J-S10014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.D.C., JR., A               IN THE SUPERIOR COURT OF
MINOR                                                  PENNSYLVANIA




APPEAL OF: A.D.C., MOTHER

                                                     No. 1860 EDA 2014


                   Appeal from the Order Dated May 27, 2014
              in the Court of Common Pleas of Philadelphia County
                 Family Court at Nos.: CP-51-AP-0000613-2013
                            CP-51-DP-0000565-2012


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 10, 2015

        A.D.C. (Mother)1, appeals from the order of the Court of Common

Pleas of Philadelphia County, entered on May 27, 2014, that terminated her

parental rights to her daughter, A.D.C., Jr. (Child), born in March of 2005.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   We note that Mother is also referred to as A.C.; the trial court is
inconsistent when referring to Mother. Therefore, for clarity purposes we
refer to Mother as A.D.C. We have amended the caption accordingly.
J-S10014-15


Counsel has filed a motion to withdraw.          We affirm the order and grant

counsel leave to withdraw.2

       On December 8, 2010, Philadelphia’s Department of Human Services

(DHS) received a substantiated Child Protective Services (CPS) report

alleging that Child, and one of her siblings, had been sexually abused by a

maternal uncle who resided with the children and Mother. The report also

alleged that Mother suffered from paranoid schizophrenia.

       DHS’ investigation revealed that the family had a history of physical

and sexual abuse. DHS discovered that it was aware of Mother since April of

1998, when it received and substantiated a General Protective Services

report concerning Mother’s unstable mental health and history of multiple

psychiatric hospitalizations.

       Child was hospitalized at the Horsham Clinic in April of 2011 after she

stated she was hearing voices that were telling her to cut and kill herself.

Horsham Clinic discharged Child to a partial hospitalization treatment

program and returned her to Mother on July 25, 2011. In-Home Protective

Services (IHPS) were implemented in the home through Presbyterian

Children’s Village on July 27, 2011.



____________________________________________


2
 The trial court also terminated the parental rights of Child’s father, W.M.,
and an unknown father. Neither appealed their terminations and neither is a
party to this appeal.



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      Child was suspended from school for misbehavior on March 23, 2012,

and sent to the home of her maternal aunt when school staff were unable to

reach Mother. Child disclosed that when she misbehaved in school Mother

hit her with sticks, a pole from a fan, and belts. According to Child, Mother

also forced her to sleep in the hallway.

      Child told DHS staff, on March 24, 2012, that Mother had physically

assaulted her and that she was afraid to return to Mother’s residence.

Mother agreed to allow Child to remain in her maternal aunt’s care until

March 26, 2012.    On March 26, 2012, a multi-disciplinary team met with

Child at her maternal aunt’s home.         Child stated that she was afraid to

return to Mother’s home because Mother hit her with different objects.

      In a visit to Child’s school on March 27, 2012, DHS learned that Child

had severe behavioral issues.        Child assaulted other children, threw

tantrums, and told sexually explicit stories to other students. School staff

told Mother about these problems but Mother refused to authorize school-

based mental health services for Child. DHS obtained an Order of Protective

Custody (OPC) for Child on March 30, 2012, and placed her in foster care

through First Home Care.

      Mother was present when the trial court held a shelter care hearing on

April 2, 2012, at which it lifted the OPC and temporarily committed Child to

DHS. Father’s whereabouts were unknown. The trial court adjudicated Child

dependent and committed her to DHS at an adjudicatory hearing held on


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April 10, 2012.        The trial court ordered Mother to attend Fairmount

Behavioral Health System (BHS) for monitoring of her mental health

services. DHS placed Child in a therapeutic foster care home through Elwyn,

Inc., in August of 2012.

       On August 31, 2012, Mother was arrested and charged with

aggravated assault, endangering the welfare of a child, possession of an

instrument of crime, false imprisonment, unlawful restraint, simple assault,

and recklessly endangering another person, with Child alleged as the victim.3

The criminal court issued a criminal protective/stay away order that

prohibited Mother from all contact with Child prior to trial.

