J-S35013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE                              IN THE SUPERIOR COURT OF
ADOPTION OF: I.J.A.                                     PENNSYLVANIA



APPEAL OF: L.R.A.-S., FATHER
                                                      No. 1822 WDA 2016


                    Appeal from the Decree October 28, 2016
                  In the Court of Common Pleas of Erie County
                  Orphans' Court at No(s): 39 In Adoption 2016


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 06, 2017

        L.R.A.-S. (Father) appeals from the decree, entered in the Court of

Common Pleas of Erie County, involuntarily terminating his parental rights to

his minor daughter, I.J.A. (Child), (born 6/2013), pursuant to 23 Pa.C.S.A.

§§ 2511(a)(1), (2), (5), (8), & (b) of the Adoption Act. 1     Father’s counsel

has also filed a petition to withdraw from representation, pursuant to

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

McClendon, 434 A.2d 1185, (Pa. 1981). After careful review, we affirm and

grant counsel’s petition to withdraw.

        Child was born in June 2013 in Marion, Florida. In July 2014, Mother

moved to Erie County, Pennsylvania, with Child; Father remained in Florida

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 23 Pa.C.S. §§ 2101-2910.
J-S35013-17



where he was incarcerated on a probation violation in Marion County jail.2

On October 31, 2014, Child was removed from Mother’s3 care and placed in

the temporary protective custody of Erie County Office of Children and Youth

(ECOCY/the Agency); the Agency had concerns about Mother’s history of

drug abuse, unstable mental health, and unstable housing. On November 4,

2014, the Agency filed a dependency petition alleging that Child was without

proper parental care or control due to Mother’s drug and mental health

issues and Father’s incarceration.             After a hearing, Child was adjudicated

dependent on November 18, 2014.

       After a dispositional hearing in December 2014, the court implemented

permanency plans for Mother and Father.                   Father’s plan included the

following conditions:      that Father contact the Agency upon his release from

prison in order to have a treatment plan, including visitation, developed; and

that Father avail himself of any services that he may benefit from while

incarcerated. At subsequent permanency hearings held in April 2015, June

2015, and October 2015, the court found that Father was not in compliance

with the plan. Following the October 2015 permanency hearing, Child was
____________________________________________


2
  Father has a criminal history dating back to 2010, in Florida, for strong
armed robbery, resisting arrest, fleeing and eluding law enforcement,
battery, and grand theft auto.
3
  On October 29, 2016, the court entered a decree acknowledging that
Mother executed a consent to adopt petition with regard to Child and that
her parental rights were terminated. Decree, 10/27/16. Mother is not a
party to this appeal.



                                           -2-
J-S35013-17



returned to Mother’s care.    In December 2015, Child was removed from

Mother’s care and placed in the protective physical and legal custody of the

Agency. At a January 2016 combined shelter care and permanency hearing,

the court found sufficient evidence was presented to prove that continuation

or return of Child to parents was not in her best interest; the court ordered

the placement goal be changed to adoption.         Child was placed in a pre-

adoptive foster home where she bonded with her foster family.

      On May 11, 2016, the Agency filed a petition to involuntarily terminate

Mother’s and Father’s parental rights to Child. On October 28, 2016, the

court held a termination hearing at which Father, ECOCY caseworkers and

counselors, and Child’s foster mother testified.    On October 28, 2016, the

court entered an order terminating Father’s parental rights to Child.       On

November 23, 2016, Father’s attorney, W. Charles Sacco, Esquire, filed a

timely notice of appeal as well as a statement of intent to file an Anders

brief, alleging that “no-non-frivolous appellate issues exist and [that he]

intends to file a Petition to Withdraw as counsel and brief [and that he] filed

this statement in lieu of a Concise Statement of Errors Complained of on

Appeal pursuant to Pa.R.A.P. 1925(c)(4).”     See In the Interest of J.T.,

983 A.2d 771, 772 (Pa. Super. 2009) (applying Anders procedures and Rule

1925(c)(4) to appeals involving the termination of parental rights).

      Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw representation, he or she must do the following:




                                     -3-
J-S35013-17


      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record . . ., counsel
      has determined the appeal would be frivolous;

      (2) file a brief referring to anything that might arguably 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 defendant and advise him of his
      right to retain new counsel, proceed pro se or raise any
      additional points he deems worthy of the court's attention.

