J-S65011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: INVOLUNTARY TERMINATION             :   IN THE SUPERIOR COURT OF
    OF: C.J.S.                                 :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: G.S., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1232 MDA 2019

                Appeal from the Decree Entered June 25, 2019
      In the Court of Common Pleas of Lebanon County Orphans' Court at
                              No(s): 2019-239


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                          FILED JANUARY 31, 2020

        G.S. (“Mother”) appeals from the decree entered June 25, 2019, that

granted the petition of Lebanon County Children and Youth Services (“CYS”),

and involuntarily terminated her parental rights to her son, C.J.S. (born

September 2017) (“Child” or the “Minor Child”).1 Mother’s court-appointed

counsel has filed with this Court a motion for leave to withdraw as counsel and

a brief pursuant to Anders v. California, 87 S. Ct. 1936 (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

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1The decree also involuntarily terminated the parental rights of Child’s father,
Z.G. (“Father”).     Father did not appeal from the decree, nor has he
participated in this appeal.
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involuntary termination matters). We grant counsel’s motion to withdraw and

affirm.

      The orphans’ court set forth the factual and procedural history of this

matter as follows:

            The Minor Child was born [i]n September [] 2017. Lebanon
      County Children & Youth Services (herein “CYS”) became involved
      at the time of birth after receiving reports the Minor Child was
      born addicted to heroin and of Mother’s daily heroin use during
      pregnancy. The report stated Mother had used heroin up until the
      day before the child was born. CYS took custody of the Minor
      Child at birth. The Minor Child tested positive for opioids and
      amphetamines at the time of birth. Elizabeth Getch, casework[er]
      for CYS, testified that Father was notified of the Minor Child’s birth
      but Father indicated he was unable to take the Minor Child
      because he had another child who was close in age and did not
      feel he could care for both children. The Minor Child was released
      from the Hershey Medical Center and placed with a foster family
      on November 1, 2017.

             Ms. Getch met with Mother and Father on November 13,
      2017, to establish goal plans. The [c]ourt heard testimony during
      the termination hearing about Mother’s goals and progress
      completing these goals. Mother’s first goal was to maintain
      regular visits with the Minor Child. The visits were to be one hour
      supervised visits at the courthouse. In 2017, there were six (6)
      possible visits with the Minor Child, but Mother only attended one
      visit. In 2018, there were forty-six (46) possible visits with the
      Minor Child, but Mother only attended nine visits. In 2019, there
      were [a] total of nineteen (19) possible visits, but Mother only
      attended sixteen (16) visits. Mother has given the Minor Child
      three gifts including a book with a handwritten note, a small guitar
      with wire strings and a small keyboard, and a Christmas gift in
      2017. Mother was provided $50.00 for each visit attended to
      reimburse her for travel expenses as she does live two hours away
      from Lebanon County.

           These visits were very difficult for the Minor Child. He would
      cry when dropped off. Throughout the visits, he would often go
      to the door and call for his foster mother whom he called


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      “Mommy.” Mother was very appropriate for all of her visits.
      Mother would change diapers for the Minor Child and soothe him
      if he was upset. Mother testified that at the last visit in June 2019,
      the Minor Child did not ask for his “Mom” or cry during the visit.
      Mother indicated that he even wanted to stay in the visitation
      room at the end of the visit. Mother also testified that she and
      the Minor Child do have a bond and he sometimes calls her
      “Mommy.”

Orphans’ Court Opinion, 8/19/19, at 3-5 (citations to the record omitted).

      In addition to visitation,      Mother’s goals included      meeting and

cooperating with CYS, including informing CYS of her contact information;

signing releases; paying support through the Domestic Relations Office;

attending and participating in Child’s medical appointments; completing a

budgeting course and a parenting class; completing a drug and alcohol and

mental health evaluation; obtaining and maintaining stable housing for six

months; maintaining stable employment; and submitting to random drug

testing. See id. at 5-7.

      Mother made some progress with respect to her goals, as she

maintained contact with CYS, completed a drug and alcohol and mental health

evaluation,   submitted    negative   drug    tests,   and   maintained    stable

employment. See id. However, Mother did not complete a budgeting course

or parenting class, had a small arrearage for her support payments, and failed

to maintain stable housing. See id. Additionally, Mother’s visits were sporadic

and she did not attend Child’s medical appointments. See id. at 4-5.




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       On April 3, 2019, CYS filed a petition to involuntarily terminate the

parental rights of Mother and Father to Child.2 On June 24, 2019, the orphans’

court conducted an evidentiary hearing on the petition. CYS presented the

testimony of Kimberly Miller, a paralegal employed by CYS; Elizabeth Getch,

a CYS case supervisor; and Alex Ridley, an employee of Families United

Network. Mother testified on her own behalf.

       On June 25, 2019, the orphans’ court entered the decree involuntarily

terminating Mother’s parental rights.3 Mother timely filed a notice of appeal

and a concise statement of errors complained of on appeal. On October 7,

2019, Mother’s counsel, Justin C. Gearty, Jr., Esquire, filed an Anders brief

and, on November 4, 2019, a motion for leave to withdraw as counsel, which

we must address before reviewing the merits of this appeal.

