In Re: L.B., Appeal of: J.H.

J-S05014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.B. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: J.H., FATHER :

:

:

:

:

: No. 1296 WDA 2018

Appeal from the Order Entered July 31, 2018

In the Court of Common Pleas of Warren County Civil

Division at No(s): CP-62-DP-0000009-2018

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J. FILED MARCH 19, 2019

J.H. (“Father”) appeals from the order that (1) adjudicated Father’s son,

L.B. (“Child”) (born April 2016), dependent; (2) determined that aggravated

circumstances existed as to Father; (3) set Child’s initial permanency goal as

adoption; and (4) directed that reasonable efforts toward reunification were

not warranted.1 Father’s court-appointed counsel has filed a petition for leave

to withdraw as counsel and a brief pursuant to Anders v. California, 386

U.S. 738 (1967). We grant counsel’s petition, and affirm the order.

The trial court set forth the following procedural and factual history:

On July 2, 2018, Mother brought [C]hild to the Warren General

Hospital emergency room after consulting [Warren County

Children and Youth Services (“CYS”)] regarding multiple bruis[es]

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 Retired Senior Judge assigned to the Superior Court.

1Child’s mother, H.B. (“Mother”), did not file a notice of appeal and has not

participated in this appeal.

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on the child that Mother claimed w[ere] not present the night

before. Upon investigation and interview, Mother admitted to

repeated physical abuse of [C]hild. She is currently incarcerated

at Warren County Jail. [Father] is also incarcerated, and is

currently housed at SCI Fayette. He is serving sentences for

reckless endangerment and aggravated indecent assault of a

victim under 16. [Father] is also a current registered sex offender.

His minimum release date is January 2020, with a maximum of

February 2027. He had his rights to another child involuntarily

terminated in 2015. Although [Father] lived with Mother for a

short period, Mother left before giving birth. Therefore, [Father]

has never met or seen [Child]. [C]hild’s paternity was not

established until July 2018.

At the Adjudicatory Hearing [on July 30, 2018], testimony

revealed [C]hild suffers significant developmental delays, which

require extensive early intervention services, speech therapy, and

physical therapy. [C]hild also regularly meets with a Behavioral

Specialist and a TSS since being placed in foster care. [C]hild

requires vigilant and attentive parenting to fully and adequately

meet his special needs. At the time of the hearing, CYS sent

letters to 37 relatives to find a fit and willing relative, none of

which have established any form of relationship with [C]hild.

[Father]’s family was unaware of the existence of [C]hild until

recently. [C]hild’s current foster home has experience with

another special needs child, and has been able to provide the

adequate attention and care [C]hild requires.

Following the Adjudicatory Hearing, the [c]ourt found CY[S] met

its proof by clear and convincing evidence that [C]hild is

dependent as both parents are currently incarcerated without any

indication of a release date. Therefore neither parent is able to

care for [C]hild. The [c]ourt additionally found aggravated

circumstances for both parents, and determined that no

reunification services need to be provided to both parents. The

aggravated circumstances for [Father] are due to his prior

involuntary termination of parental rights. [Father]’s prior child

was initially removed due to [Father]’s incapacity, abuse, and

neglect of the child. The child was permanently removed following

a temporary 6[-]month removal from the home without a

likelihood of the child’s return. The [c]ourt also found aggravated

circumstances due to [Father]’s charge of aggravated indecent

assault of a victim under 16.

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The [c]ourt further ordered no reunification efforts and no contact

between the parents and [C]hild due to the circumstances.

[Father] has no prior established relationship with [C]hild. He

failed to complete the required sex offender counseling per court

order, and also risked death upon inhabitants of an entire

apartment building, including a 2[-]year[-]old child, after

disengaging a gas line in the building. The [c]ourt further noted

that [Father] will not be out into the community for at least 18

months, in 2020. Therefore, the [c]ourt finds requiring

reunification would be to place [C]hild’s permanency on hold,

which the law does not require nor encourage.

The [c]ourt also ordered the establishment of [C]hild’s primary

placement goal to adoption and permitting a cease of all

reunification efforts, with a concurring goal of placement with a fit

and willing relative. . . .

Trial Court Opinion, 9/7/18, at 1-2 (footnote omitted).

Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal. On November 16, 2018, Father’s counsel, Elizabeth

K. Feronti, Esquire, filed a petition for leave to withdraw as counsel and an

Anders brief, which we must address before reviewing the merits of this

appeal. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

In In re J.D.H., 171 A.3d 903, 906 (Pa. Super. 2017), this Court

extended the Anders principles to appeals involving goal change orders.

Further, “the major thrust of Anders . . . is to assure that counsel undertakes

a careful assessment of any available claim that an indigent appellant might

have.” Commonwealth v. Santiago, 978 A.2d 349, 358 (Pa. 2009). The

Court stated that this “is achieved by requiring counsel to conduct an

exhaustive examination of the record and by also placing the responsibility on

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the reviewing court to make an independent determination of the merits of

the appeal.” Id.

In order to be permitted to withdraw, counsel must meet three

procedural requirements: 1) petition for leave to withdraw and state that,

after making a conscientious examination of the record, counsel has

determined that the appeal is frivolous; 2) furnish a copy of the Anders brief

to the appellant; and 3) advise the appellant that he or she has the right to

retain private counsel or raise, pro se, additional arguments that the appellant

deems worthy of the court’s attention. See Commonwealth v. Cartrette,

83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). With respect to the third

requirement, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005).2

Additionally, an Anders brief must 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;

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2Although counsel initially did not attach a copy of her letter to Father to the

petition to withdraw, the letter, dated November 16, 2018, was filed with this

Court on January 8, 2019.

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(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.

Santiago, 978 A.2d at 361.

Instantly, Father’s counsel filed a petition to withdraw which complies

with the foregoing procedural requirements. In addition, counsel filed a brief,

which includes a summary of the history and facts of the case, potential issues

that could be raised by Father, and her assessment of why those issues are

meritless, with citations to relevant legal authority. Therefore, Father’s

counsel has satisfied the procedural requirements of Anders and Santiago.

We next proceed to review the issues outlined in the Anders brief. In

addition, we must “conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(citation and footnote omitted).

Counsel’s Anders brief presents the following issues:

1. Did the [t]rial [c]ourt err and abuse its discretion by

granting Warren County Children and Youth’s Petition for

Dependency?

2. Did the [t]rial [c]ourt err and abuse its discretion by

granting Warren County Children and Youth’s Motion for

Aggravated Circumstances?

3. Did the [t]rial [c]ourt err and abuse its discretion by setting

the initial primary placement goal at adoption and ordering no

reunification with the father?

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4. Did the [t]rial [c]ourt err and abuse its discretion by failing

to recuse upon request of the father because of pending Judicial

Conduct Review Board complaints that were filed by [F]ather

against The Honorable Gregory J. Hammond regarding another

matter that occurred prior to the dependency proceedings?

Father’s brief at 7 (suggested answers omitted).3

Our standard of review for dependency cases is as follows:

The standard of review in dependency cases requires an appellate

court to accept the findings of fact and credibility determinations

of the trial court if they are supported by the record, but does not

require the appellate court to accept the lower court’s inferences

or conclusions of law. Accordingly, we review for an abuse of

discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted). “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.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation

omitted).

[T]o adjudicate a child dependent, a trial court must determine,

by clear and convincing evidence, that the child:

is without proper parental care or control,

subsistence, education as required by law, or other

care or control necessary for his physical, mental, or

emotional health, or morals. A determination that

there is a lack of proper parental care or control may

be based upon evidence of conduct by the parent,

guardian or other custodian that places the health,

safety or welfare of the child at risk.

42 Pa.C.S.A. § 6302. “Clear and convincing” evidence has been

defined as testimony that is “so clear, direct, weighty, and

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3 We have reordered Father’s issues for ease of disposition.

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convincing as to enable the trier of facts to come to a clear

conviction, without hesitancy, of the truth of the precise facts in

issue.” In re C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997)

(citation omitted).

In accordance with the overarching purpose of the Juvenile Act

“[t]o preserve the unity of the family wherever possible,” see 42

Pa.C.S.A. § 6301(b)(1), “a child will only be declared dependent

when he is presently without proper parental care and when such

care is not immediately available.” In re R.T., [ ] 592 A.2d 55,

57 (Pa. Super. 1991) (citation omitted). This Court has defined

“proper parental care” as “that care which (1) is geared to the

particularized needs of the child and (2) at a minimum, is likely to

prevent serious injury to the child.” In re C.R.S., supra at 845

(citation omitted).

