J-S57012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: S.Y.F., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: E.P., JR., FATHER               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 974 MDA 2019

                 Appeal from the Decree Entered May 21, 2019
      In the Court of Common Pleas of Lancaster County Orphans' Court at
                              No(s): 2078-2018


BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 27, 2019

       E.P., Jr. (“Presumptive Father”), appeals from the May 21, 2019,

orphans’ court decree1 that involuntarily terminated his parental rights to his

daughter, S.Y.F., born in February 2012.2 In addition, on September 9, 2019,

____________________________________________


1 The decree was dated May 16, 2019; however, the orphans’ court did not
provide notice pursuant to Pa.R.C.P. 236(b) until May 21, 2019. Our appellate
rules designate the date of entry as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

2 By the same decree, the orphans’ court involuntarily terminated the parental
rights of the biological father, A.O. a/k/a A.O.-S. (“Father”), as well as the
mother, X.F. (“Mother”). Father did not participate in the orphans’ court
proceedings nor appeal the decree. We address Mother’s appeal in a separate
memorandum filed at Superior Court Docket No. 940 MDA 2019.
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counsel for Presumptive Father, Caprice Hicks Bunting, Esquire (“Counsel”),

filed an Anders3 brief, averring that the within appeal is wholly frivolous, as

well as a petition to withdraw. We grant Counsel’s petition to withdraw and

affirm.

        The relevant procedural and factual history are as follows. S.Y.F. has

been in the custody of Lancaster County Children and Youth Social Service

Agency (“CYS” or the “Agency”) since October 19, 2016. N.T., 5/16/19, at 8;

N.T., 4/18/19, at 48; Petitioner’s Exhibit 2, 5/16/19, at 2 (unpaginated). The

circumstances of the agency’s involvement were recounted as follows:

        On September 8, 2016, the [CYS] received its most recent referral
        of the . . . family. It was reported to the Agency that [Mother]
        and her paramour . . . could be heard fighting loudly throughout
        the night and the parents were using illegal drugs while in a
        parenting role. It was also reported that [S.Y.F.] was often seen
        dirty and uncared for.

              ....

        The child, [S.Y.F.], continued to reside with [Mother] and [her
        paramour]. There were continued reports received that there
        [were] domestic disputes in the home between [Mother] and [her
        paramour] as well as continued drug use. The Agency sent a legal
        letter notifying the family that if they were not cooperative with
        allowing the Agency to complete a home visit, . . . the Agency
        would be reporting [S.Y.F.] as a missing person and the Agency
        would be consulting the Agency attorney. A home visit was
        completed on October 17, 2016, with assistance from Lancaster
        City Police. The family was not present. There were continued
        concerns regarding the whereabouts of [S.Y.F.], as well as
        concerns for violence and drug use in the home.


____________________________________________


3   Anders v. California, 386 U.S. 738 (1967).


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        [S.Y.F.] was placed into Agency custody on October 19, 2016,
        when she was located. [The juvenile court adjudicated S.Y.F.
        dependent in December 2016.] [S.Y.F.] was placed into Agency
        custody on October 19, 2016, when she was located.

Petitioner’s Exhibit 2, 5/16/19, at 1-3 (unpaginated); see also N.T., 5/16/19,

at 8.

        On September 26, 2018, CYS filed a petition to terminate parental rights

of Mother, Father, and Presumptive Father. CYS amended the petition on April

22, 2019 to include 23 Pa.C.S. § 2511(a)(3) as to Presumptive Father. The

orphans’ court held hearings on the Agency’s petition on October 25, 2018,4

April 18, 2019, and May 16, 2019. As Presumptive Father was incarcerated

at SCI-Camp Hill, he participated in the hearing via telephone. CYS presented

the testimony of Amanda Kauffman, the CYS caseworker assigned to the

family, Ashley Caban, the Supervisor of CYS’s Permanency Unit, and Colby

Tuell, Lancaster Adult Probation and Parole Services probation officer.5
____________________________________________


4 On October 25, 2018, the orphans’ court incorporated that juvenile court
records into the termination proceedings. N.T., 10/25/18, at 5-7; see also
Order, 10/26/18. Notably, however, the juvenile court records were not
included with the certified record transmitted to this Court. On October 28,
2019, we directed the Clerk of Courts of Lancaster County to certify the
juvenile court record and transmit it to the Prothonotary of this Court as a
supplemental certified record pursuant to Pa.R.A.P. 1926. Per Curiam Order,
10/28/19.

