J-S46032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: M.J.T., A MINOR                       :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
    APPEAL OF: D.T. A/K/A D.W.T.                 :
    A/K/A D.W.T. A/K/A D.T., FATHER              :
                                                 :
                                                 :
                                                 :
                                                 :   No. 1004 EDA 2019

              Appeal from the Decree Entered February 26, 2019
    In the Court of Common Pleas of Bucks County Orphans’ Court at No(s):
                                 2018-9036


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED OCTOBER 21, 2019

        Appellant,     D.T.    (“Father”),     appeals   from   the    decree    entered

February 26, 2019, involuntarily terminating his parental rights to his child,

M.J.T.    (“Child”),    born    May    2012.1        Additionally,    Father’s   counsel,

Julieanne Bateman, Esquire, seeks to withdraw her representation of Father

pursuant to Anders v. California, 386 U.S. 738 (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

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 That same day, the court terminated the parental rights of Child’s biological
mother, J.K. (“Mother”). Mother has also appealed, and we address her issues
in a separate memorandum at 1002 EDA 2019. Mother has therefore elected
not to participate in the instant appeal. Letter from Mother’s Counsel,
Jennifer E. Pierce, Esquire, to Office of the Prothonotary, Superior Court of
Pennsylvania (July 15, 2019).
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parents represented by court-appointed counsel in involuntary termination

matters).   After careful review, we affirm and grant counsel’s petition to

withdraw.

      We summarize the facts and procedural history underlying this appeal

as follows. See Trial Court Opinion, filed 5/24/2019, at 1-7; N.T., 2/21/2019,

at 1-232. Prior to the commencement of the instant matter, the Bucks County

Children and Youth Social Services Agency (“the Agency”) had previously

provided general protective services to the family. The first referral to the

Agency was made in May 2016, due to lack of supervision and general welfare

concerns; it was closed in June 2016.        A second referral was made in

September 2016 due to inadequate parenting, lack of supervision, and

substance abuse concerns.      A third referral was made in December 2016

averring that Child’s biological mother, J.K. (“Mother”), was living in a shelter

with Child and was impaired while caring for him.

      In January 2017, the Agency obtained an emergency shelter care order

after Mother informed the Agency she was no longer receiving mental health

treatment and revealed a long history of substance abuse.         At that time,

Mother tested positive for heroin, cocaine, and marijuana.

      On March 20, 2017, Child was adjudicated dependent. Father was given

objectives for reunification which included remaining drug-free, obtaining and

completing substance abuse and mental health counseling, and obtaining and

maintaining appropriate housing and income, and cooperating with his parole


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officer.   On February 7, 2018, Child’s permanency goal was changed from

reunification to adoption. Father did not appeal the goal change.

       On April 6, 2018, the Agency filed petitions for the involuntary

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),

(2), (5), (8), and (b).

       On February 26, 2019, the court held a hearing on the termination

petitions. Child was represented by guardian ad litem, Lisa A. Horne, Esquire,

and legal interests counsel, Timothy J. Barton, Esquire. Mother, represented

by counsel, appeared, and testified on her own behalf.       Father, although

represented by counsel, was not present and did not testify on his own behalf.2

The Agency presented the testimony of Jodi Hertzberg, the Agency

caseworker. Father did not present any witnesses.

       At the time Child was taken into custody, Father was not involved with

Child and was incarcerated in the state of Delaware. N.T., 2/21/2019, at 21-

22. Regardless, the Agency prepared family service objective goals for him.

Father was released from custody in April 2017 but maintained limited contact

with the Agency. Id. at 22. Caseworkers had to reach out numerous times

to engage Father in reviewing the goals of the plan and arrange visitation. Id.

Father made a few visits between April 2017 and September 2017 but has not



____________________________________________


2Father initially did not respond to counsel’s written communication in January
2019, but eventually indicated to counsel via text message that he would not
be attending the hearing. N.T., 2/21/2019, at 9.

