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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.M.O IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF R.C., FATHER
No. 774 MDA 2015
Appeal from the Order Entered April 1, 2015
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 83915
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 13, 2015
Appellant, R.C. (“Father”), appeals from the order involuntarily
terminating his parental rights to his natural child, A.M.O, born in December
2004. Father argues that K.E., A.M.O.’s mother (“Mother”), actively
prevented him from establishing a relationship with A.M.O. Additionally,
Father’s court appointed counsel, Peter David Maynard, Esq., has filed a
petition to withdraw as counsel on this appeal. After careful review, we
affirm the order terminating Father’s parental rights, and grant Attorney
Maynard permission to withdraw.
In conjunction with a petition to have her husband adopt A.M.O.,
Mother filed a petition to involuntarily terminate Father’s rights on October
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*
Retired Senior Judge assigned to the Superior Court.
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20, 2014. Mother alleged that Father had last seen A.M.O. in 2005, when
A.M.O. was six months old. Furthermore, Mother alleged that Father had
never sent A.M.O. any gifts or other tokens of his affection, and that Father
had never sought any form of custody or visitation with A.M.O.
At the hearing on Mother’s petition, Father requested a continuance to
obtain counsel. After appointing counsel to represent Father, the orphans’
court held a hearing on the petition. At the hearing, Mother testified that
while Father was present for A.M.O’s birth, there were only two incidences of
contact with Father during A.M.O.’s life, both occurring before A.M.O. turned
one year old. Furthermore, Mother testified that despite A.M.O.’s frequent
visits with Father’s mother during A.M.O.’s early years, Father made no
attempt to cultivate a relationship with A.M.O.
Father testified that he was present when A.M.O. was born, but did
not identify any other instances of interaction with A.M.O. See N.T.,
Hearing, 4/1/15, at 35-36. Father admitted that he had never filed an
action for partial custody, despite having experience with custody litigation
regarding his other children. See id., at 39-40. Father did not even look in
the phone book to initiate communication with Mother and A.M.O. See id.,
at 44. Father stated that the last time he had seen A.M.O. that the child
was in diapers and a stroller. See id., at 51.
At the close of the hearing, the court entered an order terminating
Father’s parental rights to A.M.O. The court found that Father had failed to
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satisfy his affirmative obligation to act in A.M.O.’s best interests as he had
“sat on his parental rights for over a decade[.]” Orphans’ Court Opinion,
6/10/15, at 8. The court thus concluded that Father had evidenced a settled
purpose of relinquishing his parental claim to A.M.O. by failing to perform
parental duties for over a period of six months. Furthermore, the trial court
found that termination suited the best interests of A.M.O., as it cleared the
path for adoption by Mother’s husband, with whom he already lived. This
timely appeal followed.
Attorney Maynard has requested to withdraw and has submitted an
Anders brief in support thereof contending that Father’s appeal is frivolous.
The Pennsylvania Supreme Court has articulated the procedure to be
followed when court-appointed counsel seeks to withdraw from representing
an appellant on direct appeal.
[I]n 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
arguably believes 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Attorney Maynard has substantially complied with all of the
requirements of Anders as articulated in Santiago. Additionally, Attorney
Maynard confirms that he sent a copy of the Anders brief as well as a letter
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explaining to Father that he has the right to proceed pro se or the right to
retain new counsel. Attorney Maynard has forwarded a copy of the letter to
this Court. See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa.
Super. 2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005).
We now proceed to examine the issues counsel sets forth in the
Anders brief.1 See Appellant’s Brief, at 3.
While Father has organized his issues as separate challenges, they
both ultimately resolve to but a single issue: whether the trial court was
legally justified in terminating Father’s parental rights. We review this
appeal according to the following standard.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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1
Father has not filed a response to Attorney Maynard’s petition to withdraw.
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A.
§ 2511). The burden is on the petitioner, in this case Mother, to prove by
clear and convincing evidence that the asserted statutory grounds for
seeking the termination of parental rights are valid. See In re R.N.J., 985
A.2d 273, 276 (Pa. Super. 2009).
Instantly, the court terminated Father’s parental rights pursuant to
Section 2511(a)(1) and (b). We need only agree with the court on 23
Pa.C.S.A. § 2511(a), in addition to Section 2511(b), in order to affirm the
termination of parental rights.2 See In re B.L.W., 843 A.2d 380, 384 (Pa.
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2
Father has never challenged whether termination suited A.M.O.’s best
interests, and therefore, there is no issue on this appeal regarding the
application of Section 2511(b). “Appellant contends that despite the lack of
(Footnote Continued Next Page)
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Super. 2004) (en banc). We conclude that the trial court properly
terminated Father’s parental rights pursuant to Section 2511(a)(1), which
provide as follows:
(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.
23 Pa.C.S.A § 2511(a)(1).
The court’s findings are amply supported by Father’s own testimony.
Father has never pursued a relationship with A.M.O., who is now 10 years
old. Father admitted that he has had no contact in all those years, and yet
never filed a legal request for visitation, let alone partial custody, despite
having filed for custody of his other children. The decision to terminate
Father’s parental rights was neither an abuse of discretion nor an error of
law.
_______________________
(Footnote Continued)
any type of current relationship whatsoever between Father and child that a
termination of his parental rights would be detrimental, if not to the child, at
least to Father.” Appellant’s Brief, at 10; see N.T., Trial, 4/1/15, at 48
(admitting that A.M.O. is in a stable home and that it would be against
A.M.O.’s interests to award Father custody). In any event, given A.M.O.’s
stated preference and the report of A.M.O.’s guardian ad litem, we conclude
that the trial court did not err in finding that termination of Father’s parental
rights was in A.M.O.’s best interest.
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After examining the issue contained in the Anders brief and after
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous. We therefore grant Attorney
Maynard’s petition to withdraw and affirm the trial court’s order terminating
parental rights.
Order affirmed. Petition to Withdraw as Counsel granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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