J-A18010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    IN RE: M.A.P.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
    Appeal of B.P.                             :
                                               :
                                               :    No. 1420 WDA 2019

                 Appeal from the Order Entered August 22, 2019
         In the Court of Common Pleas of Butler County Orphans’ Court
                           At No(s): OA No. 60 of 2018



BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E:                              FILED JULY 30, 2020

        B.P. (“Father”) appeals from the order entered on August 22, 2019,

which granted the petition filed by Butler County Children and Youth Services

(“BCCYS” or “Agency”) to involuntarily terminate his parental rights to his

minor child, M.A.P. (“Child”), pursuant to sections 2511(a)(1), (2), (5), (8)

and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1 Father’s counsel filed

a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).


____________________________________________


1 At the termination hearing held on July 9, 2019, counsel for B.S. (“Mother”)
indicated to the trial court that Mother wished to sign a consent to adopt.
Therefore, by agreement of all parties, Mother’s petition was continued. See
Trial Court Opinion (TCO), 8/22/19, at 2. On March 18, 2020, counsel for
Mother filed a letter/notice of non-participation in this matter pursuant to
Pa.R.A.P. 908, informing this Court that Mother’s parental rights had been
terminated, and that she did not appeal that determination. We also note that
neither the Agency nor counsel for Child has filed a brief in conjunction with
this appeal. Both have adopted the position espoused by the trial court and
suggest that this Court should affirm that decision.
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Following review, we grant counsel’s petition to withdraw and affirm the

termination order.

      The Anders brief filed by Father’s counsel contains a summarization of

the factual and procedural history of this matter as follows:
             [B.P.] (hereinafter “Father”) is the natural parent of M.A.P.
      [BCCYS] received a report of drug use by both parents, poor
      housing conditions, specifically of … [C]hild’s bedroom, and [C]hild
      possibly being developmentally delayed. BCCYS investigated on
      May 19, 2017, and found no furniture in … [C]hild’s bedroom and
      a strong odor of human urine. Additionally, both of the parents
      actively used drugs. Interactions with the parents deteriorated
      during the investigation where Father became argumentative and
      uncooperative, thus BCCYS detained Child that day and placed
      [him] with [S.P.] (hereinafter “Paternal Grandmother”).

             A 30-day safety plan was established including Father’s
      objectives of demonstrating an ability to meet … Child’s basic
      needs and maintain a sober lifestyle by maintaining safe, stable
      and clean housing with working utilities; maintaining a legal
      source of income sufficient to meet … Child’s needs; submitting to
      drug[] screens; improving the conditions of the home; and
      attending and actively participating in Child’s appointments. The
      [c]ourt found that Father had made only minimal progress with
      the service plan. Father entered Pyramid to detox but left after a
      few days. He missed at least one drug screen per week and tested
      positive on screens that he participated in.            Father was
      inconsistent with services. Moreover, services, such as that
      provided at Specialty Outreach Services, were terminated because
      Father was not cooperative or compliant. Furthermore, on June
      18, 2017, conditions in the home had not changed. Therefore, it
      was declared still unsafe for Child to return to [F]ather.

            Father completed twenty-six (26) of the fifty-two (52) drug
      screens prior to his incarceration. Out of the fifty-two (52)
      screens, forty-six (46) of the screens were considered positive for
      either positive results, no–shows, or unable to provide a sample.
      This included seventeen (17) positives for amphetamines,
      eighteen (18) positives for Suboxone, one (1) positive result for
      methamphetamine, as well as faint lines - considered negative
      results - eleven (11) times for methamphetamine and thirteen


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     (13) times for cocaine. Father failed to show up for his screens
     twenty-six (26) times.

           Father was incarcerated in October 2017 after a police raid
     of his home. Father participated in Skype video visits once or
     twice a week while incarcerated through coordination with
     Paternal Grandmother, but otherwise could not visit with [C]hild
     due to Butler County Jail policy. Father was released from
     incarceration on November 30, 2018. He met with BCCYS but told
     them he wanted to move to Allegheny County[;] therefore[,] he
     would not be participating in services in Butler County.
     Furthermore, he did not give BCCYS documentation regarding any
     services, drug screens, employment, or residence verifications.
     He did not provide the name or information regarding the person
     with whom he was living.

