J-S89016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF C.A.J.-B.Y., A                  IN THE SUPERIOR COURT OF
MINOR                                                    PENNSYLVANIA




APPEAL OF: S.T.J., FATHER

                                                       No. 1818 EDA 2016


                       Appeal from the Order April 28, 2016
               In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000301-2016
                                        CP-51-DP-0001468-2013

BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                           FILED JANUARY 10, 2017

       S.T.J. (“Father”) appeals from the April 28, 2016 decree terminating

his parental rights to C.A.J.-B.Y. (“Child”). Father’s counsel has also filed an

Anders1 brief and a motion to withdraw from representation on the ground

that the appeal is frivolous.          We affirm and grant counsel’s motion to

withdraw.

       On April 12, 2013, when Child was seven months old, the Philadelphia

Department of Human Services (“DHS”) received a Child Protective Service

report stating that Child had been taken to Albert Einstein Medical Center in
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       *
           Former Justice specially assigned to the Superior Court.
       1
        Anders v. California, 386 U.S. 738 (1967); see In re V.E., 611
A.2d 1267, 1275 (Pa.Super. 1992) (extending Anders principles to appeals
involving termination of parental rights).
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Philadelphia with a near-fatal stab wound to the back of his head.                   The

wound was 7 centimeters deep and penetrated Child’s brain. At the time of

the incident, Father and S.K.J. (“Mother”) were in the midst of a domestic

dispute in Child’s presence. At the hospital, the parents reported that Child

had accidentally fallen on the knife during their altercation. Child was later

transferred      to   St.   Christopher’s      Hospital   for   Children   and   remained

hospitalized until July 11, 2013.

         On April 13, 2013, Father was arrested and charged with attempted

murder, aggravated assault, endangering the welfare of children, possessing

an instrument of crime (“PIC”), simple assault, and recklessly endangering

another person.2

         On July 11, 2013, upon Child’s release from the hospital, DHS

obtained order of protective custody (“OPC”) and placed Child in medical

foster care.      After a shelter-care hearing on July 12, 2013, the trial court

lifted the OPC and ordered Child temporarily committed to DHS custody. On

July 19, 2013, the trial court adjudicated Child dependent and committed

him to the care and custody of DHS. The trial court also issued a stay-away

order as to Father.

         On June 17, 2015, Father pled guilty to endangering the welfare of a

child.       On the same day, he proceeded to a jury trial on the charges of


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         2
       Mother was also arrested as a result of the stabbing incident and, at
the time of Father’s termination hearing, was incarcerated.


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aggravated assault and PIC. However, the trial court declared a mistrial due

to a hung jury.3

       On July 30, 2015, the trial court found aggravating circumstances as

to both Father and Mother and found that Child had been a victim of physical

abuse resulting in serious bodily injury. At a permanency review hearing on

December 17, 2015, the trial court ordered that the stay-away order as to

Father remain in place.

       On March 29, 2016, DHS filed a petition to involuntarily terminate

Father’s parental rights and a petition for a goal change to adoption. After a

hearing on April 28, 2016, the trial court concluded that DHS proved by clear

and convincing evidence that Father’s parental rights should be terminated

and that it was in Child’s best interest to change the goal to adoption as to

Father. The trial court, however, deferred changing Father’s goal until after

Mother’s termination hearing.4




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       3
        Father’s retrial was scheduled to take place after the date of this
appeal, as was his sentencing on the child endangerment conviction. See
Anders Br. at 8.
       4
         The trial court stated that although DHS had “met [its] burden by
clear and convincing evidence to involuntarily terminate [Father’s] parental
right[s],” the court could not “change the goal to adoption without hearing
testimony regarding [Mother].”        N.T., 4/28/16, at 39-40.      Mother’s
termination hearing was scheduled for August 22, 2016, after the date of
this appeal. See Opinion, 7/1/16, at 2 (“1925(a) Op.”).


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       Father timely appealed to this Court on May 25, 2016. On September

1, 2016, Father’s counsel filed an Anders brief and a motion to withdraw

from representation.5

       When presented with an Anders brief, this Court may not review the

merits of the underlying issues until we address counsel’s request to

withdraw. To comply with Anders, appellate counsel must:

           (1) petition the court for leave to withdraw stating that
           after making a conscientious examination of the record
           and interviewing the defendant, counsel has determined
           the appeal would be frivolous;

           (2) file a brief referring to anything that might arguably
           support the appeal, but which does not resemble a “no
           merit” letter or amicus curiae brief; and

           (3) furnish a copy of the brief to [the] defendant and
           advise him of his right to retain new counsel, proceed pro
           se or raise any additional points that he [or she] deems
           worthy of the court's attention.

