In the Int. of: Y.G., Appeal of: M.G.

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2024
• Docket: 3186 EDA 2023
• Status: Unpublished

Opinion

J-A08045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: Y.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.G., FATHER : : : : : No. 3186 EDA 2023

Appeal from the Order Entered December 18, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000048-2022

IN THE INTEREST OF: Y.C.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.G., FATHER : : : : : No. 3187 EDA 2023

Appeal from the Decree Entered December 18, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000300-2023

IN THE INTEREST OF: Y.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.G., FATHER : : : : : No. 3188 EDA 2023

Appeal from the Order Entered December 18, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000044-2022

IN THE INTEREST OF: Y.M.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA J-A08045-24

: : APPEAL OF: M.G., FATHER : : : : : No. 3189 EDA 2023

Appeal from the Decree Entered December 18, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000301-2023

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 10, 2024

M.G. (“Father”) appeals from the decrees terminating his parental rights

as to his minor children, Y.C.G. and Y.M.G. (“Children”), as well as from the

orders changing the goal to adoption. Father’s counsel has filed an Anders1

brief and a motion to withdraw as counsel. Upon review, we grant counsel’s

motion to withdraw, affirm the termination decrees, and dismiss the appeals

from the goal-change orders as moot.

Children were born in 2021. In January 2022, the Philadelphia

Department of Human Services (“DHS”) obtained an order of protective

custody for Children due to their mother’s inadequate housing, positive drug

tests, and lack of medical care for Children. N.T., 12/18/23, at 7-8.2 Father

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1 Anders v. California, 386 U.S. 738 (1967); see also In re V.E., 611 A.2d

1267, 1275 (Pa.Super. 1992) (holding Anders protections apply to appeals of involuntary termination of parental rights).

2 Children’s mother voluntarily relinquished her parental rights and is not involved in this appeal. See N.T. at 6.

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was living in Ohio at the time. Id. at 8. Children were adjudicated dependent

in March 2022.

On August 10, 2023, DHS filed petitions for involuntary termination of

Father’s parental rights. A hearing on the petitions was held on December 18,

2023. Although Father was served with notice of the hearing, he did not

appear at the hearing. Id. at 6.

DHS presented the testimony of caseworker Greg Williams. Williams

testified that Father’s single case plan objectives were to make himself known

to DHS, complete parenting classes, attend supervised visits with Children,

obtain housing and employment, and ensure that Children attend medical

appointments. Id. at 10. Williams stated that DHS made outreach to Father

throughout the case, but Father had not maintained contact with DHS and

DHS did not know where he lived. Id. at 8-9, 13. Williams testified that Father

has not complied with any of his objectives. Id. at 12-14, 22. He indicated

that Father has never visited Children. Id. at 10-11, 22. Father also never

inquired about Children or sent them cards, letters, or gifts. Id. at 12, 15.

Williams testified that Children do not know who Father is, have never seen

Father, and do not have a parent-child relationship with him. Id. at 11, 14-

15. He opined that Children would suffer no irreparable harm if Father’s

parental rights were terminated. Id. at 14-15.

Williams further testified that Y.C.G. is placed in a medical foster home

and is “thriving” in the home. Id. at 16. He indicated that the home is a pre-

adoptive home and the foster parent meets all of Y.C.G.’s medical, physical,

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emotional, and financial needs. Id. at 16-17. Williams stated that Y.C.G. has

a “strong bond” with his foster parent and it would be in his best interest to

be adopted. Id. at 17.

Williams testified that Y.M.G. is placed in a different medical foster home

than Y.C.G. and is “thriving” in the home. Id. at 18-19. Williams stated that

Y.M.G. is bonded to his foster parents and looks to them to meet his medical,

physical, emotional, and financial needs. Id. at 19-20. Williams indicated that

the home is a pre-adoptive home and that it would be in Y.M.G.’s best interest

to be adopted. Id. at 19.

At the conclusion of the hearing, the court terminated Father’s parental

rights. Id. at 24-29. This appeal followed.

Counsel’s Anders brief identifies two issues:

1. Whether the trial court abused its discretion and erred as a matter of law in terminating [Father’s] parental rights under 23 Pa.C.S.A. [§] 2511(a) and (b) because the decision was not supported by competent evidence.

2. Whether the trial court abused its discretion and erred as a matter of law in changing the permanency goal to adoption because the decision was not supported by competent evidence.

Anders Br. at 8.

Before we consider whether the appeal is frivolous, we must first

determine whether counsel has satisfied the necessary requirements 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

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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).

Further, 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)).

