J-S24023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: R.R.M., A          :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: R.B.                        :
                                        :
                                        :
                                        :
                                        :   No. 1761 MDA 2017


           Appeal from the Order Entered, October 18, 2017,
             in the Court of Common Pleas of York County,
          Juvenile Division at No(s): CP-67-DP-0000014-2016.


 IN THE INTEREST OF: R.R.M., A          :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: R.B., FATHER                :
                                        :
                                        :
                                        :
                                        :   No. 1763 MDA 2017


              Appeal from the Order Entered, October 16, 2017,
                in the Court of Common Pleas of York County,
                     Orphans' Court at No(s): 2017-0030.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED JUNE 28, 2018
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       R.B. (“Father”) appeals from the order involuntarily terminating his

parental rights to his four-year-old son, R.R.M. (“Child”).1 Father also appeals

from the order changing Child’s permanency goal from reunification to

adoption.2 In addition, Father’s counsel had filed a petition to withdraw and

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we grant counsel’s petition to withdraw and affirm the termination and goal

change.

       The record reveals that Mother and Child had been on the radar of the

York County Office of Children, Youth and Families (“Agency”) for some time.

The Agency had been involved with Mother’s family when she was a minor.

In November 2015, the Agency investigated claims that Mother and Child were

living in a van in the driveway of the maternal grandparents. There were also

claims of drug use, but upon an investigation, the allegations could not be

substantiated.

       In January 2016, the Agency sought emergency protective custody of

Child after allegations were made that Mother had left Child unsupervised and

____________________________________________


1 The orphans’ court also terminated Mother’s parental rights, but she does
not appeal. The trial court evidently terminated the potential rights of another
man, R.D.M. who was listed as the father on the subject child’s birth
certificate. However, subsequent DNA testing revealed that the Father, R.B.,
is the biological parent of the subject child. R.D.M. was served with notice of
the termination hearing, but neither he nor counsel appeared. He does not
appeal.
2 Because Father’s appeals arise from the same set of facts and involve similar

issues, we have consolidated the appeals for ease of disposition.

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was using drugs.         Child was found to be in the care of the maternal

grandfather, who could not be a resource due to his involvement with the

Agency regarding his own minor child, who was not a subject in these

proceedings. It was further alleged that Mother was in Maryland. The Agency

contacted Father, who resided in Maryland; he indicated that he had not been

involved with Child.        Mother tested positive for cocaine, marijuana and

opiates; Mother admitted to using heroin. Child was placed in foster care.

       Child was adjudicated dependent on February 10, 2016. Father did not

attend the hearing.      At this juncture, the goal was reunification.     A status

conference was held in April 2016.              Father sent a letter to the Agency

indicating that he wished to be a resource, but the Agency could not reach

Father with the telephone number he provided to them. Since the initial letter,

however, the Agency did not have any contact with Father.

       In July 2016, following a permanency review hearing, the court

determined that neither parent had complied with the permanency plan.

Although he continued to receive notice of the hearings, Father refused to

participate in either the Agency’s reunification plan or the court’s permanency

review hearings. In fact, the first time the Agency’s caseworker met Father

was at the initial termination hearing in May 2017.3 In August 2017, the court

concluded its termination hearing.             In October, the court entered orders
____________________________________________


3 At the May termination hearing, Father appeared and requested counsel.
The court appointed Marc Semke, Esq. to represent Father and continued the
portion of the termination hearing that pertained to him until August 17, 2017.
Father did not appear for the continued hearing.

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terminating Father’s rights and changing the reunification goal to adoption.

Father appeals.

      He presents two issues:

         1. Whether the court erred in finding that the [Agency]
         proved by clear and convincing evidence that the parental
         rights of [] Father should be terminated pursuant to 23
         Pa.C.S.A. § 2511(a).

         2. Whether the court erred by changing the court ordered
         goal from reunification to adoption.

Father’s Brief, at 4.

