J-S11029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: O.J.B. : PENNSYLVANIA : : APPEAL OF: N.B. : : : : : No. 1464 WDA 2019
Appeal from the Decree Entered August 22, 2019 In the Court of Common Pleas of Erie County Orphans’ Court at No(s): 65 in Adoption 2019
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: T.S.B. : PENNSYLVANIA : : APPEAL OF: N.B. : : : : : No. 1465 WDA 2019
Appeal from the Order Dated August 22, 2019 In the Court of Common Pleas of Erie County Orphans’ Court at No(s): 65A in Adoption 2019
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 29, 2020
N.B. (Father) appeals from the decrees involuntarily terminating his
parental rights to his daughters, O.J.B., born in June 2017, and T.S.B., born
in April 2016 (collectively, Children). Additionally, Father’s counsel (Counsel),
seeks to withdraw from representation pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. J-S11029-20
2009). Upon review, we grant Counsel’s petition to withdraw and affirm the
termination of Father’s parental rights.
Children were placed in the custody of Erie County Office of Children and
Youth (the Agency) on August 7, 2018, due to conditions associated with the
homelessness of Father and A.B. (Mother). N.T., 8/22/19, at 4. Also, the
Agency learned that Children were injured as a result of domestic violence
between Father and Mother, including non-specified bruising to O.J.B. and an
eye injury to T.S.B. Id. at 4, 25. As a result of Children’s injuries, Father was
charged with crimes related to child endangerment, which were pending at
the time of the underlying proceeding. Orphans’ Court Opinion, 10/2/19, at
6 n. 3.
Children were adjudicated dependent on August 27, 2018. The Agency
established permanency goals of reunification and required Father and Mother
to comply with the following family service plan (FSP) objectives: complete
mental health services, which included anger management and domestic
violence counseling; complete drug and alcohol services; participate in
random urine drug screens; maintain gainful employment; maintain safe and
stable housing; and participate in a parenting program that included hands-
on education during supervised visits with Children. Id. at 5-6.
Permanency review hearings occurred on November 14, 2018 and May
13, 2019. The juvenile court found that Father did not comply with any of his
-2- J-S11029-20
FSP objectives during either of the review periods. The court changed
Children’s permanency goal to adoption on May 13, 2019.
On July 3, 2019, the Agency filed petitions for the involuntary
termination of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (b). A hearing occurred on August 22, 2019,
during which the Agency presented the testimony of its caseworker, Melina
Harden. Father and Mother testified on their own behalf. During the hearing,
Children, then two and three years old, were represented by guardian ad litem
Christine Konzel, Esquire, who cross-examined all of the witnesses and argued
on the record and in open court that it was in Children’s best interests for the
parental rights of Father and Mother to be terminated.1 See N.T., 8/22/19,
at 53.
____________________________________________
1 Pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject of a contested involuntary termination proceeding has a statutory right to counsel who discerns and advocates for his or her legal interests, which our Supreme Court has defined as the child’s preferred outcome. See In re T.S., 192 A.3d 1080 (Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)). Further, the T.S. Court held, “if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal, there can be no conflict between the child’s legal interests and his or her best interests; as such, the mandate of Section 2313(a) of the Adoption Act that counsel be appointed ‘to represent the child,’ 23 Pa.C.S.A. § 2313(a), is satisfied where the court has appointed an attorney-guardian ad litem who represents the child’s best interests during such proceedings.” T.S., 192 A.3d at 1092-1093.
-3- J-S11029-20
By decrees dated August 22, 2019, and entered August 27, 2019, the
orphans’ court involuntarily terminated Father’s and Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). On September 23,
2019, Father timely filed notices of appeal, which this Court consolidated sua
sponte.2 That same day, Father’s court-appointed counsel filed a statement
of intent to file a brief pursuant to Anders v. California.3 See In re J.T.,
983 A.2d 771, 774 (Pa. Super. 2009) (holding that decision of counsel to
follow Pa.R.A.P. 1925(c)(4) procedure in a termination of parental rights case
was proper). The orphans’ court filed its Rule 1925(a) opinion on October 2,
2019.
