J-S42015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ADOPTION OF H.O. AND IN THE SUPERIOR COURT OF
L.D., PENNSYLVANIA
Appellees
APPEAL OF: J.O., NATURAL FATHER
No. 27 WDA 2016
Appeal from the Decree December 3, 2015
In the Court of Common Pleas of Erie County
Orphans’ Court at No(s): No. 65A, 65 in Adoption 2015
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 10, 2016
J.O. (“Father”) appeals1 from the decree entered on December 3,
2015, in the Erie County Court of Common Pleas that terminated his
parental rights to his minor children L.D. and H.O. (“the Children”).2
Father’s counsel has filed a petition for leave to withdraw and a brief
*
Former Justice specially assigned to the Superior Court.
1
Father’s duplicative pro se appeal at 36 WDA 2016 was dismissed by this
Court sua sponte in an order filed on February 19, 2016.
2
Mother’s parental rights were also terminated. However, Mother did not
file an appeal, and she is not a party to the instant appeal.
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pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We grant
counsel’s petition to withdraw and affirm.3
The relevant facts of this case were set forth by the orphans’ court as
follows:
H.O. was born [in March of] 2013 drug[-]exposed to
opiates. The [Office of Children and Youth (“OCY” or “the
agency”] became involved with the family shortly after his birth,
though H.O. was not taken into protective custody at that time.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 1, 12/2/15, p. 45-46. H.O.’s sister, L.D., was born [in
November of] 2014. She also tested positive for opiates. Due to
the parents’ drug history, history with the agency, unstable
housing, and concerns about untreated mental health conditions,
both children were adjudicated dependent and placed in foster
care on December 2, 2014. Permanency Review Hearing
Summary, 12/21/15, p. 1. See also Involuntary Termination of
Parental Rights Hearing Transcript, 12/2/15, p. 45, 49, 57.
At the time of the adjudication, [Father] was incarcerated
in the Erie County Prison. One month later, after a probation
revocation, [Father] was sentenced to serve time in a state
correctional institution. Permanency Review Hearing Summary,
6/22/15, p. 6.
A permanency review hearing was held on April 20, 2015.
[Father] had been court ordered [to] submit to paternity testing,
participate in an assessment to determine if he was eligible for
the Erie County Family Dependency Treatment Court, participate
in an additional drug, alcohol, and mental health assessment,
secure safe and stable housing, and obtain/maintain gainful
employment. At the time of the review hearing, [Father] had
not complied in any way with his individualized treatment plan.
He failed to submit to paternity testing, did not complete the
initial evaluation for Dependency Treatment Court, nor did he
participate in an additional drug, alcohol, or mental health
3
On May 4, 2016, we remanded this matter to the orphans’ court for the
drafting of a Pa.R.A.P. 1925(a) opinion. The orphans’ court promptly
complied, and this matter is now ripe for disposition.
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assessment. Petition for Involuntary Termination of Parental
Rights, p. 9.
Of great concern to this court was [Father’s] inability to
refrain from the use of drugs or alcohol. [Father] was
administered eight urine screens before he was detained on a
probation violation in January, 2015. Of those screens, two
were positive for opiates and one considered a no-show positive.
Petition for Involuntary Termination of Parental Right, p. 9.
Due to [Father’s] lack of compliance with his court-ordered
treatment plan, the permanency goal was changed to adoption.
All further services to [Father] were ordered terminated.
A termination hearing took place on December 2 and 3,
2015. At the time of the hearing, [Father], incarcerated in state
prison, participated via telephone. Involuntary Termination of
Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 17-20.
The testimony presented at the termination hearing
revealed the following:
[Father’s] history with drug use began when he tested
positive for heroin and morphine in September, 2013. [Father]
was ordered into detox by his probation officer. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1, p. 46-
47. At this time and through November, 2013, H.O. was placed
with a maternal aunt. Id.
