J-S09025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.H., A            :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: K.H.                        :
                                        :
                                        :
                                        :
                                        :   No. 1601 MDA 2017

            Appeal from the Order Entered September 20, 2017
  In the Court of Common Pleas of Cumberland County Juvenile Division at
                     No(s): CP-21-DP-0000144-2015

 IN THE INTEREST OF: K.H., JR., A       :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: K.H.                        :
                                        :
                                        :
                                        :
                                        :   No. 1602 MDA 2017

            Appeal from the Order Entered September 20, 2017
  In the Court of Common Pleas of Cumberland County Juvenile Division at
                     No(s): CP-21-DP-0000146-2015


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED APRIL 04, 2018

     Appellant K.H. (“Father”) appeals from the orders terminating the

dependency of two of his biological children, A.H. and K.H., Jr. (“K.H.”)

(together, “the Children”), and placing them with a relative. Father’s counsel




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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has filed an Application for Leave to Withdraw and an Anders1 brief, stating

that the appeal is wholly frivolous. We affirm the orders of the trial court and

grant counsel leave to withdraw.

       The underlying facts are as follows:

              The Children and another minor sibling were adjudicated
       dependent on August 6, 2015. Mother and Children had been
       living with Maternal Grandmother until Mother suffered a
       catastrophic medical episode which rendered her permanently
       incapacitated. The Children remained with Maternal Grandmother
       after Mother was placed in a long-term care facility. They were
       living with her at the time of the referral and adjudication. Father
       was not a caregiver at the time of adjudication, nor did he have
       adequate housing. His involvement in the Children’s lives had
       been sporadic up until the summer of 2015.

              [Cumberland County Children and Youth Services (“CYS”)]
       was referred to the family following an incident in which a family
       friend was charged for hitting the [C]hildren with a belt. A criminal
       investigation concerning an older sibling’s sexual abuse of K.H.
       was also launched during that time. [CYS] became concerned
       about unsanitary conditions in the home and Maternal
       Grandmother’s ability to supervise the [C]hildren. She was having
       difficulty caring for the three children due to her age. Paternal
       Aunt moved into the home to help Maternal Grandmother with the
       caregiving and was temporarily given physical and legal custody
       of all three children. She left the home on December 31, 2015,
       and Maternal Grandmother was again given physical and legal
       custody of the three children. On July 17, 2016, Maternal Cousin
       moved into the home in order to help Maternal Grandmother with
       the caregiving. She left within a month and [CYS] began to look
       for foster homes.

____________________________________________


1 Anders v. California, 386 U.S. 738 (1967); see also In re J.D.H., 171
A.3d 903, 906 (Pa.Super. 2017) (holding “the Anders procedure should also
apply in appeals from goal change orders” as “[p]arents have a right to
counsel at every stage of a dependency proceeding”).



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               On November 28, 2016, K.H. and another sibling were
        accepted into the Milton Hershey School, which required them to
        reside there. Maternal Grandmother retained legal custody of the
        children. On January 15, 2017, A.H. was placed in the physical
        and legal custody of Paternal Aunt.[2] Paternal Aunt stated that
        she was willing to be a permanent resource for the Children. On
        April 5, 2017, physical and legal custody of K.H. was also placed
        with Paternal Aunt.[3] Despite more than two years of Agency
        involvement, Father remained unable to care for the Children.

Trial Court Opinion, filed Nov. 29, 2017, at 1-2. Father did not appeal the

initial adjudication of dependency in 2015 or any of the subsequent placement

or custody decisions.

        The court held a routine permanency review hearing4 on September 20,

2017, after the Children had been dependent for 25 months. Prior to the

hearing, CYS requested that the permanency goal for the Children be changed

to placement with a “fit and willing relative,” that the Children remain in the

physical and legal custody of Paternal Aunt, and that dependency be

terminated. See Petition for Permanency Hearing and Dispositional Review

Hearing, filed 8/24/17, at 1 (unpaginated). The permanency goal for the

Children until that point had been to “return to parent or guardian.” See

Permanency Review Order, 4/5/17, at 3.


____________________________________________


2   Father retained shared legal custody of A.H.

3   Father retained shared legal custody of K.H.

4 See 42 Pa.C.S.A. § 6351(e) (unless aggravated circumstances exist or are
alleged, the court shall conduct permanency review hearings for dependent
children at least once every six months until child is returned to his or her
parent, guardian, or custodian, or removed from the jurisdiction of the court);
see also Pa.R.J.C.P. 1608.

