J-S42015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ADOPTION OF H.O. AND                  IN THE SUPERIOR COURT OF
L.D.,                                                  PENNSYLVANIA

       Appellees



APPEAL OF: J.O., NATURAL FATHER

                                                       No. 27 WDA 2016


                 Appeal from the Decree December 3, 2015
                In the Court of Common Pleas of Erie County
            Orphans’ Court at No(s): No. 65A, 65 in Adoption 2015


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 10, 2016

       J.O. (“Father”) appeals1 from the decree entered on December 3,

2015, in the Erie County Court of Common Pleas that terminated his

parental rights to his minor children L.D. and H.O. (“the Children”).2

Father’s counsel has filed a petition for leave to withdraw and a brief




*
    Former Justice specially assigned to the Superior Court.
1
  Father’s duplicative pro se appeal at 36 WDA 2016 was dismissed by this
Court sua sponte in an order filed on February 19, 2016.
2
    Mother’s parental rights were also terminated. However, Mother did not
file an appeal, and she is not a party to the instant appeal.
J-S42015-16


pursuant to Anders v. California, 386 U.S. 738, 744 (1967).        We grant

counsel’s petition to withdraw and affirm.3

      The relevant facts of this case were set forth by the orphans’ court as

follows:

            H.O. was born [in March of] 2013 drug[-]exposed to
      opiates. The [Office of Children and Youth (“OCY” or “the
      agency”] became involved with the family shortly after his birth,
      though H.O. was not taken into protective custody at that time.
      Involuntary Termination of Parental Rights Hearing Transcript,
      Day 1, 12/2/15, p. 45-46. H.O.’s sister, L.D., was born [in
      November of] 2014. She also tested positive for opiates. Due to
      the parents’ drug history, history with the agency, unstable
      housing, and concerns about untreated mental health conditions,
      both children were adjudicated dependent and placed in foster
      care on December 2, 2014.          Permanency Review Hearing
      Summary, 12/21/15, p. 1. See also Involuntary Termination of
      Parental Rights Hearing Transcript, 12/2/15, p. 45, 49, 57.

            At the time of the adjudication, [Father] was incarcerated
      in the Erie County Prison. One month later, after a probation
      revocation, [Father] was sentenced to serve time in a state
      correctional institution. Permanency Review Hearing Summary,
      6/22/15, p. 6.

             A permanency review hearing was held on April 20, 2015.
      [Father] had been court ordered [to] submit to paternity testing,
      participate in an assessment to determine if he was eligible for
      the Erie County Family Dependency Treatment Court, participate
      in an additional drug, alcohol, and mental health assessment,
      secure safe and stable housing, and obtain/maintain gainful
      employment. At the time of the review hearing, [Father] had
      not complied in any way with his individualized treatment plan.
      He failed to submit to paternity testing, did not complete the
      initial evaluation for Dependency Treatment Court, nor did he
      participate in an additional drug, alcohol, or mental health


3
   On May 4, 2016, we remanded this matter to the orphans’ court for the
drafting of a Pa.R.A.P. 1925(a) opinion.       The orphans’ court promptly
complied, and this matter is now ripe for disposition.


                                     -2-
J-S42015-16


     assessment.     Petition for Involuntary Termination of Parental
     Rights, p. 9.

            Of great concern to this court was [Father’s] inability to
     refrain from the use of drugs or alcohol.           [Father] was
     administered eight urine screens before he was detained on a
     probation violation in January, 2015. Of those screens, two
     were positive for opiates and one considered a no-show positive.
     Petition for Involuntary Termination of Parental Right, p. 9.

            Due to [Father’s] lack of compliance with his court-ordered
     treatment plan, the permanency goal was changed to adoption.
     All further services to [Father] were ordered terminated.

           A termination hearing took place on December 2 and 3,
     2015. At the time of the hearing, [Father], incarcerated in state
     prison, participated via telephone. Involuntary Termination of
     Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 17-20.

           The testimony presented at the termination hearing
     revealed the following:

            [Father’s] history with drug use began when he tested
     positive for heroin and morphine in September, 2013. [Father]
     was ordered into detox by his probation officer. Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1, p. 46-
     47. At this time and through November, 2013, H.O. was placed
     with a maternal aunt. Id.

