In re A.D.C., J-S57002-13

IN RE: A.D.C., A MINOR APPEAL OF: K.D.C., SR.

J-S57002-13

No. 1016 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

FILED OCTOBER 3, 2013

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the Decree entered May 2, 2013

in the Court of Common Pleas of Berks County

Orphans' Court, at No(s): 82398

BEFORE: PANELLA, MUNDY, and MUSMANNO, JJ.

MEMORANDUM BY PANELLA, J.:

K.D.C., Sr. ("Father"), appeals from the Decree entered on May 2, 2013, in the Berks County Court of Common Pleas, Orphans' Court Division, terminating his parental rights to his son, A.D.C. ("Child"), born in October of 2006, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).¹ We affirm. Additionally, we grant the Application/Petition for Leave to Withdraw Appearance ("petition to withdraw") filed by Father's counsel.

The relevant facts and procedural history of this case are as follows. Berks County Children & Youth Services ("BCCYS") became involved with this family in July 2003 based on concerns about Mother's mental health, drug and alcohol use, and failure to meet the medical, educational, andemotional needs of her minor children.² Trial Ct. Op., 6/25/13, at 4 (citing Exhibit 38 - Notes of the Caseworker, at 1). In October of 2007, four days prior to Child's first birthday, Father was arrested on federal drug-related and various other charges. Father has remained continuously incarcerated since that date. Id. On December 23, 2009, after Mother tested positive for cocaine on three occasions, BCCYS petitioned for and received emergency custody of Child. Trial Ct. Op. at 4. A dependency hearing occurred on December 30, 2009. Immediately following the hearing, the trial court issued a Dispositional Order, finding Child to be dependent and awarding temporary legal custody to BCCYS, with a primary goal of return to most appropriate parent and a concurrent plan of adoption.³ Dispositional Order, 12/30/09. On June 21, 2011, BCCYS returned Child to Mother's custody based on her compliance with court-ordered services. Trial Ct. Op. at 5.

On August 15, 2011, BCCYS filed a Motion for Review of Dispositional Order, alleging that Mother had "consciously deceived" BCCYS as to her ongoing contact with and the whereabouts of her paramour. Exhibit 2 - Motion for Review of Dispositional Order, 8/15/11. In that petition, BCCYSrequested "that a determination be made regarding whether the best interests of Child would be better served by remaining in the home with Mother or by transferring temporary custody back to BCCYS for placement purposes." Id. at 3. On September 6, 2011, the trial court issued a Permanency Review Order, granting custody to Mother subject to conditions prescribed by the trial court, among which was the requirement that Mother's paramour have no unsupervised contact with Child. Exhibit 5 - Permanency Review Order, 9/6/11.

On November 22, 2011, BCCYS took emergency custody of Child. The next day, BCCYS filed a Motion for Review of Dispositional Order, alleging that Mother had allowed her paramour to have unsupervised contact with Child, in violation of the trial court's Permanency Review Order. Exhibit 10 - Motion for Review of Dispositional Order, 11/23/11. On December 14, 2011, the trial court issued a Dispositional Order, finding Child to be dependent and awarding temporary legal custody to BCCYS, with a goal of return to Mother and a concurrent goal of adoption. Exhibit 14 - Dispositional Order, 12/14/11. Child has remained in BCCYS's custody since that date. Trial Ct. Op. at 4. At present, Child resides in a pre-adoptive foster home. Exhibit 39 - Child Preparation - Meeting Activity Summary Report, 2/26/13.

On January 6, 2012, BCCYS filed a petition for the involuntary termination of Father's parental rights to Child, alleging the elements of 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). On April 22, 2013, the trial courtheld a hearing on BCCYS' petition, at which Father testified by telephone from the Federal Correctional Institution in Fort Dix, New Jersey, and was represented by appointed counsel. Father testified that his earliest possible release date is June 12, 2016, after which he expects to reside at a halfway house. Notes of Testimony, 4/22/13, at 9. Father also testified that following his release he will have to complete "[a]bout five years" of parole supervision.⁴ Id. at 12. On May 2, 2013, the trial court entered the underlying Decree, terminating Father's parental rights to Child. On May 31, 2013, Father simultaneously filed a timely Notice of Appeal and a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On July 29, 2013, Father's counsel filed with this Court a petition to withdraw and accompanying Anders brief.

Initially, we address Father's counsel's petition to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders principles apply to appeals involving termination of parental rights. See In re S.M.B., 856 A.2d 1235 (Pa. Super. 2004). Anders and Santiago require counsel to: 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 or her of the right to retain new counsel, proceed pro se, or raise any additional points the appellant deems worthy of review. Santiago, 602 Pa. at 173-79, 978 A.2d at 358-61; In re Adoption of V.G., 751 A.2d 1174, 1176 (Pa. Super. 2000). Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa. Super. 1997)).

Here, the petition to withdraw states that counsel conscientiously and thoroughly reviewed the record of the proceedings, believes this appeal is frivolous, and informed Father of his appellate rights by letter. Counsel's Application/Petition for Leave to Withdraw Appearance, 7/29/13, at 1-2 (unpaginated). Counsel attaches a copy of the letter sent to Father, which states that counsel enclosed a copy of both the petition to withdraw and the Anders brief for Father's review. In the letter, counsel advises Father of his right to raise questions about the jurisdiction of the court and to questionthe legality of the trial court's decision as well as his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of the court's attention. Counsel's Letter to Father, 7/28/13, at 1 (unpaginated).

Counsel's Anders brief provides a detailed recitation of the facts and procedural history of the case, cites evidence that arguably supports 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, 602 Pa. at 178-79, 978 A.2d at 361. 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.

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

1. Did the [trial] court err by terminating [Father's] parental rights because [BCCYS] did not establish by clear and convincing evidence that [Father's] parental rights should be terminated?

2. Did the [trial] court err by terminating [Father's] parental rights because the evidence presented by [BCCYS] was insufficient to support the [trial] court's decision?

Anders Brief at 1.

We review appeals from the involuntary termination of parental rights according to the following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; [In re] R.I.S., [___ Pa. ___ , ___ , 36 A.3d 567, 572 (2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., [_Pa._], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, , 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike 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. R.J.T., 608 Pa. 9, 9 A.3d at 1190. 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;

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