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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF BABY GIRL E.                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: R.F., FATHER

                                                     No. 1554 MDA 2014


                     Appeal from the Decree August 11, 2014
                 In the Court of Common Pleas of Centre County
                       Orphans' Court at No(s): 3932-2013


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 10, 2015

        R.F. (“Putative Father”) appeals from the decree entered August 11,

2014, in the Court of Common Pleas of Centre County, granting the petition

of W.R.S. and L.A.S. (“Prospective Adoptive Mother,” individually, or

“Prospective Adoptive Parents,” collectively) to involuntarily terminate

Putative Father’s parental rights to his daughter, Baby Girl E. (“Child”), born

in November 2013. Concomitant with this appeal, counsel has filed an

Anders1 brief and a petition seeking leave to withdraw from representation.

The issue identified by counsel in this appeal is as follows:    “Whether the

[orphans’] court committed an abuse of discretion or error of law when it

concluded that grounds for termination had been established under 23

____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
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Pa.C.S.A. § 2511(a)(6)?” Anders Brief, at 5. In addition, the Anders brief

lists and addresses ten issues raised in Putative Father’s Pa.R.A.P. 1925(b)

statement. Based upon the following, we affirm and grant the petition for

leave to withdraw as counsel.

       The orphans’ court summarized the facts of this case as follows:

              In September 2013, Mother, then 14 years of age learned
       that she was pregnant. A decision was made to offer the child for
       adoption. The child was born on November [], 2013, and
       [Putative Father] was not named as the Father on the birth
       certificate.

             [Putative Father2] has refused to participate in, or
       cooperate with, the adoption proceeding, and has maintained
       that he is not the Father of the child. A hearing to terminate
       [Putative Father’s] paternal rights was scheduled for May 13,
       2014, but adjourned without testimony, at [Putative Father’s]
       request, to allow [Putative Father] to secure counsel. Counsel
       was appointed to represent [Putative Father].

              A reconvened hearing was held on August 11, 2014, to
       consider terminating [Putative Father’s] parental rights. At that
       hearing, [Putative Father] testified that he had never had sexual
       relations with [M]other, and that it was impossible that he is the
       Father. The Court found [Putative Father’s] testimony to be
       credible, and as such found that he had no parental rights, and
       therefore, terminated his non-existent parental rights.




____________________________________________


2
  Putative Father, at the time of the termination hearing, was a high school
junior. See N.T., 8/11/2014 (Termination Hearing), at 18.




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Amended Opinion in Response to Matters Complained of on Appeal,

10/2/2014, at 1–2 (emphasis in original).3

        To this summary, we add that, on December 11, 2013, adoption

proceedings were initiated by Prospective Adoptive Parents by the filing of a

report of intention to adopt.          On March 10, 2014, Prospective Adoptive

Parents filed: (1) a petition for the involuntary termination of the parental

rights of Putative Father, (2) a petition to confirm Mother’s consent to

adoption, and (3) a petition for adoption.       Thereafter, the court appointed

Justin Miller, Esquire, to represent Putative Father, and Elizabeth Hunt,

Esquire, as Guardian Ad Litem for Child.4        On August 11, 2014, the court

held a termination hearing and a separate adoption hearing. That same day,

the orphans’ court entered three decrees: (1) a preliminary decree

involuntarily terminating the parental rights of Putative Father, (2) a

preliminary decree confirming the consent of Mother to the adoption of

Child, and terminating her parental rights, and (3) a final decree of adoption.

Thereafter, Putative Father filed this timely appeal from the decree

terminating his parental rights.
____________________________________________


3
  We note that at the termination hearing, Putative Father denied paternity,
and, in the alternative, took the position that if he was the father of Child,
his rights should not be terminated. See N.T., 8/11/2014, at 35, 38–40, 85.
We further note Putative Father did not undergo DNA testing. Additionally,
Putative Father did not consent to voluntary relinquishment of his parental
rights.
4
    Mother was represented by Bobbie Rabuck, Esquire.



