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[U] In re E.R.-H.W.

Superior Court of Pennsylvania

June 21, 2013



Appeal from the Decree of September 19, 2012, in the Court of Common Pleas of Berks County, Orphans' Court at Nos. 82360, 82361, 82362




B.A.K. ("Mother") appeals from the decrees dated September 19, 2012, in the Court of Common Pleas of Berks County, involuntarily terminating her parental rights to her two sons, M.L.W., born in January of 2007, and R.L.W., Jr., born in March of 2010, and her daughter, E.R.-H.W., born in March of 2011 (collectively, "the Children"). We affirm the decrees and grant the petition for leave to withdraw as counsel filed by Mother's counsel.

In April of 2007, this family came to the attention of the Berks County Children and Youth Services ("CYS") due to a referral from an agency in Broome County, New York, indicating, inter alia, that Mother and R.W. ("Father") relocated to Berks County, Pennsylvania, and were not able to care for M.L.W. without assistance from a competent adult. CYS made a referral to the Youth Advocate Program, Inc. for in-home parenting instruction, and CYS developed a safety plan that Mother and Father would reside with M.L.W. at the home of M.L.W.'s paternal grandparents, who would provide appropriate supervision at all times. On April 18, 2007, the trial court placed M.L.W. in the emergency protective custody of CYS because Mother and Father violated the safety plan. A dependency petition was filed. However, the trial court returned M.L.W. to Mother and Father in December of 2007 and dismissed the petition.

During the early life of the two older children, CYS continued to receive reports, aptly described by the trial court as follows, in relevant part:

. . . CYS continued to receive reports regarding . . . issues of Mother screaming and swearing at one or more of the children and using inappropriate physical discipline, including strikes to the head with her hand or flip-flops. There were also reports of Mother and Father associating with individuals who were deemed to be unsafe around children. . . . There were also reports of Father being violent and refusing to discipline M.L.W. for fear that 'he would kill him.' Mother and Father were reported to pawn [M.L.W.] off on neighbors as well as to have sex in front of [M.L.W.].
Over the years there was also an ongoing concern about the physical health of the children. A number of referrals were made about Mother and Father's failure to appropriately feed the children and M.L.W., in particular, was still drinking from a bottle at the age of two. M.L.W. was also consistently observed to have a low weight and nutritional concerns. There were ongoing reports of untreated or, at best, sporadically treated MRSA, impetigo, scabies, fungal infections, and lice and bedbug problems. . . .
In December of 2010, the family was opened for continued in-home services due to the boys[] having medical conditions that were not resolved in eighteen months. Signature Family Services was to complete twice weekly home visits to monitor medication management and address parenting skills and Berks Visiting Nurses were visiting the home three times per week to follow up with the MRSA infection. During this time, it also became apparent that Mother and Father were not seeing to proper monitoring of M.L.W.'s bicuspid aortic valve concerns . . . .
During the home visits, Mother was observed to be loud, aggressive and controlling. . . . In-home caseworkers also needed to direct the parents to change the children's dirty pajamas and to provide food by means other than a bottle. Mother was found to be preparing formula incorrectly by skimping on the amount of powder to add to the water. . . .

Trial Court Opinion, 11/20/12, at 4-5.

On February 8, 2011, based on the foregoing concerns, in addition to safety concerns, the trial court placed M.L.W. and R.L.W., Jr., in the emergency protective custody of CYS. CYS filed dependency petitions for M.L.W. and R.L.W., Jr. on February 9, 2011. In March of 2011, CYS filed a dependency petition for E.R.-H.W.; she was two weeks old.

The court adjudicated the Children dependent on April 20, 2011, and established the placement goal of adoption and a concurrent goal of subsidized permanent legal guardianship. CYS developed the following family service plan ("FSP") goals for Mother and Father, in relevant part: obtain a mental health evaluation and follow all recommendations; establish and maintain stable and appropriate housing and income; participate with casework services through CYS and any recommended treatment; participate in supervised visits with the Children; and participate in parenting education.

On December 15, 2011, CYS filed petitions for the involuntary termination of Mother's and Father's parental rights to the Children. The termination hearing was held on September 19, 2012.

