J-S29001-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: THE ADOPTION OF R.V.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.G., FATHER : : : : : No. 272 WDA 2024
Appeal from the Order Entered February 1, 2024 In the Court of Common Pleas of Indiana County Orphans' Court at No(s): No. 32-23-0246
BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED: March 12, 2025
Appellant, C.G. (“Father”), appeals from the February 1, 2024 order that
terminated his parental rights to now-twelve-year-old R.V.G. (“Child”).
Father’s counsel, Ashley Lovelace, Esq., has filed a petition to withdraw as
counsel and an Anders1 brief, to which Father has not filed a response. Upon
review, we grant counsel’s petition to withdraw and affirm.
The relevant factual and procedural history is as follows. Father and
D.P. (“Mother”) are parents to Child, who was born in November 2012.
Parents, who lived together but were never married, separated in 2017. Child
lived with Mother, and the parties agreed to a custody order that awarded
Father daytime visitation with Child every other weekend.
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1 Anders v. California, 386 U.S. 738 (1967). J-S29001-24
In 2018, when Child was 6 years old, Mother married D.P.
(“Stepfather”). Child lives with Mother, Stepfather, and Child’s three sisters.
Mother and Stepfather both take care of Child. Stepfather cooks for Child,
assists Child with homework, transports Child to extracurricular activities,
coaches Child’s basketball team, and stays home from work to take care of
Child if needed when she is sick.
Father has experienced various difficulties over the past few years,
including homelessness, hospitalizations, and incarceration. Father has been
inconsistent in visiting with Child. In 2022, Father saw Child approximately
10 times total. From June 2022 until September 2023, Father did not initiate
any visits with Child. On September 4, 2023, Father’s mother (“Paternal
Grandmother”) asked to take Child to a family gathering at a park, and Child
saw Father there. The last time that Father sent a text message to Mother
asking about Child was November 2022. In 2023, Father sent Mother several
text messages with links to internet videos. In April and May of 2023, while
he was incarcerated, Father sent two letters to Mother with pictures that he
drew for Child.
On April 10, 2023, when Child was 10 years old, Mother and Stepfather
filed a petition to terminate Father’s parental rights to Child. The court
appointed Erica Dussault, Esq., to serve as Child’s legal counsel. The court
held hearings on September 28, 2023, November 30, 2023, and January 29,
2024. The court heard testimony from Mother; Stepfather; Father; and
Carolyn Menta, Psy.D., expert in clinical psychology.
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Mother and Stepfather testified in accordance with the above-stated
facts. In addition, Mother testified that she has observed “some type of bond”
between Child and Father but they have “an unstable, inconsistent
relationship.” N.T. Hearing, 9/28/23, at 23-24. Mother explained that Child
“likes the idea of her dad” but that Child often got anxious and sick to her
stomach when it was time to visit with Father. Id. at 24. Mother also testified
that Child is “neutral” towards Father. Id. Mother stated that Child is
“excited” to be adopted by Stepfather. Id. at 28. Mother testified that she
has thought a lot about the potential impact of severing the relationship
between Child and Father and explained that she believed that adoption was
in Child’s best interest because “kids need to have consistency and a constant
schedule with people that they can count on. That gives them a feeling of
safety and love” and Father’s relationship with Child was not consistent. Id.
at 28. Mother also testified that “forcing [Child] to have contact with [Father]
for all of these years has not served her well” and explained that Child has
“very bad stress and anxiety issues” that has required counseling. Id. at 33.
Mother testified that Child and Stepfather “have a good relationship.”
Id. at 25. Mother further explained that Stepfather “showed [Child] that she
should have her feelings respected and that she could count on him to always
be there for her, and they developed a really good bond.” Id. Mother
described Child and Stepfather’s relationship as “a typical parent-child
relationship.” Id. at 26.
