J-S25009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: M.I.S., JR., A MINOR             :   IN THE SUPERIOR COURT
                                         :        OF PENNSYLVANIA
                                         :
 APPEAL OF: K.T.D., MOTHER               :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 60 MDA 2019

              Appeal from the Order Entered December 6, 2018
               In the Court of Common Pleas of Centre County
                     Orphans' Court at No: 2018-4322 A


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                            FILED JULY 05, 2019

      K.T.D. (“Mother”) appeals from the December 6, 2018 decree in the

Court of Common Pleas of Centre County involuntarily terminating her

parental rights to her son, M.I.S., Jr. (“Child”), born in August of 2013. We

affirm and grant counsel’s petition to withdraw.

      The record reveals that Child was placed in the emergency custody of

the Centre County Office of Children and Youth Services (“CYS”) on September

18, 2017, due to Mother and M.S., Sr. (“Father”), being unresponsive in the

home of W.S. (“paternal grandmother”) the previous evening, when Child was

present, and police finding drug paraphernalia in plain sight in their home.

N.T., 12/5/18, at 16. The court adjudicated Child dependent on September

25, 2017. On October 6, 2017, the court found aggravated circumstances

existed as to Mother due to the involuntary termination of her parental rights
J-S25009-19


to her daughter. Id. at 24; Dependency Adjudication at ¶ 18. The order

directed no reunification efforts between Mother and Child.

      In addition to Child, Mother has two older sons and a daughter.

Mother’s first son was born in 2003. Mother gave birth in the State of New

Jersey to her second son and to her daughter in 2008 and 2012, respectively,

both of whom tested positive at birth for phencyclidine (“PCP”). Dependency

Adjudication at ¶¶ 15-16.     As a result, the New Jersey Division of Child

Protection and Permanency (“DCPP”) had an extensive history with Mother.

As best we can discern, Mother’s sons reside in the permanent legal custody

of her sister in New Jersey. Id. at ¶ 15. Mother’s daughter was immediately

placed in the custody of DCPP, and the Superior Court of New Jersey

involuntarily terminated her parental rights to that child in 2016. Id. at ¶¶

16, 18.

      In 2012, Mother moved to the State of Colorado, where Child was born

also with PCP in his system. N.T., 12/5/18, at 25. Child was immediately

placed in foster care in Colorado, where he remained for approximately the

first year of his life. Id. at 25-26. Thereafter, a Colorado court returned Child

to the care of Father, who was to supervise Mother in the presence of Child.

Id. at 26.

      CYS first became aware of Mother living in Centre County, Pennsylvania,

in May of 2017, upon a referral from DCPP. When CYS subsequently became

involved with this family in September of 2018, Child’s paternal grandmother


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alleged that she had been caring for Child for approximately one and one-half

years.      N.T., 12/5/18, at 27; Dependency Adjudication at ¶ 21.            CYS

determined that the paternal grandmother was not a proper placement for

Child because of her own drug use and health problems. N.T., 12/5/18, at

21-22, 27. Therefore, CYS placed Child with foster parents, with whom he

remained throughout this case. They are a permanent resource for him. Id.

at 86.

         On July 30, 2018, CYS filed a petition for the involuntary termination of

Mother’s and Father’s parental rights to Child pursuant to 23 Pa.C.S.A. §

2511(a)(1), (2), (5), and (b).         A hearing occurred on December 5, 2018,

during which CYS presented the testimony of its caseworkers, Lacy Gates and

Tammi Eddy, and the caseworker from Family Intervention Crisis Services

(“FICS”), Jessica DuFour. Mother did not appear at the hearing, but she was

represented by counsel.1 Father was represented by counsel, and he testified

on his own behalf. In addition, Child, then five years old, was represented by

legal counsel during the hearing.

         By decrees dated December 5, 2018, the orphans’ court involuntarily

terminated Mother’s and Father’s parental rights.          On January 4, 2019,

Mother, through her trial counsel, filed a notice of appeal and a concise



____________________________________________


1 At the conclusion of the hearing, the orphans’ court granted Mother’s trial
counsel permission to withdraw as counsel but directed counsel to advise
Mother immediately of her appeal rights. N.T., 12/5/18, at 138.