By decrees dated September 19, 2012, the trial court involuntarily terminated Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). Mother's timely appeal followed.[1] On December 20, 2012, Mother's court-appointed counsel filed a petition for leave to withdraw as counsel and an Anders[2] brief.

We review Mother's appeal according to the following standard:

Appellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our 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 (Pa. 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.; R.I.S., 36 A.3d [567, 572 (Pa. 2011)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647[, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 539 Pa. 161[, 165, ] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

With respect to Mother's appeal, before reaching the merits of the issues raised in the Anders brief, we must address counsel's request to withdraw. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating, "[w]hen faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.") (citation omitted).

In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. We stated that counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating parental rights may, after a conscientious and thorough review of the record, petition this Court for leave to withdraw representation and must submit an Anders brief. Id. at 1275. To withdraw pursuant to Anders, counsel must perform each of the following tasks.

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. Id.

Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), stated that an Anders brief must comply with the following four factors.

(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. at 361. We conclude Mother's counsel has satisfied the requirements of Anders and Santiago.

Counsel states Mother's issues on appeal as follows:
A. Did the trial court err in terminating [Mother's] parental rights because the evidence presented by [the Agency] was insufficient to support the trial court's decision?
B. Did the trial court err in terminating [Mother's] parental rights because the decree entered by the trial court constituted abuse of discretion or error of law?

Anders Brief at 3.

Termination of parental rights is controlled by Section 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. § 2511) (citations omitted). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Instantly, we review the decrees pursuant to Section 2511(a)(2) and (b), which provide as follows:[3]
(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:
(2) The 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.
(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)(2), (b).

To satisfy the requirements of Section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. In the Interest of A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

With respect to Section 2511(b), the requisite analysis is as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 2005 PA.Super. 340, 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial 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. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 2008 PA.Super. 62, 946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

Mother argues the evidence was insufficient to support termination of her parental rights. Mother argues she was the victim of discrimination because the subsidies provided to the Children's foster parents "allowed them to provide more in the way of material things for the children, thereby assuring the conclusion that foster parents would be favored by [CYS] as permanent resources for the children rather than continuing to work toward reunification of the family." Anders Brief at 20. Mother argues that further evidence of this discrimination was shown by CYS's establishment of the placement goal of adoption and a concurrent goal of subsidized permanent legal guardianship, rather than the goal of reunification. Mother asserts she was unfairly punished for her limited mental capacity. With respect to her supervised visits, Mother argues the limited length of the visits and the small size of the visitation room at CYS did not promote appropriate interaction with the Children or allow her to fully exhibit the love and affection she has for the Children. Lastly, Mother asserts that Mother's and Father's inability to deal with M.L.W.'s behaviors was due to M.L.W.'s removal from his natural family. We agree with counsel that Mother's arguments have no merit.

The trial court concluded that, "[w]hile Mother and Father may be willing to serve in the role of parents for these children, they are simply unable." Trial Court Opinion, 11/20/12, at 3. This conclusion is reasonable with regard to Mother based on the following testimonial evidence.

Ms. George, the CYS caseworker, testified on direct examination:
[Counsel for CYS:] [W]ould you describe for the Court whether the parents have made any improvements or the observations that you've made of parents during the time that you've been working with them?
[Ms. George:] [Mother] and [Father] basically have remained the same. They're concerned about their children. They're anxious to see their children. They would like to have their children returned to them. Is it my observation that they're capable of caring for them? No.

N.T., 09/19/12, at 69.

