J-S85032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF K.M.G.              :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
                                        :
                                        :
 APPEAL OF: J.G., BIOLOGICAL            :
 FATHER                                 :   No. 1229 WDA 2017

                   Appeal from the Order August 4, 2017
              In the Court of Common Pleas of McKean County
                     Orphans’ Court at No: 42-17-0147

BEFORE: BOWES, J., PANELLA, J. and STABILE, J.

MEMORANDUM BY STABILE, J.:                             FILED MAY 30, 2018

      J.G. (“Father”) appeals from an order in the Court of Common Pleas of

McKean County, Orphans’ Court Division, which terminated involuntarily

Father’s parental rights to his minor son, K.M.G., born in December 2013. We

affirm.

      The Orphans’ Court accurately recounted the history of this case as

follows:

      Child was born on December 19, 2013. Father married Mother on
      November 14, 2014, but Mother and Father were divorced on
      September 1, 2016. Father had lived with Mother in Ohio but was
      incarcerated for a crime involving domestic violence from July 30,
      2015 through January 21, 2016. Mother moved to McKean County
      where her parents reside. Following his release from jail[,] Father
      has been living in his parents’ home in Cleveland, Ohio. Since the
      date that [McKean County Child and Youth Services (“CYS”)] took
      custody of Child, September 11, 2015, [C]hild has been placed
      with the maternal grandparents and Father has been permitted to
      have visitation. He has had only limited employment and has no
      vehicle and cannot drive (although his parents have a vehicle and
      have transported him to McKean County for hearings). Father has
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      visited with Child when he has come to permanency review
      hearings. The visits lasted up to three hours. He has, therefore,
      spent only approximately fifteen (15) to eighteen (18) hours with
      the child out of seven hundred fifty (750) days and has made no
      request or attempt to obtain other periods of visitation. He
      violated a [P]rotection [F]rom [A]buse order to come to McKean
      County to attempt reconciliation with Mother and spent a few days
      but made no attempt to see Child. Father has never sent a gift,
      greeting card, or letter. He has made only a few telephone calls
      to talk to Child or to inquire about him. Father has been instructed
      by [CYS] as to what was required for him to work on obtaining
      custody and he has made only minimal progress but continues to
      have no home, no ability to transport, insufficient income and no
      consistent relationship or communication with Child.

Trial Court Opinion, 8/4/17, at 1-2.

      On September 14, 2015, CYS filed a dependency petition for Child

alleging that Child lacked proper parental care or control pursuant to

42 Pa.C.S.A. § 6302(1). One week later, CYS filed an amended dependency

petition. Following a hearing on October 2, 2015, the Orphans’ Court found

the Child to be a dependent child. On February 2, 2016, the Orphans’ Court

appointed Sean Hvizdzak, Esquire, as counsel for Father in proceedings

related to Child.

      On June 8, 2017, CYS filed a petition for involuntary termination of

parental rights for both parents of Child pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5) and (8). Prior to the hearing, Mother filed a petition for

voluntary relinquishment of parental rights. On August 1, 2017, the Orphans’

Court held a colloquy to confirm Mother’s voluntary relinquishment of parental

rights and then terminated Mother’s parental rights. On the same date, the

court held an evidentiary hearing relating to involuntary termination of

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Father’s parental rights. On August 4, 2017, the Orphans’ Court docketed an

order terminating Father’s parental rights. This timely appeal followed.

        Mr. Hvizdzak has filed an Anders brief1 for Father and a motion to

withdraw as Father’s counsel.          The single issue raised in Father’s brief is

“[w]hether the trial court erred in finding that the evidence admitted at trial

was sufficient to support an involuntary termination of parental rights?”

Anders Brief at 3.

        When counsel files an Anders brief, this Court may not review the

merits of the appeal without first addressing counsel’s request to withdraw.

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013); see

also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“[w]hen 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[ ]”) (citation omitted). This Court extended Anders’ principles to

appeals involving the termination of parental rights. In re V.E., 611 A.2d

1267, 1275 (Pa. Super. 1992).            Thus, counsel appointed to represent an

indigent parent on a first appeal from a decree involuntarily terminating

parental rights may petition this Court for leave to withdraw representation

and submit an Anders brief. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super.

2004).



____________________________________________


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

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      To withdraw, pursuant to Commonwealth v. Millisock, 873 A.2d 748

(Pa. Super. 2005) and its progeny, 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).    We further review the Anders brief for compliance with the

requirements set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009):

      [W]e hold that in the Anders brief that accompanies court-
      appointed counsel’s petition to withdraw, counsel 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.

Id. at 361. “Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.

2007) (en banc).

      Mr. Hvizdzak complied with Anders’ requirements. He filed a motion in

this Court to withdraw as counsel, asserting that he made a conscientious

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review of the record and determined the appeal would be frivolous. He filed

an Anders brief that complies with the requirements set forth in Santiago.

Finally, he attached to the motion to withdraw the letter he sent to Father

advising him of his rights and enclosing a copy of the Anders brief. Thus, we

proceed to a review of the merits.

      In matters involving the involuntary termination of parental rights, our

standard of review is as follows:

      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).