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statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). Father did not appeal.

       On January 10, 2019, the court appointed appellate counsel for Mother,

who subsequently filed a petition with this Court requesting to withdraw from

representation and submitted a brief pursuant to Anders v. California, 386

U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).2 We review counsel’s request to withdraw first. 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)).

       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


____________________________________________


2 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).

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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).

      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, Mother’s counsel filed a petition to withdraw certifying that he

had reviewed the case and determined that Mother’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 Mother, the facts that arguably support the

appeal, and counsel’s assessment of why the appeal is frivolous with citations

to relevant legal authority. In addition, counsel attached to the petition his




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letter to Mother dated March 20, 2019, pursuant to Millisock, supra.3 As

such, counsel complied with the requirements of Anders and Santiago.

       We must next “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)

(footnote omitted). Counsel’s Anders brief raises the following issues for our

review:

       [I]. Whether the [orphans’] court erred in finding clear and
       convincing evidence existed to terminate Mother’s parental rights
       pursuant to 23 Pa.C.S.A. [§] 2511(a)(1), (2), and (5) where no
       assessments were conducted and [CYS] failed to demonstrate that
       termination was in the best interest of Child?

       [II]. Whether the [orphans’] court erred in terminating Mother’s
       parental rights where insufficient evidence was presented to meet
       the requirements of the grounds submitted?

Anders brief at 7.4

       Our standard of review is as follows:

       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
____________________________________________


3 On May 7, 2019, Mother filed pro se a one-page handwritten letter to this
Court in which she alleges, as best we can discern, that her appellate counsel
and CYS verbally abused, insulted, and caused her mental anguish. In
addition, she alleges that she does not know why Child was removed from her
care. Upon careful review of the record, discussed infra, Mother’s assertions
are unsupported and entitle her to no relief.

4 It is important to note that Child’s legal counsel has filed a brief in support
of the subject decree.

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       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 and quotation marks

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
       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).

       Instantly, we conclude that the certified record supports the decree

pursuant to Section 2511(a)(1) and (b), which provides as follows.5




____________________________________________


5 This Court need only agree with any one subsection of Section 2511(a),
along with subsection 2511(b), in order to affirm the termination of parental
rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).

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     (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:


         (1) The 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.

                                   ...


      (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)(1), (b).

     With respect to Section 2511(a)(1), our Supreme Court has held,

     Once the evidence establishes a failure to perform parental duties
     or a settled purpose of relinquishing parental rights, the court
     must engage in three lines of inquiry: (1) the parent’s explanation
     for his or her conduct; (2) the post-abandonment contact between
     parent and child; and (3) consideration of the effect of termination
     of parental rights on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92

(1988). Further,

     the trial court must consider the whole history of a given case and
     not mechanically apply the six-month statutory provision. The
     court must examine the individual circumstances of each case and

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      consider all explanations offered by the parent facing termination
      of his or her parental rights, to determine if the evidence, in light
      of the totality of the circumstances, clearly warrants the
      involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      Our courts have explained that parental duty “is best understood in

relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa. 1977).

      A child needs love, protection, guidance, and support. These
      needs, physical and emotional, cannot be met by a merely passive
      interest in the development of the child. Thus, this Court has held
      that the parental obligation is a positive duty which requires
      affirmative performance. This affirmative duty encompasses
      more than a financial obligation; it requires continuing interest in
      the child and a genuine effort to maintain communication and
      association with the child. Because a child needs more than a
      benefactor, parental duty requires that a parent ‘exert himself to
      take and maintain a place of importance in the child’s life.’

Id. (citations omitted); see also In re C.M.S., 832 A.2d 457, 462 (Pa. Super.

2003), appeal denied, 859 A.2d 767 (Pa. 2004).

      With respect to Section 2511(b), we have explained, “[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

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


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particular case.”     In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008)

(citation omitted).

