J-S25005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE ADOPTION OF: A.S., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.S., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 98 MDA 2020

             Appeal from the Decree Entered December 23, 2019
    In the Court of Common Pleas of Cumberland County Orphans' Court at
                         No(s): 61 Adoptions 2019


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 12, 2020

       J.S. (Mother) appeals from the trial court’s decree involuntarily

terminating her parental rights to her minor daughter, A.S. (Child) (born

12/12). Counsel has also filed a petition to withdraw on appeal, pursuant to

Anders v. California, 386 U.S. 738 (1967) and In re Adoption of V.E., 611

A.2d 1267 (Pa. Super. 1992). After careful review, we affirm based upon the

well-authored trial court opinion and grant counsel’s petition to withdraw.

       Child is autistic and requires special services for her cognitive

development.       In 2015, Cumberland County Children and Youth Services

(CYS) received a referral that Mother1 was using drugs and not properly
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1 CYS was unable to confirm the identity of Child’s biological father until
December 11, 2019. N.T. Termination Hearing, 12/20/19, at 28. At the time
of the termination hearings, Father was incarcerated in Lebanon County on 25
felony charges and 2 misdemeanor charges. Id. at 29. His parental rights to
Child were also terminated. He, however, is not a party to this appeal.
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supervising Child. After an investigation into the matter, the case was closed

in February 2015. In early 2018, CYS received another referral, this time

regarding Child, when it was reported that Child was sexually acting out. Child

received support services and the case was closed in February 2018.                 On

March 26, 2018, CYS again became involved with Mother and Child, after

Mother was incarcerated2 and unable to care for Child. CYS obtained legal

and physical custody of Child and placed Child in foster care.3               Child was

adjudicated dependent on April 9, 2018.

       In late April 2018, CYS developed a permanency plan (Plan) for Mother

in order to achieve reunification with Child.           Mother’s goals and objectives

under the Plan consisted of the following: obtain and maintain stable housing;

cooperate     with     CYS;     comply         with   drug   and   alcohol    treatment

recommendations; submit to random drug screens; address mental health

issues, obtain mental health evaluation and follow recommendations; address

parenting concerns; and comply with probation to avoid re-incarceration.

Mother initially struggled to meet her housing goal, living in friends’ homes,

hotels and the YMCA in between periods of incarceration. 4                   Mother was

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2 Mother had been charged with driving without a license and hindering
apprehension. Just one month earlier, Mother had been charged with simple
assault and possession of drug paraphernalia.

3 At the time of the termination hearings, Child was still living in the same
foster home, a pre-adoptive placement.
4 Mother, however, reported that she obtained her own residence in
September 2019.

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inconsistent in obtaining drug screens, having missed 7 screens and having

failed to call and check-in with her supervisor for 19 consecutive days. Mother

did, however, test negative on 13 drug screens.      While Mother completed

multiple drug and alcohol evaluations, Mother chose not to follow through with

recommended drug and alcohol treatment. Mother also completed a mental

health evaluation in June 2019, was diagnosed with bipolar disorder and was

prescribed lithium.   However, Mother was unsuccessfully discharged from

mental health treatment counseling due to her re-incarceration.

      Mother was inconsistent in attending her scheduled visits with Child.

While transportation to the visits was an issue for Mother, CYS provided her

with a bus pass to alleviate this problem.    Mother did participate in some

school-related meetings addressing Child’s Individualized Education Program

(IEP). Phone calls between Mother and Child did not go well; Mother often

used inappropriate language and yelled at Child for not talking to her.

      With regard to parenting skills, Mother completed a parenting

assessment and parenting program in July 2018.           Alternative Behavior

Consultants (ABC) recommended Mother complete a second parenting

program after she remained sober and was consistent with her Plan goals for

at least three months. Mother was unsuccessful with remaining sober and

compliant for that time period; therefore, she did not progress to the next

level of parenting programs.

