J-S82037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.K.P.                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: A.L.P., FATHER

                                                     No. 1308 MDA 2016


                      Appeal from the Decree June 23, 2016
                 in the Court of Common Pleas of Berks County
                          Orphans’ Court at No.: 84598


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 19, 2016

        A.L.P. (Father) appeals the decree of the Court of Common Pleas of

Berks County, entered June 23, 2016, that terminated his parental rights to

his daughter, A.K.P., born in August of 2012, (Child), and changed Child’s

goal to adoption. We affirm.1

        Berks County Children and Youth Services (CYS) filed a petition to

terminate Father’s parental rights to Child on December 15, 2015. The trial

court aptly summarized the events that led CYS to file those petitions in its



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  A.M.P. (Mother) voluntarily relinquished her parental rights by executing a
consent to the adoption of Child on May 16, 2016. The trial court entered a
decree of voluntary termination of her parental rights on June 23, 2016.
J-S82037-16


opinion entered August 12, 2016. We direct the reader to that opinion for

the facts of this case.

       The trial court held a hearing on CYS’ petitions on June 20, 2016.

Testifying at that hearing were Father, from prison by videoconference, and

CYS caseworker, Brynn Fizz. The trial court entered its decree terminating

Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8)

and (b) on June 23, 2016.            Father filed his timely notice of appeal and

statement of errors complained of on appeal on July 12, 2016.                See

Pa.R.A.P. 1925(a)(2)(i).2

       Father’s attorney has filed an application to withdraw as counsel and

an Anders brief in which he raises the following question: “Did the [trial

c]ourt err by terminating [Father’s] parental rights because the evidence

presented by [CYS] was insufficient to support the [trial] court’s decision?”

(Anders Brief, at 5).

       Our standard of review is as follows:

       In an appeal from an order terminating parental rights, our
       scope of review is comprehensive: we consider all the evidence
       presented as well as the trial court’s factual findings and legal
       conclusions. However, our standard of review is narrow: we will
       reverse the trial court’s order only if we conclude that the trial
       court abused its discretion, made an error of law, or lacked
       competent evidence to support its findings. The trial judge’s
       decision is entitled to the same deference as a jury verdict.

____________________________________________


2
  The court entered a Rule 1925(a) opinion on August 12, 2016.               See
Pa.R.A.P. 1925(a)(2)(ii).



                                           -2-
J-S82037-16


In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

     Further, we have stated:

           Where the hearing court’s findings are supported by
     competent evidence of record, we must affirm the hearing court
     even though the record could support an opposite result.

                  We are bound by the findings of the trial court
           which have adequate support in the record so long
           as the findings do not evidence capricious disregard
           for competent and credible evidence. The trial court
           is free to believe all, part, or none of the evidence
           presented, and is likewise free to make all credibility
           determinations and resolve conflicts in the evidence.
           Though we are not bound by the trial court’s
           inferences and deductions, we may reject its
           conclusions only if they involve errors of law or are
           clearly unreasonable in light of the trial court’s
           sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     Here, the trial court terminated Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).        In order to affirm the

termination of parental rights, this Court need only agree with any one

subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Requests to have a natural parent’s rights terminated are governed by 23

Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 2511. Grounds for involuntary termination


     (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:



                                    -3-
J-S82037-16


        (1) 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.

                                  *   *     *

      (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)(1), (b).

      It is well settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence 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.” In

re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted).

      To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform



                                      -4-
J-S82037-16


parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.

Super. 2003).

        With respect to subsection 2511(a)(1), our Supreme Court has

held:

        Once the evidence establishes a failure to perform parental
        duties or a settled purpose of relinquishing parental rights, the
        court must engage in three lines of inquiry: (1) the parent’s
        explanation for his or her conduct; (2) the post-abandonment
        contact between parent and child; and (3) consideration of the
        effect of termination of parental rights on the child pursuant to
        Section 2511(b).

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998)

(citation omitted). Further,

        the trial court must consider the whole history of a given case
        and not mechanically apply the six-month statutory provision.
        The court must examine the individual circumstances of each
        case and consider all explanations offered by the parent facing
        termination of his or her parental rights, to determine if the
        evidence, in light of the totality of the circumstances, clearly
        warrants the involuntary termination.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (citations omitted).