5 S.Y.F.’s legal interest and her best interests were represented during these
proceedings by one of two guardians ad litem: Jeffrey Gonick, Esquire,
represented the child on October 25, 2018; and Gina M. Carnes, Esquire,
represented her on April 18, 2019 and May 16, 2019, respectively. Notably,
Attorney Carnes testified that she spoke with then-seven-year-old S.Y.F. and
did not discern a conflict between the child’s best interests and her legal



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       By decree dated May 16, 2019, and entered May 21, 2019, the orphans’

court involuntarily terminated the parental rights of Presumptive Father

pursuant to 23 Pa.C.S. § 2511(a)(3), and (b).6 Thereafter, on June 17, 2019,

Presumptive Father, through counsel, filed a timely notice of appeal, along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

       When counsel files an Anders brief, this Court may not review the

merits of the appeal without first addressing counsel’s request to withdraw.

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013). In In

re V.E. & J.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the

Anders principles to appeals involving the termination of parental rights. Id.

at 1275. Counsel appointed to represent an indigent parent on appeal from a

decree involuntarily terminating parental rights may therefore petition this

____________________________________________


interest, i.e., the child’s preference to remain with her half-sibling in the pre-
adoptive foster home. N.T., 5/16/19, at 21-22. Hence, this case complies
with our Supreme Court’s mandate announced in In re Adoption of L.B.M.,
161 A.3d 172, 174-75, 180 (Pa. 2017) and In re T.S., 192 A.3d 1080, 1089-
90, 1092-93 (Pa. 2018), that children in contested termination of parental
rights proceedings must be appointed counsel to represent their legal interest.
See also In re: Adoption of K.M.G., ___ A.3d ___, 2019 WL 4392506
(Pa.Super. September 13, 2019) (en banc) (holding, while this Court has
authority only to raise sua sponte the issue of whether trial court appointed
legal counsel, it lacks authority to delve into quality of counsel’s representation
sua sponte).

6 The decree does not identify the specific subsection under which the trial
court terminated Presumptive Father’s parental rights.         However, the
language utilized in the decree, as supported by the conclusions set forth in
the orphans’ court’s opinion, parallels the grounds outlined in 23 Pa.C.S. §
2511(a)(3), and (b). Trial Court Opinion, 7/31/19, at 38; Decree, 5/21/19.

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

re S.M.B., A.M.B., & G.G.B., 856 A.2d 1235, 1237 (Pa.Super. 2004). In

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court

explained, “the major thrust of Anders . . . is to assure that counsel

undertakes a careful assessment of any available claim that an indigent

appellant might have.”     Id. at 174, 358.    The Court stated that this “is

achieved by requiring counsel to conduct an exhaustive examination of the

record and by also placing the responsibility on the reviewing court to make

an independent determination of the merits of the appeal.” Id.

       To withdraw, 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.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc). Counsel must “attach to their petition to withdraw a copy of the letter

sent to their client advising him or her of their rights.” Millisock, supra at

752.

       We further review Counsel’s Anders brief for compliance with the

substantive requirements set forth in Santiago, supra.

              [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


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      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.

978 A.2d at 361. “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)); see also See Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa.Super. 2015) (noting independent review of record did

to discern additional, non-frivolous issues overlooked by counsel).

      Counsel has satisfied the first requirement of Anders by filing a petition

to withdraw, wherein she asserts that she has made a conscientious review of

the record and determined the appeal would be frivolous. Likewise, Counsel

has satisfied the second requirement by filing an Anders brief that complies

with the requirements set forth in Santiago, supra. With respect to the third

requirement, Counsel did not attach to her petition a copy of a letter advising

Appellant of his rights pursuant to Millisock, supra. On September 11, 2019,

this Court directed counsel to file a Millisock letter within fourteen days with

a copy to be provided to Appellant. Counsel complied on September 18, 2019,

filing a letter dated September 11, 2019, and also enclosing a previous letter

dated September 9, 2019. Certificates of service were attached to the brief,


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petition, and Millisock letter indicating that Appellant was served a copy of

all of the documents.     Counsel has also substantially complied with the

requirements set forth in Santiago, supra. Hence, we conclude that Counsel

has complied with the procedural Anders requirements and proceed to a

review of the merits.

