In re SMB

856 A.2d 1235

In re: S.M.B., a Minor,

Appeal of: D.J., Natural Mother, Appellant.

In re: A.M.J., a Minor,

Appeal of: D.J., Natural Mother, Appellant.

In re: G.G.B.,

Appeal of: D.J., Mother, Appellant.

Superior Court of Pennsylvania.

Submitted February 9, 2004.

Filed August 23, 2004.

John J. Grenko, Reading, for appellant.

Mark R. Sprow, Reading, Guardian Ad Litem, for appellee.

Matthew H. Doll, Reading, for Berks County, appellee.

BEFORE: LALLY-GREEN, BOWES and CAVANAUGH¹, JJ.

OPINION BY BOWES, J.:

¶ 1 Appellant, D.J. ("Mother"), appeals from the order of the Court of Common Pleas of Berks County involuntarily terminating her parental rights to her three children, G.G.B., born May 19, 1994, S.M.B., born June 22, 2000, and A.M.J., born May 4, 2001. On appeal, Mother's counsel argues this appeal is frivolous and seeks to withdraw.

¶ 2 In the present case, we note that appellate counsel has contemporaneously filed a petition for leave to withdraw as counsel as well as an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In In re V.E., 417 Pa.Super. 68, 611 A.2d 1267 (1992), this Court extended the Anders principles by applying the rationale underlying Anders to appeals involving the termination of parental rights. Thus, the briefing requirements of Anders are appropriate and applicable in an appeal from an order terminating parental rights.

¶ 3 When considering an Anders brief, this Court may not review the merits of the underlying issues until we address counsel's request to withdraw. In order to comply with Anders and its Pennsylvania progeny, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous;

(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and

(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

Commonwealth v. Ferguson, 761 A.2d 613, 619 (Pa.Super.2000); see also In Re: Adoption of V.G., 751 A.2d 1174 (Pa.Super.2000) (quoting Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628, 629 (1990)). After an appellate court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination of the record to determine whether the appeal is wholly frivolous. Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997).

¶ 4 The record indicates that on December 16, 2003, appellate counsel filed a petition for leave to withdraw. The petition states that Mother has failed to maintain contact with counsel regarding the viability of the appeal. Counsel represents that he conscientiously and thoroughly reviewed the record and concluded that the appeal would be frivolous. In addition, counsel has filed a brief raising all issues that might possibly support an appeal, has furnished Mother with a copy, and has advised Mother of her appellate rights and her right to retain private counsel or proceed with the appeal pro se. Based on our review of the record, we conclude that counsel has complied with the requirements set forth in Anders.

¶ 5 We now must determine whether Mother's claim is wholly frivolous. The Anders brief filed by counsel raises three issues, all of which advance the same argument: that the inferences and conclusions of the trial court are not supported by the record and law and cannot provide a basis for terminating parental rights. After a thorough and independent review of the entire record, we do not discern any additional issues for appeal. Accordingly, we address the issues raised in counsel's Anders brief.

¶ 6 Mother contends that Berks County Children and Youth Services ("BCCYS") did not prove by clear and convincing evidence that her parental rights should be terminated and that termination of her parental rights serves the welfare of her three children. Brief for Mother at 4.

¶ 7 We begin by stating our scope and standard of review:

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. See In re K.C.W., 456 Pa.Super. 1, 689 A.2d 294, 298 (1997). Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Id. 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 a jury verdict. See In re Child M., 452 Pa.Super. 230, 681 A.2d 793, 800 (1996). 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. See In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 742 (1992).

In Re C.S., 761 A.2d 1197, 1199 (Pa.Super.2000).

