J-S94018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF H.D.S., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: C.G., MOTHER

                                                    No. 1510 MDA 2016


             Appeal from the Decree entered August 19, 2016
            in the Court of Common Pleas of Lancaster County,
                   Orphans' Court, at No(s): 545 of 2016.


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                      FILED FEBRUARY 27, 2017

     Appellant, C.G., (“Mother”), appeals from the decree entered in the

Lancaster County Court of Common Pleas, which terminated her parental

rights to her minor daughter, H.D.S., pursuant to the Adoption Act, 23

Pa.C.S. § 2511(a) and (b). Counsel for Mother has also filed with this Court

both an application for leave to withdraw as counsel and a brief pursuant to

Anders v. California, 87 S. Ct. 1396 (1967).            We grant counsel’s

application for leave to withdraw and affirm the decision of the Orphans’

Court.

     The relevant facts and procedural history are as follows:    Child was

born to Mother and Q.S. (“Father”) in August 2004.       Pursuant to a court

order entered in April 2006, Child has been in the sole legal and primary

physical custody of P.S. and R.S. (“Paternal Grandparents”), and Mother has

* Former Justice specially assigned to the Superior Court.
J-S94018-16



been   awarded   periods   of   visitation.   On   March    8,   2016,     Paternal

Grandparents filed a petition to confirm the consent to adoption given by

Father, and to involuntarily terminate Mother’s parental rights (“TPR

Petition”). The TPR Petition was served on Mother on March 31, 2016.

       The Orphans’ Court held an evidentiary hearing on August 19, 2016.

Both Paternal Grandparents testified. Mother presented her own testimony,

as well as testimony from M.S., her aunt.      At the request of the Orphans’

Court, Child testified in chambers.     The court made the following factual

conclusions:

         The   [c]ourt   found    the   testimony    of    [Paternal
         Grandparents] and Child to be credible and persuasive.
         Conversely, the [c]ourt found that [M.S.’s] testimony and
         Mother’s testimony was inconsistent and lacked credibility.

            The [c]ourt finds the following evidence relevant and
         persuasive.    Both [Paternal Grandparents] and Mother
         agree that, for the first two months of her life, [Child] lived
         between [the parties].        Since October 2004, [Child]
         primarily resided with [Paternal Grandparents]. [Child]
         was returned to Mother’s care in December 2004. That
         evening, Mother was having difficulty with [Child], who
         was fussy and not used to Mother. Mother brought [Child]
         to the home of [M.S.], who intervened on Mother’s behalf
         and contacted [Paternal Grandparents].          [The parties]
         signed a written custody agreement and Child was
         returned to [Paternal Grandparents]. Since that time,
         [Paternal Grandparents] have been performing all rights,
         duties, and responsibilities for Child. Mother testified that
         she saw Child on two occasions since 2004.

Orphans’ Court Opinion, 9/23/16, at 2-3.

       That same day, the court issued a decree confirming Father’s consent

to adoption and terminating Mother’s parental rights pursuant to 23 Pa.C.S.

                                      -2-
J-S94018-16



§ 2511(a)(1) and (b).       Mother filed this timely appeal, as well as a

statement pursuant to Pa.R.A.P. 1925(b).       On October 26, 2016, Mother’s

counsel filed an application to withdraw as counsel and a brief pursuant to

Anders.

     The Anders brief raises the following issue:

          A. Whether [Paternal Grandparents] produced sufficient
             evidence to support granting their request to
             involuntarily terminate Mother’s parental rights.

Anders Brief at 5.

     Initially, we address the Anders brief and application 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,
          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 and Anders brief. In
          re S.M.B., 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) states counsel’s reasons for

                                      -3-
J-S94018-16


        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,
        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.” Commonwealth v. Orellana, 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, 928 A.2d
        287, 291 (Pa. Super. 2007) (en banc), quoting
        Commonwealth v. Wright, 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 Mother’s counsel has complied with the

requirements as set forth above. Counsel has provided Mother with a copy

of the Anders brief and indicated in his correspondence that Mother may

proceed pro se or retain new counsel. In his brief, counsel references facts

of record that might arguably support Mother’s appeal and sets forth his

conclusion that the appeal is frivolous.      See Anders Brief at 13-14.

Accordingly, we undertake our independent review of the record to

determine whether Mother’s appeal is wholly frivolous.



                                    -4-
J-S94018-16



      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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”   Id.   We may not reverse, however,

merely because the record would support a different result.” Id. at 827.

