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[U] In re C.T.

Superior Court of Pennsylvania

February 10, 2014

IN THE INTEREST OF: C.T., A MINOR, ADJUDICATED DEPENDENT
v.
APPEAL OF: S.S., NATURAL MOTHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order, July 1, 2013, in the Court of Common Pleas of Erie County Civil Division at No. 11 OF 2012

BEFORE: FORD ELLIOTT, P.J.E., OTT AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

S.S. ("Mother"), the mother of the subject dependent child, C.T. ("Child") born in March of 2003, appeals the permanency review order dated July 1, 2013, and entered on July 3, 2013, changing the permanency placement goal for Child to Permanent Legal Custody ("PLC"), [1] pursuant to Section 6351(f.1)(3) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f.1)(3). In the order, the trial court further directed that legal and physical custody would remain with the Erie County Children and Youth Services Agency ("OCY"), and placement of Child would remain in foster care (kinship) with A.S., his maternal uncle ("Maternal Uncle"). We affirm and grant the motion to withdraw as counsel, pursuant to Anders v. California, 386 U.S. 738 (1967).

The record in this matter reflects the following. Based on an allegation of inappropriate sexual behavior of Child toward his sister, on February 9, 2012, OCY filed a motion for emergency protective custody. On February 10, 2012, OCY filed a dependency petition with regard to Child. On February 10, 2012, the juvenile hearing master held a shelter care hearing.

The testimony at the shelter care hearing established that Child came into care because he engaged in sexual acts with his then four-year-old sister, by having her perform oral sex on him. (Notes of testimony, 2/10/12 at 6-7, 10.) Mother was unable to deal with the issues in a constructive fashion, denying OCY access to her home, and stating that it was "none of [OCY's] business." (Id. at 7.) After Mother learned about the sexual activity, she struck Child and screamed obscenities at him, and demanded OCY take Child, because she did not want him. (Id. at 11-12.) Further, the master found it significant that Mother was aware that her family had an open case with OCY on an informal basis for lack of supervision, yet did not notify OCY of the allegations against Child, and initially refused to receive any assistance with the problem. (Master's recommendation for shelter care, 2/13/12; Master's amended recommendation for adjudication and disposition, 6/8/12.) (See notes of testimony, 2/10/12 at 9.) On February 13, 2012, a juvenile hearing master recommended shelter care for Child. The trial court entered a shelter care order on that same date.

On February 16, 2012, the juvenile hearing master held a dependency hearing and, on that same date, entered an order adjudicating Child dependent pursuant to Section 6302(1) of the Juvenile Act, 42 Pa.C.S.A. § 6302(1).

The trial court held a dispositional hearing on March 7, 2012. On March 13, 2012, the trial court entered a dispositional order, dated March 12, 2012, placing Child in foster care (kinship) with Maternal Uncle, and setting his permanency placement goal as return to parent or guardian, with a projected date for achieving the goal in six months. On April 11, 2012, OCY filed a petition for a permanency hearing.

On April 20, 2012, Mother filed a motion for amendment and/or correction of record, asserting that Mother had withdrawn her stipulation to a finding of dependency. On April 26, 2012, the trial court entered an order, dated April 23, 2012, directing the master to issue an amended or corrected recommendation.

On May 23, 2012, the trial court entered OCY's court summary for the hearing, and its court summary addendum. On that same date, the trial court held the first permanency review hearing. On May 24, 2012, the trial court entered an order, dated May 23, 2012, providing that, although Mother had withdrawn her stipulation to the finding of dependency, the record supported the finding and adjudication of dependency. Accordingly, in the May 23, 2012 order, the trial court affirmed the master's finding that Child was dependent.

Further, on June 5, 2012, the trial court entered an order, dated June 4, 2012, directing that legal and physical custody of Child remained with OCY, and Child would remain in foster care (kinship), with a permanency goal of return to parent or guardian, and a completion date for the goal of within sixty days. Additionally, the trial court signed the master's amended recommendation on June 7, 2012, finding Child dependent based on the testimony and other evidence from the shelter care hearing without Mother's stipulation to the dependency. On June 8, 2012, the trial court entered the signed order of adjudication and disposition.

Between June 11, 2012 and January 9, 2013, four permanency review hearings were held. Throughout, this time the trial court maintained Child's permanent placement goal to return to parent or guardian with a concurrent placement goal of PLC. In two separate orders entered on August 8, 2012, the trial court appointed Ann Townsend and Barbara Mitchell as Court Appointed Special Advocates ("CASA") for Child.

