old H.R (“Father”) and his daughter, then-21-year-old

Mother, where Father admitted to Police that he was the biological father to

both Mother and Child. Mother told Police that she was Child’s biological

mother and confirmed that Father was the biological father. Mother told OCY

that Jesus had instructed her to engage in a sexual relationship with Father,

which started when Mother was 20 years old. Mother and Father also told

OCY that Child was born at home without medical care and that Jesus did not

want Child to receive medical care. Police subsequently arrested Father and

OCY obtained an Order for Emergency Custody.

On April 5, 2016, the trial court adjudicated Child dependent and placed

Child in foster care after hearing evidence that Father was incarcerated,

charged with Incest, and that OCY had concerns about Mother’s mental health

and the safety of Child. Moreover, OCY presented evidence that Mother was

unwilling to cooperate with OCY, was unwilling to accept services and baby

supplies from OCY, and was unwilling to obtain medical care for Child.

On November 14, 2016, OCY filed a Petition to Terminate Mother’s

Parental Rights. The trial court held hearings on March 1, 2017, and June 21,

2018.2

2 Father entered a guilty plea to Incest on September 9, 2016, but the court did not sentence him until April 17, 2018. The trial court continued the termination hearing until after the criminal court entered Father’s Judgment of Sentence.

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Relevant to this appeal, OCY presented testimony from Stephen Miksic,

Ph.D., who completed a Forensic Psychological Parenting Evaluation of Mother

on August 19, 2016. Dr. Miksic diagnosed Mother with Schizophrenia and

Delusional Disorder. N.T. TPR Hearing, 3/1/17, at 40. He testified that Mother

experiences hallucinations and delusions of the Lord talking to her, seeing the

Lord, and having special knowledge from the Lord of what the future would

hold for Mother. Id. at 37-38. Dr. Miksic clarified that Mother’s religious

ideations were not simply religious beliefs, but rather a mental health disorder

because “[w]hen [the beliefs] begin to impact the safety and welfare of that

person or others around them, then [the beliefs] become a psychiatric

disorder in need of treatment.” Id. at 44.

Dr. Miksic explained how Mother’s mental health diagnoses would affect

her ability to parent, stating: “[t]he beliefs that she expressed and the

thoughts of evil spirits that could intrude, her constantly relying on the Lord

to provide, interfered with her ability to plan or anticipate consequences for

herself or a child, caused her to be very passive, and definitely posed a

problem for her to act in a protected capacity for her child.” Id. at 40-41.

Dr. Miksic recommended that Mother participate in a psychiatric

consultation, individual counseling, and parenting education. He concluded to

a reasonable degree of psychological certainty that if Mother did not engage

in mental health treatment, her prognosis for having the capacity to parent

Child would be poor. Id. at 42. Specifically, Dr. Miksic testified:

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[Mother has] very persistent beliefs, even when not necessarily experiencing auditory or visual hallucinations, that those experiences, the evil spirits, were definitely real; that she had encountered them; that she needed to be ready for them; and that the Lord would tell her what to do on a daily basis so she wouldn’t need to plan ahead suggest[s] that without treatment the prognosis for her improving independent skills or parenting capacity would be very poor.”

Id. Finally, Dr. Miksic testified that he had concerns about Mother’s ability to

demonstrate emotional attachment to Child. Id. at 52-53.

OCY also presented testimony from the OCY caseworker, Monica

Monaghan. Ms. Monaghan testified that Mother’s Family Service Plan

Objectives included: (1) address mental health needs with an evaluation and

follow through with all recommendations; (2) prove financial stability; (3)

show an understanding of age appropriate behaviors; (4) successfully engage

in and complete a parenting program; (5) have safe and stable housing; (6)

understand and use responsible sexual behaviors; (6) work with and meet

with Time Limited Family Reunification (“TLFR”) worker; and (7) write a home

and care plan if Child were to return home. Id. at 81.

Ms. Monaghan testified that Mother participated in two psychiatric

evaluations, which both recommended follow-up treatment and therapy, but

Mother failed to engage in any ongoing mental health treatment. Id. at 80.

Ms. Monaghan testified to a specific incident on September 28, 2016, when

she met with Mother to discuss treatment recommendations. Id. at 83.

Mother stated that she did not need treatment because Jesus talks to her and

became extremely agitated and angry. Id. Mother refused to leave the office

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and Ms. Monaghan had to call the Adult Mobile Crisis team to assist, who

eventually convinced Mother to leave after several hours. Id.

Ms. Monaghan testified that Mother began to work on a home and care

plan, but never finished it; Mother was discharged from TLFR services because

she was not meeting any goals; Mother failed to obtain employment and did

not have her own home; and although Mother participated in a parenting

program, Mother did not demonstrate any improvement in parenting skills.

Id. at 84-86.

