J-S34008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INT. OF: T.B., A MINOR            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: T.A., NATURAL MOTHER          :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 475 MDA 2020

            Appeal from the Decree Entered February 21, 2020
    In the Court of Common Pleas of Dauphin County Orphans' Court at
                           No(s): 2-AD-2020

 IN THE INT. OF: T.A., A MINOR            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: T.A., NATURAL MOTHER          :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 476 MDA 2020

               Appeal from the Decree Entered February 21, 2020
                In the Court of Common Pleas of Dauphin County
                      Orphans' Court at No(s): 3-AD-2020


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

MEMORANDUM BY PANELLA, P.J.:                       FILED AUGUST 24, 2020

         In these consolidated appeals, T.A. (“Mother”) appeals from the order

and decree entered February 20, 2020, in the Dauphin Court of Common

Pleas.     The order changed the permanent placement goal of her children

(“Children”), T.B. (“Son”), born in September of 2004 and T.A. (“Daughter”),

born in August of 2012, from reunification to adoption. A decree entered the
J-S34008-20


same day involuntarily terminated her parental rights to her children. 1 In

addition, Mother’s counsel has filed a petition to withdraw and brief in

accordance with Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant counsel’s petition to withdraw and affirm both the order and the decree.

        The parties are well aware of the facts and procedural history underlying

this appeal, which the trial court details in its opinion. See Trial Court Opinion,

4/03/20, at 1-5. Accordingly, we need not reiterate them at length herein.

In summary, Mother was involved with Delaware County Children and Youth

Services (“CYS”) from 2012-2017.               In August 2017, Dauphin County CYS

became involved after receiving reports of conflicts between Mother and her

oldest child,2 and Mother’s use of Phencyclidine (“PCP”). On August 23, 2017,

following a hearing, the trial court adjudicated the Children dependent.

        Son resides in a stable foster home, while Daughter lives in a

preadoptive foster home.         When CYS initially placed the Children in foster

care, the goal was to return to their parent(s). On January 29, 2020, CYS

filed a petition for goal change to adoption and a petition to terminate

involuntarily Moher and Fathers’ parental rights.         Following a February 20,


____________________________________________


1 The Children’s fathers, K.B. to Son, and Unknown Father and K.R. to
Daughter have not been involved in these proceedings. The trial court
involuntary terminated their rights the same day and they have not appealed.

2   This child is over age eighteen and is not involved in these proceedings.


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2020 hearing, at which counsel represented Mother and Mother participated,

the trial court entered an order changing the Children’s permanency goal to

adoption, and a decree involuntarily terminating Mother’s parental rights.

Mother filed timely notices of appeal from both the order and decree on March

9, 2020, accompanied by a statement of intent to file an Anders brief.3 See

Pa.R.A.P. 1925(c)(4). On May 20, 2020, Mother’s counsel filed an Anders

brief in this Court.4

       We begin by addressing counsel’s request to withdraw and Anders

brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“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.”) (quotation omitted). This Court extended the Anders procedure

to appeals from decrees terminating parental rights involuntarily in In re V.E.,

611 A.2d 1267 (Pa. Super. 1992), and to appeals from goal change orders in

In re J.D.H., 171 A.3d 903 (Pa. Super. 2017).

       To withdraw pursuant to Anders, counsel must comply with the

following requirements:


____________________________________________


3We note Mother properly filed separate notices of appeal for each docket.
See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).

4 On May 22, 2020, this Court directed counsel to file a proper petition to
withdraw and serve it upon Mother. On May 25, 2020, counsel complied. On
June 9 and 18, 2020, this Court received letters from both Children’s guardian
ad litems stating they would not be filing briefs in this matter. Dauphin County
CYS has also failed to file a brief.

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      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) (citation omitted). Counsel must provide this Court with a copy of the

letter advising the appellant of his or her rights. See Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      Additionally, our Supreme Court has set forth the following requirements

for Anders briefs:

      (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.

      In the instant matter, counsel filed a petition to withdraw and Anders

brief stating she conducted a review of the record and determined Mother’s

appeal is “wholly frivolous.” Application for Leave to Withdraw, 5/25/20, at 3.

The Anders brief includes a summary of the facts and procedural history of

this case, the issue that could arguably support the appeal, and counsel’s

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assessment of why the issue is frivolous, with citations to the record and

relevant legal authority. Counsel also provided this Court with a copy of her

letter to Mother, advising her of her right to obtain new counsel or proceed

pro se.5    Moreover, we note Mother has not filed a response to counsel’s

petition. Therefore, we find counsel has complied with the requirements of

Anders and Santiago, and we may proceed to review the issue outlined in

her brief. Additionally, 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).

