J-S35031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.U., MOTHER : : : : : No. 555 EDA 2020
Appeal from the Order Entered January 29, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000346-2018
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JUNE 16, 2021
A.U. (Mother) appeals from the order of the Court of Common Pleas of
Philadelphia County Juvenile Division (trial court) entered on January 29,
2020, holding that her child, X.S. (Child), born in 2017, was not “dependent”
under the Juvenile Act,1 as Child’s father, A.S. (Father), was available to
assume custody. With this appeal, Mother’s counsel filed a petition to
withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
We previously denied counsel’s petition to withdraw without prejudice and
ordered her to send a new letter to Mother informing Mother of her rights.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 6301-6375.
2 Anders v. California, 386 U.S. 738 (1967). J-S35031-20
Counsel complied with that order and has filed a new Anders brief and petition
to withdraw. After careful review, we grant counsel’s petition to withdraw and
affirm.
In February 2018, the City of Philadelphia Department of Human
Services (DHS) filed a dependency petition with respect to Child after receiving
a report that Mother was arrested driving a stolen U-Haul truck and that Child,
who was seven months old at the time, was with her in the U-Haul truck, not
in a car seat and restrained only by a seatbelt. Trial Court Opinion, 5/1/20,
at 1-2. DHS sought and obtained an Order of Protective Custody for Child.
Id. at 2. Following a shelter care hearing, the trial court lifted the Order of
Protective Custody, ordered that DHS retain temporary legal and physical
custody of Child, and permitted Child to be moved to Father’s home prior to
the next court date if Father was found to be an appropriate caregiver. Id.;
Trial Court Order, 2/20/18. On March 14, 2018, DHS received a report that
Mother, who had obtained Child from Father two days earlier, attempted to
give Child to anyone who would take her. Trial Court Opinion, 5/1/20, at 2-
3. On April 18, 2018, following an adjudicatory hearing, the trial court found
clear and convincing evidence that Child was without proper care or control
and adjudicated Child was dependent and fully committed Child to DHS. Id.
at 3; Trial Court Adjudication Order, 4/18/18. On March 13, 2019, the trial
court found that Mother was receiving and in compliance with mental health
treatment and that Child was no longer dependent, and ordered that DHS’s
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supervision and legal and physical custody of Child terminate. Trial Court
Opinion, 5/1/20, at 3; Trial Court Order, 3/13/19.
On January 21, 2020, DHS again sought and obtained an Order of
Protective Custody for Child, alleging that it had concerns that Mother had
untreated mental health issues and exhibited paranoid behaviors. 1/21/20
Application for Protective Custody Order; Trial Court Order, 1/21/20.
Following a shelter care hearing, the trial court on January 23, 2020, lifted the
Order of Protective Custody, ordered that DHS retain temporary legal custody
of Child, and ordered that Child remain with her paternal grandmother, with
whom she had been placed by DHS, pending an adjudicatory hearing. Trial
Court Opinion, 5/1/20, at 4-5; Trial Court Order, 1/23/20. DHS on January
27, 2020 filed a dependency petition.
An adjudicatory hearing on DHS’ s dependency petition was held on
January 29, 2020 at which DHS, Child’s guardian ad litem, and Mother and
Father, both represented by counsel, were present. At the hearing, the DHS
case worker testified that she had visited Father’s home and evaluated his
ability to care for Child and that she concluded that Father could safely and
adequately care for Child and that it was in Child’s best interest for Father to
have custody of Child. N.T., 1/29/20, at 9-13. The DHS caseworker also
testified that Child had not received proper medical, dental and vision care
while Child was with Mother and that based on interactions with Mother, she
believed that Mother had untreated mental health issues that affected her
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ability to care for Child. Id. at 12-13. Mother testified that she opposed
Father having custody and made accusations that Father engaged in verbally
abusive behavior and used drugs, but did not dispute DHS’s testimony that
she was not obtaining medical, dental and vision care for Child. Id. at 14-19,
24. Counsel for Mother represented that Mother had gone for a mental health
evaluation the day before the adjudicatory hearing, but did not have the
results of the evaluation and no records concerning the evaluation were
provided to the trial court. Id. at 17-19. Father testified that he was ready
willing and able to care for Child and that Mother had sent him text messages
that made him concerned for Child’s safety. Id. at 21-23. Father also testified
that he would cooperate with court-ordered supervised visitation for Mother.
