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

Superior Court of Pennsylvania

June 21, 2013

IN RE: E.R.-H.W., MINOR APPEAL OF: B.A.K., MOTHER IN RE: M.L.W., MINOR APPEAL OF: B.A.K., MOTHER IN RE: R.L.W., JR., MINOR APPEAL OF: B.A.K., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree of September 19, 2012, in the Court of Common Pleas of Berks County, Orphans' Court at No. 82360, 82361, 82362

BEFORE: FORD ELLIOTT, P.J.E., WECHT and COLVILLE[*], JJ.

MEMORANDUM

COLVILLE, J.

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 ...

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