J-S09018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: I.S.C.P. A/K/A I.C.P., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.A.P. A/K/A D.P.,              :
    MOTHER                                     :
                                               :
                                               :
                                               :   No. 3125 EDA 2016

                       Appeal from the Order August 8, 2016
                  in the Court of Common Pleas of Bucks County
                        Civil Division at No: No. 2016-9060


BEFORE:       SHOGAN, STABILE, and PLATT*

MEMORANDUM BY STABILE, J.:                           FILED FEBRUARY 23, 2017

         D.A.P. a/k/a D.P. (“Mother”) appeals from the decree entered on

August 16, 2016, in the Court of Common Pleas of Bucks County,

involuntarily terminating her parental rights to her daughter, I.S.C.P. a/k/a

I.C.P. (“Child”), born in August of 2013. Counsel for Mother has filed also

with this Court both a petition for leave to withdraw as counsel and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967) and its progeny.

We affirm, and grant counsel’s petition to withdraw.1

         The trial court set forth the following factual and procedural history.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    By separate decree entered on August 16, 2016, the trial court
involuntarily terminated the parental rights of R.C. (“Father”). He did not
file a notice of appeal.
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     Child’s drug test [at birth] was positive for unprescribed
     medication, oxycodone, which prompted the Agency [Bucks
     County Children and Youth Social Services Agency] to implement
     a Safety Plan regarding Mother. The Safety Plan provided that
     Mother was not to be alone with Child in an unsupervised
     setting.

     Following ongoing concerns, an Emergency Order was sought in
     Dependency Court, and on August 7, 2014, Child was placed in
     the legal and physical custody of the Agency. A subsequent
     Shelter Care Order was entered on August 11, 2014.
     Approximately six (6) weeks later, Child was adjudicated
     dependent. On May 4, 2016, the Agency filed a Petition to
     Terminate Parental Rights as to Mother and Father pursuant to
     23 Pa.C.S. § 2511(a)(2), (5), and (8).

Trial Court Opinion, 9/21/16, at 1-2 (citations to record omitted) (footnote

omitted).

     The trial court held a hearing on August 8, 2016, during which the

Agency presented the testimony of its caseworker, Ashley Lorenz.     Mother

did not personally appear for the hearing, but she was represented by court-

appointed counsel.

     By decree dated August 8, 2016, and entered on August 16, 2016, the

trial court involuntarily terminated Mother’s parental rights. Mother timely

filed a notice of appeal on September 6, 2016. On that same date, Mother’s

counsel filed a statement of intent to file an Anders brief in lieu of a

statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(c)(4). See In re J.T., 983 A.2d 771, 774 (Pa.

Super. 2009) (holding that decision of counsel to follow Rule 1925(c)(4)

procedure in a termination of parental rights case was proper).          On


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September 21, 2016, the trial court filed its opinion pursuant to Rule

1925(a).

        On November 16, 2016, Mother’s counsel filed a petition with this

Court requesting to withdraw from representation and submitted a brief

pursuant to Anders, supra.        We address counsel’s Anders brief at the

outset.    See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005) (“‘When faced with a purported Anders brief, this Court may not

review the merits of the underlying issues without first passing on the

request to withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d 1301,

1303 (Pa. Super. 1997)). In In re V.E., 611 A.2d 1267 (Pa. Super. 1992),

this Court extended the Anders principles to appeals involving the

termination of parental rights.    To withdraw pursuant to Anders, 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 [Anders] brief to the [appellant]; and 3) advise the
        [appellant] that he or she has the right to retain private counsel
        or raise additional arguments that the [appellant] deems worthy
        of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)).     With respect to the third requirement of Anders, that counsel

inform the appellant of his or her rights in light of counsel’s withdrawal, this

Court has held that counsel must “attach to their petition to withdraw a copy


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of the letter sent to their client advising him or her of their rights.”

