J-S29019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A H. A/K/A             :   IN THE SUPERIOR COURT OF
    A.D.H., A MINOR                            :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.H., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 85 EDA 2018

                  Appeal from the Decree December 13, 2017
     In the Court of Common Pleas of Philadelphia County Family Court at
                       No(s): CP-51-AP-0000910-2017,
             CP-51-DP-0003127-2015, FID: 51-FN-002636-2015


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 13, 2018

       A.H. (Mother) appeals from the decree that involuntarily terminated her

parental rights to her minor son, A.D.H. (Child), born in November 2008.1

Additionally, Mother’s counsel filed a petition to withdraw and brief pursuant

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

Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we grant counsel’s

petition to withdraw and affirm.

       The Philadelphia Department of Human Services (DHS) opened a case

file for Child in October 2015 due to substance abuse and housing concerns

with Mother. Trial Court Opinion, 1/19/18, at 1. On January 13, 2016, the

trial court adjudicated Child dependent and identified Child’s permanency goal
____________________________________________


1E.D.B. (Father) voluntarily relinquished his parental rights to Child and is not
a party to this appeal.


____________________________________
* Former Justice specially assigned to the Superior Court.
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as reunification. Child was placed with, and continues to reside with, Maternal

Aunt and Uncle. Mother was granted supervised vitiation with Child at the

agency.

       On September 15, 2017, DHS filed a petition to change Child’s

permanency goal from reunification to adoption and to involuntarily terminate

Mother’s parental rights to Child. On December 13, 2017, the trial court held

a joint hearing on the petitions.2 At the conclusion of the hearing, the trial

court orally delivered its decree terminating Mother’s parental rights to Child

and changing Child’s permanency goal to adoption. The trial court entered its

decree that same day. Mother timely filed a notice of appeal on December

18, 2017, along with a concise statement of errors complained of on appeal.

On February 15, 2018, Mother’s counsel filed an Anders brief, in which

counsel argued that Mother’s appeal was frivolous and requested permission

from this Court to withdraw as counsel.3

       Before reaching the merits of Mother’s appeal, we must first address

counsel’s petition to withdraw.        See Commonwealth v. Rojas, 874 A.2d
____________________________________________


2At the hearing, Child was represented by guardian ad litem, Andre Martino,
Esquire, and by legal counsel, Daniel Silver, Esquire. Mr. Martino and Mr.
Silver both advocated in favor of terminating Mother’s parental rights.

3 Counsel did not file a separate petition to withdraw, but rather set forth his
withdrawal request in his Anders brief. While this is satisfactory, we note our
preference that counsel file a separate petition to withdraw.               See
Commonwealth v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995)
(“Although we believe the more desirable practice would be to submit a
separate withdrawal request to the court, we . . . treat counsel’s [request] in
the brief as such a request.”); see also Commonwealth v. Green, 513 A.2d
1008, 1010 (Pa. Super. 1986).

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

1301, 1303 (Pa. Super. 1997)). This Court extended the Anders procedure

to appeals from decrees involuntarily terminating parental rights in In re V.E.,

611 A.2d 1267 (Pa. Super. 1992). 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

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;

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      (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.

      In the instant matter, Mother’s counsel filed a petition to withdraw,

certifying that he reviewed the record and determined that Mother’s appeal is

frivolous. Counsel also filed a brief, which includes a summary of the history

and facts of the case, potential issues that could be raised by Mother, and

counsel’s assessment of why those issues are frivolous, with citations to

relevant legal authority. Counsel provided Mother with a copy of the brief and

a letter advising her that she may obtain new counsel or raise additional issues

pro se. Accordingly, counsel complied substantially with the requirements of

Anders and Santiago.       Therefore, we may proceed to review the issues

outlined in the Anders brief. We must also “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 the following issues for our review.

      1. Whether the trial court committed reversible error, when it
         involuntarily terminated Mother’s parental rights and changed
         the goal from reunification to adoption where such
         determination was not supported by clear and convincing


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            evidence under the [A]doption       [A]ct,   23   Pa.C.S.A.   §
            2511(a)(1), (2), (5) and (8)[?]

      2. Whether the trial court committed reversible error when it
         involuntarily terminated Mother’s parental rights without giving
         primary consideration to the effect that the termination would
         have on the developmental, physical and emotional needs of
         the child as required by the [A]doption [A]ct, 23 Pa.C.S.A. §
         2511(b)[?]