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had contact with Child since that date. Id. at 23. Father did not provide his

address or contact information to the Agency, only the name and location of

the barbershop where he is employed. Id. at 22-23.

      Father has never provided voluntary child support, food, clothing, or

other necessities of life. Id. at 24. Father never sent Child cards, gifts, or

letters. Id. Father never reached out to the Agency about being a father to

Child, nor has he had contact with the Agency since the filing of the petition.

Id. at 25. Father never completed the objectives of his family service plan.

Id. Ms. Hertzberg testified that it was in Child’s best interests for Father’s

parental rights to be terminated. Id. at 55.

      Ms. Hertzberg further testified that, since April 2017, Child has been

residing in a foster home. Id. at 35. Child’s foster parent is a single woman

whose mother and father live in an in-law suite attached to the home. Id. at

41. Child has his own bedroom, which he is very proud of, and a dog he loves.

Id. at 103-04. “Foster grandparents” are very involved in Child’s life and Child

adores them, calling them “Mom-mom” and “Pop-pop.” Id. at 41. Child calls

his foster mother “Mommy” and is loving and affectionate towards her. Id. at

42. Foster mother is an adoptive resource. Id. at 44. At the beginning of

his placement, Child was rough, had difficulty with limits and acting out, and

had issues with wetting the bed and nightmares. Id. at 93. Child was placed

in therapy to work on these behaviors. Id. at 93-94.




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      Mother testified at length about the abuse she suffered at Father’s

hands. Id. at 146-71. The abuse was physical, emotional, and sexual and

included hitting her, controlling her, breaking her phone, and “imprisoning

her” in a motel room. Id. Mother also testified regarding Father’s drug use.

Id. at 147. Eventually, she obtained an order against Father pursuant to the

Protection from Abuse Act (“PFA”). Id. at 161, 188.

      Timothy Barton, Esquire, Child’s counsel, stated that he had met with

Child on two occasions, first in December 2018 and again the week of the

termination hearing. Id. at 226-27. Child is bright and articulate, although

Attorney Barton did not think that Child understood all of the legal

ramifications of a termination hearing. Id. Child told Attorney Barton he is

very happy with foster mother, wants to stay with his foster family, and does

understand that, as a result of the hearing, there was a possibility his foster

mother could adopt him. Id. at 228. Child indicated he wanted to be adopted

by foster mother. Id. Child did not understand the events that had separated

him from Mother. Id. at 229.

      Following the hearing, the court terminated Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). Father’s counsel timely

filed a notice of appeal and, in lieu of a statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), counsel filed an indication

of her intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). In this

Court, counsel has filed an Anders brief.


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      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;

      (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.

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. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(citation and internal brackets and quotation marks omitted).                After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, only then may this Court “conduct an independent review of

the record to discern if there are any additional, non-frivolous issues



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overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

      Attorney   Bateman’s     Anders     brief   complies   with   the   above

requirements. She includes a summary of the relevant factual and procedural

history, and she sets forth her conclusion that the appeal is frivolous and no

issues could be raised. Additionally, Attorney Bateman has supplied Father

with a copy of the Anders brief and a letter explaining the rights enumerated

in Orellana, 86 A.3d at 879-80. Thus, counsel has complied with the technical

requirements for withdrawal, and we therefore proceed to our independent

review of the record to determine if the issues raised are frivolous and to

ascertain whether there are non-frivolous issues Father may pursue on appeal.

      We review cases involving the termination of parental rights according

to the following standards.

      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:


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     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). We

focus our analysis on subsections (a)(2) and (b).

     The relevant subsections of 23 Pa.C.S. § 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.

     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

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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.”

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

termination are not limited to affirmative misconduct but also 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 the current action, Father was incarcerated for much of Child’s life.

