J-S40029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF B.S.                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: F.S., JR.                       :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 494 WDA 2019

                  Appeal from the Order Entered April 1, 2019
       In the Court of Common Pleas of Fayette County Orphans' Court at
                            No(s): 71 ADOPT 2018


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED SEPTEMBER 13, 2019

        F.S., Jr. (“Father”) appeals from the decree entered on April 1, 2019,

which terminated his parental rights as to his one-year-old son, B.S. (“Child”).

Father’s counsel has filed an Anders1 brief and a petition to withdraw as

counsel. Upon review, we grant counsel’s petition to withdraw and affirm the

decree.

        The Child was born on February 6, 2018. N.T., 3/19/19, at 11. The Child

is the natural child of Father and J.J. (“Mother”). Id. The Fayette County

Children and Youth Services Agency (“CYS”) became involved when the Child

was two months old due to Mother’s drug dependency issues and concerns for

her housing. Id. at 11-12. The Child was placed in a foster home on April 5,
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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2018, and was adjudicated dependent on May 3, 2018. Id. at 13. The Child

has remained in the same foster home continuously from April 5, 2018 to the

present time. Id.

      CYS filed a Petition for Involuntary Termination on December 11, 2018.

A hearing was held on the Petition on March 19, 2019. At the hearing, Jessica

Roberts, the CYS caseworker assigned to the case, testified that Father’s

Family Service Plan (“FSP”) goals were to: obtain drug and alcohol treatment,

undergo a mental health evaluation, consistently visit with the Child, maintain

suitable housing, attend parenting classes, and cooperate with CYS. Id. at 14-

15. Ms. Roberts stated that Father never signed the FSP. Id. at 16. Ms.

Roberts further testified that Father had not visited the Child at all since the

Child was placed into foster care on April 5, 2018. Id. at 18. She also stated

that Father failed to complete any of his other FSP goals. Id. at 23. Ms.

Roberts acknowledged that Father was incarcerated at some point during the

dependency action but she did not know long he was incarcerated. Id. at 27.

Ms. Roberts recommended that it was in the best interest of the Child for

Father’s parental rights to be terminated and for the Child to be adopted by

his foster parents. Id. at 24.

      Father testified at the termination hearing and admitted that he had not

seen the Child since the Child was placed into foster care. Id. at 39-40. Father

testified that he had not made any attempts to visit with the Child because he

believed that this case only involved Mother and “the case was to deal with

her.” Id. at 40. He also stated that it was because “I wasn’t even close to

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being stable myself.” Id. at 41. Father agreed that he was offered visits and

that the visitation location was a few blocks away from his current residence

so transportation was not an issue. Id. at 47. Father admitted that he

currently has a drug problem and has been addicted to cocaine since he was

19 years old, or for approximately 23 years. Id. at 34. He also testified that

he was not receiving drug and alcohol treatment, had not had a mental health

assessment, failed to attend parenting classes, and had not maintained

contact with CYS. Id. at 37, 38, 47-48. In terms of housing, Father stated

that he had been renting a room in a house on and off for approximately the

last three months. Id. at 37-38. Father also testified that he was incarcerated

several times after the Child’s birth but he was unsure of the dates of his

incarceration. Id. at 41-42.

       At the end of the hearing, the trial court terminated Father’s parental

rights as to Child.2 This timely appeal followed.

       Counsel for Father raises one issue in his Anders brief:

          Did the lower court abuse its discretion in terminating the
          parental rights of the natural father, F.S., as Fayette County
          Children and Youth Services failed to present sufficient
          evidence to sustain its burden of proof?

Anders Brief, at 3.

       Before reviewing the merits of this appeal, we must first determine

whether counsel has satisfied the necessary requirements for withdrawing as
____________________________________________


2 The trial court also involuntarily terminated Mother’s parental rights. Mother
is not involved in this appeal.

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counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.

2007) (en banc) (stating that “[w]hen faced with a purported Anders brief,

this Court may not review the merits of any possible underlying issues without

first examining counsel’s request to withdraw”). In order 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 brief to the defendant; and 3) advise
         the defendant that he or she has the right to retain private
         counsel or raise additional arguments that the defendant
         deems worthy of the court’s attention.

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

banc). Further, in the Anders brief, counsel seeking to withdraw 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel

meets all of the above obligations, “it then becomes the responsibility of the

reviewing court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Id. at 355, n.5 (quoting Commonwealth v. McClendon, 434 A.2d

1185, 1187 (Pa. 1981)).