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      At the hearing, the court heard testimony from Gan Fry, the CYS

caseworker assigned to the Children’s case. Fry testified that Father has

repeatedly stated that he does not have adequate housing for the Children,

and has refused to provide an address to CYS. See N.T., 9/20/17, at 10-11.

Father had been visiting with the Children, but not as often as he had

previously. Id. at 4-5, 12. During one of Father’s visits with the Children at

Paternal Aunt’s home, Paternal Aunt and Father got in a heated argument and

Paternal Aunt called the police; Father left before the police arrived. Id. at 9.

However, Fry testified that Paternal Aunt “is open to the [Children] having

continued contact with [Father].” Id. at 14. Fry requested that Paternal Aunt

be given sole legal custody of the Children. Id. at 7. This was because Father

had removed Maternal Grandmother from K.H.’s visitation list at school,

something he would not be able to do if he did not share legal custody. Id. at

8.

      Chris Rich, a social worker at the Milton Hershey School, also testified.

He stated that Father is on the school’s visitation list for the Children, and

Father is therefore able to visit the Children at the school during weekends or

take the Children home during several long weekends throughout the school

year. Id. at 19-21.

      Father testified that he would not provide CYS with his address because

there is no need for a home visit from CYS, as Father has no extra bedroom

in which to house the Children. Id. at 23. Father stated that he complied with

the court’s previous order that he take a drug test, but that he had not

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attended parenting classes due to a scheduling conflict. Id. at 26. Father

testified that he is no longer welcome to visit the Children at Paternal Aunt’s

home due to the disagreement they had, but that he has since visited with

the Children at a public location with a bowling alley and laser tag arena. Id.

at 16. According to Father, he removed Maternal Grandmother from K.H.’s

school visitation list because she had failed at protecting the Children while

they were in her care. Id. at 27.

       The Guardian ad litem for the Children was also present at the hearing,

and stated that she agreed with the recommendations of CYS to give Paternal

Aunt sole legal custody. Id. at 29.

       Paternal Aunt did not formally testify,5 but the court asked her if she

was willing to “work out the visitation with [Father],” and she responded that

Father could retrieve the Children for a visit “whenever he wants to.” Id. at

31. She told the court,

       Never would I ever try to stop him from getting the kids, nor would
       I ever say, you know, well, if I have custody of the kids, you can’t
       have the kids back. No. My plan has never changed. It’s just like
       I told Gan [Fry]. My plans are to keep the kids until he gets a place
       for them to live.

Id.

       At the conclusion of the testimony, Father’s court-appointed counsel

objected to the goal change and termination of dependency. Counsel argued


____________________________________________


5 See 42 Pa.C.S.A. § 6336 (hearings under the Juvenile Act shall be conducted
in an informal manner).

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briefly that if the court granted sole legal custody to Paternal Aunt, such an

order would be a punitive measure against Father and a way to referee the

adult relationships rather than an effort to advance the best interests of the

Children. Id. at 32.

        Following the hearing, the court entered separate orders for A.H. and

K.H., changing the placement goal to “placement with a fit and willing

relative,” Paternal Aunt, and entered orders terminating the dependency and

court supervision of the Children. See Permanency Review Order (A.H.),

9/25/17, at 1-3; Permanency Review Order (K.H.), 9/25/17, at 1-3; Order for

Termination of Court Supervision (A.H.), 9/25/17, at 1; Order for Termination

of Court Supervision (K.H.), 9/25/17, at 1. The court found that, regarding

Father’s compliance with the prior permanency plan, Father had been

minimally compliant, “in that [Father] has only taken minimal steps towards

locating housing to accommodate his children. [Father] has not cooperated

with the Agency’s request to conduct a home visit and [Father] has not

participated in individual mental health counseling.” Permanency Review

Order (A.H.), at 1; Permanency Review Order (K.H.), at 1. The court stated

that it would “encourage dad to visit more often with the [C]hildren,” and

“[Father] shall remain on the visitation list for [K.H.] . . . at Milton Hershey

absent further Order of Court.” Permanency Review Order (A.H.), at Additional

Findings of Fact; Permanency Review Order (K.H.), at Additional Findings of

Fact.


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       At Father’s request, Father’s counsel filed a Notice of Appeal.6 As noted

above, counsel thereafter filed an Anders brief with this Court and an

Application for Leave to Withdraw.