In December, 2013, H.O. was returned to his mother at a
community house, but then placed with his aunt when mother
moved to a different treatment facility. During this time,
[Father] made sporadic contact with H.O. [Father] explained his
lack of contact was because of a “difficult” relationship with the
aunt because he had not submitted to paternity testing.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 1, 12/2/15, p. 48-50.
However, the record reflects that as early as 2013, OCY
attempted to assist [Father] in obtaining a paternity test.
[Father] did not dispute the agency’s efforts, but instead
attempted to excuse his failure to obtain the test by alleging he
did not have the money to do it, despite working sixty hours per
week. Involuntary Termination of Parental Rights Hearing
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Transcript, Day 1, 12/2/15, p. 84-85. [Father] blamed his lack
of funds on having to spend money on gas each day to drive to
Erie to fulfill the conditions of his probation. Id.
[Father] again violated his probation contract by leaving
Erie County on an unapproved visit to see the mother in
Ashland, Pennsylvania and was once again detained, revoked,
and incarcerated in early 2014. From March through June,
2014, [Father] had no contact with H.O. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p. 52-53.
Probation next detained [Father] in November, 2014 for
opioid use. Involuntary Termination of Parental Rights Hearing
Transcript, Day 1, 12/2/15, p. 31.
Following [Father’s] release from prison in December,
2014, [Father] was scheduled to begin treatment at Stairways
Behavioral Health, but was once again detained because of
positive urine results for opiates. [Father] was revoked on
February 6, 2015 and sentenced to a period of 18-36 months
incarceration in state prison. Involuntary Termination of
Parental Rights Hearing Transcript, 12/2/15, Day 1, p. 33.
In addition to [Father’s] failure to refrain from drug use
and failure to comply with conditions of his probation, his
testimony at the termination hearing also showed he failed to
complete other portions of his treatment plan, including
submission for evaluation for the Erie County Family Dependency
Treatment Court. Involuntary Termination of Parental Rights
Hearing Transcript, 12/2/15, Day 1, p. 42. [Father] disputes his
non-compliance with this portion of the treatment plan, stating
the “whole situation” was not explained to him. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p. 78-80.
However, testimony from the caseworker and a
representative from Dependency Treatment Court showed the
contrary. Involuntary Termination of Parental Rights Hearing
Transcript, Day 1, 12/2/15, p. 42. The Dependency Court liaison
testified she explained to [Father] how he could get assessed for
court, gave him the date of orientation, and followed up by
providing this information in a letter. Id. at 42-43, 46, 60-61.
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Despite the [C]hildren’s adjudication in December, 2014,
the agency was involved with the family as early as May, 2013.
Workers attempted to provide housing assistance and supplied
[Father] with information regarding programs designed to help
him support himself. The caseworker also attempted to assist in
[Father’s] compliance with his probation, but was unsuccessful.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 1, 12/2/15, p. 46-47. Erie County Adult Probation made
similar attempts to secure [Father’s] compliance with his
treatment plan and conditions of probation. These efforts were
also unsuccessful. Involuntary Termination of Parental Rights
Hearing Transcript, Day 1, 12/2/15, p. 46-47.
All additional efforts to help [Father] complete a mental
health assessment, and obtain employment and safe and stable
housing were also unsuccessful. Other than eventually
establishing paternity of H.O. and L.D., [Father] failed to comply
with the remaining portions of his treatment plan. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p. 59-61.
[Father’s] testimony at the termination hearing lacked
credibility and showed a refusal to take responsibility for his
actions. [Father] claimed he participated in some groups, but
never provided any documentation to verify this. He made an
incredible assertion to his caseworker that at least one of his
positive urinalyses for heroin was caused by ingesting breast
milk from the mother stored in the refrigerator. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p. 66-67. [Father] stated H.O. lived with him other
than the three months he was incarcerated. However, when
questioned on cross-examination about the timeframe, he stated
“that was a long time ago” and he was not sure of all the dates.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 1, 12/2/15, p. 86-88.
