J-S33033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: G.J.N., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: M.N.                            :   No. 2034 MDA 2016

               Appeal from the Order Entered November 22, 2016
                In the Court of Common Pleas of Dauphin County
                     Orphans’ Court at No(s): 88-AD-2016,
                            CP-22-DP-0000085-2015

BEFORE:      BENDER, P.J.E., OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED OCTOBER 17, 2017

        M.N. (Mother) appeals from the order and decree entered November

22, 2016, in the Court of Common Pleas of Dauphin County, which

terminated involuntarily Mother’s parental rights to her minor son, G.J.N.

(Child), born in January 2014.1 Also before us is an application for leave to

withdraw and brief filed by Mother’s counsel pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The order and decree also changed Child’s permanency goal to adoption
with respect to Mother. The court entered a separate order and decree that
same day, which changed Child’s permanency goal to adoption and
terminated parental rights involuntarily with respect to Child’s father, R.H.
(Father). Father has not filed a brief in connection with this appeal, nor has
he filed his own separate appeal.
J-S33033-17



A.2d 349 (Pa. 2009). Upon review, we grant counsel’s application for leave

to withdraw and affirm the order and decree.

      We summarize the relevant factual and procedural history of this

matter as follows. Dauphin County Social Services for Children and Youth

(the Agency) first became involved with Mother in September 2013, prior to

Child’s birth, due to concerns regarding Child’s four older siblings.   N.T.,

11/21/2016, at 5-8. Child’s siblings were removed from Mother’s care after

Mother was incarcerated on a bench warrant relating to a simple assault

charge.   Id. at 5, 7-8.      In addition, the Agency learned of reports that

Mother was squatting in her home, and that two of Child’s older siblings

were dirty, smelled, and were suffering from insect bites. Id. at 8. Mother

was released from incarceration in November 2013, about two months prior

to Child’s birth. Id. at 9.

      Initially, Child remained in Mother’s care. For approximately the first

year of Child’s life, he and Mother moved from place to place, while the

Agency provided Mother with services in an effort to reunify her with Child’s

older siblings.   Id. at 9-41. In March 2015, Mother was evicted from her

housing at the YMCA, due to “breach[ing] the confidentiality of another

resident,” among other things.         Id. at 40-41.    The Agency filed a

dependency petition with respect to Child on April 10, 2015, and he was




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adjudicated dependent and removed from Mother’s care by orders dated

April 30, 2015.2 Id. at 44-46; Exhibits 5 and 6.

       On September 19, 2016, the Agency filed a petition to terminate

involuntarily Mother’s parental rights to Child. The orphans’ court conducted

a termination hearing on November 21, 2016.        Following the hearing, on

November 22, 2016, the court entered an order and decree terminating

Mother’s parental rights. Mother timely filed a notice of appeal on December

12, 2016, which included a statement of counsel’s intent to file an

application for leave to withdraw and Anders brief pursuant to Pa.R.A.P.

1925(c)(4). Mother’s counsel filed an application for leave to withdraw and

Anders brief in this Court on March 10, 2017.

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

counsel’s application for leave to withdraw. See Commonwealth v. Rojas,

874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith,

700 A.2d 1301, 1303 (Pa. Super. 1997)) (“‘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.’”).   “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


____________________________________________


2 Mother went on to relinquish her parental rights to two of Child’s older
siblings voluntarily. N.T., 11/21/2016, at 6-8. The remaining two siblings
are in the custody of their father. Id. at 8.



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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,
      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.

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       In the instant matter, counsel filed an application for leave to

withdraw, certifying that she reviewed the case and determined that

Mother’s appeal is frivolous.        Counsel also filed a brief, which includes a

summary of the history and facts of the case supported by citations to the

record, a potential issue that could be raised by Mother, and counsel’s

assessment of why that issue is meritless, with citations to relevant legal

authority.3 Counsel also has provided us with a copy of her letter to Mother,

advising her that she may retain new counsel or raise additional issues pro

se.4   Accordingly, counsel has complied with the requirements of Anders

and Santiago. We, therefore, may proceed to review the issue outlined in

the Anders brief. In addition, we must “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).


____________________________________________


3 Counsel’s application for leave to withdraw and Anders brief include
certificates of service, indicating that counsel provided copies to Mother.

4  Counsel’s initial letter to Mother included the incorrect mailing address for
the Superior Court Prothonotary’s Office. Accordingly, on June 16, 2017,
this Court entered a per curiam order directing counsel to provide Mother
with a new letter including the correct address, and to provide this Court
with a copy of that letter within ten days. However, counsel failed to timely
file a new letter. Counsel did not file a new letter until July 10, 2017, after
our Prothonotary’s Office contacted her in an effort to discern why she had
failed to comply with our order. On July 26, 2017, Mother filed a response
pro se.