In   re    S.M.B.,     856    A.2d    1235,    1237   (Pa.Super.   2004)   (quoting

Commonwealth v. Ferguson, 761 A.2d 613, 619 (Pa.Super. 2000)).6 If

counsel satisfies these requirements, we will then independently examine

the record to determine if the appeal is frivolous. Id.

       In her motion to withdraw, counsel states that she can no longer

effectively represent Father because she and Father disagree about case

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       5
         Although counsel titled her motion a “motion to vacate counsel,” we
will refer to it herein as a motion to withdraw.
       6
       See also Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009) (setting forth requirements for contents of Anders brief).


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strategy.    Counsel further states that she thoroughly reviewed the record

and concluded that the appeal would be frivolous. In addition, counsel has

filed a brief raising all issues that might possibly support an appeal, has

furnished Father with a copy of the brief, and has advised Father of his

appellate rights and his right to retain counsel or proceed with the appeal

pro se.     Based on our review of the record, we conclude that counsel has

complied with Anders.

       We now must determine whether Father’s claims are frivolous. The

Anders brief raises two issues:

           1. Whether the termination of [F]ather’s parental rights
              was supported by “clear and convincing” evidence and
              whether the court erred by disregarding the “totality of
              the circumstances” and not taking into account
              [F]ather’s explanation for his failure to perform parental
              duties[.]

           2. Whether it was in [Child’s] best interests to be severed
              from [F]ather and adopted by his current caretakers.

Anders Br. at 2.7

       Our standard of review in termination cases is as follows:

           When reviewing an appeal from a decree terminating
           parental rights, we are limited to determining whether the
           decision of the trial court is supported by competent
           evidence. Absent an abuse of discretion, an error of law,
           or insufficient evidentiary support for the trial court’s
           decision, the decree must stand. Where a trial court has
           granted a petition to involuntarily terminate parental
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       7
        After our independent review of the record, we do not discern any
additional issues for appeal. Thus, we will address only the issues raised in
counsel’s Anders brief.


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           rights, this Court must accord the hearing judge’s decision
           the same deference that we would give a jury verdict. We
           must employ a broad, comprehensive review of the record
           in order to determine whether the trial court’s decision is
           supported by competent evidence.

S.M.B., 856 A.2d at 1238 (quoting In re C.S., 761 A.2d 1197, 1199

(Pa.Super. 2000)) (internal citations omitted).8

       The termination of parental rights is governed by section 2511 of the

Adoption Act, 23 Pa.C.S. § 2511. The trial court must conduct a bifurcated

analysis in which it initially focuses on the conduct of the parent.        In

Interest of B.C., 36 A.3d 601, 606 (Pa.Super. 2012). The party seeking

termination must prove by clear and convincing evidence that the parent’s

conduct satisfies at least one of the nine statutory grounds for termination in

section 2511(a). Id. If the trial court determines that the parent’s conduct

warrants termination under section 2511(a), then it must analyze the best
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       8
        The Pennsylvania Supreme Court has explained the reason for
applying an abuse of discretion standard to termination decisions as follows:

           [U]nlike trial courts, appellate courts are not equipped to
           make the fact-specific determinations on a cold record,
           where the trial judges are observing the parties during the
           relevant hearing and often presiding over numerous other
           hearings regarding the child and parents. Therefore, even
           where the facts could support an opposite result, as is
           often the case in dependency and termination cases, an
           appellate court must resist the urge to second guess the
           trial court and impose its own credibility determinations
           and judgment; instead we must defer to the trial judges so
           long as the factual findings are supported by the record
           and the court’s legal conclusions are not the result of an
           error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).


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interests of the child under section 2511(b), primarily considering the child’s

developmental, physical, and emotional needs. Id.

      First, Father asserts that the trial court erred in failing to consider the

“totality of the circumstances,” including “[his] pending criminal trial, his

incarceration[,] and the stay-away order,” before terminating his parental

rights. Anders Br. at 3. We disagree.

      The trial court terminated Father’s parental rights under sections

2511(a)(1), (2), (5), (8). However, we need only agree with the trial court’s

determination as to one subsection of section 2511(a) in order to affirm. In

re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Thus, we will

analyze the trial court’s decision to terminate under section 2511(a)(2),

which provides:

         (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.