[Father] relayed to this court his projected release date
from prison was sometime in the week of February 26th, 2016,
after he completed a certain program, but this information was
later contradicted by a submission from his counsel. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p. 80.
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[Father] acknowledged he had not seen L.D. since she was
one month old and likely had no bond with her. [Father] also
agreed he had not seen H.O. for over a year, which amounted to
more than one-third of H.O.’s life. Involuntary Termination of
Parental Rights Hearing Transcript, Day 2, 12/3/15, p. 17-18.
As of the date of the termination hearing, the [C]hildren
were thriving in the care of an approved foster family. This
family is also an adoptive resource. The family meets all of the
[C]hildren’s extensive special needs brought about because of
their in utero drug exposure. The [C]hildren are bonded to their
foster family, with their needs met along with the stability and
permanency they require in order to thrive. Involuntary
Termination of Parental Rights Hearing Transcript, Day 1,
12/2/15, p, 67-68.
Based on the foregoing, this court concluded [Father’s]
testimony was not credible and that the agency met their burden
of proof by clear and convincing evidence under 23 Pa.C.S.A.
§2511 (a)(1), (2), (5), and (b). Involuntary Termination of
Parental Rights Hearing Transcript, Day 2, 12/3/15, p. 23.
Orphans’ Court Opinion, 5/12/16, at 2-7.
On December 3, 2015, the orphans’ court terminated Father’s parental
rights to L.D. and H.O., and Father filed a timely appeal. In Father’s notice
of appeal, Father’s counsel included a statement of intent to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967)4 and
Pa.R.A.P.1925(c)(4). See In the Interest of J.T., 983 A.2d 771, 772 (Pa.
Super. 2009) (applying Anders procedures and Pa.R.A.P. 1925(c)(4) to
appeals involving the termination of parental rights). On March 4, 2016,
4
Anders sets forth the requirements for counsel to withdraw from
representation on direct appeal. See also Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009) (discussing Anders and explaining Pennsylvania’s
requirements for an Anders brief when counsel petitions to withdraw on
direct appeal).
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counsel filed an Anders brief, and on March 7, 2016, counsel filed a petition
to withdraw.
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) (emphasis in
original) (citation omitted). In In re V.E., 611 A.2d 1267, 1275 (Pa. Super.
1992), this Court extended the Anders principles to appeals involving the
termination of parental rights.
“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., 856 A.2d at 1237. In Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the
second requirement of Anders, i.e., the contents of an Anders brief, and
instructed that the brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
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(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. “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., 856 A.2d at 1237 (citation omitted). With respect to the third
requirement of Anders, that counsel inform the defendant of his rights in
light of counsel’s withdrawal, this Court has held that counsel must “attach
to [his] petition to withdraw a copy of the letter sent to [his] client advising
him . . . of [his] rights.” Commonwealth v. Millisock, 873 A.2d 748, 752
(Pa. Super. 2005).
Here, counsel indicated that he reviewed the record and determined
that an appeal would be frivolous. Petition to Withdraw, 3/7/16, at
unnumbered 1. Additionally, we conclude that counsel’s Anders brief
comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Attached to his petition to withdraw, counsel
included a copy of the letter he sent to Father. In this letter, counsel
informed Father of his intention to seek permission to withdraw because
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there are no meritorious issues. Letter, 3/4/16. Counsel then states: “At
this point, you may make any additional arguments you have to the Superior
Court directly. Make sure to file these arguments in writing and list the
docket number as 27 WDA 2016.” Id. (emphasis in original). We are
cognizant that while counsel was clear as to how Father may present
additional argument to this Court, counsel did not specifically delineate that
Father may raise these issues on his own or retain private counsel. In
re: S.M.B., 856 A.2d at 1237 (emphasis added). Nevertheless, we conclude
that Father has minimally complied with the aforementioned requirements,
and having received no correspondence from Father despite counsel
instructing him on how to do so, we proceed to the merits of the issues
raised and our own independent review of the entire record.
