In the Interest of: L.S., Appeal of: G.T.S.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2023
• Docket: 433 WDA 2022
• Status: Unpublished

Opinion

J-S29031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: G.T.S., FATHER : : : : : : No. 433 WDA 2022

Appeal from the Order Entered March 25, 2022 In the Court of Common Pleas of Erie County Domestic Relations at No(s): CP-25-DP-0000069-2022

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

MEMORANDUM BY COLINS, J.: FILED: JANUARY 10, 2023

G.T.S. (“Father”) appeals from the order that adjudicated his minor

child, L.S. (“Child”), dependent, found aggravating circumstances against

Father, found that no reasonable efforts towards reunification were necessary,

and established adoption as the placement goal for Child. March 25, 2022

Order of Adjudication and Disposition (”3/25/22 Order”). In the 3/25/22

Order, the trial court further found that aggravating circumstances also

existed against E.M.T., Child’s mother (“Mother”).1 Additionally, Father’s

counsel has filed a petition for leave to withdraw and accompanying brief

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* Retired Senior Judge assigned to the Superior Court.

1Mother also appealed the 3/25/22 Order. This Court affirmed the 3/25/22 Order as to Mother on November 4, 2022. In Interest of L.S., No. 434 WDA 2022 (Pa. Super. filed November 14, 2022), unpublished memorandum, 2022 WL 16911854. J-S29031-22

pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm and grant

the petition to withdraw.

The trial court set forth the factual and procedural history of this matter

in its Pa.R.A.P. 1925(a) opinion, issued on May 19, 2022 (“TCO”):

On March 6, 2022, the [Erie County Office of Children & Youth (“OCY”)] received a General Protective Services Referral (“GPS”) after [Child]’s twin sister, A.S., was found unresponsive in her pack ‘n play. A.S. was transported to the hospital, where she was pronounced dead on arrival. [Mother and Father] reported to the Erie Police Department (“EPD”) that A.S. was fed around 9:00 a.m. and then put down for a nap around 10:30 a.m. in the pack ‘n play on a boppy pillow.[2] When [Mother and Father] ;went to check on A.S., she was face down on the side of the boppy pillow, unresponsive, at which time they reported they called 911. It was determined that A.S. died due to suffocation.

On March 7, 2022, [OCY] went to [Mother and Father’s residence] to follow up on the GPS referral and observed Child lying in the pack ‘n play sleeping on a boppy pillow. Through a follow-up investigation, [OCY] learned that Mother had been instructed repeatedly through Project First Step, Nurse-Family Partnership, and [OCY] about safe sleeping techniques and not using the boppy pillow without supervision.

TCO at 2 (citations to record omitted). An application for an emergency

protective order was filed setting forth OCY’s concerns that Child was not safe

in the care of her parents due to: (i) the continued use of the boppy pillow

even after the death of A.S. on the previous day and despite attempts by

2A “boppy pillow” is a feeding and infant support pillow introduced by the Boppy Company and designed for support during “supervised awake time.” See www.boppy.com/pages/safe-product-use (last visited on December 30, 2022).

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numerous health providers to instruct them on its danger; (ii) Mother’s history

of failure to meet the needs of her other children;3 (iii) Mother’s mental health

history; and (iv) Mother’s limited intellectual abilities. An Emergency

Protective Order for Child was issued on March 9, 2022. On March 14, 2022,

OCY filed a petition for dependency, seeking a finding of aggravated

circumstances against both Mother and Father.4

An adjudication and disposition hearing was held on March 21, 2022.

Following the hearing, the trial court found that OCY had established, by clear

and convincing evidence, that Child was without proper parental control, and

adjudicated Child dependent pursuant to 42 Pa.C.S. § 6302(1)(A). A

disposition hearing was held immediately following the adjudication, and

there, the trial court found OCY had established by clear and convincing

evidence that aggravated circumstances existed with regard to both Mother

and Father pursuant to 42 Pa.C.S. § 6341(c.1). By its March 25, 2022 order,

adoption was established as the placement goal for child and OCY was directed

3 Mother’s parental rights were terminated as to her two other children on October 18, 2018 and July 16, 2019, respectively. See Order of Adjudication and Disposition, March 25, 2022, at 1.

4 OCY sought aggravated circumstances against Father based upon his conviction of an equivalent crime in another jurisdiction. See 42 Pa.C.S. § 6302(3)(iv). The dependency petition alleges that, in addition to Father’s continued disregard for safe sleeping techniques despite repeated warnings, he has a significant criminal history in the state of Illinois and the Commonwealth of Pennsylvania, including sexual offenses with a minor child victim under the age of 9 in Illinois, and two prior convictions for simple assault and criminal conspiracy-robbery in Pennsylvania. Dependency Petition at 4.