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     Initially, we address the Anders brief and petition seeking permission

to withdraw. The principles that guide our review are as follows:

     When counsel files an Anders brief, this Court may not review
     the merits without first addressing counsel’s request to
     withdraw. Commonwealth v. Washington, 2013 PA Super 51,
     63 A.3d 797, 800 (Pa. Super. 2013). In In re V.E., 417 Pa.
     Super. 68, 611 A.2d 1267 (Pa. Super. 1992), this Court
     extended the Anders principles to appeals involving the
     termination of parental rights. Id. at 1275. In these cases,
     counsel appointed to represent an indigent parent on a first
     appeal from a decree involuntarily terminating parental rights
     may petition this Court for leave to withdraw representation and
     submit an Anders brief. In re S.M.B., 2004 PA Super 329, 856
     A.2d 1235, 1237 (Pa. Super. 2004). We review counsel’s
     Anders brief for compliance with the requirements set forth by
     our Supreme Court in Commonwealth v. Santiago, 602 Pa.
     159, 978 A.2d 349 (Pa. 2009).

         [W]e hold that in the Anders brief that accompanies
         court-appointed counsel’s petition to withdraw, counsel
         must: (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,
         controlling case law, and/or statutes on point that have
         led to the conclusion that the appeal is frivolous.

     Id. at 361.

         Additionally, pursuant to Commonwealth v. Millisock,
         2005 PA Super 147, 873 A.2d 748 (Pa. Super. 2005) and
         its progeny, “[c]ounsel 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.”


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       Commonwealth v. Orellana, 2014 PA Super 33, 86 A.3d 877,
       880 (Pa. Super. 2014) (internal quotation marks and citation
       omitted). “Once counsel has satisfied the above requirements, it
       is then this Court’s duty to conduct its own review of the trial
       court’s proceedings and render an independent judgment as to
       whether     the  appeal    is,  in    fact,  wholly   frivolous.”
       Commonwealth v. Goodwin, 2007 PA Super 180, 928 A.2d
       287, 291 (Pa. Super. 2007) (en banc), quoting Commonwealth
       v. Wright, 2004 PA Super 87, 846 A.2d 730, 736 (Pa. Super.
       2004).

In re X.J., 105 A.3d 1, 3–4 (Pa. Super. 2014).

       Here, we conclude that counsel has complied with the requirements as

set forth above. Counsel has provided Putative Father with a copy of the

Anders brief and indicated in his correspondence enclosing the brief that

Putative Father may proceed pro se or with private counsel. In his brief,

counsel refers to facts of record that might arguably support Putative

Father’s appeal and sets forth his conclusion that the appeal is frivolous and

the reasons for this conclusion. Accordingly, we undertake our independent

evaluation of the record to determine whether Putative Father’s appeal is

wholly frivolous.5

       Our review of an order granting a petition for involuntary termination

of parental rights is well settled:


____________________________________________


5
  We note a typographical error in the Anders brief, which states: “The
relevant four-month period was … between December 10, 2013, and March
10, 2014.” Anders Brief at 14. The correct four-month period is from
November 10, 2013 to March 10, 2014. This typographical error does not
affect our review.



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     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
     A.3d 1179, 1190 (Pa. 2010). If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. Id.; R.I.S., [36
     A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often
     stated, an abuse of discretion does not result merely because
     the reviewing court might have reached a different conclusion.
     Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
     34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
     634 (Pa. 2003). Instead, a decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike 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. R.J.T., 9 A.3d at 1190.
     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 Atencio, 650 A.2d 1064, 1066
     (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

     The termination of parental rights involves a bifurcated analysis,

governed by Section 2511 of the Adoption Act. This Court has explained:

     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

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     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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007), citing 23 Pa.C.S. § 2511.

     As stated above, the burden is on the party seeking termination, here

the Prospective Adoptive Parents, to establish the statutory grounds for

termination by clear and convincing evidence. In re C.M.S., 832 A.2d 457,

461 (Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004).

     In the present case, Prospective Adoptive Parents sought to terminate

Putative Father’s parental rights under Section 2511(a)(6) and (b):

     § 2511. Grounds for involuntary termination

     (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:

                                      ***

           (6) In the case of a newborn child, the parent knows or
           has reason to know of the child’s birth, does not reside
           with the child, has not married the child’s other parent,
           has failed for a period of four months immediately
           preceding the filing of the petition to make reasonable
           efforts to maintain substantial and continuing contact with
           the child and has failed during the same four-month period
           to provide substantial financial support for the child.

