J-S56019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.N.L., A            :   IN THE SUPERIOR COURT OF
 MINOR                                    :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: N.L., MOTHER                  :
                                          :
                                          :
                                          :
                                          :   No. 1717 EDA 2019

               Appeal from the Decree Entered June 10, 2019
  In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-AP-0000362-2019

 IN THE INTEREST OF: A.L., A MINOR        :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: N.L., MOTHER                  :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 1718 EDA 2019

                Appeal from the Order Entered June 10, 2019
  In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-DP-0002136-2017


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 20, 2019

      Appellant N.L. (“Mother”) appeals from the decree entered on June 10,

2019, granting the petition filed by the Philadelphia Department of Human

Services (“DHS”) to involuntarily terminate her parental rights to her minor

child, A.N.L., a/k/a A.L., (“Child”) a female born in July 2010, pursuant to the

Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and the order

changing the permanency goal for Child to adoption pursuant to the Juvenile
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Act, 42 Pa.C.S. § 6351. On this direct appeal, Mother’s counsel, Attorney John

M. Hayburn (“Counsel”), filed a petition for leave to withdraw as counsel and

an accompanying brief pursuant to Anders v. California, 386 U.S. 738

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

V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992) (extending Anders briefing

criteria to appeals by indigent parents represented by court-appointed counsel

in involuntary termination matters). Upon review, we grant Counsel leave to

withdraw and affirm.

     The trial court discussed the facts and procedural history of the instant

matter as follows:

     On July 21, 2017, Child’s [P]aternal [G]randmother began caring
     for   Child by family arrangement after             DHS visited
     [Grandmother’s] home and determined [it] to be appropriate. On
     July 21, 2017, [DHS] received a General Protective Services
     (“GPS”) report which alleged that Mother was diagnosed with
     schizoaffective disorder. Mother had disclosed to DHS prior to July
     21, 2017[,] that she suffered from mental illness and that to deal
     with stress[,] she cut and harmed herself. She also related that
     she broke a lava lamp over her head.

     On August 23, 2017, the Community Umbrella Agency (“CUA”)
     held a Single Case Plan (“SCP”) meeting. The objectives identified
     for Mother were[:] (1) to attend intensive outpatient drug and
     alcohol treatment and follow all recommendations; (2) to refrain
     from using any illegal substance; (3) to continue mental health
     services at the Tree of Life Agency; (4) to take medications for
     anxiety, [attention deficit hyperactive disorder (“ADHD”)],
     depression, panic attacks[,] and mood swings; (5) to have [a]
     psychiatric medication check monthly; (6) to continue to explore
     proper housing; [and] (7) to have weekly supervised visits with []
     Child.

     On May 13, 2019, DHS filed the underlying [p]etition[] to
     [t]erminate [p]arental [r]ights because Mother was unable to

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       maintain her [SCP] objective[s]. Specifically, Mother [] tested
       positive on court ordered drug screens and was unable to secure
       stable housing. Mother [] also failed to address her mental health
       issues.

See Trial Court Opinion, 7/23/19, at 1-8 (internal citations to the record

omitted).

       The trial court held a hearing on the petition on June 10, 2019.1 At the

hearing, the CUA representative, Michele Jackson, testified.        See N.T.,

6/10/19, at 13-31. Jackson explained that Mother did not meet any of her

SCP objectives. Id.

       Jackson testified that Mother was discharged from drug treatment in

April 2018 and March 2019 after failing to attend treatment sessions. Id. at

16.    Additionally, Jackson explained that Mother failed to participate in

court-ordered random drug screens, and that, when Mother was finally tested

in June 2019, she tested positive for marijuana and opiates. Id. at 17-21.

       Jackson also noted that Mother failed to obtain stable housing. Id. at

13-14, and 25. Jackson testified that Mother was referred to the Achieving

Reunification Center (“ARC”) in March 2019 to assist her in parenting classes

and finding stable housing, but Mother never reported for intake. Id. at 25.

Per Jackson, on a previous occasion, Mother was referred for housing but was

discharged for non-compliance. Id. Additionally, Jackson discussed Mother’s

visits with Child. Id. at 21-22. Jackson stated that Mother’s visits did not
____________________________________________


1  Attorney James King was appointed to represent the Child as her legal
interests counsel and Attorney Lee Kuhlmann was appointed as guardian ad
litem (“GAL”) to represent Child’s best interests. See In re Adoption of
L.B.M., 161 A.3d 172, 179-180 (Pa. 2017).

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progress beyond supervised visits; the visits had to be changed to therapeutic

visits after Mother “coached” Child regarding Paternal Grandmother. Id. at

21-22 and 28.