        The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”    23 Pa.C.S.A. § 2511(b).     The Act does not make

specific reference to an evaluation of the bond between parent and child but

our case law requires the evaluation of any such bond. See In re E.M., 620

A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court


                                      -5-
J-S82037-16


is not required by statute or precedent to order a formal bonding evaluation

performed by an expert.     See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.

Super. 2008).

      As an initial matter, we must dispose of the application to withdraw as

counsel filed by Father’s attorney.    Father’s counsel, Gregory S. Ghen,

Esquire, has filed an application with this Court to withdraw from

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

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

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

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

      (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) (citation omitted).

      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.

See In re V.E., supra at 1275. “When considering an Anders brief, this

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

counsel’s request to withdraw.” In re S.M.B., supra at 1237.



                                    -6-
J-S82037-16


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

Supreme Court addressed the contents of an Anders brief, and required

that it:

                  (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, supra at 361. “After an appellate court receives an Anders brief

and is satisfied that counsel has complied with the aforementioned

requirements, the Court then must undertake an independent examination

of the record to determine whether the appeal is wholly frivolous.”                 In re

S.M.B., supra at 1237.

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

the defendant 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).

         Father’s attorney, in his application to withdraw as counsel, has stated

that he has made a conscientious review of the record and concluded that


                                             -7-
J-S82037-16


his client’s appeal is wholly frivolous.        (See Application for Leave to

Withdraw as Counsel, 9/07/16, at unnumbered page 1).            In addition, he

timely mailed his client: (1) a copy of his petition to withdraw; (2) a copy of

his Anders brief; and (3) a letter advising his client of his rights to proceed

pro se or to retain private counsel if the petition is granted and to raise any

additional issues that he deems worthy of consideration.           (See id. at

unnumbered page 2, Exhibit A). Counsel has filed the required Anders brief

in this Court setting forth the background of this case, the issue he believes

might arguably support Appellant’s appeal, his conclusion that the appeal is

frivolous, and the reasons for his conclusion. (See Anders Brief, at 5-9).

Thus, counsel for Father has satisfied the procedural requirements of

Anders and we grant him leave to withdraw as counsel.

      We have examined the opinion entered by the trial court on August 12,

2016 in light of the record in this matter and are satisfied that that opinion is

a complete and correct analysis of this case.

      Accordingly, we affirm the decree of the Court of Common Pleas of

Berks County that terminated Father’s parental rights and changed Child’s

goal to adoption, on the basis of the trial court’s opinion.

      Decree affirmed. Application to withdraw as counsel granted.




                                      -8-
J-S82037-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




                          -9-
                                                                                              Circulated 12/07/2016 04:00 PM




     INRE:                                              IN THE COURT OF COMMON PLEAS
                                                        OF BERKS COUNTY, PENNSYLVANIA
             A.K.P.                                     ORPHANS' COURT DIVISION

                                                      : No. 84598

    Jennifer L. Grimes, Attorney for BCCYS, Petitioner/Appellee
    Cathy Badal, Guardian Ad Litem for A.K.P.
    Gregory S. Ghen, Attorney for A.L.P., Father
    Peter David Maynard, Attorney for A.M.P., Mother

    OPINION, Scott D. Keller, S.J.                                                  Dated: August 12, 2016

             This matter came before the Court on the petitions r-f'Berks County Children and Youth

    Services ("BCCYS") to terminate the parental rights of A.M.P. ("Mother") and A.L.P. ("Father")

    to the child, A.K.P., date of birth Augustt· 2012 ("Child").1 Mother signed a consent to

    adoption, which was confirmed by the Court on June 23, 2016. The petition to involuntarily

    terminate Father's rights was filed on December 15, 2015 on the grounds set forth in 23

    Pa.C.S.A. §251 l(a)(l), (2), (5), and (8). After a series of continuances, a hearing was held on

    June 20, 2016. Mathe; was present with counsel before being excused by the Court. Father was

present via video from SCI Graterford. Father's court-appointed counsel was present for the

hearing. Upon conclusion of the hearing, the Court took the matter under advisement. On June

23, 201.6, the Court granted the petition to terminate Father's parental rights to the Child. Father

filed a Notice of Appeal and a Concise Statement of Matters Complained of on Appeal.