In re: S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (emphasis in

original) (citation omitted). Moreover, “[w]hen considering an Anders brief,

this Court may not review the merits of the underlying issues until we

address counsel’s request to withdraw.” Id. at 1237. In Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the

second requirement of Anders, i.e., the contents of an Anders brief, and

instructed that the brief 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. After our Court receives an Anders brief and is

satisfied that counsel has complied with the aforementioned requirements,

our Court then undertakes an independent examination of the record to

determine whether the appeal is wholly frivolous.     In re: S.M.B., supra.

                                    -4-
J-S35013-17



With respect to the third requirement of Anders, that counsel inform the

defendant of his rights in light of counsel’s withdrawal, this Court has held

that counsel must “attach to [his] petition to withdraw a copy of the letter

sent to [his] client advising him . . . of [his] rights.”   Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      Here, Attorney Sacco filed a petition indicating that he reviewed the

record and determined that an appeal would be frivolous. Petition for Leave

to Withdraw as Counsel, 3/10/17, at ¶ 5. In his petition, counsel refers to

any issues he believes could arguably support an appeal, including anything

in the record that could support an appeal.       Attached to his petition to

withdraw, counsel included a copy of the letter he sent to Father.      In this

letter, counsel informed Father of his intention to seek leave to seek

permission to withdraw because there are no meritorious issues.         Letter,

3/8/17. In that letter counsel also advised Father that he has the right to

retain new counsel, proceed pro se, and to raise any points he believes are

worthy of this Court’s attention. Id. Accordingly, we conclude that counsel

has complied with the aforementioned requirements, and will proceed to

address the merits of the issued raised on appeal as well as conduct our own

independent review of the entire record.

      On appeal, Father presents the following issues for our review:

      (1) Whether the orphan’s court commit[t]ed an abuse of
      discretion or error of law when it concluded that the [Erie County
      Office of Children & Youth (ECOCY)] established grounds for
      termination of parental rights under 23 Pa.C.S.A.              [§§
      ]2511(a)(1)(2)(5) and (8)[?]

                                     -5-
J-S35013-17


     2. Whether the orphan’s court commit[t]ed an abuse of
     discretion or error of law when it concluded that the termination
     of appellant’s parental rights was in the child’s best interest
     pursuant to 23 Pa.C.S.A. [§§] 2511(b)[(1)] including the
     developmental, physical and emotional needs and welfare of the
     child[?]

     We review a trial court’s decision to involuntarily terminate parental

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003).     Our scope of review is limited to determining

whether the trial court’s order is supported by competent evidence.        Id.

Moreover,

     In a proceeding to terminate parental rights involuntarily, the
     burden of proof is on the party seeking termination to establish
     by clear and convincing evidence the existence of grounds for
     doing so. 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.” It is well established that a court must examine the
     individual circumstances of each and every case and consider all
     explanations offered by the parent to determine if the evidence
     in light of the totality of the circumstances clearly warrants
     termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under




                                    -6-
J-S35013-17



23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child set forth in 23 Pa.C.S. § 2511(b)).4

       After reviewing the parties’ briefs, the record, and the relevant case

law, we affirm the trial court’s order involuntarily terminating Father’s

parental rights to Child on the basis of the well-written decision authored by

the Honorable Robert A. Sambroak, Jr. Father was incarcerated in Florida at

the time that Child was adjudicated dependent. Even after his release from

prison in early 2015, he only saw Child on one occasion and talked to her on

the phone twice. During the entire time of her placement, Father never sent

Child birthday cards, gifts or letters. Father was arrested again in Florida in

September of 2015 for unarmed burglary and is currently serving a sentence

of 188 months’ imprisonment.5

       Child is thriving with her pre-adoptive, foster family. The record bears

out the fact that Father has failed to assert a place of importance in Child’s

life while he has been incarcerated, even acknowledging that he was not in a

position to parent Child. See N.T. Termination Hearing, 10/28/16, at 24, 29

(“I don’t have any resources to be able to write . . . letters or call . . . any

____________________________________________


4
  We note that 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). In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc).
5
  Father testified that his conviction is on appeal and that if he is afforded
relief he could receive a reduced sentence of five years’ imprisonment. See
N.T. Termination Hearing, 10/28/16, at 24.



                                           -7-
J-S35013-17



time I want to.”); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa.

2012) (while incarceration neither compels nor precludes termination, it is

potentially determinative factor in court’s conclusion that grounds for

termination exist under section 2511(a)(2) where repeated and continued

incapacity to parent due to incarceration has caused child to be without

essential parental care, control or subsistence and causes of incapacity

cannot or will not be remedied).

