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In re K.K.

Superior Court of Pennsylvania

November 7, 2013

IN THE INTEREST OF K.K. APPEAL OF: C.C., NATURAL MOTHER IN THE INTEREST OF R.K. APPEAL OF: C.C., NATURAL MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered May 9, 2013 in the Court of Common Pleas of Indiana County, Orphans' Court Division, at Nos. 32-12-00395, 32-12-00396

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

MEMORANDUM

STRASSBURGER, J.

In these consolidated appeals, C.C. (Mother) appeals from the decrees entered on May 9, 2013 terminating her parental rights to K.K. and R.K. (Children) involuntarily pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5) and (b). Counsel for Mother has also filed a motion to withdraw. We affirm the decrees and grant counsel's petition for permission to withdraw.

R.K. was born in October of 2008 and is the biological son of Mother and S.K. (Father). K.K. was born in January of 2011 and is the biological daughter of Mother and Father.

On August 30, 2011, Vicki Weaver, a caseworker with the Indiana County Children & Youth Services (CYS), received a police report that Mother and Father were found asleep in their car at a gas station with Children in the back seat. R.K., who was almost three at the time, was trying to get out of the car. Weaver went to the home of Mother and Father, and found out it was in Westmoreland County, and made a referral to the Westmoreland County office on this basis.

She also learned that Westmoreland County had been involved with the family on two prior occasions. The first involvement was in May 2010, when R.K. was taken to the hospital by an aunt and uncle with high lead levels. The case was closed in June 2010 because the family moved to Florida. Then, in January 2011, Westmoreland Hospital made a referral to the agency at the time K.K. was born because Mother tested positive for Benzoyls and had not had regular prenatal treatment. K.K. was born with low birth weight. Mother passed all random drug tests and the agency closed the case in February 2011.

In September 2011, CYS received the referral back from Westmoreland County because the family moved to Indiana County to live with maternal grandmother. CYS was not able to see Children until it obtained an emergency court order on October 14, 2011. On that date, Children were placed in care and on October 17, 2011, Children were adjudicated dependent. Mother and Father admitted to using 10 bags of heroin per day. On October 17, Mother and Father were administered drug tests and both tested positive for several drugs. Mother and Father had a supervised visit with Children on October 19, 2011 where both admitted to having used two bags of heroin prior to the visit.

There were no more visits until November 16, 2011, because Mother and Father were attending rehab. The following visit was on December 14, 2011, and neither parent attended. Father was incarcerated on January 2, 2012, after pleading guilty to possession with intent to deliver controlled substances and possession of controlled substances. He was also awaiting trial on additional drug-related charges.

After Children were adjudicated dependent, Mother had a drug and alcohol assessment and went into a residential treatment program. She was discharged successfully on November 9, 2011, with instructions to continue with intensive outpatient therapy. She began outpatient therapy on January 26, 2012; however, she did not follow through with that therapy. On March 1, 2012, Mother was discharged for non-compliance with her treatment. Also, Mother did not complete recommended mental health treatment. Mother scheduled another drug and alcohol assessment for September 6, 2012, and attended that appointment.

Weaver testified that Mother tested positive for drugs on January 9, 2012, January 25, 2012, February 3, 2012, February 24, 2012, May 16, 2012, August 22, 2012, and September 5, 2012. Additionally, Mother refused to be tested on June 29, 2012. Mother was typically tested either right before or right after her visits with Children.

On August 23, 2012, CYS filed petitions to terminate the parental rights of Mother and Father. A hearing was held on September 12, 2012, where Weaver testified to the aforementioned facts.

Mother also testified at the hearing. She testified that on September 11, 2012 (the day before the hearing) she signed documents to be admitted into a drug treatment program. Mother testified that she is doing her best, but she "could have been doing better" and believes that she is "doing better now." N.T., 9/12/2012, at 188. She requested that the trial court give her "more time" so she could succeed in drug treatment and get Children back. Id. at 189.

On October 3, 2012, the orphans' court entered an order concluding that CYS has met the grounds for involuntary termination of parental rights pursuant to 23 Pa.C.S. § 2511(a), but held that "it would be improper for [the orphans' court] to decide the needs and welfare of [Children] are served by the involuntary termination of parental rights without a formal bonding assessment." Order, 10/3/2012, at ¶5. Thus, the orphans' court ordered that CYS conduct a bonding assessment as to Mother and Children.

A hearing was held on May 8, 2013. At the hearing, Carol Hughes (Hughes), a licensed psychologist who performed the bonding assessment, testified. Hughes conducted a thorough file review; met with foster parents and Children; observed Mother and R.K. together; observed Mother and K.K. together; and, interviewed Mother in her home. She also conducted phone consultations with Weaver. Hughes testified that Children had "secured attachments" with foster parents, "which would indicate they have a level of trust in terms of the consistency, the predictability and what that quality of interaction is going to be and what they can expect from these individual caregivers." N.T., 5/8/2013, at 17.

Hughes testified that she observed Mother and R.K. for one hour. While the two had some "very nice moments, " Hughes testified that Mother also "missed his cues" and R.K. refused to kiss Mother at the end of the visit. Id. at 18-19. Additionally, when R.K. finally kissed his Mother, he indicated that he loved foster mother and "squirmed out of [Mother's] arms and went to foster mother." Id. at 20. Hughes testified that she observed Mother and K.K. together. She described the level of attachment as being "an insecure connection, if not a disorganized connection to [Mother]." Id. at 35.