¶ 8 BCCYS initially became involved with Mother and her children in 1998, when G.G.B. was three years old, and before S.M.B. and A.M.J. were born. Mother has three other children who are not subjects of the present appeal.² In April 1998, BCCYS caseworkers and the police arrived at Mother's apartment searching for a relative of Mother's boyfriend, C.B. The apartment had an odor of marijuana. Three-year-old G.G.B. had been left unattended with four-year-old S.J. in a room with an open, unscreened window. BCCYS met with the family on May 27, 1998, but nothing more was done at that time. N.T., 7/3/03, at 10. BCCYS learned that Mother had given birth on September 11, 1998, to a premature infant, C.F.B., who required a sleep apnea monitor as well as the supervision of an adult trained in cardio-pulmonary resuscitation. The hospital paid for emergency phone services in the residence and provided Mother with the services of visiting nurses. In late September 1998, a visiting nurse noted that Mother had left C.F.B. alone while she walked her older children to school. The record also indicates that Mother had not taken C.F.B. to the pediatrician for his required shots. The situation subsequently was rectified and BCCYS had no further contact with Mother until September 11, 2000. Id. at 10-11.

¶ 9 On that date, Mother asked BCCYS to place her four children in foster care until she could "get her life in order." Id. at 12. At that time, S.J. was seven years old, G.G.B. was six years old, C.F.B. was two years old, and S.M.B. was three months old. The BCCYS caseworker, Scott Pasquale, noted that the apartment was small, filthy, and cluttered, and it had an overpowering smell. Id. at 13. Two days later, on September 13, 2000, Mother signed a thirty-day voluntary placement agreement and committed to parenting and budgeting classes. Id. at 13. In placement, it was apparent that the children suffered from a myriad of developmental and psychological problems. C.F.B. showed signs of fetal alcohol syndrome and suffered from hyperactivity and sleeping and eating disorders. He did not speak and required constant supervision. G.G.B. had speech problems. Both C.F.B. and S.M.B. had hernias that required immediate medical attention. G.G.B. stated that her father shot needles with white powder into his arms. S.J. stated that there were bugs and rats in the home. Id. at 14-15. On October 7, 2000, Mother sent her sons S.J. and C.F.B. to live with her aunt in Philadelphia and sent her daughters G.G.B. and S.M.B. to live with another aunt. BCCYS closed the case on November 20, 2000. Id. at 15.

¶ 10 In December 2000, BCCYS was notified by the aunt caring for the two boys that Mother had disappeared and her whereabouts were unknown. BCCYS located Mother, and she revealed that she was pregnant with her third daughter, A.M.J. Id. at 16.

¶ 11 In September 2001, Mother, her boyfriend C.B., and her three daughters, G.G.B., S.M.J., and A.M.J., moved into the home of C.B.'s sister ("Mrs.B."). Mother's boys continued to reside in Philadelphia with their great-aunt. Shortly thereafter, Mrs. B. contacted BCCYS and informed the agency of numerous issues including Mother's substance abuse, sexual involvement with Mrs. B.'s paramour, all-night partying and failure to care for her children. Specifically, Mrs. B. noted that G.G.B. had been sent home from school due to severe body odor and that Mother had failed to follow up on medical appointments for C.F.B., who was residing with another aunt. Mary Lou Covington of Covington Counseling, who was involved with the family, expressed concerns about Mother's and C.B.'s drug use and its impact on the children. Id. at 18.

¶ 12 In January 2002, Mother contacted BCCYS, again requesting placement for G.G.B., S.M.B., and A.M.J. Mother indicated that she had no housing and was unable to provide for her children. Id. at 19. Mother eventually found a friend with whom she could reside, but there was no room for the children. Id. BCCYS caseworker, Elizabeth Cadwalader, noted that the children were dirty and smelled and that Mother was annoyed that she had to wait a few days in order for the agency to take the children. Id. at 20. On January 16, 2002, Mother again signed a voluntary placement agreement. Thereafter, the court declared G.G.B., S.M.B., and A.M.J. dependent children and granted BCCYS temporary custody for placement purposes. Id. at 22.

¶ 13 From January 16, 2002, until July 16, 2002, BCCYS offered Mother a plan of services, which included monthly casework sessions, parenting classes, and domestic violence evaluations. Visits with the children were also scheduled for a variety of purposes including special occasions such as G.G.B.'s birthday and medical appointments. Mother's attendance and participation in these sessions was sporadic at...