J-S11029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE MATTER OF: THE ADOPTION           :    IN THE SUPERIOR COURT OF
 OF: O.J.B.                               :         PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: N.B.                          :
                                          :
                                          :
                                          :
                                          :    No. 1464 WDA 2019

             Appeal from the Decree Entered August 22, 2019
   In the Court of Common Pleas of Erie County Orphans’ Court at No(s):
                           65 in Adoption 2019

 IN THE MATTER OF: THE ADOPTION           :    IN THE SUPERIOR COURT OF
 OF: T.S.B.                               :         PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: N.B.                          :
                                          :
                                          :
                                          :
                                          :    No. 1465 WDA 2019

               Appeal from the Order Dated August 22, 2019
   In the Court of Common Pleas of Erie County Orphans’ Court at No(s):
                          65A in Adoption 2019


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED APRIL 29, 2020

      N.B. (Father) appeals from the decrees involuntarily terminating his

parental rights to his daughters, O.J.B., born in June 2017, and T.S.B., born

in April 2016 (collectively, Children). Additionally, Father’s counsel (Counsel),

seeks to withdraw from representation pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
J-S11029-20


2009). Upon review, we grant Counsel’s petition to withdraw and affirm the

termination of Father’s parental rights.

      Children were placed in the custody of Erie County Office of Children and

Youth (the Agency) on August 7, 2018, due to conditions associated with the

homelessness of Father and A.B. (Mother). N.T., 8/22/19, at 4. Also, the

Agency learned that Children were injured as a result of domestic violence

between Father and Mother, including non-specified bruising to O.J.B. and an

eye injury to T.S.B. Id. at 4, 25. As a result of Children’s injuries, Father was

charged with crimes related to child endangerment, which were pending at

the time of the underlying proceeding. Orphans’ Court Opinion, 10/2/19, at

6 n. 3.

      Children were adjudicated dependent on August 27, 2018. The Agency

established permanency goals of reunification and required Father and Mother

to comply with the following family service plan (FSP) objectives: complete

mental health services, which included anger management and domestic

violence counseling; complete drug and alcohol services; participate in

random urine drug screens; maintain gainful employment; maintain safe and

stable housing; and participate in a parenting program that included hands-

on education during supervised visits with Children. Id. at 5-6.

      Permanency review hearings occurred on November 14, 2018 and May

13, 2019. The juvenile court found that Father did not comply with any of his




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FSP objectives during either of the review periods.          The court changed

Children’s permanency goal to adoption on May 13, 2019.

         On July 3, 2019, the Agency filed petitions for the involuntary

termination of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), and (b).         A hearing occurred on August 22, 2019,

during which the Agency presented the testimony of its caseworker, Melina

Harden. Father and Mother testified on their own behalf. During the hearing,

Children, then two and three years old, were represented by guardian ad litem

Christine Konzel, Esquire, who cross-examined all of the witnesses and argued

on the record and in open court that it was in Children’s best interests for the

parental rights of Father and Mother to be terminated.1 See N.T., 8/22/19,

at 53.




____________________________________________


1 Pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for his or her legal interests, which our Supreme Court
has defined as the child’s preferred outcome. See In re T.S., 192 A.3d 1080
(Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017)). Further, the T.S. Court held, “if the preferred outcome of a child is
incapable of ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his or her best
interests; as such, the mandate of Section 2313(a) of the Adoption Act that
counsel be appointed ‘to represent the child,’ 23 Pa.C.S.A. § 2313(a), is
satisfied where the court has appointed an attorney-guardian ad litem who
represents the child’s best interests during such proceedings.” T.S., 192 A.3d
at 1092-1093.




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        By decrees dated August 22, 2019, and entered August 27, 2019, the

orphans’ court involuntarily terminated Father’s and Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). On September 23,

2019, Father timely filed notices of appeal, which this Court consolidated sua

sponte.2 That same day, Father’s court-appointed counsel filed a statement

of intent to file a brief pursuant to Anders v. California.3 See In re J.T.,

983 A.2d 771, 774 (Pa. Super. 2009) (holding that decision of counsel to

follow Pa.R.A.P. 1925(c)(4) procedure in a termination of parental rights case

was proper). The orphans’ court filed its Rule 1925(a) opinion on October 2,

2019.




