J-S77016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: J.D.D.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.E., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 2105 EDA 2018

                 Appeal from the Decree Entered June 18, 2018
      In the Court of Common Pleas of Delaware County Orphans' Court at
                             No(s): 0047-2017-A


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 23, 2019

       C.E. (“Father”) appeals from the June 18, 2018 Decree involuntarily

terminating his parental rights to his minor son, J.D.D. (“Child”), born in

January 2012.1      Additionally, Father’s counsel, Alice Buggy Miller, Esquire,

seeks to withdraw her representation of Father pursuant to Anders v.

California, 87 S. Ct. 1936 (1967), Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), and In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)

(extending Anders briefing criteria to appeals by indigent parents represented

by court-appointed counsel in involuntary termination matters). After careful



____________________________________________


1 N.A.D. (“Mother”) voluntarily relinquished her parental rights; the court
confirmed her relinquishment on May 24, 2018. See Final Decree, 5/24/18,
at 1. Mother has not appealed this Decree. Additionally, on June 18, 2018,
the court terminated the parental rights of any unknown father. See Final
Decree, 6/18/18, at 1.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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review, we grant counsel’s petition to withdraw representation, and affirm the

orphans’ court Decree.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

      Child was born in January 2012. Mother and Child have been known to

Delaware County Children and Youth Services (“CYS”) since October 2014,

when Mother was admitted to Mercy Fitzgerald Hospital after she stopped

taking medications prescribed for schizophrenia.    See CYS Exhibit 1, at 3.

Mother had also been diagnosed with an intellectual disability.     Id. at 15.

Maternal Grandmother had been caring for Child, but there were concerns that

she was abusing drugs. Id. at 3. Mother named Father as a possible father

of Child, but Father was not a resource as he was incarcerated at SCI Albion

at the time.   Id.   After the family appeared to stabilize, the case was

eventually closed in June 2015. Id.

      The family was again referred to CYS in April 2016, following Mother’s

psychiatric hospitalization and allegations that Maternal Grandmother was

using illegal substances and driving under the influence with Child in the car,

rendering both Mother and Maternal Grandmother unable to care for Child.

Id. There were additional concerns that Child had special needs that were not

being met in his current home environment. Id.

      On April 7, 2016, a CYS caseworker visited the residence to assess the

allegations. Id. at 4. Maternal Grandmother was present at the apartment,

which was cluttered and filthy. Id. Maternal Grandmother appeared to be

under the influence of an unknown substance: her speech was slurred, very

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fast, and incoherent, and she would occasionally state without prompting that

she was not high. Id. Maternal Grandmother confirmed that Mother was in

the hospital receiving inpatient psychiatric care. Id. The caseworker drug

tested Maternal Grandmother and the results were positive for phencyclidine

(“PCP”). Id.

      The caseworker visited Mother in the hospital, and discovered that

Mother had voluntarily hospitalized herself after hearing voices and feeling

depressed. Id.

      A search confirmed that Father was incarcerated at SCI Albion, but

paternity was not established, and it was unclear whether he was Child’s

biological father. Id.

      On April 7, 2016, when Child was nearly 4½ years old, CYS obtained

custody after Mother signed a voluntary placement agreement. Id. Child was

diagnosed with autism spectrum disorder, level 3, as well as impulsive

disorder, impulsive character, and severe global developmental delays. Id.

at 15. His developmental age was approximately that of a one-year-old. Id.

At the time of his placement, Child was non-verbal, communicated by using

pictures, and pointing at things he needed. Id. at 4. Child was adjudicated

dependent on May 2, 2016. Id.




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       On May 10, 2017, CYS filed petitions seeking to terminate, voluntarily

and involuntarily,2 the parental rights of Mother, and to terminate involuntarily

the parental rights of Child’s unknown father. Both petitions averred that the

identity of Child’s father was unknown. See Petition, 5/10/17, at 1-4.

       On June 21, 2017, CYS filed a petition seeking to voluntarily and

involuntarily terminate the parental rights of Father.3 The petition noted that

Father had signed an acknowledgment of paternity on June 20, 2016. See

Petition, 6/21/17, at 1-3. The petition further averred that Father, who is

incarcerated, has an extensive criminal history.4 Id.    Father’s earliest prison

release date is 2027. Id.
____________________________________________


2 The petition averred that Mother wished to relinquish her rights voluntarily
as relinquishment was in Child’s best interests, but also raised grounds for
involuntary termination under 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).
See Petition, 5/10/17, at 1-4.

3 The petition averred that Father wished to relinquish his parental rights
voluntarily as relinquishment was in Child’s best interests, but also raised
grounds for involuntary termination under 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b).

