J-S44028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: K.H., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 565 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 of 2018


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

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 23, 2020

       K.H. (“Father”) appeals from the decree terminating his parental rights

to J’L.M.O. (“Child”). Counsel has filed a petition for leave 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).1 We grant

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

parental rights.

       Child was born in September 2017 to J.O. (“Mother”) and Father. Father

was at the hospital for Child’s birth. Child suffered from drug withdrawal

symptoms at the time of his birth. Following a September 2017 shelter care

hearing, the court concluded that returning to Mother’s home would not be in

Child’s best interest. In October 2017, Child was adjudicated dependent.
____________________________________________


1Counsel filed an application to adopt the Anders brief filed by prior counsel.
We grant this petition.
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Mother did not reveal the identity of Child’s father at the shelter care hearing

or the dependency hearing. In December, Erie County Office of Children and

Youth (“OCY”) filed a petition for termination of parental rights.

      The trial court held a hearing on the petition. It set forth the following

factual history:

         [M]other did not reveal the name of [Father] to OCY until
         June 20, 2018. [Mother] refused to give OCY the location of
         [F]ather, so the agency made efforts to find [Father]. Those
         efforts were not successful until October of 2018. [Father]
         was found at the Erie County Prison after being incarcerated
         on September 28, 2018. [Father’s] paternity of [Child] was
         established by the results of a DNA test given [F]ather on
         October 12, 2018.

         Lisa Langer, supervisor of the family’s case, along with the
         ongoing caseworker [Kyra] Taylor, met with [Father] at the
         Erie County Prison on October 29, 2018. [F]ather told
         Langer that he was aware he had a son since his birth.
         [Father] was at the hospital when [Child] was born and cut
         the umbilical cord, a fact corroborated by the [Mother].
         [M]other had always stated she did not know who the father
         was, but the Agency suspected it was [Father] and that he
         was living with her. [Mother] said she did not know where
         [Father] was, and refused to allow caseworker visits to take
         place in her home.

         Despite the fact the agency had no contact from [Father],
         he told Langer he knew of OCY involvement through his
         contacts with the mother. [F]ather also said he was aware
         of OCY involvement due to a video surveillance system
         outside [Mother’s] home and so he knew when caseworkers
         and others would be coming in and out. Corroborating this
         claim by [Father] was his recognition of Ms. Taylor as the
         ongoing caseworker when she and Ms. Langer visited him in
         prison. [Father] further indicated he had been in receipt of
         all paperwork for this case since he would get it from
         [M]other.




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        Gaylene Abbott-Fay is a permanency caseworker at OCY
        who was assigned [Child’s] case. She reported that the
        foster home he has been in since his discharge from the
        hospital is an adoptive resource. The foster parents began
        working with [C]hild while he was still in the NICU as a drug
        exposed child. Their efforts continued in the foster home,
        and [Child] is now on track developmentally despite his
        precarious birth. [C]hild has thrived in the foster home and
        receives stability, structure, support and the routine he
        needs by being drug exposed. Ms. Abbott-Fay concluded
        [Child’s] best interests would be served by terminating
        [F]ather’s parental rights as [C]hild has thrived in the foster
        home and receives the stability, structure, support and
        routine he needs as a drug-exposed child. [Child’s] growth
        with his potential adoptive parents demonstrates that there
        will be no detrimental impact upon [C]hild by the
        termination of [F]ather’s parental rights. [Father], other
        than the day [Child] was born, has not seen the child or
        been a part of his short life. As Ms. Abbott–Fay testified,
        [F]ather never stepped up to be a parent, and was not in
        any position currently to provide any parenting. [Father]
        had never contacted [OCY] about his son.

        Lisa Langer believed as well that it was in [C]hild’s best
        interests to terminate [Father’s] parental rights. [F]ather
        had never supported [C]hild. Conditions which led to
        [C]hild’s placement had not been alleviated and [Child]
        needed stability and permanence[.]

Trial Court Opinion, filed May 14, 2019, at 1-3. Following a hearing on the

petition to terminate parental rights, the trial court found the Agency had

established by clear and convincing evidence grounds for termination under

23 Pa.C.S.A. 2511(a)(1), (2), (4), (5), and (8), and that termination was




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proper under Section 2511(b). The court granted the petition to terminate.2

Father filed a timely notice of appeal.3

       Before reviewing the merits of an appeal in which a counsel has

submitted an Anders brief, 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 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:


____________________________________________


2 The trial court also terminated Mother’s parental rights to Child. We affirmed
this order on October 18, 2019. See Adoption of J’L.M.O., No. 530 WDA
2019 (Pa.Super. filed October 18, 2019).