      Mother likewise struggled to comply with the conditions of her

probation; she was re-incarcerated twice after being released from jail in

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March 2018 – when Child was placed in foster care. Specifically, in December

2018, Mother twice testified positive for fentanyl while on probation, leading

to her re-incarceration from January 5, 2019 until February 6, 2019.         In

August 2019, Mother was incarcerated again for outstanding warrants due to

failing to pay fines related to a 2010 DUI. With regard to employment, Mother

was unable to verify she had obtained a job, other than a one-day work stub

from McDonalds.

       On September 4, 2019, CYS filed a petition to involuntarily terminate

Mother’s parental rights to Child based upon 23 Pa.C.S. §§ 2511(a)(1), (2),

(5), (8) and (b). The court held termination hearings on September 20, 2019,

and December 20, 2019.5 At the termination hearings Mother,6 various CYS

caseworkers, an ABC consultant, and Mother’s county adult probation officer

testified. On December 23, 2019, the trial court entered a decree terminating




____________________________________________


5 Child was represented by an attorney, Damian J. DeStefano, Esquire, and a
Guardian Ad Litem (GAL), Tammi Blackburn, Esquire, at the termination
hearings. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel
in contested involuntary termination proceedings) and In re K.R., 200 A.3d
969 (Pa. Super. 2018) (en banc), but see In Re: T.S., E.S., 192 A.3d 1080,
1092 (Pa. 2018) (“[D]uring contested termination-of-parental-rights
proceedings, where there is no conflict between a child’s legal and best
interests, an attorney-guardian ad litem representing the child’s best interests
can also represent the child’s legal interests.”).

6At the second termination hearing, there were connection problems with
Mother over her cellular telephone.




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Mother’s parental rights pursuant to sections 2511(a)(1), (5), (8), and (b) of

the Adoption Act.7

        Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On March 18, 2020, counsel

filed a petition for leave to withdraw as counsel pursuant to Anders and V.E..

In V.E., our Court stated:

        Counsel appointed to represent an indigent parent on a first
        appeal from a decree involuntarily terminating his or her parental
        rights, may, after a conscientious and thorough review of the
        record, petition this court for leave to withdraw representation if
        he or she can find no issues of arguable merit on which to base
        the appeal. Given the less stringent standard of proof required
        and the quasi-adversarial nature of a termination proceeding in
        which a parent is not guaranteed the same procedural and
        evidentiary rights as a criminal defendant, the court holds that
        appointed counsel seeking to withdraw representation must
        submit an advocates brief, as contemplated in Anders supra[.]

In re Adoption of V.E., 611 A.2d at 1275. See also In re Adoption of

R.I., 312 A.3d 601, 602 (Pa. 1973) (“the logic behind . . . an individual in a

criminal case being entitled to representation by counsel at any proceeding

that may lead to ‘the deprivation of substantial rights. . . is equally applicable

to a case involving an indigent parent faced with the loss of her child.”).

        In his Anders brief,8 counsel raises the following issues for our

consideration:

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7   23 Pa.C.S. §§ 2101-2938.

8   CYS and counsel for Child have chosen to not file briefs on appeal.


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        (1)   Whether the [t]rial [c]ourt abused its discretion and
              committed an error of law when it found, despite a lack of
              clear and convincing evidence, and despite not allowing
              [Mother] a meaningful opportunity to participate in the
              hearing, that enough grounds existed for a termination of
              [Mother’s] parental rights under [s]ection 2511(a) of the
              Adoption Act, 23 Pa.C.S.[] §[]2511(a).

        (2)   Whether the [t]rial [c]ourt abused its discretion and
              committed an error of law in terminating [Mother’s] parental
              rights when the conditions which led to the removal or
              placement of the child no longer existed or were
              substantially eliminated, thus contravening sections
              2511(a) and (b) of the Adoption Act, [23] Pa.C.S.[]
              §[§][]2511(a), (b).