4 In June 1999, Father entered a guilty plea to rape – forcible compulsion.
See Court Summary, 13; 18 Pa.C.S. § 3121(a)(1). He was sentenced to three
and one-half to seven years of incarceration. Father was released from prison
in June 2010. In September 2011, Father was discharged from his sexual
offender group for lack of attendance and a warrant was put out for his arrest.
In May 2013, Father was arrested on new charges related to the sexual abuse
of a child. Id. He entered a negotiated guilty plea to two counts of unlawful
contact with a minor, two counts of indecent assault, and two counts of
corruption of minors. See 18 Pa.C.S. §§ 6318(a)(1), 3126(a)(4), and
6301(a)(1)(i), respectively. Father was sentenced to twelve and one-half to
twenty-five years of incarceration.




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       On May 24, 2018, the court convened a hearing on the petitions.

Nicholas Orloff, Esquire, represented Child as guardian ad litem and legal

counsel.5    Mother was represented by legal counsel and a guardian ad litem.

Mother testified that she was relinquishing her parental rights of her own free

will. See N.T., 5/24/18, at 1-18. Father, represented by counsel, was present

in the courtroom and briefly testified on his own behalf. Id. at 20. Father

stated that he loved Child, missed him, and “never really got to see him.” Id.

No evidence was introduced to show that Father had ever seen Child,

contacted Child, had any kind of relationship with Child, or that Child was

bonded to Father.

       CYS presented no witnesses. Instead, counsel for CYS moved for the

entry into the record of several exhibits, which included a detailed summary

of the history of the case, mental health reports and psychiatric evaluations

as to Mother, Father’s acknowledgment of paternity, Father’s criminal docket

reports, a psychological evaluation of Child, and family and bonding

evaluations regarding the foster parents and Child. See N.T., 5/24/18, at 14-

18. Both parents stipulated to the admission of these documents. Id.

       At the conclusion of the hearing, the court held the matter under

advisement, and later confirmed Mother’s voluntary relinquishment and
____________________________________________



5See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (holding that guardian
ad litem may also serve as legal counsel where there is no conflict between
child’s best and legal interests, and that where child is pre-verbal, there can
be no conflict between those interests).


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involuntarily terminated Father’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), (8), and (b). Father timely filed a notice of appeal and

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

1925(a)(2)(i) and (b).

ISSUES ON APPEAL

      Father raises the following issues on appeal:

      1. Did the [h]onorable [c]ourt err by terminating [Father’s]
      parental rights because the evidence presented by [CYS] was
      insufficient to support the lower court’s decision?

      2. Whether counsel has satisfied all of the requirements
      established in Anders v. California, 386 U.S. 738 (1967) and
      [its] Pennsylvania equivalent, Com. v. [McClendon], 434 A.2d
      1185 [(Pa.] 1981) for withdrawal on grounds that the appeal is
      wholly frivolous?

Anders Brief at 9 (answers omitted).

COUNSEL’S APPLICATION TO WITHDRAW

      On October 11, 2018, Father’s counsel filed an application to withdraw

as counsel and an Anders brief. Father has not responded to the Anders

brief. When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).    Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (1) provide a summary of the procedural history and facts, with
      citations to the record;


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      (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.

      Counsel also must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      right to: “(1) retain new counsel to pursue the appeal; (2) proceed
      pro se on appeal; or (3) raise any points that the appellant deems
      worthy of the court[’]s attention in addition to the points raised
      by counsel in the Anders brief.” Commonwealth v. Nischan,
      928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704,
      936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then make an independent

determination of the merits of the issues raised in the Anders brief, as well

as review the record to determine whether there are any non-frivolous issues

overlooked by counsel. Commonwealth v. Yorgey, 188 A.3d 1190, 1197

(Pa. Super. 2018) (citations and footnote omitted).

      Father’s counsel has complied with all of the requirements of

Anders/Santiago. We thus proceed to the merits of the issues raised.

LEGAL ANALYSIS

      We review cases involving the termination of parental rights according

to the following standards.


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     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) (internal citations and quotations

omitted).

     Termination 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).

     While the orphans’ court found that CYS met its burden of proof under

23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), we need only agree with its

decision as to any one subsection of Section 2511(a) and subsection (b) in

order to affirm the termination of parental rights. In re B.L.W., 843 A.2d

380, 384 (Pa. Super. 2004)(citation omitted). For the following reasons, we


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conclude that the trial court correctly determined that CYS met its burden of

proof under 23 Pa.C.S. § 2511(a)(2) and (b).

     The relevant portions of Section 2511 provide:

     (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. § 2511.

Termination Pursuant to 2511(a)(2)

     We first conclude that the orphans’ court properly exercised its

discretion by terminating Father’s parental rights pursuant to Section

2511(a)(2).




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      To satisfy the requirements of Section 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”

See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998).              The

grounds for termination are not limited to affirmative misconduct, but concern

parental incapacity that cannot be remedied.      In re Z.P., 994 A.2d 1108,

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward

the reasonably prompt assumption of full parental duties. Id.