Ms. Ogle, the caseworker from Berks County Partners in Parenting, testified that she has worked with Mother and Father supervising their visits with the Children and providing "hands-on" parenting instruction during their visits.[4] Id. at 26. Ms. Ogle testified that she "has been with [Mother] and [Father] for over a year-and-a-half and nothing has really changed since we started." Id. at 47. Ms. Ogle testified:

[Mother's counsel:] Has [Mother's] progress over the course of the period of time that you've been offering parenting instruction been steady?
[Ms. Ogle:] No. I still am prompting on some things I've been prompting for over a year-and-a-half. [W]ith [Mother's] disciplining [of the Children], that's gotten better, but it's not consistent. Id. at 51. Ms. Ogle clarified the parental skills that Mother and Father continue to lack, as follows:
[Guardian Ad Litem ("GAL"):] [I]n reading through your reports, it seems that a lot of your concerns were about very basic child care tasks, changing a diaper, wiping a runny nose, recognizing when a child is hungry and feeding them. Would that be correct?
[Ms. Ogle:] Yes.
[GAL:] And is it those really basic child care tasks that you are still needing to do prompting on a year-and-a-half after you started?
[Ms. Ogle:] Correct.
. . .
[GAL:] And do you have concerns about the parents' judgment, their ability to apply the principles that you're teaching them to new situations that they haven't run into before?
[Ms. Ogle:] Correct. And that's what I meant earlier about, say, when emergencies come up. They don't know what to do, even minor things.
. . .
[GAL:] . . . [I]s there anything that you feel you or anybody else could do that would give them the ability to apply parenting principles to new situations that they haven't run into before?
[Ms. Ogle:] No, I do not.

Id. at 54-55. Further, Ms. Ogle testified that she has concerns regarding Mother's and Father's ability to appropriately teach and stimulate the Children at their respective age levels. Ms. Ogle testified that Mother and Father are "good a[t] being playmates with their children, " but they "get very overwhelmed" with respect to handling the Children. Id. at 34. As such, Ms. Ogle testified she does not believe the parents should have unsupervised visits with the Children.

In addition, Ms. Ogle testified that Mother and Father received parenting lessons from Lois Good, also a caseworker with Partners in Parenting, which were held separately from their visits with the Children. CYS introduced into evidence reports that were prepared by Ms. Good, which demonstrated that Mother and Father: (1) did not regularly attend the scheduled parenting classes; (2) could not stay focused during the parenting lessons; and (3) had difficulty retaining information that was taught. Ms. Good closed their case for non-compliance in June of 2012.

Dr. Rotenberg, who performed a psychiatric evaluation of Mother and Father, stated in his report that "[n]either of these parents [has] the capacity to adequately engage in parenting responsibilities even at a minimally acceptable level." Dr. Rotenberg's Report (Exhibit 51), at 17. Dr. Rotenberg testified that Mother has an I.Q. of 58, which is "mentally retarded." N.T., 09/19/12, at 19-20. Dr. Rotenberg attributed Mother's incapacity to parent to her diminished intellect in combination with, inter alia, "her lack of appreciation that the children were not her peers, " but, rather, were "helpless and needed her protection." Id. at 20. Dr. Rotenberg testified that the fact that the parents have essentially shown no significant improvement despite the provision of concentrated services to them for a year and a half supports his conclusion that nothing could help them become capable of parenting the Children.

Based on the foregoing record evidence, we conclude the court's decision that Mother's conduct warranted termination under Section 2511(a)(2) is not the result of an error of law or abuse of discretion. Mother's assertion that she was a victim of discrimination because CYS did not work to reunify the family is not a proper challenge to the termination order which turns on whether Mother's conduct warrants termination pursuant to the statute. Moreover, despite Mother's claim that she was unfairly punished for her limited mental capacity, the record indicates Mother was provided with intensive services over the years to assist her in meeting her FSP goals and to assist her in parenting the Children in light of her limited mental capacity. Nonetheless, these interventions did not alleviate Mother's incapacity to parent. Thus, the record demonstrates that Mother's repeated incapacity has caused the Children to be without essential parental care necessary for their physical and mental well-being, and that such incapacity cannot or will not be remedied.

Likewise, the evidence supports the trial court's decision to terminate Mother's parental rights pursuant to Section 2511(b). Ms. Ogle testified that, at the time of placement, the two older children were very developmentally behind. Ms. Ogle testified that R.L.W., Jr., who was eleven months old at the time of placement, "just sat in his mom's lap. He did not try to move around." N.T., 09/19/12, at 29. She testified with respect to the Children's developmental progress since being in foster care, as follows:

[R.L.W., Jr., ] is talking very well. [R.L.W., Jr., ] is moving. He's playing by himself.
[M.L.W.], he is a five-year-old with a lot of energy. But he's . . . speaking much better. He loves life. . . . [H]e just has a smile about him that he didn't have before.
And [E.R.-H.W.] is now a year-and-a-half, and she's a very busy little girl, walking and she is saying words and into everything as well.

