In re K.K.S.

• Docket Number: 3140 EDA 2022,3141 EDA 2022,J-S26031-23
• Decision Date: 02 November 2023
• Parties: IN THE INTEREST OF: K.K.S., A MINOR APPEAL OF: L.S., MOTHER IN THE INTEREST OF: K.A.W., A MINOR APPEAL OF: L.S., MOTHER
• Court: Pennsylvania Superior Court

1

IN THE INTEREST OF: K.K.S., A MINOR APPEAL OF: L.S., MOTHER IN THE INTEREST OF: K.A.W., A MINOR APPEAL OF: L.S., MOTHER

Nos. 3140 EDA 2022, 3141 EDA 2022

No. J-S26031-23

Superior Court of Pennsylvania

November 2, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Decree Entered November 8, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000130-2022, CP-51-AP-0000131-2022

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM

McLAUGHLIN, J.

L.S ("Mother") appeals from the decrees terminating her parental rights as to her minor children, K.K.S. and K.A.W (collectively, "Children"). Mother's counsel has filed an Anders^[1] brief and a motion to withdraw as counsel. We grant counsel's motion to withdraw and affirm the termination decrees.

A panel of this Court previously summarized the background of this case:

On January 22, 2021, the Philadelphia Department of Human Services ("DHS") received a general protective services ("GPS") report alleging concerns about Mother's behavioral health and inappropriate discipline of [Children]. On that same date, the police were called to the home for an incident involving Mother and an older sibling of [Children]. While in the home, [Children] whispered to the police that they were afraid and asked them not to leave. [Children] stated that Mother kept a gun in the home, which she had used to threaten them. Pursuant to a search warrant, Mother produced the firearm and the police took possession of it.

While the police were still at Mother's home, the DHS investigator, Kim Hightower, arrived and interviewed [Children]. [C]hildren reported to her that Mother deprives them of food as a form of punishment and hits them with sticks and canes. In addition, [K.K.S.] explained that she was truant from school because Mother made her clean the house. During the ensuing hearing, Ms. Hightower testified that [Children] "appear[ed] to be very thin[, a]s if they were emaciated[.]" Moreover, she stated that Mother neglected to feed K.[A.W.] through a nasogastric tube as was required daily.

Interest of K.S., Nos. 1367 & 1368 EDA 2021, 272 A.3d 473 (Table), 2022 WL 122444, at *1 (Pa.Super. filed Jan. 13, 2022) (unpublished memorandum) (citations omitted).

The trial court adjudicated Children dependent and removed them from Mother's home. Id. at *2. Mother filed an appeal of the order of adjudication and we affirmed. Id. at *1.

On February 28, 2022, DHS filed a petition for involuntary termination of Mother's parental rights. A hearing on the petition was held on November 8, 2022. At the time of the hearing, Children were 13 and 17 years old. N.T., 11/8/22, at 17. Although Mother was served with notice of the termination hearing, she did not appear at the hearing. Id. at 4.

At the hearing, DHS presented the testimony of the Community Umbrella Agency ("CUA") Case Manager, Jared Burr. Burr testified that Mother's single case plan objectives remained the same throughout the case. They were: maintain contact with CUA, supervised line of sight/hearing visitation at the agency at Children's discretion, complete a parenting capacity evaluation, sign all necessary consents, undergo a Behavioral Health Services ("BHS") assessment and evaluation, participate in family therapy if appropriate, attend the Achieving Reunification Center ("ARC") for parenting, and submit to the Clinical Evaluation Unit ("CEU") for drug screens and assessment. Id. at 10-11. Of those objectives, Mother only completed a parenting program at ARC and submitted to one drug screen, which was negative. Id. at 11-15, 53, 57. Burr did not know Mother's current housing situation or where she was living. Id. at 27. Mother also had not been involved in providing any therapeutic care for Children or meeting their educational needs, nor had she inquired about those needs throughout the life of the case. Id. at 17-18.

