J-S16005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.M.D.M., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.M.                            :
                                               :
                                               :
                                               :
                                               :   No. 1791 MDA 2017

                    Appeal from the Decree October 23, 2017
    In the Court of Common Pleas of Berks County Orphans' Court at No(s):
                                     84879


BEFORE:      BOWES, J., MURRAY, J., and PLATT, J.*

MEMORANDUM BY BOWES, J.:                                 FILED APRIL 30, 2018

        T.M. (“Mother”) appeals from the decree entered October 23, 2017,

which involuntarily terminated her parental rights to her minor son, J.M.D.M.,

born in March 2014. Mother’s counsel, Kelly S. Kline, Esquire, filed a petition

to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we grant counsel’s petition to withdraw and affirm.1

        J.M.D.M. became known to Berks County Children and Youth Services

(“BCCYS”) on April 2, 2015, after BCCYS received a report that the then-one-

year-old child was behind on his immunizations and developmentally delayed.

He still was unable to crawl. Additionally, BCCYS noted concerns with Mother’s
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*   Retired Senior Judge assigned to the Superior Court.

1 On September 11, 2017, the orphans’ court terminated the parental rights
of J.M.D.M.’s father, J.D., who did not appeal.
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lack of appropriate parenting skills and supervision, her failure to provide for

J.M.D.M.’s basic needs, the lack of stable and appropriate housing and

employment, and concerns with Mother’s mental health and substance abuse.

       On May 20, 2015, the juvenile court adjudicated J.M.D.M. dependent

and ordered that he be placed in foster care. On August 9, 2016, the court

temporarily suspended Mother’s supervised visitations with J.M.D.M. after it

was reported that she fell asleep during visits and upon the discovery that her

urine screen was positive for a controlled substance.       The juvenile court

ordered that visitations could resume once Mother provided evidence that she

was sober and capable of providing her son with appropriate supervision.

       On June 9, 2016, BCCYS filed a petition to terminate Mother’s parental

rights to J.M.D.M.      Nearly one year later,2 the court appointed counsel to

represent mother and appointed a guardian ad litem to represent J.M.D.M.

“pursuant to the provisions of the Adoption Act of Pennsylvania, . . . 23

Pa.C.S.A. [§] 2101 et seq.”3 Trial Court Order, 6/12/17, at 1. The orphans’
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2 The certified record does not explain the one-year delay. Although Mother
twice voluntarily relinquished her parental rights to J.M.D.M., only to revoke
her consents weeks later, she executed those ploys during September 2017,
approximately fifteen months after BCCYS filed its petition to terminate her
parental rights. Thus, while the orphans’ court attempts to attribute the delay
to Mother’s antics, the certified record will not sustain that conclusion.

3   The orphans’ court’s appointment of a guardian ad litem to represent
J.M.D.M. during the contested termination proceedings does not comply with
the specific dictates of the Adoption Act to appoint legal counsel. This Court
will address sua sponte an orphans’ court’s failure to appoint counsel pursuant
to 23 Pa.C.S. § 2313(a). See In re K.J.H., 2018 PA Super 37 *2 (Pa.Super.



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court conducted a termination hearing on October 23, 2017. At the hearing,

BCCYS presented the testimony of Cheri Kipp, the adoption caseworker

assigned to Mother’s case, and Mother testified on her own behalf. At the

conclusion of the hearing, the orphans’ court terminated Mother’s parental

rights to J.M.D.M. Mother timely filed a notice of appeal along with a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On January 22, 2018, Mother’s counsel filed in this Court a petition to withdraw

and Anders brief.

       Before reaching the merits of Mother’s appeal, we must address

counsel’s petition to withdraw.        See Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa.Super. 2005). In In re V.E., 611 A.2d 1267 (Pa.Super. 1992),

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filed Feb. 20, 2018). In In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017),
our Supreme Court held that § 2313(a) required that counsel be appointed
to represent the legal interests of any child involved in a contested involuntary
termination proceeding. The High Court recognized, however, that the opinion
did not overrule our holding in In re K.M., 53 A.3d 781 (Pa.Super. 2012),
insofar as a guardian ad litem who is an attorney may act as counsel so long
as the dual roles do not create a conflict between the child’s best interest,
which is determined by the trial court, and the child’s legal interest, which the
High Court defined as synonymous with his or her preferred outcome.

