J-S43022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADOPTION OF: E.A.N., A MINOR               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
    APPEAL OF: D.N., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :     No. 463 MDA 2019

               Appeal from the Decree Entered February 22, 2019
     In the Court of Common Pleas of Cumberland County Orphans' Court at
                          No(s): 81 Adoptions 2018

    ADOPTION OF: S.N., A MINOR                 :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
    APPEAL OF: D.N., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :     No. 464 MDA 2019

               Appeal from the Decree Entered February 22, 2019
     In the Court of Common Pleas of Cumberland County Orphans' Court at
                          No(s): 82 Adoptions 2018


BEFORE:        GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED OCTOBER 23, 2019

        D.N.    (“Father”)   appeals    from   the   February   22,   2019   Decrees

involuntarily terminating his parental rights to his daughters, E.N., born in

April 2016, and S.N., born in June 2017 (“Children”) pursuant to 23 Pa.C.S. §

2511(a) and (b). Additionally, Father’s counsel, Joseph L. Hitchings, Esquire,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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seeks to withdraw his representation of Father 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).

After careful review, we grant counsel’s Application for Leave to Withdraw as

Counsel, and affirm the orphans’ court’s Decrees.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

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

matter as follows:
            On January 16, 2017, [Cumberland County Children and
     Youth Services (“CYS” or “the Agency”)] became involved with the
     family after it received a referral that Mother tested positive for
     cocaine,      marijuana,     methadone,      phencyclidine,    and
     benzodiazepines. She was pregnant with S.N. at the time. She
     lived with the unborn child’s [F]ather and their nine-month[-]old
     daughter, E.N. After an adjudication hearing on February 13,
     2017, E.N. was adjudicated dependent but remained in the
     custody of her parents.
            Father and Mother retained custody on the condition that
     they begin participation in drug and alcohol treatment. Father
     was to begin participating in the Cumberland-Perry Substance Use
     Disorder program on February 27, 2017, but he never followed
     through. On June 9, 2017, after providing positive drug tests,
     both parents admitted to using crack cocaine. They agreed to a
     safety plan for E.N. where she would reside in the custody of her
     maternal grandparents. The parents’ visits were to be supervised.
            On June [ ], 2017, Mother gave birth to S.N. at home. The
     child was two months premature and required intensive care in
     the hospital. She also was born addicted to drugs. On July 13,
     2017, she was discharged from the hospital. She was adjudicated
     dependent, and placed in a foster home. On that same date, E.N.
     was placed in the custody of her maternal grandparents due to
     the parents’ inability to maintain sobriety.
            Father was unsuccessfully discharged from a drug treatment
     program on August 25, 2017. He scheduled another evaluation
     for September 5, 2017, but failed to appear for that appointment.
     By October 2, 2017, he had missed 11 drug screens. He
     completed a drug and alcohol evaluation on October 6, 2017. He

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      was again recommended for outpatient treatment. Again, he was
      unsuccessfully discharged for his failure to follow-through.
             In early 2018, Father finally began to get his act together.
      On April 13, 2018, he successfully completed outpatient drug and
      alcohol treatment. By the time of the permanency review hearing
      on May 7, 2018, both Mother and Father were in compliance with
      their objectives and making substantial progress toward
      remedying the concerns which led to the children’s dependency.
      After the hearing, E.N. was returned to the custody of her mother.
      She and the children went to reside with Father at the home of
      Mother’s aunt.
             By July of 2018, both parents began to slip again. They
      failed to bring S.N. to an eye appointment needed to manage a
      condition caused by her premature birth. The Agency received a
      referral that the parents had relapsed on cocaine and heroin. Both
      parents admitted to relapsing and using drugs while in the
      presence of the children. As a result, the Agency placed the
      children in the home of their maternal grandparents on July 18,
      2018. All visitation with the parents was again to be supervised.
             In August of 2018, Father stopped his drug and alcohol
      treatment. He set up another drug and alcohol evaluation but
      failed to show for the appointment. On October 5, 2018, Mother
      passed away from a drug overdose.
             Mother’s passing prompted Father to cooperate with his
      drug treatment. He began submitting to random testing and
      providing negative screens. However, his cooperation was short
      [-]lived. He was unsuccessfully discharged from drug and alcohol
      treatment on December 18, 2018.