Id. at 22-24, 28-29.
Following the hearing, the trial court found that Father was ready, willing
and able to care for Child and that Mother posed a safety risk to Child because
she had significant mental health issues and failed to meet Child’s medical,
dental, and vision needs. N.T., 1/29/20, at 25-27; Trial Court Opinion,
5/1/20, at 7. The trial court accordingly entered an Adjudication Order on
January 29, 2020 holding that “Child is not Dependent pursuant to the
Pennsylvania Juvenile Act and that the petition for dependency is dismissed”
and transferring legal and physical custody of Child to Father. Trial Court
Amended Adjudication Order, 1/29/20, at 1. The Adjudication Order further
provided that Mother was to have a mental health and psychiatric evaluation
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done, that Mother was to have weekly supervised visits with Child, and that
this visitation could be modified once Mother demonstrated she had been
complying with mental health treatment for six months. Id. at 2. On February
12, 2020, Mother filed this timely appeal.
On June 2, 2020, Mother’s counsel filed an Anders brief and petition to
withdraw that failed to advise Mother that, in addition to her right to retain
new counsel or to proceed pro se, she has the right to raise any additional
points that she deems worthy of this Court’s attention. Accordingly, this Court
denied counsel’s petition to withdraw without prejudice and ordered counsel
to send Mother a new letter advising her of that right. Counsel complied with
that order and again filed an Anders brief and petition to withdraw.
In her Anders brief, counsel presents the following issues:
1. Whether the trial court erred and/or abused its discretion by entering an order on January 29, 2020, finding that the child [w]as not dependent and transferring custody to Father?
2.
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J-S35031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.U., MOTHER : : : : : No. 555 EDA 2020
Appeal from the Order Entered January 29, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000346-2018
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JUNE 16, 2021
A.U. (Mother) appeals from the order of the Court of Common Pleas of
Philadelphia County Juvenile Division (trial court) entered on January 29,
2020, holding that her child, X.S. (Child), born in 2017, was not “dependent”
under the Juvenile Act,1 as Child’s father, A.S. (Father), was available to
assume custody. With this appeal, Mother’s counsel filed a petition to
withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
We previously denied counsel’s petition to withdraw without prejudice and
ordered her to send a new letter to Mother informing Mother of her rights.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 6301-6375.
2 Anders v. California, 386 U.S. 738 (1967). J-S35031-20
Counsel complied with that order and has filed a new Anders brief and petition
to withdraw. After careful review, we grant counsel’s petition to withdraw and
affirm.
In February 2018, the City of Philadelphia Department of Human
Services (DHS) filed a dependency petition with respect to Child after receiving
a report that Mother was arrested driving a stolen U-Haul truck and that Child,
who was seven months old at the time, was with her in the U-Haul truck, not
in a car seat and restrained only by a seatbelt. Trial Court Opinion, 5/1/20,
at 1-2. DHS sought and obtained an Order of Protective Custody for Child.
Id. at 2. Following a shelter care hearing, the trial court lifted the Order of
Protective Custody, ordered that DHS retain temporary legal and physical
custody of Child, and permitted Child to be moved to Father’s home prior to
the next court date if Father was found to be an appropriate caregiver. Id.;
Trial Court Order, 2/20/18. On March 14, 2018, DHS received a report that
Mother, who had obtained Child from Father two days earlier, attempted to
give Child to anyone who would take her. Trial Court Opinion, 5/1/20, at 2-
3. On April 18, 2018, following an adjudicatory hearing, the trial court found
clear and convincing evidence that Child was without proper care or control
and adjudicated Child was dependent and fully committed Child to DHS. Id.
at 3; Trial Court Adjudication Order, 4/18/18. On March 13, 2019, the trial
court found that Mother was receiving and in compliance with mental health
treatment and that Child was no longer dependent, and ordered that DHS’s
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supervision and legal and physical custody of Child terminate. Trial Court
Opinion, 5/1/20, at 3; Trial Court Order, 3/13/19.