In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).

In his first issue, Father challenges the trial court’s conclusion that Child

is dependent. As an initial matter, this claim is waived as Father did not

preserve it at the dependency proceeding. At the hearing, counsel for Father

stated: “we are agreeing with the dependency at this time, because [Father]

can’t do anything to provide for the child at this moment.” N.T., 7/30/18, at

132.

In any event, it is clear the trial court did not err in finding Child

dependent. As the court explained:

Here, the [c]ourt found the child dependent, in regards to

[Father], under subsection 1 and 10. [Father] in this case is

currently incarcerated in SCI Fayette with a minimum release date

of January 2020 and a maximum of February 2027. Therefore,

[Father] is unable to currently provide proper care or control for

the child at this time. The [c]ourt also notes that the child in this

case has significant development delays. The child needs

attentive and vigilant parental guidance to provide the child with

everything he needs to become a healthy and functioning member

of society. [Father] is not able to properly and adequately provide

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for such needs at this time due to incarceration, which will last for

at least another year.

Trial Court Opinion, 9/7/18, at 5.

The record supports the trial court’s conclusion that Child is dependent.

Father is currently incarcerated, with a minimum release date of January

2020. See N.T., 7/30/18, at 122. Further, at the time of the hearing, Mother

was also incarcerated as a result of charges related to her abuse of Child. See

id. at 46, 86-87. Accordingly, as both Child’s parents were incarcerated at

the time of the hearing, the court did not err in adjudicating Child dependent

because Child lacked proper parental care or control.

Next, we address Father’s second and third issues, regarding the trial

court’s conclusion that aggravated circumstances exist as to Father, that no

efforts need to be made to reunify Father and Child, and that Child’s initial

permanency goal should be adoption.

The framework for the court’s analysis is well settled. If the trial court

determines that a child is dependent and aggravated circumstances have been

alleged by either the county agency or by the child’s attorney, the court must

also determine whether, by clear and convincing evidence, aggravated

circumstances exist. 42 Pa.C.S.A. § 6341(c.1). The Juvenile Act defines

“aggravated circumstances” as follows, in relevant part.

“Aggravated circumstances.” Any of the following circumstances:

...

(3) The parent of the child has been convicted of any of the following

offenses where the victim was a child:

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(ii) a felony under 18 Pa.C.S. § 2702 (relating to aggravated

assault), 3121 (relating to rape), 3122.1 (relating to statutory

sexual assault), 3123 (relating to involuntary deviate sexual

intercourse), 3124.1 (relating to sexual assault) or 3125 (relating

to aggravated indecent assault).

...

(5) The parental rights of the parent have been involuntarily terminated

with respect to a child of the parent.

...

42 Pa.C.S.A. § 6302. If the trial court determines that aggravated

circumstances exist, it “shall determine whether or not reasonable efforts . . .

to preserve and reunify the family shall be made or continue to be made. . .”

42 Pa.C.S.A. § 6341(c.1). A court may end reasonable efforts at its discretion.

See In re L.V., 127 A.3d 831, 839 (Pa. Super. 2015) (citation omitted).

Regarding the disposition of a dependent child, subsections 6351(e), (f), (f.1),

and (g) of the Juvenile Act provide the trial court with the criteria for its

permanency plan for the subject child. Pursuant to these subsections, the

trial court is to determine the disposition that is best suited to the safety,

protection and physical, mental and moral welfare of the child.

With respect to the court’s finding of aggravated circumstances, the

court noted that Father had been convicted of aggravated indecent assault

where the victim was less than 16, and that his parental rights were

involuntarily terminated with respect to another child. See Trial Court

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Opinion, 9/7/18, at 6. Accordingly, the court concluded that aggravated

circumstances exist as to Father. See id.

The record supports the trial court’s conclusion that aggravated

circumstances exist. Here, CYS filed a motion for a finding of aggravated

circumstances on July 12, 2018. At the hearing, CYS entered into evidence

the decree involuntarily terminating Father’s parental rights to another child,

as well as Father’s guilty plea to aggravated indecent assault with a

complainant less than 16.4 See CYS’ Exhibits 1 and 7. Father testified,

admitting that his parental rights to his first child were involuntarily

terminated. See N.T., 7/30/18, at 122. He also admitted that he pled guilty

to aggravated indecent assault, and that the victim was 15. See id. at 120.