      Before we reach the merits of the issues, we address Father’s counsel’s

application to withdraw as counsel and his corresponding Anders brief.     See

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

Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (stating,

“[w]hen 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”).

      In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court

extended the Anders principles to appeals involving the termination of

parental rights. We stated that counsel appointed to represent an indigent

parent on a first appeal from a decree involuntarily terminating parental rights

may, after a conscientious and thorough review of the record, petition this

Court for leave to withdraw representation and must submit an Anders brief.

Id. at 1275. To withdraw pursuant to Anders, counsel must: 1) petition the


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Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; 2)

file a brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points that the appellant deems worthy of review. In re V.E., 611 A.2d at

1273. Thereafter, this Court examines the record and determines whether

the appeal is wholly frivolous. Id.

      Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), stated that an Anders 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.

Santiago, 978 A.2d at 361.

      The Santiago Court reaffirmed the principle that indigents “generally

have a right to counsel on a first appeal, [but] . . . this right does not include

the right to bring a frivolous appeal and, concomitantly, does not include the

right to counsel for bringing such an appeal.” Santiago, 978 A.2d at 357

(citation omitted). Our Supreme Court stated:

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      In the Court’s view, this distinction gave meaning to the Court’s
      long-standing emphasis on an indigent appellant’s right to
      “advocacy.” . . . As the Court put it, “[a]lthough an indigent whose
      appeal is frivolous has no right to have an advocate make his case
      to the appellate court, such an indigent does, in all cases, have
      the right to have an attorney, zealous for the indigent’s interests,
      evaluate his case and attempt to discern nonfrivolous arguments.”

Santiago, 978 A.2d at 357-358 (citation and quotation omitted). Father’s

counsel has complied with all of the requirements of Anders/Santiago. We

thus proceed to consider his assessment of Father’s claims.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

      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 D.L.B., 166 A.3d 322, 325 -326 (Pa. Super. 2017) (citations and internal

quotation marks omitted). “The trial 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 T.S.M., 71 A.3d

251, 267 (Pa. 2013) (citation omitted). “[I]f competent evidence supports the

trial court's findings, we will affirm even if the record could also support the




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opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super.

2003) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, which requires a bifurcated

analysis of the grounds for termination followed by the needs and welfare of

the child.

         Our case law has made clear that under Section 2511, the
         court must engage in a bifurcated process prior to
         terminating parental rights. 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). We have

defined clear and convincing evidence as that which 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.” In re

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation and

quotation marks omitted).

      In this case, the trial court terminated Father's parental rights pursuant

to Sections 2511(a) (1), (5), (8) and (b), which provide as follows:

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       § 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:

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

       (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.

       (8) The child has been removed from the care of the parent
       by the court or under a voluntary agreement with an
       agency, 12 months or more have elapsed from the date of
       removal or placement, the conditions which led to the
       removal or placement of the child continue to exist and
       termination of parental rights would best serve the needs
       and welfare of the child.

       ....

       (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.

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23 Pa.C.S.A. § 2511(a)(1), (5), (8), and (b). We need only agree with the trial

court as to any one subsection of Section 2511(a), in addition to Section

2511(b), to affirm an order terminating parental rights. In re M.M., 106 A.3d

114, 117 (Pa. Super. 2014).

      Here, we find clear and convincing evidence that Father refused to

parent Child. He did nothing to involve himself in Child’s life. At least since

Child’s removal in January 2016, the Father has not visited Child. He did not

seek contact of the Child since his the initial letter to the Agency. He did not

seek the help of the Agency to reunify with Child.          The Agency properly

established grounds warranting termination under § 2511(a)(1).

      Next, we consider whether termination was proper under Section

2511(b). With regard to Section 2511(b), our supreme court has stated as

follows:

           [I]f the grounds for termination under subsection (a) are
           met, a court “shall give primary consideration to the
           developmental, physical and emotional needs and welfare
           of the child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs
           and welfare of the child have been properly interpreted to
           include [i]ntangibles such as love, comfort, security, and
           stability.... [T]his Court held that the determination of the
           child's “needs and welfare” requires consideration of the
           emotional bonds between the parent and child. The “utmost
           attention” should be paid to discerning the effect on the child
           of permanently severing the parental bond. However, as
           discussed below, evaluation of a child's bonds is not always
           an easy task.