On May 2, 2013, OCY filed a motion to change Child's permanency placement goal to PLC, alleging that Child had been in placement for approximately fifteen months, and that a change in goal to PLC would be in his best interests. On May 3, 2012, the trial court entered an order changing Child's permanency placement goal to PLC.

On May 24, 2013, OCY filed a petition for a permanency review hearing. In an order dated May 29, 2013, and entered on May 30, 2013, the trial court placed Mother on random urinalysis testing. On June 3, 2013, Mother filed a motion for reconsideration of the May 3, 2013 order, alleging that Mother wished to oppose the motion. The trial court entered an order on June 3, 2013, vacating its May 3, 2013 order, and indicating that the merits would be addressed at the scheduled permanency review hearing on June 24, 2013. On June 19, 2013, Mother filed a motion for testimony via teleconference. The trial court granted Mother's motion in an order dated June 19, 2013, and entered on June 21, 2013.

On June 24, 2013, CYS filed its court summary. The trial court held its sixth permanency review hearing on June 24, 2013. At the hearing, OCY presented its court summary, as well as OCY caseworker, Leatrice Schoolcraft. The guardian ad litem presented the testimony of Maternal Uncle, via telephone. Maternal Uncle's paramour, L.F., was present via telephone but did not testify. Mother testified on her own behalf. The CASA representatives, Barbara Mitchell and Ann Townsend, were also present, and Ms. Townsend testified about her CASA report. (Notes of testimony, 6/24/13 at 6-7.) In an order dated July 1, 2013, and entered on July 3, 2013, the trial court changed the permanency placement goal for Child to PLC with the kinship resource, Maternal Uncle, and that a review hearing be scheduled in six months.

On July 29, 2013, Mother's counsel filed an appeal from the July 3, 2013 order on behalf of Mother, along with a statement of intention to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4), in lieu of a concise statement of errors complained of on appeal. See In the Interest of J.T., 983 A.2d 771, 774 (Pa.Super. 2009) (holding the Anders procedure has been engrafted onto parental termination cases; thus, counsel's decision to follow the Rule 1925(c)(4) procedure in this parental termination case was proper). On July 30, 2013, Mother's counsel filed an amended notice of appeal to indicate that the appeal was a children's fast track appeal.

On September 12, 2013, Mother's counsel filed with this court an Anders brief. On September 13, 2013, Mother's counsel filed a motion to withdraw as counsel. We begin by addressing the motion to withdraw and the issue in the Anders brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quotation omitted) (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").

In In re V.E., 611 A.2d 1267, 1275 (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. 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 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. Id. at 1273. Thereafter, this court examines the record and determines whether the appeal is wholly frivolous. Id.

Our supreme court, in Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009), stated that an 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.

Id. at 178-179, 978 A.2d at 361.

Our supreme court reaffirmed the principle that indigents "generally have a right to counsel on a first appeal, [but] . . . this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing such an appeal." Id. at 173, 978 A.2d at 357 (citation omitted). Our supreme court stated:

In the Court's view, this distinction gave meaning to the Court's long-standing emphasis on an indigent appellant's right to "advocacy." . . . As the Court put it, "[a]lthough an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments."

Id. at 173, 978 A.2d at 357-358 (citation omitted).

Mother's counsel has complied with the first prong of the test in Santiago by providing a summary of the procedural history and facts in her Anders brief. Counsel has also complied with the second prong of the test in Santiago by referring to any evidence in the record that counsel believes arguably supports the appeal. Counsel has also set forth her conclusion that the appeal is frivolous, and stated her reasons for that conclusion, with appropriate support. Counsel filed a separate motion to withdraw as counsel, wherein counsel states that she has made an exhaustive review of the record and applicable law, and she has concluded that the appeal is frivolous. Further, counsel has attempted to identify and fully develop any issues in support of Mother's appeal. Additionally, counsel states that she sent a letter to Mother in which she provided a copy of the Anders brief. Counsel states that she informed Mother that she has filed a motion to withdraw and an Anders brief, and she informed Mother of her rights in light of her motion. Thus, Mother's appellate counsel has satisfied the requirements of Santiago.

In the Anders brief, Mother's counsel raises the following issues:
(1) Did the dependency court commit an abuse of discretion or error of law when it concluded that permanent legal custodianship with the maternal uncle was in the child's best interests when the minor child continued to manifest a desire to return home to his mother?
(2) Did the dependency court commit an abuse of discretion or error of law when it changed the goal to permanent legal custodianship without giving the natural mother additional time to achieve reunification?

Anders brief at 7.