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court

considered the question of incarceration as a factor to be considered in a

subsection (a)(2) analysis and concluded:

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination, can be determinative of the question of
      whether a parent is incapable of providing “essential parental
      care, control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether “the
      conditions and causes of the incapacity, abuse, neglect or refusal
      cannot or will not be remedied by the parent,” sufficient to provide
      grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2). See
      e.g. Adoption of J.J., 515 A.2d [883, 891 (Pa. 1986)] (“[A]
      parent who is incapable of performing parental duties is just as
      parentally unfit as one who refuses to perform the duties.”); [In
      re] E.A.P., 944 A.2d [79, 85 (Pa. Super. 2008)](holding
      termination under § 2511(a)(2) was supported by mother’s
      repeated incarcerations and failure to be present for child, which
      caused child to be without essential care and subsistence for most
      of her life and which cannot be remedied despite mother’s
      compliance with various prison programs).



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Id. at 830 (footnote omitted).

      Here, the orphans’ court based its determination on Father’s lack of

effort to parent Child or, indeed, to have any contact whatsoever with Child,

both while he was incarcerated and otherwise. See Orphans’ Court Opinion,

8/21/18, at 8-9. The only evidence introduced regarding Father’s relationship

with Child was that he saw Child “once in a blue moon” through “pictures and

stuff.” Id. In her Anders brief, counsel raises one point of evidence that

could arguably support Father’s appeal, namely, that he signed an

acknowledgment of paternity while incarcerated. See Anders Brief, at 15.

      Following a thorough review of the record in this matter, we conclude

that the orphans’ court did not abuse its discretion in granting the petition

pursuant to Section 2511(a)(2). The record establishes that Father not only

failed to provide security, stability and safety for the Child for any substantial

period of time, but also failed to call or visit with Child, write any letters or

send any cards or gifts to Child, or attempt to utilize any prison resources

available to him to visit with Child. Additionally, Father is incarcerated and

will remain incarcerated until, at the earliest, 2027, so it is reasonable to

assume that he will be unable to care for the Child for most of the Child’s life

as a minor. Finally, there is no evidence of record from which the trial court

can infer that Father is equipped to handle Child’s complex medical and

developmental needs on a sustained basis.




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      The record confirms that the orphans’ court properly terminated Father’s

parental rights based on Section 2511(a)(2) after concluding that Father is

incapable of parenting Child and that he cannot or will not remedy his parental

incapacity.

Termination Pursuant to 2511(b)

      We also conclude that, pursuant to Section 2511(b), the orphans’ court

properly determined that termination of Father’s parental rights would be in

the best interests of Child.

      With respect to Section 2511(b), we consider whether termination of

parental rights will best serve the Child’s developmental, physical, and

emotional needs and welfare. Z.P., 994 A.2d at 1121. “In this context, the

court must take into account whether a bond exists between child and parent,

and whether termination would destroy an existing, necessary and beneficial

relationship.”   Id.   The court is not required to use expert testimony, and

social workers and caseworkers may offer evaluations as well. Id. Ultimately,

the concern is the needs and welfare of a child.      Id.   Where there is no

evidence of a bond between the parent and child, it is reasonable to infer that

no bond exists. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).

      We have noted:

      [b]efore granting a petition to terminate parental rights, it is
      imperative that a trial court carefully consider the intangible
      dimension of the needs and welfare of a child—the love, comfort,
      security, and closeness—entailed in a parent-child relationship, as
      well as the tangible dimension. Continuity of relationships is also
      important to a child, for whom severance of close parental ties is

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       usually extremely painful. The trial court, in considering what
       situation would best serve the child[ren]’s needs and welfare,
       must examine the status of the natural parental bond to consider
       whether terminating the natural parents’ rights would destroy
       something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000)).

       Here, the orphans’ court found that termination would best serve Child’s

needs and welfare. Father’s counsel does not raise any point of evidence that

could arguably support Father’s appeal in this regard.

       The evidence introduced at the hearing established that there is no bond

between Child and Father.       Child has significant special needs, requiring

twenty-four hour supervision and intervention services likely for the rest of

his life.   In contrast, Child’s foster family has expressed a desire to adopt

Child, has adopted three other special needs children, and has fostered

twenty-three children prior to Child. The bonding report indicates that Child

is strongly bonded with his foster family, particularly his foster mother. Child’s

foster parents care for him and provide for his needs appropriately, and Child

has made some progress with vocalizing words and with his daily behaviors in

their home.

       As required by Section 2511(b), the court weighed the evidence of any

bond between Father and Child against Child’s need for permanency and

stability, and determined that termination would best serve Child’s needs and

welfare. The court noted the complete lack of any relationship between Father

and Child, and Child’s significant medical needs.        Accordingly, the court


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concluded that Child’s need for the permanency and stability that foster

parents provided could best serve Child’s needs. See Z.P., 994 A.2d at 1121;

K.Z.S., 946 A.2d at 763.

      When an attorney files an Anders brief, the appellate court must

conduct an independent review of the record to determine whether there are

any meritorious issues counsel could have raised. See Santiago, 978 A.2d

at 355 n.5. We have reviewed the record and conclude that there are no

issues of merit to be raised.

      Based on the foregoing, we grant counsel’s petition to withdraw and

affirm the Decree involuntarily terminating Father’s parental rights.

      Counsel’s Petition to withdraw granted. Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/19




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