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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF BABY GIRL E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.F., FATHER
No. 1554 MDA 2014
Appeal from the Decree August 11, 2014
In the Court of Common Pleas of Centre County
Orphans' Court at No(s): 3932-2013
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2015
R.F. (“Putative Father”) appeals from the decree entered August 11,
2014, in the Court of Common Pleas of Centre County, granting the petition
of W.R.S. and L.A.S. (“Prospective Adoptive Mother,” individually, or
“Prospective Adoptive Parents,” collectively) to involuntarily terminate
Putative Father’s parental rights to his daughter, Baby Girl E. (“Child”), born
in November 2013. Concomitant with this appeal, counsel has filed an
Anders1 brief and a petition seeking leave to withdraw from representation.
The issue identified by counsel in this appeal is as follows: “Whether the
[orphans’] court committed an abuse of discretion or error of law when it
concluded that grounds for termination had been established under 23
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1
Anders v. California, 386 U.S. 738 (1967).
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Pa.C.S.A. § 2511(a)(6)?” Anders Brief, at 5. In addition, the Anders brief
lists and addresses ten issues raised in Putative Father’s Pa.R.A.P. 1925(b)
statement. Based upon the following, we affirm and grant the petition for
leave to withdraw as counsel.
The orphans’ court summarized the facts of this case as follows:
In September 2013, Mother, then 14 years of age learned
that she was pregnant. A decision was made to offer the child for
adoption. The child was born on November [], 2013, and
[Putative Father] was not named as the Father on the birth
certificate.
[Putative Father2] has refused to participate in, or
cooperate with, the adoption proceeding, and has maintained
that he is not the Father of the child. A hearing to terminate
[Putative Father’s] paternal rights was scheduled for May 13,
2014, but adjourned without testimony, at [Putative Father’s]
request, to allow [Putative Father] to secure counsel. Counsel
was appointed to represent [Putative Father].
A reconvened hearing was held on August 11, 2014, to
consider terminating [Putative Father’s] parental rights. At that
hearing, [Putative Father] testified that he had never had sexual
relations with [M]other, and that it was impossible that he is the
Father. The Court found [Putative Father’s] testimony to be
credible, and as such found that he had no parental rights, and
therefore, terminated his non-existent parental rights.
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2
Putative Father, at the time of the termination hearing, was a high school
junior. See N.T., 8/11/2014 (Termination Hearing), at 18.
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Amended Opinion in Response to Matters Complained of on Appeal,
10/2/2014, at 1–2 (emphasis in original).3
To this summary, we add that, on December 11, 2013, adoption
proceedings were initiated by Prospective Adoptive Parents by the filing of a
report of intention to adopt. On March 10, 2014, Prospective Adoptive
Parents filed: (1) a petition for the involuntary termination of the parental
rights of Putative Father, (2) a petition to confirm Mother’s consent to
adoption, and (3) a petition for adoption. Thereafter, the court appointed
Justin Miller, Esquire, to represent Putative Father, and Elizabeth Hunt,
Esquire, as Guardian Ad Litem for Child.4 On August 11, 2014, the court
held a termination hearing and a separate adoption hearing. That same day,
the orphans’ court entered three decrees: (1) a preliminary decree
involuntarily terminating the parental rights of Putative Father, (2) a
preliminary decree confirming the consent of Mother to the adoption of
Child, and terminating her parental rights, and (3) a final decree of adoption.
Thereafter, Putative Father filed this timely appeal from the decree
terminating his parental rights.
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3
We note that at the termination hearing, Putative Father denied paternity,
and, in the alternative, took the position that if he was the father of Child,
his rights should not be terminated. See N.T., 8/11/2014, at 35, 38–40, 85.
We further note Putative Father did not undergo DNA testing. Additionally,
Putative Father did not consent to voluntary relinquishment of his parental
rights.
4
Mother was represented by Bobbie Rabuck, Esquire.