Instantly, J.M.D.M.’s guardian ad litem supported the termination of Mother’s
parental rights as serving his best interests. Our review of the record does
not reveal any conflict between this positon and J.M.D.M’s legal interests.
Indeed, beyond developing the strong familial bond with his pre-adoptive
foster parents that we discuss in the body of this memorandum, three-year-
old J.M.D.M. did not express a preferred outcome. Thus, remand is not
required. Cf. In re T.M.L.M., 2018 PA Super 87 (filed April 13, 2018)
(remand for further proceedings when six-year-old child’s preference was
equivocal and the attorney neglected to interview the child to determine
whether best interest and legal interest aligned).

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this Court extended the Anders procedure to appeals from decrees

involuntarily terminating parental rights. 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

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

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



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            record, controlling case law, and/or statutes on point that
            have led to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

      In the instant matter, Mother’s counsel filed a petition to withdraw

certifying that she reviewed the record and determined that Mother’s appeal

was frivolous. Counsel also filed a brief, which includes a summary of the

history and facts of the case, potential issues that could be raised by Mother,

and counsel’s assessment of why those issues are frivolous, with citations to

relevant legal authority. Counsel provided Mother a copy of the brief, and a

letter advising her that she may obtain new counsel or raise additional issues

pro se. Accordingly, counsel complied substantially with the requirements of

Anders and Santiago.      Therefore, we may proceed to review the issues

outlined in the Anders brief. We must also “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.

      A. Whether the honorable court erred as a matter of law by
         terminating [Mother’s] parental rights to [J.M.D.M.]?

      B. Whether the evidence presented by [BCCYS] was insufficient
         as a matter of law to support the honorable court’s decision to
         terminate [Mother’s] parental rights?

      C. Whether the honorable court erred in and abused its discretion
         in terminating [Mother’s] parental rights where [Mother] has
         obtained stable housing and has engaged in services such that


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         she was able to bring her newborn child home from the
         hospital?

Anders brief at 4.

      We review these claims mindful of our well-settled standard of review.

      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) (citations and quotation marks

omitted).

      Termination of parental rights is governed by § 2511 of the Adoption

Act, 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).



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      In this case, the orphans’ court terminated Mother’s parental rights

pursuant to § 2511(a)(1), (2), (5), (8) and (b). We need only agree with the

court as to any one subsection of § 2511(a), as well as § 2511(b), in order to

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

we analyze the court’s decision to terminate under § 2511(a)(1) and (b),

which provides as follows.

           (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 notice of the filing
           of the petition.

23 Pa.C.S. § 2511(a)(1), (b).

      As it relates to § 2511(a)(1), the pertinent inquiry for our review is as

follows:




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         To satisfy Section 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. . . . Section 2511 does not require
         that the parent demonstrate both a settled purpose of
         relinquishing parental claim to a child and refusal or failure
         to perform parental duties. Accordingly, parental rights may
         be terminated pursuant to Section 2511(a)(1) if the parent
         either demonstrates a settled purpose of relinquishing
         parental claim to a child or fails to perform parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998) (internal citations omitted)).

      Although the six months immediately preceding the filing of the petition

are the most critical to the analysis, “the trial court must consider the whole

history of a given case and not mechanically apply the six-month statutory

provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004). Additionally,

to the extent that the orphans’ court based its decision to terminate parental

rights pursuant to subsection (a)(1), “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(b). In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), we

explained, “[a] parent is required to exert a sincere and genuine effort to

maintain a parent-child relationship; the parent must use 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.”


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       Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the trial court must then

engage in three additional 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 Z.S.W., 946 A.2d 726, 730

(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., supra at 91).

       Instantly, the orphans’ court concluded that BCCYS presented clear and

convincing evidence with respect to § 2511(a)(1).        See Orphans’ Court

Opinion, 12/15/17, at 7. In sum, the court found that during the twenty-nine

months J.M.D.M. was in placement, “Mother failed to perform her parental

duties and has never been there for her son.” Id.

       Mother argues that “she should be permitted the opportunity to have

[her son’s] custody transferred to New Jersey, and be given the additional

opportunity to raise him now that she is engaged in programs in New Jersey

. . . [a]nd be given the opportunity to have” J.M.D.M. grow up with his half-

brother, who resides with Mother in New Jersey.4 Mother’s Brief at 8.

       Our review of the record supports the findings of the orphans’ court.

During the termination hearing, Cheri Kipp testified that Mother’s compliance


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4 Mother gave birth to a son, J.M.D.M.’s half-sibling, in July 2017. Mother
resides with a relative in New Jersey who supervises custody of that child.
N.T., 10/23/17, at 17, 27.