      Section 2511 directs the court to engage in a bifurcated process. The

initial focus is on the conduct of the parent. In Re A.L.D., 797 A.2d 326, 339

(Pa. Super. 2002). The party seeking termination must prove by clear and

convincing evidence that the parent’s conduct satisfies at least one of the nine

statutory grounds delineated in Section 2511(a). If the trial court determines

that the parent’s conduct warrants termination under section 2511(a), it must

analyze the best interests of the child under Section 2511(b), taking into


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primary consideration the child’s developmental, physical, and emotional

needs. In Re R.J.S., 901 A.2d 502, 508 (Pa. Super 2006).

      The Orphans’ Court correctly determined that clear and convincing

evidence existed to support an involuntary termination of Father’s parental

rights under 23 Pa.C.S.A. § 2511(a)(1). Section 2511(a)(1) states that the

court may terminate parental rights after a petition is filed “when the 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.” No post–petition conduct by the parents may be considered

under this provision. 23 Pa.C.S.A. § 2511(b).

      Although the six month period immediately preceding the filing of
      the petition is most critical to the analysis, the court must consider
      the whole history of the case and not mechanically apply the six-
      month statutory provision. In re K.Z.S., 946 A.2d 753, 758 (Pa.
      Super. 2008). The trial court must examine the individual
      circumstances of each case and consider all of the explanations of
      the parent to decide if the evidence, under the totality of the
      circumstances, requires involuntary termination. In re B, N.M.,
      856 A.2d 847, 855 (Pa. Super. 2004)[.]

In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009).

      The record demonstrates that Father both evidenced a settled purpose

of relinquishing his parental claim to K.M.G and failed to perform his parental

duties. Child was born in 2013, and Mother and Father married in 2014. In

late 2015 and early 2016, Father was incarcerated in Ohio for a crime of

domestic violence against Mother. In September 2016, Mother and Father



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divorced, and Mother moved to McKean County, where her parents reside.

Following his release from jail, Father lived in his parents’ home in Cleveland,

Ohio. In February 2017—within six months before the filing of the termination

petition, after failing to reconcile with Mother, Father twice told a CYS

caseworker to begin adoption proceedings, because neither he nor Mother

could care for Child, and Child needed a loving home. In addition, Father

failed to send any gifts, cards or letters to Child or maintain any other

communications with Child either in or out of jail. Even when he spent a week

in the same county as Child, he made no effort at all to arrange to spend time

with Child. As of the date of the termination hearing, Father had spent just

fifteen to eighteen hours with Child, less than a day of his life, in the two years

that Child was with his foster family.

      Father made no use of the resources available to him to preserve a

relationship with Child. By CYS’s request, and later as part of the dependency

court’s order, Father was to obtain mental health and drug and alcohol

evaluations, housing and employment. While Father obtained a mental health

evaluation, he never obtained a drug and alcohol evaluation (even though CYS

provided him with locations in Cleveland to obtain one), never obtained

housing suitable for Child and never was able to maintain employment.

Although Father had funds provided to him in his jail account, he never called

Child to speak to him or to check on his welfare.          Child’s foster mother

obtained the equipment necessary to allow Father to communicate with Child


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through Skype, but Father never provided his contact information necessary

for communicating in that fashion.      Thus, while persons other than Father

attempted to facilitate his reunification with Child, the only affirmative effort

Father made was an attempt to raise money for a one-way bus ticket to

reunite with Mother, which had nothing to do with Child.

      Thus, the evidence satisfies Section 2511(a)(1) by demonstrating

Father’s settled purpose of relinquishing his parental claim to Child and his

failure to perform parental duties. Accordingly, it is unnecessary to address

whether the evidence also satisfies Section 2511(a)(2), (5) or (8).

      Turning to Section 2511(b), the evidence demonstrates that termination

of Father’s parental rights is in Child’s best interests.

      “Section 2511(b) does not explicitly require a bonding analysis
      and the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered” as part of
      our analysis. In re K.K.R.-S., 958 A.2d 529, 533 (Pa Super.
      2008). “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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citing K.K.R.-
      S., 958 A.2d at 533-36). [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.

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

added).




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      In this case, the evidence shows that there was no bond (or virtually

none) between Father and Child.             Father was together with Child for only

fifteen to eighteen hours of the two years that Child was with his foster family.

Child’s foster mother testified that Child was not excited about visiting Father

and did not ask about him. Conversely, the evidence demonstrates that Child

has bonded not only with his foster mother but also with the other members

of his foster family, and that Child is thriving in that home environment.

Therefore, the evidence meets the standards for termination of parental rights

under Section 2511(b).

      Based on the foregoing independent analysis of the trial court's

termination of Father parental rights, we agree with counsel for Father that

the within appeal is wholly frivolous. Our independent review of the record

did not reveal any additional, non-frivolous issues overlooked by counsel.

Therefore,    we   affirm   the     order    terminating     Father’s   parental     rights

involuntarily.

      Order affirmed.       Motion for leave to withdraw as counsel granted.

Renewed      motion   to    quash    reply     briefs   of   guardian   ad   litem     and

Commonwealth denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2018




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