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In re B.R.B.

Superior Court of Pennsylvania

August 13, 2013



Appeal from the Decree entered December 6, 2012, in the Court of Common Pleas of Berks County, Orphans' Court, at No(s): 82780




W.P.B. ("Mother") appeals from the decrees entered in the Berks County Court of Common Pleas, terminating her parental rights to her daughters, B.R.B., born in June of 2000, and M.W.B., born in November of 2007 ("Children"), pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8) and (b).[1] Mother's counsel, John J. Grenko, Esq., has filed a petition to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967). [2] We grant counsel's petition to withdraw and affirm the termination decrees.

The trial court provided the following factual history of this case. CYS received a number of reports pertaining to this family[, ]" specifically "concerns regarding Mother's mental health, her abuse of drugs, and her violence, especially toward Father." Trial Ct. Op., 1/14/13, at 3. "During the pre-placement services period of March 10, 2011 to August 10, 2011, " CYS continued to receive reports that "Mother was abusing drugs." Id. She "did not complete most of her goals, " take her medication, attend counseling,

communicate positively around the children [nor] accept the damage domestic violence had done to the children. Much of this domestic violence occurred by her hand and, in fact, a number of protection from abuse petitions were filed against her by Father. . . . Mother also suffered penalties for indirect criminal contempt for violating the protection from abuse orders[.]

Id. at 3-4.

On August 12, 2011, Berks County Children & Youth Services ("CYS") filed juvenile dependency petitions "which led to the children's placement." Trial Ct. Op., 1/14/13, at 4. We note that at that time, B.R.B. was eleven years old and M.W.B. was three.

The August 17, 2011 dependency Order required the parents to comply with a number of services, specifically Mother was ordered to participate in a mental health evaluation and abide by any recommendations, domestic violence evaluation and comply with recommendations, drug and alcohol evaluation and comply with recommendations, random urinalysis, casework services, and dual diagnosis treatment. Mother's visitation with the children was limited to that which was therapeutically recommended. At the first permanency review hearing on January 24, 2012 it was determined that Mother may continue to provide correspondence to the children; however, the correspondence was subject to a number of conditions that limited the content of the correspondence. It was also determined that the correspondence was not to be provided to B.R.B unless approved by her therapist.
Following the adjudication of the children as dependent, through the date of the hearing, [December 6, 2012, ] Mother resided in at least twelve different residences. She was offered monthly casework with CYS and attended eight of ten scheduled sessions. During these sessions, she would forget or deny things that she told the caseworker. She was also authorized to do weekly casework with Signature Family Services after her release from Berks County Prison. The caseworker was able to meet with Mother on three occasions in April 2012. Mother canceled one appointment in May 2012. During the second review period, Mother made no contact with the caseworker and the caseworker's attempts at unannounced visits were unsuccessful.
Mother participated in a drug and alcohol evaluation at TASC[3] on August 8, 2011. Although it was recommended that she would benefit from switching her mental health counseling to dual diagnosis counseling, it does not appear that Mother successfully engaged such services. Between March 17, 2011 and August 22, 2012, Mother was scheduled for twenty-seven urine screens with CYS. Three of those screens were positive for cocaine and she failed to attend seventeen screens.
In July 2011, Mother was diagnosed by a Service Access and Management (SAM) psychiatrist as being bipolar with polysubstance dependency. It seems that although she participated in medication review with SAM, she had problems controlling her medication supply. In June 2012, she was discharged from her Women's Dual Group at Berks Counseling Center for failure to attend. Mother also participated in a separate psychiatric evaluation. In May 2012, the psychiatrist concluded that Mother was not in contact with reality. He found that she has been barely out of prison, and most of her sobriety resulted from her incarceration. Because of the inconsistencies in her life and her lack of credibility, the psychiatrist was not able to make a clear diagnosis, believing her to have "something of a mood disorder" and, even then, he wondered how much of this was substance induced or related.
Mother participated in a domestic violence evaluation. It was concluded that there was a high level of violence occurring in the home around the children. She clearly had victimization issues, poor risk management skills, and difficulty recognizing high-risk situations. The evaluator found her to be unable to provide a safe environment for the children and recommended that she participate in domestic violence treatment, of which there appears to be no record.
Mother was scheduled for a bonding evaluation in September 2012. Mother did not attend the evaluation. As a result of her failure to attend, the evaluator was extremely restricted in the amount of information available to him, but with the limited information he did have[, ] he found the bond between Mother and B.R.B. to be "surprisingly weak for a child who has lived 11 or 12 years with her mother. It is likely that, due to her mother's addiction, she was not very 'present.'" The evaluator also indicated that he had no good information on a possible bond between Mother and M.W.B.
Mother did not participate in any visitation with the children because no visitation was recommended by the therapist. Mother did provide correspondence to the children on numerous occasions; however, only two items were deemed appropriate by the therapist. All of the other correspondence was deemed inappropriate due to Mother's blaming B.R.B. for the situation and making unrealistic promises and requests. Mother was also ordered to attend the Children in the Middle Program but did not.