2 Mother did not file notices of appeal.
3 Pa.R.A.P. 1925(c)(4) provides:
(c) Remand.
...
(4) In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upon remand, the trial court may, but is not required to, replace appellant's counsel.
Pa.R.A.P. 1925(c)(4).
-4- J-S11029-20
On December 23, 2019, Counsel filed a petition with this Court
requesting to withdraw from representation, and submitted a brief pursuant
to Anders and Santiago. We begin by reviewing Counsel’s request to
withdraw. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005) (“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.”) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.
Super. 1997)).
This Court “extended the Anders principles to appeals involving the
termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014).
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 [Anders] brief to the [appellant]; and 3) advise the [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) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). With respect to the third requirement of Anders, 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 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).
-5- J-S11029-20
Additionally, an Anders brief must comply with the following
substantive 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 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, Counsel filed a petition to withdraw certifying that he reviewed
the case and determined that Father’s appeal was frivolous. Counsel also filed
a brief that includes a summary of the history and facts of the case, the issues
raised by Father, the facts that arguably support the appeal, and Counsel’s
assessment of why the appeal is frivolous with citations to relevant legal
authority. Finally, Counsel attached to his petition a letter he sent to Father
pursuant to Millisock, supra. Therefore, Counsel complied with the
requirements of Anders and Santiago.
We must next “conduct a review of the record to ascertain if on its face,
there are non-frivolous issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc).
Counsel’s Anders brief raises the following two issues for our review:
-6- J-S11029-20
I. DID THE ORPHANS’ COURT COMMIT AN ABUSE OF DISCRETION OR ERROR OF LAW WHEN IT CONCLUDED THAT THE AGENCY ESTABLISHED SUFFICIENT GROUNDS FOR TERMINATION UNDER 23 Pa.C.S.A. § 2511?
II. DID THE ORPHANS’ COURT COMMIT AN ABUSE OF DISCRETION OR ERROR OF LAW WHEN IT CONCLUDED THAT TERMINATION OF [FATHER’S] PARENTAL RIGHTS WAS IN THE CHILDREN’S BEST INTERESTS UNDER SECTION 2511(b)?
Anders Brief at 7.
At the outset, we recognize:
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis
-7- J-S11029-20
concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
conclude that the certified record supports the decrees pursuant to Section
2511(a)(2) and (b), which provides:
(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2) and (b).
-8- J-S11029-20
This Court has explained that the moving party must produce clear and
convincing evidence with respect to the following elements of Section
2511(a)(2): (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003).
Pursuant to Section 2511(a)(2), parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. Further, the grounds for termination under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may include
acts of refusal as well as incapacity to perform parental duties. Id. at 337.
With respect to Section 2511(b), this Court has stated, “[i]ntangibles
such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). Further, the trial court “must also discern
the nature and status of the parent-child bond, with utmost attention to the
-9- J-S11029-20
effect on the child of permanently severing that bond.” Id. (citation omitted).
However, “[i]n cases where there is no evidence of any bond between the
parent and child, it is reasonable to infer that no bond exists. The extent of
any bond analysis, therefore, necessarily depends on the circumstances of the
particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008)
(citation omitted).
Here, the orphans’ court explained:
[I]n support of its order terminating Father’s parental rights, the court finds that[,] by his own admission[,] Father: (1) [s]uffers from untreated mental illness; (2) is essentially homeless (he occasionally stays with his mother); (3) is unemployed and not actively seeking employment; and, accordingly, (4) has failed to establish and maintain a lifestyle that would permit him to provide long-term care for Children. The court further finds that based on the credible testimony of the Agency caseworker, Ms. Harden, unrebutted by Father, Father failed to comply with required services both before and after his periods of incarceration in late 2018, and early 2019. Father failed to attend any mandated urine drug screens, which he understood were a necessary first step to obtaining visitation with Children. He has a history of substance abuse dating back to 2004, and has current drug-related charges pending, yet he refused recommended drug and alcohol treatment. To the extent Father asserts he was hindered in complying with the permanency plan by lack of transportation, the court finds his excuse wholly lacking in merit. Ms. Harden testified that Father repeatedly missed meetings, appointments, and urine drug screens without advance notice. Were [Father] serious about obtaining the Agency’s help in meeting his responsibilities under the permanency plan, he could and should have contacted the Agency to address his difficulties.
