Adoption of: R.Z-W.P., Appeal of: J.P.

• Court: Superior Court of Pennsylvania
• Decided: December 24, 2019
• Docket: 1094 WDA 2019
• Status: Unpublished

Opinion

J-S68028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: R.Z-W.P. : PENNSYLVANIA : : APPEAL OF: J.P., NATURAL FATHER : : : : No. 1094 WDA 2019

Appeal from the Decree Entered June 21, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 124A in Adoption 2018

IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: J.L.P. : PENNSYLVANIA : : APPEAL OF: J.P., NATURAL FATHER : : : : No. 1095 WDA 2019

Appeal from the Decree Entered June 21, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 124B in Adoption 2018

IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: E.R.P. : PENNSYLVANIA : : APPEAL OF: J.P., NATURAL FATHER : : : : No. 1096 WDA 2019 :

Appeal from the Decree Entered June 21, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 124(C) in Adoption 2018 J-S68028-19

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 24, 2019

J.P. (Father)1 appeals from the trial court’s decrees, entered in the Court

of Common Pleas of Erie County, involuntarily terminating his parental rights

to his three minor children, R.Z.-W.P. (born 1/2009), J.L.P. (born 5/2012) and

E.R.P. (born 10/2015) (collectively, Children). Counsel has also filed a petition

to withdraw on appeal. See Anders v. California, 386 U.S. 738 (1967); see

also In re: V.E., 611 A.2d 1267 (Pa. Super. 1992). After careful review, we

affirm on the basis of the trial court’s opinion and grant counsel’s petition.2

Father is a truck driver who would be on the road an average of five to

seven days a week; Mother would be in charge of Children while he was

working. In June 2017, while Father was in Florida for his job, Father’s oldest

child, D.R.P.,3 told him in a phone call that Mother had smacked him on the

back during an argument. Father called Erie County Office of Children and

Youth (OCY) and relayed his concerns about Mother, the existence of ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Biological mother, B.D., has also filed a separate appeal from the court’s decrees terminating her parental rights to Children. See 1097 EDA 2019, 1098 WDA 2019 & 1099 WDA 2019.

2 Counsel for Children, Christine Furhman Konzel, Esquire, did not file an independent brief on appeal. She, however, agrees with Father’s counsel that the appeal is frivolous.

3 The court denied Erie County Office of Children and Youth’s termination petition with regard to another one of Parents’ children, D.R.P. He is not involved in this appeal.

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deplorable conditions in the family home, and apparent domestic violence and

mental health issues in the family.4 In response, OCY initiated family-based

mental health services for the entire family. In July 2017, a caseworker had

contact with Children who had indicated that they were fearful for their safety

and had suffered injuries as a result of another physical altercation at home.

On July 25, 2017, OCY sought protective custody of Children; the court

subsequently adjudicated Children dependent and placed them in foster care.

OCY formulated a dispositional plan for the family. Parents were to participate

in random urinalysis testing, psychological evaluations, bonding assessments,

mental health treatment, and advised to maintain safe and stable housing.

The court granted Parents supervised visitation with Children. Father’s

visitation progressed to unsupervised for just two visits in June 2018, but

returned to supervised in the summer of 2018 after OCY discovered that

Father had been allowing Mother to have unauthorized and unsupervised

contact with Children.

OCY Caseworker Lisa Langer testified that Parents seemed unwilling and

resistant to working on the suggested services. N.T. Termination Hearing,

4/11/19, at 94. Caseworker Langer also testified that Father continued to

exhibit threatening behavior and mental instability throughout her

involvement in the matter, including making multiple threats to caseworkers. ____________________________________________

4Father also testified that he was advised by OCY to file a protection from abuse (PFA) petition against Mother to prevent Children from being taken away from him. N.T. Termination Hearing, 5/6/19, at 44-47. Father complied and filed the petition; however, he later withdrew the petition.

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Id. at 103, 135. Caseworker Shannon Spiegel testified that due to Children’s

unhealthy bond with parents, terminating their parental rights would be in

Children’s best interests. Id. at 116. See also id. at 139 (OCY supervisor

Julie Lafferty testifying termination would serve needs and welfare of Children

where Children’s attachment to parents was unhealthy; adoptive resource

necessary for Children to live “healthy, happy, successful lives.”).

Father admitted to caseworkers numerous times that Mother was

abusive toward the Children, but that he was not around to protect them

because of his work schedule. Id. at 108. Caseworkers often observed

Parents failing to intervene when Children were fighting amongst themselves.

Id. at 111. Permanency Caseworker Rachel Campbell testified that J.L.P. and

E.R.P., who are placed in the same pre-adoptive foster home, are thriving and

bonded to their foster family. Id. at 142. Campbell further testified that R.Z.-

W.P. is in a pre-adoptive home and is doing “very well” there. Id. at 142-43.

In October 2018, OCY changed the goal from reunification to adoption.

On November 27, 2018, OCY filed three petitions to involuntarily terminate

Father’s parental rights to Children. The court held termination hearings on

April 11, 2019 and May 6, 2019. After reviewing the evidence and testimony

presented at the hearings, on June 21, 2019 the court issued decrees granting

termination pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b) of

the Adoption Act.5

____________________________________________

5 23 Pa.C.S. §§ 2101-2938.

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On July 18, 2019, Father’s former attorney, Elizabeth B. Walbridge,

Esquire, filed a timely notice of appeal and a Pa.R.A.P. 1925(c)(4) notice of

intention to file an Anders brief in lieu of a Rule 1925(b) concise statement

of errors complained of on appeal. Attorney Walbridge filed a petition to

withdraw which the trial court granted. Subsequently, current counsel,

Gregory J. Grasinger, Esquire, entered his appearance for Father. Attorney

Grasinger now seeks to withdraw from representing Father on appeal. He

presents the following issues for our consideration:

(1) Whether the Orphan’s Court committed an abuse of discretion or error of law when it concluded that the []OCY established grounds for termination of parental rights under 23 P[a].C[.]S[]. [§] 2511([a])(1)(2)(5) and (8).