       DHS held a Family Service Plan (FSP) meeting on April 9, 2013. The

FSP objectives DHS established for Mother were: 1) complete a psychiatric

evaluation    and     follow   through     with   all   recommendations,   including

prescribed medication; 2) sign authorizations to permit DHS to obtain copies

of evaluations and progress reports; 3) attend parenting classes; 4) locate

and occupy suitable housing; and, 5) meet regularly with Elwyn social

workers and follow through with Individual Service Plan objectives.

       Mother failed to attend Child’s July 11, 2012, permanency review

hearing where the trial court found Mother non-compliant with her

permanency plan.        The trial court referred Mother to BHS for a parenting
____________________________________________


3
  See 18 Pa.C.S.A. §§ 2702, 4304, 907, 2903, 2902, 2701, and 2705,
respectively.



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capacity evaluation.    Child remained institutionalized at BHS.       (See

Permanency Review Order (PRO), 7/11/12).

      Upon her discharge from BHS, Child was placed in treatment level

foster care receiving therapeutic support services; mobile therapy; trauma

focused therapy and medication management.          (See PROs, 10/10/12;

4/09/13; 6/25/13; 11/07/13).

      Child suffers extensive behavioral and mental health issues. She has

diagnoses of attention deficit hyperactivity disorder, post-traumatic stress

disorder, and bi-polar disorder. (See N.T. Hearing, 5/27/14, at 11).

      Mother was again absent at Child’s October 10, 2012, permanency

hearing, where she was found non-compliant with the permanency plan and

re-referred to BHS for a parenting capacity evaluation.      The trial court

permitted weekly, supervised visitation with Child at DHS.       (See PRO,

10/10/12, at 2).

      Mother, who was incarcerated at the time, remained non-compliant

with the permanency plan as of the January 9, 2013, permanency review

hearing. (See PRO, 1/09/13, at 1). Child testified at Mother’s preliminary

hearing on November 19, 2012, detailing the physical abuse she suffered at

Mother’s hands. (See N.T. Hearing, 5/27/14, at 14). The matter was held

over for trial.




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        Mother remained incarcerated as of the April 9, 2013, permanency

review hearing at which the trial court noted the criminal court’s outstanding

no contact order. (See PRO, 4/09/13, at 2).

        Mother remained non-compliant at the permanency review hearing on

June 25, 2013, where the trial court acknowledged DHS’ outreach to Mother

in prison and Mother’s failure to respond. The trial court listed the matter

for a goal change/involuntarily termination of parental rights hearing. (See

PRO, 6/25/13, at 2).         DHS filed Goal Change/Involuntary Termination of

Parental Rights petitions against Mother, Child’s father, W.M., and unknown

father on October 21, 2013.

        The case was continued at the next three scheduled listings. Child was

an inpatient at BHS pursuant to a 302 commitment4, as of February 27,

2014, where she remained at the time of the May 27, 2014, goal

change/involuntary termination of parental rights hearing.        (See PRO,

5/27/14, at 1).

        At the May 27, 2014, hearing, DHS presented the testimony of DHS

social worker Amos Suah and entered exhibits into evidence.       Mother was

brought to the hearing from prison.5


____________________________________________


4
    See 50 Pa.C.S.A. § 7302.
5
  Mother made a brief statement on her own behalf at the close of the
hearing. She was neither questioned nor cross-examined.



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       Mr. Suah testified that DHS had made referrals for services to address

Child’s mental health needs for the past four to five years.        (See N.T.

Hearing, 5/27/14, at 12). The trial court had repeatedly referred Mother to

BHS for mental health services and had repeatedly found Mother non-

compliant with the permanency plan.

       Child expressed to Mr. Suah on more than one occasion that she wants

no contact or visits with Mother. (See id. at 14-15). Mr. Suah testified that

Child shares no bond whatsoever with Mother. (See id. at 16). According

to Mr. Suah, termination of Mother’s parental rights will not result in any

harm to Child, whose best interest mandates a goal of adoption. (See id. at

16-17).