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

      Whether the trial court erred in terminating parental rights of
      [P]resumptive [F]ather where there was not clear and convincing
      evidence to support the Orphan’s Court conclusion thereof[?]

Anders brief at 12.

      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.” 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. “[A] decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
      trial court’s decision, however, should not be reversed merely
      because the record would support a different result. Id. at 827.
      We have previously emphasized our deference to trial courts that
      often have first-hand observations of the parties spanning
      multiple hearings. See In re R.J.T., [9 A.3d 1179, 1190 (Pa.
      2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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 M.G.


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& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).                “[I]f

competent evidence supports the trial court’s findings, we will affirm even if

the record could also support the 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 governed by § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, and 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 [§] 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 [§] 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 [§] 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) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).

      In the case sub judice, the trial court terminated Presumptive Father’s

parental rights pursuant to 23 Pa.C.S. § 2511(a)(3), and (b).         In order to

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affirm a termination of parental rights, we need only agree with the trial court

as to any one subsection of § 2511(a), as well as § 2511(b).           See In re

B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we analyze

the court’s termination pursuant to § 2511(a)(3) 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:

                                        ...

              (3) The parent is the presumptive but not the natural
              father 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.

23 Pa.C.S. § 2511(a)(3), and (b).

      Further, as to § 2511(b), our Supreme Court has stated as follows:

      The emotional needs and welfare of the child have been properly
      interpreted to include “[i]ntangibles such as love, comfort,
      security, and stability.” In re K.M., 53 A.3d 781, 791 (Pa.Super.
      2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this 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

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     effect on the child of permanently severing the parental bond. In
     re K.M., 53 A.3d at 791. However, as discussed below, evaluation
     of a child’s bonds is not always an easy task.

In re T.S.M., supra 267. “In cases where there is no evidence of any bond

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

The extent of any bond analysis, therefore, necessarily depends on the

circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-63

(Pa.Super. 2008) (citation omitted).

     When evaluating a parental bond, “[T]he court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well. Additionally, § 2511(b) does not require a formal bonding evaluation.”

In re Z.P., supra at 1121 (internal citations omitted).

     Moreover,

     While a parent’s emotional bond with his or her child is a major
     aspect of the [§] 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. . . .

In re Adoption of C.D.R., supra at 1219 (quoting In re N.A.M., 33 A.3d

95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).

     As to the statutory grounds for termination pf parental rights under §

2511(a)(3), the orphans’ court stated, “. . .[T]he statute makes it eminently

clear as to [Presumptive Father]’s status as a presumptive father only, that


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status alone, it warrants termination.”            N.T., 5/16/19, at 22.   Further, in

finding grounds for termination pursuant to § 2511(a)(3) and that termination

was in S.Y.F.’s best interests, the orphans’ court reasoned:

       One ground was proven as to Presumptive Father, specifically,
       under 23 [Pa.C.S. § 2511(a)(3)].

       ....

             Presumptive Father is the presumptive but not the natural
       father of [S.Y.F.]. [Presumptive Father] has never cared for S.Y.F.
       Nothing more need be shown under 23 [Pa.C.S. § 2511(a)(3)] to
       warrant the termination of his parental rights.

       ....

            In as much as Presumptive Father has never cared for S.Y.F.
       and has, at best, a negligible relationship with her, there is no
       doubt that . . . S.Y.F.’s best interest will be served by maintaining
       no contact with Presumptive Father and terminating his
       presumptive parental rights.

Trial Court Opinion, 7/31/19, at 40-43.