In the Anders brief, counsel presents the following issues:
1. DID THE LOWER COURT ERR IN DETERMINING THAT
TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
Pa.C.S.A. 2511(a)(2), AS [Father] HAD REMEDIED THE
CONDITIONS THAT LED TO PLACEMENT AND HAD NOT
EVIDENCED A SETTLED PURPOSE TO RELINQUISH RIGHTS?
2. DID THE LOWER COURT ERR IN DETERMINING THAT
TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
Pa.C.S.A. 2511(a)(1), AS [Father] DID NOT EVIDENCE A
SETTLED PURPOSE TO RELINQUISH RIGHTS?
3. DID THE LOWER COURT ERR IN DETERMINING THAT
TERMINATION OF RIGHTS WAS APPROPRIATE PURSUANT TO 23
Pa.C.S.A. 2511(b), IN THAT TERMINATION WAS NOT IN THE
CHILD[ren’s] BEST INTEREST?
4. WAS COURT-APPOINTED COUNSEL INEFFECTIVE AT TRIAL?
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Anders Brief at 5.5
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[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., [613] Pa. [371], 34 A.3d 1, 51 (2011);
Christianson v. Ely, 575 Pa. 647, 654, 838 A.2d 630, 634
(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.
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re: R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
The standard of clear and convincing evidence is defined as
testimony 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.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
5
For purposes of our discussion, we have renumbered the issues presented.
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The termination of parental rights involves a bifurcated analysis,
governed by Section 2511 of the Adoption Act, 23 Pa.C.S. § 2101 et seq.
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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the matter sub judice, the orphans’ court terminated Father’s
parental rights under sections 2511(a)(1), (2), (5), and (b), which provide
as follows:
§ 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.
* * *
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(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.
* * *
(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. § 2511(a)(1), (2), (5), and (b).
This Court may affirm the orphans’ court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc).
Because of Father’s continued course of conduct and inability or
unwillingness to remedy the situation, we focus our analysis on 23 Pa.C.S.
§ 2511(a)(2). See In re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011)
(observing that if we agree with the trial court’s decision as to termination of
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parental rights under any subsection of 23 Pa.C.S. § 2511(a), we need not
address the remaining subsections).
The orphans’ court addressed Father’s actions and inaction leading up
to the order terminating his parental rights as follows:
[Father’s] refusal to address and accept responsibility for
his drug addiction and refusal to comply with a court-ordered
treatment plan show a settled purpose of relinquishing his
parental claim to the [C]hildren and that the conditions which led
to the removal or placement of the [C]hildren cannot or will not
be remedied.
Though [Father] stated he “believed” he was in compliance
with the court order requiring him to follow through with
evaluations for Drug Treatment Court, Stairways [Behavioral
Health], and a separate mental health evaluation, he also stated
his lack of compliance was not his fault because the “whole
situation” was not explained to him.
Caseworker and probation officer testimony show this
could not possibly have been the case. Both agencies indicated
they went out of their way to make themselves available for
consultation with [Father] and gave him as much guidance as
they could to secure his compliance.
Agency involvement began well before the [C]hildren were
adjudicated dependent, in an effort to give [Father] every
opportunity to succeed as a parent. Despite the efforts of
probation and the agency, [Father] never obtained the
assessments, and failed to complete even the bare minimum
requirements of his treatment plan.
[Father] also minimized and attempted to explain away his
multiple incarcerations for drug use. He cited that at least one
time he had a prescription for hydrocodone. Later, [Father]
made the preposterous assertion that he tested positive for
opiates because he accidentally drank the mother’s breast milk
which must have contained the drugs. Involuntary Termination
of Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 66-67.