      We give great 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). The Orphans’ Court is free to believe all, part, or

none of the evidence presented and is likewise free to make all credibility

determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination

of parental rights, this Court need only agree with any one subsection under

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We

have explained that “[t]he standard of clear and convincing evidence is


                                        -5-
J-S94018-16


defined as testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of

the truth of the precise facts in issue.” Id. (citations omitted).

      Section 2511(a)(1) provides that the trial court may terminate

parental rights if the Petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

      a)     The rights of a parent in regard to a child may be
             terminated after a petition filed on any of the following
             grounds:

            (1)   The parent by conduct continuing for a period of at
                  least six months immediately preceding the filing of
                  the petition has evidenced a settled purpose of
                  relinquishing parental claim to a child or has
                  refused or failed to perform parental duties.


23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as

requiring the Petitioner to demonstrate a settled intent to relinquish a

parental claim to a child or a refusal or failure to parent:

      To satisfy the requirements of section 2511(a)(1), the moving
      party must produce clear and convincing evidence of conduct,
      sustained for at least the six months prior to the filing of the
      termination petition, which reveals a settled intent to
      relinquish parental claim to a child or a refusal or failure to
      perform parental duties.


In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).




                                      -6-
J-S94018-16



         This Court has defined “parental duties” in general as the obligation to

affirmatively and consistently provide safety, security and stability for the

child:

           There is no simple or easy definition of parental duties.
           Parental duty is best understood in relation to the needs of
           a child. A child needs love, protection, guidance, and
           support. These needs, physical and emotional, cannot be
           met by a merely passive interest in the development of the
           child.   Thus, this Court has held that the parental
           obligation is a positive duty which requires affirmative
           performance. This affirmative duty … requires continuing
           interest in the child and a genuine effort to maintain
           communication and association with the child. Because a
           child needs more than a benefactor, parental duty requires
           that a parent exert himself to take and maintain a place of
           importance in the child’s life.

Id.

         Moreover, a parent must exercise reasonable firmness in

resisting obstacles placed in the path of maintaining the parent

child relationship:


           Parental duty requires that the parent act affirmatively
           with good faith interest and effort, and not yield to every
           problem, in order to maintain the parent-child relationship
           to the best of his or her ability, even in difficult
           circumstances.     A parent must utilize all available
           resources to preserve the parental relationship, and must
           exercise reasonable firmness in resisting obstacles placed
           in the path of maintaining the parent-child relationship.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted).




                                       -7-
J-S94018-16


      And most importantly, “parental rights are not preserved by waiting

for   a more   suitable   or   convenient time   to   perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” Id.

      In the instant case, the Orphans’ Court properly concluded that the

Agency met the requirements of Section 2511(a)(1).        Applying the above

standards, the Orphans’ Court concluded:

         The record is clear, Mother did not contact [Paternal
         Grandparents] or the Child in the six months prior to her
         receipt of the termination petition. . . . She has not
         provided any type of emotional or financial support to
         [Child], has not made any attempts at maintaining contact
         with [Child], and has not used any of the resources at her
         disposal to maintain a place of importance in [Child’s] life.
         Mother failed in all respects to perform parental duties or
         responsibilities within that time period, and arguably
         throughout [Child’s] whole life.

                                     ***

         By Mother’s own testimony, she attempted to call [Paternal
         Grandparents] only a few times before she stopped
         completely. Mother did not ask [Paternal Grandparents]
         for contact. Mother testified the she gave up and did
         nothing else thereafter. The last time Mother saw [Child]
         was over eight years ago. Mother clearly failed to exert
         herself to establish and maintain a place of importance in
         [Child’s] life.

                                     ***

         Mother argues that [Paternal Grandparents] created an
         insurmountable obstacle to her maintaining a parent-child
         relationship and contact with [Child]. The Court does not
         find this argument credible.

         Child has not seen Mother for at least eight years.
         [Paternal Grandparents] have not hidden [Child] from
         Mother. [They] have resided in the same home since

                                     -8-
J-S94018-16


        before Child’s birth. Mother knew where [they] lived.
        [Paternal Grandparents] did not withhold any mail from
        Mother addressed to [Child], Mother testified that she did
        not send any cards, letters, or presents to [Child]. Mother
        made no attempts to contact [Child] through her family
        members, who had intervened on her behalf before.
        Mother presented no evidence that she inquired into
        [Child’s] well-being from any individual who had contact
        with [Child].

           Outside of contacting [Paternal Grandparents] or Child
        directly, Mother had other reasonable avenues available to
        her to maintain contact with [Child]. [Child] is the subject
        of an active custody order. Mother made no effort to
        enforce visits, as provided by the custody order.
        Moreover, with the existence of a custody order, Mother
        could have sought to modify the custody order. Mother
        did not initiate any action in the custody matter.