(2) Whether the Orphan’s Court committed an abuse of discretion or error of law when it concluded that the termination of [Father’s] parental rights was in the Child[ren]’s best interest pursuant to 23 P[a].C[.]S[]. [§] 2511(b).

Appellant’s Anders Brief, at 5.

In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The 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.” It is well[-] established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.

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In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under

23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child set forth in 23 Pa.C.S. § 2511(b)).

We review a trial court’s decision to involuntarily terminate parental

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003). Our scope of review is limited to determining whether

the trial court’s decree is supported by competent evidence. Id.

We may not address the merits of Father’s appeal without first reviewing

counsel’s request to withdraw. Commonwealth v. Rojas, 874 A.2d 638,

639 (Pa. Super. 2005). In V.E., supra, our Court held:

Counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating his or her parental rights, may, after a conscientious and thorough review of the record, petition the court for leave to withdraw representation if he or she can find no issues of arguable merit on which to base the appeal.

611 A.2d at 1275. In In re Adoption of V.G., 751 A.2d 1174 (Pa. Super.

2000), our Court reiterated the requirements counsel must satisfy before

being permitted to withdraw in termination appeals: (1) petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, 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

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copy of the brief to the appellant and advise the appellant of his or her right

to retain new counsel or proceed pro se and raise any additional points he or

she deems worthy of this Court’s review. Id. at 1176.

Instantly, Attorney Grasinger has complied with the withdrawal

requirements outlined in V.G. He has filed a separate petition to withdraw

concluding that the appeal would be frivolous, filed a brief referring to any

issues of arguable merit, stated in his brief that he has furnished Father with

a copy of the brief, and informed him of his rights in lieu of counsel’s

representation. Therefore, we find counsel has substantially complied with

the withdrawal requirements. Commonwealth v. Wrecks, 934 A.2d 1287

(Pa. Super. 2007) (substantial compliance sufficient to satisfy withdrawal on

appeal).

“Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.

2007) (citation omitted). Based on our own independent review of the

certified record, including the notes of testimony from the termination hearing,

relevant case law and the trial court opinion, we agree with counsel’s

assessment that any appeal would be frivolous.

After reviewing the parties’ briefs, relevant case law and the certified

record on appeal, we affirm the trial court’s decrees terminating Father’s

parental rights to Children on the basis of the trial court opinion authored by

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the Honorable Shad Connelly. Judge Connelly’s opinion thoroughly analyzes

the issues raised on appeal by Father, supporting termination with reference

to relevant testimony and evidence from the two-day hearing. Specifically,

termination is proper under section 2511(a)(2)6 based on Parents’ history of

abuse, unstable housing, domestic violence and lack of follow through with

provided OCY services.7 Critically, Father’s failure to prevent Mother’s physical

abuse of Children compounds the lack of safety and stability in their lives.

Mother and Father’s relationship is “toxic;” Father admitted his codependency

on Mother, secretly took D.R.P. to Mother’s residence despite clear directives

from OCY that he was not to permit his children to have unauthorized contact

with Mother, and allegedly planned to reunite Children with Mother and move

out of the state.

Termination is also warranted under section 2511(b)8 where several

OCY caseworkers and Dr. Peter Von Korff, an expert in the field of psychology ____________________________________________

6 Termination is proper under section 2511(a)(2) where “[t]he 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.”

7 We also note that we can affirm the trial court’s decision regarding the termination of parental rights with regard to any singular subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). 8 In In re T.S.M., 71 A.3d 251, 267 (Pa. 2013), our Supreme Court noted “if

the grounds for termination under subsection (a) are met, a court ‘shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.’” 23 Pa.C.S. § 2511(b). Moreover, “[i]ntangibles

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and bonding assessments, testified that termination would be in Children’s

best interests. Specifically, Dr. Von Korff concluded that Father would “have

a great deal of difficulty” being available as a parent on a steady basis. N.T.

Termination Hearing, 4/11/19, at 36. Doctor Korff described Father as an

“arms-length” parent who is “not really available [and] only sporadically

around.” Id. at 43. Doctor Korff opined that Children have “insecure and

avoidant relationships with . . . Father.” Id. Doctor Korff also noted that

Father is co-dependent on Mother which, in turn, affects his attachment with

Children. Id. at 53-54; see also N.T. Termination Hearing 5/6/19, at 75, 82

(Father admits he was in co-dependent relationship with Mother and had an

unhealthy relationship with Mother). Finally, Dr. Korff testified that Children

need security and dependency, which they have not been able to receive from

Father, and if severing parental ties would bring that about then, in his

professional opinion, he would have “no problem” with termination. Id. at 58,

116, 136 (various caseworkers testifying terminating parental rights would be

in Children’s best interests). Children are thriving in their pre-adoptive homes

and have positive attachments to their foster families. See In re T.S.M., 71 ____________________________________________

such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of a child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). Further, in In re E.M., 620 A.2d 481, 485 (Pa. 1993), this Court held that the determination of the child’s “needs and welfare” requires an examination of “the status of the natural parental bond.” The “utmost attention” should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012), overruled on other grounds by In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017).

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A.3d 251, 268 (Pa. 2013) (“Common sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.”).

Accordingly, we discern no abuse of discretion or error of law by the trial

court where its decrees are supported by competent evidence. In re A.R.,

supra. We instruct the parties to attach a copy of Judge Connelly’s opinion

in the event of further proceedings in the matter.

Decrees affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/24/2019

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