Orphans’ Court Opinion, 5/8/19, at 1-3 (footnotes omitted).

      On January 7, 2019, CYS filed Petitions to involuntarily terminate

Father’s parental rights. The court appointed both a guardian ad litem and

legal counsel for Children.

      On February 22, 2019, the court conducted an evidentiary hearing on

the Petitions. At the hearing, CYS presented the testimony of Megan Wolfe,

the CYS caseworker, as well as B.C., Children’s maternal grandfather. Father

testified on his own behalf.


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        On February 22, 2019, the court entered Decrees involuntarily

terminating Father’s parental rights to Children.     Thereafter, Father timely

filed Notices of Appeal and Concise Statements of Errors Complained of on

Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),1 contending the trial court

erred in involuntarily terminating his parental rights pursuant to 23 Pa.C.S. §

2511(a) and (b).

        Counsel’s Application to Withdraw

        On June 10, 2019, Father’s counsel filed an Application to Withdraw as

Counsel and an Anders brief. When presented with an 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

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

established by the Pennsylvania Supreme Court in Santiago.2 In addition,

Counsel must provide a copy of the Anders brief to the client with a letter

stating that he or she may retain new counsel, proceed pro se, or raise any


____________________________________________


1   On April 3, 2019, this Court, acting sua sponte, consolidated the appeals.

2 These requirements include: (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.


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additional issues not raised by counsel in the Anders brief. Commonwealth

v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

      Here, Father’s counsel has complied with all of the requirements of

Anders/Santiago. We thus proceed to the merits of the issues raised in the

Anders brief.

      Legal Analysis

      In reviewing cases in which the trial court involuntarily terminated

parental rights, appellate courts must accept the findings of fact and credibility

determinations of the orphans’ court if the record supports them.          In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013).        If the record supports the factual

findings, appellate courts then determine if the orphans’ court made an error

of law or abused its discretion. Id. Where the competent record evidence

supports the court’s findings, we must affirm the orphans’ court even though

the record could support an opposite result. In re Adoption of Atencio, 650

A.2d 1064, 1066 (Pa. 1994).

      “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 in the evidence.” In re M.G., 855 A.2d 68, 73–74 (Pa. Super.

2004) (citations omitted). Appellate courts defer to the orphans’ court that

often has “first-hand observations of the parties spanning multiple hearings.”

In re T.S.M., supra at 267 (citations and quotation marks omitted).

Importantly, “[t]he court cannot and will not subordinate indefinitely a child’s

need for permanence and stability to a parent’s claims of progress and hope

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for the future. Indeed, we work under statutory and case law that

contemplates only a short period of time . . . in which to complete the process

of either reunification or adoption for a child who has been placed in foster

care.”     In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006)

(emphasis in original; citations omitted).

         In addressing petitions to terminate parental rights involuntarily, the

Adoption Act requires court to conduct a bifurcated analysis. See 23 Pa.C.S.

§§2511(a) and (b). Courts first focus on the conduct of the parent, and if the

party seeking termination presents clear and convincing evidence that the

parent’s conduct meets one of the grounds for termination set forth in Section

2511(a), then the court will analyze whether termination of parental rights

will meet the needs and welfare of the child, i.e., the best interests of the

child, as provided in Section 2511(b).        Courts particularly focus on the

existence of the child’s bond with the parent, if any, and the potential effect

on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007). A parent’s basic constitutional right to the custody and rearing of his

child is converted, upon the failure to fulfill his 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).

         While the orphans’ court here found that CYS met its burden of proof

under 23 Pa.C.S. § 2511(a)(2), (5), and (b), we need only agree with its

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

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Section 2511(b), in order to affirm the termination of parental rights. See In

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

Termination Pursuant to Section 2511(a)(2)

      We first conclude that the orphans’ court properly exercised its

discretion by terminating Father’s parental rights pursuant to Section

2511(a)(2). Section 2511 (a)(2) provides for termination of parental rights

where the petitioner demonstrates by clear and convincing evidence that

“[t]he 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.” 23 Pa.C.S. §2511(a)(2); In re Adoption of S.P.,

47 A.3d 817, 827 (Pa. 2012) (citations omitted). The grounds for termination

of parental rights under Section 2511(a)(2) due to parental incapacity 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). This Court has long recognized that a

parent is required to make diligent efforts towards the reasonably prompt

assumption of full parental responsibilities. Id. At a termination hearing, the

orphans’ court may properly reject as untimely or disingenuous a parent’s vow

to follow through on necessary services when the parent failed to co-operate

with the CYS agency or take advantage of available services during

dependency proceedings. Id. at 340.