       A review of the certified record supports the orphans’ court’s finding of

grounds for termination under § 2511(a)(3).               Presumptive Father is not

S.Y.F.’s biological father, but was married to Mother at the time of S.Y.F.’s

conception and birth. N.T., 5/16/19, at 13-14, 16; N.T., 4/18/19, at 6-7, 27,

39, 44-45, 57; see also Petitioner’s Exhibit 2, 5/16/19, at 5. Presumptive

Father testified that he was incarcerated at the time of S.Y.F.’s birth and that

Mother was having an affair.7 N.T., 4/18/19, at 57. Although separated, he

____________________________________________


7 In early 2018, CYS discovered that Mother was married to Presumptive
Father. Id. at 38-39, 44-45.


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remained married to Mother at the time of the hearing. Id. at 6-7. He has

no meaningful relationship with the child.

      The Comment to § 2511 notes that subsection (a)(3) was added “to

allow the court to prevent injustice where a legal father unreasonably

withholds consent to an adoption.” 23 Pa.C.S. § 2511(a)(3), 1970 Comment.

As we highlight infra, Presumptive Father’s parental relationship with S.Y.F. is

almost nonexistent, and his status as a presumptive father should not

preclude the child from attaining finality through the anticipated adoption by

her pre-adoptive foster parent. Presumptive Father maintained an ephemeral

association with the child at best, and has not contacted her in three years.

As this case presents the precise situation the legislature envisioned in

fashioning the statutory grounds to terminate parental rights simply upon a

showing of clear and convincing evidence that a man is “the presumptive but

not the natural father of the child,” the orphans’ court did not err in applying

the provision to terminate parental rights. See 23 Pa.C.S. § 2511(a)(3).

      As to subsection (b), the record supports the trial court’s finding that

S.Y.F.’s developmental, physical and emotional needs and welfare favor

termination of Presumptive Father’s parental rights pursuant to § 2511(b).

See T.S.M., 71 A.3d at 267. Critically, Presumptive Father did not come into

S.Y.F.’s life until she was two or three years old and, despite referring to

himself as her “stepdad,” described himself as “just somebody coming in and

out of her life.” N.T., 4/18/19, at 6-8. He has not seen S.Y.F. in at least two




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years and made no request for visitation. Id. at 23. Further, no cards, letters,

or gifts were forwarded on his behalf. Id. at 23-24, 38.

      Moreover, S.Y.F. has been placed in her current foster home with her

younger half-sister, with whom she is very bonded, since July 2018. N.T.,

5/16/19, at 14, 18; N.T., 4/18/19, at 16-17. The CYS caseworker, Amanda

Kauffman, testified that S.Y.F. is doing well and is comfortable in the home,

which is a pre-adoptive resource. Id. at 16; 17. Ms. Kauffman reported that

S.Y.F. calls the foster parent “mom.” N.T., 5/16/19, at 15. Further, S.Y.F.

has some trauma-related memory loss issues for which she has undergone

evaluation and been recommended to undergo further evaluation and therapy.

N.T., 5/16/19, at 14-15; N.T., 4/18/19, at 16, 42-43. Ms. Kauffman testified

that S.Y.F.’s foster parent is able to meet these needs. N.T., 5/16/19, at 15.

As such, Ms. Kauffman opined that it is in S.Y.F.’s best interest to remain in

the current foster home. Id. at 16.

      While Presumptive Father may profess to love S.Y.F., a parent’s own

feelings of love and affection for a child, alone, will not preclude termination

of parental rights. In re Z.P., 994 A.2d at 1121. At the time the termination

hearings concluded, S.Y.F. had been in placement for approximately two and

half years, and is entitled to permanency and stability. As we stated, a child’s

life “simply cannot be put on hold in the hope that [a parent] will summon the

ability to handle the responsibilities of parenting.” Id. at 1125. Rather, “a

parent’s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

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right to have proper parenting and fulfillment of his or her potential in a

permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa.Super. 2004) (citation omitted). As such, the orphans’ court did not abuse

its discretion in determining that terminating Presumptive Father’s parental

rights pursuant to § 2511(a) (3) and (b).

     Further, we have conducted a “full examination of the proceedings” and

have determined that “the appeal is in fact wholly frivolous” Flowers, supra

at 1248. Since our review did not disclose any other arguably meritorious

claims, we grant counsel’s petition to withdraw and affirm the orphans’ court

decree terminating Presumptive Father’s parental rights.

     Petition of Caprice Hicks Bunting, Esquire, to withdraw as counsel is

granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/27/2019




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