       When 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. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).         Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:


____________________________________________


2The orphans’ court appointed Attorney Matthew Karinch as legal counsel for
Child. See Order, 4/3/19.

3 In its opinion, the orphans’ court suggests that it terminated Mother’s
parental rights pursuant to Section 2511(a)(1), (5), and (b). See Orphans’
Court Opinion, 8/19/19, at 9-13.

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     (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.

     Counsel also must provide a copy of the Anders brief to his client.
     Attending the brief must be a letter that advises the client of his
     right to: “(1) retain new counsel to pursue the appeal; (2) proceed
     pro se on appeal; or (3) raise any points that the appellant deems
     worthy of the court[’]s attention in addition to the points raised
     by counsel in the Anders brief.” Commonwealth v. Nischan,
     928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704,
     936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

     After    determining   that   counsel   has   satisfied   these   technical

requirements of Anders and Santiago, only then may this Court “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) (citations and footnote omitted).

     Instantly, Mother’s counsel filed a motion to withdraw and Anders brief

that comply with the foregoing procedural requirements. Accordingly, we next

proceed to review the issues outlined in the Anders brief. Counsel’s Anders

brief presents the following issue: “. . . whether the [l]ower [c]ourt’s



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termination of parental rights is supported by the record and has given

consideration for the welfare of the [c]hild[?]” Anders brief at 3.

      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
      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).




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

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (5), and (b). This Court may affirm

the orphans’ court’s decision regarding the termination of parental rights with

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

See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we

will focus our analysis on 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 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(a)(1), (b).

      We first examine the court’s termination of Mother’s parental rights

under Section 2511(a)(1).      We have explained this Court’s review of a


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challenge to the sufficiency of the evidence to support the involuntary

termination of a parent’s rights pursuant to Section 2511(a)(1) as follows:

      To satisfy the requirements of 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 addition,

            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.

            Once the evidence establishes a failure to perform parental
            duties or a settled purpose of relinquishing parental rights,
            the court must engage in three 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) (internal citations

omitted).

      As it relates to the crucial six-month period prior to the filing of the

petition, this Court has instructed:

      [I]t is the six months immediately preceding the filing of the
      petition that is most critical to our analysis. However, the trial
      court must consider the whole history of a given case and not
      mechanically apply the six-month statutory provisions, but
      instead consider the individual circumstances of each case.

In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (citations omitted). This

requires the Court to “examine the individual circumstances of each case and

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consider all explanations offered by the parent facing termination of his or her

parental rights, to determine if the evidence, in light of the totality of the

circumstances, clearly warrants the involuntary termination.” In re B., N.M.,

856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa.

2005) (citation omitted).

      Regarding the definition of “parental duties,” this Court has stated:

      There is no simple or easy definition of parental duties. Parental
      duty is best understood in relation to the needs of a child. A child
      needs love, protection, guidance, and support. These needs,
      physical and emotional, cannot be met by a merely passive
      interest in the development of the child. Thus, this Court has held
      that the parental obligation is a positive duty which requires
      affirmative performance.

      This affirmative duty encompasses more than a financial
      obligation; it requires continuing interest in the child and a
      genuine effort to maintain communication and association with
      the child.

      Because a child needs more than a benefactor, parental duty
      requires that a parent exert himself to take and maintain a place
      of importance in the child’s life.

      Parental 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 . . . her physical and emotional
      needs.

In re B., N.M., 856 A.2d at 855 (internal citations omitted).




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        In terminating Mother’s parental rights pursuant to Section 2511(a)(1),

the orphans’ court credited testimony that Mother visited Child only

occasionally, and failed to send letters or cards, with the exception of three

gifts. See Orphans’ Court Opinion, 8/19/19, at 11. The court concluded that

Mother did not make any effort to bond with Child or establish a relationship

with him.    See id. Further, the court observed that Mother failed to attend

any medical appointments for Child and only inquired about Child’s well-being

four times. See id. While the court noted that Mother asserted the lengthy

drive was the main reason for failing to attend visits and medical

appointments, the court did not find this excuse valid. See id. at 12. Further,

the court credited testimony that Mother failed to build a lifestyle suitable for

the care of Child and did not prioritize Child. See id. The court concluded,

“Mother has not shown any more than a passive interest in the Minor Child.”

See id. at 11.

        The record supports the orphans’ court’s conclusion. Getch testified that

CYS involvement began shortly after Child’s birth, as Mother reported daily

heroin use continuing until the day before Child was born. See N.T., 6/24/19,

at 8. At birth, Child tested positive for opioids and amphetamines. See id.

Upon Child’s release from the hospital, CYS placed Child with his current foster

family. See id. at 9. Child was adjudicated dependent on November 20,

2017.

        CYS implemented a permanency plan. See id. at 9-10. Mother made

some progress with respect to the plan, particularly with regard to drug use,

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as Getch testified that there were no current concerns about substance abuse.

