J-S52012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF: J.B.D.E.                         IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
    APPEAL OF: T.R., MOTHER
                                                            No. 569 MDA 2018


                 Appeal from the Decree Entered March 7, 2018
                In the Court of Common Pleas of Dauphin County
                            Orphans' Court at No(s):
                                  169 AD 2017
                            CP-22-DP-0000093-2016


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED DECEMBER 17, 2018

        T.R. (“Mother”) appeals from the decree entered on March 7, 2018,

which involuntarily terminated her parental rights to her minor child, J.B.D.E.

(“Child”), born in March of 2016.1             Additionally, Mother’s counsel filed a

petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2

Following review, we grant counsel’s petition to withdraw and affirm the

termination decree.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The trial court entered a separate decree that same day terminating the
parental rights of Child’s father, H.S.E. Father did not file an appeal.

2 This matter was previously remanded for counsel to submit a corrected
Anders brief or an advocates brief. See discussion infra. Counsel has
complied. We also note that neither the Agency nor the guardian ad litem has
submitted responsive briefs with this Court.
J-S52012-18


     The trial court summarized the factual and procedural history of this

matter as follows:

           In November 2015, the Dauphin County Social Services for
     Children and Youth (“Agency”) began providing services to Mother
     following a report from a pediatrician’s office that Mother
     appeared dazed and confused during an appointment for her three
     year old. Mother’s two children were deemed dependent and
     placed in kinship foster care. Five months pregnant with J.B.D.E.
     at the time, Mother tested positive for PCP. Mother told case
     workers that her use of PCP did not affect her ability to parent.
     Throughout the pregnancy, Mother’s obstetrician urged her to
     stop her drug use.

     At the time of J.B.D.E.’s birth [i]n March [of] 2016, the Agency
     received a referral from hospital staff based upon Mother’s
     statement that she could not breast feed J.B.D.E. because she
     used alcohol and PCP during her pregnancy.           J.B.D.E. was
     admitted to the neonatal intensive care unit because of serious
     medical problems caused by Mother’s substance abuse. On March
     21, 2016, the Agency filed an emergency Dependency Petition.
     Upon discharge from the hospital, J.B.D.E. was placed in a
     Dauphin County Families United foster home. Within one week of
     J.B.D.E.’s birth, Mother tested positive for PCP. On April 6, 2016,
     J.B.D.E. was adjudicated dependent.

     The Juvenile Court ordered that Mother complete the following
     objectives:

           1. Attend all court hearings, Agency meetings and
           treatment plan meetings;
           2. Sign all release of information forms requested by
           the Agency;
           3. Notify the Agency within 24 hours of new residence
           or new contact information;
           4. Complete a drug and alcohol evaluation and follow
           through with any and all recommendations;
           5. Provide three urine screens to the Agency per week;
           6. Notify the Agency caseworker of any scheduled
           evaluations;
           7. Participate in the Holistic Family Support Program;
           8. Complete a psychological evaluation and follow
           through with any recommendations;


                                    -2-
J-S52012-18


           9. Participate in and complete a parenting assessment
           in order to assess if Mother has the capability to provide
           a safe and stable living environment.

     (Petition for Involuntary Termination of Parental Rights, para. ccc
     (i-ix)).

     On June 20, 2016, Mother was incarcerated related to her
     occupying a stolen vehicle. Mother remained incarcerated until
     June 30, 2016. Upon her release, Mother entered an inpatient
     drug and alcohol treatment program, which she left against
     medical advice on August 12, 2016.           Mother was again
     incarcerated in November 2016 for violation of bail conditions.

     On February 28, 2017, Mother was arrested and found in
     possession of a firearm. On July 11, 2017, Mother pled guilty to
     firearms and drug charges and [was] sentenced to nine to
     twenty[-]three months to be served in the Dauphin County Work
     Release Center. Mother was released from the Work Release
     Center on December 14, 2017. Following release, on January 25,
     2018, Mother tested positive for PCP.

     Mother failed to complete any inpatient or outpatient drug and
     alcohol program, or psychological evaluation. Mother participated
     in supervised visitation while not incarcerated. Because of her
     incarceration, Mother failed to comply with services offered to
     assist with housing.

