In re P.L.R.

• Docket Number: 946 MDA 2023,947 MDA 2023,J-A27014-23
• Decision Date: 22 December 2023
• Parties: IN THE INTEREST OF: P.L.R., A MINOR APPEAL OF: A.A.R., MOTHER IN THE INTEREST OF: P.L.R., A MINOR APPEAL OF: A.A.R., MOTHER
• Court: Pennsylvania Superior Court

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IN THE INTEREST OF: P.L.R., A MINOR APPEAL OF: A.A.R., MOTHER IN THE INTEREST OF: P.L.R., A MINOR APPEAL OF: A.A.R., MOTHER

Nos. 946 MDA 2023, 947 MDA 2023

No. J-A27014-23

Superior Court of Pennsylvania

December 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered June 9, 2023 In the Court of Common Pleas of Clinton County Juvenile Division at No(s): 2022-00015, CP-18-DP-0000037-2014

Appeal from the Order Entered June 7, 2023 In the Court of Common Pleas of Clinton County Orphans' Court at No(s): 2022-00015

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

LAZARUS, J.

A.A.R. (Mother) appeals from the orders, entered in the Court of Common Pleas of Clinton County, terminating her parental rights with respect to her child, P.L.R. (Child) (born 1/13), and changing the permanency goal

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from reunification to adoption.^[1] Counsel has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).^[2] Due to Mother's consistent failure to comply with court-ordered objectives to address longstanding safety concerns that prevent her from capably parenting Child, we affirm. We also grant counsel's petition to withdraw.

Clinton County Children and Youth Social Services Agency (CYS) first became involved with Child in 2014 following a report that J.W.B (Father)^[3] had abused child. Following an investigation by CYS, Child was placed in the custody of his maternal grandmother on May 6, 2015. Pursuant to court order,

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Mother and Father were to have supervised visits with Child. Child remained in the custody of maternal grandmother until maternal grandmother died on or about October 9, 2020. After maternal grandmother's death, the court granted custody of Child to maternal grandfather and maintained the conditions requiring Mother's and Father's visits to be supervised.

In October of 2021, CYS received a report that maternal grandfather had been permitting Father to have unsupervised visits with Child, including overnight visits during which Father and Child shared a bed, in violation of a court order dated December 4, 2020. See N.T. Termination Hearing, 4/12/23, at 10-11 (Caseworker Jennifer Weaver testifying that December 4, 2020 order required Father's visits be arranged and supervised by CYS). Following that report, CYS obtained legal and physical custody of Child pursuant to a shelter care order. See Shelter Care Order, 10/21/21. Child was immediately placed in foster care and on December 1, 2022, moved to his current foster home.^[4]

On December 3, 2021, following a hearing, the court adjudicated the Child dependent. Mother was incarcerated at the time of Child's adjudication and, pursuant to the court's order, Mother was to continue to have weekly one-hour supervised visits with Child, Zoom video visits while incarcerated, and longer in-person visits following her release. See Order, 12/3/21, at ¶ 7. Prior to the hearing, CYS submitted a permanency plan for Child to the court. Mother's goals were to schedule and attend supervised visits with Child, have

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appropriate conversations and interactions with Child, follow court orders, follow the recommendations of CYS, maintain contact with CYS and notify of any phone or address changes, sign requested releases of information, and participate in a drug and alcohol evaluation and follow recommendations of said evaluation. See Child Permanency Plan, 11/30/21, at 3. Mother had additional objectives while incarcerated, including maintaining her bond with Child through Zoom visits and practicing positive parenting skills. Id. at 8. During permanency review hearings held on January 3, 2022, April 4, 2022, June 3, 2022, September 22, 2022, December 23, 2022, and March 21, 2023, Mother's compliance and progress was initially moderate in January, but minimal at each hearing that followed.