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       Counsel’s Anders brief raises the following issue for our review. “Did

the [orphans’] 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?”5 Anders Brief at 8.

       We address this issue 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 Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, 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
____________________________________________


5 Although this issue mentions only “best interests” pursuant to 23 Pa.C.S.
§ 2511(b), Mother’s argument section focuses primarily on an analysis of
subsection 2511(a). Pursuant to our duty in Flowers, we will address both.



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     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).

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

pursuant to subsections 2511(a)(1), (2), (5), (8), and (b).   We need only

agree with the court as to any one subsection of subsection 2511(a), as well

as subsection 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 subsections 2511(a)(2) 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:

                                    ***

           (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

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      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)(2), (b).

      We first address whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to subsection 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.A.
      § 2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “The grounds for termination due to parental incapacity that

cannot be remedied are not limited to affirmative misconduct.           To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).

      Instantly, the orphans’ court found that Child has been removed from

Mother’s care since April 30, 2015, and that Mother failed to remedy the

conditions which led to Child’s removal. Orphans’ Court Opinion, 1/31/2017,

at 11. The court emphasized that Mother made minimal progress in terms

of   completing   her   permanency   objectives   and   acquiring   appropriate




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parenting skills, and that Mother defied the service providers attempting to

help her.6 Id.

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

During the termination hearing, the Agency presented the testimony of

caseworker, Samantha Weirich.                  Ms. Weirich testified that Mother’s

reunification objectives included maintaining communication with the Agency

caseworker, obtaining and maintaining an adequate and legitimate source of

income to provide for herself and for Child, maintaining a violence-free

relationship, demonstrating an ongoing commitment to Child, completing a

parenting program, obtaining and maintaining safe and sanitary housing for

herself and for Child, and working with family reunification services. N.T.,

11/21/2016, at 60-66.

____________________________________________


6 At the conclusion of the termination hearing, the orphans’ court found that
the Agency met its burden of proof “beyond a preponderance of the
evidence, in fact, for me beyond a reasonable doubt, … I’m charged with
making sure that the goal has been met, the preponderance of the evidence,
and we’re well beyond that with the facts that were presented here.” N.T.,
11/21/2016, at 158-59. We caution the court that the correct burden of
proof in these matters is clear and convincing evidence. In re R.N.J., 985
A.2d 273, 276 (Pa. Super. 2009). Nonetheless, because the court found
that the evidence supported the termination of Mother’s parental rights
beyond a reasonable doubt, we conclude that any error on the part of the
court was harmless. See Commonwealth v. Wright, 494 A.2d 354, 364
(Pa. 1985) (“Three standards of proof are generally recognized, ranging
from the preponderance of the evidence standard employed in most civil
cases, to the clear and convincing standard reserved to protect particularly
important interests in a limited number of civil cases, to the requirement
that guilt be proved beyond a reasonable doubt in a criminal prosecution.”
(internal citations and quotation marks omitted)).



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      Ms. Weirich testified that Mother made at least some progress with

respect to several of these objectives.       Specifically, Mother maintained

consistent communication with Ms. Weirich. Id. at 60. Mother also obtained

several jobs during Child’s dependency, although she failed to maintain any

of those jobs for longer than two months.          Id.   Concerning parenting

programs, Ms. Weirich testified that Mother completed the YMCA’s parents

support and education program, but failed to complete the Pressley Ridge in-

home direct parenting program. Id. at 64. Ms. Weirich did not believe that

the YMCA program was sufficient to provide Mother with appropriate

parenting skills, because it was “more of a peer-based parenting skills class

versus what Pressley Ridge was working on which was a lot of like in-home

direct parenting … it was peer directed.”    Id.   Mother had housing at the

time of the termination hearing, although Mother’s lease was in the name of

Child’s maternal grandmother, and the Agency did not know if Child would

be permitted to stay there. Id. at 65.

      With respect to Mother’s other objectives, Ms. Weirich testified that

Mother made little, if any, progress. Ms. Weirich testified that Mother failed

to maintain a violence-free relationship.     Id. at 62.     While Mother did

complete a domestic violence program at the YMCA, she continued to pursue

either physically or verbally abusive relationships.     Id. at 62-63.   Mother

maintained at least three such relationships since 2013, including a

relationship with a man named J.L., a relationship with a “male in Lancaster

County,” and a relationship with Father.     Id.   Ms. Weirich further testified

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that Mother failed to demonstrate an ongoing commitment to Child.          Ms.

Weirich emphasized that Mother often needed to be redirected during her

visits with Child and paid little attention to him. Id. at 63. While Mother’s

parenting skills showed improvement over “the past couple of months,” Ms.

Weirich remained concerned for Child’s safety if he were to be left

unsupervised in Mother’s care. Id. at 64. Finally, Ms. Weirich testified that

Mother failed to work with family reunification services.         Ms. Weirich

explained that Mother was discharged unsuccessfully from three family

reunification programs between June 2014 and April 2016. Id. at 54, 65-66.

