In Re: C.A.E.B., Appeal of: A.J.

• Court: Superior Court of Pennsylvania
• Decided: October 21, 2022
• Docket: 372 WDA 2022
• Status: Unpublished

Opinion

J-S29004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: C.A.E.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.J., MOTHER : : : : : : No. 372 WDA 2022

Appeal from the Order Entered March 30, 2022 In the Court of Common Pleas of Clarion County Orphans' Court at No(s): No. 23 OC 2022

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 21, 2022

A.J. (“Mother”) appeals from order granting the petition filed by the

Clarion County Children and Youth Services (“CYS”) and terminating Mother’s

parental rights of her daughter C.A.E.B. (“Child”), born in February 2010,

under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b).1 Additionally, Gina L.

Bianco, Esquire (“Attorney Bianco”), Mother’s counsel, has filed a petition for

leave to withdraw as counsel and an accompanying brief pursuant to Anders

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court also terminated the parental rights of C.B.’s father, J.B. (“Father”). Father has not appealed the termination of his parental rights. J-S29004-22

v. California, 386 U.S. 738, 744 (1967).2 We grant Attorney Bianco’s petition

for leave to withdraw and affirm the order.

In September 2020, CYS filed a petition alleging Child’s dependency due

to unstable housing and homelessness; concerns about Mother’s mental

health; and the fact that Child was acting out sexually and sending nude

photographs of herself. Following a hearing, the trial court found Child to be

dependent but allowed her to remain in Mother’s care. The trial court ordered

Mother to immediately obtain a mental health evaluation and stable housing.

Several months later, in January 2021, Mother made multiple suicidal

comments and attempted to exit a moving vehicle with Child in the vehicle.

As a result, CYS filed a shelter care application. The trial court granted

the application, and Child was placed with her maternal uncle and aunt. The

trial court again informed Mother of the necessity to stabilize her mental

health. However, Mother continued to struggle with her mental health and

failed to consistently participate with mental health services. In October 2021,

Mother ceased attending her mental health appointments, stating that they

were not helping her. In contrast, Mother completed parenting classes and

regularly participated in supervised visits. Nevertheless, Mother had a difficult

time engaging with Child and applying the lessons from the classes to her

2 It is well settled that the Anders principles have been extended “to appeals involving the termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014).

-2- J-S29004-22

relationship with Child; and Mother was distracted by other matters, including

her relationships with various men.

On January 7, 2022, the trial court entered an order changing the

permanency goal from reunification to adoption. Subsequently, Child indicated

that she did not want to participate in visits with Mother. CYS then filed a

petition seeking the termination of Mother’s parental rights. At the hearing on

the petition, the trial court heard testimony from CYS caseworker Amanda

Gregory; family resource specialist Mary Milford; and Mother. Significantly,

Gregory testified that Child had alleged that when she was 8 years old, she

had been sexually assaulted by a man who accompanied her and Mother on a

camping trip; however, Mother demonstrated no concern about these

allegations and took no steps to address the incident when it was reported to

her. Ultimately, the trial court involuntarily terminated Mother’s parental

rights, finding that Child had been dependent for 18 months, and in kinship

care with maternal uncle and aunt for 14 months, where she had been

adjusting well and wished to remain.

After Attorney Bianco timely filed the instant appeal and a Pa.R.A.P.

1925(b) concise statement, she filed in this Court petition for leave to

withdraw as counsel and a separate Anders Brief.

Attorney Bianco presents the following issues on Mother’s behalf in the

Anders Brief:

-3- J-S29004-22

1. Whether the Trial Court erred or committed an abuse of discretion in terminating [Mother’s] Parental Rights under 23 Pa.C.S.A. [§] 2511(a)(1)?

2. Whether the Trial Court erred or committed an abuse of discretion in terminating [Mother’s] Parental Rights under 23 Pa.C.S.A. [§] 2511(a)(2)?

3. Whether the Trial Court erred or committed an abuse of discretion in terminating [Mother’s] parental rights under 23 Pa.C.S.A. [§] 2511(a)(5)[?]

4. Whether the Trial Court erred or committed an abuse of discretion in terminating [Mother’s] parental rights under 23 Pa.C.S.A. [§] 2511(b)[?]

Anders Brief at 5-6. Mother neither filed a pro se brief, nor retained alternate

counsel for this appeal.

Before reviewing the merits of Mother’s claims, we must first determine

whether Attorney Bianco has complied with the dictates of Anders in

petitioning to withdraw from representation. See In re X.J., 105 A.3d at 3.

Pursuant to Anders, when an attorney believes that an appeal is frivolous and

wishes to withdraw as counsel, he or she must (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) provide a copy

of the brief to the client and advise her of the right to proceed pro se or retain

new counsel to raise any additional arguments worthy of the court’s review.

See In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). “With respect to

the third requirement of Anders, that counsel inform the appellant of his or

-4- J-S29004-22

her rights in light of counsel’s withdrawal, this Court has held that counsel

must attach to their petition to withdraw a copy of the letter sent to their client

advising him or her of their rights.” In re J.D.H., 171 A.3d 903, 907 (Pa.