      Moreover, Father simply cannot meet the “developmental, physical

and emotional needs and welfare of [Child].” 23 Pa.C.S. § 2511(b). Father

has not seen Child for most of her young life; there is no apparent parent-

child bond. The positive impact that Child’s pre-adoptive foster parents have

had on Child’s emotional and developmental needs is significant and

supports the trial court’s decision to terminate Father’s parental rights under

section 2511(b).    See In the Interest of T.A.C., 110 A.3d 1028 (Pa.

Super. 2015).

      We instruct the parties to attach a copy of Judge Sambroak’s decision

in the event of further proceedings in the matter.

      Order affirmed. Petition to Withdraw granted.




                                     -8-
J-S35013-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




                          -9-
                                                                                   Circulated 06/06/2017 11:26 AM




 IN THE MATTER OF                                       IN THE COURT OF COMMON PLEAS

THE ADOPTION OF                                         OF ERJE COUNTY, PENNSYLVANIA



 I---J--
                                                        ORPHANS' COURT


                           ,P,.i\ -·
                                                        NO. 39 IN ADOPTION 2016

                                          1925 (a) OPINION

           On October 28, 2016, a decree was entered terminating the parental rights of the natural

                        I, ~-S         ·•(Appellant), to his minor child, l 1 11 J ....   A_.

(LA.). He filed a timely Notice of Appeal and a Statement of Intent to File an Anders Brief. A

review of the record shows there are no issues of merit and that the Agency met its burden in

establishing grounds for termination under 23 Pa. C.S.A. §251 l(a)(J), (a)(2), (a)(5), (a)(8), and

(b) by clear and convincing evidence. It is therefore respectfully requested the Superior Court

affirm the decree.

                                PROCEDURAL HISTORY AND FACTS

           On October 31, 2014, I.A. was removed from the care of the mother and placed in the

temporary protective physical and legal custody of the Erie County Office of Children and Youth

(Agency). Petitionfor the Involuntary Termination of Parental Rights to a Child under the Age

o/18 Years, 511/16,p. 2.

           On November 18, 2014, I.A. was adjudicated dependent. Mother was incarcerated in the

Erie County Prison and Appellant was incarcerated in Florida. The Agency was particularly

concerned about the mother's history of drug abuse, unstable mental health, and unstable

housing.     The Agency also noted Appellant had a lengthy criminal history, was currently

incarcerated, and unsure of his release date. His role actively parenting I.A. was negligible. See




                                                                            F       LED
                                                                                lDEC 16 2016
                                                                        I
                                                                            Register of Wills
 Permanency Review Hearing Summary, 10/3/16, p. 1. See also Petition for the Involuntary

 Termination of Parental Rights to a Child under the Age of 18 Years, 5/1/16.

        A dispositional hearing took place on December 5, 2014, Appellant was present at the

 dispositional hearing by telephone. Involuntary Termination of Parental Rights Transcript,

 10/28/16, p. 46.

        The first permanency review hearing took place on April 29, 2015. Appellant was not

present, but was represented by counsel. At the time of this hearing, Appellant was in complete

non-compliance with the treatment plan. Despite contacting the Agency when he was released

from prison in Florida, the numerous contact numbers he left with the Agency were out of

service. At the conclusion of the hearing, the trial court ordered Appellant contact the Agency to

set up a treatment plan and visitation, and ordered the goal remain reunification. Petition for the

Involuntary Termination of Parental Rights to a Child under the Age of 18 Years, 511/16, pg. 6-7.

        The second permanency review hearing took place on July 61 2015. Appellant was not

present, but was represented by counsel. Once again, Appellant failed to comply with the

permanency plan. Nevertheless, the goal of the proceedings remained reunification, since the

mother made significant progress. The matter was scheduled for a three month review. Petition

for the Involuntary Termination of Parental Rights lo a Child under the Age of 18 Years, 5/1/16,

p. 9.

        The third permanency review hearing took place on October 26, 2015. Appellant was not

present due to incarceration in Florida, was not represented by counsel, and once more failed to

comply with the treatment plan or the trial court's directive to contact the Agency. Despite

Appellant's Jack of progress, the child's mother demonstrated significant compliance with her

treatment plan, and the child was returned to her care. A review was scheduled for three months.
 Petition/or the Involuntary Termination of Parental Rights to a Child under the Age of 18 Years,

 5/1/16, p. 10-1 ].

         Unfortunately, I.A. was removed from the mother's care on December 14, 2015 and

returned to the foster family after the mother relapsed on drugs. A second shelter care and

additional permanency review hearing took place on January 6, 20 I 6. Appellant was represented

by counsel, remained incarcerated, and therefore was not present at the hearing. Once again,

Appellant failed to contact the Agency to set up an individualized treatment plan, visitation

schedule, or otherwise contact the child. The goal of the proceedings was changed to adoption.

