J-S44027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ADOPTION OF J'L.M.O.                      :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
 APPEAL OF: J.M.O., NATURAL                :
 MOTHER                                    :
                                           :
                                           :
                                           :
                                           :   No. 530 WDA 2019

              Appeal from the Decree Entered March 22, 2019
   In the Court of Common Pleas of Erie County Orphans' Court at No(s):
                           133 In Adoption 2018


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED OCTOBER 18, 2019

      J.M.O. (“Mother”) appeals from the decree terminating her parental

rights to J’L.M.O. (“Child”). Counsel has filed a petition to withdraw as counsel

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude the

trial court did not abuse its discretion in terminating Mother’s parental rights

and agree with counsel that Mother’s appeal is wholly frivolous. We therefore

grant counsel’s petition to withdraw and affirm the trial court decree.

      Child was born in September 2017, and suffered from drug withdrawal

symptoms at birth. The court entered an emergency protective order for Child,

and, after a shelter care hearing, the court found that it would not be in Child’s

best interest to return to Mother at that time. In October 2017, the trial court

adjudicated Child dependent. Mother stipulated to the adjudication of

dependency. The grounds for the adjudication included, among other things,
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that Mother had a severe drug addiction that affected her ability to safely

parent Child, and Mother had reported her use of cocaine and illegally-

obtained Vicodin; Mother tested positive for cocaine and opiates at the time

of Child’s birth and Child suffered from withdrawal symptoms; the Erie County

Office of Children and Youth (“OCY”) had significant concerns regarding

Mother’s ability to safely parent Child as she was observed to be under the

influence of narcotics and incoherent, and hospital staff had to remove Child

from Mother’s room due to safety concerns. Trial Court Opinion, filed May 10,

2019, at 1-2 (“1925(a) Op.”).

     Mother had the following permanency plan goals:

        1. Participate in a drug and alcohol assessment with the
        inclusion of information from the ongoing and intake
        caseworkers and follow all recommendations;

        2. Refrain from the use of drugs and/or alcohol and submit
        to random urinalysis testing through the color code system
        at the Esper Treatment Center;

        3. Obtain and/or maintain gainful employment to ensure
        that she can meet the basic needs of [Child] and provide
        proof of such income;

        4. Participate in a parenting program that addresses . . .
        [Child’s] needs and incorporate these parenting concepts
        during visitation;

        5. Provide the name and pertinent information for any and
        all household members on an ongoing basis to ensure that
        the household members are appropriate and safe to be
        around children;

        6. Sign any and all releases of information as requested by
        the Agency regarding [Child];

        7. Sign any and all releases of information as requested by
        the Agency regarding past, current and future drug and

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          alcohol treatment, mental health treatment and medical
          treatment for herself;

          8. Cooperate with providing information regarding the
          paternity of [Child];

          9. Attend all medical appointments for [Child]; and

          10. Participate in a mental health        assessment    and
          participate in any recommendation.

Id. at 2-3.

       In December 2018, OCY filed a petition to terminate Mother’s parental

rights to Child. At a hearing, the case supervisor, Lisa Langer, testified that

between October 2017 and October 2018, Mother had failed to show for 123

urine tests and had tested positive for narcotics five times. N.T., 3/7/19, at

12. At the July 2018 permanency review hearing, the court had told Mother

she needed to be 100% compliant with the treatment plan by October 2018.

Id. Mother, however, tested positive for cocaine in August 2018 and had drug-

related charges filed against her in September 2018. Id. at 12-13. Although

Mother spent two weeks in drug treatment, she discharged herself before

completion of the program. Id. at 13. Further, Mother attended a mental

health evaluation, but failed to follow through with the recommended

medication and counseling. Id. Mother did not attend parenting training and

failed to cooperate with OCY, as she did not identify Child’s father until June

2018,1 and did not allow caseworkers to visit her home. Id. at 13, 25, 28.


____________________________________________


1  The Court also terminated the parental rights of K.H. (“Father”). Father also
filed an appeal, which we will address by a memorandum to be filed at Docket
No. 565 WDA 2019.

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Mother contacted OCY the day before the March 2019 hearing, but, before

that, Mother’s last contact with OCY was at the October 2018 hearing, and,

prior to that, was on August 21, 2018. Id. at 18.

      Langer testified that when Child was in the neonatal intensive care unit

(“NICU”), Mother only visited him two times. Id. at 14. After his release,

Mother had only one visit with Child, in June 2018. Id. Langer further testified

that she believed it would be in Child’s best interest to terminate Mother’s

parental rights. Id. at 14.