            Father maintained contact with … Child through Paternal
     Grandmother. Father attended twelve (12) out of eighteen (18)
     visits outside of his incarceration period. A clear bond existed
     between Father and Child, where Child called him “Daddy” and
     jumped into his lap. However, Father testified that he was not in
     a position to take better care of Child than Paternal Grandmother,
     and that Child deserves the life that Paternal Grandmother
     provided Child. He agreed that Child should stay with Paternal
     Grandmother, but that due to his beliefs and past trauma, he
     would not sign adoption consent papers.

           BCCYS filed a Petition for Involuntary Termination of
     Parental Rights on October 25, 2018. A hearing was held on July
     9, 2019. Father testified that he felt threatened by BCCYS during
     discussions with them. The court noted that his demeanor was
     angry but emotionally pained as well. The [c]ourt also noted that
     Paternal Grandmother held a strong positive bond with Child. She
     was loving toward Child. Paternal Grandmother was proactive and
     patient in meeting Child’s needs and provided a safe and stable
     home. Ultimately, the [c]ourt entered Findings of Fact and an
     Order of Court terminating Father’s parental rights on August 22,
     2019.

Anders brief at 1-3.

     On September 19, 2019, Father filed a timely notice of appeal, along

with a concise statement of matters complained of on appeal, in which he


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contended that the Agency failed to satisfy the grounds for termination set

forth in section 2511(a)(2) or any other section of 2511(a), and, thus, the

trial court’s order is not supported by sufficient evidence. Father also argued

that section 2511(b) was not supported by the evidence, namely, that there

is a strong emotional bond that exists between Father and Child. However,

despite these assertions in the concise statement contained in the record

submitted to this Court in conjunction with the notice of appeal, Father’s

counsel states in the Anders brief that “[c]ounsel filed the instant appeal at

the direction of [Father]. Counsel did not file matters complained of on appeal,

instead filing a Notice of Intention to file Anders brief. It is [c]ounsel’s belief

that this appeal is without merit.” Anders brief at vi.

      “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.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.

1997)).

      Court-appointed counsel who seeks to withdraw from representing
      an appellant on direct appeal on the basis that the appeal is
      frivolous 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) file a brief referring to anything that arguably might
          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 the [appellant] and advise the [appellant] of
          his or her right to retain new counsel or raise any additional
          points that he or she deems worthy of the court’s attention.

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      Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
      (citation omitted).

Rojas, 874 A.2d at 639.         Father’s counsel has complied with these

requirements.   Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, infra.       Counsel also

provided a copy of the brief to Father, and submitted proof that he advised

Father of his right to retain new counsel, proceed pro se, and/or to raise new

points not addressed in the Anders brief.

      Our Supreme Court has held, in addition, that counsel must explain the

reasons underlying his assessment of the appellant’s case and his conclusion

that the claims are frivolous. Thus, counsel’s Anders brief must satisfy the

following criteria before we may consider the merits of the underlying appeal:

      [W]e hold that in the Anders brief that accompanies court-
      appointed counsel’s petition to withdraw, counsel must: (1)
      provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      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.

      Upon review of the Anders brief submitted by Father’s counsel, we find

it complies with the technical requirements of Santiago. Counsel’s Anders

brief (1) provides a summary of the procedural history and facts of this case;

(2) directs our attention, when applicable, to the portions of the record that

ostensibly supports Father’s claims of error; (3) concludes that Father’s claims


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are   frivolous;     and      (4)   does   so   by    citation   to   the   record   and

appropriate/applicable legal authorities.            Thus, we now examine whether

Father’s claims are, indeed, frivolous. We also must “conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues   that      counsel,     intentionally   or    not,   missed    or    misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc).