      3. Whether[ ] the trial court erred because the evidence was
         overwhelming and undisputed that Mother demonstrated a
         genuine interest and sincere, persistent, and unrelenting effort
         to maintain a parent-child relationship with her child[?]

Anders Brief at 6 (unpaginated).

      We review these claims mindful of our well-settled standard of review:

      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 Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 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

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      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

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

      In this case, the trial court terminated Mother’s parental rights pursuant

to Section 2511(a)(1), (2), (5), (8) and (b). We need only agree with the

court as to any one subsection of Section 2511(a), as well as Section 2511(b),

in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s

decision to terminate under Section 2511(a)(1) 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:

               (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.

                                *     *     *

           (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

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          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 notice of the filing
          of the petition.

23 Pa.C.S.A. § 2511(a)(1), (b).

      As it relates to Section 2511(a)(1), we note the pertinent inquiry for our

review:

          To satisfy 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. . . . Section 2511 does not require
          that the parent demonstrate both a settled purpose of
          relinquishing parental claim to a child and refusal or failure
          to perform parental duties. Accordingly, parental rights may
          be terminated pursuant to Section 2511(a)(1) if the parent
          either demonstrates a settled purpose of relinquishing
          parental claim to a child or fails to perform parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa. Super. 1999) (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998)) (internal citations omitted).

Although the six months immediately preceding the filing of the petition are

the most critical to the analysis, “the trial court must consider the whole

history of a given case and not mechanically apply the six-month statutory

provision.” In re B., N.M., 856 A.2d 847 (Pa. Super. 2004). Additionally, to

the extent that the trial court based its decision to terminate parental rights

pursuant to subsection (a)(1), “the court shall not consider any efforts by the

parent to remedy the conditions described therein which are first initiated


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subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.A.

§ 2511(b). In In re C.M.S., we explained, “[a] parent is required to exert a

sincere and genuine effort to maintain a parent-child relationship; the parent

must use 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.” 832 A.2d 457, 462 (Pa. Super.

2003).

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the trial court must then

engage in three additional lines of inquiry: “(1) the parent’s explanation for

his or her conduct; (2) the post-abandonment contact between parent and

child; and (3) consideration of the effect of termination of parental rights on

the child pursuant to Section 2511(b).” In re Z.S.W., 946 A.2d 726, 730 (Pa.

Super. 2008) (quoting In re Adoption of Charles E.D.M., 708 A.2d at 91).

      In granting DHS’s petition for involuntary termination, the trial court

made the following determination:

      Under these specific facts and circumstances, this [c]ourt found
      clear and convincing evidence that Mother demonstrated a settled
      purpose of relinquishing parental claim to the Child and failed to
      perform any parental duties. The Child was removed from
      Mother’s home approximately twenty months ago. Mother’s
      refusal to parent since that time was demonstrated by her failure
      to comply with her single case plan objectives. Mother has never
      completed a drug a program and has not attended random drug
      screens [] as ordered by this [c]ourt. Most importantly, Mother
      has never attended parenting classes and has demonstrated an
      inability to properly parent the Child. According to the testimony
      of the [] social worker, Mother’s visits with the Child w[ere]


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       suspended for a short period as a result of Mother’s inappropriate
       behavior during visits. Mother’s phone contact with the Child was
       also discontinued due to the inappropriate conversations Mother
       had with the Child about his body parts. Mother’s actions
       demonstrate a need for parenting classes; however, Mother has
       never completed a parenting program. These minimal objectives
       would have demonstrated Mother’s interest in caring for her child;
       however, Mother made little efforts to fulfill these objectives.
       Accordingly, this [c]ourt found termination of Mother’s parental
       rights warranted pursuant to [Section] 2511(a)(1).

Trial Court Opinion, 1/19/18, at 6.

       Mother argues that she has complied with the objectives put in place by

DHS.    Namely, Mother asserts that she completed her drug and alcohol

objective and was consistent with her visits with Child. Anders Brief at 13.

Moreover, Mother contends that “she is currently capable of providing her child

with the essential parental care, control and subsistence necessary for

[Child’s] physical and mental wellbeing and that the conditions and causes

that led to her incapacity were remedied within the time allotted by the

Adoption Act.” Id. at 15.

       After careful review of the record, we find there is ample, competent

evidence to support the trial court’s factual findings, and the court’s

conclusions are not a result of an error of law or an abuse of discretion. Child

was initially removed from Mother’s care because of concerns regarding

Mother’s drug and alcohol use and housing. Dependency Petition – Statement

of Facts, 12/2/15, at ¶ b. During the termination hearing, DHS presented the

testimony of Tenicha Wright, the case manager assigned to Mother’s case.