                                      ***

           (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

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                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(a)(6), (b).

       The record shows that Prospective Adoptive Parents demonstrated by

clear and convincing evidence the requirements of Section 2511(a)(6).

Specifically,

       (1)         Child was born in November, 2013, and the petition at issue
                   was filed more than four months later, on March 10, 2014.

       (2)         Mother stated Putative Father should have known she had
                   given birth when she was not in school. See id. at 10–11.6
                   Putative Father testified he was aware his mother called the
                   hospital, and further stated “[w]hen she called, [Child]
                   wasn’t born yet.” See id. at 39.

       (3)         Both Putative Father and Mother testified to their respective
                   addresses, which are not the same. Putative Father lives
____________________________________________


6
  Mother testified Putative Father became aware of her pregnancy when his
mother came to her house, and “we told her, and she told him.” N.T.,
8/11/2014 (Termination Hearing), at 7. Mother stated “[Putative Father’s
mother] heard rumors about me being pregnant and him being the father,
and she wanted to get everything out in the open.” Id. at 8.

      Mother testified she did not directly tell Putative Father she had given
birth because he told her that he did not want anything to do with Child.
See id. at 14–15. On November 25, 2013, Prospective Adoptive Parents’
attorney contacted Putative Father regarding Child’s birth, and requested he
sign a consent to adoption form. See id. at 22–24; Petitioner’s Exhibit 1
(Letter from Denise Bierly, Esquire to Putative father, dated 11/25/2013).




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                with his father, stepmother, and brother. Mother lives with
                her mother, stepfather, and brother. See id. at 4, 8, 17 and
                19.

      (4)       Mother testified that she is not married. See id. at 5.

      (5)       During the applicable four month period, from November 10,
                2013, to March 10, 2014, Putative Father denied paternity,
                and did not try to find out any information about Child. See
                id. at 26–27, 37.

      (6)       During the same applicable four month period, Putative
                Father did not pay any child support or make purchases of
                diapers or formula for Child. See id. at 30.


      Therefore, we conclude the record supports the court’s determination

that Prospective Adoptive Parents proved grounds for termination of Putative

Father’s parental rights pursuant to Section 2511(a)(6).

      Moreover, we have examined the issues listed in the Anders brief that

were raised by Putative Father in the concise statement, which are as

follows:

      1. The court erred and abused its discretion in terminating
         [Putative Father’s] parental rights.

      2. The court did not properly consider [Putative Father’s] ability
         to support the child with his own employment and the
         financial and other support of his parents.

      3. [Putative Father] was repeatedly denied a paternity test.

      4. [Putative Father] was never told anything regarding the child,
         including but not limited to the date of birth, his right to
         contest the adoption, the opportunity to financially support
         this child, or the opportunity to be present at the birth.

      5. The biological mother named several men as the father prior
         to the initiation of adoption proceedings, rendering [Putative

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         Father] incapable of knowing whether the child was alleged to
         be his or not until court papers were filed.

      6. When [Putative Father] first spoke with the biological mother
         regarding her pregnancy, he was informed she was keeping
         the child and that he would be able to see the child and would
         be able to have a paternity test performed once the child was
         born. None of these things occurred.

      7. The termination of [Putative Father’s] parental rights will be
         part of his permanent civil record, and will hamper him in any
         proceedings relative to any other children he may father in
         the future.

      8. The biological mother informed the community — including
         the high school both parents attend — that she was not
         pregnant and instead had a tumor.

      9. The biological mother took part in an illegal adoption process,
         accepting payment for putting the child up for adoption.

      10. [Putative Father’s] attorney refused to call any witnesses
         who could have testified to the biological mother’s
         involvement in an illegal adoption.

Putative Father’s Pa.R.A.P. 1925(b) statement.

      With regard to the first issue listed in Putative Father’s concise

statement, that the trial court abused its discretion in terminating his

parental rights, we have already found that all of the requirements were met

for termination pursuant to Section 2511(a)(6).      As to the second issue,

Putative Father’s ability to support the child is not a factor to be considered

under Section 2511(a)(6). The third issue, that Putative Father was denied

a paternity test, has no support in the record. Rather, the record reflects

that Putative Father was advised by Prospective Adoptive Parents’ attorney

how to set up a DNA test, but he did not do so prior to the termination

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hearing.7 See N.T., 8/11/2014 (Termination Hearing), at 27–30; Petitioner’s

Exhibit 2 (Letter from Denise M. Bierly, Esquire, to Putative Father, dated

12/31/2013).