           The statute at paragraph 251 l(a)(l) provides that parental rights in regard to a child may

be terminated on. the grounds that a "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


1
 Mother has two other children by different men. Given that only A.LP. has filed an appeal, this Opinion addresses
only the matter of Child, A.KP.

                                                        1
 relinquishing parental claim to a child or has refused or failed to perform parental duties."

 Paragraph (a)(2) provides that parental rights may be terminated on the grounds that "[t]he

 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." Paragraph (a)(5) provides for termination of parental rights

when a "child has been removed from the care of the parent by the court or under a voluntary

agreement with an agency for a period of at least six months, the conditions which led to the

removal or placement of the child continue to exist, the parent cannot or will not remedy those

conditions within a reasonable period chime, the services or assistance reasonably available to

the parent are not likely to remedy the conditions which led to the removal or placement of the

child within a reasonable period of time and termination of the parental rightswould best serve

the needs and welfare of the child." Paragraph (a)(8) provides that parental rights may be

terminated on the grounds that "[t]he child has been removed from the care of the parent by the

court or under a voluntary agreement with an agency, twelve months or more have elapsed from

the date of removal or placement, the conditions which led to the removal or placement of the

child continue to exist and termination of parental rights would best serve the needs and welfare

of the child." "With respect to any petition filed pursuant to _(a)(l), (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. § 251 l(b).

       "Parental rights may not be preserved by waiting for some more suitable financial

circumstance or convenient time for the performance of parental duties and responsibilities."       In

re: DJS, 737 A.2d 283, 287 (Pa. Super. 1999). The long-standing law of the Commonwealth



                                                   2
 is that the inability of a parent to perform parental duties makes him or her just as parentally unfit

 as a parent who refuses to perform these duties. In re: B.L. W, 843 A.2d 380, 388 (Pa. Super.

 2004). Regardless of inability or refusal, once a parent demonstrates a failure to fulfill his or her·

parental duties, the child's right to fulfillment of his or her potential in a permanent, healthy, safe

enviromnent with proper parenting supersedes the parent's basic constitutional right to custody

and rearing of the child. Id. In terminating the rights of a parent, the court must give "primary

consideration to the developmental, physical, and emotional needs and welfare of the child." 23

Pa.C.S.A. §251 l(b).

        Incarceration is not in and of itself determinative of parental incapacity, but it "can be

determinative of the question of whether a parent is incapable of providing 'essential parental

care, control or subsistence."' In Re: Adoption ofS.P., 47 A.3d. 817, 831 (Pa. 2012); In re R.IS.

& A.JS., 36 A.3d 567, 576 (Pa. 2011), Justice Baer concurring. "The length of the remaining

confinement can be considered as highly relevant to whether 'the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,' sufficient to

provide grounds for termination pursuant to 23 Pa.C.S. § 251 l(a)(2)." In Re: Adoption of SP., 47

A.3d. at 831. If a parent will remain incarcerated for too long of a period of time to permit

unification with a child "in a timely basis in order to provide the child with the permanent home

to which he or she is entitled, then the length of sentence, standing alone, should and does meet

the legal criteria for involuntary termination of the incarcerated parent's parental rights." In re

R.JS. & A.IS., at 576. "[T]he child's need for consistent parental care and stability cannot be put

aside or put on hold simply because the parent is doing what [he] is supposed to do in prison."

In re E.A.P., 944 A.2d 79, 84 (Pa.Super.2008). "It is incumbent upon the judicial system to be

child-focused." In re R.JS., 36 A.2d at 579.



                                                  3
            This family came to the attention ofBCCYS has the result of a March 2014 report that

    alleged lack of appropriate housing, lack of stable income, lack of parenting skills, and substance

    abuse by the parents - specifically Mother, her paramour, and the father of Mother's oldest child

    -in Mother's apartment while the children were present.2 BCCYS's investigation revealed that

    Mother had three children, all by different men; Mother, her paramour and others regularly

    smoked K-2 in the apartment; the sink was broken; there was a potential bedbug problem; and

    Father was incarcerated. The case was opened for in-home services. On September 3, 2014, the

    children were placed in foster care.

