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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.M.D., A              :     IN THE SUPERIOR COURT OF
    MINOR                                      :          PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.R., MOTHER                    :
                                               :
                                               :
                                               :
                                               :     No. 1803 MDA 2019


                Appeal from the Decree Entered October 3, 2019,
                 in the Court of Common Pleas of York County,
                     Orphans' Court at No(s): 2019-0107a.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                   FILED: APRIL 20, 2020

       A.R. (Mother) appeals from the decree terminating her parental rights

to her 4-year-old son J.M.D. (Child) under the Adoption Act. 1             See 23

Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother’s counsel has filed an

application 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).

After review, we conclude that Mother’s counsel complied with the procedural

requirements necessary to withdraw.                Furthermore, after independently

reviewing the record, we conclude that the appeal is wholly frivolous. We



____________________________________________


1 In a separate appeal, also before this panel, Mother also challenges the
termination of her other 4-year-old son E.L.D.; the children are twins. See
1802 MDA 2019. In both cases, the court also terminated the rights of M.A.D.,
Sr. (Father), who does not appeal either case.
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grant counsel’s application to withdraw and affirm the decree terminating

Mother’s parental rights.

      Child was born in 2015. The York County Office of Children, Youth and

Families (the Agency) became involved with the family in early 2018. The

reasons included ongoing domestic violence, Mother’s mental health, unstable

living conditions, parenting concerns and lack of supervision. Child was placed

in foster care on August 31, 2018. A shelter care hearing was held on

September 4, 2018, and Child was adjudicated dependent on September 26,

2018. After Mother made minimal progress over the course of 12 months, the

Agency filed a petition to terminate Mother’s rights. The orphans’ court held

a hearing on September 10, 2019 and granted the Agency’s petition. This

timely appeal followed.

      Mother’s counsel raises two issues in her Anders brief:

            1. Whether the court abused its discretion in finding that
               [the Agency] established by clear and convincing
               evidence that the statutory grounds existed to justify
               terminating the parental rights of [Mother] pursuant
               to 23 Pa.C.S.A. § 2511(a)(2), (5), and (8).

            2. Whether the [orphans’] court made an error of law or
               abused its discretion in concluding that an involuntary
               termination of parental rights of [Mother] would best
               serve the needs and welfare of [Child] pursuant to
               Section 2511(b) of the Adoption Act.

Anders Brief at 4.

      Initially, because counsel filed a petition to withdraw and an Anders

brief, “this Court may not review the merits of the underlying issues without



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first passing on the request to withdraw.” Commonwealth v. Daniels, 999

A.2d 590, 593 (Pa. Super. 2010) (citing Commonwealth v. Goodwin, 928

A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted)). This Court

extended the Anders principles to appeals involving the termination of

parental rights. In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citation omitted).

      In order for counsel to withdraw from an appeal pursuant to Anders,

certain requirements must be met. In the Anders brief, 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) 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 Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

         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).




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      “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.” In re X.J., 105 A.3d at 4 (citing Commonwealth v. Goodwin,

928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (further citation omitted).

Furthermore, this Court’s independent review must also “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).

Flowers does not require us “to act as counsel or otherwise advocate on

behalf of a party.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.

Super. 2018) (en banc).     “Rather, it requires us only to conduct a simple

review of the record to ascertain if there appear on its face to be arguably

meritorious issues that counsel, intentionally or not, missed or misstated.” Id.

      Preliminarily, we find counsel has substantially complied with the

technical requirements to withdraw. See Commonwealth v. Reid, 117 A.3d

777, 781 (Pa. Super. 2015) (observing that substantial compliance with the

Anders requirements is sufficient). We now turn to merits of the issues raised

and examine whether this appeal is wholly frivolous.

      We review an order involuntarily terminating parental rights for an

abuse of discretion.    In re G.M.S., 193 A.3d 395, 399 (Pa. Super.

2018) (citation omitted). “The party seeking termination must prove by clear

and convincing evidence that the parent's conduct satisfies the statutory




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grounds for termination[.]” In re Adoption of J.N.M., 177 A.3d 937, 942

(Pa. Super. 2018), appeal denied, 183 A.3d 979 (Pa. 2018) (citation omitted).

      The first issue raised in counsel's Anders brief is whether the trial court

erred in concluding that the requirements of Section 2511(a) were satisfied.

“In order to affirm the termination of parental rights, this Court need only

agree with any one subsection under Section 2511(a).” In re Interest of

D.F., 165 A.3d 960, 966 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa.

2017) (citation omitted). The orphans’ court found that the requirements

of sections 2511(a)(1)(2), (5), and (8) were satisfied.

