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In re C.M.M.

Superior Court of Pennsylvania

June 26, 2013

IN RE: C.M.M. APPEAL OF: R.M., FATHER IN RE: R.J.M., a/k/a J.M. APPEAL OF: R.M., FATHER IN RE: K.D.M. APPEAL OF: R.M., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered December 21, 2012 In the Court of Common Pleas of Berks County Orphans' Court Division, at Nos. 82674, No. 82675, 82676

BEFORE: PANELLA, ALLEN, and COLVILLE [*] , JJ.

MEMORANDUM

PANELLA, J.

Appellant, R.M. ("Father"), appeals from the Decrees entered on December 21, 2012, in the Berks County Court of Common Pleas, Family Court Division, terminating his parental rights to his daughter, C.M.M. (born in May of 2001); his son, R.J.M. (born in July of 2002); and his daughter, K.D.M. (born in January of 2006), (collectively "the Children"). We affirm. Additionally, we grant the Motion for Leave to Withdraw as Counsel filed by Father's counsel.[1]

The relevant facts and procedural history of this case are as follows. Father and Mother have an extensive history with the Berks County Children and Youth Services ("BCCYS"), which received its first report concerning the family in June of 1994.[2]From the time that Father's oldest child, C.M.M., was born in May of 2001, BCCYS has received thirty-one reports concerning the family.[3]For almost two decades, BCCYS has investigated the family, provided in-home services, and worked with Father and Mother in order to keep the family intact in their home. In January and February 2011, BCCYS received a series of reports, which led BCCYS to petition for custody of the Children. See Trial Court Opinion, 2/5/13, at 4-5; N.T., 12/17/12, at 51-52.

On February 8, 2011, A.T.H., Mother's minor daughter, wrote a letter in which she indicated that the family was struggling and feared for their safety. On February 9, 2011, BCCYS filed an emergency petition due to the numerous concerns that had arisen. On February 11, 2011, BCCYS filed dependency petitions, and, on February 16, 2011, the trial court adjudicated the Children dependent.

After the Children were declared dependent, Father was ordered to cooperate with parenting education; establish and maintain appropriate housing and income; cooperate with casework sessions; cooperate with mental health evaluation and any recommended treatment; cooperate with an offender evaluation and any recommended treatment; and submit to random urinalysis. See Trial Court Opinion, 2/5/13, at 4; Exhibits 81-83 – Permanency Review Orders. The trial court found Father's cooperation with court-ordered services to have been minimal due to Father's incarceration.

The record reveals that Father was arrested in late 2010, at least two months prior to BCCYS's petition for emergency custody, and subsequently pled guilty to burglary. See Trial Court Opinion, 2/5/12, at 4-5; Exhibit 114 – Notes of the Caseworker, at 33. Father remained incarcerated until December 3, 2012, two weeks prior to the termination hearing. See Trial Court Opinion, 2/5/12, at 5; N.T., 12/17/12, at 84.

At the time of the termination hearing, the record reveals Father was residing in a half-way house, and was not permitted to have the Children reside with him. See Trial Court Opinion, 2/5/12, at 5; N.T., 12/17/12, at 203. Father was not able to present any concrete plan to the trial court as to how long it would take him to establish appropriate housing and a stable income. See Trial Court Opinion, 2/5/12, at 5; N.T., 12/17/12 at 203, 228. Father alleged that he was only permitted to participate in a violence prevention program while in Prison. See Trial Court Opinion, 2/5/13, at 5; N.T., 12/17/12, at 66, 105, 109-110. Father was absent from the Children's lives for over two years, not having seen the Children since prior to his arrest in 2012. See Trial Court Opinion, 2/5/13, at 5; Exhibit 114 – Notes of the Caseworker, at 39.

