J-S53001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: A.J.W., A                  :   IN THE SUPERIOR COURT OF
MINOR                                          :        PENNSYLVANIA
                                               :
                                               :
APPEAL OF: R.C.W., FATHER                      :
                                               :
                                               :
                                               :
                                               :   No. 2185 MDA 2015


            Appeal from the Decree entered November 30, 2015 in
             the Court of Common Pleas of Berks County Orphans’
                            Court at No(s): 84332


BEFORE: BOWES, SHOGAN, FITZGERALD*, JJ.

MEMORANDUM BY BOWES, J.:                                FILED AUGUST 16, 2016

       R.C.W. (“Father”) appeals from the November 30, 2015 decree

involuntarily terminating his parental rights to his daughter, A.J.W., born in

August of 2013.1 We affirm and grant counsel’s petition to withdraw.

       Berks County Children and Youth Services (“CYS”) first contacted this

family during September of 2013 as a result of Mother’s history of drug

abuse.    A.J.W. was one month old when the agency opened its file.           On

December 13, 2013, Mother gave guardianship of A.J.W. to a friend due to

Mother’s impending arrest.         On March 25, 2014, the juvenile court placed
____________________________________________


* Former Justice specially assigned to the Superior Court.
1
  K.T. (“Mother”) relinquished her parental rights voluntarily on December
14, 2015.
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A.J.W. into CYS’s emergency custody after her guardian was unable to care

for her and both Mother and Father were serving prison sentences. On April

2, 2014, the juvenile court adjudicated A.J.W. dependent.

      The court ordered Father, who has been incarcerated throughout the

juvenile court and orphans’ court proceedings, to participate in services

including, inter alia, parenting education, a mental health evaluation, and a

drug and alcohol evaluation. He was also directed to follow the evaluators’

recommendations. Father’s imprisonment compromised his ability to comply

with the juvenile court’s directives. During the three successive permanency

review   hearings   following   the   adjudication   of   dependency,   Father’s

compliance with the court-ordered services was characterized as moderate,

minimal, and minimal, respectively.       Furthermore, although Father was

initially granted fifteen minutes of weekly visitation with his daughter while

Father was incarcerated at the Berks County prison, the juvenile court

suspended Father’s visitation three months later due to A.J.W.’s “young age,

[F]ather’s incarceration [at] SCI . . . Somerset, and Father’s anticipated

continued incarceration.” CYS Exhibit 13 at 2.

      On July 23, 2015, CYS filed a petition for the involuntary termination

of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),

and (b). The orphans’ court held a hearing on November 2, 2015. CYS did

not present any witnesses.       Rather, the agency introduced twenty-one

exhibits into evidence without objection.       N.T., 11/2/15, at 5.     Father



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testified from prison by videoconference.              During his testimony, Father

acknowledged that he has been incarcerated for A.J.W.’s entire life. Id. at

10. However, he stressed that, while imprisoned, he participated in

beneficial prison programs like parenting and substance abuse classes, and

sent his daughter letters, video books, and pictures.                        Id. at 6-8.

Significantly, however, Father initiated the prison programs after CYS filed

its petition to terminate his parental rights. Id. at 30-32.

       By decree dated November 30, 2015, the orphans’ court terminated

Father’s parental rights. Father timely filed a notice of appeal and a concise

statement of errors complained of on appeal.                 On January 28, 2016, the

orphans’ court filed its Rule 1925(a) opinion.

       Father’s counsel filed a petition with this Court requesting to withdraw

from   representation      and    submitted      a   brief   pursuant   to    Anders   v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).2         We address counsel’s Anders brief at the outset.

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

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2
 On April 6, 2016, this Court remanded the appeal to the orphans’ court for
a determination of whether counsel had abandoned Father on appeal by
neglecting to file a brief during the applicable time-period. Counsel filed the
petition to withdraw and Anders brief two days later, and the orphans’ court
determined that counsel had not abandoned Father.



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withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303

(Pa.Super. 1997)).     In In re X.J., 105 A.3d 1, 3 (Pa.Super. 2014), this

Court “extended the Anders principles to appeals involving the termination

of parental rights.”

      To withdraw pursuant to 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.

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

Court has held that counsel must “attach to their 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).

      Additionally, an   Anders    brief   must   comply   with the   following

substantive 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

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      (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.

