In the Interest of: T.M.B., a Minor

• Court: Superior Court of Pennsylvania
• Decided: April 13, 2017
• Docket: In the Interest of: T.M.B., a Minor No. 2854 EDA 2016
• Status: Unpublished

Opinion

J-S17032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.M.B., a Minor : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: A.B., Mother : No. 2854 EDA 2016

Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000649-2016; CP-51-DP-0001530-2015

IN THE INTEREST OF: M.A.H., a Minor : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: A.B., Mother : No. 2855 EDA 2016

Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000082-2016; CP-51-DP-0001190-2014

IN THE INTEREST OF: M.S.S.H., a : IN THE SUPERIOR COURT OF Minor : PENNSYLVANIA : : : : : APPEAL OF: A.B., Mother : No. 2856 EDA 2016

Appeal from the Order entered August 4, 2016 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000084-2016; CP-51-DP-0001191-2014

BEFORE: OLSON, STABILE and MUSMANNO, JJ. J-S17032-17

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017

A.B. (“Mother”) appeals from the Orders terminating her parental

rights as to her children, T.M.B. (born in May 2015), M.A.H. (born in June

2006), and M.S.S.H. (born in March 2008) (collectively, “Children”),

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

each child’s permanency goal to adoption. Counsel for Mother has filed a

Petition to Withdraw from representation, and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).1 After careful consideration, we grant counsel’s

Petition to Withdraw, and affirm the Orders of the trial court.

In its November 14, 2016 Opinion, the trial court set forth the history

underlying the instant appeal, as well as its Findings of Fact. See Trial Court

Opinion, 11/14/16, at 1, 3-8 (unnumbered). We adopt the trial court’s

recitation for the purpose of this appeal. See id.

On August 4, 2016, the trial court entered Orders terminating Mother’s

parental rights as to Children, and changing each child’s permanency goal to

adoption. Thereafter, Mother filed a timely Notices of Appeal and Concise

Statements of matters complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i).2

1 Anders principles apply to appeals involving termination of parental rights. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). 2 This Court consolidated the cases for disposition.

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Subsequently, Mother’s counsel filed with this Court a Petition to

Withdraw from his representation of Mother, and an Anders brief.

When presented with an Anders brief, this Court may not review the

merits of the underlying issues until we address counsel’s request to

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). To be permitted to withdraw, 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 brief to the client; and (3) advise the

client that he or she has the right to retain private counsel or raise additional

arguments that the client deems worthy of the court’s attention. In re

S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004).

Here, counsel filed a Petition to Withdraw, stating that he “has made a

thorough and conscientious examination of the record.” Petition to

Withdraw, ¶ 4. Counsel notified Mother of the withdrawal request, supplied

her with copies of the Petition to Withdraw and the Anders brief, and sent

Mother a letter explaining her right to proceed pro se or with new, privately-

retained counsel to raise any additional points or arguments that Mother

believes have merit. See id. at ¶ 3; Letter, 1/3/17. Consequently, we

conclude that Mother’s counsel has met the procedural requirements of

Anders.

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We must next determine whether counsel’s Anders brief meets the

requirements established by the Pennsylvania Supreme Court in Santiago.

In Santiago, our Supreme Court stated that 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.

Santiago, 978 A.2d at 361. Further, “[a]fter establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.

Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa. Super. 1997)).

In the Anders brief, counsel provides a summary of the facts and

procedural history of the case, refers to evidence of record that might

arguably support the issues raised on appeal, provides citations to relevant

case law, states his conclusion that the appeal is wholly frivolous, and

provides his reasons for concluding the appeal is frivolous.

Accordingly, counsel has complied with the requirements of Anders and

Santiago.

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Mother has not filed a pro se brief or a counseled brief with new,

privately-retained counsel. We, therefore, review the following issues raised

in the Anders brief:

Whether there is anything in the record that might arguably support the appeal that obviates a conclusion that the appeal is frivolous[?]

…

[1.] Whether it was proven by clear and convincing evidence that Mother’s parental rights should be terminated under Sections 2511(a) & (b)[?]

[2.] Whether[,] under the Juvenile Act, 42 Pa.C.S.A. [§] 6351, and 55 Pa. Code [§] 3130.74, in accordance with the provisions of the federal Adoption and Safe Families Act, 42 U.S.C.[A.] [§] 671 et seq.[,] reasonable efforts were made to reunite [] Mother with [Children] and whether the goal changes to adoption [were] the disposition best suited to the safety, protection and physical, mental and moral welfare of [] Children[?]

Anders Brief at 6 (capitalization omitted, issues renumbered).

Regarding the termination of her parental rights, counsel states

Mother’s potential argument that the Department of Human Services

(“DHS”) and the Wordsworth Community Umbrella Agency (“CUA”), which

had been assigned to provide services to the family, failed to make

reasonable efforts to reunify Mother with Children.3 Anders Brief at 18.

Our Supreme Court has set forth the following standards in reviewing

the termination of parental rights:

3 In the Anders brief, counsel points out that Mother failed to appear for the termination hearing/goal change hearing. Anders Brief at 12. As a result, counsel stipulated to the averments of the termination Petitions. Id.

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[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. … [O]ur standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (some internal

citations omitted).

The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, as we have explained, “[t]he 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.’” Id. (quoting

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

In its Opinion, the trial court set forth the relevant law and its reasons

for terminating Mother’s parental rights to Children pursuant to subsections

(a)(2) and (b). See Trial Court Opinion, 11/14/16, at 9-11 (unnumbered).

The trial court’s findings are supported in the record, its legal conclusions

are sound, and we discern no abuse of discretion by the trial court. See id.

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We therefore affirm on the basis of the trial court’s Opinion with regard to

the termination of Mother’s parental rights to Children pursuant to

subsections (a)(2) and (b). See id.; see also In re D.C.D., 105 A.3d 662,

675 (Pa. 2014) (stating that, “while reasonable efforts should be considered

and indeed, in the appropriate case, a trial court could insist upon their

provision, we hold that nothing in the language or the purpose of Section

6351(f)(9) [of the Juvenile Act] forbids the granting of a petition to

terminate parental rights, under Section 2511, as a consequence of the

agency’s failure to provide reasonable efforts to a parent.”).

In the Anders brief, Mother next claims that the change of Children’s

permanency goal to adoption is not in Children’s best interests. Anders

Brief at 20.

“When we review a trial court’s order to change the placement goal for

a dependent child to adoption, our standard is abuse of discretion.” In re

N.C., 909 A.2d 818, 822 (Pa. Super. 2006). “[T]he best interests of the

child and not the interests of the parent must guide the trial court, and the

burden is on the child welfare agency involved to prove that a change in goal

would be in the child’s best interest.” In re R.I.S., 36 A.3d at 573 (citations

omitted). The safety, permanency, and well-being of the child must take

precedence over all other considerations. In the Matter of S.B., 943 A.2d

973, 978 (Pa. Super. 2008).

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Having already determined that it is in Children’s best interests to

terminate Mother’s parental rights, we also agree that it is in Children’s best

interests to change their permanency goals to adoption. Accordingly, we

affirm the termination of Mother’s parental rights as to Children, and the

change of Children’s permanency goals to adoption.

Orders affirmed.

Judge Stabile joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2017

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