       Lastly, Jackson discussed Child’s placement. She testified that Child has

been in the care of Paternal Grandmother for over two years and that Paternal

Grandmother meets Child’s physical, medical, and educational needs. Id. at

11-12, 27-28. Moreover, Jackson explained that while Mother lives on the

same street as Paternal Grandmother, a stay-away order against Mother has

been obtained because Mother consistently makes unfounded allegations that

Child is physically and verbally abused by Parental Grandmother. Id. at 27-

30. Jackson testified that although Child is glad to see Mother, the bond is

not a parental bond, that Child wishes to be adopted by Paternal Grandmother,

and Child would not suffer irreparable harm if Mother’s parental rights were

terminated. Id. at 29-30. Jackson testified it is in Child’s best interests to be

adopted.     Id. at 30.     Following Jackson’s testimony, Attorney Kuhlmann,

Child’s GAL, stated on the record that Child confirmed she wished to be

adopted by her foster parent. Id. at 31.

       At the conclusion of the hearing, the court terminated Mother’s parental

rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). This timely

appeal followed.2

____________________________________________


2Mother filed two notices of appeal on June 24, 2019, separately listing each
docket number. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.



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       On August 22, 2019, Counsel filed an Anders brief and a petition to

withdraw as counsel. Therefore, before reviewing the merits of this appeal,

this Court must first determine whether counsel has fulfilled the necessary

procedural requirements for withdrawing as counsel. See Commonwealth

v. Flowers, 113 A.3d 1246, 1248–1249 (Pa. Super. 2015) (citation omitted).

       “In order to withdraw from appellate representation pursuant to

Anders, certain procedural and substantive requirements must be met.”

Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).

Procedurally, 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.

Id. at 359.      Substantively, counsel must file an Anders brief, in which

counsel:

       (1) provide[s] a summary of the procedural history and facts, with
       citations to the record; (2) refer[s] to anything in the record that
       counsel believes arguably supports the appeal; (3) set[s] forth
       counsel's conclusion that the appeal is frivolous; and (4) state
       counsel's reasons for concluding that the appeal is frivolous.




____________________________________________


2018). Mother also filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on the same date. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on July 23, 2019.

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Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

       In this case, we acknowledge Counsel’s compliance with Anders’

procedural and substantive requirements.         “Therefore, we now have the

responsibility ‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016),

quoting Flowers, 113 A.3d at 1248.

       Counsel’s Anders brief raises the following issue 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 the clear and convincing evidence under the
       [A]doption [A]ct, 23 Pa.C.S.A. [§ 2511(a)(2)?][3]

       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 []
       [C]hild 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 [] [C]hild[?]

See Anders Brief, at 7 (un-paginated).


____________________________________________


3 Counsel’s Anders brief addresses both the goal change and the court’s
Section 2511(a) determinations in one issue. For clarity, we first address the
goal change issue and then discuss Mother’s challenge to the termination of
her parental rights.

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      With regard to dependency cases:

      [t]he standard of review which this Court employs in cases of
      dependency is broad. However, the scope of review is limited in
      a fundamental manner by our inability to nullify the fact-finding of
      the lower court. We accord great weight to this function of the
      hearing judge because he is in the position to observe and rule
      upon the credibility of the witnesses and the parties who appear
      before him. Relying upon his unique posture, we will not overrule
      his findings if they are supported by competent evidence.

In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an

abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

      Regarding the disposition of dependent children, the Juvenile Act, 42

Pa.C.S. §§ 6351(e)-(g), provides the criteria for a permanency plan.         The

court must determine a disposition best suited to the safety and protection,

as well as the physical, mental, and moral welfare of the child. See 42 Pa.C.S.

§ 6351(g). With a goal change petition, the trial court

      considers the continuing necessity for and appropriateness of the
      placement; the extent of compliance with the service plan
      developed for the child; the extent of progress made towards
      alleviating the circumstances which necessitated the original
      placement; the appropriateness and feasibility of the current
      placement goal for the child; and, a likely date by which the goal
      for the child might be achieved.

In Interest of A.N.P., 155 A.3d 55, 67 (Pa. Super. 2017), quoting In re

A.K., 936 A.2d 528, 533 (Pa. Super. 2007).

      We have further noted:

      [w]hen a child is adjudicated dependent, the child’s proper
      placement turns on what is in the child’s best interest, not on what
      the parent wants or which goals the parent has achieved.
      Moreover, although preserving the unity of the family is a purpose
      of the [Juvenile] Act, another purpose is to “provide for the care,

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      protection, safety, and wholesome mental and physical
      development of children coming within the provisions of this
      chapter.” 42 Pa.C.S. § 6301(b)(1.1). Indeed, “[t]he relationship
      of parent and child is a status and not a property right, and one
      in which the state has an interest to protect the best interest of
      the child.”