       Counsel’s Anders brief presents the following issue for our review:

whether the trial court abused its discretion or committed an error of law by

determining it was in the Children’s best interest to terminate Mother’s

parental rights.6    See Anders Brief, at 7.

       Mother contends the trial court abused its discretion in involuntarily

terminating her parental rights.          See Anders Brief, at 7. We apply the




____________________________________________


5Counsel indicated in her letter that she had enclosed a copy of the Anders
brief.

6 Mother does not challenge the change of the permanency goal from
reunification from adoption. See Anders Brief, at 6-7. Our independent
review of the record does not demonstrate any nonfrivolous issues with
respect to the trial court’s determination; we therefore will not address it
further.

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following standard of review when considering the propriety of a termination

decree:

     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).

     Section 2511 of the Adoption Act governs the involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It 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 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 the instant matter, the juvenile court terminated Mother's parental

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


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

Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc). Here, we analyze the court’s decision pursuant to Section

2511(a)(2) and (b), which provide 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 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(a)(2), (b).




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      Mother contends the court abused its discretion in terminating her rights

under Subsection 2511(a)(2) because “she did everything she could to be

reunited with her children.” Anders Brief, at 17. We disagree.

      Considering first   the   grounds for     termination under      subsection

2511(a)(2), we note:

      . . . . 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).

      The trial court summarized the evidence supporting its decree as

follows:

      [CYS] established service objectives. Mother’s service objectives,
      and her level of compliance, are as follows:

      1.     Submit to 3 drug screens per week at [CYS].

             Over the life of the case, Mother was required to
             submit to 354 urine screens. Mother submitted to
             only 17, all of which tested positive. Mother’s last
             test, on August 29, 2019, was positive for PCP.

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              Mother is presumed to have tested positive on the
              times she failed to appear; therefore, all 354 tests
              were positive.

              Mother stated that she failed to appear for drug
              testing because she lacked transportation, although
              [CYS] made transportation available to her through
              STOPP, (Short-Term Therapeutic Outreach to Prevent
              Placement). STOPP provides transportation for urine
              screens. Mother was discharged from STOPP as
              unsuccessful. Although Mother submitted to some
              drug screens at the YWCA, those screens did not test
              for PCP [Mother’s drug of choice].

       2.     Submit to a drug and alcohol evaluation.

              Mother obtained a drug and alcohol evaluation and
              received the recommendation that she undergo drug
              and alcohol treatment at NASR Consultant Group, a
              drug rehabilitation facility. Mother did not complete
              this objective. Mother states that she has received
              outpatient drug and alcohol treatment but offered no
              supporting evidence.[7]

       3.   Obtain a psychological               evaluation   and   follow   all
       recommendations.

              Mother obtained a psychological evaluation but did not
              follow through with the recommendations.          The
              examiner, Howard Rosen, Ph.D., recommended that
              Mother continue with drug and alcohol treatment,
              undergo outpatient therapy, continue with psychiatric
              medication    management,        seek     evaluation,
              management and intervention for chronic pain, and
              complete the Strengthening Families parenting
              program. Mother did not follow through with any of
              the recommendations.


____________________________________________


7 While Mother claimed the same counselor treated her for several years for
both her drug and mental health issues, she did not know her last name,
provided no records, did not ask the counselor to appear at the hearing, and
did not know her credentials.

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       3.     Cooperate and comply with [CYS] objectives.

              Mother failed to maintain contact with [CYS]. In
              October and December of 2018, [CYS] required
              Mother’s authorization for medical management for
              [Son]. [CYS] was unable to locate Mother to obtain
              authorization, necessitating the filing of motions for
              authorization with the [trial court]. In April 2018.
              [CYS] filed a motion for medical authorization for
              mental health services regarding [Daughter].

              Mother did not timely notify [CYS] of a change in
              address.

              Mother failed to cooperate with efforts toward
              reunification. [CYS] offered visits with Mother and
              [the Children] at the YWCA. However, the YWCA
              discharged Mother from the program due to lack of
              attendance. Mother frequently arrived late, after [the
              Children] left. There were some occasions on which
              [the Children] did not appear for visits. Following
              discharge from the visitation program at the YWCA,
              [CYS] offered Mother visitation at [their building].
              [Son] did not attend consistently, as he did not wish
              to visit with Mother. At some visits, Mother’s yelling
              and cursing . . . required intervention.

              Frequently, [CYS] could not reach Mother to advise of
              school appointments.

              Mother did not sign necessary releases for
              participation in the parenting program. Strengthening
              Families.