       In issues four through six, Putative Father claims that he was not told

anything regarding his rights to Child, that Mother named several potential

fathers, and that Mother originally stated she was keeping Child. However,

our review reveals these claims are not supported by the record.                  Next,

Putative Father’s seventh issue, that this termination will be part of his

permanent      civil   record,   is   not    a   valid   consideration   under   Section

2511(a)(6), and would only be relevant in any potential dependency

proceeding against Putative Father as it relates to a subsequent child.             See

42 Pa.C.S. § 6351(3). Furthermore, Putative Father’s eighth issue — that

Mother said she was not pregnant and had a tumor — has no bearing on this

case since Putative Father learned of Mother’s pregnancy. Finally, Putative

Father’s last two allegations of Mother’s involvement in an illegal adoption

have nothing to do with the grounds for the termination of Putative Father’s

parental rights. Accordingly, these arguments regarding Section 2511(a)(6)

warrant no relief.

       Once the statutory requirement for involuntary termination of parental

rights has been established under subsection (a), the court must consider
____________________________________________


7
 At the termination hearing, Putative Father testified he had “just set up [a
DNA test] today.” N.T., 8/11/2014 (Termination Hearing), at 30.



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whether the child’s needs and welfare will be met by termination pursuant to

subsection (b). In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004).

       Here, Putative Father has never met Child and has no bond with her.

At the August 11, 2014, termination hearing, Mother testified that she had

an on-going relationship with Prospective Adoptive Parents, and that it was

“a very nice relationship.”       N.T., 8/11/2014 (Termination Hearing), at 12.

Mother stated she knew she “pick[ed] a good family” for Child. 8            Id.

Putative Father, as discussed above, denied paternity. Asked by Prospective

Adoptive Parents’ attorney if he had “tried to reach out to [Mother] or

anyone for information about the child,” he responded, “Not that I know of.”

Id. at 37.      Asked by the guardian ad litem what he would have to offer

Child, Putative Father answered, “If there was a relationship, I don’t know.”

Id. at 40.

       Prospective Adoptive Mother testified that she and her husband have

no other children, have parented Child since Child’s discharge from the

hospital on November 10, 2013, and that Child has grown attached to them

and their families. Prospective Adoptive Mother further stated she and her

husband had entered into a post-adoption contract with Child’s mother and

they had also extended the offer of a post-adoption contract to Putative

Father.    She explained that she and her husband had offered the post-
____________________________________________


8
  Mother met with Prospective Adoptive Parents before she agreed to allow
them to adopt Child. N.T., 8/11/2014 (Termination Hearing), at 46.



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adoption contracts because they were “looking out for the best interest for

[Child].” Id. at 56. Prospective Adoptive Mother testified that she and her

husband were financially stable.     She stated that she and husband “loved

[Child] with all our heart.” Id. at 53.

      In addition, Theresa Guaglianone, the adoption program manager for

Children’s Aid Society, who performed the home study for adoption, and a

post placement visit and report regarding Prospective Adoptive Parents,

testified that Child was very attached to them, was very well cared for, was

loved and nurtured, and had flourished in their care. See id. at 59–60. She

recommended that the adoption be finalized with Prospective Adoptive

Parents. See id. at 60.

      Here, the orphans’ court determined that “the standards of Section

2511, Subsection 6, have been met, and that it’s in the best interest of the

child to have parental rights terminated and for the child to be available for

adoption by [Prospective Adoptive Parents].” N.T., 8/11/2014 (Termination

Hearing), at 98.       After a careful review of the record, we find there is

competent evidence to support the court’s decision to terminate Putative

Father’s parental rights pursuant to § 2511(a)(6) and (b), and that the

appeal is frivolous.

      This Court has conducted an independent investigation of the certified

record on appeal. In so doing, we found no potential nonfrivolous issue that

could properly be asserted on appeal. Accordingly, we affirm the orphans’


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court’s decree terminating Putative Father’s parental rights to Child, and

grant Putative Father’s counsel permission to withdraw.

     Decree affirmed. Petition for leave to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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