____________________________________________


2   Mother did not file notices of appeal.

3   Pa.R.A.P. 1925(c)(4) provides:

        (c) Remand.

                                           ...

           (4) In a criminal case, counsel may file of record and serve on
           the judge a statement of intent to file an Anders/McClendon
           brief in lieu of filing a Statement. If, upon review of the
           Anders/McClendon brief, the appellate court believes that there
           are arguably meritorious issues for review, those issues will not
           be waived; instead, the appellate court may remand for the
           filing of a Statement, a supplemental opinion pursuant to Rule
           1925(a), or both. Upon remand, the trial court may, but is not
           required to, replace appellant's counsel.

Pa.R.A.P. 1925(c)(4).


                                           -4-
J-S11029-20


      On December 23, 2019, Counsel filed a petition with this Court

requesting to withdraw from representation, and submitted a brief pursuant

to Anders and Santiago.       We begin by reviewing Counsel’s request to

withdraw. 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)).

      This Court “extended the Anders principles to appeals involving the

termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014).

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 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).


                                     -5-
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      Additionally, an   Anders brief must comply with            the   following

substantive 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.

Santiago, 978 A.2d at 361.

      Instantly, Counsel filed a petition to withdraw certifying that he reviewed

the case and determined that Father’s appeal was frivolous. Counsel also filed

a brief that includes a summary of the history and facts of the case, the issues

raised by Father, the facts that arguably support the appeal, and Counsel’s

assessment of why the appeal is frivolous with citations to relevant legal

authority. Finally, Counsel attached to his petition a letter he sent to Father

pursuant to Millisock, supra.        Therefore, Counsel complied with the

requirements of Anders and Santiago.

      We must next “conduct a review of the record to ascertain if on its face,

there are non-frivolous issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.

2018) (en banc).

      Counsel’s Anders brief raises the following two issues for our review:

                                      -6-
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      I.   DID THE ORPHANS’ COURT COMMIT AN ABUSE OF
      DISCRETION OR ERROR OF LAW WHEN IT CONCLUDED THAT THE
      AGENCY    ESTABLISHED    SUFFICIENT    GROUNDS    FOR
      TERMINATION UNDER 23 Pa.C.S.A. § 2511?

      II.  DID THE ORPHANS’ COURT COMMIT AN ABUSE OF
      DISCRETION OR ERROR OF LAW WHEN IT CONCLUDED THAT
      TERMINATION OF [FATHER’S] PARENTAL RIGHTS WAS IN THE
      CHILDREN’S BEST INTERESTS UNDER SECTION 2511(b)?

Anders Brief at 7.

      At the outset, we recognize:

      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 omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing evidence
      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis

                                      -7-
J-S11029-20


     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. See In re

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

conclude that the certified record supports the decrees pursuant to Section

2511(a)(2) and (b), which provides:

     (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 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) and (b).

                                      -8-
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      This Court has explained that the moving party must produce clear and

convincing evidence with respect to the following elements of Section

2511(a)(2): (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003).

      Pursuant to Section 2511(a)(2), parents are required to make diligent

efforts   towards   the    reasonably   prompt   assumption   of   full   parental

responsibilities.   In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002).           A

parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous.     Id.   Further, the grounds for termination under Section

2511(a)(2), 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. Id. at 337.

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


                                        -9-
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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).

      Here, the orphans’ court explained:

      [I]n support of its order terminating Father’s parental rights, the
      court finds that[,] by his own admission[,] Father: (1) [s]uffers
      from untreated mental illness; (2) is essentially homeless (he
      occasionally stays with his mother); (3) is unemployed and not
      actively seeking employment; and, accordingly, (4) has failed to
      establish and maintain a lifestyle that would permit him to provide
      long-term care for Children. The court further finds that based on
      the credible testimony of the Agency caseworker, Ms. Harden,
      unrebutted by Father, Father failed to comply with required
      services both before and after his periods of incarceration in late
      2018, and early 2019. Father failed to attend any mandated urine
      drug screens, which he understood were a necessary first step to
      obtaining visitation with Children. He has a history of substance
      abuse dating back to 2004, and has current drug-related charges
      pending, yet he refused recommended drug and alcohol
      treatment. To the extent Father asserts he was hindered in
      complying with the permanency plan by lack of transportation, the
      court finds his excuse wholly lacking in merit. Ms. Harden testified
      that Father repeatedly missed meetings, appointments, and urine
      drug screens without advance notice. Were [Father] serious about
      obtaining the Agency’s help in meeting his responsibilities under
      the permanency plan, he could and should have contacted the
      Agency to address his difficulties.