           In December, 2013, H.O. was returned to his mother at a
     community house, but then placed with his aunt when mother
     moved to a different treatment facility.       During this time,
     [Father] made sporadic contact with H.O. [Father] explained his
     lack of contact was because of a “difficult” relationship with the
     aunt because he had not submitted to paternity testing.
     Involuntary Termination of Parental Rights Hearing Transcript,
     Day 1, 12/2/15, p. 48-50.

           However, the record reflects that as early as 2013, OCY
     attempted to assist [Father] in obtaining a paternity test.
     [Father] did not dispute the agency’s efforts, but instead
     attempted to excuse his failure to obtain the test by alleging he
     did not have the money to do it, despite working sixty hours per
     week.    Involuntary Termination of Parental Rights Hearing


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     Transcript, Day 1, 12/2/15, p. 84-85. [Father] blamed his lack
     of funds on having to spend money on gas each day to drive to
     Erie to fulfill the conditions of his probation. Id.

          [Father] again violated his probation contract by leaving
     Erie County on an unapproved visit to see the mother in
     Ashland, Pennsylvania and was once again detained, revoked,
     and incarcerated in early 2014. From March through June,
     2014, [Father] had no contact with H.O.            Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p. 52-53.

           Probation next detained [Father] in November, 2014 for
     opioid use. Involuntary Termination of Parental Rights Hearing
     Transcript, Day 1, 12/2/15, p. 31.

            Following [Father’s] release from prison in December,
     2014, [Father] was scheduled to begin treatment at Stairways
     Behavioral Health, but was once again detained because of
     positive urine results for opiates. [Father] was revoked on
     February 6, 2015 and sentenced to a period of 18-36 months
     incarceration in state prison.      Involuntary Termination of
     Parental Rights Hearing Transcript, 12/2/15, Day 1, p. 33.

           In addition to [Father’s] failure to refrain from drug use
     and failure to comply with conditions of his probation, his
     testimony at the termination hearing also showed he failed to
     complete other portions of his treatment plan, including
     submission for evaluation for the Erie County Family Dependency
     Treatment Court. Involuntary Termination of Parental Rights
     Hearing Transcript, 12/2/15, Day 1, p. 42. [Father] disputes his
     non-compliance with this portion of the treatment plan, stating
     the “whole situation” was not explained to him. Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p. 78-80.

            However, testimony from the caseworker and a
     representative from Dependency Treatment Court showed the
     contrary. Involuntary Termination of Parental Rights Hearing
     Transcript, Day 1, 12/2/15, p. 42. The Dependency Court liaison
     testified she explained to [Father] how he could get assessed for
     court, gave him the date of orientation, and followed up by
     providing this information in a letter. Id. at 42-43, 46, 60-61.



                                   -4-
J-S42015-16


           Despite the [C]hildren’s adjudication in December, 2014,
     the agency was involved with the family as early as May, 2013.
     Workers attempted to provide housing assistance and supplied
     [Father] with information regarding programs designed to help
     him support himself. The caseworker also attempted to assist in
     [Father’s] compliance with his probation, but was unsuccessful.
     Involuntary Termination of Parental Rights Hearing Transcript,
     Day 1, 12/2/15, p. 46-47. Erie County Adult Probation made
     similar attempts to secure [Father’s] compliance with his
     treatment plan and conditions of probation. These efforts were
     also unsuccessful. Involuntary Termination of Parental Rights
     Hearing Transcript, Day 1, 12/2/15, p. 46-47.

           All additional efforts to help [Father] complete a mental
     health assessment, and obtain employment and safe and stable
     housing were also unsuccessful.          Other than eventually
     establishing paternity of H.O. and L.D., [Father] failed to comply
     with the remaining portions of his treatment plan. Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p. 59-61.

            [Father’s] testimony at the termination hearing lacked
     credibility and showed a refusal to take responsibility for his
     actions. [Father] claimed he participated in some groups, but
     never provided any documentation to verify this. He made an
     incredible assertion to his caseworker that at least one of his
     positive urinalyses for heroin was caused by ingesting breast
     milk from the mother stored in the refrigerator. Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p. 66-67. [Father] stated H.O. lived with him other
     than the three months he was incarcerated. However, when
     questioned on cross-examination about the timeframe, he stated
     “that was a long time ago” and he was not sure of all the dates.
     Involuntary Termination of Parental Rights Hearing Transcript,
     Day 1, 12/2/15, p. 86-88.

            [Father] relayed to this court his projected release date
     from prison was sometime in the week of February 26th, 2016,
     after he completed a certain program, but this information was
     later contradicted by a submission from his counsel. Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p. 80.