Ms. Wright testified that DHS established the following objectives for Mother:

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complete a Clinical Evaluation Unit (CEU) assessment and comply with any

recommendations,       complete       random      drug   screens,   attend   outpatient

treatment at Wedge and comply with any recommendations, attend Achieving

Reunification Center (ARC) for parenting classes, and attend visits with Child.

N.T., 12/13/17, at 23, 25, 28-29.

       Contrary to Mother’s claims, Mother’s substance abuse issues persist.

Ms. Wright testified that she has not received any documentation from Mother

regarding her completion of drug and alcohol treatment. N.T., 12/13/17, at

25, 43. Although Mother completed a CEU assessment, Mother failed to follow

through with the recommended outpatient treatment at Wedge. Id. at 25.

Mother tested positive for cocaine and marijuana in a drug screen taken in

December 2015, and failed to submit to any subsequent drug screens, despite

the courts requests for her to do so. Id. at 24, 43. Moreover, Ms. Wright

testified that Mother never attended any parenting classes and currently lacks

appropriate housing. Id. at 26, 43-44.

       With regard to visitation, Ms. Wright testified that Mother was consistent

with   her   visits   with   Child,    but     expressed    concern    regarding   the

appropriateness of Mother’s behavior at the visits. Specifically, Ms. Wright

testified that during a visit, Mother attempted “to pull the child’s pants down

to view his butt hole. . . .” N.T., 12/13/17, at 31. As a result of Mother’s

behavior, visits were suspended, but were subsequently reinstated.                 Id.

Likewise, Ms. Wright testified that Mother engaged in inappropriate behavior


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during her phone contact with Child. Id. at 34. Ms. Wright indicated that

Mother would attempt to talk to Child about his body parts. As a result of

Mother’s behavior during visits, Child required behavioral health services and

underwent a psycho-sexual evaluation. Id. at 33-34.

      Thus, the record confirms that Mother refused or failed to perform

parental duties for the six months immediately preceding the filing of DHS’s

termination petition on September 15, 2017. The record establishes that due

to Mother’s inappropriate behavior, Mother’s visits with Child were temporarily

suspended and phone contact with Child was eliminated. N.T., 12/13/17, at

34. Although Mother made an effort to attend visits with Child, Mother failed

to address the concerns expressed by the court, which ultimately led to Child’s

removal.   Accordingly, we conclude that the trial court did not abuse its

discretion by involuntarily terminating Mother’s parental rights to Child

pursuant to Section 2511(a)(1).

      We next consider whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. 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.


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            [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. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

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).

      Here, the trial court concluded that DHS presented clear and convincing

evidence that terminating Mother’s parental rights would best serve Child’s

needs and welfare pursuant to Section 2511(b). Trial Court Opinion, 1/19/18,

at 10. In particular, the trial court noted there was ample testimony presented

to establish that Child is not bonded with Mother. Id. at 11. Likewise, the

trial court noted that, at the time of the termination hearing, Child had been

in care for over twenty months and Mother was nowhere closer to reunification

than when Child first came into care in January 2016.

      Our review of the record again supports the findings of the trial court.

Mr. Wright testified that no parental-child bond exists between Mother and

Child. N.T., 12/13/17, at 33, 46. Rather, Ms. Wright testified that Mother

and Child have “more of a friend relationship.” Id. at 33. Ms. Wright stated

that Child has developed a bond with Maternal Aunt and Uncle, and that they

desire to adopt him. Id. at 36. She noted that Child looks to Maternal Aunt

and Uncle for security and comfort, and that they meet all of Child’s physical

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and emotional needs. Id. at 37-38. Moreover, Ms. Wright opined that, based

on her observations, she did not believe terminating Mother’s parental rights

would be detrimental to Child. Id. at 40-41.

      Although Mother’s love for Child is not in question, along with her desire

for the opportunity to parent Child, a parent’s own feelings of love and

affection for a child, alone, will not preclude termination of parental rights.

See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). 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.”     In re Z.S.W., 946 A.2d at 732.

Rather, “a parent’s basic constitutional right to the custody and rearing of his

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

to the child’s 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 at 856.

      Accordingly, our independent review of Mother’s claims demonstrates

that they do not entitle her to relief. Moreover, our review of the record does

not reveal any non-frivolous claims overlooked by counsel. See Flowers, 113

A.3d at 1250.    We therefore grant counsel’s petition to withdraw, and we

affirm the decree.

      Petition to withdraw granted. Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/18




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