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      Here, Father asserts that CYS failed to present clear and convincing

evidence that Father has a continuing incapacity to perform parental duties

pursuant to 23 Pa.C.S. § 2511(a)(2). Anders Brief at 10-11. In its opinion,

the orphans’ court disagreed, summarizing Father’s progress towards

reunification as follows:

      At the time of the termination hearing on February 22, 2019,
      Father’s compliance with the permanency plan was minimal. He
      had not met his parenting objective; he had not been cooperating
      with the Agency; he had failed to maintain appropriate and stable
      housing; he had failed to remain drug free; and he had failed to
      maintain his relationship with his daughters. Consequently, we
      found by clear and convincing evidence that grounds existed for
      the termination of his parental rights to E.N. and S.N.

Orphans’ Court Opinion, 5/8/19, at 3.

      Additionally, the orphans’ court credited testimony that Father’s lengthy

history of drug addiction caused Children to experience “instability and unrest

for the majority of their young lives. . . .” Id. at 5. The court found that

Children lacked essential parental care for nearly two years at the time of the

termination hearing, and that Father’s addiction was the source of his

repeated and continued parental incapacity.     Id. at 6.   Further, the court

concluded that Father could not remedy his incapacity. Id.

      Having reviewed the record, we conclude that it supports the findings of

the orphans’ court that Father has not provided Children with the essential

parental care, control and subsistence necessary for their mental and physical

well-being, and that Father is unable to remedy the causes of his parental




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incapacity, neglect or refusal any time in the foreseeable future. Thus, Father

is not entitled to relief.

Termination Pursuant to Section 2511(b)

      We also conclude that, pursuant to Section 2511(b), the orphans’ court

properly determined that termination of Father’s parental rights would be in

the best interests of Children. With respect to Section 2511(b), we consider

whether     termination      of   parental   rights   will   best   serve   Children’s

developmental, physical, and emotional needs and welfare. See In re Z.P.,

994 A.2d 1108, 1121 (Pa. Super. 2010). “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.

      It is sufficient for the orphans’ court to rely on the opinions of social

workers and caseworkers when evaluating the impact that termination of

parental rights will have on a child. In re Z.P., supra at 1121. The orphans’

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). Ultimately, the concern is the needs and welfare of a child. In re

Z.P., supra at 1121.

      Father argues the orphans’ court erred in its analysis of Children’s needs

and welfare because the court failed to assess the impact of severing the bond

between Children and Father. Anders Brief at 11-12. In terminating Father’s

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parental rights, however, the orphans’ court did, in fact, consider the bond

between Father and Children, and found little to no evidence that severing the

bond between Father and Children would have any detrimental effect on

Children.   Orphans’ Court Opinion, 5/8/19, at 7. The court observed that

Children have spent the majority of their lives with their maternal

grandparents, and credited testimony that Children are thriving with their

maternal grandparents, who provide Children with love, stability, and

permanency, and wish to adopt Children. Id. The court concluded that “the

needs and welfare of [Children] would be best served by terminating Father’s

parental rights and allowing them to be adopted by their maternal

grandparents.” Id.

      Our review of the record supports the orphans’ court’s findings. We do

not discern an error of law or abuse of discretion with respect to the orphans’

court’s conclusion, and thus affirm the court’s determination that involuntary

termination of Father’s parental rights is in the best interests of Children.

      Furthermore, our independent review of the record, conducted in

accordance with Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.

Super. 2018), confirms counsel’s assertion that there are no issues of merit

to be considered by this Court and this appeal is, thus, wholly frivolous.

Accordingly, we grant counsel’s Application to Withdraw and affirm the

Decrees involuntarily terminating Father’s parental rights.




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     Counsel’s Application to Withdraw granted. Decrees affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




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