                                   -5-
J-S42015-16


          [Father] acknowledged he had not seen L.D. since she was
     one month old and likely had no bond with her. [Father] also
     agreed he had not seen H.O. for over a year, which amounted to
     more than one-third of H.O.’s life. Involuntary Termination of
     Parental Rights Hearing Transcript, Day 2, 12/3/15, p. 17-18.

            As of the date of the termination hearing, the [C]hildren
     were thriving in the care of an approved foster family. This
     family is also an adoptive resource. The family meets all of the
     [C]hildren’s extensive special needs brought about because of
     their in utero drug exposure. The [C]hildren are bonded to their
     foster family, with their needs met along with the stability and
     permanency they require in order to thrive.          Involuntary
     Termination of Parental Rights Hearing Transcript, Day 1,
     12/2/15, p, 67-68.

           Based on the foregoing, this court concluded [Father’s]
     testimony was not credible and that the agency met their burden
     of proof by clear and convincing evidence under 23 Pa.C.S.A.
     §2511 (a)(1), (2), (5), and (b). Involuntary Termination of
     Parental Rights Hearing Transcript, Day 2, 12/3/15, p. 23.

Orphans’ Court Opinion, 5/12/16, at 2-7.

     On December 3, 2015, the orphans’ court terminated Father’s parental

rights to L.D. and H.O., and Father filed a timely appeal. In Father’s notice

of appeal, Father’s counsel included a statement of intent to withdraw

pursuant   to   Anders   v.   California,   386   U.S.   738   (1967)4   and

Pa.R.A.P.1925(c)(4). See In the Interest of J.T., 983 A.2d 771, 772 (Pa.

Super. 2009) (applying Anders procedures and Pa.R.A.P. 1925(c)(4) to

appeals involving the termination of parental rights).   On March 4, 2016,


4
    Anders sets forth the requirements for counsel to withdraw from
representation on direct appeal. See also Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009) (discussing Anders and explaining Pennsylvania’s
requirements for an Anders brief when counsel petitions to withdraw on
direct appeal).


                                    -6-
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counsel filed an Anders brief, and on March 7, 2016, counsel filed a petition

to withdraw.

      Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw representation, he or she must do the following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record . . ., counsel
      has determined the appeal would be frivolous;

      (2) file a brief referring to anything that might arguably support
      the appeal, but which does not resemble a “no-merit” letter or
      amicus curiae brief; and

      (3) furnish a copy of the brief to defendant and advise him of his
      right to retain new counsel, proceed pro se or raise any
      additional points he deems worthy of the court’s attention.

In re: S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (emphasis in

original) (citation omitted). 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.

      “When considering an Anders brief, this Court may not review the

merits of the underlying issues until we address counsel’s request to

withdraw.”     In re: S.M.B., 856 A.2d at 1237.      In Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the

second requirement of Anders, i.e., the contents of an Anders brief, and

instructed that the brief must:

      (1)    provide a summary of the procedural history and facts,
             with citations to the record;




                                    -7-
J-S42015-16


      (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. “After an appellate court receives an Anders

brief and is satisfied that counsel has complied with the aforementioned

requirements, the Court then must undertake an independent examination

of the record to determine whether the appeal is wholly frivolous.” In re:

S.M.B., 856 A.2d at 1237 (citation omitted).        With respect to the third

requirement of Anders, that counsel inform the defendant of his rights in

light of counsel’s withdrawal, this Court has held that counsel must “attach

to [his] petition to withdraw a copy of the letter sent to [his] client advising

him . . . of [his] rights.” Commonwealth v. Millisock, 873 A.2d 748, 752

(Pa. Super. 2005).

      Here, counsel indicated that he reviewed the record and determined

that an appeal would be frivolous.         Petition to Withdraw, 3/7/16, at

unnumbered 1.        Additionally, we conclude that counsel’s Anders brief

comports with the requirements set forth by the Supreme Court of

Pennsylvania in Santiago.     Attached to his petition to withdraw, counsel

included a copy of the letter he sent to Father.        In this letter, counsel

informed Father of his intention to seek permission to withdraw because



                                     -8-
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there are no meritorious issues.   Letter, 3/4/16. Counsel then states: “At

this point, you may make any additional arguments you have to the Superior

Court directly.   Make sure to file these arguments in writing and list the

docket number as 27 WDA 2016.”          Id. (emphasis in original).   We are

cognizant that while counsel was clear as to how Father may present

additional argument to this Court, counsel did not specifically delineate that

Father may raise these issues on his own or retain private counsel. In

re: S.M.B., 856 A.2d at 1237 (emphasis added). Nevertheless, we conclude

that Father has minimally complied with the aforementioned requirements,

and having received no correspondence from Father despite counsel

instructing him on how to do so, we proceed to the merits of the issues

raised and our own independent review of the entire record.