       The trial court entered its order terminating Mother’s parental rights

pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b), and changing

Child’s goal to adoption on May 27, 2014.        Mother timely appealed. 6   On

October 3, 2014, Mother’s counsel filed a motion to withdraw as counsel and

a brief pursuant to Anders v. California, 386 U.S. 738 (1967) stating his

belief that “this appeal in its present procedural posture is wholly frivolous

and without support in the law or the facts.”         (Motion to Withdraw as

Counsel, 10/03/14, at unnumbered page 1 ¶ 4). Counsel has submitted to

____________________________________________


6
 Mother filed a Rule 1925(b) statement on June 23, 2014 simultaneously
with her notice of appeal. The court entered its Rule 1925(a) opinion on July
31, 2014. See Pa.R.A.P. 1925.



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this Court a copy of his letter to Mother, enclosing a copy of the Anders

brief, informing her of the motion to withdraw, and advising her of her right

to retain new counsel or proceed with the appeal pro se.         (See id. at

unnumbered page 5). On October 27, 2014, this Court, having found that

counsel erroneously advised Mother that, if this Court granted him leave to

withdraw, that she would have the right to proceed pro se or retain new

counsel, permitted Mother to respond within thirty days. (See Per Curiam

Order, 10/27/14 (“Appellant’s right to raise any additional points she deems

worthy of this Court’s attention, pro se or with private counsel, is not

contingent upon the granting of [counsel’s] request to withdraw.”)). Mother

timely   responded   pro   se.   (See   Mother’s   Response,   11/06/14,    at

unnumbered pages 1-5).

      It is well-settled that “[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.” Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)).

      In In re V.E., 611 A.2d 1267 (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


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J-S10014-15


to withdraw from representation and must submit an Anders brief. See id.

at 1275.   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.            See id. at 1273.

Thereafter, this Court examines the record and determines whether the

appeal is wholly frivolous. See id.

      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.

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

      The 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 357 (citation omitted).

Our Supreme Court stated:




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             . . . 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 357-58 (citations omitted).

      Here, we conclude that counsel has substantially complied with the

Anders and Santiago requirements.             He has submitted a brief that

summarizes the case, referred to anything that might arguably support the

appeal, and explains why he believes the appeal is frivolous. (See Anders

Brief, at 7-23). Counsel has filed a motion to withdraw, sent Mother a letter

advising her that he concluded that there are no non-frivolous issues,

provided her with a copy of the Anders brief, and notified her of her right to

retain new counsel or proceed pro se. (See Motion to Withdraw as Counsel,

10/03/14, at unnumbered pages 1, 5).          Because counsel has substantially

complied with the dictates of Anders and Santiago, we will undertake our

own review of the appeal to determine it if it wholly frivolous. See In re

V.E., supra at 1276.

      The Anders Brief raises the following issues for our review:

      The Global Question

      Whether there is anything in the record that might arguably
      support the appeal that obviates a conclusion that the appeal is
      frivolous[?]

      Specific Areas of Inquiry

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     [1] Whether under the Juvenile Act, 42 Pa.C.S.A. Section
     6351, and 55 Pa. Code Section 3130.74, in accordance with the
     provisions of the federal Adoption and Safe Families Act, 42
     U.S.C. Section 671, et seq., reasonable efforts were made to
     reunite the Mother with her Child and whether the goal change
     to adoption was the disposition best suited to the safety,
     protection and [physical], mental and moral welfare of Child[?]

     [2] Whether it was proven by clear and convincing evidence
     that Mother’s parental rights should be terminated under
     Sections 2511 (a)(2) and 2511 (b)[?]

(Anders Brief, at 6).

     Our standard of review is as follows:

           . . . In an appeal from an order terminating parental
     rights, our scope of review is comprehensive: we consider all the
     evidence presented as well as the trial court’s factual findings
     and legal conclusions. However, our standard of review is
     narrow: we will reverse the trial court’s order only if we conclude
     that the trial court abused its discretion, made an error of law, or
     lacked competent evidence to support its findings. The trial
     judge’s decision is entitled to the same deference as a jury
     verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

Further, we have stated:

           Where the hearing court’s findings are supported by
     competent evidence of record, we must affirm the hearing court
     even though the record could support an opposite result.