The court does not doubt that Father loves Children and desires their return; . . . Unfortunately, no evidence was presented to support a conclusion that the current conditions and causes of Father’s parental incapacity will be remedied in the foreseeable future. . . .
- 10 - J-S11029-20
Orphans’ Court Opinion, 10/2/19, at 9-10.
Our review supports the court’s findings. The Agency caseworker, Ms.
Harden, testified that Father and Mother arrived late for Children’s
adjudication hearing. N.T., 8/22/19, at 6. Ms. Harden testified that Father
and Mother entered the courthouse after the hearing concluded and as she
was leaving; however, she and her supervisor had an opportunity to speak
with them. Id. at 6-7. Ms. Harden testified:
Q. And what was discussed at that time with the parents?
A. We had addressed with them that they were going to be offered the court-ordered treatment plan, mental health services, drug and alcohol and so on. They were going to need to remain in contact with me, because I was going to have to set them up for urines. . . . I gave them my contact information at that time, and we had just again, reiterated multiple times, the biggest thing was to remain in touch, to go to [the lab] for urines so they could have [supervised] visits [with Children].
Id. at 7.
Ms. Harden testified that during the first permanency review period, she
attempted to meet with Father and Mother on more than one occasion to
discuss their court-ordered treatment plan, but they did not keep their
appointments. Id. at 9-10. Ms. Harden testified that Father and Mother never
inquired about transportation or requested that she provide them with bus
passes. Id. at 10. In addition, the parents did not provide Ms. Harden with
their home address. Id. During a telephone call with Father on October 4,
2018, in an attempt to schedule an appointment, Ms. Harden stated, “He was
- 11 - J-S11029-20
extremely agitated. It was very hard to keep the dialogue going with him,
and I did have to end that phone call due to him being so agitated.” Id.
Ms. Harden testified that she finally met with Father on December 20,
2018, when he was incarcerated. Id. at 14. Ms. Harden explained that at an
unspecified time after the first permanency review hearing, Father was
incarcerated on criminal charges involving possession of drug paraphernalia
and weapons, and the criminal case was pending at the time of the underlying
proceeding. Id. at 8, 14. Ms. Harden testified that during her conversation
with Father in prison, he “was completely in denial about the reasons why
[C]hildren were removed. He placed all the blame for the circumstances on
[M]other, [and] took no responsibility for the domestic violence they were
engaging in.” Id. at 15.
Ms. Harden further testified that Father was released from prison at an
unspecified time, but was re-incarcerated on February 10, 2019, through April
12, 2019, due to criminal charges involving a physical altercation with Mother.
Id. at 16. Upon his release from this incarceration, Ms. Harden stated,
“[Father] did come to the Agency to visit prior to the permanency review
[hearing] in May of [2019].” Id. at 17. Ms. Harden reiterated the permanency
plan requirements to Father, and testified that he understood what he needed
to do to reunify with Children. Id. However, Father did nothing to remedy
the conditions which led to Children’s placement. Id. at 17-18.
- 12 - J-S11029-20
Specifically, because Father did not comply with drug urinalysis testing,
Father did not have supervised visitation with Children from the time of their
placement in August of 2018. Id. at 8-9, 18. Ms. Harden testified that Father
tried to see Children at their kinship care home on multiple occasions, “but
the kinship family did not allow him to see them.” Id. at 26. She explained
that approximately one month before the termination hearing, Father went to
the kinship home, which resulted in the police being called, a 302 petition 4
being filed, and Father being admitted to the hospital for 10 days. Id. at 26-
27.
Father testified, “the reason why I was 302’d was because I actually got
naked to show my sign of faith, and to show that I, like, you know, have faith
in God. And I didn’t see anything like they were trying to say. I believe that
I was showing my faith to God, that I believe that what I was being shown
was his plan. And since then, I still continue being led through people and
different signs of metaphoric communication through people.” Id. at 34.