           Because Mother signed a consent to adoption, this Opinion will focus on Father's

    parenting or, rather, lack thereof and will not delve into the details of Mother's parental conduct

    and corresponding relationship with BCCYS.

           Father has a criminal history dating back to 2006, when he was incarcerated for ·

    approximately a year and a half on a firearms charge. After jail, he was in a halfway house. He

was home in 2009 until a new arrest in April 2009. He was confined until 2011. Based on his

own testimony, Father was an absconder for about one year until he was caught in Florida in

2012. December 19, 2012 charges for fleeing or attempting to elude a police officer, resisting

arrest and litany of driving offenses landed him back in jail. Child was four months old at the

time.

           In response to a BCCYS letter to Father on March 25, 2014, Father reported that he was

incarcerated at SCI Coal Township, that he was not parole eligible until December 2015, but that

he wanted to help any way that he could. He completed a jail program called "Thinking for a

Change" in April 2014. He was present at a dispositional hearing on September 17, 2014 vial

telephone and was ordered to comply with a multitude of services.
2
    Mother was knownto BCCYS as a foster child during the years of 1995 to 2004.

                                                        4
        Father participated in the first permanency review hearing on February 17, 2015 via

 telephone. The Court found that there was no compliance with the permanency plan and no

 progress toward alleviating the circumstances of placement. Father was ordered to contact

 BCCYS to schedule casework ifhe wished to be eligible for visitation with Child.

        Father was present for the second and third permanency review hearings on August 11,

2015 and January 19, 2016 via telephone. The Court found Father to have been minimally

compliant with the permanency plan and that he made no progress toward alleviating the

circumstances of placement. He completed a parenting course in December 2015. There were

no visits with Child.

        On multiple occasions during his incarceration, Father wrote and telephoned BCCYS.

He stated he was willing to do whatever he needed and to work toward reunifying with Child.

Father set forth no plan to implement this willingness. BCCYS encouraged Father to write to

Child, to send her pictures, and to send her cards. Father never sent correspondence to BCCYS

for Child.

       In January 2016, Father reported a hope that he would be released from jail in a few

months. He planned to go to a halfway house. BCCYS directed him to report to the agency

upon his release to arrange services. Father was released on March 22, 2016, but he did not

contact BCCYS. On April 7, 2016, BCCYS learned that Father was not reporting to his parole

officer, that he was considered an absconder, and that a warrant had been issued for his arrest.

As of the June 20, 2016 hearing, Father was back in a state correctional institution without

having made any attempt to see Child. He believes he is parole eligible in October 2016.

       Father has not seen Child since she was four months old- she is now four years old. In

over three and one-half years, Father never saw her, wrote her, called her, or provided her with



                                                 5
    financial support or any other kind of parental control and subsistence.       Given his history of

    being in jail or a halfway house more often than not during his adult life, given his failure to

    reach out to his daughter, especially upon his release from jail in March 2016, and given that he

    will be incarcerated for at least several more months, the Court has no expectation that Father

    can or will remedy his failures as a parent in a reasonable period of time. The needs and welfare

    of Child are paramount, and Father has not provided for them for most of Child's life.

            Child is doing very well in her foster home where she has been placed with her maternal

    siblings.' .She is bonded with her foster parents to whom she looks for love, safety, and support.

Child has no bond with Father. Freeing Child for adoption will provide her with the opportunity

for permanency and stability and will be in her best interests.

            For the foregoing reasons, the Court entered its Decree terminating Father's parental

rights to Child.




Distribution: Clerk of the Orphans' Court; BCCYS Solicitor; Guardian Ad Litem; Attomeyfor/fotier; Attorney
for Father


                                                                         Certffi-&d    to be a true and correct
                                                                      copy of the original on ma.
                                                                                       . ."         ~ i    I      /»
                                                                      . ~ - I~ I   &    £i2:--..£~ {( .-;i,vt~v   Wc¢;:r,
                                                                          Date             Clerk 01 O;,phans' Court




3
    Child has three paternal siblings.

                                                     6