Id. at 4-6.

On September 17, 2012, CYS filed petitions for the involuntary termination of Mother's parental rights to Children. The petitions alleged unresolved mental health concerns, unresolved domestic violence issues, unresolved drug and alcohol issues, inability to appropriately parent, unstable housing, and unstable income. CYS filed petitions to terminate Father's parental rights as well.

On December 6, 2012, the trial court held a hearing on both termination petitions. Mother did not attend. Her counsel attended and participated in the examination and cross-examination of witnesses, and presented a full case to the trial court. We note that much of the witnesses' testimony focused on Father, who had supervised visitation with Children. That same day, the court entered the underlying order terminating Mother's parental rights to Children, pursuant to 23 Pa.C.S.A. § 2511. On January 4, 2013, Mother simultaneously filed timely notices of appeal and Pa.R.A.P. 1925(a)(2)(i) concise statements of errors complained of on appeal.

We first consider Mother's counsel's Anders petition to withdraw from representation. Anders principles apply to appeals involving termination of parental rights. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Pursuant to Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

the Anders brief that accompanies court-appointed counsel's petition to withdraw . . . 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. Furthermore, counsel must "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 at 1237. If this Court "is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination of the record to determine whether the appeal is wholly frivolous." Id.

Instantly, Attorney Grenko's petition to withdraw from representation states that he thoroughly reviewed the record, believes this appeal is frivolous, and advised Mother of her appellate rights. Counsel's Application/Pet. for Leave to Withdraw Appearance, 3/13/13, at 2. Counsel attaches a copy of a letter he sent to her, stating he enclosed a copy of his Anders brief for her review, stating he has determined her appeal lacks merit, and advising of her rights to raise questions about court's jurisdiction, question the legality of the court's decision, and retain new counsel, proceed pro se, or raise any additional points.

Counsel's Anders brief provides a detailed recitation of the facts of record, cites evidence that arguably support the appeal, and provides reasons for his conclusion that the appeal is wholly frivolous. After review of the foregoing, we are satisfied that Counsel has complied with the requirements of Anders and Santiago. See Santiago, 978 A.2d at 361; In re S.M.B., 856 A.2d at 1237. Accordingly, we conduct an independent examination of the record to determine whether the appeal is wholly frivolous. See In re S.M.B., 856 A.2d at 1237.

Mother has not filed a pro se or counseled brief in response. We review this appeal based on the issues raised in the Anders brief:

A. Did the trial court err in terminating [Mother's] parental rights because the evidence presented by [CYS] 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.

We note the relevant standard of review:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re S.M.B., 856 A.2d at 1238 (citations omitted).

[U]nlike 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).

"[T]he burden of proof rest[s] on the agency to prove the existence of grounds for termination of parental rights by clear and convincing evidence." See id. at 821-22. In the instant matter, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We consider the provisions of subsections (a)(2) and (b):

(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.

23 Pa.C.S. § 2511(a)(2), (b). "[W]e need only agree with [a trial court's] decision as to any one subsection [of 2511(a), along with 2511(b), ] in order to affirm the termination of parental rights." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

Counsel's Anders brief raises the issues of whether the evidence of record support the trial court's determination, and whether the trial court abused its discretion or erred as a matter of law in entering its decree. The Anders brief states, "Mother would argue that there is evidence in the record which the court could have viewed favorably in [M]other's behalf in coming to a conclusion that [she] had not failed to perform her parental duties in the past." Anders Brief at 21. In support, counsel cites specific instances, which we summarize as follows: (1) a favorable 2008 CYS report evidencing Mother's "ability to cooperate with services . . . leading to this family's case being closed at that time;" (2) a letter from Mother to the caseworker disputing an unfavorable subsequent report; (3) "evidence in the record that [M]other did attempt to involve herself in services prior to the [dependency adjudication and] placement of the children;" (4) "significant involvement in mental health treatment programs;" (5) "participat[ion] in a domestic violence evaluation" and "progress in dealing with the domestic violence issue;" (6) "a close reading of [Dr. Small's] bonding evaluation [which] does not indicate the absolute absence of a bond . . but rather evidences the children's preference that they not be made to have contact with their mother without providing a substantial and well reasoned basis for their desire." Id. at 21-23.