Services to the Appellant were terminated and the Agency was ordered to file a termination

petition as soon as practicable. Petition/or the Involuntary Terminatton of Parental Rights to a

Child under the Age of 18 Years, 511/16,p. 12-13. Involuntary Termination of Parental Rights

Transcript, 10/28/16, p. 49-50.

        The hearing to terminate Appellant'sparental rights was held on October 28, 2016.

Appellant, though represented, was once again not present and participated in the hearing via

telephone from USP Coleman I, a federal, high security penitentiary in Florida. Involuntary

Termination of Parental Rights Transcript, 10/28/16, p. 4-5, 22.

        The testimony at the termination hearing reviewed many of the concerns the Agency

discussed at the permanency review hearings and thoroughly discussed Appellant's criminal

history and lack of contact with the child. The evidence indicated Appellant was incarcerated at

the Marion County Jail in Florida when the child was adjudicated dependent in Erie,

Pennsylvania.    Involuntary Termination of Parental Rights Transcript, 10/28116, p. 9-11.

        After his release from the Marion County Jail, Appellant travelled to Eric with his mother

to find work and visit the child. Appellant contacted the Agency and had one visit with I.A. in




                                         \+ .
 February, 2015, before returning to Florida to collect his things and move back to the Erie area.

Appellant left a Florida contact number with the Agency. Involuntary Termination of Parental

Rights Transcript, 10/28/16, p. 14, J 6.

        Appellant returned to the Erie area in late March or early April, 2015. At that time his

Florida contact number was supposedly still in service. Shortly thereafter, Appellant either

obtained a different phone number or lost his phone connectivity, leaving the Agency no way to

contact him. Eventually, Appellant moved to Ohio, where he worked for about a week, before

returning to Florida again. Appellant provided an Ohio phone number to the Agency. However,

when caseworkers later attempted to contact him at this number, they found it was no longer in

service. Involuntary Termination of Parental Rights Transcript, l 0/28/16,p. I 9-21.

        After Appellant returned to Florida a second time, he Jived with his mother until he was

arrested for bank robbery without a firearm. Appellant was sentenced to 18 8 months

incarceration and transferred to USP Coleman I to serve his sentence. Appellant stated his

sentence was currently on appeal, and if he won, his sentence would be reduced from 15 years to

five (5) years'. Involuntary Termination of Parental Rights Transcript, 10/28116,p. 21-24.

        Appellant's statements he tried contacting the child, Agency, or foster parents throughout

the course of the dependency proceedings as many as "five, ten, 15,... , or 30 times" were

directly contradicted by the Agency caseworker, social service aide, and the child's foster

mother. The social service aide testified the caseworker gave her a phone number associated with

the Appellant, attempted to contact him at least two times at that number, and left messages for

him, but received no return phone call. These attempts were specifically made for the purpose of

setting up visitation. Involuntary Terminal/on of Parental Rights Transcript, 10/28/16, p. 15,

32.




                                            \S.
        The foster mother testified that over the course of the proceedings, she spoke with

 Appellant twice on the phone. These phone calls occurred "towards the end of February in

 2015" and were right after Appellant's first visit with the child, more than one year before the

 termination proceedings.   The foster mother explained she called Appellant three or four weeks

 in a row, with no response, and asked the Agency if she needed to continue calling him. At that

point, the Agency provided the foster parents' phone number to the Appellant. However,

Appellant never called the foster parents, His only phone contact with the family occurred on

the two occasions he answered his phone when the foster family called him. Involuntary

Termination of Parental Rights Transcript, 10/28/ 16, p. 35-41.

        Both Agency case workers confirmed Appellant had one visit with the child in February

of 20 J 5. Appellant did not contact the caseworker to schedule an additional visit. When the

caseworker tried to reach out to Appellant through the Ohio phone number, she found it was no

longer in service. Appellant did not provide the caseworker with an alternate number or

physical address. Involuntary Termination of Parental Rights Transcript, 10/28/16,p. 46-48.

        While the child was in placement, Appellant only spoke with the child on the phone

twice, and never sent birthday cards, gifts, or letters. Involuntary Termination of Parental Rights

Transcript, 10128116, p. 42~43. When asked to explain this lack of effort, Appellant pointed to

his "lack of resources," or blamed his mother, stating she was trying to call the Agency, and had

been calling the Agency, after he was arrested. Appellant gave no credible explanation for his

inability to send gifts or letters to the Agency for the child, and admitted that his lengthy

incarceration did not put him in a position to parent the child. At some points, Appellant

claimed ignorance of the permanency hearings, and at other times claimed he attempted to

contact Agency workers or left messages numerous times to maintain contact with the child,
suggesting he indeed had notice of the hearings.       Involuntary Termination of Parental Rights

Transcript, 10/28116, p. 24-26, 72-73, 88.

