J-S92029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: S.L.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.W., NATURAL FATHER
No. 1082 WDA 2016
Appeal from the Decree June 10, 2016
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): No. 63 in Adoption 2014
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 07, 2017
C.W. (“Father”) appeals from the decree entered on June 10, 2016, in
the Erie County Court of Common Pleas terminating his parental rights to his
minor child, S.L.W. (“Child”), under 23 Pa.C.S.A. § 2511(a)(1), (6), and (b).
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and a petition to withdraw as counsel. We grant counsel’s petition
to withdraw and affirm the decree terminating Father’s parental rights.
On January 27, 2016, J.D., the prospective adoptive parent of Child,
filed a petition to involuntarily terminate Father’s parental rights. 1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Mother voluntarily relinquished her parental rights, and, on May 2,
2016, the trial court confirmed this relinquishment and terminated Mother’s
parental rights.
J-S92029-16
The trial court found the following facts:
[Child] was born [in] June[,] 2014. J.D. received
custody of [Child] on August 27, 2014, after the child’s
mother indicated she wanted to put [Child] up for
adoption. At the time, the child was approximately twelve
weeks old. Before giving the child to J.D. the child’s natural
mother met with J.D., spoke with her on the phone, and
allowed J.D. to visit with the child regularly. Around this
time, J.D. learned the identity of the child’s natural father.
After J.D. took custody of [Child], she maintained
regular contact with the natural mother. Despite this
contact, the natural mother’s knowledge of J.D.’s contact
information, and J.D.’s knowledge the natural mother gave
birth to another one of [Father’s] children, [Father] never
contacted J.D. [Father] never filed for custody of the child
or paid child support. J.D. never received letters, cards,
presents, or phone calls from [Father] asking to speak to
the child or otherwise stay involved in the child’s [life].
J.D. stated she had no contact with [Father], nor had the
child seen [Father] since August, 2014, before the child
came into her care.
At one point the natural mother told J.D. [Father] asked
about the child. J.D. told the natural mother to give her
attorney’s contact information to [Father], and to have the
[Father] correspond with him. After this, J.D. was aware of
only two instances in which [Father] contacted her
attorney by telephone. These calls were made prior to
October, 2014. [Father] made no other attempt to contact
J.D. or her attorney after this time.
Since August of 2014, J.D. testified she tended to all of
[Child]’s needs. When J.D. first began caring for [Child],
the child had a severe yeast infection on her neck, in her
mouth, and in her diaper area. [Child] was also slightly
under weight. Once in J.D.’s care, the child gained healthy
weight, her yeast infection cleared, and she met all of her
developmental milestones.
According to J.D., she and the child were closely
bonded. J.D. stated the child calls her “mama” and was
also bonded to J.D.’s extended family. Under J.D.’s
-2-
J-S92029-16
tutelage, the child, though just two years old at the time of
the hearing, could count to seven, identify parts of her
body, and identify animals by sound. J.D. stated she was
able to financially support the child, as she had a full time
job as a registered nurse.
Despite [Father’s] testimony he loved [Child] and was
ready, willing, and able to care for her, it was apparent he
had no means of doing so, and had done nothing [to]
maintain contact with the child or show interest in her life.
At the time of the termination hearing, [Father] was
incarcerated on flight charges, pending sentencing. There
was also an active [protection from abuse order] against
him protecting the child’s natural mother, which was
extended for a period of one year only two days before the
termination hearing. [Father] testified he had nine children
ranging in age from seventeen to newborn. The newborn’s
mother was [Child]’s natural mother.
[Father] acknowledged he spoke with J.D.’s attorney in
2014 regarding J.D.’s potential adoption of [Child].
[Father] knew he needed to obtain counsel, but stated no
one would help him. [Father] left his brother’s address
with J.D.’s attorney, but did not update his address with
J.D.’s attorney after he moved in 2015. [Father] stated he
wasn’t aware he “was supposed to call.” [Father] only
admitted to receiving paper work at his brother’s address
via sheriff’s service.