Burr further indicated that Mother has not had contact with Children because Children do not want to see her. Id. at 16. Burr testified that Children did not want any type of contact with Mother "[d]ue to the trauma they've experienced prior to being adjudicated." Id. at 16, 27-28, 33-34. He stated that Children have a PTSD diagnosis due to past trauma from Mother. Id. at 17. Burr testified that there have been multiple stay-away orders entered in this case ordering Mother not to have any contact with Children, outside of arranged visitation. Id. at 27. The court also had entered stay-away orders for Mother to stay away from the previous CUA case manager and supervisor due to Mother's behaviors. Id. at 29-30.

Burr further testified that Children are in kinship care with S.G., who is a family friend. Id. at 19. He stated that S.G. wants to adopt Children and treats them like her own family. Id. at 19, 21. Burr indicated that S.G. meets all of Children's educational, medical, and therapeutic needs and provides them with love, safety, stability, and support. Id. at 19-20. He stated that Children refer to S.G. as "Mom" and have their primary parent-child relationship with her. Id. at 20, 34. Since being placed with S.G., Children have excelled in school and extracurricular activities, and K.A.W. no longer needs to be fed through an NG tube. Id. at 34-35. Burr also stated that Children's adult brother lives at S.G.'s home so they can be a family unit there. Id. at 35-36. Burr opined that it was in Children's best interest to be adopted by S.G. and it would cause Children significant harm if they were removed from S.G.'s home. Id. at 21, 37. Conversely, he testified that Children have not suffered any irreparable harm from their lack of contact with Mother throughout this case. Id. at 19-20.

Both Children testified at the termination hearing. They both indicated that it was their desire and intention to be adopted by S.G. Id. at 62-63.

At the conclusion of the hearing, the court terminated Mother's parental rights. Id. at 69. This appeal followed.

Counsel's Anders brief identifies the following issues:

1. Whether this Honorable Court should grant the request of undersigned counsel to withdraw pursuant to Anders v. California.

2. Whether the [t]rial [c]ourt abused its discretion and/or erred as a matter of law by finding the Philadelphia Department of Human Services established by clear and convincing evidence the grounds for termination of parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5) and (a)(8).

3. Whether the [t]rial [c]ourt abused its discretion and/or erred as a matter of law by holding that the developmental, physical, and emotional needs and welfare of the Children as set forth in 23 Pa.C.S.A. § 2511(b) would be best served by terminating Mother's parental rights.

Anders Br. at 4-5 (suggested answers omitted).

Before we consider whether the appeal is frivolous, we must first determine whether counsel has followed the procedures for withdrawing as counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (stating that "[w]hen faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel's request to withdraw"). To withdraw pursuant to Anders, counsel must: 1) "petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous;" 2) furnish a copy of the brief to the client; and 3) advise the client that he or she has the right to retain other counsel or proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc).

Additionally, in the Anders brief, counsel seeking to withdraw 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). If counsel meets all the above obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Id. at 355 n.5 (quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

Here, we find that counsel has complied with the above technical requirements. In her Anders brief, counsel has provided a summary of the procedural and factual history of the case with citations to the record. Further, counsel's brief identifies issues that could arguably support the appeal, as well as counsel's assessment of why the appeal is frivolous, with citations to the record. Additionally, counsel served Mother with a copy of the Anders brief and advised her of her right to proceed pro se or to retain a private attorney to raise any additional points she deemed worthy of this Court's review. See Motion to Withdraw, 6/9/23, at ¶ 4, Ex. A. Mother has not responded to counsel's motion to withdraw. As counsel has met the technical requirements of Anders and Santiago, we will proceed to the issues counsel has identified.

The issues raised in counsel's Anders brief challenge the sufficiency of the evidence supporting termination of Mother's parental rights under 23 Pa.C.S.A. § 2511(a) and (b).

We review an order involuntarily terminating parental rights for an abuse of discretion. In re G.M.S., 193 A.3d 395 399 (Pa.Super. 2018). In...