Ms. Monaghan explained to the trial court that Mother consistently

attended visitation but Ms. Monaghan had concerns about her parenting ability

during the visits. Specifically, Ms. Monaghan testified that Mother had a hard

time deviating from a schedule; she would refuse to feed or change Child as

needed if it deviated from the schedule. Id. at 89-90. Ms. Monaghan

expressed concern about Mother’s ability to care for Child independently and

testified that Mother would not respond to Child’s needs during the visits. Id.

at 90.

With respect to a bond between Mother and Child, Ms. Monaghan

testified that she observed “minimal bond” between Mother and Child. She

stated that Child was familiar with Mother, but not bonded to Mother and

observed that their relationship did not improve over time. Id. at 90-91. Ms.

Monaghan explained that Child was “[v]ery bonded” to his foster parents and

his needs were being met. Id. at 92-93. Ms. Monaghan stated that it was in

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Child’s best interest to be adopted and Child would not suffer harm if the trial

court terminated Mother’s parental rights. Id. at 93-94.

Finally, OCY presented testimony from Rebecca Wheeler, a TLFR social

worker who worked with Mother. Ms. Wheeler explained that Mother was

willing to work with TLFR but would not accept help from other community

resources because Jesus did not say it was okay. Id. at 59. Ms. Wheeler

testified that Mother was not willing to get a job because Jesus would provide

for her financially. Id. at 60. Mother was unwilling to follow up with any

ongoing mental health treatment recommendations for medication or therapy.

Id. at 61. Ms. Wheeler also observed Mother’s visitations with Child and did

not see an overall improvement in Mother’s parenting skills or Mother’s

relationship with Child. Id. at 63. Ms. Wheeler testified that Mother was

unable to be flexible and responsive and “pick up those cues of [Child]” to be

fed or changed. Id. at 65.

On June 21, 2018, the trial court granted the Petition and involuntarily

terminated Mother’s parental rights to Child pursuant to 23 Pa.C.S. §

2511(a)(2) and (a)(5), and found that termination would be in Child’s best

interest pursuant to 23 Pa.C.S. § 2511(b).3

Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925. On September 6, 2018, counsel filed an Anders Brief and

3 The trial court also terminated Father’s parental rights.

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Application to Withdraw as Counsel. Mother did not file a pro se or counseled

response to either the Brief or the Application.

In his Anders Brief, counsel raises the following issues:

1. Whether the honorable court committed an error of law and/or abuse of discretion when it held that [OCY] had proven by “clear and convincing evidence” that [Mother]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(2) in that the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused [Child] to be without essential parental care, control, or subsistence necessary for their 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.

2. Whether the honorable court committed an error of law and/or abuse of discretion when it held that [OCY] had proven by “clear and convincing evidence” that [Mother]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(5) in that 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 [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 parent are not likely to remedy the conditions which led to the removal or placement of [Child] within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of [Child].

3. Whether an application to withdraw as counsel should be granted where counsel has investigated the possible grounds for appeal and finds the appeal frivolous?

Anders Brief at 6 (reordered for ease of disposition; some capitalization

omitted).

Before this Court may consider the merits of the issue raised, we must

address counsel’s Application to Withdraw. See Commonwealth v. Daniels,

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999 A.2d 590, 593 (Pa. Super. 2010) (“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.”).

In order for counsel to withdraw from an appeal pursuant to Anders,

our Supreme Court has determined that counsel must meet certain

requirements, including:

(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). See also In

re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (explaining that this Court has

extended the Anders principles to appeals involving termination of parental

rights).

In the instant case, counsel has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, counsel confirms that he

sent Mother a copy of the Anders Brief, as well as a letter explaining to Mother

that she has the right to proceed pro se or retain new counsel. See

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)

(describing notice requirements). Counsel appended a copy of the letter to

his Petition to Withdraw.

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Because counsel has satisfied the above requirements, it is now this

Court’s duty to conduct an independent review of the record to discern if there

are any additional, non-frivolous issues overlooked by counsel and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.

See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (noting that Anders requires the reviewing court to “review ‘the case’

as presented in the entire record with consideration first of issues raised by

counsel.”).

The first issue presented in the Anders Brief avers that OCY failed to

present clear and convincing evidence that Mother has a continuing incapacity

to perform parental duties pursuant to 23 Pa.C.S. § 2511(a)(2). Anders Brief

at 10.

The standard of review in termination of parental rights cases requires

appellate courts “to accept the findings of fact and credibility determinations

of the trial court if they are supported by the record.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse of

discretion only upon demonstration of “manifest unreasonableness, partiality,

prejudice, bias, or ill-will.” Id. We may not reverse, however, merely because

the record would support a different result. Id. at 826-27.

The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

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rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We

have explained that “[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. (citations omitted).

We give great deference to trial courts that often have first-hand

observations of the parties spanning multiple hearings. In re T.S.M., 71 A.3d

251, 267 (Pa. 2013). 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. In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004).

Finally, this Court only needs to agree with the trial court as to

any one subsection of Section 2511(a), as well as Section 2511(b), in order

to affirm. In re Adoption of C.D.R., 111 A.3d 1212, 1215 (Pa. Super. 2015).