      The court does not doubt that Father loves Children and desires
      their return; . . . Unfortunately, no evidence was presented to
      support a conclusion that the current conditions and causes of
      Father’s parental incapacity will be remedied in the foreseeable
      future. . . .


                                     - 10 -
J-S11029-20


Orphans’ Court Opinion, 10/2/19, at 9-10.

      Our review supports the court’s findings. The Agency caseworker, Ms.

Harden, testified that Father and Mother arrived late for Children’s

adjudication hearing. N.T., 8/22/19, at 6. Ms. Harden testified that Father

and Mother entered the courthouse after the hearing concluded and as she

was leaving; however, she and her supervisor had an opportunity to speak

with them. Id. at 6-7. Ms. Harden testified:

      Q. And what was discussed at that time with the parents?

      A. We had addressed with them that they were going to be offered
      the court-ordered treatment plan, mental health services, drug
      and alcohol and so on. They were going to need to remain in
      contact with me, because I was going to have to set them up for
      urines. . . . I gave them my contact information at that time, and
      we had just again, reiterated multiple times, the biggest thing was
      to remain in touch, to go to [the lab] for urines so they could have
      [supervised] visits [with Children].

Id. at 7.

      Ms. Harden testified that during the first permanency review period, she

attempted to meet with Father and Mother on more than one occasion to

discuss their court-ordered treatment plan, but they did not keep their

appointments. Id. at 9-10. Ms. Harden testified that Father and Mother never

inquired about transportation or requested that she provide them with bus

passes. Id. at 10. In addition, the parents did not provide Ms. Harden with

their home address. Id. During a telephone call with Father on October 4,

2018, in an attempt to schedule an appointment, Ms. Harden stated, “He was




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extremely agitated. It was very hard to keep the dialogue going with him,

and I did have to end that phone call due to him being so agitated.” Id.

      Ms. Harden testified that she finally met with Father on December 20,

2018, when he was incarcerated. Id. at 14. Ms. Harden explained that at an

unspecified time after the first permanency review hearing, Father was

incarcerated on criminal charges involving possession of drug paraphernalia

and weapons, and the criminal case was pending at the time of the underlying

proceeding. Id. at 8, 14. Ms. Harden testified that during her conversation

with Father in prison, he “was completely in denial about the reasons why

[C]hildren were removed. He placed all the blame for the circumstances on

[M]other, [and] took no responsibility for the domestic violence they were

engaging in.” Id. at 15.

      Ms. Harden further testified that Father was released from prison at an

unspecified time, but was re-incarcerated on February 10, 2019, through April

12, 2019, due to criminal charges involving a physical altercation with Mother.

Id. at 16.    Upon his release from this incarceration, Ms. Harden stated,

“[Father] did come to the Agency to visit prior to the permanency review

[hearing] in May of [2019].” Id. at 17. Ms. Harden reiterated the permanency

plan requirements to Father, and testified that he understood what he needed

to do to reunify with Children. Id. However, Father did nothing to remedy

the conditions which led to Children’s placement. Id. at 17-18.




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       Specifically, because Father did not comply with drug urinalysis testing,

Father did not have supervised visitation with Children from the time of their

placement in August of 2018. Id. at 8-9, 18. Ms. Harden testified that Father

tried to see Children at their kinship care home on multiple occasions, “but

the kinship family did not allow him to see them.” Id. at 26. She explained

that approximately one month before the termination hearing, Father went to

the kinship home, which resulted in the police being called, a 302 petition 4

being filed, and Father being admitted to the hospital for 10 days. Id. at 26-

27.

       Father testified, “the reason why I was 302’d was because I actually got

naked to show my sign of faith, and to show that I, like, you know, have faith

in God. And I didn’t see anything like they were trying to say. I believe that

I was showing my faith to God, that I believe that what I was being shown

was his plan. And since then, I still continue being led through people and

different signs of metaphoric communication through people.”         Id. at 34.