He was provided with objectives to complete in order to be reunified with

Child, but Father never completed those objectives, which included providing

child support, food, clothing, necessities of life, cards, gifts, or letters. Father

did not remain in contact with the Agency and did not provide contact

information so that the Agency could reach him. Father’s only contact with

Child was a few visits between April and September 2017, but he has not had

contact with Child since then.

      Accordingly, we discern no error or law nor abuse of discretion in the

trial court’s finding that clear and convincing evidence supported the

termination of Father’s parental rights pursuant to Section 2511(a)(2). See

T.S.M., 71 A.3d at 267; L.M., 923 A.2d at 511. Father’s continued “refus[al]

to perform his parental duties[,]” Trial Court Opinion, filed 5/24/2019, at 8 –

including his failure to complete a single objective or to remain in contact with

Child -- resulted in Child being without essential parental care, and “the

conditions and causes” of Father “refusal cannot or will not be remedied by”

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him. 23 Pa.C.S. § 2511(a)(2); see also Lilley, 719 A.2d at 330; Z.P., 994

A.2d at 1117.

      Next, we must consider whether Child’s needs and welfare will be met

by termination pursuant to Subsection (b). See 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.

      Before 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 the relationships is
      also important to a child, for whom severance of close parental
      ties is 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.

Id. (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000)). The trial

court may equally emphasize the safety needs of the child and may consider

intangibles, such as the love, comfort, security, and stability the child might

have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa. Super.

2011). Additionally, the court may emphasize the safety needs of a child.

See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008). Where there is no

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



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no bond exists. Id. “[A] parent’s basic constitutional right to the custody and

rearing of . . . her child is converted, upon the failure to fulfill . . . her parental

duties, to the child’s right to have proper parenting and fulfillment of [the

child’s] potential in a permanent, healthy, safe environment.” In re B.,N.M.,

856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).

      In the current appeal, the record contains no testimony or other

evidence of a bond between Father and Child; on the contrary, the last contact

Father had with Child was in September 2017. As the trial court explained:

      Regrettably, [the court] heard no evidence of any relationship at
      all between Father and Child. . . . [T]ermination was clearly
      warranted here.      The record contains clear and convincing
      evidence that Father has made essentially no efforts toward any
      adequate parenting of [Child]. At this time, we know nothing of
      Father’s life circumstances other than representations and
      descriptions which were provided by Mother. The evidence
      suggests that Father has no desire to provide for Child. The record
      is devoid of testimony or evidence of a necessary and beneficial
      relationship between the two, the existence of which, should
      Father’s rights be terminated, would result in a negative effect on
      Child.

Trial Court Opinion, filed 5/24/2019, at 10-11.

      Furthermore, as noted above, a trial court may consider intangibles,

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

foster parent. N.A.M., 33 A.3d at 103. In the current case, Child is thriving

in his foster placement, where he had been since April 2017; he has a strong

and loving bond with his foster mother and wishes to be adopted by her. See

Trial Court Opinion, filed 5/24/2019, at 9-10. Child has had a stable home in




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his foster placement, and it is in his best interests that he remains there. See

L.M., 923 A.2d at 511.

      Consequently, we discern no error of law or abuse of discretion in the

trial court’s conclusion that Child’s needs and welfare are best served by

termination. See 23 Pa.C.S. § 2511(b); T.S.M., 71 A.3d at 267; L.M., 923

A.2d at 511.

      Accordingly, clear and convincing evidence supports the trial court’s

termination of Father’s parental rights under Section 2511(a)(2) as well as

the Section 2511(b) findings that no bond existed between Father and Child,

and that adoption would best serve Child’s needs and welfare. See Z.P., 994

A.2d at 1126-27; K.Z.S., 946 A.2d at 763.

      In sum, we agree with Attorney Bateman that Father’s issues are

frivolous. We have independently reviewed the record and find no other issues

of arguable merit that he could pursue on appeal. Accordingly, we affirm the

trial court decree and grant counsel’s petition to withdraw.

      Decree affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




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