On May 9, 2013, the orphans' court entered decrees terminating the parental rights of both Mother and Father as to both Children. Mother filed a timely notice of appeal.[1] Both Mother and the orphans' court complied with Pa.R.A.P. 1925.[2]

On August 16, 2013, Mother's counsel filed a brief with this Court pursuant to Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); and, In re Adoption of J.T., 983 A.2d 771 (Pa.Super. 2009).[3] On August 26, 2013, Mother's counsel filed a conforming petition and brief with requisite notice.[4]

As a preliminary matter, we address counsel's petition to withdraw before reaching the merits of the issues raised in the brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)) ("When 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.").

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 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 her of her right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. In re V.E. and J.E., 611 A.2d 1267, 1273 (Pa.Super. 1992). Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. Id.

Our Supreme Court addressed the required contents of an Anders brief in Santiago.

(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.

Instantly, counsel has filed a separate petition for permission to withdraw wherein she avers that she has made a conscientious review of the record and has concluded that the appeal is frivolous. In addition, counsel attached as an exhibit to her petition a letter to Mother where she informed Mother of her rights in light of counsel's request to withdraw representation. Likewise, counsel avers that she has sent a copy of the Anders brief to Mother. Thus, counsel has satisfied the first and third requirement of Anders.

Counsel has also filed an Anders brief. In her brief, counsel provides a summary of the procedural history and facts, and she refers to the statutes and facts that she believes arguably support the appeal. Mother's Brief at 9. Counsel sets forth her conclusion in her brief that the appeal is frivolous. Id. While counsel's brief is not as thorough as we would typically like to see, it is evident that counsel has reviewed the record and has found no issues of merit. Thus, we conclude her brief does comply with the dictates of Anders and Santiago, and we now conduct our own independent review of the record.

As Mother has filed neither a pro se brief nor a counseled brief with new privately-retained counsel, we begin with a review based on the issues raised in the Anders brief:

1. Whether [Mother's] rights were improperly terminated with respect to [Mother] where [Children] were in placement for less than 15 to 22 months, specifically 10 months, and the Permanency Review Order of August 20, 2012 did not state that a Petition to Terminate Parental rights would be filed.
2. Whether [Mother's] rights were improperly terminated with respect to [Mother] where the goal of the Permanent Placement Plan was not changed from "return to parent or guardian" to "adoption" before a Petition to Terminate parental Rights was filed.

Mother's Brief at 7.

This Court reviews an order terminating parental rights in accordance with the following standard.

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 to 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 R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009) (quoting In re S.H., 879 A.2d 802, 805 (Pa.Super. 2005)). The burden is upon the petitioner to prove by clear and convincing evidence that his or her asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d at 276. The trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004).

Furthermore, this Court may affirm the trial court's termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Our case law requires that, after we determine that the requirements of section 2511(a) were satisfied, we then engage in a discussion of whether the requirements of section 2511(b) were satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc). The focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). Id. at 1008.

Mother's first issue raises the contention that CYS violated her rights pursuant to 42 Pa.C.S. § 6351(f)(9) by filing the petition to terminate where Children were in care for only 10 months prior to the filing of the petition.[5] This issue is clearly frivolous as the statute does not bear any relationship to when CYS may file a petition to terminate parental rights. See In re Adoption of S.E.G., 901 A.2d 1017, 1027 (Pa. 2006) (During a permanency hearing, "[o]ne of the factors deemed necessary for a court to consider is whether the child has been in placement for fifteen of the last twenty-two months.").

Mother's second issue raises the contention that the orphans' court should not have terminated her parental rights where the goal had not been changed from return to parent to adoption. In S.E.G., supra, our Supreme Court held "that Section 6351 does not require that a goal change precede the filing of a termination petition." Id. at 1029. Thus, a claim that CYS violated Mother's rights when it did not change the goal from return to parent to adoption prior to filing a petition to terminate Mother's parental rights is frivolous.

Finally, out of an abundance of caution, we observe that the evidence was sufficient to terminate Mother's parental rights to Children pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). These sections 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. § 2511.

We have explained this Court's review of a challenge to the evidence to support the involuntary termination of a parent's rights pursuant to section 2511(a)(1) as follows:

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 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. 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).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations and quotations omitted).

In this case, the orphans' court considered the facts and properly determined that Mother had failed to perform her parental duties for at least the six months leading up to the filing of the petition. Evidence showed that Mother was incapable of addressing her substance abuse issues for the year leading up to the filing of the petition. She had failed to follow through with required drug treatment programs and had tested positive for drugs on each occasion she was tested. At the September 12, 2012 hearing, Mother admitted that she could have done better, needed more time, and was scheduled to enter another rehabilitation program following that hearing. At the May 8, 2013 hearing, Mother had the opportunity to present additional evidence or testimony, and she elected not to do so. Accordingly, we conclude the evidence was sufficient to show that Mother had failed to perform her parental duties for the six months leading up to the filing of the petition.

In reviewing the evidence in support of termination under 2511(b), we consider whether the 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 (citations omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing the bond on the child. See id.

With regard to Section 2511(b), the orphans' court found that Mother and S.K. had "no bond" and that Mother and R.K. had "no secure attachment." Decree, 5/9/2013, at ¶ 14(d) and (e). These findings are supported by the testimony of Hughes. Furthermore, we point out that Children have been in the same pre-adoptive foster home since their placement and they have a secure bond with foster parents. Thus, the evidence was sufficient to terminate Mother's parental right pursuant to section 2511(b). We will not toll the well-being and permanency of Children indefinitely in the hope that Mother will summon the ability to handle the responsibilities of parenting these children. See in re Adoption of C.L.G., 956 A.2d at 1007-1008.

After conducting an independent review, we conclude that there are no meritorious issues on appeal. Thus, we grant counsel's petition to withdraw and affirm the decrees of the orphans' court terminating Mother's parental rights to Children pursuant to section 2511 (a)(1) and (b).

Counsel's petition to withdraw granted.

Decrees affirmed.

Judgment Entered.

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