J-S40028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF: H.B.             :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
 APPEAL OF: V.B., SR. AND M.B.,       :
 NATURAL PARENTS                      :
                                      :
                                      :
                                      :
                                      :   No. 431 WDA 2019

              Appeal from the Order Entered March 7, 2019
    In the Court of Common Pleas of Indiana County Orphans’ Court at
                          No(s): 32-18-0546

 IN RE: ADOPTION OF V.B., JR.         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
 APPEAL OF: V.B., SR. AND M.B.,       :
 NATURAL PARENTS                      :
                                      :
                                      :
                                      :
                                      :   No. 432 WDA 2019

              Appeal from the Order Entered March 7, 2019
    In the Court of Common Pleas of Indiana County Orphans’ Court at
                          No(s): 32-18-0545

 IN RE: ADOPTION OF M.B.              :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
 APPEAL OF: V.B., SR. AND M.B.,       :
 NATURAL PARENTS                      :
                                      :
                                      :
                                      :
                                      :   No. 433 WDA 2019

              Appeal from the Order Entered March 7, 2019
    In the Court of Common Pleas of Indiana County Orphans’ Court at
                          No(s): 32-18-0544
J-S40028-19


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED SEPTEMBER 16, 2019

       M.B. (“Mother”) and V.B. (“Father”) (collectively “Parents”) appeal from

the orders involuntarily terminating their parental rights to minor children,

M.B., born in August 2014, V.B., born in March 2016, and H.B., born in June

2017 (collectively, “the Children”). Parents’ counsel has filed a motion 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). We affirm the

orders of the trial court and grant counsel leave to withdraw.

       The facts, as gleaned from the trial court’s opinion and from the certified

record, are as follows. Parents have consistently struggled with providing food

and housing for the Children. The Indiana County Children and Youth Services

(“Agency”) first became involved with Parents and the Children in September

2017, after receiving a report from Cambria County, that a file had been

previously opened regarding Parents. N.T., 2/11/19, at 35. The Agency first

visited Parents’ home on October 17, 2017, at which time caseworker,

Amanda Wadsworth, registered significant concerns regarding Parents’ lack of

supervision of the Children, as well as the discovery of expired formula and a

general lack of food. Id. at 36-38. Due to these concerns, the Agency made

four more visits during the following three weeks and purchased food and

formula for the Children on six separate occasions. Id. at 38-39. However,

the Agency noted that the purchased food was often missing from the home
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

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during subsequent visits. Id. Ultimately, on November 6, 2017, the Agency

held a rapid safety conference and took emergency custody of the Children.

Id. at 40-41.

      Thereafter, the trial court conducted a Shelter Care Hearing and found

that returning the Children to Parents would not be in the Children’s best

interests. The Agency filed a dependency petition on November 13, 2017 and

the trial court conducted a hearing regarding the same on November 16, 2017.

The Court found the Children to be dependent and ordered them to remain in

foster care. As required, the trial court subsequently held permanency review

hearings approximately every six months until December 2018. After the

conclusion of each of these hearings, the trial court ordered the Children to

remain together in foster care. In June 2018, the court ordered the Agency to

transfer the Children to the foster home of J.P. and W.P. (“current foster

parents”), where the Children have thereafter remained.

      In November 2018, the Agency filed a petition for the involuntary

termination of Parents’ parental rights, averring that termination was

appropriate pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) and (5). The trial court

appointed Joelyssa Johnson, Esquire to serve as both guardian ad litem (GAL)

and legal counsel for the Children because, given the young age of the




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Children, the trial court found no conflict between the Children’s best interests

and legal interests.1

       In February 2019, the trial court conducted a termination hearing.

