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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NON-PRECEDENTIAL DECISION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, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

In the instant case, our review of the Anders Brief and the Motion to Withdraw reveals that Father's counsel has complied with each of the requirements of Anders/Santiago. Additionally, the record reflects that counsel has (1) provided Father with a copy of both the Anders Brief and Motion to Withdraw, (2) sent a letter to Father advising him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of this Court's attention, and (3) attached a copy of this letter to the Motion to Withdraw, as required under Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005).

Father's issues on appeal, which his counsel states might arguably support the appeal, [5] are as follows:

1. Did the trial Court err in terminating the Appellant's parental rights because the evidence presented by the Appellee, Berks County Children and Youth Services, was insufficient to support the trial court's decision?
2. Did the trial court err by terminating the Appellant's parental rights because the decree entered by the trial court constituted abuse of discretion or error of law?

Anders Brief, at 3.

We review appeals from the involuntary termination of parental rights according to the following standard:

[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. 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.; [In re] R.I.S., [___ Pa. ___, ___, 36 A.3d 567, 572 (2011) (plurality opinion)]. 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., [___ Pa. ___], 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., 608 Pa. 9, 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, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., ___ Pa. ___, 47 A.3d 817, 826-27 (Pa. 2012).

We will focus on section 2511(a)(1) and (b), which provide, in relevant part, as follows:

§ 2511. Grounds for involuntary termination
(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:
(1) The parent[, ] by conduct continuing for a period of at least six months immediately preceding the filing of the petition[, ] either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(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)(1), (b).

This Court has stated:

To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006). In addition,

Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88, 91 (1998).

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to [s]ection 2511(b).

Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).

Regarding the definition of "parental duties, " this Court has stated as follows:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations omitted).

Moreover, in In re S.P., our Supreme Court stated as follows.

[A] parent's absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.
Notably, we did not decree that incarceration could never be a factor in a court's determination that grounds for termination had been met in a particular case. Instead, the emphasis on this passage was to impose on the incarcerated parent, pursuant to an abandonment analysis, a duty to utilize available resources to continue a relationship with his or her child. Indeed, in [In re: Adoption of McCray, 460 Pa. 210, 216-17, 331 A.2d 652, 655 (1975)), ] this Court agreed with the trial court and concluded that termination was appropriate where the father failed to perform parental duties for a six[-]month period of time.

In re Adoption of S.P., ___ Pa. at ___, 47 A.3d at 828 (citations omitted). The Supreme Court noted that McCray involved a termination of parental rights based on abandonment which is now codified at section 2511(a)(1). See id.

On appeal, Father contends that his incarceration, albeit at different prisons, continued throughout the Children's seventeen months of placement in foster care. Father asserts that he was not permitted visits with the Children while incarcerated, and that his absence made it especially difficult for him to maintain a relationship with the Children. Father argues the he attempted to send correspondence to the Children.

Here, the trial court reasonably found that, for at least the six months prior to the filing of the termination petition, Father had a settled intent to relinquish his parental claim to the Children or refused or failed to perform his parental duties. The trial court considered Father's incarceration, his explanations for his failure to exercise his parental duties, and his lack of post-abandonment contact with Children. The trial court properly rejected these matters as clearly insufficient to demonstrate that Father had performed his parental duties.

The trial court acknowledged Father's incarceration and noted that Father's cooperation with court-ordered services has been minimal due in large part to his incarceration. Father remained incarcerated until December 3, 2012, two weeks prior to the termination hearing. At the time of the hearing, Father was living in a halfway house and was not permitted to have the Children reside with him. Also, Father was unemployed and presented no concrete plan as to how long it would take him to establish appropriate housing or stable income. The trial court found that, although BCCYS's caseworkers instructed Father about programs available for him to complete during his incarceration, Father only completed one short-term violence prevention program while in prison, and had no meaningful contact with the Children. See Trial Court Opinion, 2/5/13, at 4-5.

The trial court also took under consideration the history of physical abuse in this case, and found Father's indicated status as a perpetrator of physical abuse extremely concerning. Evidence also revealed that Father was an indicated perpetrator of physical abuse against his Children. K.D.M. was whipped by Father with a belt, which caused her immense pain and left a mark on her lower back and bottom. Reports showed that R.J.M. was punched by Father and beaten with a belt and baseball bat. As a result of these acts, R.J.M. had multiple scars on his torso and back. Father was also indicated as a perpetrator of physical abuse against C.M.M., who was beaten with Father's hand and a belt, which resulted in bruising. See id., at 6.

Reports also revealed that Father was indicated as a perpetrator of physical abuse against P.C.H., one of Mother's older minor children, who sustained a 1½ inch laceration on the top of her head when she was hit with a 2x4 wooden board by Father. BCCYS also determined that Father threw a knife at P.C.H., causing a scar above her left elbow, and punched and kicked P.C.H., causing bruising. See id., at 5-6. Father was also indicated as a perpetrator of physical abuse against A.T.H., also one of Mother's older minor children. Evidence showed that Father beat A.T.H. with a belt and other objects. See id., 5-6.

As the trial court's credibility assessments and the weight which the trial court correctly assigned to the testimony are supported by the evidence, we will not disturb the trial court's decision. See In re Adoption of S.P.___ Pa. at ___, 47 A.3d at 826-27. We find that Father's alleged efforts to perform his parental duties were not sufficient to prove that he utilized all of the resources available to him to overcome the obstacles of his incarceration and maintain a place of importance in the Children's lives for a long period of time. See 23 Pa.C.S.A. § 2511(a)(1).

Next, in reviewing the evidence in support of termination under section 2511(b), we consider whether termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id., at 1287 (citation omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing that bond on the child. See id.

After reviewing the testimony and considering the exhibits, the trial court expressed "no doubt that the termination of Father's parental rights will serve the best interest of the Children." The trial court determined that Father "is simply unable to provide Children with a safe environment in which their developmental and physical needs will be met." The trial court reasoned that all of the minor children have expressed that they are afraid of Father. Trial Court Opinion, 2/5/13, at 6-7; N.T. 12/17/12, at 86-88.

Competent evidence in the record supports the trial court's determination that the Children lack any bond with Father that would be harmed by the termination since they have not seen Father in over two years. The Children do not ask about visiting with Father or having contact with him, and they are currently living in foster homes which meet their developmental, physical, and emotional needs. See Trial Court Opinion, 2/5/13, at 7-8. This Court has observed that no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond is attenuated. See In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).

This Court has instructed:

It is incumbent upon a parent when separated from his child to maintain communication and association with the child. This requires an affirmative demonstration of parental devotion, imposing upon the parent the duty to exert himself, to take and maintain a place of importance in the child's life.

In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004).

To the extent that Father contends that he should be afforded more time until he is released from incarceration, we will not toll the well-being and permanency of the Children indefinitely in the hope that Father will summon the ability to handle the responsibilities of parenting them at that time. See In re Adoption of C.L.G., 956 A.2d at 1007-1008. The trial court appropriately considered Father's inability to parent Child while he is in prison or in a half-way house. See In re Adoption of S.P., Pa. at, 47 A.3d at 826-27.

Accordingly, we affirm the Decrees of the trial court involuntarily terminating Father's parental rights to the Children pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and (b).

Decrees affirmed. Motion for Leave to Withdraw as Counsel granted.


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