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with BCCYS’s service objectives was minimal. BCCYS fashioned the following

objectives for Mother: participate in parenting education, complete a mental

health evaluation and comply with any recommended treatment, complete a

domestic violence evaluation and comply with any recommended treatment,

obtain stable and appropriate housing, keep BCCYS updated with any changes

in residence or income, and cooperate with caseworker services.        N.T.,

10/23/17, at 9.

     Mother never completed a mental health evaluation or enrolled in

domestic violence counseling. Id. at 12. Moreover, Ms. Kipp testified that

while Mother completed a drug and alcohol evaluation, she failed to follow-

through with the recommended treatment, she was unable to provide four

consecutive clean samples, and she tested positive for K2 (synthetic

marijuana) during February 2017 and tetrahydrocannabinol (the primary

ingredient in marijuana) after she gave birth to J.M.D.M.’s half-brother in

September 2017. Id. at 11, 24-25, 28.

     Mother did not obtain stable housing.    Since May 2015, Mother has

resided in at least fourteen different residences and has failed to update

BCCYS when she moved. Id. at 9-10. Most recently, in September 2017,

Mother relocated from Pennsylvania to New Jersey, where she gave birth to

her second child. Id. at 9. Ms. Kipp also indicated that Mother has not been

able to demonstrate that she can maintain stable employment. Id. at 10.

Mother’s counsel made no effort to challenge this evidence, and she conceded


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on cross-examination that she is unemployed and receiving cash assistance

through the Temporary Assistance for Needy Families program. Id. at 27.

      Likewise, Mother remained uncooperative with BCCYS. Id. at 10. Ms.

Kipp testified that although Mother had met with BCCYS service providers

multiple times, she appeared very agitated at meetings and failed to accept

responsibility for the reasons that J.M.D.M. came into placement. Id. With

regard to visitation, Ms. Kipp testified that Mother attended only twenty-two

supervised visitations for a total of forty-eight hours over the twenty-nine

months that he was in placement. Id. at 10-11. Mother has not had physical

contact with her son since July 2016. Id. at 11.

      Finally, Mother failed to refrain from criminal activity.    She not only

recently pled guilty to retail theft charges, but she also failed to comply with

the terms of her plea agreement. Id. Indeed, the record confirms that police

detained Mother following the termination hearing due to her noncompliance

with the terms of her plea agreement. Id. at 31.

      The foregoing evidence demonstrates that Mother either refused or

failed to perform parental duties during the six months immediately preceding

the filing of the termination petition on June 9, 2016. Plainly, notwithstanding

Mother’s stated commitment to her son, the orphans’ court accepted BCCYS’s

evidence that Mother made no effort to contact J.M.D.M. during the relevant

six months. Since the certified record supports that finding, we will not disturb

it.


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      Next, we consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to § 2511(b).

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

            [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 Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and

citations omitted)).

      The orphans’ court concluded that BCCYS presented clear and

convincing evidence that terminating Mother’s parental rights would best

serve J.M.D.M.’s needs and welfare pursuant to § 2511(b). Orphans’ Court

Opinion, 12/15/17, at 8.

      Again, our review of the record supports the orphans’ court’s findings.

Ms. Kipp testified that Mother last saw J.M.D.M. during July 2016, and that no



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bond exists between Mother and son. N.T., 10/23/17, at 11. In contrast,

J.M.D.M. has bonded with his foster parents, who are adoptive resources. Id.

at 12. The child is thriving in the foster home, where he has resided for nine

months.      J.M.D.M. looks to his foster parents for all of his basic needs,

including safety, security, and comfort. Id. He is comfortable in the home

and has demonstrated a marked improvement in his behavioral, physical, and

emotional wellbeing. Id. at 12-13. Finally, Ms. Kipp opined that terminating

Mother’s parental rights would not be detrimental to J.M.D.M.’s best interest

because “due to her limited contact and commitment to [J.M.D.M.], any bond

that [previously] developed has now deteriorated and no longer exists.” Id.

at 13.

         Our independent review of the record does not reveal any non-frivolous

issues that were preserved for review. See Flowers, supra at 1250. We

therefore grant counsel’s petition to withdraw, and affirm the October 23,

2017 decree terminating Mother’s parental rights to J.M.D.M.

         Petition to withdraw as counsel filed by Kelly S. Kline, Esquire is granted.

Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2018


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