        All Agency workers agreed the child was strongly bonded to her foster parents, who were

willing to adopt her. At the time of the termination hearing, the child was three years old, and

lived with her foster family for at least two years. Essentially, the child's foster family was the

011.ly family she knew. The child looked to her foster parents for comfort and love. Additionally,

the child was bonded to another child near her age in the home. TI1e child had no special needs

and was otherwise healthy and developmentally on track. involuntary Termination of Parental

Rights Transcript, 10/28116, p. 51-54, 60-62.

        Both the permanency caseworker and the ongoing caseworker expressed doubt the child

would recognize the Appellant as her father. In their opinion, she was in no way bonded to him.

Additionally, the ongoing caseworker noted Appellant's lengthy period of incarceration,

spanning at least fl ve, if not up to 15 years, would not put him in a position to parent the child for

a significant period of time. Waiting on the Appellant's release from jail would leave the child

without stability, and keep her from maintaining a healthy attachment to the foster family. The

ongoing and permanency caseworkers agreed it was in the child's best interests Appellant's

rights to her be terminated, Involuntary Terminatlon of Parental Rights Transcript, l 0/28116, p.

51-54, 60-62.

       At the conclusion of the termination hearing, the trial court determined the Agency

established grounds for termination under 23 Pa.C.S.A. §251 I (a)( I), (a){2), (a)(S), and (a)(8) by

clear and convincing evidence and that termination of Appellant's parental rights was in the

child's best interests pursuant to 23 Pa.C.S.A. §2511 (b).




                                             t'7   .
        Counsel for the Appellant filed a Notice of Appeal and Statement of Intent to file an

Anders Brief on November 23, 2016.

                                           ISSUES PRESENTED

        After review of the record, the only issue of possible arguable merit that could be raised

on appeal is one challenging the sufficiency of the evidence supporting the trial court's findings

under subsections (a)(l), (a)(2), (a)(S), (a)(&), and (b).

                                     STANDARD OF REVIEW

        When reviewing a trial court's decision to grant or deny a termination of parental rights

petition, an appellate court should apply an abuse of discretion standard, accepting the trial

court's findings of fact and credibility determinations if they are supported by the record, and

reversing only if the trial court made an error of law or abused its discretion. in re S.P., 47 A. 2d

817, 826 (Pa. 201 l). H[A) decision may be reversed for an abuse of discretion only upon

demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will." Id.

        The appellate court may affirm the trial court's decision regarding the termination of

parental rights with regard to any one subsection of251 l(a). In re MT., 101A.3d1163, 1179

(Pa. Super. 2014)(en bane).

                                           DISCUSSION

       In a termination of parental rights hearing, the initial focus is on the conduct of the

parent. The Agency "must prove by clear and convincing evidence that the parent's conduct

satisfies the statutory grounds for termination delineated in Section 2511 (a)." In re L.M, 923

A. 2d 505, 511 (Pa. Super. 2007). Once these statutory grounds exist, the court may analyze

whether it is in the best interests of the child for parental rights to be terminated. Id One major

aspect of this analysis includes "the nature and status of the emotional bond between parent and
this end, and would disrupt the healthy bond the child currently shares with her foster family.

Involuntary Termination of Parental Rights Transcript, I 0/28116, p. 51-54, 6 0-62.

                                          CONCLUSION

       Appellant consistently demonstrated he was unwilling to maintain meaningful contact

with the child and follow through with Agency directives to preserve his parental rights. Clear

and convincing evidence exists to show termination of Appellant's parental rights was proper

and serves the best interests of the child. It is respectfully requested the Superior Court affirm the

Decree terminating Appellant's parental rights to the child.



               Dated this   L        day of December, 2016



                                                       BY THE COURT:


                                                       fJl!!l:.~fnROAI(, JR. J,
cc:    Kevin Jennings, Esq.
       OCY Legal Department

       W. Charles Sacco, Esq.
       525 West 10111 Street
       Erie, PA 16502

        Patricia Ambrose, Esq.
        731 French Street
        Erie, PA 16501

        Jessica Fiscus, Esq.
        l 00 l State Street, Suite 1400
        Erie, PA I 650 I




                                             Q...o_