       In this case, the testimonial evidence demonstrates that Mother refused

or failed to perform her parental duties in excess of six months immediately

preceding the filing of the involuntary termination petition pursuant to Section

2511(a)(1). Lacy Gates, the CYS caseworker from September 18, 2017, until

October 30, 2017, testified that Mother was obligated under a Family Service

Plan (“FSP”) developed by DCPP in New Jersey to participate in drug and

alcohol counseling. N.T., 12/5/18, at 40. Ms. Gates testified that CYS had

contact with Mother, as follows.

       [Mother] would call into the office, and . . . would speak to me
       about going back to September 18th and how she didn’t do it and
       it was just she would go around and around in a circle and we
       would get nowhere. And I’d eventually terminate those calls
       because we weren’t getting anywhere and she wasn’t following
       through as far as I knew with anything in New Jersey.

Id. Ms. Gates testified that Mother would not sign releases, so she had no

knowledge that Mother ever participated in the required drug and alcohol

counseling. Id.

       Tammi Eddy, the CYS caseworker from October 30, 2017, up through

the time of the subject proceeding, testified that CYS presented Mother with

a copy of the permanency plan.6 Ms. Eddy stated that she spoke to Mother



____________________________________________


6Although not specified in the record, we presume that the permanency plan
was established by DCPP.

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soon after she became the caseworker, during which “[Mother] informed me

that she was not in agreement with the plan and had no intention of following

through with it because it was lies.”     Id. at 76.   She further explained,

“[Mother] frequently goes back to the day, September 18th of last year, denies

that she was abusing her prescriptions. She said we’re using her past against

her. And she . . . [verbally] attacks caseworkers and CYS staff[.]” Id. at 78.

Ms. Eddy stated that Mother’s moods generally vacillated between being “very

angry, very hostile and verbally combative.” Id. at 77. Specifically, Ms. Eddy

testified:

      On a personal basis, among other things she has called staff
      members fat, stupid, lazy. She, at one point, told me that I was
      a racist. She accuses CYS staff of purposefully antagonizing her.
      At one point she said to me, she told me that I was lying about
      having other clients, that I had no other clients but her, and that
      I spent my time following her around and keeping tabs on her.

Id.

      Ms. Eddy testified that, in all but two telephone calls she had with

Mother, Mother seemed “to be under the influence of some kind of substances.

. . .” Id. at 77. Similarly, she testified that, between July 24 and July 26,

2018, Mother left three voicemails for her in which Mother’s speech was

slurred. Id.    In two of her voicemails, Mother “made a reference to living in

a dangerous area, and [she] said that she had been shot at.” Id.

      Ms. Eddy testified that, at a hearing on October 30, 2017, the juvenile

court directed CYS to provide supervised visits for Mother at her request. Id.

at 71-72.      Mother requested four visits between October 30, 2017, and

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December 8, 2018, and CYS scheduled them. Mother attended none of the

visits.      Id. at 72-74.    She also testified that Mother had telephone

conversations with Child on January 8, 2018, and July 30, 2018, the latter of

which she “struggled to stay on child-friendly topics. . . .     She had to be

advised several times that she needed to . . . stick to things that were child[-

]friendly. . . .”     Id. at 74.    For instance, Ms. Eddy stated that Mother

“repeatedly asked Child who was hurting him in foster care. Child told her

nobody’s hurting me, nobody’s hurting me. . . .” Id. at 75.

          By letter dated August 14, 2018, Ms. Eddy informed Mother that she

investigated Mother’s claim that Child was being abused in foster care, and

she concluded it was not accurate. Id. at 79. Further, Ms. Eddy informed

Mother “that phone calls would no longer be substituted for a face-to-face

visit. And that if she would like to have visits with [Child], she needed to

make those arrangements.”          Id.   Based on all of the foregoing, Ms. Eddy

testified, “It’s our position that [Mother has] made absolutely no progress [on

her FSP goals in the DCPP permanency plan].” Id.