On January 21, 2020, DHS again sought and obtained an Order of
Protective Custody for Child, alleging that it had concerns that Mother had
untreated mental health issues and exhibited paranoid behaviors. 1/21/20
Application for Protective Custody Order; Trial Court Order, 1/21/20.
Following a shelter care hearing, the trial court on January 23, 2020, lifted the
Order of Protective Custody, ordered that DHS retain temporary legal custody
of Child, and ordered that Child remain with her paternal grandmother, with
whom she had been placed by DHS, pending an adjudicatory hearing. Trial
Court Opinion, 5/1/20, at 4-5; Trial Court Order, 1/23/20. DHS on January
27, 2020 filed a dependency petition.
An adjudicatory hearing on DHS’ s dependency petition was held on
January 29, 2020 at which DHS, Child’s guardian ad litem, and Mother and
Father, both represented by counsel, were present. At the hearing, the DHS
case worker testified that she had visited Father’s home and evaluated his
ability to care for Child and that she concluded that Father could safely and
adequately care for Child and that it was in Child’s best interest for Father to
have custody of Child. N.T., 1/29/20, at 9-13. The DHS caseworker also
testified that Child had not received proper medical, dental and vision care
while Child was with Mother and that based on interactions with Mother, she
believed that Mother had untreated mental health issues that affected her
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ability to care for Child. Id. at 12-13. Mother testified that she opposed
Father having custody and made accusations that Father engaged in verbally
abusive behavior and used drugs, but did not dispute DHS’s testimony that
she was not obtaining medical, dental and vision care for Child. Id. at 14-19,
24. Counsel for Mother represented that Mother had gone for a mental health
evaluation the day before the adjudicatory hearing, but did not have the
results of the evaluation and no records concerning the evaluation were
provided to the trial court. Id. at 17-19. Father testified that he was ready
willing and able to care for Child and that Mother had sent him text messages
that made him concerned for Child’s safety. Id. at 21-23. Father also testified
that he would cooperate with court-ordered supervised visitation for Mother.
Id. at 22-24, 28-29.
Following the hearing, the trial court found that Father was ready, willing
and able to care for Child and that Mother posed a safety risk to Child because
she had significant mental health issues and failed to meet Child’s medical,
dental, and vision needs. N.T., 1/29/20, at 25-27; Trial Court Opinion,
5/1/20, at 7. The trial court accordingly entered an Adjudication Order on
January 29, 2020 holding that “Child is not Dependent pursuant to the
Pennsylvania Juvenile Act and that the petition for dependency is dismissed”
and transferring legal and physical custody of Child to Father. Trial Court
Amended Adjudication Order, 1/29/20, at 1. The Adjudication Order further
provided that Mother was to have a mental health and psychiatric evaluation
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done, that Mother was to have weekly supervised visits with Child, and that
this visitation could be modified once Mother demonstrated she had been
complying with mental health treatment for six months. Id. at 2. On February
12, 2020, Mother filed this timely appeal.
On June 2, 2020, Mother’s counsel filed an Anders brief and petition to
withdraw that failed to advise Mother that, in addition to her right to retain
new counsel or to proceed pro se, she has the right to raise any additional
points that she deems worthy of this Court’s attention. Accordingly, this Court
denied counsel’s petition to withdraw without prejudice and ordered counsel
to send Mother a new letter advising her of that right. Counsel complied with
that order and again filed an Anders brief and petition to withdraw.
In her Anders brief, counsel presents the following issues:
1. Whether the trial court erred and/or abused its discretion by entering an order on January 29, 2020, finding that the child [w]as not dependent and transferring custody to Father?
