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

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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APPEAL OF: J.P., NATURAL FATHER :

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: 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 :

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APPEAL OF: J.P., NATURAL FATHER :

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: 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 :

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APPEAL OF: J.P., NATURAL FATHER :

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: No. 1096 WDA 2019

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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

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

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* 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.

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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

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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

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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

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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

Circulated 12/13/2019 09:44 AM