J-S01004-17


     NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.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

    IN RE: N.L., J.L., B.L. AND Y.L.           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: Y.C., MOTHER                    :           No. 1330 MDA 2016


                      Appeal from the Decree July 15, 2016
               In the Court of Common Pleas of Lancaster County
           Orphans’ Court at No(s): 1121-2015, 985-2015, 986-2015,
                                   987-2015


BEFORE:       GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JANUARY 27, 2017

         Appellant, Y.C. (“Mother”), appeals from the decree entered in the

Lancaster      County    Court    of   Common      Pleas    Orphans’   Court,   which

involuntarily terminated her parental rights to her minor children, N.L., J.L.,

B.L., and Y.L. (“Children”). Upon a thorough review of the record, we affirm.

         In its opinions, the Orphans’ court fully and correctly sets forth the

relevant facts and procedural history of this case.           Therefore, we have no

reason to restate them.1         After Mother timely filed a notice of appeal and


____________________________________________


1
  Despite the court’s entry of separate termination decrees for each child,
Mother filed a single notice of appeal in this case. See Dong Yuan Chen v.
Saidi, 100 A.3d 587, 589 n.1 (Pa.Super. 2014) (explaining one notice of
appeal from separate decrees is generally discouraged). Nevertheless,
Mother’s argument for each decree is identical and stems from the same set
of facts. See Baker v. Baker, 624 A.2d 655, 656 (Pa.Super. 1993)
(Footnote Continued Next Page)
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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i), Mother’s counsel filed an Anders brief and petition for leave

to withdraw as counsel in this Court on October 13, 2016. On October 19,

2016, this Court determined counsel’s Anders brief did not comply with all

the requirements of Commonwealth v. Santiago, 602 Pa. 159, 178-79,

978 A.2d 349, 361 (2009), and ordered counsel to file an amended brief

within ten days. Counsel complied on October 27, 2016.

      As a preliminary          matter, appellate   counsel seeks to   withdraw

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Santiago, supra.             Anders principles

apply to appeals involving termination of parental rights. See In re S.M.B.,

856 A.2d 1235 (Pa.Super. 2004). Anders and Santiago require counsel to:

1) petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise her of the right to obtain new counsel or file a pro se
                       _______________________
(Footnote Continued)

(explaining court will overlook filing of one appeal from separate orders
where appellant’s arguments for each order are identical and stem from
same factual precedent). Additionally, the court’s opinions address Mother’s
issue as it relates to each termination decree. See Dong Yuan Chen,
supra (noting one notice of appeal from separate orders is not fatal where
trial court opinion addresses issues pertaining to all orders). Therefore,
Mother’s failure to file separate notices of appeal from each termination
decree is not fatal to our review, and we will address Mother’s appeal.



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brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61; In re Adoption of V.G.,

751 A.2d 1174, 1176 (Pa.Super. 2000). Substantial compliance with these

requirements is sufficient.       Commonwealth v. Wrecks, 934 A.2d 1287,

1290 (Pa.Super. 2007).            After establishing that counsel has met the

antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm that the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements       where      court-appointed          counsel   seeks   to   withdraw

representation on appeal:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
____________________________________________


2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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        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 178-79, 978 A.2d at 361.

     Instantly, Mother’s counsel filed a petition to withdraw.   The petition

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Mother with

a copy of the brief and a letter explaining Mother’s rights to retain new

counsel or to proceed pro se to raise any additional issues Mother deems

worthy of this Court’s attention. (See Letter to Mother, dated July 27, 2016,

attached to Petition for Leave to Withdraw as Counsel).       In the amended

Anders brief, counsel provides a summary of the facts and procedural

history of the case.   Counsel’s argument refers to relevant law that might

arguably support Mother’s issue. Counsel further states the reasons for her

conclusion that the appeal is wholly frivolous.      Therefore, counsel has

substantially complied with the requirements of Anders and Santiago.

     Counsel raises the following issue on Mother’s behalf:

        [WHETHER THE COURT’S DECISION TO TERMINATE
        MOTHER’S PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A.
        §§ 2511(A)(1), (2), (5), (8), AND (B) WAS PROPER?]

(Anders Brief at 5-10).

     The standard and scope of review applicable in a termination of

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parental rights case is as follows:

         When reviewing an appeal from a decree terminating
         parental rights, we are limited to determining whether the
         decision of the trial court is supported by competent
         evidence. Absent an abuse of discretion, an error of law,
         or insufficient evidentiary support for the trial court’s
         decision, the decree must stand. Where a trial court has
         granted a petition to involuntarily terminate parental
         rights, this Court must accord the hearing judge’s decision
         the same deference that it would give to a jury verdict.
         We must employ a broad, comprehensive review of the
         record in order to determine whether the trial court’s
         decision is supported by competent evidence.

         Furthermore, we note that the trial court, as the finder of
         fact, is the sole determiner of the credibility of witnesses
         and all conflicts in testimony are to be resolved by [the]
         finder of fact. The burden of proof is on the party seeking
         termination to establish by clear and convincing evidence
         the existence of grounds for doing so.

         The standard of clear and convincing evidence means
         testimony 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.
         We may uphold a termination decision if any proper basis
         exists for the result reached. If the trial court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.

2008) (en banc).

      CYS sought the involuntary termination of Mother’s parental rights on

the following grounds:


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       § 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:

          (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.

          (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.

                               *    *    *

          (5) The 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 of time, 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 rights would best serve
          the needs and welfare of the child.