     J.B.D.E. has lived in the same foster home since discharge from
     the hospital. He is developmentally delayed. J.B.D.E. requires a
     feeding tube and suffers seizures related to Fetal Alcohol
     Syndrome.       J.B.D.E.’s medical conditions require constant,
     intensive caretaking. J.B.D.E. sees specialists several times each
     month, or more frequently if he becomes ill. The foster parents
     have received instruction from the medical providers to care for
     J.B.D.E.’s significant medical conditions.

     J.B.D.E. is bonded with his foster parents and has made
     tremendous progress under their care and has begun to walk,
     although not previously expected to do so.

     J.B.D.E. has never lived with Mother. Mother has never provided
     any essential parental care.      Because of Mother’s lack of
     experience in handling J.B.D.E.’s seizures, the foster parents

                                    -3-
J-S52012-18


       attend Mother’s visitation.   J.B.D.E. has undergone multiple
       surgeries.      Mother never visited J.B.D.E. during any
       hospitalization. Mother has never met with medical providers to
       obtain information as to how to care for J.B.D.E.’s needs.

Trial Court Opinion (TCO), 5/22/18, at 1-4 (citations to the record omitted).

       On December 29, 2017, the Agency filed the petition to involuntarily

terminate Mother’s parental rights.            The termination hearing was held on

March 6, 2018. After all evidence was submitted, the court announced its

decision to grant the Agency’s petition to terminate Mother’s parental rights

under 23 Pa.C.S. § 2511(a) and (b) and to change the goal for Child to

adoption. On April 3, 2018, Mother filed the instant appeal. Then, on June

22, 2018, Mother’s counsel filed an Anders brief.3            Counsel’s petition to

withdraw was filed on July 6, 2018, after counsel was directed to do so by

order of this Court, dated July 2, 2018. Mother did not respond to counsel’s

petition.

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

counsel’s request to withdraw.         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



____________________________________________


3 Counsel’s statement that there are no non-frivolous matters that can be
raised on appeal is accepted in lieu of a concise statement of errors complained
of on appeal. See Commonwealth v. Goodwin, 928 A.2d 287, 293 (Pa.
Super. 2007); see also Pa.R.A.P. 1925(c)(4).

                                           -4-
J-S52012-18


1301, 1303 (Pa. Super. 1997)). “In In re V.E., 417 Pa. Super. 68, 611 A.2d

1267 (1992), 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). 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 record,


                                     -5-
J-S52012-18


      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.

      In the instant matter, counsel filed a petition to withdraw, certifying that

she reviewed the case and determined that Mother’s appeal is wholly frivolous.

Counsel attached to her brief and to her petition to withdraw a copy of her

letter to Mother, advising her that she may obtain new counsel or raise

additional issues pro se. The brief that counsel filed with this Court includes

a summary of the history and facts of the case and identifies one issue, which

is stated as follows:

      Did the trial court abuse its discretion[] or commit an error of law
      by determining it was in [Child’s] best interest to have Mother’s
      parental rights terminated by clear and convincing evidence?

Anders brief at 8.

      However, after further review of counsel’s brief, this Court was

compelled to remand for the preparation of either a corrected Anders brief or

an advocate’s brief. The reason for the remand rested on the fact that the

issue on appeal related to the best interests, i.e., needs and welfare, of Child,

while the entire argument section of the brief solely addressed Mother’s lack

of progress in rectifying her substance abuse, housing, mental health

treatment, and her failure to complete a parenting assessment. We have now

received   counsel’s    substituted   brief   and   conclude   that   counsel   has

substantially complied with the requirements of Anders and Santiago. See

Commonwealth v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015) (observing

that substantial compliance with the Anders requirements is sufficient).

                                       -6-
J-S52012-18



      Accordingly, we may proceed to review the issue outlined in the revised

Anders brief and “conduct [our] 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 revised brief contains the same issue raised in

her prior brief:

      Did the trial court abuse its discretion, or commit an error of law
      by determining it was in [Child’s] best interest to have Mother’s
      parental rights terminated by clear and convincing evidence?