          The testimonial evidence clearly demonstrates that Mother has refused

or failed to perform her parental duties throughout the entirety of the

underlying case, which was more than ten months preceding the filing of the

termination petition. As such, we discern no abuse of discretion by the court

in concluding that Mother’s conduct warrants the termination of her parental

rights under Section 2511(a)(1).


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      We next review the decree under Section 2511(b) pursuant to the

requisite bifurcated analysis in involuntary termination matters. Our case law

is well-settled:

      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.
      In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
      mere existence of an emotional bond does not preclude the
      termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
      Super. 2008) (trial court’s decision to terminate parents’ parental
      rights was affirmed where court balanced strong emotional bond
      against parents’ inability to serve needs of child). Rather, the
      orphans’ court must examine the status of the bond to determine
      whether its termination “would destroy an existing, necessary and
      beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
      397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d
      473, 483 (Pa. Super. 2010),

          [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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).

      Furthermore, our Supreme Court has stated, “[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. 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

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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.

      Instantly, the testimonial evidence does not reveal the existence of any

bond between Mother and Child. Therefore, to the extent that the orphans’

court inferred that no parent-child bond existed, it was reasonable. See In

re K.Z.S., 946 A.2d at 762-763.

      Ms. Gates testified on cross-examination by Child’s counsel that Child

was more bonded to his paternal grandmother than to his parents at the

beginning of his foster care placement. N.T., 12/5/18, at 41-42. For instance,

she testified that Child inquired about his paternal grandmother, but not his

parents, when she was the caseworker. Id. at 43.

      Nevertheless, Ms. Gates testified that Child, “fit right in with everybody

[in the foster home]. Even on the first night that we brought him to that

home, he was right off playing with the two children that are close to his age.”

Id. Similarly, Jessica DuFour, the FICS caseworker, who offered reunification

services to Father and Child’s paternal grandmother, testified that she

observed Child in the foster home and described him as “a very happy kiddo.

He’s doing well there. They’re meeting all of his needs. He seems comfortable

in that living situation.” Id. at 51.

      Ms. Eddy testified that Child refers to Mother by her first name. Id. at

75. Further, she testified Child told her that he did not trust Mother, but he


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“identified the foster parents and their adult son as three adults that he feels

safe with and can trust to tell if somebody’s harming him.” Id. In fact, Ms.

Eddy testified that Child refers to his foster parents, who are a permanent

resource, as “mommy and daddy.” Id. at 86.

      Ms. Eddy testified that Child participates in counseling every six weeks

“just for maintenance.” Id. at 85. She explained:

      He’s doing extremely well. We had referred [Child] because it
      seemed odd to us that given all the trauma that he has endured
      in his young life that he is as well[-]adjusted as he is. [The
      counselor] sees no concerns of [Child] at this point[;] he’s doing
      very well. So she’s seeing him for maintenance appointments
      once every six weeks.

Id.   Further, Ms. Eddy testified that Child was “doing extremely well” in

kindergarten. Id. She stated:

      He frequently gets awards, they’re called star awards, for various
      things. His most recent one was for reading. He told us it was
      for reading 77 books. That wasn’t true, it was seven. He just got
      a little carried away. He’s gotten them for good behavior, good
      citizenship. His teacher describes him as the quintessential
      kindergartner. The school just has nothing but positive things to
      say.

Id.

      Moreover, Ms. Eddy testified that Child would not be harmed if Mother’s

parental rights are terminated.      She stated, “in addition to his emotional

stability, I would be much more concerned about his physical safety [if he

was] with his biological mother.” Id. at 87.

      We    conclude    that   the    testimonial   evidence   overwhelmingly

demonstrates that terminating Mother’s parental rights will best serve Child’s

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developmental, physical, and emotional needs and welfare pursuant to Section

2511(b). In addition, our independent review of the record reveals that there

are no other additional, non-frivolous issues overlooked by counsel.

Accordingly, we affirm the decree.

     Petition of Julian Allatt, Esquire, to withdraw from representation is

granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2019




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