      We review an order terminating parental rights in accordance with the

following standard:

            When reviewing an appeal from a decree terminating
      parental rights, we are limited to determining whether the
      decision of the trial court is supported by competent evidence.
      Absent an abuse of discretion, an error of law, or insufficient
      evidentiary support for the trial court’s decision, the decree must
      stand. Where a trial court has granted a petition to involuntarily
      terminate parental rights, this Court must accord the hearing
      judge’s decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the
      record in order to determine whether the trial court’s decision is
      supported by competent evidence.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

      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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

The trial court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve conflicts

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in the evidence.   In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).           If

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

the record could also support the opposite result. In re Adoption of T.B.B.,

835 A.2d 387, 394 (Pa. Super. 2003).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. Initially, the focus is on the conduct of the parent. The
      party seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory grounds
      for termination delineated in 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) (citing 23 Pa.C.S. § 2511,

other citations omitted). 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. R.N.J., 985 A.2d at 276.

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

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

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




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banc).   Here we analyze the court’s decision to terminate under section

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.

23 Pa.C.S. § 2511(a)(2), (b).

     We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

     In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
     2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has caused the child to
     be without essential parental care, control or subsistence


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      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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The 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).

      With regard to section 2511(a)(2), counsel for Father summarized the

trial court’s findings, noting Father’s addictions and mental health problems,

which resulted in the conditions of the home and Child’s developmental

problems. See Anders brief at 8. Counsel also mentions the lack of furniture

and the strong smell of urine in Child’s bedroom at the first visit by the Agency,

that “Child was developmentally delayed, and both Mother and Father were

actively abusing drugs.” Id. Counsel further mentions the initial thirty-day

safety plan and Father’s failure to comply.       Based upon the trial court’s

findings, counsel also notes Father’s positive drug tests and his failure to

provide “proof of employment, residence, prescriptions, drug screens, services

participation, or treatment.” Id. at 8-9. Counsel also acknowledges Father’s

arrest and incarceration for a period longer than a year. Id. at 9.




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      The trial court provided an extensive discussion of the facts, which are

the basis for counsel’s summary in the Anders brief. The court concluded by

stating:

      Father has by conduct continuing for a period of at least six
      months preceding the filing of the instant petition refused or failed
      to perform parental duties.        The repeated and continued
      incapacity, neglect and refusal of Father has caused Child to be
      without essential parental care, control or subsistence necessary
      for his physical and mental well-being. Father cannot or will not
      remedy these causes and conditions. Child has been removed
      from Father’s care for well over twelve months. The conditions
      which led to the removal and placement of Child continue to exist.
      Even with the services available to Father, he is not likely to
      remedy the conditions which led to the removal and placement of
      Child within a reasonable period of time. Child deserves stability,
      safety and permanency. Terminating Father’s parental rights will
      best meet the needs and welfare of Child.

TCO at 4.

      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by terminating Father’s parental

rights pursuant to section 2511(a). The testimony provided at the termination

hearing supports the court’s findings and conclusions.      Thus, Father is not

entitled to relief as to section 2511(a)(2).

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to section 2511(b). We have

discussed our analysis under section 2511(b) 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

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      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. 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. Accordingly, the
      extent of the bond-effect analysis necessarily depends on the
      circumstances of the particular case.

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

omitted).

      Relating to Section 2511(b), the trial court found that terminating

Father’s parental rights would best serve Child’s needs and welfare, stating:

            The [c]ourt gave primary consideration to the needs and
      welfare of Child pursuant to section 2511(b). It is clear that
      Father and Child have a positive bond. However, by Father’s own
      testimony[,] he cannot now or in the foreseeable future care for
      Child. Father and Paternal Grandmother have a good relationship.
      Paternal Grandmother and Child have a strong positive bond and
      Paternal Grandmother can provide Child with the nurture, love,
      safety and permanency Child needs and deserves. The harm, if
      any, caused to Child by terminating Father’s parental rights is far
      out-weighed by the safety and permanency Child will gain with
      Paternal Grandmother.

TCO at 4. Again, our review of the record reveals that it supports the trial

court’s conclusion that terminating Father’s parental rights would best serve

Child’s needs and welfare. Child will not suffer irreparable harm if Father’s

parental rights are terminated.

      Accordingly, our independent review of Father’s claims demonstrates

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

not   reveal   any   non-frivolous   issues    overlooked   by   counsel.    See

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015).



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

order terminating Father’s parental rights.

      Order affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2020




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