        (3)   Whether the [t]rial [c]ourt abused its discretion and
              committed an error of law in determining it would be in the
              child’s best interest to have parental rights terminated,
              when it failed to primarily consider the child’s
              developmental, physical and emotional needs and welfare,
              thus contravening [s]ection 2511(b) of the Adoption Act, 23
              Pa.C.S.[] §[]2511(b).

Mother’s Brief at 4-5.

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

counsel’s petition to withdraw. To withdraw under 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.[9]

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
____________________________________________


9   Mother has not raised any additional arguments on appeal.

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the appellant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “attach to [his or her] 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).

      An Anders brief must also 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Finally, this

Court must “conduct an independent review of the record to discern if there

any additional, non-frivolous issues overlooked by counsel.” Commonwealth

v. Flowers, 1133 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).

      Instantly, Mother’s counsel filed a petition to withdraw, certifying that

he reviewed the record 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, potential issues that could be raised by Mother, and counsel’s

assessment of why those issues are wholly frivolous, with citations to relevant

legal authority. Counsel has also provided Mother with a copy of the brief and

a letter advising her of her right to retain new counsel or raise additional issues



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pro se. Accordingly, we find that counsel has substantially complied with the

requirements of Anders and Santiago, and, thus, may review the issues

raised by counsel and also conduct our independent review of the record.

      Our standard of review in termination of parental rights cases is well-

settled:

      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).

      After reviewing Mother’s brief, the certified record, including the notes

of testimony from the termination hearings, and relevant case law, we agree

with the trial court’s decision to involuntarily terminate Mother’s parental

rights to Child. Moreover, our independent examination of the record indicates

that there are no other non-frivolous claims that can be raised. V.E., supra.

      Mother has failed to show that she has the ability to provide the safety,

stability and permanency necessary to meet Child’s special needs. In the 21

months that Child has been out of Mother’s care, Mother has failed to make

“significant strides toward her goals or doing anything notably different[] than


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she had been doing over the preceding 21 months.”             Trial Court Opinion,

2/13/20, at 15. While Child’s GAL testified that Child loves Mother and has a

bond with her, she also testified that it is in Child’s best interest to terminate

Mother’s parental rights where Mother’s inconsistency in fulfilling her Plan

goals and lack of parenting is detrimental to Child’s well-being. See In re

N.A.M., 33 A.3d 95, 104 (Pa. Super. 2011) (“The mere existence of an

emotional bond does not preclude the termination of parental rights.”); see

also In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (under section

2511(b), adequate consideration must be given to needs and welfare of child;

parent’s own feelings of love and affection for a child, alone, do not prevent

termination of parental rights).

       Child has been residing with foster parents, who are prospective

adoptive parents,10 since March 2018.            Child has bonded with her foster

family, which includes three foster siblings;11 her foster family provides for

her special needs, including a structured home environment that manages her

behavioral issues.12     See In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.

____________________________________________


10On December 19, 2019, foster parents filed a report of intention to adopt
Child. See 23 Pa.C.S. § 2531.

11 Foster Mother testified that her three biological children and Child “are like
sisters and brothers basically.” N.T. Termination Hearing, 12/20/19, at 44.

12 Foster Mother testified that when Child first came into her care, she
exhibited baby-like behavior. N.T. Termination Hearing, 12/20/19, at 52.
Foster Mother testified that since that time, Child has progressed and acts



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Super. 2006) (“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.”).

       We therefore, rely upon the opinion authored by the Honorable

Christylee I. Peck, in affirming the decree involuntarily terminating Mother’s

parental rights to Child. We ask the parties to attach a copy of Judge Peck’s

decision in the event of further proceedings in the matter. We also conclude

that Mother’s appeal is frivolous and grant counsel’s motion to withdraw.

       Decree affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/12/2020




____________________________________________


more age-appropriate. Id. Foster Mother also testified that after visits with
Mother, Child reverts back to acting like a baby or little toddler. Id. at 52-53.




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