Attorney Johnson, in her role as GAL, testified that she believed it was in the

Children’s best interests that the court terminate Parents’ parental rights. The

Agency presented the testimony of Dr. Carolyn Menta, a licensed clinical

psychologist, Amanda Wadsworth and Rachel Pommer, Agency caseworkers,

and Kaitlyn Myers, a family resource specialist with Justice Works Youth Care

(“JWYC”). Dr. Menta testified regarding parental and psychological evaluations

she performed on Parents and current foster parents in July, September, and

October 2018. N.T. at 8-17. Dr. Menta reported that Parents have both

struggled with substance addiction for several years. Id. at 14. In addition,

Dr. Menta noted that Father has been diagnosed with Bipolar Disorder and

explained that he also had impulsivity/anger management issues. Id. at 15-

17. Dr. Menta detailed Father’s anger issues by listing examples when Father

had behaved recklessly such as driving a car over one hundred and twenty

miles an hour and hiding under the subfloor of his home for several hours. Id.

       Dr. Menta observed Parents interact with the Children during a one-hour

visit in her office. Id. at 17-21. She testified that she noticed the Children

were not affectionate or engaged with Parents and that the Children largely
____________________________________________


1 See In re T.S. 192 A.3d 1080 (Pa. 2018) (holding that a GAL may also serve
as a child’s legal counsel where there is no conflict between a child’s legal and
best interests such as in the case where the child is too young to express a
legal preference.)

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avoided eye contact with Parents. Id. To the contrary, Dr. Menta found that

the Children are flourishing with current foster parents and have begun to

catch up developmentally under their care. Id. at 22. Therefore, Dr. Menta

opined in her written report that the Children’s bond with Parents appears

minimal and the benefits of severing the bond would far outweigh any

negative impact.

     Agency caseworker Amanda Wadsworth testified that she had personally

visited Parents home during the above-referenced visits from September

2017-November 2017 and was very concerned about the Children’s safety.

Id. at 37. Agency caseworker, Rachel Pommer, who became involved with the

case in December 2017, testified regarding Parents’ former involvement with

both the Westmoreland and Cambria counties’ offices of Children and Youth

Services. Id. at 58-59. Pommer testified that Father has struggled with an

addiction to prescription pain medication and heroin and has engaged in

outpatient treatment for his addiction, but has been discharged as

noncompliant several times. Id. at 66-68. Mother also has struggled with

addiction to opiates. Although she successfully completed inpatient drug

treatment in early 2018, she was subsequently discharged from outpatient

treatment in August 2018, for noncompliance. Id. at 62-66.

     Further, Pommer reported that although oldest child M.B. was

developmentally delayed when first removed from Parents’ care, she was

thriving with current foster parents. Id. 73-74. Pommer expressed concern

that V.B.’s diagnosed Torticollis had largely gone untreated while he was in

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Parents’ care. Id. Parents were also recommended, by the Agency, to

complete mental health treatment. However, they both waited 10 months to

act on the recommendation, attended an intake evaluation, but failed to

attend any additional appointments. Id. at 81.

      Also testifying on behalf of the Agency was Kaitlyn Myers, a family

resource specialist with JWYC. Myers testified regarding services JWYC

provided to Parents prior to the Children’s removal, including assistance with

food, budgeting, and employment education. Id. at 43-55. JWYC also

provided nurturing parenting instruction, life skills, and anger management.

Id. JWYC facilitated visits between the Children and Parents one time per week

for two hours, which Parents did attend. Id.

      In addition, Parents, jointly represented by Katrina Kayden, Esquire,

each testified at the termination hearing. Father stated that he was continuing

treatment for his substance abuse and felt he had it under control. Id. at 86-

88. He explained that he was seasonally employed as a landscaper but found

it difficult to find other work due to his inability to drive. Id. at 94-95, 121-

122. He imparted that he felt the Children were wrongly removed from

Parents’ care and did not want his parental rights terminated. Id. at 110-111.

Likewise, Mother testified that she had recently restarted getting help for her

substance abuse and mental health issues. Id at 134. She also responded to

the Agency’s claims by reporting that she felt V.B.’s Torticollis did not require

any further treatment when the Children were in her care. Id. at 134.




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However, when asked if she currently had the capacity to take care of the

Children, Mother answered “sort of.” Id. at 134.