Father testified that following a drug and alcohol assessment, it was
4 Section 302 of the Mental Health Procedures Act, 50 P.S. § 7302, provides: “Emergency examination may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such examination; or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.” 50 P.S. § 7302(a) (Involuntary emergency examination and treatment authorized by the physician--not to exceed one hundred twenty hours) (amended October 24, 2018, effective April 22, 2019).
- 13 - J-S11029-20
recommended that he “do inpatient.” Id. at 33. Father explained, “My reason
why I didn’t [enter inpatient drug and alcohol treatment] is because . . . since
I was released the last time from prison, I’ve sought out a spiritual
enlightenment in God, and seen miraculous things, not hallucinations from
drugs.” Id. at 34. Father testified that he was not treating for mental health
illness because “I just turned it back over to God, . . . and I’ve been just going
through this spiritual journey.” Id. at 35, 44.
With respect to whether he has safe and stable housing, Father testified,
“Right now, I’m not doing so well with that, because I’ve been following a
spiritual quest, a journey, because I believe it will bring my kids back to me.”
Id. at 35-36. On cross-examination by the guardian ad litem, Father stated
that he does not have permanent housing, but “I stay with my mom here and
there.” Id. at 50. Moreover, Father acknowledged “I’m not prepared . . . at
this time to actually take my kids back, anything like that. . . .” Id.
In sum, the evidence demonstrates that Father’s repeated and
continued incapacity has caused Children to be without essential parental
care, control or subsistence necessary for their physical or mental well-being.
We discern no abuse of discretion by the court in concluding that the causes
of Father’s incapacity cannot or will not be remedied, and thus we do not
disturb the court’s conclusion that the Agency satisfied its evidentiary burden
pursuant to Section 2511(a)(2).
- 14 - J-S11029-20
We next review the orphans’ court’s determination pursuant to Section
2511(b). This Court has emphasized:
While a parent’s emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)). In addition, our Supreme
Court has stated that, “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” In re T.S.M.,
71 A.3d at 268. Moreover, the Court directed that in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
Here, the orphans’ court concluded:
[P]rimarily due to the young age of Children at the time of separation, and the lapse of over a year since they’ve had any
- 15 - J-S11029-20
contact with the parents, the court finds that it is unlikely any bond between Father and Children persists. Ms. Harden testified that Children do not ask for the parents, and actively seek and receive parental nurturing from the adoptive resource family. . . . Children are placed in a kinship home that provides for their developmental, physical and emotional needs and welfare, and they are doing well there. . . .
Orphans’ Court Opinion, 10/2/19, at 11. Again, the record supports the
court’s findings.
As there was no evidence of a parent-child bond between Father and
Children, it was reasonable for the court to infer that no bond exists. See In
re K.Z.S., 946 A.2d at 762-763. Ms. Harden testified that Children last saw
Father approximately one year prior, in August 2018, when they were one and
two years old, and they “don’t ask about [Father], or speak about him either.”
N.T., 8/22/19, at 18, 25. She testified that Children are placed in a pre-
adoptive kinship home with their paternal aunt and uncle, whom they consider
“to be like their parents.” Id. at 19-20. Ms. Harden stated that “Children go
to [their kinship parents] for comfort, [and to] have their needs met. They
are just doing extremely well in that home.” Id. at 20. As such, Ms. Harden
opined that termination of Father’s rights would not have a detrimental effect
on Children. Id. at 18. On this record, the orphans’ court did not err in
concluding that termination of Father’s parental rights was consistent with
Children’s developmental, physical, and emotional needs and welfare pursuant
to Section 2511(b).
- 16 - J-S11029-20
In conclusion, our independent review of the certified record reveals no
preserved non-frivolous issue that would arguably support this appeal.
Therefore, we grant Counsel’s petition to withdraw from representation, and
affirm the decrees terminating Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2) and (b).
Counsel’s petition to withdraw granted. Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/29/2020
- 17 -