23 Pa.C.S. § 2511(a)(2).

      To terminate parental rights under section 2511(a)(2), DHS must

establish:   (1) the parent’s repeated and continued incapacity, abuse,

neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused

the child to be without essential parental care, control or subsistence

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necessary for his physical or mental well-being; and (3) the causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied. S.P.,

47 A.3d at 828.       A parent’s incarceration is relevant to the section

2511(a)(2) analysis and may be dispositive of a parent’s ability to provide

the “essential parental care, control or subsistence” that the statute

contemplates. Id. Furthermore, “[t]he cause of [the parent’s] incarceration

may be particularly relevant to the Section 2511(a) analysis, where

imprisonment arises as a direct result of the parent’s actions which were

‘part of the original reasons for the removal’ of the child.” In re Z.P., 994

A.2d 1108, 1120 (Pa.Super. 2010) (quoting In re C.L.G., 956 A.2d 999,

1006 (Pa.Super. 2008)).

      Here, in its section 2511(a) analysis, the trial court carefully

considered Father’s present circumstances and the reasons for Child’s

removal from his custody.     The trial court focused not only the fact that

Father has been incarcerated for most of Child’s life, but also on the fact that

Father’s incarceration was the direct result of the stabbing incident that

seriously injured Child. The trial court found:

         In the instant case, the stay away order was issued due to
         [Father’s] own conduct. Furthermore, [Father] has been
         incarcerated during the entire time [Child] has been in the
         care and custody of DHS. [Father’s] release date from
         prison is unknown. He still has an open criminal case
         regarding the stabbing incident with [Child]. . . .
         Moreover, the [Community Umbrella Agency] supervisor
         testified that the conditions which brought this case into
         the care of DHS have not been remedied.

                                      ...

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            . . . [T]he court found that a domestic violence incident
            between [Mother] and [F]ather resulted in [Child] incurring
            a stab wound. The stab wound caused [Child] to suffer
            permanent disabilities. The evidence presented in this
            case clearly warrants the involuntary termination.

1925(a) Op. at 4 (internal citations omitted).         The trial court, as the

factfinder, was required to make all credibility determinations and resolve

the conflicts in the evidence. Z.P., 994 A.2d at 1115-16. We find no abuse

of discretion.9

       Next, Father asserts that the trial court erred in concluding that

changing the goal to adoption was in Child’s best interests.10 We disagree.

       To terminate parental rights, DHS must prove by clear and convincing

evidence that termination is in the child’s best interests under section

2511(b). “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 . . . only one of

many factors to be considered by the court when determining what is in the

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       9
        Father also argues that at the time of the termination proceeding, he
was awaiting retrial on the aggravated assault and PIC charges and, thus, “it
was conceivable that he may have been found not guilty of the more serious
charges and would have been eligible for release [from prison].” Anders Br.
at 8. However, the evidence credited by the trial court established that
Father’s release date was unknown and that he would be unable to care for
Child within a reasonable amount of time. N.T., 4/28/16, at 10-11, 13-14.
       10
         We recognize that the April 28, 2016 decree from which Father
appealed did not formally change Father’s goal to adoption. See supra n.3.
However, the trial court stated on the record at the termination hearing that
DHS had satisfied its burden of proof under section 2511(b), N.T., 4/28/16,
at 40, and also concluded in its opinion that adoption was in Child’s best
interests, 1925(a) Op. at 5-6. Therefore, we will address Father’s claim.


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best interest of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011).

The trial court must also consider the child’s safety needs and “intangibles,

such as the love, comfort, security, and stability the child might have with

the foster parent.”   Id. (quoting In re A.S., 11 A.3d 473, 483 (Pa.Super.

2010)).    Moreover, the trial court must consider “whether any existing

parent-child bond can be severed without detrimental effects on the child.”

Id.

      With regard to section 2511(b), the trial court found:

          [T]he testimony established that [Child] would not suffer
          any irreparable harm if [Father’s] rights were terminated.
          There is no evidence that a bond exists between [Father]
          and [Child]. The bond was never able to develop because
          there was a stay away order issued against [Father] when
          [Child] was less than eight months old. . . . [F]ather has
          been convicted of endangering the welfare of his child.
          The child sustained stab wounds to the head resulting in
          major ongoing medical needs. The child is placed in a
          medical foster home. The testimony indicated that it
          would be in the best interest of [Child] to change the goal
          to adoption.

1925(a) Op. at 5-6 (internal citations omitted). The record supports the trial

court’s findings. Therefore, we conclude that DHS established, by clear and

convincing evidence, that termination of Father’s parental rights was in

Child’s best interests.

      Decree affirmed. Counsel’s petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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