2. Whether the trial court erred and/or abused its discretion by ordering Mother to engage in a mental health and psychiatric evaluation and treatment?
Anders Brief at 3.3 Mother has not filed any response to counsel’s petition to
withdraw or Anders brief.
3 The pages of counsel’s Anders brief are unnumbered.The page numbers to which this Memorandum cites are the numbers that would appear if the pages were numbered beginning with the page containing the Statement of Jurisdiction.
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Before this Court can consider the merits of this appeal, we must first
determine whether counsel has satisfied all of the requirements that court-
appointed counsel must meet before leave to withdraw may be granted. In
re Adoption of B.G.S., 240 A.3d 658, 661 (Pa. Super. 2020); In re
Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020); In re J.D.H.,
171 A.3d 903, 905-06 (Pa. Super. 2017).
To withdraw from representing a party that is entitled to counsel on the
basis that the appeal is frivolous, counsel must (1) petition the court for leave
to withdraw stating that she has made a conscientious examination of the
record and has determined that the appeal would be frivolous; (2) file a
sufficient Anders brief; and (3) provide a copy of the Anders brief to the
client and advise the client of her right to retain new counsel or proceed pro
se and to raise any additional points that she deems worthy of the court’s
attention. B.G.S., 240 A.3d at 661; J.D.H., 171 A.3d at 907; In re X.J., 105
A.3d 1, 3-4 (Pa. Super. 2014). An Anders brief must comply with all of the
following requirements:
[T]he 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also
B.G.S., 240 A.3d at 661; J.D.H., 171 A.3d at 907. If counsel has satisfied
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the above requirements, it is then this Court’s duty to conduct its own review
of the record and render an independent judgment as to whether the appeal
is wholly frivolous. B.G.S., 240 A.3d at 662; M.C.F., 230 A.3d at 1219; X.J.,
105 A.3d at 4.
Counsel has filed a petition to withdraw and states in her Anders brief
that she has made a conscientious examination of the record and determined
that there are no non-frivolous grounds for the appeal. Anders Brief at 8.
Counsel provided copies of the Anders brief and petition to withdraw to
Mother and, following this Court’s prior decision in this case, has sent a letter
to Mother advising her of her right to retain new counsel or proceed pro se on
appeal and to raise any points she deems worthy of the court’s attention.
Counsel’s Anders brief provides a procedural and factual summary of the case
with references to the record and cites and discusses the applicable law on
which counsel bases her conclusion that there are no non-frivolous issues that
she can raise on Mother’s behalf. Counsel has thus filed a sufficient Anders
brief and has adequately complied with the procedural requirements for
withdrawal as counsel in this appeal.
We therefore proceed to conduct an independent review to ascertain
whether the appeal is indeed wholly frivolous. This Court first considers the
issues raised by counsel in the Anders brief and determines whether they are
in fact frivolous. B.G.S., 240 A.3d at 662; J.D.H., 171 A.3d at 908. In
addition, if the Court finds those issues frivolous, this Court conducts an
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examination of the record to discern if there are any other issues of arguable
merit overlooked by counsel. B.G.S., 240 A.3d at 662; M.C.F., 230 A.3d at
1219; In re J.D.H., 171 A.3d at 908.
In a dependency proceeding, this Court must accept the findings of fact
and credibility determinations of the trial court if they are supported by the
record. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015); In the Interest of J.B.,
247 A.3d 447, 448 (Pa. Super. 2021); In the Interest of A.C., 237 A.3d
553, 557 (Pa. Super. 2020). Under the provisions of the Juvenile Act, the trial
court is given broad discretion in meeting the goal of entering a disposition
that is best suited to the protection and the physical, mental, and moral
welfare of the child. A.C., 237 A.3d at 565. We review the trial court’s order
here for abuse of discretion. L.Z., 111 A.3d at 1174; A.C., 237 A.3d at 557.