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Stepfather testified that he wished to adopt Child and stated that he
treats her like his own daughter. Id. at 40. Stepfather further testified, “I
love that little girl with all my heart[.]” Id. at 40-41. Stepfather explained
that he did not believe that terminating Father’s rights would be detrimental
to Child because “there’s no consistency” and “there is no real bond other than
more of an uncle-type thing” between Child and Father. Id. at 41.
Father testified he was in the hospital in November 2022 for a mental
breakdown for over a month, incarcerated in 2023 for approximately two
months, and homeless since the end of June 2022. Father stated that he has
a pending criminal case for Driving Under the Influence. Father explained that
he just got approved for transitional housing. Father testified that he does
not have his own vehicle and “that’s the only reason why I stopped coming to
see [Child].” Id. at 49.
Father testified that he called Mother in July 2022 to let her know he
was homeless and sent Child a Christmas card in December 2022. Father
further testified that he sent texts to Mother in February, March, and April
2023. Father testified that the last time he saw Child was in September 2023
at a family gathering and he asked for her cell phone number, but Child said
she had to ask Mother first. He explained that he bought gifts for Child but
gave them to his mother for her to deliver to Child. Father also stated that,
at one point, his cell phone that stored Child’s phone number broke. Father
explained that when he got a new cell phone, he obtained Mother’s number
but did not request Child’s phone number. Father testified that he did not
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communicate with Child through her Facebook account because he did not
agree that she should have an account.
Father stated that Child “absolutely” loves him and shows it every time
they are together. Id. at 49. Father stated, “I could have done better clearly,
but I wish I could say I did the best. So I guess I didn’t do the best, to be
honest with you, or we wouldn’t be here today.” Id. at 50. Finally, Father
testified, “I’m always going to be in Child’s life. I just need to bounce back
from this temporary hardship that I’m currently in.” Id.
Dr. Menta testified as an expert in clinical psychology. Dr. Menta
observed Child, Mother, Stepfather, and Father to complete a bonding
assessment. Dr. Menta testified that Child expressed closeness to Mother and
Stepfather and an openness to adoption. Dr. Menta explained that Child
expressed being uncomfortable around Father, fearful of his unpredictable
behavior to the point of getting physically ill and had anxiety about upsetting
Father. Dr. Menta testified that Child had a positive relationship and a “secure
bond” with Mother and Stepfather. N.T. Hearing, 1/29/24, at 14. Dr. Menta
continued:
that [bond] is contrasted by the disorganized attachment with [F]ather, and ultimately it would be in [Child’s] best interest to go ahead and sever that attachment with [F]ather so that she can continue to enjoy that secure attachment with [M]other and [S]tepfather, and ultimately that would help her have healthier relationships and healthier self-esteem moving forward.
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Id. Dr. Menta explained that the disorganized attachment and anxiety that
Child experiences is not due to a lack of time or contact with Father, but rather
due to the neglect or trauma Child has suffered because of Father’s significant
mental health concerns and resulting unpredictable behavior. In her report,
Dr. Menta concluded that Father “minimized his mental health issues and
refuses to treat his mental health conditions” and “appears to still be
struggling with psychosis and lacks insight.” Bonding Assessment, 11/20/23,
at 9.
At the conclusion of the hearings, the trial court terminated Father’s
parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). Father
timely appealed. Both Father and the trial court complied with Pa.R.A.P. 1925.
On May 3, 2024, Attorney Lovelace filed an Anders brief without the
benefit of relevant hearing transcripts, which prompted this Court to issue an
order directing the court reporter to transcribe the relevant transcripts, the
trial court to provide a supplemental Rule 1925(a) opinion, and the
prothonotary to adjust the briefing schedule. On December 12, 2024, with
the benefit of relevant transcripts, Attorney Lovelace once again filed an
Anders brief indicating that, upon review, Father’s appeal is wholly frivolous.
Father failed to respond.
In the Anders brief, counsel indicated that Father wished to raise the
following issue for our review: “Did the trial court err when it terminated the
parental rights of [Father] pursuant to the Adoption Act and specifically 23
Pa.C.S. Section 2511?” Anders Br. at 6 (some capitalization omitted).