       Before assessing the merits of Father’s appeal, we must first examine

counsel’s request to withdraw. See Commonwealth v. Orellana, 86 A.3d

877, 879 (Pa.Super. 2014). Counsel who wishes to withdraw must both file

Anders brief in this Court and provide a copy of that brief to the client. Id. at

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

Counsel must also send a letter “that advises the client of his right to: ‘(1)

retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)

raise any points that the appellant deems worthy of the court[’]s attention in



____________________________________________


6 “An order granting a goal change pursuant to the Juvenile Act, 42 Pa.C.S.A.
§§ 6301-6365, is final and appealable.” In re C.J.R., 782 A.2d 568, 569
(Pa.Super. 2001) (citation omitted).

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addition to the points raised by counsel in the Anders brief.’” Id. (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2017)).

      Following our assessment of counsel’s request to withdraw, we “must

conduct an independent review of the record to discern if there are any

additional, non-frivolous issues overlooked by counsel.” Commonwealth v.

Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015); see, e.g., In re X.J., 105

A.3d 1, 4-6 (Pa.Super. 2014) (denying application to withdraw where court

found, on independent review pursuant to Flowers, a meritorious issue

overlooked by counsel).

      Here, counsel’s brief contains the required Anders elements. Counsel

has restated the facts of the case at reasonable length; has put forth a cogent

argument on behalf of Father’s appellate issue; has stated his belief that the

appeal is frivolous; and has duly articulated the facts and law that have led to

his conclusion that the appeal is frivolous. Orellana, 86 A.3d at 879. In

addition, counsel sent a letter to Father explaining his rights, including his

rights to raise issues with this Court pro se in support of his appeal. Id. at

880. We therefore turn to an independent review of the merits of the appeal

and the record as a whole. Flowers, 113 A.3d at 1250.

      Father’s issue, as presented by counsel, is:

      Did the trial court abuse its discretion and commit an error of law
      when it found [Father’s] minor [Children] to be no longer
      dependent, placed the [Children] in the legal and physical custody
      of a fit and willing relative, and terminated court supervision over
      the [Children], thereby subjecting [Father] to a de facto
      involuntary termination of his parental rights, which contravened

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      sections 2511-2521 of the Adoption Act, 23 Pa.C.S. §§ 2511-
      2521?

Anders Br. at 4. Appointed counsel elucidates that, according to Father,

because the trial court did not give due regard to the mutual hostility between

Father and Paternal Aunt, the court “effectively empowered [P]aternal [A]unt

to exercise unrestricted control over [F]ather’s access to [the Children].”

Anders Br. at 7-9. Father maintains that this amounted to a de facto

termination of Father’s parental rights without meeting the requirements for

termination of parental rights under the Adoption Act, and it deprives Father

of his constitutional right to the care and custody of his children. Id. Moreover,

Father contends that the court’s termination of dependency leaves Father

without legal recourse in the Juvenile Act, should Paternal Aunt prevent him

from seeing his Children. Id. Father has not submitted, pro se, any additional

arguments to buttress his issue as presented by counsel.

      In its Rule 1925(a) Opinion, the trial court explained that it placed

Children with Parental Aunt because Father was “unwilling, unready, and

unable” to provide a home for the children, whereas a placement with Parental

Aunt would foster “the care, protection, and wholesome mental and physical

development” of the Children in a “family environment,” in accordance with

the purpose of the Juvenile Act. Id. Trial Ct. Op. at 3-4 (citing 42 Pa.C.S. §

6301(b); In Re M.L., 757 A.2d 849, 851 (Pa. 2000)). The court also

expressed that because a fit and willing relative was “ably providing parental

care and control, and Agency services were no longer needed, the Children by

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statutory definition were no longer dependent.” Id. at 4. The court also

concluded that terminating court supervision would be best for the Children

because doing so would allow the Children to prosper “without the interruption

of court appearances and government oversight.” Id. The court explained that

it gave Paternal Aunt sole legal and physical custody because Father “has

demonstrated alienating behaviors that could compromise the integrity of his

children’s relationship with their family members,” citing, as an example, that

Father “removed Maternal Grandmother from the visitation list at K.H.’s school

out of personal spite.” Id. at 4 n.9. The court noted that “Father may revisit

the issue of custody at a later time, outside of dependency court.” Id.

      We review an order granting a goal change under the Juvenile Act for

an abuse of discretion. See In re C.J.R., 782 A.2d at 569. “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.” Id. (citations omitted).