The record reflects that even if [Father] did have a valid
prescription for hydrocodone, he was revoked from probation
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and sentenced to [a state correctional institution] following at
least his third relapse on opiates. Involuntary Termination of
Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 32-33.
During the age[n]cy’s formal and informal involvement
with this family, [Father] tested positive for heroin and morphine
in September, 2013, late October and early November, 2014,
and again in January, 2015. Involuntary Termination of Parental
Rights Hearing Transcript, Day 1, 12/2/15, p. 31-33, 46-47. The
last of these positive screens resulted in [Father’s] probation
revocation and sentence to a state correctional institution.
[Father’s] contact with H.O. was “sporadic” even when he
wasn’t incarcerated, and due to his incarceration, [Father] has
not seen his daughter, L.D., since she was one month old. By
the time of the termination hearing, he had not seen his son for
over one year and presented no testimony to indicate to this
court he even tried to maintain contact with either child.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 2, 12/3/15, p. 16-19.
In determining whether termination of parental rights is
warranted, the trial court must “examine the totality of
circumstances, and consider all explanations offered by the
parents.” However, the court must always “accord primary
consideration to the needs and welfare of the children.” In the
Interest of K.B., 763 A.2d 436, 439 (Pa. Super. 2000). [Father]
made excuse after feeble excuse in a weak attempt to explain
away circumstances leading to his incarceration and has refused
to take responsibility for his actions. …
Orphans’ Court Opinion, 5/12/16, at 9-11.
After review, we agree with the orphans’ court and conclude that at
nearly every turn, Father has failed to exhibit any indication of his desire to
act as a parent thereby causing the Children to be without the essential
parental care or control necessary for their well-being. While incarceration
alone is not a “litmus test” for terminating parental rights, and while some
incarcerated parents are willing and able to maintain a parental relationship
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with their children,6 Father has failed in this regard, both while incarcerated
and while at liberty. The Children’s lives “simply cannot be put on hold in
the hope that [Father] will summon the ability to handle the responsibilities
of parenting.” In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010). It is
evident from a review of the record as a whole that the agency has met its
burden of proof under section (a)(2). Accordingly, we conclude that there
was no abuse of discretion in the trial court involuntarily terminating Father’s
parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(2).
In his second issue, Father claims that the orphans’ court erred in
terminating his parental rights under 23 Pa.C.S. § 2511(a)(1). However,
because we concluded that Father’s parental rights were properly terminated
under 23 Pa.C.S. § 2511(a)(2), we need not address this claim. In re M.T.,
101 A.3d at 1179; In re N.A.M., 33 A.3d at 100.
In the third issue presented in the Anders brief, it is alleged that the
orphans’ court erred in concluding that it was in the best interests of the
Children to terminate Father’s parental rights. Anders Brief at 14.
We disagree.
Our Supreme Court has stated:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
6
See In re Adoption of S.P., 47 A.3d at 830 (discussing incarceration as
a factor in terminating parental rights).
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love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
The orphans’ court set forth its section 2511(b) needs-and-welfare
scrutiny as follows:
During his testimony, [Father] asserted he had a bond
with his children, and it was therefore contrary to the
[C]hildren’s best interests to terminate his parental rights. The
record flatly contradicts this assertion.
[Father] last saw L.D. when she was one month old.
[Father] acknowledged he probably had no bond with her.
Involuntary Termination of Parental Rights Hearing Transcript,
Day 2, 12/3/15, p. 17. Though [Father] claimed he provided
care to H.O. for approximately three months of his life, at the
time of the termination hearing, the [Father] had not seen H.O.
for over a year, or one third of his life. Involuntary Termination
of Parental Rights Hearing Transcript, Day 1, 12/2/15, p. 86-89.
No evidence was presented to show [Father] attempted to
maintain contact with the [C]hildren at any point prior to the
filing of the petition to involuntarily terminate his rights. Though
[Father] says he loves his children, his actions indicate
otherwise. “A parent’s own feelings of love and affection for a
child do not prevent termination of parental rights.” See In re
L.M., 923 A.2d 505, 512 (Pa. Super. 2007). Despite [Father’s]
feelings, it obvious to this court no bond existed between him
and his children.