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Initially, we address the Anders brief and petition seeking permission
to withdraw. The principles that guide our review are as follows:
When counsel files an Anders brief, this Court may not review
the merits without first addressing counsel’s request to
withdraw. Commonwealth v. Washington, 2013 PA Super 51,
63 A.3d 797, 800 (Pa. Super. 2013). In In re V.E., 417 Pa.
Super. 68, 611 A.2d 1267 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the
termination of parental rights. Id. at 1275. In these cases,
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., 2004 PA Super 329, 856
A.2d 1235, 1237 (Pa. Super. 2004). We review counsel’s
Anders brief for compliance with the requirements set forth by
our Supreme Court in Commonwealth v. Santiago, 602 Pa.
159, 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.
Additionally, pursuant to Commonwealth v. Millisock,
2005 PA Super 147, 873 A.2d 748 (Pa. Super. 2005) and
its progeny, “[c]ounsel also must provide a copy of the
Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: (1) retain new
counsel to pursue the appeal; (2) proceed pro se on
appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points
raised by counsel in the Anders brief.”
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Commonwealth v. Orellana, 2014 PA Super 33, 86 A.3d 877,
880 (Pa. Super. 2014) (internal quotation marks and citation
omitted). “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, 2007 PA Super 180, 928 A.2d
287, 291 (Pa. Super. 2007) (en banc), quoting Commonwealth
v. Wright, 2004 PA Super 87, 846 A.2d 730, 736 (Pa. Super.
2004).
In re X.J., 105 A.3d 1, 3–4 (Pa. Super. 2014).
Here, we conclude that counsel has complied with the requirements as
set forth above. Counsel has provided Putative Father with a copy of the
Anders brief and indicated in his correspondence enclosing the brief that
Putative Father may proceed pro se or with private counsel. In his brief,
counsel refers to facts of record that might arguably support Putative
Father’s appeal and sets forth his conclusion that the appeal is frivolous and
the reasons for this conclusion. Accordingly, we undertake our independent
evaluation of the record to determine whether Putative Father’s appeal is
wholly frivolous.5
Our review of an order granting a petition for involuntary termination
of parental rights is well settled:
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5
We note a typographical error in the Anders brief, which states: “The
relevant four-month period was … between December 10, 2013, and March
10, 2014.” Anders Brief at 14. The correct four-month period is from
November 10, 2013 to March 10, 2014. This typographical error does not
affect our review.
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[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., [36
A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike 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. R.J.T., 9 A.3d at 1190.
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. In re Adoption of Atencio, 650 A.2d 1064, 1066
(Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The termination of parental rights involves a bifurcated analysis,
governed by Section 2511 of the Adoption Act. This Court has explained:
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
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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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007), citing 23 Pa.C.S. § 2511.
As stated above, the burden is on the party seeking termination, here
the Prospective Adoptive Parents, to establish the statutory grounds for
termination by clear and convincing evidence. In re C.M.S., 832 A.2d 457,
461 (Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004).
In the present case, Prospective Adoptive Parents sought to terminate
Putative Father’s parental rights under Section 2511(a)(6) and (b):
§ 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:
***
(6) In the case of a newborn child, the parent knows or
has reason to know of the child’s birth, does not reside
with the child, has not married the child’s other parent,
has failed for a period of four months immediately
preceding the filing of the petition to make reasonable
efforts to maintain substantial and continuing contact with
the child and has failed during the same four-month period
to provide substantial financial support for 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
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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. § 2511(a)(6), (b).
The record shows that Prospective Adoptive Parents demonstrated by
clear and convincing evidence the requirements of Section 2511(a)(6).
Specifically,
(1) Child was born in November, 2013, and the petition at issue
was filed more than four months later, on March 10, 2014.
(2) Mother stated Putative Father should have known she had
given birth when she was not in school. See id. at 10–11.6
Putative Father testified he was aware his mother called the
hospital, and further stated “[w]hen she called, [Child]
wasn’t born yet.” See id. at 39.