Super. 2017) (citation and quotation marks omitted).

Additionally, a proper Anders brief must

(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.

Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).

Once counsel has satisfied the above requirements, this Court “must

undertake an independent examination of the record to determine whether

the appeal is wholly frivolous.” In re S.M.B., 856 A.2d at 1237.

Here, Attorney Bianco has complied with the requirements set forth in

Anders by indicating that she made a conscientious review of the record and

determined that Mother’s appeal would be wholly frivolous. Further, the record

contains a copy of the letter that Attorney Bianco sent to Mother, informing

her of Attorney Bianco’s intention to withdraw and advising her of her right to

proceed pro se, retain counsel, and file additional claims. Finally, Attorney

Bianco’s Anders Brief meets the standards set forth in Santiago. Because

Attorney Bianco has complied with the procedural requirements for

withdrawing from representation, we will independently review the record to

-5- J-S29004-22

determine whether Mother’s appeal is, in fact, wholly frivolous. See In re

J.D.H., 171 A.3d at 908.

We review an appeal from the termination of parental rights with

significant deference to the trial court’s verdict:

In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court’s factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court’s order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge’s 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).

Termination of parental rights is controlled by section 2511 of the

Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon CYS to prove by

clear and convincing evidence that its asserted grounds for seeking the

termination of parental rights are valid. See In re D.A.T., 91 A.3d 197, 203

(Pa. Super. 2014). “Clear and convincing evidence is that which 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.”

Interest of A.M., 256 A.3d 1263, 1270 (Pa. Super. 2021) (citation and

quotation marks omitted). Further, 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. See In re D.A.T., 91

A.3d at 203. “If competent evidence supports the trial court’s findings, we will

-6- J-S29004-22

affirm even if the record could also support the opposite result.” In re M.M.,

106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted).

Satisfaction of any one subsection of section 2511(a), along with

consideration of section 2511(b), is sufficient for the involuntary termination

of parental rights. See Interest of S.S., 252 A.3d 681, 686 (Pa. Super.

2021). In this case, we will review the trial court’s decision to terminate

Mother’s parental rights based upon sections 2511(a)(1) and (b), which state

the following:

(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:

***

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(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(a)(1), (b).

-7- J-S29004-22

To terminate parental rights under Section 2511(a)(1), the party seeking termination must prove that the parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. Parental duties are not defined in the Adoption Act, but our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance and support. Parental duties are carried out through affirmative actions that develop and maintain the parent- child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child’s life. Fortitude is required, as a parent must act with reasonable firmness to overcome obstacles that stand in the way of preserving a parent- child relationship and may not wait for a more suitable time to perform parental responsibilities.

In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (citations, quotation

marks, and brackets omitted). Further,

[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 parent- child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.

In re Adoption of B.G.S., 240 A.3d 658, 665 (Pa. Super. 2020) (citation

omitted).

Mother contends that the trial court erred in granting the Petition to

involuntarily terminate her parental rights to Child under Section 2511(a)(1).

See Anders Brief at 12-14. Mother argues that she has not evidenced a

settled purpose of relinquishing her parental claims to Child. See id. at 14.

-8- J-S29004-22

In finding that Mother had shown an intent to relinquish her rights to

Child, the trial court highlighted the low priority she gave to her relationship

with Child:

[Child] was removed from her Mother’s care in January 2021 due to Mother’s inability to maintain her mental health despite CYS establishing services for her and assisting her to meet her mental health needs. In March 2022, Mother was still demonstrating a lack of mental health stability. Over the pendency of this case, Mother did not consistently take her mental health medication or participate in mental health counseling. Of even greater concern was the general lack of care she demonstrated for the well-being of [Child]. She did not engage with [Child] during visits, she did not make choices in her own life that would allow her to establish a safe and appropriate home for [Child] in that she continued to invite various adult men to live with her or stay at her residence, knowing that [Child] had made allegations of being sexually assaulted by an adult male friend during a camping trip while in Mother’s care. And Mother repeatedly allowed her relationship with men to overshadow her visit time with [Child]. While Mother was offered parenting classes and coaching to assist her with connecting with [Child] during visits, she was still unable to establish a relationship with [Child] or connect with her in any meaningful way. Mother has generally failed to demonstrate that she has the ability or the desire to provide love, comfort, security and stability for [Child].

Trial Court Opinion, 4/28/22, at 4-5 (unnumbered).

After a careful review of the record, we find that there is competent

evidence in the record that supports the trial court’s findings and credibility

determinations. Indeed, Child was removed from Mother’s home after Mother

suffered multiple mental health crises in January 2021, including making

multiple suicidal statements and attempting to exit a moving vehicle

containing Child and her paramour at the time. See N.T., 3/1/22, at 7-8.

-9- J-S29004-22

Furthermore, Mother was non-compliant with mental health services

and would stop taking her medicine, without indicating her concerns to

providers or CYS. See id. at 9-10, 66. Although Mother completed parenting

classes, she could not apply what she learned to Child. See id. at 18, 41.