Given [Father’s] numerous relapses, this court remained
unconvinced [Father] would be able to meet the needs of the
[C]hildren. These needs are being met by the pre-adoptive
family. The [C]hildren are now in a stable and secure
environment where they are loved, and bonded with the family.
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Involuntary Termination of Parental Rights Hearing Transcript,
Day 1, 12/2/15, p. 96-98.
Orphans’ Court Opinion, 5/12/16, at 11-12.
We agree with the orphans’ court’s analysis; aside from Father’s self-
serving testimony, there is no indication that the Children are bonded with
Father or that he contributes to their needs or welfare. The orphans’ court’s
factual findings are supported by the record, and its legal conclusions are
not the result of an error of law or an abuse of discretion. Accordingly, we
agree with the orphans’ court’s analysis with regard to 23 Pa.C.S. § 2511(b).
In the fourth issue presented in the Anders brief, it is alleged that
counsel was ineffective in representing Father in the termination
proceedings. Anders Brief at 16. While counsel provides no argument on
this point, because we are constrained to conduct an independent review of
the record, we shall address the issue on that basis. In re: S.M.B., 856
A.2d at 1237
“Pennsylvania statutes do not require counsel in termination
proceedings, although Pennsylvania case law does, In re Adoption of R.I.,
455 Pa. 29, 312 A.2d 601 (1973), and flowing from this it is presumed that
counsel would and should be effective.” In re Adoption of T.M.F., 573
A.2d 1035, 1040 (Pa. Super. 1990).
In the context of a termination proceeding, the best
approach ... is the fundamental fairness doctrine whereby, in the
exercise of its broad scope of review, an allegation of
ineffectiveness of counsel on appeal would result in a review by
this Court of the total record with a determination to be made
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whether on the whole, the parties received a fair hearing, the
proof supports the decree by the standard of clear and
convincing evidence, and upon review of counsel's alleged
ineffectiveness, any failure of his stewardship was the cause of a
decree of termination. Mere assertion of ineffectiveness of
counsel is not the basis of a remand or rehearing, and despite a
finding of ineffectiveness on one or more aspects of the case, if
the result would unlikely have been different despite a more
perfect stewardship, the decree must stand.
T.M.F., 573 A.2d at 1044. As applied, the fundamental fairness standard in
civil termination cases is more limited than the right to effective assistance
of counsel in a criminal case. In re J.T., 983 A.2d at 775. The party
alleging ineffective assistance of counsel in a termination of parental rights
case must show by clear and convincing evidence that it is more likely than
not that the result of the proceeding would have been different, absent the
alleged ineffectiveness. In re K.D., 871 A.2d 823, 829 (Pa. Super. 2005).
After review we conclude, based on the overwhelming evidence in
favor of terminating his parental rights, Father cannot establish by clear and
convincing evidence that absent counsel’s alleged ineffectiveness, the result
of the hearing would have been different. Father’s claim of ineffective
assistance of counsel is frivolous.
Finally, we are mindful that once satisfied that counsel has complied
with the Anders requirements, this Court undertakes an independent
examination of the record to determine whether the appeal is wholly
frivolous. In re: S.M.B., 856 A.2d at 1237. However, our review of the
record does not reveal any non-frivolous issues overlooked by counsel.
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After a careful and independent review of the record, and identifying
no other non-frivolous issues, we conclude that the orphans’ court’s findings
are supported by the record, and it reasonably concluded that the elements
of section 2511(a)(2) and (b) were met. We discern no abuse of discretion
or error of law in this decision. Accordingly, we affirm the orphans’ court’s
decree terminating Father’s parental rights, and we grant counsel’s petition
to withdraw.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2016
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