      In the Anders brief, counsel presents the following issues:

      1. DID THE LOWER COURT ERR IN DETERMINING THAT
      TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
      Pa.C.S.A. 2511(a)(2), AS [Father] HAD REMEDIED THE
      CONDITIONS THAT LED TO PLACEMENT AND HAD NOT
      EVIDENCED A SETTLED PURPOSE TO RELINQUISH RIGHTS?

      2. DID THE LOWER COURT ERR IN DETERMINING THAT
      TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
      Pa.C.S.A. 2511(a)(1), AS [Father] DID NOT EVIDENCE A
      SETTLED PURPOSE TO RELINQUISH RIGHTS?

      3. DID THE LOWER COURT ERR IN DETERMINING THAT
      TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
      Pa.C.S.A. 2511(b), IN THAT TERMINATION WAS NOT IN THE
      CHILD[ren’s] BEST INTEREST?

      4. WAS COURT-APPOINTED COUNSEL INEFFECTIVE AT TRIAL?



                                    -9-
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Anders Brief at 5.5

       In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court to accept the
       findings of fact and credibility determinations of the trial court if
       they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
       A.3d 1179, 1190 (Pa. 2010).           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.; R.I.S., 36
       A.3d [567, 572 (Pa. 2011) (plurality opinion)]. As has been
       often stated, an abuse of discretion does not result merely
       because the reviewing court might have reached a different
       conclusion. Id.; see also Samuel-Bassett v. Kia Motors
       America, Inc., [613] Pa. [371], 34 A.3d 1, 51 (2011);
       Christianson v. Ely, 575 Pa. 647, 654, 838 A.2d 630, 634
       (2003). Instead, a decision may be reversed for an abuse of
       discretion     only    upon       demonstration       of     manifest
       unreasonableness, partiality, prejudice, bias, or ill-will. Id.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

       The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid.     In re: R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we have explained:

       The standard of clear and convincing evidence is defined as
       testimony that 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.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).



5
    For purposes of our discussion, we have renumbered the issues presented.


                                      - 10 -
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      The termination of parental rights involves a bifurcated analysis,

governed by Section 2511 of the Adoption Act, 23 Pa.C.S. § 2101 et seq.

      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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      In the matter sub judice, the orphans’ court terminated Father’s

parental rights under sections 2511(a)(1), (2), (5), and (b), which provide

as follows:

      § 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.

              (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.

                                     * * *



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            (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.

                                       * * *

             (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)(1), (2), (5), and (b).

      This Court may affirm the orphans’ court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).   In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc).

Because    of   Father’s   continued   course   of   conduct   and   inability   or

unwillingness to remedy the situation, we focus our analysis on 23 Pa.C.S.

§ 2511(a)(2).    See In re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011)

(observing that if we agree with the trial court’s decision as to termination of




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parental rights under any subsection of 23 Pa.C.S. § 2511(a), we need not

address the remaining subsections).

      The orphans’ court addressed Father’s actions and inaction leading up

to the order terminating his parental rights as follows:

            [Father’s] refusal to address and accept responsibility for
      his drug addiction and refusal to comply with a court-ordered
      treatment plan show a settled purpose of relinquishing his
      parental claim to the [C]hildren and that the conditions which led
      to the removal or placement of the [C]hildren cannot or will not
      be remedied.

             Though [Father] stated he “believed” he was in compliance
      with the court order requiring him to follow through with
      evaluations for Drug Treatment Court, Stairways [Behavioral
      Health], and a separate mental health evaluation, he also stated
      his lack of compliance was not his fault because the “whole
      situation” was not explained to him.

            Caseworker and probation officer testimony show this
      could not possibly have been the case. Both agencies indicated
      they went out of their way to make themselves available for
      consultation with [Father] and gave him as much guidance as
      they could to secure his compliance.

            Agency involvement began well before the       [C]hildren were
      adjudicated dependent, in an effort to give          [Father] every
      opportunity to succeed as a parent. Despite           the efforts of
      probation and the agency, [Father] never               obtained the
      assessments, and failed to complete even the          bare minimum
      requirements of his treatment plan.