We address the issues raised in the Anders brief together. Mother's counsel asserts on behalf of Mother that the trial court committed an abuse of discretion and/or an error of law when it concluded that Child's best interests were served by the change in his permanency placement goal to PLC, as Child had stated that he wished to return to Mother's home. She also contends that Mother should be given additional time to work toward reunification with Child.

Our standard of review of an order granting a petition to change a dependent child's permanency placement goal to appoint a PLC is abuse of discretion.

When reviewing such a decision[, ] we are bound by the facts as found by the trial court unless they are not supported in the record. Furthermore, in a change of goal proceeding, the trial court must focus on the child and determine the goal in accordance with the child's best interest and not those of his or her parents.
At each review hearing concerning a child who has been adjudicated dependent and removed from the parental home, the trial court must consider: the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.
These statutory mandates clearly place the trial court's focus on the best interests of the child.
In addition[, a]lthough bound by the facts as found by the trial court and supported by the record, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate. We review for an abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and the witnesses.

In re H.V., 37 A.3d 588, 593 (Pa.Super. 2012).

Section 6351(f.1)(3) of the Juvenile Act authorizes the trial court to grant a goal of PLC if the trial court decides that neither reunification nor adoption is best suited to the child's safety, protection, and physical, mental and moral welfare. 42 Pa.C.S.A. § 6351(f.1)(3). In a change of goal proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent's rights are secondary. In re A.K., 936 A.2d 528, 532-533 (Pa.Super. 2007). The burden is on the agency to prove the change in goal would be in the child's best interests. In re Interest of M.B., 674 A.2d 702, 704 (Pa.Super. 1996), appeal denied, 547 Pa. 717, 688 A.2d 172 (1997), citing In Interest of Sweeney, 574 A.2d 690, 691 (Pa.Super. 1990), appeal denied, 526 Pa. 649, 585 A.2d 469 (1991). In contrast, in a termination of parental rights proceeding, the focus is on the conduct of the parents under 23 Pa.C.S.A. § 2511. In re M.B., 674 A.2d at 705. Finally, the court also must consider the bond between the child and his parents, foster parents, and siblings. In re H.V., 37 A.3d at 594-595.

Child has continued to express to the OCY caseworker, Leatrice Schoolcraft, the guardian ad litem, Attorney Ines M. Massella, the trial court, and Maternal Uncle, on numerous occasions, his desire to return home to Mother. (See notes of testimony, 11/7/12, at 13-15, 18, 20-21; 6/24/13, at 5-6, 10.) Although Child's desire to return home is a consideration for the trial court to consider, the trial court must consider his best interests in accordance with the factors discussed in In re H.V., 37 A.3d at 593.

While Mother would like additional time to achieve reunification, the record demonstrates that she was not consistent in her visits with Child. (Notes of testimony, 11/7/12 at 12.) Mother did not cooperate to develop a relationship with the CASA workers regarding meetings and to be available. (Notes of testimony, 6/24/13 at 6-7.) Although Mother testified that she had begun to take a mood stabilizing medication, she was not able to establish that she complied with her mental health treatment and medication management. (Notes of testimony, 11/7/12 at 5-6; 6/24/13 at 20-22, 25-26, 30.)

It was undisputed that Maternal Uncle provides a safe and stable environment for Child, that Maternal Uncle meets all of Child's educational, physical, and emotional needs, and that Child is happy in the care of Maternal Uncle and his girlfriend, and the structure and stability they provide him. (Notes of testimony, 6/24/13 at 4-10, 24.) Child is in therapy. (Id. at 34.)

The trial court found that Mother's parenting skills and judgment regarding Child's emotional well-being remained problematic, whereas Child is thriving in the home of Maternal Uncle and L.F. At the permanency review hearing on June 24, 2013, the trial court stated as follows:

. . . This has been accurately described as a matter of inconsistency, and now we are at a stage where time has lapsed, and it's very concerning that --well, since the dispositional hearing in March of 2012 we don't have a permanency plan. It's been concurrent, and it's been recommended that PLC be now [sic] the goal. And I think that based on all the testimony, the reports, and most importantly it seems [Child] is thriving and doing very well in the setting of structure and stability. I do think there's room for a relationship, of course, with his mother, but I do think PLC is the goal[, ] and that's what I'll set.

Notes of testimony, 6/24/13 at 35. The trial court indicated that the next permanency review hearing would be set for six months. (Id. See also trial court order, 8/1/13.)

Thus, regardless of Mother's attempt to comply with medication for her mental health and attending some visits with Child, the trial court determined that Child's best interests were served by changing the goal to PLC. We find that the record supports the trial court's decision.

Order affirmed; motion to withdraw as counsel granted.

Judgment Entered.


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