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

      Additionally, an   Anders   brief   must   comply   with the   following

requirements:

      (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Instantly, counsel filed a petition to withdraw certifying that she had

reviewed the case and determined that Mother’s appeal was frivolous.

Counsel also filed a brief that includes a summary of the history and facts of

the case, the issue raised by Mother, the facts that arguably support the

appeal, and counsel’s assessment of why the appeal is frivolous with

citations to relevant legal authority.    Counsel attached to her petition to

withdraw a copy of the letter to Mother advising her that she could obtain

new counsel or raise additional issues pro se. Accordingly, counsel complied

with the requirements of Anders and Santiago.




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       We next proceed to review the issue outlined in the Anders brief. In

addition, we must “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)

(footnote omitted). Counsel’s Anders brief raises the following issue for our

review:

       1. Did the trial court commit an error of law and abuse of
       discretion by involuntarily terminating [Mother’s] parental rights?

Anders Brief at 2.       The Agency counters that it established by clear and

convincing evidence the statutory grounds to terminate Mother’s parental

rights and that severing Mother’s rights would serve Child’s best interest.2

       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).

____________________________________________


2
  Similarly, the guardian ad litem filed a brief in support of the decree
involuntarily terminating Mother’s parental rights.



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      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).

      We need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm.       In re

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

conclude that the certified record sustains the trial court’s decision to

terminate under Sections 2511(a)(2) and (b), which provide as follows.

      (a) General Rule.—The rights of a parent in regard to a child
      may be terminated after a petition filed on any of the following
      grounds:

                                     ...

            (2) The repeated and continued incapacity, abuse,
            neglect or refusal of the parent has caused the child
            to be without essential parental care, control or
            subsistence necessary for his physical or mental
            well-being and the conditions and causes of the


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           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(a)(2), (b).

     This Court has stated as follows:

     In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
     2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has caused the child to
     be without essential parental care, control or subsistence
     necessary for his physical or mental well-being; and (3) the
     causes of the incapacity, abuse, neglect or refusal cannot or will
     not be remedied.

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

omitted)). Further, we have stated, “[t]he grounds for termination due to

parental incapacity that cannot be remedied are not limited to affirmative

misconduct. To the contrary, those grounds may include acts of refusal as

well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326,

337 (Pa. Super. 2002) (citations omitted).




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     With respect      to   Section 2511(b),   this   Court has   stated   that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted).       Further, the trial court

“must also discern the nature and status of the parent-child bond, with

utmost attention to the effect on the child of permanently severing that

bond.”     Id. (citation omitted).   However, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.”      In re K.Z.S., 946

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).

     In this matter, the Agency established the following Family Service

Plan (“FSP”) objectives for Mother, in part: complete a substance abuse

evaluation and follow through with all recommendations; maintain suitable

housing; obtain a mental health evaluation and follow through with all

recommendations; and visit with Child regularly. N.T., 8/8/16, at 12-13.

     The trial court found that Mother has not successfully completed any of

the recommended substance abuse or mental health treatment programs.

In addition, the trial court found that Mother has not maintained suitable

housing.    Specifically, the trial court found that Mother “was a resident of

Section 8 housing but was terminated from that program in 2014. In 2015,

Mother was living in a Red Cross Shelter; however, she lost her opportunity


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to continue to reside there due to her violations of the shelter’s rules.” Id.

at 6 (citations to record omitted).    In addition, the trial court found that

Mother “was selected for a supportive housing opportunity. However, to be

the recipient of such housing[,] Mother was required to have custody of

Child. Mother remains, then, without stable housing.” Id.

      Moreover, the trial court found that “throughout the history of the

Agency’s involvement, Mother has been inconsistent with her visits with

Child.”   Id. at 6 (citations to record omitted).   Specifically, the trial court

found as follows:

      At the time of the August [8], 2016 hearing, Mother had not
      visited with Child since February 2016. In October 2015, visits
      by Mother at the foster mother’s home were discontinued due to
      Mother’s threats directed toward the foster mother. And, at one
      point, Mother’s visits with Child were suspended. [ ] Mother was
      unsuccessfully discharged from several parenting programs,
      which programs were incorporated into and partially dependent
      upon her visitation with Child.