In re T.S.M., 71 A.3d at 267 (internal case citations omitted). “[I]n cases

where there is no evidence of a bond between a parent and child, it is


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reasonable to infer that no bond exists. Accordingly, the extent of the bond-

effect analysis necessarily depends on the circumstances of the particular

case.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010)

(citations omitted). Additionally, when evaluating a parental bond, “the court

is not required to use expert testimony. Social workers and caseworkers can

offer evaluations as well. Additionally, Section 2511(b) does not require a

formal bonding evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010) (citations omitted).

      In this matter, we note that the lower court evidently issued two

opinions. The first was issued contemporaneously with the termination order.

The second, issued after Father’s appeal, refers to the substantive discussion

of the first. The court’s opinion addresses the termination of Mother, Father,

and a third person, R.M., who was the purported father before the appellant

Father took a DNA test that identified him as the biological parent and ruled

out R.M. Curiously, the Agency still pursued termination of R.M.’s rights and

the orphans’ court so ordered it.

      In the § 2511(b) analysis of its opinion, the court noted that Father had

not seen Child during the duration of the dependency proceedings. Moreover,

Father likely had never met Child until the initial termination hearing in May

2017. The orphans’ court observed that Child reacted to Father as he did to

any other stranger who was in the courtroom. Child does not have sibling

bonds, because he has no known siblings. However, his maternal aunt, who

is only a few months older than Child, is also placed with Child’s pre-adoptive

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foster parents. We agree with the orphans’ court’s conclusion that all of Child’s

significant bonds are with his foster family members. Child views the pre-

adoptive foster family as his parental figures. Because there exists clear and

convincing evidence that termination best serves Child’s needs and welfare

under § 2511(b), we discern no abuse of discretion.

      We turn now to Father’s second contention that the lower court abused

its discretion by changing Child’s permanency goal to adoption. We apply the

following standard of review.

         …[T]he standard of review in dependency cases requires an
         appellate court to accept the findings of fact and credibility
         determinations of the trial court if they are supported by the
         record, but does not require the appellate court to accept
         the lower court’s interferences or conclusions of law.
         Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      The Juvenile Act governs proceedings to change a child’s permanency

goal. See 42 Pa.C.S.A. §§ 6301 – 6375. Trial courts must apply the following

analysis when considering a goal change petition.

      Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
      considering a petition for a goal change for a dependent child,
      the juvenile court is to consider, inter alia: (1) the continuing
      necessity for and appropriateness of the placement; (2) the
      extent of compliance with the family service plan; (3) the
      extent of progress made towards alleviating the circumstances
      which necessitated the original placement; (4) the
      appropriateness and feasibility of the current placement goal
      for the children; (5) a likely date by which the goal for the child
      might be achieved; (6) the child’s safety; and (7) whether the
      child has been in placement for at least fifteen of the last
      twenty-two months. The best interests of the child, and not
      the interests of the parent, must guide the trial court. As this


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      Court held, a child’s life simply cannot be put on hold in the
      hope that the parent will summon the ability to handle the
      responsibilities of parenting.

In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citations and

quotation marks omitted).

      At the time of the goal change, Child had been in placement seventeen

months. Given Father’s refusal to parent Child, or even meet Child, and given

Father’s refusal to comply with the Agency’s service plan, the trial court had

no choice but to find that these factors favored changing the goal. The record

confirms that it would be in Child’s best interest to change his permanency

goal from reunification to adoption. Again we discern no abuse of discretion.

      Upon our careful and independent review of the record, we grant

Father’s counsel’s application to withdraw and affirm the lower court’s orders

terminating Father’s rights and changing the reunification goal to adoption.

      Orders entered. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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