Instantly, the trial court terminated Mother’s parental rights pursuant to

23 Pa.C.S. § 2511(a)(2) and (a)(5). To satisfy the requirements of Section

2511(a)(2), the moving party must produce clear and convincing evidence

that the following three conditions are met: (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or

refusal caused the child to be without essential parental care, control or

subsistence necessary for his physical or mental well-being; and (3) the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

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remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)

(emphasis added); 23 Pa.C.S. § 2511(a)(2). The grounds for termination of

parental rights under Section 2511(a)(2), due to parental incapacity that

cannot be remedied, are not limited to affirmative misconduct; those grounds

may include acts of refusal as well as incapacity to perform parental duties.

In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).

Parents have an “affirmative duty” to work toward the return of their

children. In re Julissa O., 746 A.2d 1137, 1141 (Pa. Super. 2000) (citations

omitted). At a minimum, this “affirmative duty” requires the parent to show

a willingness to cooperate with the agency to obtain the services necessary

for the performance of parental duties and responsibilities. Id.

Here, the trial court concluded that OCY presented clear and convincing

evidence that Mother “is not capable of performing minimal parental duties.”

Trial Ct. Op., dated 7/13/18, at 25. Our review of the record supports the

trial court’s findings of fact and conclusions of law.

OCY presented evidence that Mother suffered from Schizophrenia and

Delusional Disorder, which, if left untreated, would adversely affect her ability

to parent Child and keep Child safe. OCY presented evidence that Mother

refused to engage in any recommended mental health services or take

medication. Likewise, Mother refused to obtain employment or complete her

home plan. The trial court heard testimony from both the caseworker and the

TLFR social worker that Mother did not demonstrate appropriate parenting

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skills during her weekly visitation with Child, and that Mother refused to feed

or change Child’s diaper as needed. Importantly, both testified that her

parenting skills did not improve over time. Accordingly, the record confirms

that Mother is incapable of parenting Child and that she cannot or will not

remedy her parental incapacity.

The certified record supports the trial court’s findings of fact and

conclusions of laws. We, thus, conclude that the trial court did not abuse its

discretion in concluding that OCY met its burden of proof with respect to

Section 2511(a)(2).

We also agree with the Orphans’ Court’s determination that OCY met its

burden under 23 Pa.C.S. § 2511(b), and that terminating Mother’s parental

rights is in the best interest of the Child.

With respect to Section 2511(b), our analysis shifts focus from parental

actions in fulfilling parental duties to the effect that terminating the parental

bond will have on the child. Section 2511(b) “focuses on 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).

In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “[i]ntangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the Orphans’ Court must also discern the nature and status of the parent-child

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bond, with utmost attention to the effect on the child of permanently severing

that bond. Id.

Most significantly, whether a meaningful bond exists is determined, first,

by the extent to which a parent provides safety, security, and support for the

child’s physical and mental needs, on a daily basis. If a meaningful bond is

found to exist, the analysis hinges on the extent to which the child will be

harmed by the severance of that bond. Thus, the bond-effect analysis

necessarily depends on the circumstances of the particular case. In re K.Z.S.,

946 A.2d 753, 763 (Pa. Super. 2008). Importantly, in cases where there is

no evidence of meaningful and extensive contact between a parent and a child,

it is reasonable to infer that no bond exists. Id. at 762-63.

In the instant case, the trial court had the benefit of a formal bond

assessment as well as testimony from child welfare professionals. The trial

court made a finding that Dr. Miksic testified credibly that Mother is unable to

emotionally attach to Child. Trial Ct. Op., dated 7/13/18, at 27. Moreover,

the trial court made a finding that there was no improvement in the bond

between Mother and Child during approximately thirty visits, despite one-on-

one assistance provided by caseworkers. Id. at 27-29. Finally, the trial court

made a finding that Child has a strong bond with the foster/pre-adoptive

family with whom the Child has lived since infancy such that termination of

Mother’s parental rights will not negatively impact the Child. Id. at 28. The

certified record supports the trial court’s findings of fact and credibility

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determinations, and, thus, the trial court did not abuse its discretion when it

determined that termination of Mother’s parental rights would be in Child’s

best interest pursuant to Section 2511(b).

The certified record supports the trial court’s findings of fact and

credibility determinations. We discern no error of law and conclude that the

trial court properly exercised its discretion in terminating Father’s parental

rights pursuant to Section 2511(a) and (b). Accordingly, we agree with

counsel and conclude that the issues raised in the Anders Brief are wholly

frivolous.

Furthermore, our independent review of the record, conducted in

accordance with Yorgey, supra, confirms counsel’s assertion that there are

no issues of merit to be considered by this Court and this appeal is, thus,

wholly frivolous. Thus, we grant counsel’s Application to Withdraw and affirm

the Order terminating Mother’s parental rights.

Order affirmed. Application to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/23/19

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