Id. at 6-7 (citations to record omitted).

      Upon careful review, the testimony of the Agency’s caseworker, Ashley

Lorenz, supports the foregoing findings of the trial court.        Indeed, Ms.

Lorenz’s testimony demonstrates that Mother’s repeated and continued

incapacity, neglect, or refusal to successfully complete her FSP objectives of

substance abuse and mental health treatment programs, housing, and

visitation has caused Child to be without essential parental care, control, or

subsistence necessary for her physical or mental well-being.       Further, the

causes of Mother’s incapacity, neglect, or refusal cannot or will not be

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remedied. As such, we discern no abuse of discretion by the trial court in

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

     With respect to Section 2511(b), this Court has explained as follows:

     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.
     In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
     mere existence of an emotional bond does not preclude the
     termination of parental rights. See In re T.D., 949 A.2d 910
     (Pa. Super. 2008) (trial court’s decision to terminate parents’
     parental rights was affirmed where court balanced strong
     emotional bond against parents’ inability to serve needs of
     child). Rather, the orphans’ court must examine the status of
     the bond to determine whether its termination “would destroy an
     existing, necessary and beneficial relationship.” In re Adoption
     of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003).           As we
     explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

            [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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).

     Our Supreme Court has stated that, “[c]ommon sense dictates that

courts considering termination must also consider whether the children are

in a pre-adoptive home and whether they have a bond with their foster

parents.”     In re T.S.M., 71 A.3d at 268.        The Court directed that, in

weighing the bond considerations pursuant to Section 2511(b), “courts must

keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.

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Court observed that, “[c]hildren are young for a scant number of years, and

we have an obligation to see to their healthy development quickly.          When

courts fail . . . the result, all too often, is catastrophically maladjusted

children.” Id.

       Instantly, the trial court found as follows:

       [T]he record is devoid of testimony or evidence of a beneficial
       relationship between Mother and Child, the existence of which
       would result in a negative effect on Child should Mother’s rights
       be terminated.      The record contains clear and convincing
       evidence that Mother has not made strides toward adequately
       parenting Child. The evidence suggests, unfortunately, that
       Mother has repeatedly failed to pursue the avenues that were
       open to her for assistance through the Agency.            Child is
       deserving of consistent affection and consistent attention to her
       needs and welfare, along with permanence and stability. Child’s
       life cannot continue to remain on hold indefinitely, in hopes that
       Mother will one day be able to act responsibly and consistently
       as her parent.

Id. at 9-10 (citations omitted).

       Further, the trial court found that Child shares a parent-child bond

with her foster mother, with whom she has resided since birth.3 Trial Court

Opinion, 9/21/16, at 8. The trial court also found that Child is thriving in her

foster placement, and that “Ms. Lorenz testified that Child is developmentally

ahead of her age-appropriate benchmarks.”          Id. at 8-9 (citation to record

omitted).    In addition, Ms. Lorenz testified that Child’s foster mother is a

____________________________________________


3
  Ms. Lorenz testified that, at an unspecified time, Child was in another
foster home, but she implied that it was for a brief amount of time. N.T.,
8/8/16, at 16; Trial Court Opinion, 9/21/16, at 8.



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pre-adoptive resource.    N.T., 8/8/16, at 17.   Upon careful review of the

testimonial evidence, we discern no abuse of discretion by the trial court in

concluding that terminating Mother’s parental rights will serve Child’s

developmental, physical, and emotional needs and welfare.

     Finally, our independent review of the certified record reveals no

preserved non-frivolous issue that would arguably support this appeal.

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

terminating Mother’s parental rights pursuant to Section 2511(a)(2) and (b).

     Petition of Jennifer E. Pierce, Esquire, to withdraw from representation

is granted. Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




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