      Instantly, counsel filed a petition to withdraw certifying that he has

reviewed the case and determined that Father’s appeal is frivolous. Counsel

also filed a brief that includes a summary of the history and facts of the

case, the issue raised by Father, the facts that arguably support the appeal,

and counsel’s assessment of why the appeal is frivolous with citations to

relevant legal authority. Counsel attached to his petition to withdraw a copy

of his letter to Father advising him that he may obtain new counsel or raise

additional   issues   pro   se.   Accordingly,   counsel   complied   with   the

requirements of Anders and Santiago.

      We next proceed to review the issue outlined in the Anders brief. In

addition, 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 raises one issue for our review.

      1. Did the [orphans’] [c]ourt err by terminating [Father’s]
      parental rights because the evidence presented . . . was
      insufficient to support the [orphans’] court’s decision?




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Anders brief at 4. CYS counters that it established by clear and convincing

evidence the statutory grounds to terminate Father’s parental rights and that

severing Father’s rights would serve A.J.W’s best interest.3

       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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

       Termination of parental rights is governed by § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, which 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
____________________________________________


3
  Similarly, the guardian ad litem filed a brief in support of the decree
involuntarily terminating Father’s parental rights.



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     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 need only agree with the orphans’ court as to any one subsection

of § 2511(a), as well as § 2511(b), in order to affirm. See In re B.L.W.,

843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Presently, we find that the

certified record sustains the orphans’ court’s decision to terminate under §

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


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23 Pa.C.S. § 2511(a)(2) and (b).

      To terminate parental rights pursuant to § 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa.Super. 2003).

      This Court has explained that, “[t]he 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). Further, parents are required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities. Id. at 340. A parent’s vow to cooperate, after a

long period of uncooperativeness regarding the necessity or availability of

services, may properly be rejected as untimely or disingenuous. Id.

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court addressed the relevance of incarceration in termination decisions

under § 2511(a)(2). The S.P. Court held that “incarceration is a factor, and

indeed can be a determinative factor, in a court’s conclusion that grounds for


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termination exist under § 2511(a)(2) where the repeated and continued

incapacity of a parent due to incarceration has caused the child to be without

essential parental care, control or subsistence and that the causes of the

incapacity cannot or will not be remedied.” Id. at 828.

      With respect to § 2511(b), this Court has explained the requisite

analysis as follows:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa.Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial court must also discern
      the nature and status of the parent-child bond, with utmost
      attention to the effect on the child of permanently severing that
      bond. Id. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

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

      In this matter, the orphans’ court found as follows with respect to §

2511(a)(2).

      At the time of hearing on the petition to terminate his parental
      rights, Father continued to be incarcerated. A.J.W. was two
      years old, but Father had not seen A.J.W. in almost a year.
      Throughout A.J.W.’s placement, Father did correspond with
      caseworkers and the resource parents. Father testified that he
      participated in drug and alcohol and other programs while in
      prison. He testified that in the beginning of his incarceration he
      maintained contact with A.J.W. by sending books, via video, and
      in-jail visits. He said that he continued to correspond through
      letters[,] and that he sends pictures and cards through the foster

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       family who does respond to him. Father did not explain how an
       infant or toddler could appreciate and recognize him as a father
       when he had such minimal contact, yet he asked to delay action
       on the petition for termination until his release from prison so
       that he could have the chance to prove he can raise his child.

       Father has been charged multiple times over the last 18 years (a
       fairly regular occurrence during his adult life) with drug-related
       crimes, assault, harassment and the like. He has received jail
       sentences ranging in length from 18 to 48 months to 5 to 10
       years. His current incarceration is due to a 436 day to 5 year
       sentence. He anticipates being released in September 2016,
       almost a full year from the date of hearing in this matter. His
       maximum date is roughly the end of July 2018. Thereafter[,] he
       is to serve two years of probation.

Trial Court Opinion, 1/28/16, at 5-6 (footnote omitted).

       The certified record supports the court’s findings.   CYS presented a

summary from the Berks County Court of Common Pleas demonstrating that

Father was arrested just weeks before his daughter’s birth and has remained

incarcerated since that date. Father acknowledged that he engaged in the

criminal activity resulting in his incarceration even though he knew Mother

was expecting his child. N.T., 11/2/15, at 9-10. On October 3, 2014, Father

pled guilty to crimes involving the manufacture, delivery, or possession of

illegal drugs for which he received 436 days to five years of imprisonment.