      A permanency case worker at OCY, Gaylene Abbott-Fay, testified that

the foster home that Child has been in since he was discharged from the

hospital is an adoptive resource. Id. at 65-66. The foster parents began

working with Child prior to his discharge. Id. at 67. Child is on track

developmentally. Id. He has thrived in the foster home and receives the

stability, structure, support, and routine he needs. Id. at 66-68. Abbott-Fay

testified that Child’s best interests would be served by terminating Mother’s

parental rights. Id. at 68. She did not believe that terminating Mother’s

parental rights would detrimentally impact Child. Id.

      Mother testified at the hearing and agreed that Child was born drug

dependent, that she did not appear for drug screens on 123 occasions, and

that she did not complete drug treatment or parenting classes. Id. at 37-40.

She further agreed that she was in the “same, if not worse, condition” than

when Child was found dependent. Id. at 41.




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       Following the hearing, the trial court found that OCY established by clear

and convincing evidence that grounds for termination existed under 23

Pa.C.S.A. § 2511(a)(1), (2), (5), and (8),2 and that termination was proper

under 23 Pa.C.S.A. § 2511(b).

       Mother filed a timely Notice of Appeal. Counsel for Mother raises two

issues in her Anders brief:

          A. Whether the orphans’ court committed an error of law
          and/or abused its discretion when it concluded that
          termination of parental rights was supported by clear and
          convincing evidence pursuant to 23 Pa.C.S.A. § 2511(a)(1),
          (2), [(5), and] (8)?

          B. Whether the orphans’ court committed an error of law
          and/or abused its discretion when it concluded that
          termination of parental rights was supported by clear and
          convincing evidence pursuant to 23 Pa.C.S.A. § 2511(b)?

Anders Br. at 3 (some capitalization and suggested answers omitted).

       Before reviewing the merits of this appeal, we must first determine

whether counsel has satisfied the requirements for withdrawing as counsel.

See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first
____________________________________________


2 The decree terminating Mother’s rights also list Section 2511(a)(4) as a
ground for termination. However, the trial court’s opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a) does not list Section
2511(a)(4) as a ground for termination, and, as Mother’s whereabouts were
known to the CYS, we conclude the subsection is inapplicable here. See 23
Pa.C.S.A. § 2511(a)(4) (“The child is in the custody of an agency, having been
found under such circumstances that the identity or whereabouts of the parent
is unknown and cannot be ascertained by diligent search and the parent does
not claim the child within three months after the child is found.”).

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examining counsel’s request to withdraw”). 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 brief to the defendant; and 3) advise
        the defendant that he or she has the right to retain private
        counsel or raise additional arguments that the defendant
        deems worthy of the court’s attention.

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

banc). Further, in the Anders brief, counsel seeking to withdraw 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. If counsel meets all of the above obligations, “it

then becomes the responsibility of the reviewing court to make a full

examination of the proceedings and make an independent judgment to decide

whether the appeal is in fact wholly frivolous.” Id. at 355, n.5 (citation

omitted).

     We conclude that counsel has complied with all of the above technical

requirements. In her Anders brief, counsel has provided a summary of the

procedural history and facts of the case. Further, counsel’s brief identifies

materials in the record that could arguably support the appeal, and includes



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counsel’s assessment of why those issues are frivolous, with citations to

relevant legal authority. In addition, counsel served Mother a copy of the

Anders brief and advised her of her right to proceed pro se or to retain a

private attorney to raise any additional points she deemed worthy of this

court’s review. Petition to Withdraw, 5/17/19, at ¶ 6; Ex. A. Mother has not

responded to counsel’s petition to withdraw. As we find the technical

requirements of Anders and Santiago are met, we will proceed to the issues

on appeal.

      When we review termination of parental rights cases, we “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings

have support in the record, we then determine if the trial court committed an

error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470,

473 (Pa.Super. 2018). We may reverse a trial court decision for an abuse of

discretion “only upon demonstration of manifest unreasonableness, partiality,

prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d at 826.

      Our Supreme Court has explained the reasons for applying an abuse of

discretion standard of review in termination of parental rights cases:

         [U]nlike trial courts, appellate courts are not equipped to
         make the fact-specific determinations on a cold record,
         where the trial judges are observing the parties during the
         relevant hearing and often presiding over numerous other
         hearings regarding the child and parents. Therefore, even
         where the facts could support an opposite result, as is often
         the case in dependency and termination cases, an appellate

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         court must resist the urge to second guess the trial court
         and impose its own credibility determinations and
         judgment; instead we must defer to the trial judges so long
         as the factual findings are supported by the record and the
         court’s legal conclusions are not the result of an error of law
         or an abuse of discretion.