(3) Both Putative Father and Mother testified to their respective
addresses, which are not the same. Putative Father lives
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6
Mother testified Putative Father became aware of her pregnancy when his
mother came to her house, and “we told her, and she told him.” N.T.,
8/11/2014 (Termination Hearing), at 7. Mother stated “[Putative Father’s
mother] heard rumors about me being pregnant and him being the father,
and she wanted to get everything out in the open.” Id. at 8.
Mother testified she did not directly tell Putative Father she had given
birth because he told her that he did not want anything to do with Child.
See id. at 14–15. On November 25, 2013, Prospective Adoptive Parents’
attorney contacted Putative Father regarding Child’s birth, and requested he
sign a consent to adoption form. See id. at 22–24; Petitioner’s Exhibit 1
(Letter from Denise Bierly, Esquire to Putative father, dated 11/25/2013).
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with his father, stepmother, and brother. Mother lives with
her mother, stepfather, and brother. See id. at 4, 8, 17 and
19.
(4) Mother testified that she is not married. See id. at 5.
(5) During the applicable four month period, from November 10,
2013, to March 10, 2014, Putative Father denied paternity,
and did not try to find out any information about Child. See
id. at 26–27, 37.
(6) During the same applicable four month period, Putative
Father did not pay any child support or make purchases of
diapers or formula for Child. See id. at 30.
Therefore, we conclude the record supports the court’s determination
that Prospective Adoptive Parents proved grounds for termination of Putative
Father’s parental rights pursuant to Section 2511(a)(6).
Moreover, we have examined the issues listed in the Anders brief that
were raised by Putative Father in the concise statement, which are as
follows:
1. The court erred and abused its discretion in terminating
[Putative Father’s] parental rights.
2. The court did not properly consider [Putative Father’s] ability
to support the child with his own employment and the
financial and other support of his parents.
3. [Putative Father] was repeatedly denied a paternity test.
4. [Putative Father] was never told anything regarding the child,
including but not limited to the date of birth, his right to
contest the adoption, the opportunity to financially support
this child, or the opportunity to be present at the birth.
5. The biological mother named several men as the father prior
to the initiation of adoption proceedings, rendering [Putative
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Father] incapable of knowing whether the child was alleged to
be his or not until court papers were filed.
6. When [Putative Father] first spoke with the biological mother
regarding her pregnancy, he was informed she was keeping
the child and that he would be able to see the child and would
be able to have a paternity test performed once the child was
born. None of these things occurred.
7. The termination of [Putative Father’s] parental rights will be
part of his permanent civil record, and will hamper him in any
proceedings relative to any other children he may father in
the future.
8. The biological mother informed the community — including
the high school both parents attend — that she was not
pregnant and instead had a tumor.
9. The biological mother took part in an illegal adoption process,
accepting payment for putting the child up for adoption.
10. [Putative Father’s] attorney refused to call any witnesses
who could have testified to the biological mother’s
involvement in an illegal adoption.
Putative Father’s Pa.R.A.P. 1925(b) statement.
With regard to the first issue listed in Putative Father’s concise
statement, that the trial court abused its discretion in terminating his
parental rights, we have already found that all of the requirements were met
for termination pursuant to Section 2511(a)(6). As to the second issue,
Putative Father’s ability to support the child is not a factor to be considered
under Section 2511(a)(6). The third issue, that Putative Father was denied
a paternity test, has no support in the record. Rather, the record reflects
that Putative Father was advised by Prospective Adoptive Parents’ attorney
how to set up a DNA test, but he did not do so prior to the termination
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hearing.7 See N.T., 8/11/2014 (Termination Hearing), at 27–30; Petitioner’s
Exhibit 2 (Letter from Denise M. Bierly, Esquire, to Putative Father, dated
12/31/2013).