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As a preliminary matter, we address appellate counsel’s request to
withdraw as counsel. “When presented with an Anders brief, this Court may
not review the merits of the underlying issues without first passing on the
request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet 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 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).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that counsel sent Father a copy of the
Anders brief and petition to withdraw, as well as a letter explaining to Father
that he has the right to retain new counsel, proceed pro se, and to raise any
additional points. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.
Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will address
the substantive issue raised in the Anders brief. Subsequently, we must
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“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,
978 A.2d at 355 n.5 (citation omitted); see also Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires
the reviewing court to “review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel”).
In cases involving the involuntary termination of parental rights, this
Court’s review is limited to determining whether the trial court’s conclusion is
supported by competent evidence. In re Adoption of L.A.K., 265 A.3d 580,
591 (Pa. 2021). When we review a trial court’s decision to grant or deny a
petition to involuntarily terminate parental rights, we must accept the findings
of fact and credibility determinations of the trial court if the record supports
them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings
are supported, appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. (citation omitted). “Absent an abuse
of discretion, an error of law, or insufficient evidentiary support for the trial
court’s decision, the decree must stand.” In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009) (citation omitted). We may not reverse merely because
the record could support a different result. T.S.M., 71 A.3d at 267. We give
great deference to the trial courts “that often have first-hand observations of
the parties spanning multiple hearings.” Id. Moreover, “[t]he 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
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evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
It is axiomatic that “[p]arents enjoy a fundamental right to make
decisions regarding the care, custody and control of their children. It cannot
be denied that significant and permanent consequences for both the parent
and child can follow the termination of parental rights, as there is an
undeniable importance in a child’s relationship with a biological parent.”
L.A.K., 265 A.3d at 591 (internal citations omitted). Accordingly, “[i]n
recognition of the gravity attendant to the termination of parental rights, the
moving party must establish the statutory grounds by clear and convincing
evidence; that is, evidence that is so clear, direct, weighty and convincing as
to enable a trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue.” Id. at 592 (citations and quotation
marks omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). As discussed above, “[t]he
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).” Id. (citation omitted). If the court determines that the
parent’s conduct warrants termination of his or her parental rights, the court
then engages in “the second part of the analysis pursuant to Section 2511(b):
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determination of the needs and welfare of the child under the standard of best
interests of the child.” Id. (citation omitted). Notably, we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S.,
946 A.2d 753, 758 (Pa. Super. 2008).
Here, we concentrate our analysis on subsection 2511(a)(1). Section
2511(a)(1) provides that the trial court may terminate parental rights if the
Petitioner establishes that “[t]he parent by conduct continuing for a period of
at least six months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a child or has
refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). The
focus of involuntary termination proceedings is on the conduct of the parent
and whether that conduct justifies a termination of parental rights. In re
B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). Although the statute focuses
on an analysis of the six months immediately preceding the filing of the
petition, the court must consider the whole history of a given case and may
consider a parent’s inaction before the six-month statutory provision. K.Z.S.,
946 A.2d at 758. “Although courts are to avoid the mechanical application of
the Adoption Act, we may not ignore that the General Assembly has drawn
focus to the six months immediately preceding the filing of the termination
petition [and] the most critical period for evaluation is the six months
immediately preceding the filing of the termination petition.” L.A.K., 265 A.3d
at 592.
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This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
Parental duties are not defined in the Adoption Act, but our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance and support. Parental duties are carried out through affirmative actions that develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child’s life. Fortitude is required, as a parent must act with reasonable firmness to overcome obstacles that stand in the way of preserving a parent-child relationship and may not wait for a more suitable time to perform parental responsibilities.
Id. (internal citations and quotation marks omitted).
