J-S07014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.L., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: A.L., BIOLOGICAL                :
    MOTHER                                     :
                                               :
                                               :
                                               :
                                               :   No. 1787 MDA 2018

                Appeal from the Decree Entered October 3, 2018
              In the Court of Common Pleas of Cumberland County
                  Orphans' Court at No(s): 73 Adoptions 2018


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                             FILED FEBRUARY 25, 2019

       A.L. (“Mother”) appeals from the October 3, 2018 decree terminating

her parental rights to her 11-year-old daughter K.L. (“Child”). On this direct

appeal, court-appointed counsel has filed an application to withdraw and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and In re V.E.,

611 A.2d 1267 (Pa. Super. 1992).1              We conclude that Mother’s counsel

complied     with   the    procedural     requirements   necessary   to   withdraw.

Furthermore, after independently reviewing the record, we conclude that the

appeal is wholly frivolous.        We, therefore, grant counsel’s application to

withdraw and affirm the decree terminating Mother’s parental rights.




____________________________________________


1 In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court extended
the Anders principles to appeals involving the termination of parental rights.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Child was born in 2007.           On May 8, 2014, Child was adjudicated

dependent because of Mother’s mental health struggles and Child’s refusal to

attend school. On October 16, 2014, the trial court ended the dependency.

On September 22, 2016, Child was again adjudicated dependent because of

Mother’s drug use and mental health problems. On April 27, 2017, the trial

court ordered Child removed from Mother’s care and placed in a foster home.

       On March 15, 2018, Cumberland County Children and Youth Services

(“CYS”) filed a petition for goal change and a petition to terminate Mother’s

parental rights as to Child. On September 28, 2018, the trial court held a

termination hearing.2 On October 3, 2018, the trial court terminated Mother’s

parental rights as to Child.3 This timely appeal followed.4

       Counsel raises two issues in his Anders brief:

       1. Whether the [t]rial [c]ourt abused its discretion and committed
       an error of law when it found, despite a lack of clear and
       convincing evidence, that sufficient grounds existed for a
       termination of [Mother’s] parental rights under . . . 23 Pa.C.S.A.
       § 2511(a)[?]

       2. Whether the [t]rial [c]ourt abused its discretion and committed
       an error of law in determining it would be in [C]hild’s best interest
       to have parental rights terminated, when it failed to primarily


____________________________________________


2 A guardian ad litem represented Child’s best interest and separate counsel
represented Child’s legal interest.

3Child’s legal father and biological father consented to the termination of their
parental rights as to Child.

4 Mother and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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     consider [C]hild’s developmental, physical[,] and emotional needs
     and welfare, thus contravening . . . 23 Pa.C.S.A § 2511(b)[?]

Anders Brief at 5.

     Before reviewing the merits of this appeal, we must first determine

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,

431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders, court-

appointed counsel

     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof. Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se, or raise any additional
     points worthy of this Court’s attention.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned up).

     If counsel meets all of 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.” Commonwealth v. Santiago, 978 A.2d 349, 355

n.5 (Pa. 2009) (citation omitted). It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to




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withdraw. In the case at bar, counsel has met all of the above procedural

obligations.5 We now turn to whether this appeal is wholly frivolous.

        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)

(citation omitted). “The party seeking termination must prove by clear and

convincing evidence that the parent’s conduct satisfies the statutory grounds

for termination[.]” In re Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super.

2018), appeal denied, 183 A.3d 979 (Pa. 2018) (citation omitted).

        The first issue raised in counsel’s Anders brief is whether the trial court

erred in concluding that the requirements of section 2511(a) were satisfied.

“In order to affirm the termination of parental rights, this Court need only

agree with any one subsection under [s]ection 2511(a).” In re Interest of

D.F., 165 A.3d 960, 966 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa.

2017) (citation omitted).        The trial court found that the requirements of

sections 2511(a)(2), (5), and (8) were satisfied. We focus our attention on

section 2511(a)(8), which provides that a parent’s rights to a child may be

involuntarily terminated if

        [t]he child has been removed from the care of the parent by the
        court or under a voluntary agreement with an agency, 12 months
        or more have elapsed from the date of removal or placement, the
        conditions which led to the removal or placement of the child
        continue to exist[,] and termination of parental rights would best
        serve the needs and welfare of the child.


____________________________________________


5   Mother did not file a response to counsel’s Anders brief.

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23 Pa.C.S.A. § 2511(a)(8).

      In this case, there is no dispute that Child was removed from Mother’s

care for at least 12 months at the time of the termination hearing. Hence, we

initially focus our inquiry on whether the conditions which led to Child’s

removal from Mother’s care continued to exist at the time the trial court

terminated Mother’s parental rights. As noted above, Child was removed from

Mother’s care because of her drug use. Over one year later, at the time of

the termination hearing, CYS could not confirm Mother’s progress with respect

to drug treatment. See N.T., 9/28/18, at 19.

      More importantly, Mother failed to receive any mental health treatment

or counseling. Id. at 54-55. Mother knew that mental health treatment and

counseling were critical to gaining physical custody of Child. See id. at 49.

Because Mother failed to remedy the situation that led to Child’s removal from

her care, and, as discussed below, termination of parental rights would best

serve the needs and welfare of Child, the trial court correctly concluded that

the requirements of section 2511(a)(8) were satisfied.

      Having determined that CYS proved by clear and convincing evidence

the requirements of section 2511(a)(8), we next consider section 2511(b)’s

requirements. The focus in terminating parental rights under section 2511(a)

is on the parent, but the focus under section 2511(b) is on the child. See In

re M.Z.T.M.W., 163 A.3d 462, 464 (Pa. Super. 2017) (citation omitted).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional

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      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term bond is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the []section 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 Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (cleaned

up). Moreover, “[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

251, 267 (Pa. 2013) (citation omitted).

      Child testified at the termination hearing that she preferred to have

Mother’s parental rights terminated. N.T., 9/28/18, at 7. She explained that

Mother “can’t do what she’s supposed to do.” Id. at 8. She then clarified that

Mother was not receiving the mental health and drug treatment necessary for

Mother to properly care for her. See id.     Child’s foster mother and a CYS

caseworker confirmed that Child’s foster mother was providing the necessary

care and support for Child’s developmental, physical, and emotional needs.

The guardian ad litem concurred with these witnesses’ testimony. Contrast

this with the lack of care and support that Child received when she was living

with Mother. The trial court found that Child needs stability in her life and

that foster mother provides that stability while Mother does not. We agree

with this finding.   Accordingly, we conclude that CYS proved by clear and


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convincing evidence that termination of Mother’s parental rights was in Child’s

best interest.

      In sum, we conclude that the issues raised in counsel’s Anders brief are

wholly frivolous.   Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we grant counsel’s request to withdraw. Having determined that the issues

raised on appeal are wholly frivolous, we affirm the decree terminating

Mother’s parental rights.

      Application to withdraw as counsel granted. Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/25/2019




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