In issues four through six, Putative Father claims that he was not told
anything regarding his rights to Child, that Mother named several potential
fathers, and that Mother originally stated she was keeping Child. However,
our review reveals these claims are not supported by the record. Next,
Putative Father’s seventh issue, that this termination will be part of his
permanent civil record, is not a valid consideration under Section
2511(a)(6), and would only be relevant in any potential dependency
proceeding against Putative Father as it relates to a subsequent child. See
42 Pa.C.S. § 6351(3). Furthermore, Putative Father’s eighth issue — that
Mother said she was not pregnant and had a tumor — has no bearing on this
case since Putative Father learned of Mother’s pregnancy. Finally, Putative
Father’s last two allegations of Mother’s involvement in an illegal adoption
have nothing to do with the grounds for the termination of Putative Father’s
parental rights. Accordingly, these arguments regarding Section 2511(a)(6)
warrant no relief.
Once the statutory requirement for involuntary termination of parental
rights has been established under subsection (a), the court must consider
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7
At the termination hearing, Putative Father testified he had “just set up [a
DNA test] today.” N.T., 8/11/2014 (Termination Hearing), at 30.
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whether the child’s needs and welfare will be met by termination pursuant to
subsection (b). In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004).
Here, Putative Father has never met Child and has no bond with her.
At the August 11, 2014, termination hearing, Mother testified that she had
an on-going relationship with Prospective Adoptive Parents, and that it was
“a very nice relationship.” N.T., 8/11/2014 (Termination Hearing), at 12.
Mother stated she knew she “pick[ed] a good family” for Child. 8 Id.
Putative Father, as discussed above, denied paternity. Asked by Prospective
Adoptive Parents’ attorney if he had “tried to reach out to [Mother] or
anyone for information about the child,” he responded, “Not that I know of.”
Id. at 37. Asked by the guardian ad litem what he would have to offer
Child, Putative Father answered, “If there was a relationship, I don’t know.”
Id. at 40.
Prospective Adoptive Mother testified that she and her husband have
no other children, have parented Child since Child’s discharge from the
hospital on November 10, 2013, and that Child has grown attached to them
and their families. Prospective Adoptive Mother further stated she and her
husband had entered into a post-adoption contract with Child’s mother and
they had also extended the offer of a post-adoption contract to Putative
Father. She explained that she and her husband had offered the post-
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8
Mother met with Prospective Adoptive Parents before she agreed to allow
them to adopt Child. N.T., 8/11/2014 (Termination Hearing), at 46.
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adoption contracts because they were “looking out for the best interest for
[Child].” Id. at 56. Prospective Adoptive Mother testified that she and her
husband were financially stable. She stated that she and husband “loved
[Child] with all our heart.” Id. at 53.
In addition, Theresa Guaglianone, the adoption program manager for
Children’s Aid Society, who performed the home study for adoption, and a
post placement visit and report regarding Prospective Adoptive Parents,
testified that Child was very attached to them, was very well cared for, was
loved and nurtured, and had flourished in their care. See id. at 59–60. She
recommended that the adoption be finalized with Prospective Adoptive
Parents. See id. at 60.
Here, the orphans’ court determined that “the standards of Section
2511, Subsection 6, have been met, and that it’s in the best interest of the
child to have parental rights terminated and for the child to be available for
adoption by [Prospective Adoptive Parents].” N.T., 8/11/2014 (Termination
Hearing), at 98. After a careful review of the record, we find there is
competent evidence to support the court’s decision to terminate Putative
Father’s parental rights pursuant to § 2511(a)(6) and (b), and that the
appeal is frivolous.
This Court has conducted an independent investigation of the certified
record on appeal. In so doing, we found no potential nonfrivolous issue that
could properly be asserted on appeal. Accordingly, we affirm the orphans’
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court’s decree terminating Putative Father’s parental rights to Child, and
grant Putative Father’s counsel permission to withdraw.
Decree affirmed. Petition for leave to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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