The trial court also took under consideration the history of physical abuse involved in the case and was concerned about Father's indicated status as perpetrator of physical abuse. Based on consistent and credible reports that it received, BCCYS determined that P.C.H. sustained a 1½ inch laceration on the top of her head, when she was hit by a 2x4 wooden board by Father. See Trial Court Opinion, 2/5/12, at 5; N.T., 68-69; Exhibit 117 – Child Protective Service Investigation Report. Father was also indicated as a perpetrator of physical abuse against P.C.H. regarding separate acts where BCCYS determined that Father threw a knife at P.C.H., causing a scar above her left elbow. Father also punched and kicked P.C.H., causing bruising. See Trial Court Opinion, 2/5/13, at 5-6; N.T., 12/17/12. At 102; Exhibit 127 – Protective Service Investigation Report.

Father was found to be an indicated perpetrator of physical abuse against K.D.M., when BCCYS determined that she was whipped by Father with a belt, which caused her immense pain and left a mark on her lower back and bottom. See Trial Court Opinion, 2/5/13, at 6; N.T., 12/17/12, at 70; Exhibit 119 – Child Protective Services Investigation Report. Father was also an indicated perpetrator of physical abuse against R.J.M. After reviewing reports, BCCYS determined that R.J.M. was punched and beaten by Father with a belt and a baseball bat. As a result, R.J.M. had multiple scars on his torso and back. See Trial Court Opinion, 2/5/13, at 6; N.T., 12/17/12, at 101; Exhibit 124 – Child Protective Services Investigation Report. In addition, Father was indicated as a perpetrator of physical abuse against C.M.M. BCCYS determined the Father beat C.M.M. with his hand and a belt, which resulted in bruising. See Trial Court Opinion, 2/5/13; N.T., 12/17/12, at 102; Exihibit 124 – Child Protective Service Investigation Report. Moreover, Father was also indicated as a perpetrator of physical abuse against A.T.H., Mother's minor child. Based on consistent and credible reports, BCCYS determined that Father beat A.T.H. with a belt and other objects, which resulted in bruising. See Trial Court Opinion, 2/5/13, at 6; N.T., 12/17/12, at 102; Exhibit 126 – Child Protective Service Investigation Report.

Father's Children, C.M.M., R.J.M., and K.D.M., are currently living in foster homes where they are adjusting well. See Trial Court Opinion, 2/5/13, at 7; N.T., 12/17/12, at 63. P.C.H. and A.T.H., Mother's minor children, have been placed in independent living programs, where they are progressing in school and therapy. See Trial Court Opinion, 2/5/13, at 7-8; N.T. 12/17/12, at 62-63. All of the Children are involved in mental health treatment to address the abuses they endured while living with Mother and Father. See Trial Court Opinion, 2/5/13 at 8; N.T., 12/17/12, at 103-104.

On July 25, 2012, BCCYS filed petitions to terminate Father's parental rights. Following a hearing a December 17, 2012, the trial court granted BCCYS's petitions, and involuntarily terminated Father's parental rights on December 21, 2012.

In response to the Decrees terminating his parental rights, Father filed timely Notices of Appeal on January 7, 2013, along with a Concise Statements of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 1925(b).[4] Subsequently, Father's counsel filed with this Court a Motion to Withdraw as Counsel pursuant to Anders v. California, 386 U.S. 738 (1967), accompanied by an Anders Brief on behalf of Father.

Initially, we must address Father's counsel's Motion to Withdraw before considering the merits of the issue raised on appeal in the Anders Brief. See In re V.E., 611 A.2d 1267, 1273 (Pa. Super. 1992). Where counsel appointed to represent an indigent parent on a first appeal from a decree terminating parental rights seeks to withdraw pursuant to Anders, counsel must: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded that the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. See In re V.E., 611 A.2d at 1273, 1275. Thereafter, this Court must conduct an independent examination of the record and determine whether the appeal is, in fact, wholly frivolous. See id.

Additionally, the Pennsylvania Supreme Court has explained that a proper 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, ...

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