We have recited the trial court's summary of the evidence above. We reiterate the testimony that, during the Children's nearly thirteen-month placement, Mother was unable to demonstrate that she could care for or keep her children safe. The court noted that the record did not demonstrate that Mother pursued recommendations for dual diagnosis counseling and mental health counseling which would also address her drug addictions. The court also cited Mother's failure to attend many scheduled urine screens, and positive tests for cocaine at three of the seven screenings that she did attend. The court noted the determination that a high level of violence occurred in the home and around Children, but found no evidence that Mother pursued domestic violence treatment, despite a recommendation for it. The trial court concluded:

In short, Mother has not done anything to demonstrate that she can care for and keep her children safe. It is the Court's opinion that she and her drug addiction are the root of the domestic violence to which the children were exposed. Given her lack of participation in services and her failure to appear for the [termination] hearing, the Court is forced to conclude that mother has failed to perform parental duties, has not remedied the circumstances which led to the children's placement, and is not likely to change within the foreseeable future. It is apparent that the children do not want contact with her and the Court could find no reason to disagree with their position.

Trial Ct. Op. at 6-7.

Furthermore, we note the following testimony of CYS adoption caseworker Christine Yuhasz. Mother "has lacked civility and cooperation in dealing with the various caseworkers that have been assigned to this case." N.T. Termination H'rg Vol. I, 12/6/12, at 165. Specifically, Mother has refused "to accept responsibility for the children's placement, " and "frequently blames [Father] as well as [the children's guardian ad litem] for her [sic] dependency hearing." Id. at 166. Mother did not "satisfactorily resolve[ the court's concerns] about her mental health circumstances at the time of the children's placement, " "participation in domestic violence" programs, drug and alcohol use, and steady housing. Id. at 167-68.

We note that the alleged favorable evidence to Mother, cited in counsel's Anders brief, occurred prior to Children's adjudication of dependency. Counsel further cites documentation that Mother participated in services available to her during incarceration in late 2011. Anders Brief at 22. Our review reveals that these services did not include domestic violence treatment, but did include stress and anger management. To the extent that Mother's counsel notes some efforts towards mental health treatment, we hold that her efforts, alone, do not preclude a finding that she was unable to resolve her incapacity to parent.

On the basis of the trial court opinion, whose credibility findings and findings of fact are binding on this Court, and our review of the record, we find sufficient evidence to support the court's determinations under section 2511(a)(2), and discern no abuse of discretion or error of law. See 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P., 47 A.3d at 826-27; In re S.M.B., 856 A.2d at 1238. The record evinces clear and convincing evidence that Mother's incapacity to parent has caused Children to be without essential parental care, control or subsistence necessary for their physical or mental well-being, and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by Mother. See 23 Pa.C.S. § 2511(a)(2).

We next consider whether the court erred in finding termination was proper under subsection 2511(b). "[P]ursuant to 23 Pa. C.S. § 2511(b), the court, in terminating the rights of a parent, shall give primary consideration to the developmental, physical, and emotional needs and welfare of a child." In re S.M.B., 856 A.2d at 1242.

Once the statutory requirement for involuntary termination of parental rights has been established under subsection (a), the court must consider whether the child's needs and welfare will be met by termination pursuant to subsection (b). In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.
Above all else . . . adequate consideration must be given to the needs and welfare of the child. A parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights.
Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child—the love, comfort, security, and closeness—entailed in a parent-child relationship, as well as the tangible dimension. Continuity of
relationships is also important to a child, for whom severance of close parental ties is usually extremely painful. The trial court, in considering what situation would best serve the child[ren]'s needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial.

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted). Furthermore, this Court has stated:

This Court has held that the trial court is not required by statute or precedent to order that a formal bonding evaluation be performed by an expert. [T]his Court stated that there are some instances where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child. This Court explained that, in cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. "The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." Interest of B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citations omitted).

In the instant matter, Dr. Richard F. Small, who conducted a forensic bonding evaluation in September of 2012, testified as follows. He reviewed records provided by CYS and interviewed both children, Father, Children's foster parents, CYS caseworker Christine Yuhasz, and Diakon caseworker Gretchen Duff. Mother did not appear for her scheduled evaluation; however, her non-participation did not affect Dr. Small's opinion. N.T. at 30, 39, 40. B.R.B. told Dr. Small that living with Mother would be "toxic, " although B.R.B. did not express specific reasons beyond the fact that she would feel uncomfortable. Id. at 33. Dr. Small had "a very, very strong opinion that it would not be in the best interests of these children to be with their mother and father in a continued relationship." Id. at 39. In support of this opinion, he cited information "from both the records [and B.R.B.] that [M]other has had drug problems, has been in jail more than once, [and] is very erratic in her parenting." Id. at 39-40.

Dr. Small also testified as follows about the children. B.R.B. has been "described as a very well-adjusted kid, " although her "having gone through all of this cannot leave her psyche uncomplicated." Id. at 37. B.R.B. "has a wonderful, warm, growing, positive relationship with the" foster parents, and their adoption of her "would be far more beneficial." Id. M.W.B. "also has a very positive relationship with the [foster parents] and is very comfortable, " and adoption by the foster parents "would be in [both children's] best mental health [sic]." Id.