Id. at 826-27 (citations omitted).

      A party seeking to terminate parental rights has the burden of

establishing grounds for termination by clear and convincing evidence. In re

Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means

evidence “that is so clear, direct, weighty, and convincing as to enable the

trier of fact to come to a clear conviction, without hesitation, of the truth of

the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29

(Pa.Super. 2008)).

      Termination of parental rights is controlled by section 2511 of the

Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under section

2511, the trial court must engage in a bifurcated analysis prior to terminating

parental rights:

         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.



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Id. (citations omitted).

      To affirm the termination of parental rights, this Court need only agree

with the trial court’s decision as to any one subsection of section 2511(a), as

well as section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc). We focus our attention on whether the trial court abused its

discretion by terminating Mother’s parental rights pursuant to section

2511(a)(1), which provides that a parent’s rights to a child may be terminated

if:

         [t]he 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.

23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to

subsection (a)(1) . . . , 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(b).

      Pursuant to 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 re Z.S.W., 946 A.2d at 730. The parental obligation is a “positive

duty which requires affirmative performance” and “cannot be met by a merely

passive interest in the development of the child.” In re C.M.S., 832 A.2d 457,



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462 (Pa.Super. 2003) (quoting In re Burns, 379 A.2d 535 (Pa. 1977)).

Indeed,

          [p]arental 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 his or her physical and
          emotional needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).

     Here, the trial court found that OCY established grounds for termination

under Section 2511(a)(1). 1925(a) Op. at 7-8. The Court explained:

          [Child] was born drug exposed due to [Mother’s] drug use.
          The child was in NICU at the hospital for about a month, yet
          the mother only visited two times, and since his release,
          [Mother] had one visit in June, 2018 with her son. [Mother]
          did nothing to learn how to care for [a] child, especially one
          born under the circumstances as [Child]. Her response to
          being ordered to undergo drug testing was 123 no-shows
          and 5 positive results. Her answer as to why she failed to
          attend testing was “I had trouble with that.” Further,
          ordered to participate in drug therapy, [M]other discharged
          herself after two weeks. After being told by the Court in July,
          2018 that she needed to be 100% compliant with the
          treatment plan, [Mother] tested positive for cocaine in
          August. [M]other admitted to attending no parenting
          training, and never follow[ing] through with mental health
          therapy and medications recommended by an evaluation.
          All this failure and/or refusal for a year to abide by the
          treatment plan devised to help the mother get her son
          returned evidences a complete lack of desire by [Mother] to
          perform parental duties. The conditions which led to


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         [Child’s] placement continue to exist, and in [Mother’s] own
         admission, are worse than October, 2017.

Id. at 7-8.

      The record supports the trial court’s factual findings and it did not abuse

its discretion or err as a matter of law in finding termination proper under

Section 2511(a)(1). Mother has not met any of her permanency plan goals,

remains addicted to drugs, and visited Child only two times while he was in

the NICU and one time since his release from the hospital.

      We next address whether the trial court erred in finding termination

would best meet Child’s developmental, physical and emotional needs and

welfare under Section 2511(b).

      Under Section 2511(b), the court must consider “the developmental,

physical and emotional needs and welfare of the child” to determine if

termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.

§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the

child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This

Court has explained 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). 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.

Importantly, “[t]he mere existence of an emotional bond does not preclude

the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.

2011). Instead, the trial court “must examine the status of the bond to

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determine whether its termination would destroy an existing, necessary and

beneficial relationship.” Id. (internal quotation marks and citation omitted).

      Here, the trial court found that Child was “thriving and developmentally

on target due to the attention provided by his foster parents.” 1925(a) Op. at

8. It found Child was “in a good, stable home and has bonded well with the

potential adoptive parents.” Id. It concluded the termination of [Mother’s]

parental rights is in the best interests of [Child].” Id.

      The record supports the trial court’s factual findings and it did not err as

a matter of law or abuse its discretion in finding termination would best meet

Child’s interests under Section 2511(b). The testimony established that Child

bonded with his foster parents and that he was thriving in their care. Further,

Mother has had minimal contact with Child during Child’s life.

      We agree with counsel that the issues raised in counsel’s Anders brief

are wholly frivolous. Moreover, after an independent review of the record, we

conclude that no other non-frivolous issue exists. Therefore, we grant

counsel’s petition to withdraw and affirm the decree terminating Mother’s

parental rights.

      Petition to withdraw as counsel granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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Date: 10/18/2019




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