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      Instantly, we find that counsel has complied with all of the above

technical requirements. In his Anders brief, counsel has provided a summary

of the procedural history and facts of the case with citations to the record.

Further, counsel’s brief includes an issue that could arguably support the

appeal, and counsel’s assessment of why that issue is frivolous, with citations

to the record and relevant legal authority. In addition, counsel served Father

a copy of the Anders brief and advised him of his right to proceed pro se or

retain a private attorney to raise any additional points he deemed worthy of

this court’s review. Petition to Withdraw, 5/17/19, at ¶ 10. Father has not

responded to counsel's petition to withdraw. As we find the technical

requirements of Anders and Santiago are met, we will proceed to the issue

on appeal.

      We review an order involuntarily terminating parental rights for an

abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa.Super. 2018)

(citation omitted). When we review termination of parental rights cases, we

“accept the findings of fact and credibility determinations of the trial court if

they are supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013),

(quoting In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual

findings have support in the record, we then determine if the trial court

committed an error of law or abuse of discretion.” In re Adoption of K.C.,

199 A.3d 470, 473 (Pa.Super. 2018). A trial court decision may be reversed

for   an   abuse   of   discretion   “only   upon   demonstration   of   manifest




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unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of

S.P., 47 A.3d at 826.

      Our Supreme Court has explained the reasons for applying an abuse of

discretion standard of review in termination of parental rights cases:

         [U]nlike trial courts, appellate courts are not equipped to
         make the fact-specific determinations on a cold record,
         where the trial judges are observing the parties during the
         relevant hearing and often presiding over numerous other
         hearings regarding the child and parents. Therefore, even
         where the facts could support an opposite result, as is often
         the case in dependency and termination cases, an appellate
         court must resist the urge to second guess the trial court
         and impose its own credibility determinations and
         judgment; instead we must defer to the trial judges so long
         as the factual findings are supported by the record and the
         court’s legal conclusions are not the result of an error of law
         or an abuse of discretion.

Id. at 826-27 (citations omitted).

      A party seeking to terminate parental rights has the burden of

establishing grounds for termination by clear and convincing evidence. In re

Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means

evidence “that is so clear, direct, weighty, and convincing as to enable the

trier of fact to come to a clear conviction, without hesitation, of the truth of

the precise facts in issue.” Id. (internal quotation marks and citation omitted

in In re Adoption of K.C.).

      Termination of parental rights is controlled by section 2511 of the

Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under section




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2511, the trial court must engage in a bifurcated analysis 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.

Id. (citations omitted).

      In the present case, the trial court terminated Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (6) and 2511(b) of the

Adoption Act. In order to affirm the termination of parental rights, this Court

need only agree with the trial court’s decision as to any one subsection of

section 2511(a), as well as section 2511(b). In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc). We focus our attention on whether the trial court

abused its discretion by terminating Father’s parental rights pursuant to

section 2511(a)(1), which provides that a parent’s rights to a child may be

terminated if:

         [t]he 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.


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23 Pa.C.S.A. § 2511(a)(1).

      Pursuant to section 2511(a)(1), “the moving party must produce clear

and convincing evidence of conduct, sustained for at least the six months prior

to the filing of the termination petition, which reveals a settled intent to

relinquish parental claim to a child or a refusal or failure to perform parental

duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008). A parental

obligation is a “positive duty which requires affirmative performance” and

“cannot be met by a merely passive interest in the development of the child.”

In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (citation omitted). Indeed,

         [p]arental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances. A parent must utilize all available resources
         to preserve the parental relationship, and must exercise
         reasonable firmness in resisting obstacles placed in the path
         of maintaining the parent-child relationship. Parental rights
         are not preserved by waiting for a more suitable or
         convenient time to perform one’s parental responsibilities
         while others provide the child with his or her physical and
         emotional needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).

      In the instant case, since the Petition for Involuntary Termination was

filed on December 11, 2018, the six-month period prior to the filing of the

Petition began on June 11, 2018. The trial court found that Father made

absolutely no efforts to perform any parental duties since the time that the

Child was placed into foster care on April 5, 2018.



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      Upon review, we find that the record clearly supports the findings of the

trial court. At the termination hearing, the CYS caseworker testified that

Father had not seen the Child at all since the Child was placed in foster care

on April 5, 2018. N.T., 3/19/19, at 18. Moreover, Father himself admitted at

the termination hearing that he had no contact with the Child since he was

placed into care and had made no attempts to visit the Child. Id. at 39-40.