                  We are bound by the findings of the trial court
           which have adequate support in the record so long
           as the findings do not evidence capricious disregard
           for competent and credible evidence. 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.
           Though we are not bound by the trial court’s
           inferences and deductions, we may reject its

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           conclusions only if they involve errors of law or are
           clearly unreasonable in light of the trial court’s
           sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     In order to affirm the termination of parental rights, this Court need

only agree with any one subsection of section 2511(a), in addition to

subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

     Requests to have a natural parent’s parental rights terminated are

governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 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.



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23 Pa.C.S.A. § 2511(a)(1), (b).

      It is well-settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard that requires evidence that is “so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In

re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,

            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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation

omitted).

      To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrated a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.

Super. 2003).

      With respect to section 2511(a)(1), our Supreme Court has held:




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              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
        Section 2511(b).

In re Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998) (citation

omitted). Further,

        . . . the trial court must consider the whole history of a given
        case and not mechanically apply the six-month statutory
        provision. The court must examine the individual circumstances
        of each case and consider all explanations offered by the parent
        facing termination of his or her parental rights, to determine if
        the evidence, in light of the totality of the circumstances, clearly
        warrants the involuntary termination.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (citations omitted).

        The Adoption Act7 provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”      23 Pa.C.S.A. § 2511(b).   It does not make specific

reference to an evaluation of the bond between parent and childm, but our

case law requires the evaluation of any such bond.         See In re E.M., 620

A.2d 481, 483 (Pa. 1993). However, this Court has held that the trial court

is not required by statute or precedent to order a formal bonding evaluation



____________________________________________


7
    23 Pa.C.S.A. §§ 2101-2938.



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performed by an expert.      See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.

Super. 2008).

      We now turn to the first question presented in counsel’s Anders brief,

whether anything in the record might obviate the conclusion that the appeal

is frivolous.

      Here, the record reflects that Mother abused Child physically and

mentally to the point that Child acted out by threatening and attacking other

children in school.     (See Dependency Petition, 4/03/12, at unnumbered

pages 7-8). At the time of the hearing, Child’s condition had deteriorated to

the point that she was hospitalized to prevent her from harming herself.

(See N.T. Hearing, 5/27/14, at 11).

      DHS began to offer services to Mother when it initiated IHPS in July of

2011. (See Dependency Petition, 4/03/12, at unnumbered page 7). DHS

established FSP objectives for Mother in April of 2013. (See FSP, 5/30/13).

A review of the trial court’s PROs reveals that Mother made no attempt to

comply with the FSP.      (See PROs, 7/11/12; 10/10/12; 1/09/13; 4/09/13;

6/25/13).       There is nothing in the record that would prevent us from

concluding that the appeal is frivolous.

      The second question presented is whether DHS made reasonable

efforts to reunite Mother with Child and whether the goal change to adoption

was the disposition best suited to the safety, protection and physical, mental

and moral welfare of Child. (See Anders Brief, at 6).


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      We need not address the first part of this question because our

Supreme Court recently held that it is not necessary to demonstrate that an

agency had made reasonable efforts to reunite a parent with their child

before a parent’s rights may be terminated.     See In re D.C.D., 105 A.3d

662, 672-73 (Pa. 2014).

      Here, the record reflects that Mr. Suah testified about Child’s best

interest.    According to Mr. Suah, Child shares no bond whatsoever with

Mother, and the termination of Mother’s parental rights will not result in any

harm to Child. (See N.T. Hearing, 5/27/14, at 16). He stated that Child’s

best interests mandate a goal of adoption.      (See id. at 16-17).       Child

expressed to Mr. Suah on more than one occasion that she wants no contact

or visits with Mother. (See id. at 14-15). The trial court credited Mr. Suah’s

testimony.     (See Trial Court Opinion, 7/31/14, at unnumbered page 5).

Accordingly, termination of Mother’s parental rights will serve Child’s best

interests. See 23 Pa.C.S.A. § 2511(b).

      Our review of the record reveals that the trial court’s decision to

terminate Mother’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)

and (b), and to permit Child’s adoption without notice to or consent from

Mother, is supported by clear and convincing evidence, and that there was

no abuse of the trial court’s discretion.    See In re L.M., supra at 511.

Furthermore, this Court has conducted an independent review of the record

as required by In re V.E. and finds that no non-frivolous issues exist.


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     Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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