Id. at 30.

In addition, Ms. George testified that M.L.W., at the time of placement, "was very aggressive. He was almost feral-like in his response to everyone. He could not easily be redirected. He was out of control. Presently, he still has some issues. He still is receiving speech therapy . . ., but his behaviors have improved remarkably. . . . He's actually a happy child at this point." Id. at 66. With respect to R.L.W., Jr., Ms. George testified that, at the time of placement, he "was very flat. He had no affect whatsoever. . . . He responded very quickly to foster care and his interactions with his foster parents. He became more animated. . . ." Id. at 67. Ms. George testified that E.R.-H.W. has been in foster care her entire life and she has displayed no developmental delays.

With respect to the nature and status of the parent-child bond, Ms. George testified that the Children have never inquired about their parents between visits nor asked to see their parents more regularly. Id. at 81-82. Ms. George testified that the Children look to their foster parents, not to Mother and Father, to have their needs met. She testified that the Children are "very bonded" to their foster parents. Id. at 68. She further testified that the best interest of the Children would be served by terminating Mother's rights. Ms. Ogle testified that M.L.W., the oldest child, "is the one that is very excited to see his parents" at visits. Id. at 49. However, Ms. Ogle testified that R.L.W., Jr. and E.R.-H.W. are more excited to see their foster parents than their parents and M.L.W. is "pretty much equal." Id. at 57. Further, CYS admitted into evidence the report of Dr. Mildred Gordon with respect to the bonding evaluation she conducted of Mother, Father, M.L.W. and R.L.W., Jr. In her report, Dr. Gordon concluded that a healthy bond does not exist between Mother and Father and the two older Children, that a healthy bond does not seem to be an option with the parents, that severing the bond would not be detrimental to the M.L.W. and R.L.W., Jr., and, instead, the constant lack of stability was most detrimental to them.

Although the testimony reveals that M.L.W. may have affection for Mother, this evidence is not sufficient to demonstrate a beneficial bond for purposes of Section 2511(b). This Court has explained:

. . . [C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent. . . . Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in of itself, or when considered in connection with a child's feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and quotation marks omitted). The evidence supports the conclusion that M.L.W. and R.L.W., Jr. do not have a healthy bond with Mother and, thus, terminating the connection between them will not "destroy something in existence that is necessary and beneficial." See In re C.P., 901 A.2d 516, 523 (Pa. Super. 2006). Moreover, because there is no evidence of a parent-child bond between Mother and E.R.-H.W., it is reasonable to infer that no bond exists. Thus, we discern no error or abuse of discretion in the trial court's conclusion that termination of Mother's parental rights pursuant to Section 2511(b) would best serve the developmental, physical, and emotional needs and welfare of the Children. Moreover, to the extent Mother argues she was not able to develop a bond with the Children due to the length of the visits and because they occurred in the CYS office, we find no merit to this claim. The record reveals that CYS provided Mother with intensive parenting instruction in the home starting in 2007, and, at the time of the hearing, CYS had been providing parenting instruction during supervised visits for a year and a half in addition to parenting instruction outside of the visits in order to support Mother's interactions with the Children. However, despite interventions in the home, the Children were removed from Mother's care, Mother's attendance at visits was inconsistent until the months before the termination hearing, she was discharged from parenting lessons due to non-compliance, and she not able to demonstrate meaningful progress in her ability to interact with or handle the Children during the visits. Thus, we are not persuaded that the length of the visits or the fact that they occurred at the CYS office was the reason for the state of the bond between Mother and the Children.

Based on the foregoing, we conclude the trial court did not abuse its discretion when it terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b). Accordingly, we affirm the decrees, and grant the petition of Mother's counsel to withdraw.

Decrees affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

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