Father further agreed that visits were offered to him but that he had not

attended any visits with the Child, despite the fact that the visitation location

was only a few blocks away from his current residence. Id. at 47. In addition,

Father admitted that he still has a drug problem and has been addicted to

cocaine for 23 years. Id. at 34. Father further conceded that he is not

receiving drug and alcohol treatment, failed to attend mental health

treatment, failed to attend parenting classes, and has not maintained contact

with CYS. Id. at 37, 38, 47-48. Father also acknowledged that he wasn’t stable

during the Child’s dependency, stating, “Well it was pretty much I was

homeless, bouncin’ [sic] from house to house.” Id. at 41, 49. In sum, Father

has made no attempts to perform any parental duties or work toward

reunification with the Child.

      To the extent that Father contends that he was unable to perform his

parental duties due to being in and out of prison several times since the Child’s

birth, it is well-established that “a parent’s responsibilities are not tolled during

incarceration.” In re B.,N.M., 856 A.2d at 855. Indeed, a parent who is

incarcerated “is expected to utilize all available resources to foster a

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continuing close relationship with his or her children.” Id. The record is devoid

of any evidence that Father attempted to foster a relationship with the Child

while he was incarcerated. Since Father failed to perform any parental duties

for the Child for at least six months prior to the filing of the termination

petition, we discern no abuse of discretion.

      Having determined that CYS proved by clear and convincing evidence

the requirements of section 2511(a)(1), we next turn to 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. Section

2511(b) provides:

         The court in terminating the rights of a parent shall give
         primary consideration to the developmental, physical and
         emotional needs and welfare of the child. The rights of a
         parent shall not be terminated solely on the basis of
         environmental factors such as inadequate housing,
         furnishings, income, clothing and medical care if found to be
         beyond the control of the parent. With respect to any
         petition filed pursuant to subsection (a)(1), (6) or (8), the
         court shall not consider any efforts by the parent to remedy
         the conditions described therein which are first initiated
         subsequent to the giving of notice of the filing of the
         petition.

23 Pa.C.S.A. § 2511(b).

      The focus under section 2511(b) is not on the parent, but on the child.

In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.Super. 2006). Pursuant to

section 2511(b), the trial court must determine “whether termination of

parental rights would best serve the developmental, physical and emotional

needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1286 (Pa.Super.

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2005). This Court has explained that “[i]ntangibles such as love, comfort,

security, and stability are involved in the inquiry into [the] needs and welfare

of the child.” Id. at 1287. 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. Importantly, “[t]he mere existence

of an emotional bond does not preclude the termination of parental rights.”

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011). Instead, the trial court “must

examine the status of the bond to determine whether its termination would

destroy an existing, necessary and beneficial relationship.” Id. (citation and

quotation omitted). Further, “[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).

      Here, the trial court found that terminating Father’s parental rights was

in the best interest of the Child in that it provided permanency for the Child

and would best serve the needs and welfare of the Child. N.T., 3/19/19, at

64; Trial Court Opinion, 5/1/19, at 3. The court further concluded that Father

failed to maintain a bond with the Child as he has not seen the Child since the

Child’s placement on April 5, 2018. Id. In contrast, the court found that the

Child has a bond with the foster parents and the foster parents desire to adopt

the Child. N.T., 3/19/19, at 63-64; Trial Court Opinion, 5/1/19, at 3.

      Once again, our review supports the trial court’s findings. It was

undisputed that Father has had no contact with the Child since the Child was

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approximately two months old, or for almost one year at the time of the

termination hearing. N.T., 3/19/19, at 18, 39-40. We agree with the trial

court’s finding that there is not an emotional bond between Father and the

Child due to Father’s failure to have any contact with the Child. The CYS

worker testified that the Child has lived continuously with the same foster

parents since he was approximately two months old. Id. at 13. The CYS

worker stated that the Child is currently thriving in the foster home and is

“very bonded with the foster family and their family.” Id. at 24. The trial court

found that the foster parents are willing and able to provide the Child with the

love, comfort, permanence, and stability that he deserves. We agree with this

finding. Accordingly, we conclude that the record supports the trial court’s

decision that CYS proved by clear and convincing evidence that termination of

Father’s parental rights was in the Child’s best interest.

      In sum, we determine that the issue raised in counsel’s Anders brief is

wholly frivolous. Further, after an independent review of the record, we

conclude that no other issue of arguable merit exists. Therefore, we grant

counsel’s petition to withdraw. Having determined that the issue raised on

appeal is wholly frivolous, we affirm the decree terminating Father's parental

rights.

      Petition to withdraw as counsel granted. Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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