Mother has acknowledged she suffers from addiction and substance abuse problems. Since Child's birth, Mother has attended inpatient treatment on at least six different occasions in 2015, 2016, 2021, and 2022. Mother has been unable to maintain her sobriety for a significant amount of time while Child has been in placement. Mother has also been incarcerated for significant periods of time since CYS's involvement. From the date of Child's placement until the date of the termination hearing, Mother had been incarcerated for more than 300 days.

Throughout Child's placement, Mother has had supervised visits with Child. Those visits were held at either CYS's offices or at the correctional facility where Mother was incarcerated. Due to COVID restrictions, many of the visits while Mother was incarcerated were Zoom video visits. Mother

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averaged two visits (video or in-person) per month during the period between Child's shelter care hearing and the date of the filing of the termination of parental rights petition.

In December 2022, Pursuant to court order, Mother's visits with Child were suspended due to Child exhibiting negative behaviors during and following visits with Mother.^[5] The court directed Mother to meet with a psychologist to implement a plan to re-engage with Child. However, Mother failed to follow through with additional meetings required to create and implement a successful plan.

Child has been diagnosed with autism, attention deficit hyperactivity disorder (ADHD), and oppositional defiant disorder. Child also has an individualized education plan (IEP) through Child's school. Mother has not participated in an active manner with either Child's treatment for Child's diagnoses or IEP.

On December 30, 2022, CYS filed petitions seeking to terminate Mother's and Father's parental rights. On April 12, 2023, the trial court held a termination hearing^[6] at which Mother, two CYS caseworkers, and Child's foster mother testified. On June 7, 2023, the trial court entered an order

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terminating Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act^[7] and an order changing the permanency goal from reunification to adoption. The trial court also issued an opinion the same day, stating its reasons for termination.^[8] See Trial Court Opinion, 6/7/23, at 11-16.

Mother filed timely notices of appeal. On September 5, 2023, counsel filed a petition for leave to withdraw and a brief with our Court, pursuant to Anders/McClendon, supra.^[9]

In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), our Court stated:

Counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating his or her parental rights, may, after a conscientious and thorough review of the record, petition this court for leave to withdraw representation if he or she can find no issues of arguable merit on which to base

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the appeal. Given the less stringent standard of proof required and the quasi-adversarial nature of a termination proceeding in which a parent is not guaranteed the same procedural and evidentiary rights as a criminal defendant, the court holds that appointed counsel seeking to withdraw representation must submit an Anders brief.

Id. at 1275. Moreover, we held that "any motion to withdraw representation, submitted by appointed counsel, must be accompanied by an advocate's brief, and not the amicus curiae brief delineated in [Commonwealth v.] McClendon, [434 A.2d 1185 (Pa. 1981)]." Id.; see also In re Adoption of R.I., 312 A.2d 601, 602 (Pa. 1973) ("[T]he logic behind . . . an individual in a criminal case being entitled to representation by counsel at any proceeding that may lead to 'the deprivation of substantial rights' . . . is equally applicable to a case involving an indigent parent faced with the loss of her child.").

In his Anders brief, counsel raises the following issues for our consideration:

1. Was there an abuse of discretion by the trial court by finding facts not in favor of Mother and terminating Mother's [p]arental rights under [subsections 2511(a)(1), (2), (5), (8), and (b)?]

2. Was there an abuse of discretion by the [t]rial [c]ourt by finding facts not in favor of Mother and changing the goal from reunification to adoption[?]

Anders Brief, at 8.

Before reaching the merits of the appeal, we must first address counsel's application to withdraw. To withdraw under 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 [Anders] brief to the [appellant]; and (3) advise the

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[appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citations omitted); see also In re Adoption of V.G., 751 A.2d 1174 (Pa. Super. 2000) (reiterating requirements counsel must satisfy before being permitted to withdraw in termination appeals).

With respect to the third Anders requirement, that counsel inform the appellant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [his or her] petition to withdraw a copy of the letter sent to [the] client advising him or her of their rights." Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must also comply with the following requirements:

(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

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