Instantly, we find that counsel has complied with the above technical

requirements. In his Anders brief, counsel has provided a summary of the

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procedural and factual history of the case with citations to the record. Further,

counsel’s brief identifies two 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 Father with a copy of the Anders brief

and advised him of his right to proceed pro se or to retain a private attorney

to raise any additional points he deemed worthy of this Court’s review. Motion

to Withdraw, 1/26/24, at ¶ 7, Ex. A. Father 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 first issue raised in counsel’s Anders brief challenges the sufficiency

of the evidence supporting termination of Father’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

termination cases, we “accept the findings of fact and credibility

determinations of the trial court if they are supported by the record.” In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re Adoption of S.P., 47

A.3d 817, 826 (Pa. 2012)). “If the factual findings have support in the record,

we then determine if the trial court committed an error of law or abuse of

discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).

We will reverse a termination order “only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of

S.P., 47 A.3d at 826.

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A party seeking to terminate parental rights has the burden of

establishing grounds for termination by clear and convincing evidence. In re

Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means

evidence “that is so clear, direct, weighty, and convincing as to enable the

trier of fact to come to a clear conviction, without hesitation, of the truth of

the precise facts in issue.” Id. (citation omitted).

Termination of parental rights is controlled by section 2511 of the

Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under this

provision, the trial court must engage in a bifurcated analysis prior to

terminating parental rights:

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 [s]ection 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 [s]ection 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 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.

Id. (citations omitted). To affirm the termination of parental rights, this Court

need only affirm the trial court’s decision as to any one subsection of section

2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).

Here, the court found termination proper under subsections 2511(a)(1),

(2), (5), and (8), as well as under section 2511(b). See Trial Court Opinion,

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1/22/24, at 2 (unpaginated). As only one basis for termination under 2511(a)

is necessary, we will focus on the court’s termination of Father’s parental

rights under subsection 2511(a)(1). That subsection provides that a parent’s

rights to a child may be terminated if:

[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.A. § 2511(a)(1).

Pursuant to subsection 2511(a)(1), “the moving party must produce

clear and convincing evidence of conduct, sustained for at least the six months

prior to the filing of the termination petition, which reveals a settled intent to

relinquish parental claim to a child or a refusal or failure to perform parental

duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008). A parental

obligation is a “positive duty which requires affirmative performance” and

“cannot be met by a merely passive interest in the development of the child.”

In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (citation omitted). Indeed,

[p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.

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In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).

Here, the evidence was that Father has never been involved in the care

of Children and Children do not even know who Father is. Father has done

entirely nothing to parent Children. He did not avail himself to DHS throughout

the life of the case, his whereabouts were unknown, he failed to complete any

of his objectives, and he never visited Children. Father has frankly made no

attempts to perform any parental duties or work toward reunification with

Children. We perceive no non-frivolous basis on which to challenge the

sufficiency of the evidence to support the finding under subsection 2511(a)(1).

Under section 2511(b), the trial court must consider “the

developmental, physical and emotional needs and welfare of the child” to

determine if termination of parental rights is in the best interest of the child.

See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles

such as love, comfort, security, and stability[.]” In re C.M.S., 884 A.2d 1284,

1287 (Pa.Super. 2005). The court must also examine the parent-child bond,

“with utmost attention to the effect on the child of permanently severing that

bond.” Id. The court must also examine any pre-adoptive home and any bond

between the child and the foster parents. In re T.S.M., 71 A.3d at 268.

Instantly, the court found it was in Children’s best interest to terminate

Father's parental rights under section 2511(b). N.T. at 29. There was sufficient

testimony that Children have no relationship with Father and no parental bond

with him. Conversely, there was evidence that Children are thriving and

strongly bonded to their respective foster families, who are eager to adopt

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them. The testimony was that Children would suffer no irreparable harm if

Father’s parental rights were terminated. We thus agree that the challenge to

the finding under section 2511(b) is frivolous.

In sum, we find the issues raised in counsel’s Anders brief are wholly

frivolous. Further, after an independent review of the record, we conclude that

no other, non-frivolous issue exists. Therefore, we grant counsel’s motion to

withdraw. Having determined the appeals are wholly frivolous, we affirm the

decrees terminating Father’s parental rights. Because we affirm the

termination decrees, the appeals from the goal-change orders are moot, and

any appeal would be frivolous. See Int. of A.M., 256 A.3d 1263, 1272-73

(Pa.Super. 2021) (finding issues regarding goal change moot in light of

termination of parental rights); see also In re D.K.W., 415 A.2d 69, 73 (Pa.

1980) (stating once parental rights are terminated, issues of custody and

dependency under Juvenile Act are moot). We therefore dismiss those

appeals.

Motion to withdraw as counsel granted. Decrees affirmed at Nos. 3187

EDA 2023 and 3189 EDA 2023. Appeals dismissed at Nos. 3186 EDA 2023 and

3188 EDA 2023.

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Date: 4/10/2024

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