        Despite having resources to maintain contact with [Child]
        Mother exerted no effort whatsoever to be a part of
        [Child’s] life. Mother testified that she was young and
        stupid when [Child] was born and could not handle raising
        [Child]. Mother’s inability to parent [Child] is no different
        than     refusing     to    perform    parental    duties   and
        responsibilities.     The Court found that Mother did not
        utilize all, or really any, of the resources available to her to
        maintain a relationship with [Child].

Orphan’s Court Opinion, 9/23/16, at 4-7 (citation omitted).

     Our review of the record amply support’s the Orphans’ Court’s

conclusions.   It was for the Orphans’ Court, as a matter of credibility, to

accord the weight to be given Mother’s testimony. In re M.G., supra. The

court did not abuse its discretion concluding that Mother “evidenced a

settled purpose of relinquishing her parental claim” to Child, and has failed

to perform any parental duties during the relevant time period.            Orphans’




                                     -9-
J-S94018-16



Court Opinion at 7.       Accordingly, the Orphans’ Court properly terminated

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1).

      We also agree with the Orphans’ Court’s determination that, pursuant

to 23 Pa.C.S. § 2511(b), termination of Mother’s parental rights is in the

best interest of Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the orphans’ court must also discern the nature and status of the parent-

child bond, with utmost attention to the effect on the child of permanently

severing that bond.       Id.   In cases where there is no evidence of a bond

between a parent and a child, it is reasonable to infer that no bond exists.

In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the extent of

the bond-effect analysis necessarily depends on the circumstances of the

particular case. Id. at 763.




                                       - 10 -
J-S94018-16



      In the instant case, the Orphans’ Court provided the following rationale

to support its conclusion that termination of Mother’s parental rights was in

Child’s best interest:

         The Court is persuaded by the totality of the evidence, as
         well as the Guardian ad litem’s recommendation, that
         termination of Mother’s parental rights in furtherance of
         adoption is in [Child’s] best interest. Mother has been
         either unwilling or unable to meet [Child’s] basic needs for
         an inordinate amount of years.           Mother’s lack of
         involvement began when [Child] was just a few months
         old.   Mother’s own testimony and actions are direct
         evidence that any parent-child relationship they shared
         ended years ago.

         [Child] has no meaningful contact with Mother. She is
         currently twelve years old and has not seen Mother since
         she was an infant. For over 95% of her life, [Child] has
         had no contact with Mother. She is not bonded to Mother.
         In fact, she testified she would not recognize Mother if she
         saw her. Therefore, the Court found that terminating
         Mother’s parental rights would not be detrimental to
         [Child’s] well-being or destroy an existing, necessary or
         beneficial relationship between the Child and Mother.

         Conversely, [Paternal Grandparents] have provided [Child]
         with the love, comfort and security that Mother has failed
         to provide. [Child] has been living as an intact family with
         [Paternal Grandparents] since December 2004. They have
         maintained a continuous parent-daughter relationship. It
         was not until Father’s girlfriend told [Child] that Father was
         her father that [Child] was even made aware that
         [Paternal Grandparents] were not her parents. [Paternal
         Grandparents] have provided for [Child’s] physical,
         emotional, and mental well-being. She is at an age where
         stability and consistency are crucial.                [Paternal
         Grandparents] provide the stability and permanency that
         [Child] needs and deserves.

            Based upon the totality of the record and for the
         reasons set forth above, the Court found that the
         developmental, physical and emotional needs and welfare


                                     - 11 -
J-S94018-16


        of [Child] would be met and enhanced by the termination
        of the parental rights of Mother, so that [Child] may be
        adopted.

Orphans’ Court Opinion, 9/23/16, at 8-9.

     Once again, our review of the record amply supports the Orphans’

Court’s conclusions. Additionally, we note Child’s preference to not see her

Mother and her wish to be adopted by Paternal Grandparents.              See N.T.,

8/19/16, at 124-38.

     In sum, our review of the record supports the conclusion by Mother’s

counsel that the issue Mother wished to raise on appeal is frivolous. Thus,

we   agree   with   the   Orphans’   Court’s   conclusion   that   the    Paternal

Grandparents met their burden of proving by clear and convincing evidence

that Mother’s parental rights should be terminated pursuant to 23 Pa.C.S. §§

2511(a)(1) and 2511(b).      Further, our independent review of the record

reveals no non-frivolous claims that Mother could have raised. Accordingly,

we grant Mother’s counsel’s application to withdraw and affirm.

     Application to Withdraw granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017


                                     - 12 -