Ms. Weirich explained, “it’s unknown how [Mother] will react when [visits

are] unsupervised or in her home due to the fact that she did not want

reunification services, … we can’t say whether or not she was able to grow

any more in her parenting abilities.” Id. at 64-65.

      Thus, the record establishes that Mother is either unwilling or unable

to parent Child, and that Mother will not be capable of parenting Child at any

point in the foreseeable future. By the time of the termination hearing on

November 21, 2016, the Agency had been involved with Mother with respect

to Child, or with respect to Mother’s older children, for approximately three

years.   Throughout that time, Mother continued to suffer from unstable

housing and abusive relationships.       In addition, despite completing a

parenting program, Mother’s parenting skills remained a concern.           The

orphans’ court did not abuse its discretion by concluding that Child’s life

should not be put on hold any longer. As this Court has stated, “a child’s life

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cannot be held in abeyance while a parent attempts to attain the maturity

necessary to assume parenting responsibilities.   The court cannot and will

not subordinate indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.”    In re Adoption of

R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

     We next consider whether the orphans’ court abused its discretion by

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

have discussed our analysis under subsection 2511(b) as follows.

     [Sub]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, [subs]ection 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.




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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).

        Here, the orphans’ court found that terminating Mother’s parental

rights would serve Child’s needs and welfare.         Orphans’ Court Opinion,

1/31/2017, at 12. The court explained that Child is bonded with his foster

parents, and that it would be detrimental for Child to be removed from their

care. Id. at 13. In contrast, the court continued, there was no evidence

during the termination hearing that Child has a bond with Mother, or that it

would be detrimental to Child if that bond were severed.      Id.

        We again conclude that the record supports the findings of the

orphans’ court. With respect to Child’s needs and welfare, Ms. Weirich

testified that Child has resided in a pre-adoptive foster home since July

2015.    N.T., 11/21/2016, at 71.    Ms. Weirich explained that Child’s foster

father works from home and cares for him during the day.             Id. at 72.

Child’s relationship with his foster father is “fantastic…. He goes to his foster

father for support. They throw balls [with] each other. They run around in

the grass. [Child] interacts really well with him.” Id. at 71-72. Child also

has a good relationship with his foster mother. Id. at 72. “She does work

outside the home, but at visits she’s always loving, she’s always giving hugs,

things like that…. She also looks at him lovingly. He goes to her for support,

[h]e shows her things that he finds around the house.”         Id.   Ms. Weirich

agreed that Child treats his foster parents as his parents. Id. at 72-73.

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       Concerning Mother, Ms. Weirich testified that Child’s relationship with

her “seems okay.” Id. at 73. Ms. Weirich explained,

       Like he’ll run. He likes to play with her. But he’s not upset
       when he leaves her. And most recently when we had case aides
       to pick [Child] up to transport him to visits he doesn’t want to
       go. He fights the case aide to get into the car. But once he’s in
       the car, he’s fine. So he knows where he’s going, he’s fine when
       he’s there, but he doesn’t want to go.

Id. Ultimately, Ms. Weirich opined that it would be in Child’s best interest to

terminate Mother’s parental rights. Id.

       Thus, the record confirms that Child is bonded with his pre-adoptive

foster parents. While Child has a relationship with Mother, he is resistant to

attending visits and does not appear to have a parent/child bond with her.

It was within in the discretion of the orphans’ court to conclude that Child

will not suffer any detriment if his relationship with Mother is ended, and

that terminating Mother’s parental rights will best serve Child’s needs and

welfare.

       Accordingly, our independent review of Mother’s issue demonstrates

that it does not entitle her to relief. Moreover, our review of the record does

not reveal any non-frivolous issues overlooked by counsel.7 See Flowers,
____________________________________________


7 “When a pro se or counseled brief has been filed within a reasonable
amount of time, … the Court should then consider the merits of the issues
contained therein and rule upon them accordingly.” Commonwealth v.
Baney, 860 A.2d 127, 129 (Pa. Super. 2004). In her pro se response,
Mother claims that she “did not get a chance to talk” at the hearing.
Response, 7/26/2017. Additionally, she states that her witnesses and
Child’s father did not get “a chance to talk either.” Id. However, Mother
(Footnote Continued Next Page)


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113 A.3d at 1250.        We therefore grant counsel’s application for leave to

withdraw, and we affirm the November 22, 2016 order and decree.

      Application for leave to withdraw granted. Order and Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




(Footnote Continued) _______________________

testified at the hearing, see N.T. , 11/21/2016, at 137-49, and her attorney
indicated that Mother was the only witness she wished to call, see id. at
137, 150. Thus, we conclude that there is no additional non-frivolous issue
to consider on appeal.



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