Revised Anders brief at 8.

      We review an order terminating parental rights in accordance with the

following standard:

            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 rights, this Court must accord the hearing
      judge’s decision the same deference that we would give to 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.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

      The standard of clear and convincing evidence is defined as
      testimony that is so “clear, direct, weighty and convincing as to
      enable the trier of fact to come to a clear conviction, without
      hesitance, of the truth of the precise facts in issue.”



                                     -7-
J-S52012-18


Id. at 276 (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super.

2003)). The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super.

2004). If competent evidence supports the trial court’s findings, we will affirm

even if the record could also support the opposite result. In re Adoption of

T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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) (citing 23 Pa.C.S. § 2511,

other citations omitted). The burden is upon the petitioner to prove by clear

and convincing evidence that the asserted grounds for seeking the termination

of parental rights are valid. R.N.J., 985 A.2d at 276.




                                      -8-
J-S52012-18


     Because Mother’s only issue concerns Section 2511(b), we need not

discuss the facts as they relate to Section 2511(a). Rather, we direct our

analysis to Section 2511(b). This Court has explained that:

     Subsection 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and
     emotional needs and welfare of the child. In In re C.M.S., 884
     A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
     such as love, comfort, security, and stability are involved in the
     inquiry into the needs and welfare of the child.” In addition, we
     instructed that 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. However, in
     cases where there is no evidence of a bond between a parent and
     child, it is reasonable to infer that no bond exists. In re K.Z.S.,
     946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
     of the bond-effect analysis necessarily depends on the
     circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

     The trial court provided the following discussion concerning Section

2511(b), stating:

     Pursuant to Section 2511(b), a court must give “primary
     consideration to the [developmental, physical and emotional]
     needs and welfare of the child.” In re J.E., 745 A.2d 1250, 1254-
     55 (Pa. Super. 2000) (citations omitted). The statute provides,

           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



                                     -9-
J-S52012-18


              first initiated subsequent to the giving of notice of the
              filing of the petition.

     23 Pa.C.S.[] § 2511(b).

     In addition, the Superior Court has stated that while “Section
     2511(b) does not explicitly require a bonding analysis, [case law
     provides that an] analysis of the emotional bond, if any, between
     a parent and a child is a factor to be considered in determining
     the developmental, physical and emotional needs and welfare of
     the child under § 2511(b).” In the Matter of K.K.R.-S., K.M.R.,
     K.A.R., 958 A.2d 529, 533 (Pa. Super. 2008). The Superior Court
     has explained,

              Intangibles such as love, comfort, security, and
              stability are involved when inquiring about the needs
              and welfare of the child. The court must also discern
              the nature and status of the parent child bond, paying
              close attention to the effect of permanently severing
              the bond.

     In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006).

     Mother presented no evidence upon which we may find that a
     bond exists which, if broken, will cause detriment to J.B.D.E.

     In contrast, we find that J.B.D.E. has bonded with his foster
     parents and that his best interests are served in their home. They
     have provided J.B.D.E with all of the day to day care, love and
     protection required since his discharge from the NICU in March
     2016. The foster parents are the only family J.B.D.E has ever
     known.

     Removal from the pre-adoptive foster home would not only sever
     the bond of love, comfort, security, and stability which J.B.D.E.
     enjoys, but would place him in danger. We cannot subordinate
     J.B.D.E.’s best interests to the hope that Mother might resolve her
     longstanding drug addiction and acquire the necessary
     commitment to properly parent J.B.D.E.

TCO at 8-9.




                                       - 10 -
J-S52012-18



      Based upon the facts found by the trial court, which our independent

review reveals are supported by the evidence of record, we discern no abuse

of discretion in the conclusion that terminating Mother’s parental rights would

best serve the developmental, physical, and emotional needs and welfare of

Child. Moreover, our review of the record does not reveal any non-frivolous

issues overlooked by counsel. See Flowers, 113 A.3d at 1250. Therefore,

we grant counsel’s petition to withdraw, and affirm the trial court’s decree

terminating Mother’s parental rights.

      Decree affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2018




                                    - 11 -