            [Father] also minimized and attempted to explain away his
      multiple incarcerations for drug use. He cited that at least one
      time he had a prescription for hydrocodone. Later, [Father]
      made the preposterous assertion that he tested positive for
      opiates because he accidentally drank the mother’s breast milk
      which must have contained the drugs. Involuntary Termination
      of Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 66-67.
      The record reflects that even if [Father] did have a valid
      prescription for hydrocodone, he was revoked from probation


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      and sentenced to [a state correctional institution] following at
      least his third relapse on opiates. Involuntary Termination of
      Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 32-33.

            During the age[n]cy’s formal and informal involvement
      with this family, [Father] tested positive for heroin and morphine
      in September, 2013, late October and early November, 2014,
      and again in January, 2015. Involuntary Termination of Parental
      Rights Hearing Transcript, Day 1, 12/2/15, p. 31-33, 46-47. The
      last of these positive screens resulted in [Father’s] probation
      revocation and sentence to a state correctional institution.

            [Father’s] contact with H.O. was “sporadic” even when he
      wasn’t incarcerated, and due to his incarceration, [Father] has
      not seen his daughter, L.D., since she was one month old. By
      the time of the termination hearing, he had not seen his son for
      over one year and presented no testimony to indicate to this
      court he even tried to maintain contact with either child.
      Involuntary Termination of Parental Rights Hearing Transcript,
      Day 2, 12/3/15, p. 16-19.

            In determining whether termination of parental rights is
      warranted, the trial court must “examine the totality of
      circumstances, and consider all explanations offered by the
      parents.” However, the court must always “accord primary
      consideration to the needs and welfare of the children.” In the
      Interest of K.B., 763 A.2d 436, 439 (Pa. Super. 2000). [Father]
      made excuse after feeble excuse in a weak attempt to explain
      away circumstances leading to his incarceration and has refused
      to take responsibility for his actions. …

Orphans’ Court Opinion, 5/12/16, at 9-11.

      After review, we agree with the orphans’ court and conclude that at

nearly every turn, Father has failed to exhibit any indication of his desire to

act as a parent thereby causing the Children to be without the essential

parental care or control necessary for their well-being. While incarceration

alone is not a “litmus test” for terminating parental rights, and while some

incarcerated parents are willing and able to maintain a parental relationship


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with their children,6 Father has failed in this regard, both while incarcerated

and while at liberty. The Children’s lives “simply cannot be put on hold in

the hope that [Father] will summon the ability to handle the responsibilities

of parenting.”   In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010). It is

evident from a review of the record as a whole that the agency has met its

burden of proof under section (a)(2). Accordingly, we conclude that there

was no abuse of discretion in the trial court involuntarily terminating Father’s

parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(2).

      In his second issue, Father claims that the orphans’ court erred in

terminating his parental rights under 23 Pa.C.S. § 2511(a)(1).        However,

because we concluded that Father’s parental rights were properly terminated

under 23 Pa.C.S. § 2511(a)(2), we need not address this claim. In re M.T.,

101 A.3d at 1179; In re N.A.M., 33 A.3d at 100.

      In the third issue presented in the Anders brief, it is alleged that the

orphans’ court erred in concluding that it was in the best interests of the

Children to terminate Father’s parental rights.         Anders Brief at 14.

We disagree.

      Our Supreme Court has stated:

      [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. § 2511(b). The emotional needs and welfare of the child
      have been properly interpreted to include “[i]ntangibles such as

6
   See In re Adoption of S.P., 47 A.3d at 830 (discussing incarceration as
a factor in terminating parental rights).


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      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 effect on the child of
      permanently severing the parental bond. In re K.M., 53 A.3d at
      791.

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

      The orphans’ court set forth its section 2511(b) needs-and-welfare

scrutiny as follows:

            During his testimony, [Father] asserted he had a bond
      with his children, and it was therefore contrary to the
      [C]hildren’s best interests to terminate his parental rights. The
      record flatly contradicts this assertion.