3 Original appellate counsel filed a petition to withdraw and an Anders brief.
She subsequently left her place of employment, withdrew from this case, and
new counsel entered an appearance. Following repeated orders and
memoranda from this Court requiring counsel to file a petition to withdraw
that complied with the dictates of Anders, and counsel’s failure to comply, we
remanded to the trial court for the appointment of new counsel. New counsel
entered an appearance and filed a petition to withdraw and a petition to adopt
the prior Anders brief.

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         (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.

      Here, counsel has complied with the requirements of Anders and

Santiago. Counsel filed a petition to adopt the Anders brief filed by prior

counsel, a request that we grant. The Anders brief provides a summary of

the procedural and factual history, with citations to the record; refers to items

in the record that could arguably support the appeal; sets forth counsel’s

conclusion that the appeal is frivolous; and explains counsel’s reasons for this

conclusion. Further, counsel filed a petition to withdraw with this Court, sent

a copy of the Anders brief to Father, and informed Father that he had the

right to proceed pro se or with new retained counsel.

      We next turn to the issues raised in the Anders brief:

         1. Whether the Orphan’s Court committed an abuse of
         discretion and/or error of law when it concluded that the
         ECOCY established grounds for termination of parental
         rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (4), (5), (8).

         2. Whether the Orphan’s Court committed an abuse of
         discretion and/or error of law when it concluded that the
         termination of [Father’s] parental rights was in the Child’s
         best interest pursuant to 23 Pa.C.S.A. § 2511(b).

Anders Br. at 4 (trial court answers omitted).




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      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 find 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
         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



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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). Section 2511

requires a bifurcated analysis:

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

Id. (citations omitted).

      Where the trial court has terminated parental rights pursuant to multiple

subsections of Section 2511(a), we need only agree with the trial court’s

decision as to one subsection, as well as to its analysis under Section 2511(b).

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

address only the court’s decision to terminate pursuant to Section 2511(a)(1).

That subsection provides that a parent’s rights to a child may be terminated

if:



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         [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).

      Subsection 2511(a)(1) requires the moving party to prove by clear and

convincing evidence that the subject parent engaged in “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 726, 730

(Pa.Super. 2008). 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, 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.



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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 4-5. The Court explained:

         A review of the evidence provides a portrait of a father who
         wanted nothing to do with his child. Despite [M]other’s
         refusal until June 20, 2018 to identify [Father] as the father
         of [Child], [Father] knew from the child’s birth that he was
         [C]hild’s dad. [Father] was present at the birth; cut the
         umbilical cord; and knew of [C]hild’s placement with OCY.
         [F]ather was in communication with [M]other during the
         [OCY’s] involvement, and had access to video surveillance
         of those who came to [Mother’s] residence to such an
         extent, that he knew who the ongoing caseworker was for
         the family. Despite [Father’s] knowledge of [C]hild's
         placement with [OCY], he never came forward to offer any
         support or interest in [Child]. [OCY] went through a number
         of efforts to track down [Father], and was only able to
         contact him once he was incarcerated, a year after the
         child’s placement. [Father’s] actions evidence a “father” in
         name only. [F]ather knew OCY couldn’t identify or locate
         him, and he did nothing to correct that fact. [Father] took
         no affirmative steps to demonstrate an interest in his son or
         his son’s development. [Father], since he was present at
         [C]hild’s birth, had to know of the extremely serious
         concerns over the boy[] being born drug exposed. [F]ather
         never showed any concern for that condition, or [C]hild’s
         welfare.

Id. at 5. The trial court concluded that Father’s conduct “clearly evidenced a

settled purpose to relinquish his parental rights to [Child].” Id. at 17. It

reasoned that “[Father] refused to come forward for over a year after the

child’s placement to demonstrate any interest or concern for his son [and

w]ithout the Agency’s efforts to locate the father, [Father] would have been

content to stay unknown and anonymous.” Id. It noted that “[o]ver a period




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in excess of 12 months, [F]ather did not evidence any desire or ability to

parent his son.” Id.

         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). Father knew Child had been adjudicated dependent and

had been removed from the home, and made no effort to meet or parent

Child.

         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 at 1287. 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.

         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

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

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potential adoptive parents.” Id. It concluded that there was “no parental bond

between [F]ather and [Child] and the interests of Child are best served by

termination.” Id. at 7.

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

are wholly frivolous. 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, Father has had no contact with Child following Child’s

birth. The record contains no evidence suggesting contrary conclusions. It thus

provides no basis for challenging the trial court’s decision to terminate Father’s

parental rights under Subsection 2511(a)(1) or Section 2511(b).

      Moreover, our independent review of the record has disclosed no non-

frivolous issue. Therefore, we grant counsel’s petition to withdraw and affirm

the decree terminating Father’s parental rights.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: March 23, 2020




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