      We focus our attention on Section 2511(a)(2), which provides in

relevant part:

         § 2511. Grounds for involuntary termination

         (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.

23 Pa.C.S.A. §2511(a)(2).

      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 re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted).

      In this case, the orphans’ court concluded that Mother did not have the

ability to change or improve her situation or parenting. Specifically, Mother

submitted to a parenting capacity evaluation, which concluded that Mother did

not have the intellectual capacity to parent on her own. Mother engaged in

parenting classes and individual therapy to overcome this obstacle, but they

were to no avail. For instance, Mother and Father visited with Child; when

Father left, Mother became too overwhelmed to continue with the visit.

      To that end, Mother’s dependence on Father was alarming, considering

the toxic relationship between the parents. The significant domestic violence

between the parents was an ongoing issue throughout this case, including the

day of the termination hearing. To illustrate, five days prior to the termination

hearing, service provider Tahami Samphilipo helped Mother move in with

Mother’s sister to avoid Father’s abuse.      One the day of the termination

hearing, Ms. Samphilipo went to the sister’s house to give Mother a ride to the

hearing, only to discover that Mother returned to Father. Additionally, Regina

Pike, another service provider, testified that the ongoing violence created a

chronic crisis. The court determined that this violence created “a toxic and

unsafe space for [Child].”

      We agree the Agency provided sufficient evidence to terminate Mother’s

rights pursuant to Section 2511(a)(2). Mother’s inability to parent has caused

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Child to be without parental care, and she has demonstrated that she either

cannot or will not remedy this inability.

      We next consider whether the Agency proved the requirements of

Section 2511(b). That section provides:

         (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.
         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.A. §2511(b).

      When examining the needs and welfare of the child under this section,

the court must consider the nature and status of the emotional bond between

parent and child. See C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation

omitted).   The court must pay close attention to whether permanently

severing the bond will have a negative the effect on the child. See id. (citation

omitted). The bond question is not simply whether one exists, but whether

the bond is worth saving.

      As we have said:

         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. The mere existence of an

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         emotional bond does not preclude the termination of
         parental rights. Rather, the orphans' court must examine
         the status of the bond to determine whether its termination
         would destroy an existing, necessary and beneficial
         relationship.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotations and citations

omitted).

      In the instant case, all parties acknowledge that there is a bond between

Mother and Child. However, that bond is demonstrably unhealthy. At the

time of the termination hearing, Child had lived with the foster parents for just

over a year.    When Child came into foster care, he was developmental

delayed. Child had difficulty eating food because he had 16 cavities. Child

would eat out of trash cans and try to eat rocks. Child did not speak at all

when he came into foster care. Child was not potty-trained. While in foster

care, Child has thrived and many of the health and developmental concerns

have been alleviated. After visits with Mother, Child would regress and throw

tantrums.

      Given these facts, we conclude the Agency presented sufficient evidence

to warrant termination under Section 2511(b).          While Child knows and

recognizes Mother, it is clear termination best serves his needs and welfare.

Termination would not sever a beneficial relationship, but instead would

provide Child with essential stability and permanency.

      In sum, we conclude that both issues raised in counsel's Anders brief

are wholly frivolous.




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        Next, we conduct an independent review of the entire record to discern

whether any other issue of arguable merit exists. See Flowers, supra. In

doing so, we note that Mother’s counsel failed to appeal one of the four

grounds upon which termination was granted under 23 Pa.C.S.A. § 2511(a).

        In this matter, the Agency petitioned to terminate under four sections

under the Adoption Act, namely, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).

The orphans’ court granted the petition under all four sections.    Counsel’s

Anders Brief raised Section 2511(a)(2), (5), and (8), but omitted Section

2511(a)(1). Although counsel’s oversight is significant, it does not warrant

relief under our Anders protocol.

        As we mentioned above, when this Court discovers a non-frivolous

issue, we will deny the petition to withdraw and remand for the filing of an

advocate’s brief. See Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.

Super. 2016).      Notably, this Court may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one subsection

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

(en banc). Thus, even if we remanded for an advocate’s brief, and even if

Mother proved successful in her challenge under Section 2511(a)(1),

termination would still be warranted under Section 2511(a)(2). Consequently,

we cannot conclude that counsel’s failure to challenge the termination under

Section 2511(a)(1) constitutes a non-frivolous issue under the facts of this

case.




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     Having determined that the issues raised on appeal are wholly frivolous

and that no other issue would have arguable merit, we grant counsel's request

to withdraw and affirm the decree terminating Mother’s parental rights.

     Application to withdraw as counsel granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/2020




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