It is well-settled that “a parent’s efforts are always considered in light
of existing circumstances.” Id. (citations and internal quotation marks
omitted). “To that end, even where the evidence clearly establishes [that] a
parent has failed to perform affirmative parental duties for a period in excess
of six months as required by Section 2511(a)(1), the court must examine the
individual circumstances and any explanation offered by the parent to
determine if that evidence, in light of the totality of circumstances, clearly
warrants permitting the involuntary termination of parental rights.” Id. at
593 (citations and internal quotation marks omitted).
Instantly, the trial court found that, despite having defined periods of
custody, “Father has little to no involvement in [C]hild’s life.” Sup. Trial Ct.
Op., 11/21/24, at 6. The court observed that Father failed to initiate visits
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with Child in the six months preceding the filing of the termination petition.
Id. The Court acknowledged that Father sent a few letters and text messages
to Child through Mother but credited Mother’s testimony that the messages
did not include requests to see or communicate with Child. Id. The court
found that Father failed to utilize reasonable firmness in maintaining contact
with Child when he: failed to request Child’s cell phone number from Mother
so that he could contact her, failed to utilize alternative means of
communication with Child, i.e., Facebook, and failed to request transportation
assistance from his family or Mother so that he could attend his defined
periods of custody. Id. The court opined:
[] Father did not contact [] Child directly, despite having no barriers by the [] Child or [] Mother. [] Father took no initiative to see [] Child other than through specific requests by the Paternal Grandmother. While the [c]ourt does not doubt that [] Father loves [] Child, [] Father took no reasonable efforts to overcome any barriers in order to see or communicate with [] Child. [] Father has not exercised any parental duties in several years. The [c]ourt finds by clear and convincing evidence that Father’s conduct warrants termination.
Id. at 7. Our review of the record supports the trial court’s findings, and we
decline to reweigh the evidence or usurp the court’s credibility determinations.
Accordingly, we discern no abuse of discretion.
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. This Court reviews
“whether termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.” In re Adoption of
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J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005).
“One major aspect of the needs and welfare analysis concerns the
nature and status of the emotional bond” that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). “The mere existence of an emotional bond does not
preclude the termination of parental rights.” In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that terminating
the bond “would destroy an existing, necessary, and beneficial relationship.”
Id. at 898 (citation omitted). Moreover, the trial court may consider
intangibles, such as the love, comfort, security, and stability the child might
have with the adoptive resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super.
2011). Ultimately, the concern is the needs and welfare of the child. In re
Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).
The court credited Dr. Menta’s testimony that Child has a “disorganized
attachment” with Father and “would benefit from that bond being severed.”
Sup. Trial Ct. Op. at 9. The court recognized that “some sort of bond may still
exist between” Father and Child but found that “the bond is unhealthy” and,
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if continued, would negatively affect Child’s development and future
relationships. Id. at 9. The court opined, “Father’s unpredictable behavior
and absence has left [] Child anxious and fearful of [] Father.” Id. at 10.
The court credited the testimony from Mother, Stepfather, and Dr.
Menta that Child is extremely close to Mother and Stepfather, who consistently
provide for Child’s physical and emotional needs, and that Child wishes to be
adopted. Id. at 10. The court opined: “Stepfather provides support for []
Child, not only financially, but also other intangibles which include but are not
limited to love, comfort, education, security, and stability.” Id. The court
found by clear and convincing evidence that the termination of Father’s
parental rights was in Child’s best interest.
The record supports the trial court’s findings. The court heard testimony
that Child has a secure bond with Mother and Stepfather and, in contrast, an
unhealthy “disorganized attachment” to Father, and that it would not be
detrimental to Child if Father’s parental rights were terminated. As the record
supports the trial court’s findings, we discern no abuse of discretion.
In summation, following our review of the issues raised in counsel’s
Anders brief, we agree with counsel that the trial court did not abuse its
discretion in terminating Father’s parental rights. In addition, our independent
review of the proceedings reveals there are no issues of arguable merit to be
raised on appeal. Accordingly, we grant counsel’s petition to withdraw and
affirm the order terminating Father’s parental rights.
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Order affirmed. Petition to withdraw as counsel granted.
DATE: 3/12/2025
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