             [Father] last saw L.D. when she was one month old.
      [Father] acknowledged he probably had no bond with her.
      Involuntary Termination of Parental Rights Hearing Transcript,
      Day 2, 12/3/15, p. 17. Though [Father] claimed he provided
      care to H.O. for approximately three months of his life, at the
      time of the termination hearing, the [Father] had not seen H.O.
      for over a year, or one third of his life. Involuntary Termination
      of Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 86-89.
      No evidence was presented to show [Father] attempted to
      maintain contact with the [C]hildren at any point prior to the
      filing of the petition to involuntarily terminate his rights. Though
      [Father] says he loves his children, his actions indicate
      otherwise. “A parent’s own feelings of love and affection for a
      child do not prevent termination of parental rights.” See In re
      L.M., 923 A.2d 505, 512 (Pa. Super. 2007). Despite [Father’s]
      feelings, it obvious to this court no bond existed between him
      and his children.

            Given [Father’s] numerous relapses, this court remained
      unconvinced [Father] would be able to meet the needs of the
      [C]hildren. These needs are being met by the pre-adoptive
      family.    The [C]hildren are now in a stable and secure
      environment where they are loved, and bonded with the family.



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     Involuntary Termination of Parental Rights Hearing Transcript,
     Day 1, 12/2/15, p. 96-98.

Orphans’ Court Opinion, 5/12/16, at 11-12.

     We agree with the orphans’ court’s analysis; aside from Father’s self-

serving testimony, there is no indication that the Children are bonded with

Father or that he contributes to their needs or welfare. The orphans’ court’s

factual findings are supported by the record, and its legal conclusions are

not the result of an error of law or an abuse of discretion. Accordingly, we

agree with the orphans’ court’s analysis with regard to 23 Pa.C.S. § 2511(b).

     In the fourth issue presented in the Anders brief, it is alleged that

counsel   was   ineffective   in   representing      Father   in     the   termination

proceedings. Anders Brief at 16. While counsel provides no argument on

this point, because we are constrained to conduct an independent review of

the record, we shall address the issue on that basis.          In re: S.M.B., 856

A.2d at 1237

     “Pennsylvania    statutes     do    not     require   counsel    in   termination

proceedings, although Pennsylvania case law does, In re Adoption of R.I.,

455 Pa. 29, 312 A.2d 601 (1973), and flowing from this it is presumed that

counsel would and should be effective.”           In re Adoption of T.M.F., 573

A.2d 1035, 1040 (Pa. Super. 1990).

           In the context of a termination proceeding, the best
     approach ... is the fundamental fairness doctrine whereby, in the
     exercise of its broad scope of review, an allegation of
     ineffectiveness of counsel on appeal would result in a review by
     this Court of the total record with a determination to be made


                                        - 17 -
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      whether on the whole, the parties received a fair hearing, the
      proof supports the decree by the standard of clear and
      convincing evidence, and upon review of counsel's alleged
      ineffectiveness, any failure of his stewardship was the cause of a
      decree of termination.      Mere assertion of ineffectiveness of
      counsel is not the basis of a remand or rehearing, and despite a
      finding of ineffectiveness on one or more aspects of the case, if
      the result would unlikely have been different despite a more
      perfect stewardship, the decree must stand.

T.M.F., 573 A.2d at 1044. As applied, the fundamental fairness standard in

civil termination cases is more limited than the right to effective assistance

of counsel in a criminal case.        In re J.T., 983 A.2d at 775.   The party

alleging ineffective assistance of counsel in a termination of parental rights

case must show by clear and convincing evidence that it is more likely than

not that the result of the proceeding would have been different, absent the

alleged ineffectiveness. In re K.D., 871 A.2d 823, 829 (Pa. Super. 2005).

      After review we conclude, based on the overwhelming evidence in

favor of terminating his parental rights, Father cannot establish by clear and

convincing evidence that absent counsel’s alleged ineffectiveness, the result

of the hearing would have been different.         Father’s claim of ineffective

assistance of counsel is frivolous.

      Finally, we are mindful that once satisfied that counsel has complied

with the Anders requirements, this Court undertakes an independent

examination of the record to determine whether the appeal is wholly

frivolous.   In re: S.M.B., 856 A.2d at 1237.      However, our review of the

record does not reveal any non-frivolous issues overlooked by counsel.



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     After a careful and independent review of the record, and identifying

no other non-frivolous issues, we conclude that the orphans’ court’s findings

are supported by the record, and it reasonably concluded that the elements

of section 2511(a)(2) and (b) were met. We discern no abuse of discretion

or error of law in this decision. Accordingly, we affirm the orphans’ court’s

decree terminating Father’s parental rights, and we grant counsel’s petition

to withdraw.

     Decree affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2016




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