      Ultimately, the trial court granted the Agency’s petition and terminated

Parents’ parental rights via separate orders, entered on March 7, 2019, for

each of the Children. In separate, but substantially similar opinions issued on

the same date, the court terminated Parents’ rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(5) & (b). The court explained that while Parents’ did not exhibit a

“defining characteristic” that prevents them from parenting the Children, their

continued struggle “with housing, food, poverty, parenting, substance abuse,

anger management, and mental health” remains substantially unchanged

since the Children were removed from their home, despite the multitude of

services offered by the Agency. Tr. Ct. Op., 3/7/19, at 14. Thus, the trial court

found that the conditions which led to the placement of the Children continued

to exist for a period exceeding six months and therefore termination of the

Parents’ parental rights was appropriate under Section 2511(a)(5). Likewise,

the court concluded that termination of the Parents’ parental rights was

appropriate pursuant to Section 2511(b) due to the testimony establishing

that the Children had only a minimal bond with Parents while thriving with

their current foster parents.

      At Mother’s request, Parents’ counsel filed a timely Notice of Appeal. As

noted above, counsel thereafter filed an Anders brief with this Court and a

Motion to Withdraw as Counsel. Before assessing the merits of Parents’

appeal, we must first examine counsel’s request to withdraw. See

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Commonwealth v. Orellana, 86 A.3d 877, 879 (Pa.Super. 2014). Counsel

who wishes to withdraw must file both an Anders brief in this Court and

provide a copy of that brief to the client. Id. at 880. The brief 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. (quoting Santiago, 978 A.2d at 361.

      Counsel must also send 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.’” Id.

(quoting Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2017)).

      Following our assessment of counsel’s request to withdraw, 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); see, e.g., In re X.J., 105

A.3d 1, 4-6 (Pa.Super. 2014) (denying application to withdraw where court




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found, on independent review pursuant to Flowers, a meritorious issue

overlooked by counsel).

      Here, counsel’s brief contains the required Anders elements. Counsel

has restated the facts of the case at reasonable length; referred to anything

in the record that could arguably support Parents’ appellate issues; has stated

her belief that the appeal is frivolous; and has duly articulated the facts and

law that have led to her conclusion that the appeal is frivolous. Orellana, 86

A.3d at 879. In addition, counsel sent a letter to Parents explaining their

rights, including their rights to raise issues with this Court pro se in support

of their respective appeals. Id. at 880. Neither Mother nor Father has

submitted any additional filings to this Court. We therefore turn to an

independent review of the merits of the appeal and the record as a whole.

Flowers, 113 A.3d at 1250.

      Parents’ issues, as presented by counsel, are:

         1. Did the [trial] court commit an abuse of discretion or an
            error of law when it concluded that the agency
            established grounds for termination pursuant to 23
            Pa.C.S. § 2511(a)(5)?

         2. Did the [trial] court commit an abuse of discretion or an
            error of law when it concluded that termination of rights
            was appropriate and in the children’s best interest
            pursuant to 23 Pa.C.S. § 2511(b)?

Anders Br. at 6.

      When reviewing orders terminating parental rights, we “accept the

findings of fact and credibility determinations of the trial court if they are



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supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.

2012). If the record supports those findings, we then review the decision “to

determine if the trial court made an error of law or abused its discretion.” Id.

We will reverse a decision “for an abuse of discretion only upon demonstration

of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.

      The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion standard to termination decisions:


         [U]nlike 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. 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.

Id. at 826-27 (citations omitted).

      A trial court may terminate parental rights only after finding grounds for

termination existed under Section 2511(a) and that termination is in the

child’s best interest under Section 2511(b). Here, we conclude that the trial

court properly terminated Parents’ parental rights pursuant to Section

2511(a)(5).

      Section 2511(a)(5) provides:



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      (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:

                                      ...