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to offer no services to Mother and Father, and to proceed with the filing of a

petition to terminate parental rights. 3/25/22 Order. Father filed both a

notice of appeal and a concise statement of matters complained of on appeal

on April 20, 2022.

On appeal, counsel has filed an Anders Brief in which he presents the

following questions for our review:

1. Whether the Juvenile Court committed an abuse of discretion and/or error of law when it determined that [OCY] established, by clear and convincing evidence, that reasonable efforts to reunify were not necessary?

2. Whether the Juvenile Court committed an abuse of discretion and/or error of law when it determined that [OCY] established, by clear and convincing evidence, the grounds for a change in goal to adoption pursuant to 42 Pa.C.S. § 6351(f)?

Anders Brief at 3 (reordered for ease of discussion).

Before reaching the merits of this appeal, we must first address whether

counsel’s petition to withdraw and accompanying brief comply with the

procedure outlined in Anders and related case law. See In re J.D.H., 171

A.3d 903, 906 (Pa. Super. 2017) (holding that Anders procedure for

withdrawal of court-appointed counsel applies in a dependency and adoption

proceeding, even in the absence of an involuntary termination decree). In

order to withdraw under Anders, counsel must

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the Anders brief to the appellant; and 3) advise the appellant that he or she has the right to retain private counsel or raise

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additional arguments that the appellant deems worthy of the court’s attention.

Id. at 907 (quoting Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.

Super. 2013) (en banc); brackets omitted).

With respect to the third requirement, counsel must “attach to their

petition to withdraw a copy of the letter sent to their client advising him or

her of their rights.” Id. (quoting Commonwealth v. Millisock, 873 A.2d

748, 752 (Pa. Super. 2005)). Because a parent has a continuing right to

counsel in dependency proceedings, an attorney seeking to withdraw in an

appeal from an order establishing adoption as the placement goal is required

to inform the parent of his or her right to counsel in any subsequent dependency or involuntary termination proceedings. Counsel must also inform the parent that, if he or she cannot afford counsel, he or she may contact the trial court in order to obtain new counsel. This information must be conveyed to the parent at the same time that counsel informs the parent of his or her other rights pursuant to Anders[.]

Id. at 906-07.

Furthermore, the 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.

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Id. at 907 (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009)).

In his petition to withdraw, counsel indicated that he had thoroughly

reviewed the record and determined that there are no non-frivolous grounds

for this appeal. Counsel sent a letter to Father advising him of his right to

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

deemed worthy of this Court’s attention.5 Counsel’s letter also advised Father

of his right to appointed counsel in any subsequent dependency or termination

proceeding and that he should contact the court to obtain new counsel if he

could not afford it. See id. at 906-07. This letter was attached to counsel’s

petition for withdrawal, and it indicates that counsel provided Father with the

petition to withdraw and Anders brief; counsel’s certificates of service

likewise demonstrate that the relevant filings were served on Father.

Counsel’s amended brief contains a summary of the relevant procedural

and factual history of this case, states his reasons for concluding that Father’s

appeal is frivolous and articulates relevant facts of record, controlling case

law, and relevant statutes that have led to his conclusion that the appeal is

frivolous.6 ____________________________________________

5As of the date of this decision, Father has not filed a pro se brief with this Court, nor has privately retained counsel entered an appearance on Father’s behalf.

6Counsel filed an Amended Brief on December 3, 2022 in response to this Court’s Memorandum dated November 4, 2022 denying counsel’s petition to (Footnote Continued Next Page)

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We thus conclude that counsel has complied with the procedural

requirements for withdrawal, and we may therefore proceed to review the

merits of this appeal, and “conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by

counsel.” J.D.H., 171 A.3d at 908 (quoting Commonwealth v. Flowers,

113 A.3d 1246, 1250 (Pa. Super. 2015)).

In the Anders brief, counsel raises the issues of whether the trial court

abused its discretion in its determination that reasonable efforts to reunify

were not necessary and in establishing the goal of adoption.7 With respect to

reunification efforts, counsel identifies the primary questions as whether

Father’s sex offense, which occurred in 2008 when he was a juvenile, was too

remote to be considered, whether he demonstrated his capacity for

rehabilitation through his sex offender treatment, and whether he was given

sufficient opportunity to improve his parenting abilities. Anders Brief at 11-

12.

Where the court has found, as here, that aggravated circumstances

exist, it must then determine whether reasonable efforts to prevent the need

from removing the child from the home shall be made, and it “may end

withdraw and directing counsel to file either a compliant Anders brief and petition to withdraw or an advocate’s brief. See In Interest of L.S., No. 433 WDA 2022 (Pa. Super. filed November 4, 2022), unpublished memorandum, 2022 WL 16707816.