                               *    *    *

          (8) The child has been removed from the care of the
          parent by the court or under a voluntary agreement
          with an agency, 12 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

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            welfare of the child.

                                    *    *    *

         (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), (2), (5), (8); and (b).

      “Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.”         In re Z.P., 994 A.2d 1108, 1117

(Pa.Super. 2010).

         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…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.

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

      Termination under Section 2511(a)(1) involves the following:

         To satisfy the requirements of [S]ection 2511(a)(1), the
         moving party must produce clear and convincing evidence

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            of conduct, sustained for at least the six months prior to
            the filing of the termination petition, which reveals a
            settled intent to relinquish parental claim to a child or a
            refusal or failure to perform parental duties. In addition,

               Section 2511 does not require that the parent
               demonstrate both a settled purpose of relinquishing
               parental claim to a child and refusal or failure to
               perform parental duties. Accordingly, parental rights
               may be terminated pursuant to Section 2511(a)(1) if
               the parent either demonstrates a settled purpose of
               relinquishing parental claim to a child or fails to
               perform parental duties.

            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…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).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).     Regarding the six-month period prior to filing the termination

petition:

            [T]he 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…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, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

      The     grounds    for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

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limited to affirmative misconduct; to the contrary those grounds may include

acts of refusal as well as incapacity to perform parental duties.      In re

A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”   Id. at 340.   The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

      “Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., supra at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8),           the

following factors must be demonstrated: (1) [t]he child has been removed

from parental care for [twelve] months or more from the date of removal;


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(2) the conditions which led to the removal or placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266,

1275-76 (Pa.Super. 2003).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.     In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.     When conducting a bonding
         analysis, the court is not required to use expert testimony.
         Social workers and caseworkers can offer evaluations as
         well. Additionally, Section 2511(b) does not require a
         formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

      “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have…her [parental] rights terminated.” In re B.L.L.,

787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

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        There is no simple or easy definition of parental duties.
        Parental duty is best understood in relation to the needs of
        a child. A child needs love, protection, guidance, and
        support. These needs, physical and emotional, cannot be
        met by a merely passive interest in the development of the
        child. Thus, this court has held that the parental obligation
        is a positive duty which requires affirmative performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine effort to maintain communication and association
        with the child.

        Because a child needs more than a benefactor, parental
        duty requires that a parent exert [herself] to take and
        maintain a place of importance in the child’s life.

        Parental 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…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 [the child’s] physical
        and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of…her child is converted,

upon the failure to fulfill…her parental duties, to the child’s right to have

proper parenting and fulfillment of his or her potential in a permanent,

healthy, safe environment.” Id. at 856.

     Importantly, neither Section 2511(a) nor Section 2511(b) requires a

court to consider at the termination stage, whether an agency provided a


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parent with reasonable efforts aimed at reunifying the parent with her

children prior to the agency petitioning for termination of parental rights. In

re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure

to provide reasonable efforts to a parent does not prohibit the court from

granting a petition to terminate parental rights under Section 2511. Id. at

346, 105 A.3d at 675.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Jay J.

Hoberg, we conclude Mother’s issue on appeal merits no relief.             The

Orphans’ court opinions comprehensively discuss and properly dispose of the

question presented.     (See Opinion in Support of Termination of Parental

Rights, filed July 15, 2016, at 6-12, and Orphans’ Court Opinion, filed August

26, 2016, at 2-6) (finding: with respect to Sections 2511(a)(1), (2), (5), and

(8), Mother had opportunity to perform her parental duties prior to CYS’

intervention in March 2014, and throughout time            Children were in

placement; nevertheless, Mother failed to work on any of her permanency

plan goals until CYS filed termination petitions in April and May 2015; even

after CYS filed termination petitions and court continued case pending

bonding assessments, Mother failed to understand importance of completion

of her permanency plan goals as evidenced by Mother’s lack of cooperation

with CYS; court found Mother’s current claim she will obtain appropriate

housing when she regains custody of Children incredible due to Mother’s


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disingenuous statements about her housing search throughout history of

case; on other hand, court found Dr. Ail’s testimony and termination

recommendation persuasive and credible in light of Mother’s continued lack

of ability to provide for physical and mental well-being of Children; CYS

established that conditions which led to placement of Children continue to

persist despite fact that Children have been in placement for over two years;

many of Mother’s permanency plan goals still remain incomplete; Mother’s

conduct throughout case has significantly damaged and impaired emotional

growth and development of Children; after more than two years of CYS

support, Mother has not resolved instability in her life, and Children remain

in limbo while Mother tries to complete permanency plan goals; under these

circumstances, sufficient grounds exist for termination under Sections

2511(a)(1), (2), (5), and (8); with respect to Section 2511(b), termination

is only viable vehicle available to provide Children with permanency and

emotional foundation necessary to overcome years of instability and trauma

while in Mother’s custody; court found testimony of Dr. Ail and Children’s

therapists credible and persuasive on bonding issue; continued contact

between Children and Mother undoes progress made by Children in therapy

and interferes with Children’s continued treatment; Children have no

beneficial bond with Mother that must be preserved for welfare and

development of Children; Children have healthy bonds with their respective

placement families; at this juncture, any further delay of permanency and


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stability for Children will cause more harm than termination of Mother’s

parental rights; thus, termination is in best interest of Children, and court

properly terminated Mother’s parental rights to Children).     Following our

independent review of the record, we conclude the appeal is frivolous. See

Palm, supra. Accordingly, we affirm on the basis of the trial court opinions

and grant counsel’s petition to withdraw.

     Decree affirmed; counsel’s petition to withdraw is granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2017




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