Mother’s first issue challenges both the trial court’s determination that
Child is not a dependent child and its transfer of custody to Father. We
conclude that the trial court did not abuse its discretion in either of these
determinations. The law is clear that a dependency petition must be denied
where the court determines, after an adjudicatory evidentiary hearing, that
the child’s non-custodial parent is ready, willing, and able to give the child
proper parental care. In re M.L., 757 A.2d 849, 849-51 (Pa. 2000); J.B.,
247 A.3d at 454; In the Interest of Justin S., 543 A.2d 1192, 1199-1200
(Pa. Super. 1988). Here, the trial court found that Father was ready, willing,
and able to provide proper parental care for Child, following an adjudicatory
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hearing at which it heard testimony from the DHS caseworker and Father
concerning Father’s immediate ability and willingness to provide parental care
and a safe, stable environment for Child. Trial Court Opinion, 5/1/20, at 6-7;
N.T., 1/29/20, at 9-13, 21-24. While Mother made accusations that Father
used illegal drugs and acted abusively toward her, the evidence at the hearing
showed that Father tested negative for drugs and the trial court found
Mother’s accusations not credible. N.T., 1/29/20, at 10; DHS Ex. 1; Trial Court
Opinion, 5/1/20, at 6-7.
The law is also clear that the dependency court may transfer custody of
the child to the non-custodial parent without a determination of dependency
where it finds after an evidentiary hearing that the child’s non-custodial parent
is ready, willing, and able to give the child proper parental care and that the
custodial parent is unable to provide proper parental care. M.L., 757 A.2d at
851 & n.3; J.B., 247 A.3d at 453-54; Justin S., 543 A.2d at 1198-1201.
Here, the evidentiary hearing that the trial court held before transferring
custody to Father addressed both Mother’s and Father’s ability to care for
Child. N.T., 1/29/20, at 9-24. Based on the evidence at the hearing, including
evidence that Mother had mental health issues that interfered with her ability
to care for Child and was not obtaining medical, dental, and vision care for
Child, the trial court found not only that Father would provide proper care for
Child, but that Mother posed a safety risk to Child. Trial Court Opinion, 5/1/20,
at 6-7; N.T., 1/29/20, at 9-13, 21-23.
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Mother’s second issue likewise merits no relief. A court that is hearing
a matter involving legal or physical custody of a child has authority to order a
party seeking custody or visitation to submit to a mental health evaluation.
Pa.R.C.P. 1915.1(a), 1915.8(a); Gates v. Gates, 967 A.2d 1024, 1032 (Pa.
Super. 2009). “A dependency hearing is a form of custody proceeding”. M.L.,
757 A.2d at 851 n.3.
The trial court’s order required Mother to have a psychiatric evaluation
and comply with mental health treatment consistently for six months only as
a condition of expanding her visitation with Child beyond supervised visits.
N.T., 1/29/20, at 26; Trial Court Opinion, 5/1/20, at 7. The trial court found
that absent mental health diagnosis and treatment, unsupervised contact
between Mother and Child posed a safety risk to Child, and that finding was
supported by evidence at the hearing, including the DHS case worker’s
testimony that Mother’s mental health issues affected her ability to provide
proper care for Child, Mother’s unsupported accusations against Father, and
Father’s testimony concerning texts that Mother sent him. Trial Court Opinion,
5/1/20, at 7; N.T., 1/29/20, at 13-16, 22-23. While Mother contended that
she had undergone a mental health evaluation the day before the hearing, no
evidence was presented of the results of the evaluation or recommendations
from the evaluation. N.T., 1/29/20, at 18-19. The trial court therefore did
not abuse its discretion in conditioning unsupervised visitation on Mother
obtaining a mental health evaluation and treatment.
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Accordingly, we conclude from our independent review that neither of
Mother’s issues entitles her to relief. In addition, our review of the record
does not reveal any non-frivolous issues overlooked by counsel. We therefore
grant counsel’s petition to withdraw and affirm the trial court’s order.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/16/2021
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