Father testified that following a drug and alcohol assessment, it was


____________________________________________


4 Section 302 of the Mental Health Procedures Act, 50 P.S. § 7302, provides:
“Emergency examination may be undertaken at a treatment facility upon the
certification of a physician stating the need for such examination; or upon a
warrant issued by the county administrator authorizing such examination; or
without a warrant upon application by a physician or other authorized person
who has personally observed conduct showing the need for such examination.”
50 P.S. § 7302(a) (Involuntary emergency examination and treatment
authorized by the physician--not to exceed one hundred twenty hours)
(amended October 24, 2018, effective April 22, 2019).


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recommended that he “do inpatient.” Id. at 33. Father explained, “My reason

why I didn’t [enter inpatient drug and alcohol treatment] is because . . . since

I was released the last time from prison, I’ve sought out a spiritual

enlightenment in God, and seen miraculous things, not hallucinations from

drugs.” Id. at 34. Father testified that he was not treating for mental health

illness because “I just turned it back over to God, . . . and I’ve been just going

through this spiritual journey.” Id. at 35, 44.

      With respect to whether he has safe and stable housing, Father testified,

“Right now, I’m not doing so well with that, because I’ve been following a

spiritual quest, a journey, because I believe it will bring my kids back to me.”

Id. at 35-36. On cross-examination by the guardian ad litem, Father stated

that he does not have permanent housing, but “I stay with my mom here and

there.” Id. at 50. Moreover, Father acknowledged “I’m not prepared . . . at

this time to actually take my kids back, anything like that. . . .” Id.

      In sum, the evidence demonstrates that Father’s repeated and

continued incapacity has caused Children to be without essential parental

care, control or subsistence necessary for their physical or mental well-being.

We discern no abuse of discretion by the court in concluding that the causes

of Father’s incapacity cannot or will not be remedied, and thus we do not

disturb the court’s conclusion that the Agency satisfied its evidentiary burden

pursuant to Section 2511(a)(2).




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      We next review the orphans’ court’s determination pursuant to Section

2511(b). This Court has emphasized:

      While a parent’s emotional bond with his or her child is a major
      aspect of the subsection 2511(b) best-interest analysis, it is
      nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and should
         also consider the intangibles, such as the love, comfort,
         security, and stability the child might have with the foster
         parent. Additionally, this Court stated that the trial court
         should consider the importance of continuity of
         relationships and whether any existing parent-child bond
         can be severed without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)). In addition, 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.    Moreover, 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. Court observed,

“[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.

      Here, the orphans’ court concluded:

      [P]rimarily due to the young age of Children at the time of
      separation, and the lapse of over a year since they’ve had any

                                     - 15 -
J-S11029-20


      contact with the parents, the court finds that it is unlikely any
      bond between Father and Children persists. Ms. Harden testified
      that Children do not ask for the parents, and actively seek and
      receive parental nurturing from the adoptive resource family. . . .
      Children are placed in a kinship home that provides for their
      developmental, physical and emotional needs and welfare, and
      they are doing well there. . . .

Orphans’ Court Opinion, 10/2/19, at 11.      Again, the record supports the

court’s findings.

      As there was no evidence of a parent-child bond between Father and

Children, it was reasonable for the court to infer that no bond exists. See In

re K.Z.S., 946 A.2d at 762-763. Ms. Harden testified that Children last saw

Father approximately one year prior, in August 2018, when they were one and

two years old, and they “don’t ask about [Father], or speak about him either.”

N.T., 8/22/19, at 18, 25.    She testified that Children are placed in a pre-

adoptive kinship home with their paternal aunt and uncle, whom they consider

“to be like their parents.” Id. at 19-20. Ms. Harden stated that “Children go

to [their kinship parents] for comfort, [and to] have their needs met. They

are just doing extremely well in that home.” Id. at 20. As such, Ms. Harden

opined that termination of Father’s rights would not have a detrimental effect

on Children.   Id. at 18.   On this record, the orphans’ court did not err in

concluding that termination of Father’s parental rights was consistent with

Children’s developmental, physical, and emotional needs and welfare pursuant

to Section 2511(b).




                                    - 16 -
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     In conclusion, 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 from representation, and

affirm the decrees terminating Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(2) and (b).

     Counsel’s petition to withdraw granted. Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2020




                                   - 17 -