         (5) The child has been removed from the care of the parent
         by the court or under a voluntary agreement with an agency
         for a period of at least six months, the conditions which led
         to the removal or placement of the child continue to exist,
         the parent cannot or will not remedy those conditions within
         a reasonable period of time, the services or assistance
         reasonably available to the parent are not likely to remedy
         the conditions which led to the removal or placement of the
         child within a reasonable period of time and termination of
         the parental rights would best serve the needs and welfare
         of the child.

23 Pa.C.S.A. § 2511(a)(5).

      To terminate parental rights pursuant to Section 2511(a)(5), the moving

party must produce clear and convincing evidence that: (1) the child has been

removed from parental care for at least six months; (2) the conditions which

led to removal and placement of the child continue to exist; (3) the parents

cannot or will not remedy the conditions which led to removal or placement

within a reasonable period of time; (4) the services reasonably available to

the parents are unlikely to remedy the conditions which led to removal or

placement within a reasonable period of time; and (5) termination of parental

rights would best serve the needs and welfare of the child. In re Adoption

of M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003).

      Parents’ first issue concerns the contention that the trial court erred by

terminating Parents’ parental rights under Section 2511(a)(5). However, a

review of the testimony presented at trial reveals that the trial court had ample


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evidence to support the termination of Parents’ parental rights. Dr. Menta’s

testimony showed that Parents have consistently struggled with substance

abuse and have not been consistent in getting the help they need to overcome

their addictions. Further, neither Mother nor Father has made consistent

efforts toward obtaining the recommended mental health counseling. Agency

caseworkers Wadsworth and Pommer also elucidated about Father’s anger

management issues in regards to his confrontational and verbally aggressive

behavior with Agency staff. Moreover, family service specialist Myers detailed

the extensive services offered to Parents, yet Parents were unable to remedy

the conditions that led to placement of the Children.

      Thus, we conclude that the trial court had ample evidence from which

to find that the conditions that required the Children to be removed from

Parents care have remained longer than six months post-removal, Parents

have been unable or unwilling to remedy them in spite of the availability of

services, and thus the best interests of the Children would be served by the

termination of Parents’ parental rights. Therefore, we hold that the trial court

properly terminated Parents’ rights pursuant to Section 2511(a)(5).

      Turning to Parents’ second issue submitted for appellate review, we

examine whether the termination of Parents’ parental rights is in the Children’s

best interests. If the trial court has concluded that a parent’s parental rights

should be terminated under Section 2511(a), then the court must determine

whether, considering the child’s developmental, physical, and emotional needs

and welfare, termination is in the best interests of the child. 23 Pa.C.S.A. §

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2511(b); S.P., 47 A.3d at 830. In conducting this analysis, the court should

examine the emotional bond between parent and child, with close attention to

the effect on the child of permanently severing any such bond.

       Here, the trial court aptly considered Dr. Menta’s assessment, following

observation, that the Children had only a minimal bond with Parents and the

Children demonstrated “significant anxiety during and after visits with

[Parents].” Tr. Ct. Op. at 17. Conversely, Dr. Menta noted that the Children

have    thrived   in   foster   care    and   have   made   strides   to   catch-up

developmentally. Thus, Dr. Menta opined that the benefits of terminating

Parents’ rights would far outweigh any negative impact on the Children. The

trial court agreed with Dr. Menta’s assessment and found that the termination

of Parents’ parental rights would serve the Children’s best interests as required

for termination under Section 2511(b). Further, Attorney Johnson, in her role

as GAL, also testified that she believed that the termination of Parents’

parental rights was in the Children’s best interests. We concur and conclude

that the trial court did not abuse its discretion in determining that the

termination of Parents’ parental rights was in the best interests of the Children

as required under Section 2511(b).

       In sum, we conclude that Parents have presented no non-frivolous

issues. In addition, we have reviewed the certified record consistent with

Flowers, 113 A.3d at 1250, and have discovered no additional arguably

meritorious issues. We therefore grant counsel’s Motion to Withdraw and

affirm the orders of the trial court.

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     Orders affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2019




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