7 Father does not challenge the dependency adjudication of Child or the existence of aggravating circumstances.

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reasonable efforts at its discretion.” See In re L.V., 127 A.3d 831, 839 (Pa.

Super. 2015); In re A.H., 763 A.2d 873, 878 (Pa. Super. 2000).

The trial court noted the testimony of OCY supervisor Rhiannon

Bernardini, who performed the GPS investigation on March 7, 2022, when

Father was present at the home, and spoke to the service providers who had

been assisting the parents with parenting; Ms. Bernardini voiced OCY’s

concerns that Father and Mother were allowing the infant twins to sleep

together, despite instructions not to do so, and that they were allowing them

to sleep in a crib with boppy pillows and blankets. TCO at 4; N.T. at 14. The

trial court also noted the testimony of Lisa Kobusinski, a senior family

specialist at Project First Step, who was helping Mother with feeding after the

birth of the twins; she stated that Father was present for only one of her five

visits to the home, after having been told that he was required to be there,

and he otherwise remained in the bedroom with the dogs while she was

instructing Mother. TCO at 8; N.T. at 77, 80. The trial court also noted the

testimony of Tiffany Thomas, a nurse home visitor, who stated that she tried

to instruct and educate Father and Mother on safe sleeping and the dangers

of utilizing incorrect sleeping techniques to no avail. TCO at 9; N.T. at 96.

At the hearing, the trial court set forth its reasoning for declining to offer

services to Father, noting that the criminal allegations against Father were

severe, and involved a female child; the trial court further found significant

that Father was in the home, had knowledge that Mother had had children

removed from her in the past due to her inability to care for them, and could

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have stepped in to assist Mother, but chose instead to sit back and allow her

to take over. N.T. at 138.

We find that the trial court properly relied on the witnesses’ credible

testimony regarding Father’s unwillingness to receive instruction or to follow

their guidance with regard to safe sleeping techniques and acted within its

discretion in finding that no reunification services should be provided to

Father, who had committed a sexual offense against a minor child.

With respect to the goal change of adoption, counsel notes in the

Anders brief that Child’s guardian ad litem stated at the adjudication hearing

that she would not oppose the court deciding to offer services to Father for a

short period of time, so long as they were provided wholly independently of

Mother, and that such services could further the development of a bond

between Father and Child and potential reunification. N.T. at 137; Anders

Brief at 9-10.

We review decisions changing a placement goal for abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). To hold that the trial court

abused its discretion, we must determine its judgment was “manifestly

unreasonable,” that the court disregarded the law, or that its action was “a

result of partiality, prejudice, bias or ill will.” In re N.C., 909 A.2d 818, 822

(Pa. Super. 2006). We emphasize that, in determining whether a goal change

is appropriate, the focus is on the child’s best interests. Id. at 823 (noting

that “[s]afety, permanency, and well-being of the child must take preference

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over all other considerations, including the rights of the parents”) (emphasis

in original).

In its opinion, the trial court considered Father’s adjudication for

aggravated criminal sexual abuse of a child under the age of nine, while Father

was under the age of seventeen, and the fact that his juvenile court petition

specified he “knowingly placed his penis in the vagina” of the minor. TCO at

14; Exhibits 16, 17. The court determined that for those reasons, as well as

Father’s failure to participate in the services that he was offered, i.e., staying

in the bedroom with the dogs while service providers were there to teach safe

parenting, OCY was not required to make reasonable efforts for reunification

as it pertained to Father and the goal of adoption was established. TCO at

14-15. We find no abuse of discretion in the trial court’s determination to

establish adoption as Child’s permanency goal. We have explained in the

context of involuntary termination of parental rights proceedings that, “a

child’s life cannot be held in abeyance while a parent attempts to attain the

maturity necessary to assume parenting responsibilities. The court cannot

and will not subordinate indefinitely a child’s need for permanence and

stability to a parent’s claims of progress and hope for the future.” In re

Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

Accordingly, our independent review of the issues raised in the Anders

brief demonstrates that they are frivolous. Moreover, our review of the record

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does not reveal any non-frivolous issues overlooked by counsel.8 See

Flowers, 113 A.3d at 1250. Therefore, we grant counsel’s petition to

withdraw, and we affirm the 3/25/22 Order as to Father.

Petition to withdraw granted. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/10/2023

8 Specifically, we detect no abuse of discretion in the trial court’s determination in the 3/25/22 Order that Child is dependent. Furthermore, the trial court appropriately determined that aggravated circumstances exist based upon Father’s 2008 Illinois conviction for aggravated criminal sexual assault of a child under the age of nine, when Father was 16 years old. (42 Pa.C.S. § 6302(3)(ii),(iv); In re R.J.T., 9 A.3d at 1190.)

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