Furthermore, Dr. Small's bonding evaluation report stated the following. B.R.B. "understood that she was removed from her father's home because of his inability (or unwillingness) to protect her from Mother." Id. at 749 (copy of Exh. 53, Richard F. Small's Forensic Bonding Evaluation, at 3). When Dr. Small asked B.R.B. why "she did not even want to see her mother, [B.R.B.] said that she was 'afraid she'll try to persuade me to come home, that I need her, which I don't [sic]. I don't want to deal with her problems." Id. at 750 (copy of Exh. 53, Richard F. Small's Forensic Bonding Evaluation, at 4). When asked about her pre-foster care placement relationship with Mother, B.R.B. responded "that her mother had been in jail so many times that they had little relationship." Id. While most of the report focused on Father's interaction with Children, Dr. Small stated with respect to Mother: "As [she] did not come to the meeting, I have comments on [M]other's presentation or [B.R.B.'s] interaction with her mother. Given what she told me, I suspect that her relationship with her mother is quite distant." Id. at 754. He concluded:

It is less easy to comment on [B.R.B.'s] bond with her mother. Given the limited information I have, it seems to be surprisingly weak for a child who has lived 11 of her 12 years with her mother. It is likely that, due to her mother's addiction, she was not very "present." Id. With respect to the younger child, Dr. Small concluded: "I have no good information on [M.W.B.'s] possible bond with her mother." Id.

With respect to the effect of termination on Children, Dr. Small opined:

It is unclear how severing the bond between the girls and their mother might be, particularly since contact has been so limited. I have little reason to fear that it would be harmful. Most problematic is the question of severing the bond between [Father] and the children. Both have close feelings for him . . . . Id. at 755.

CYS caseworker Yuhasz testified to the following. Mother did not visit Children during their placement because the children's therapist had not approved of visitation. Id. at 168. Mother had not "done anything to remediate the concerns that led [the court] to direct that she only have contact with her children as is therapeutically recommended." Id. at 168-69. With respect to a bond between Children and Mother, Ms. Yuhasz testified as follows:

[Children's Guardian Ad Litem:] At any time during the course of the preparation of the exhibits or in your service as caseworker, have you noted any type of positive parental bond between [Mother] or either of these children?
[Ms. Yuhasz:] No.
Q When I use the phrase parental bond, I am using it as a phrase of art, meaning her ability to provide for the children's behavior health.
A No.

Id. at 169. Ms. Yuhasz likewise responded, "No, " to questions of whether Mother had the ability to provide for Children's physical health, housing needs, financial support, and emotional support. Id. Furthermore, Ms. Yuhasz testified that both children "are very bonded with the foster family[, ] are very comfortable in the home[, ] finally have a stable, safe place[, and] really feel like they're getting a family experience." Id. at 127.

Finally, we note the testimony of Dr. Larry A. Rotenberg, who conducted a clinical interview of Mother on May 8, 2012. While he acknowledged that he did not conduct a bonding evaluation, but instead "an evaluation solely of the parents alone, " he testified:

[Mother] knows that [B.R.B.] does not want to see her and seemingly is afraid of her. And she makes excuses for it, none of these entirely credible.
So, the—the issue of . . . her bonding and just from that one point alone, mainly that [B.R.B.] does not want to see her, is—and that her mother knows about it, of course, speaks volumes. Because as everyone knows, Your Honor, that most children no matter what want to see their parents. So that for a child to express the wish not to see a parent, for the parent to know that is the exact opposite of bonding.

Id. at 182, 183.

As stated above, the court noted, "Mother did not participate in any visitation with the children because no visitation was recommended by the therapist, " and although Mother "provide[d] correspondence to the children on numerous occasions . . . only two items were deemed appropriate by the therapist." Trial Ct. Op. at 6.

Mother offered no evidence concerning a bond with either child. With respect to a bond with B.R.B., Dr. Small characterized the bond as "surprisingly weak, " but opined it was "unclear" how termination would affect that bond. N.T. at 754. Nevertheless, the CYS caseworker, Ms. Yuhasz, unequivocally testified that there was no bond between Mother and either child. Id. at 169. Accordingly, it was reasonable for the trial court to infer that no bond existed, see Interest of B.C., 36 A.3d at 611, and thus termination would have no effect on that bond. After careful review of the record, we find there was competent evidence to support the trial court's termination of Mother's parental rights under subsections 2511(a)(2) and (b). For the foregoing reasons, we affirm the decrees granting the petitions to terminate Mother's parental rights. We also grant counsel's petition to withdraw.

Decrees affirmed. Counsel's petition to withdraw granted.

Judgment Entered.

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