              Mother believes she complied with everything [CYS]
              has asked of her.[8]
____________________________________________


8 Mother’s testimony on this point was somewhat less than clear. Based upon
the context in which this statement occurred, and her later testimony on
cross-examination, it appears she was referring to a previous occasion when
her Children were in care with Delaware County CYS, who later returned them
to her, not the present instance. N.T. Termination Hearing, 2/20/20, at 61,
63, 69-70.

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      5.    Obtain and maintain appropriate and stable housing.

            Mother’s one-bedroom apartment has insufficient
            room for [the Children].

      6.   Participate    in and   successfully complete   a parenting
      program.

            Mother enrolled in, but did not complete, the Samara
            Intensive Parenting Program. Mother attended only 9
            out of 19 classes.

      7.   Participate in therapeutic counseling with [the Children to
      address trauma associated with [their] placement.

            Mother failed to participate in counseling.

      8.   Attend all Court hearings, meetings and treatment plan
      meetings.

            Mother attended 9 out of 10 court hearings. Mother
            did    not    attend    medication     management
            appointments.

      Both Children have been in care since August 23, 2017.

Trial Court Opinion, 4/03/20, at 2-4 (record citations omitted).

      Our review of the record reveals ample support for the court's findings.

Indeed, the Children’s case manager testified Mother has made no progress

towards her objectives.    See N.T. Termination Hearing, 2/20/2020, at 16.

Mother only participated in 17 out of 354 drugs screenings and failed all 17.

See id., at 18. Mother did not comply with the recommended drug and alcohol

treatment. See id., at 19. Mother did not sign releases. See id., at 20, 22,

29.




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      At various times, CYS has been unable to locate Mother, necessitating

further court proceedings in order for the Children to get needed medical

treatment. See id., at 22-24.

      Mother has not completed a parenting program. See id., at 25-26, 28.

Mother has not complied with the recommendations made by Dr. Rosen after

her psychological evaluation. See id., at 26-28. Mother’s attendance at visits

has been, at best, sporadic; she failed to appear for a visit scheduled just one

week prior to the termination hearing. Id. at 33-34.

      Accordingly, we can find no error with the trial court’s determination

CYS presented clear and convincing evidence of Mother’s “repeated and

continued incapacity” to care for the Children. M.E.P., 825 A.2d, at 1272.

This caused the Children to be “without essential parental care, control or

subsistence necessary” for their well-being, and the cause of Mother’s

incapacity, i.e., her drug use, mental health problems, and refusal to

cooperate with service providers, “cannot or will not be remedied.”    Id.

      As we have found the evidence supported the involuntary termination

of Mother’s parental rights under Subsection 2511(a)(2), we next consider

whether the trial court abused its discretion by terminating Mother’s parental

rights pursuant to Section 2511(b). The requisite analysis is as follows:

      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,
      Section 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,

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     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 [S]ection 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.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015)

(quotations and some punctuation omitted).

     In concluding CYS presented clear and convincing evidence under

Subsection 2511(b), the trial court opined:

     We find that the developmental, physical and emotional needs and
     welfare of [the Children] are best served by termination of
     Mother’s parental rights.

                                    ***

     Termination of Mother’s parental rights provides [the Children]
     with the opportunity for permanency.

                                    ***

     Here, the record is devoid of evidence of a bond between Mother
     and [the Children]. To the contrary, [Son] chooses not to visit with
     Mother. Mother offered no testimony as to her relationship with
     [Daughter].

     Both foster homes provide stable and loving care. [Son’s] foster
     family has ensured that his medical, psychological and educational
     needs are met. [Daughter] has bonded well with her pre-adoptive
     foster mother. We will not subordinate their best interests and

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      the stability they enjoy to the hope that Mother can someday
      overcome her obstacles.

Trial Court Opinion, 4/03/20, at 8-9.

      Again, we find no abuse of discretion on the part of the trial court. The

evidence demonstrated Son has no interest in having contact with Mother,

and both Children expressed the wish, through their guardian ad litems, to be

adopted. See N.T. Termination Hearing, 2/20/2020, at 6. Mother had made

minimal efforts to foster a relationship with the Children. See id., at 33-34,

46-47, 53-54, 57-58.    Further, both Children are in stable foster homes, and

Daughter’s foster mother wants to adopt her.      Id. at 14-16.   Accordingly,

Mother is entitled to no relief on her challenge to the court’s involuntary

termination of her parental rights.

      Therefore, because our review of Mother’s claims demonstrates they do

not entitle her to relief, and because our independent review of the record

does not reveal any non-frivolous issues overlooked by counsel, we grant

counsel’s petition to withdraw and affirm both the order and decree entered

on February 20, 2020.

      Order affirmed. Decree affirmed. Application to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2020




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