In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some citations omitted).

      Here, the court did not err in changing Child’s goal to adoption.

Throughout the history of the case, Mother was required to participate in drug

counseling and mental health services to achieve reunification.        Mother,

however, failed to achieve those goals. Indeed, Mother was discharged from

her drug treatment program due to her failure to attend and did not participate

in court-ordered random drug testing; when tested in June 2019, Mother was

positive for marijuana and opiates.      Mother also failed to obtain stable

housing. Thus, Mother was not compliant with the family service plan, made

no progress towards alleviating the circumstances that led to Child’s

placement, and showed no indication that those circumstances would be

remedied in any reasonable amount of time. See, e.g., A.N.P., 155 A.3d at

67. Accordingly, a goal change was appropriate.

      We turn now to Mother’s arguments regarding the termination of her

parental rights. We review cases involving the termination of parental rights

according to the following standards.

      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


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     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) (internal citations and quotations

omitted).

     Termination requires a bifurcated analysis:

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing evidence
     that the parent’s conduct satisfies the statutory grounds for
     termination delineated in Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the
     needs and welfare of the child under the standard of best interests
     of the child. One major aspect of the 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). This

Court may affirm the trial court’s decision regarding the termination of

parental rights with regard to any one subsection of section 2511(a). See In

re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We conclude that

termination was proper under section 2511(a)(2).

     The relevant subsections of 23 Pa.C.S.A. § 2511 provide:

     (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:

                                     ***



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            (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.A. § 2511.

      To satisfy the requirements of Section 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”

See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998).             The

grounds for termination are not limited to affirmative misconduct, but concern

parental incapacity that cannot be remedied.      In re Z.P., 994 A.2d 1108,

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward

the reasonably prompt assumption of full parental duties. Id.




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     Here, to be reunited with Child, Mother was required to complete the

following objectives, (1) attend intensive outpatient drug and alcohol

treatment and follow all recommendations; (2) refrain from using any illegal

substance; (3) participate in mental health services; (4) take the appropriate

psychiatric medication and remain under the supervision of a doctor in doing

so; (5) obtain stable housing; and (6) attend weekly supervised visits with

Child. Mother failed to complete a single objective. Accordingly, we discern

no error in the trial court’s finding that clear and convincing evidence

supported the termination of Mother’s parental rights pursuant to Section

2511(a)(2). See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.

     Next, we must consider whether Child’s needs and welfare will be met

by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In

this context, the court must take into account whether a bond exists between

child and parent, and whether termination would destroy an existing,

necessary and beneficial relationship.” Id. The court is not required to use

expert testimony, and social workers and caseworkers may offer evaluations

as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.

     We have stated:

     [b]efore granting a petition to terminate parental rights, it is
     imperative that a trial court carefully consider the intangible
     dimension of the needs and welfare of a child—the love, comfort,
     security, and closeness—entailed in a parent-child relationship, as
     well as the tangible dimension. Continuity of the relationships is
     also important to a child, for whom severance of close parental
     ties is usually extremely painful. The trial court, in considering
     what situation would best serve the child[ren]’s needs and

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      welfare, must examine the status of the natural parental bond to
      consider whether terminating the natural parents’ rights would
      destroy something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121, quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000). The trial court may equally emphasize the safety needs of the child

and may consider intangibles, such as the love, comfort, security, and stability

the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,

103 (Pa. Super. 2011); In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).

Where there is no evidence of a bond between the parent and child, it is

reasonable to infer that no bond exists. Id. “[A] parent’s basic constitutional

right to the custody and rearing of . . . her child is converted, upon the failure

to fulfill . . . her parental duties, to the child’s right to have proper parenting

and fulfillment of [the child’s] potential in a permanent, healthy, safe

environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal

citations omitted).

      Here, the record supports the existence of a bond between Mother and

Child, in that Child is glad to see Mother. However, testimony also supports

the court’s conclusion that the bond is not parental and that the child/parent

bond exists between Child and Paternal Grandmother.              See Trial Court

Opinion, 7/23/19, at 6. Testimony established that Child was thriving in her

foster placement with a foster parent who provided for her emotional,

physical, and developmental well-being, and that Child wished to be adopted

by Paternal Grandmother. Thus, we discern no abuse of discretion in the trial




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court’s conclusion that Child’s needs and welfare are best served by

termination.

      Accordingly the trial court did not commit an abuse of discretion in

terminating Mother’s parental rights. We also agree with Attorney Hayburn

that Mother’s issues are frivolous. We have independently reviewed the record

and find no other issues of arguable merit that Mother could pursue on appeal.

Accordingly, we affirm the trial court decree and order and grant counsel’s

petition to withdraw.

      Decree and order affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/19




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