Indeed, Mother made weekly supervised visits with Child, which never

increased in frequency, and Mother did not make significant progress with

Child during the visits. See id. at 18-19, 20-21, 43-44, 59, 74. Mother

additionally admitted that she only called Child half the time when the

opportunity arose. See id. at 20; see also id. at 21 (noting that there were

no phone calls between Mother and Child after the goal change).

Mother indicated that she received notice of Child’s medical and

educational appointments but did not attend any of the appointments. See id.

at 90. Moreover, CYS caseworker Gregory expressed concern with the fact

that Mother had five separate relationships with men between August 2021

and January 2022. See id. at 15; see also id. at 58 (wherein Family Specialist

Milford testified that Mother loses focus on reunifying with Child when she is

in a relationship with a man). CYS caseworker Gregory additionally testified

that Child stated that one of Mother’s paramours had sexually abused her

when she was 8 years old during a camping trip and that Mother did not do

anything to stop the abuse. See id. at 22-25.

In light of the foregoing, the trial court did not err in finding that Mother

did not perform her parental duties. See In re Adoption of B.G.S., 240 A.3d

- 10 - J-S29004-22

at 665 (stating that a parent does not perform “her parental duties by

displaying a merely passive interest in the development of a child.”).

Therefore, we find no reason to disturb the trial court’s conclusions or its

discretion in terminating Mother’s parental rights to Child under section

2511(a)(1).

Having determined termination is appropriate pursuant to Section

2511(a)(1), we next review whether the requirements of Section 2511(b) are

satisfied. See In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).

Under section 2511(b), the trial court inquires whether the termination of

parental rights would best serve the developmental, physical, and emotional

needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286 (Pa.

Super. 2005). “Intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” Id. at 1287

(citation omitted). The court must also discern the nature and status of the

parent-child bond, with utmost attention to the effect on the child of

permanently severing that bond. See Interest of L.W., 267 A.3d 517, 523

(Pa. Super. 2021); see also In re Z.P., 994 A.2d at 1121 (stating that “the

court must take into account whether a bond exists between child and parent,

and whether termination would destroy an existing, necessary and beneficial

relationship.”). “[C]ourts considering termination must also consider whether

the children are in a pre-adoptive home and whether they have a bond with

their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citation

- 11 - J-S29004-22

omitted). In conducting a bonding analysis, the court is not required to use

expert testimony, but may rely on the testimony of social workers and

caseworkers. See Interest of L.W., 267 A.3d at 523. Finally, although the

focus in terminating parental rights under section 2511(a) is on the parent, it

is on the child under section 2511(b). See In re C.L.G., 956 A.2d at 1008.

Mother contends that the trial court erred in determining that

termination served Child’s best interests under section 2511(b). See Anders

Brief at 17. Mother argues that she demonstrated a bond with Child. See id.

at 18.

Here, upon removal from Mother’s care, Child was placed with her

maternal uncle and aunt. See N.T., 3/1/22, at 29-30. CYS caseworker Gregory

testified that Child has been doing well in her new home environment, she has

been in therapy, and she was regularly attending school and performing well

at school. See id. at 30-32; see also id. at 33, 43, 44 (noting that Child

stated that her relationship with Mother triggers behavioral issues and that

talking to Mother did not make her feel safe). Further, Gregory testified that

Child expressed that she wanted to be adopted by her uncle and aunt, and

that she does not want contact with Mother. See id. at 33-34. Gregory

indicated that terminating Mother’s parental rights was appropriate due to

Child’s progress with her uncle and aunt. See id. at 34.

Family Resource Specialist Milford testified that Mother struggled to

bond with Child during visits. See id. at 59. Mother would express that she

- 12 - J-S29004-22

loved Child at the end of visits, and they would hug. See id. at 63-64.

However, Mother also admitted that she did not attend to Child’s medical or

educational appointments. See id. at 70.

The trial court determined that termination of Mother’s parental rights

best served Child’s needs and welfare, explaining that Child was in loving and

stable home where her needs are being met. See Trial Court Opinion,

4/28/22, at 5 (unnumbered). The trial court’s determination that Child’s best

interests are served by the termination of Mother’s parental rights is supported

by competent, clear, and convincing evidence in the record. See In re K.Z.S.,

946 A.2d 753, 763-64 (Pa. Super. 2008) (affirming the involuntary

termination of the mother’s parental rights, despite the existence of some

bond, where placement with the mother would be contrary to the child’s best

interests); see also In re Z.P., 994 A.2d at 1125 (stating that, a child’s life

“simply cannot be put on hold in the hope that [a parent] will summon the

ability to handle the responsibilities of parenting.”). Therefore, we conclude

that the trial court did not abuse its discretion in terminating the parental

rights of Mother under section 2511(b).

Moreover, as we cannot find any additional meritorious issues in the

record, and we agree with Attorney Bianco that Mother’s appeal is frivolous,

we grant her petition for leave to withdraw from representation.

Order affirmed. Petition for leave to withdraw as counsel granted.

- 13 - J-S29004-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/21/2022

- 14 -