      The Juvenile Act, in pertinent part, defines a dependent child as one who

is “without proper parental care or control” or who is “without a parent,

guardian, or legal custodian.” See 42 Pa.C.S.A. § 6302. After a child has been

adjudicated dependent under this definition, the court may enter an order

transferring permanent legal custody to a relative who “is found by the court

to be qualified to receive and care for the child.” Id. at § 6351(a)(2.1). In

considering a permanent placement for the child, the court may determine

that the child shall be placed with a “fit and willing relative in cases where


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return to the child’s parent, guardian or custodian, being placed for adoption

or being placed with a legal custodian is not best suited to the safety,

protection and physical, mental and moral welfare of the child.” Id. at §

6351(f.1)(4); see also In re K.J., 27 A.3d 236, 242 (Pa.Super. 2011) (“If

the court decides that neither reunification, adoption, or placement with a

legal guardian is appropriate, the court may place the child with a fit and

willing relative”). The best-interests standard controls the court’s decision.

See In re C.J.R., 782 A.2d at 569 (“[I]n a change of goal proceeding, the

trial court must focus on the child and determine the goal in accordance with

the child’s best interests and not those of his or her parents”). The court may

terminate dependency when “the child has been placed in the physical and

legal custody of a fit and willing relative and services from the county agency

are no longer needed[.]” Pa.R.J.C.P. 1631(A)(6), (F).

      Here, the court amended the placement goal to placing the Children with

Paternal Aunt (who already had physical and shared legal custody of the

children), as the court found she was a fit and willing relative — an assessment

which Father does not dispute. See Anders Br. at 8. Due to their placement

with Paternal Aunt, and the court’s finding that court-ordered services were

no longer needed, the Children ceased to fit the definition of dependent under

the Juvenile Act, and the court properly closed the case. See Pa.R.J.C.P.

1631(A)(6), (F).




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      Father’s argument—that the court’s termination of dependency will

prevent him from visiting his children and therefore amounts to a de facto

termination of his parental rights—lacks a reasonable basis in the law. In In

re S.H., 71 A.3d 973, 977 (Pa.Super. 2013), we examined Section

6351(a)(2.1) of the Juvenile Act, which allows the Juvenile Court to grant

“permanent” legal custody of a dependent child to a non-parent. We noted

that if such an award of custody were not challengeable in other divisions of

the trial court after the juvenile proceedings had concluded, “that would

amount to a de facto termination of Mother's and Father's legal and primary

physical custodial rights. Our legislature could not have intended that result

because the legislature has provided a process to terminate parental rights in

separate, specific legislation.” Id. at 979 (citing 23 Pa.C.S.A. § 2511).

      Instead, the less stringent and less “permanent” award of custody under

the Juvenile Act “preserve[s] a parent’s right to seek primary custody if it

serve[s] the best interests of the child.” Id. at 980. We explained that the

Child Custody Act “specifies that, without limitation, a parent of a child may

file an action ‘for any form of physical custody or legal custody.’” Id. (quoting

23 Pa.C.S.A. § 5324). The Act also provides that “‘any custody order entered

by a court of this Commonwealth’ may be modified if it serves the ‘best

interests of the child.’” Id. (quoting 23 Pa.C.S.A. § 5338). We concluded,

“Clearly, our legislature did not exclude from parents the right to petition to

modify a custody order entered in a dependency proceeding.” Id. In addition


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to the foregoing, we note that Section 6351(a)(2.1) states that “[t]he court

shall refer issues related to support and continuing visitation by the parent to

the section of the court of common pleas that regularly determines

support and visitation.” 42 Pa.C.S.A. § 6351(a)(2.1) (emphasis added).

      Here, while Paternal Aunt currently has full custody of the Children,

Father’s parental rights have not been affected. See S.H., 71 A.3d at 980.

There is nothing preventing Father from pursuing custody or visitation in the

appropriate division of the common pleas court under the Child Custody Act.

See 23 Pa.C.S.A. § 5321-5340; see also Pa.R.C.P. 1915.1 et seq (“Actions

for Custody, Partial Custody and Visitation of Minor Children”). In fact,

Paternal Aunt stated that she would not prevent off-site visitation with Father,

or challenge Father should he ever seek full physical custody of the Children.

The trial court, likewise, encouraged Father to engage more frequently with

the Children. Given these circumstances, we agree with counsel’s assessment

that Father’s issue is frivolous.

      In sum, we conclude that Father has presented no non-frivolous issues

for which relief is due. In addition, we have reviewed the certified record

consistent with Flowers, 113 A.3d at 1250, and have discovered no additional

arguably meritorious issues. We therefore grant counsel's Application for

Leave to Withdraw and affirm the orders of the trial court.




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     Orders affirmed.

     Judge Platt joins the memorandum.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2018




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