See id. at 31. Mother was also employed for two years as a waitress. See

id. at 27. However, Mother did not complete budgeting or parenting classes.

See id. at 12-13.

      Further, Mother’s attendance at her one-hour supervised visits was

initially poor, although it was improving at the time of the termination hearing.

See id. at 10. In 2017, Mother attended 1 out of 6 possible visits. See id.

In 2018, Mother attended 9 out of 46 visits, and, in 2019, Mother attended 16

out of 19 visits. See id. Mother’s increase in visits in 2019 corresponded with

CYS offering a $50.00 reimbursement for each visit. See id. at 26-28. At the

visits, Mother engaged appropriately with Child; however, Child would cry

when dropped off at the visitation room, and would go to the door to request

“Mommy.”    See id. at 24, 34. During Child’s time in care, Mother gave Child

one book with a handwritten note as well as two small instruments. See id.

at 15. For Christmas of 2017, Mother gave Child an age appropriate gift. See

id.

      With respect to Child’s medical care, Mother did not attend any medical

appointments. See id. at 11. Ridley testified that she contacted Mother once

per month by phone or letter about upcoming medical appointments for Child.

See id. at 40. Mother never answered the phone or called Ridley back after

the medical appointments to learn what transpired.          See id. at 40-42.

Similarly, Mother never responded to Ridley’s efforts to update her individual

service plan. See id. at 41.

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      Mother testified that she had achieved ten months of sobriety and lived

in a private sober house. See id. at 44-45. Mother attended drug testing

every two weeks and every test was negative. See id. at 45-46. Mother

asserted that she failed to attend Child’s medical appointments because of a

lack of transportation. See id. at 47. Further, Mother testified that she could

finish her parenting and budgeting programs in the near future and had begun

looking for appropriate housing.     See id. at 47-48, 52, 57-58.      Mother

requested additional time to reunite with Child. See id. at 49.

      Upon review, we discern no abuse of discretion and do not disturb the

orphans’ court’s findings and determinations.      CYS filed the petition to

involuntarily terminate Mother’s parental rights on April 3, 2019. The record

confirms that the orphans’ court’s did not abuse its discretion in concluding

that Mother failed or refused to perform parental duties with regard to Child

for a period of at least six months immediately preceding the filing of the

petition. Further, the orphans’ court’s termination of Mother’s parental rights

under Section 2511(a)(1) is supported by competent, clear and convincing

evidence.

      We next consider whether the orphans’ court abused its discretion by

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

requisite analysis is as follows.

      . . . . 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.

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      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.

            [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).

      The orphans’ court found that termination of Mother’s parental rights

best met Child’s needs and welfare, reasoning:

            Finally, it is in the Minor Child’s best interest to remain in
      his current placement. The Minor Child has lived his entire life in
      his current foster home. He has never lived with Mother or had
      regular contact with Mother. Throughout these twenty-one (21)
      months in care, the Minor Child has grown extremely close with
      his foster parents and considers them his “Mom”. The foster
      parents have shown a commitment to the Minor Child’s welfare
      and are able to provide the stable, loving environment he needs.
      The foster parents are planning to adopt the Minor Child.

Orphans’ Court Opinion, 8/19/19, at 12.

      The record supports the orphans’ court’s decision to involuntarily

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


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testified that Child has lived with his foster parents his entire life, and is doing

well in their home. See N.T., 6/24/19, at 22. The foster parents take Child

to his medical appointments and provide Child a consistent schedule and

supportive environment. See id. at 22-23. Getch noted that Child refers to

both of his female foster parents as “mom.” See id. at 22. Getch anticipated

that, if Mother’s parental rights were terminated, Child would be adopted by

his foster parents. See id. at 21. Getch opined that it was in Child’s best

interest to remain with his foster parents. See id. at 35.4

       The credited testimony supports the orphans’ court’s determination that

it would best serve the needs and welfare of Child to involuntarily terminate

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

parental rights would serve only to deny Child the permanence and stability

to which he is entitled. See In re Adoption of C.D.R., 111 A.3d at 1220

(“Clearly, it would not be in [the child’s] best interest for his life to remain on

hold indefinitely in hopes that Mother will one day be able to act as his

parent.”). Accordingly, the orphans’ court did not err in terminating Mother’s

parental rights to Child pursuant to Section 2511(b).


____________________________________________


4 Mother testified that it was hard to get to know Child based on her limited
visitation, acknowledging that Child cries when one of the foster mothers
leaves the room. See N.T., 6/24/19, at 46-47. However, Mother also testified
that Child now runs in to visits by himself, and that she shares a bond with
Child who sometimes refers to her as “mommy.” See id.




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       Based on the foregoing independent analysis of the orphans’ court’s

termination of Mother’s parental rights, we agree with counsel for Mother that

the within appeal is wholly frivolous.5 As such, we affirm the decree of the

orphans’ court, and grant counsel’s motion to withdraw.

       Decree affirmed. Motion to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/31/2020




____________________________________________


5Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel.           See
Commonwealth v. Flowers, 113 A.3d at 1250.

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