CYS Exhibit 20.        In addition, Father received a two-year sentence of

probation.4    Id.    Father testified that he anticipated being released from


____________________________________________


4
 The court summary reveals that Father entered guilty pleas in 1999, 2001,
2006, and 2007 in Lackawanna, Lehigh, and Monroe Counties for crimes
(Footnote Continued Next Page)


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prison on September 19, 2016, approximately one-year from the November

2, 2015 termination hearing. N.T., 11/2/15, at 6. However, even assuming

that Father is released at the earliest date possible, he still will have not had

any physical contact with his now-toddler-aged daughter since the juvenile

court suspended the fifteen-minute jailhouse visitations during July 2014.

      In addition, the orphans’ court reasoned:

      [Father] has not provided or arranged for the provision of
      “essential parental care, control or subsistence necessary for
      [A.J.W.’s] 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” because he still has almost
      another full year of incarceration left on his sentence if his
      anticipation is correct. Father’s conduct has contributed to the
      child’s removal from parental care and placement with a foster
      family, and Father simply cannot remedy his situation within a
      reasonable period of time. A.J.W. will be three years old before
      Father gets out of prison. A.J.W. deserves better than to be
      ripped from the only family she knows to be united with the man
      she does not know at some distant time in the future.

Trial Court Opinion, 1/28/16, at 6.

      We discern neither an abuse of discretion nor legal error in the

orphans’ court’s       determination      that   Father’s repeated and   continued

incapacity due to incarceration has caused A.J.W. to be without essential

parental care, control, or subsistence necessary for her physical and mental

well-being, and that the causes of the incapacity cannot or will not to be

remedied.    See In re Adoption of S.P., supra.            Accordingly, we do not
                       _______________________
(Footnote Continued)

involving illegal drugs, disorderly conduct, possession of firearms, and/or
careless driving. CYS Exhibit 20.



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disturb the court’s conclusion that CYS satisfied its evidentiary burden of

proving the statutory ground to terminate Father’s parental rights pursuant

to § 2511(a)(2).

      Next, we review the trial court’s needs-and-welfare analysis pursuant

to § 2511(b). This Court has emphasized:

      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.

            [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., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting

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

citations omitted)). In addition, our Supreme Court stated that, “[c]ommon

sense dictates that courts considering termination must also consider

whether the children are in a pre-adoptive home and whether they have a

bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013).

Moreover, the High Court directed that, in weighing the bond considerations

pursuant to Section 2511(b), “courts must keep the ticking clock of

childhood ever in mind.” Id. at 269. The In re T.S.M. Court observed that,

“[c]hildren are young for a scant number of years, and we have an

obligation to see to their healthy development quickly. When courts fail . . .

the result, all too often, is catastrophically maladjusted children.” Id.


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       Instantly, the orphans’ court found that A.J.W. “knows no other

parental bond than that which she has with [her] foster parents. There is no

bond with Father. Termination of Father’s parental rights will cause no harm

to the child, but rather will give her the chance to fulfill [her] potential in a

permanent, healthy, safe environment with proper parenting.”         Trial Court

Opinion, 1/28/16, at 6. As the certified record does not reveal any evidence

of a bond between Father and A.J.W., the orphans’ court properly concluded

that no relationship existed between them. See In re Adoption of J.M.,

supra.

       Moreover, in contrast to the child’s non-existent attachment with

Father, CYS adduced evidence to demonstrate that A.J.W. is closely bonded

with her foster family, with whom she has resided since she was

approximately seven months old.       CYS Exhibit 21 at 12.      Indeed, foster

parents are the only parents that the nearly three-year-old-child has ever

known.    Accordingly, the orphans’ court did not err in concluding that

terminating Father’s parental rights will serve the developmental, physical,

and emotional needs and welfare of A.J.W.

       Finally, our independent review of the certified record revealed no

preserved non-frivolous issue that would arguably support this appeal.

Therefore, we grant counsel’s petition to withdraw and affirm the decree

terminating Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and

(b).


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     Petition of Gregory Ghen, Esquire, to withdraw from representation is

granted. Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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