The evidence clearly established aggravated circumstances as to Father,

as his parental rights to another child were involuntarily terminated, and he

has been convicted of aggravated indecent assault where the victim was 15.

Accordingly, the court did not err when it concluded that aggravated

circumstances exist as to Father.

Once the court made a finding of aggravated circumstances, it was

required to determine whether or not reasonable efforts to preserve and

reunify the family should be made. The court concluded no efforts towards

reunification should be made, noting Father’s lack of contact with Child, as

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4 18 Pa.C.S.A. § 3125(a)(8).

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well as his criminal history and incarceration. See Trial Court Opinion, 9/7/18,

at 7. Due to Father’s criminal history, and lack of a relationship with Child,

the court also determined that Child’s placement goal should be adoption.

See id. at 7-8.

The record supports the trial court’s conclusions. Here, Father has

already had his rights terminated with regard to one child, and has sexually

assaulted a 15-year-old. Father has not begun sex offender counseling in

prison. See N.T., 7/30/18, at 124. While his minimum release date is January

2020, his maximum release date is February 2027. See id. at 122. Moreover,

Father has never met Child. See id. at 119.

Accordingly, the trial court did not err in determining that CYS did not

need to make efforts to reunify Child and Father, nor did it err in setting Child’s

initial permanency goal as adoption.

Last, we address Father’s contention that the trial court erred in failing

to recuse itself. We review a trial court’s decision to deny a motion to recuse

for an abuse of discretion. Vargo v. Schwartz, 940 A.2d 459, 471 (Pa.

Super. 2007). Indeed, our review of a trial court’s denial of a motion to recuse

is exceptionally deferential. Id. (“We extend extreme deference to a trial

court’s decision not to recuse[.]”). We have explained, “[w]e recognize that

our trial judges are honorable, fair and competent, and although we employ

an abuse of discretion standard, we do so recognizing that the judge himself

is best qualified to gauge his ability to preside impartially.” Commonwealth

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v. Harris, 979 A.2d 387, 391-392 (Pa. Super. 2009) (internal quotation marks

and citation omitted). Hence, a trial judge should grant the motion to recuse

only if a doubt exists as to his or her ability to preside impartially or if

impartiality can be reasonably questioned. See In re Bridgeport Fire

Litigation, 5 A.3d 1250, 1254 (Pa. Super. 2010).

In order to prevail on a motion for recusal, the party seeking recusal is

required “to produce evidence establishing bias, prejudice or unfairness which

raises a substantial doubt as to the jurist’s ability to preside impartially.” In

re S.H., 879 A.2d 802, 808 (Pa. Super. 2005). Here, Father failed to satisfy

his burden of production.

At the start of the hearing, Father’s counsel advised the court that

Father “filed a complaint regarding his criminal case. . .” with the Judicial

Conduct Review Board. See N.T., 7/30/18, at 10-11. Counsel wanted “to

bring that up to the [c]ourt’s attention, in case there is an issue where the

[c]ourt may feel that recusal is appropriate.” See id. at 11. The court

suggested that it was aware of some type of communication from Father

indicating “he was suing us,” but was not familiar with the details of the

correspondence. See id. Further, the court stated that it did not “allow

individuals to judge shop” by filing complaints, and that the court had heard

nothing from the Judicial Conduct Review Board suggesting they were

investigating any claim. See id. Accordingly, the court did not believe recusal

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was warranted. See id. Father’s testimony did not suggest any basis for his

purported complaint about the trial court.

We conclude that this issue also lacks merit. Father’s purported

complaint regarding the trial court, undeveloped from an evidentiary

standpoint, is insufficient. The trial court did not believe that recusal was

warranted. Further, based on the lack of any facts tending to raise a doubt

about the court’s ability to preside impartially, we conclude that the trial court

did not abuse its discretion in declining to recuse.

Having reviewed the issues raised in counsel’s Anders brief, we agree

with counsel for Father that the within appeal is wholly frivolous. 5 As such,

we affirm the order of the trial court, and grant counsel’s motion to withdraw.

Order affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/19/2019

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5Further, we note that our independent review of the record did not reveal

any additional, non-frivolous issues overlooked by counsel. See

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015).

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