[Father] also testified that despite being aware of the
process to obtain custody of or visitation with a child, he
did not do it because he would need to pay for it. In all of
[Father’s] other open custody cases, the mothers of his
other children filed and paid for all of the paperwork.
When asked why he did not pay child support, [Father]
stated he could not afford to because he received
disability. [Father] claimed he could not read and write,
despite having sent several letters to the attorneys in the
case. He claimed his cellmate wrote the letters for him.
However, he never sent a letter to J.D.’s attorney.
Although [Father] insisted he could not read or write, he
testified he was “good with [his] law work,” and composed
a motion for early release from incarceration, which was
-3-
J-S92029-16
granted. [Father] later insisted he sent presents to the
child via the natural mother, but had no proof of this.
Later, [Father] claimed he received disability, and
worked full time, but only when he was on work release.
At the close of testimony, a finding was made on the
record that J.D.’s testimony was more credible than
[Father’s].
1925(a) Opinion, 1/11/17, at 3-6 (“1925(a) Op.”) (internal citations
omitted).
On June 10, 2016, the trial court entered a decree terminating Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (6), and (b). On July 7,
2016, Father’s counsel filed a timely appeal and a statement of intention to
file a brief pursuant to Anders. On September 27, 2016, counsel filed an
Anders brief and a petition for leave to withdraw as counsel.2
When presented with an Anders brief, this Court may not review the
merits of the underlying issues until we address counsel’s request to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc).
Before we address the issues raised in the Anders brief, we must first
determine whether counsel’s petition to withdraw satisfies the procedural
requirements of Anders. To be permitted to withdraw, counsel must:
1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record,
____________________________________________
2
On January 4, 2017, this Court remanded the case to the trial court
for the issuance of a Rule 1925(a) opinion, which the trial court filed on
January 11, 2017.
-4-
J-S92029-16
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3)
advise the defendant that he or she has the right to retain
private counsel or raise additional arguments that the
defendant deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc).
Here, counsel filed a petition for leave to withdraw as counsel, stating
that she thoroughly reviewed “all available transcripts, pleadings and other
materials from the file.” Pet. for Leave to Withdraw, ¶ 1. Counsel notified
Father of the withdrawal request, supplied him with copies of the petition for
leave to withdraw and the Anders brief, and sent Father a letter explaining
his right to proceed pro se or with new, privately-retained counsel to raise
any additional points or arguments that Father believed had merit. See Pet.
for Leave to Withdraw, ¶ 3; Letter to Father. We conclude that Father’s
counsel has met the procedural requirements of Anders.
We must next determine whether counsel’s Anders brief meets the
requirements established by the Pennsylvania Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The brief 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.
-5-
J-S92029-16
Id. at 361. Further, “[a]fter establishing that the antecedent requirements
have been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006) (quoting
Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997)).
In the Anders brief, counsel provides a summary of the facts and
procedural history of the case, refers to evidence of record that might
arguably support the issues raised on appeal, provides citations to relevant
case law, states her conclusion that the appeal is wholly frivolous, and states
her reasons for concluding the appeal is frivolous. Accordingly, counsel has
complied with the requirements of Anders and Santiago.
Appellant has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review the issues raised in the
Anders brief:
WHETHER THE ORPHANS’ COURT COMMITTED AN ERROR
OF LAW AND/OR ABUSED ITS DISCRETION WHEN IT
CONCLUDED THAT TERMINATION OF PARENTAL RIGHTS
WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE
PURSUANT TO 23 Pa. C.S.A. §2511(a)(1)?
WHETHER THE ORPHANS’ COURT COMMITTED AN ERROR
OF LAW AND/OR ABUSED ITS DISCRETION WHEN IT
CONCLUDED THAT TERMINATION OF PARENTAL RIGHTS
WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE
PURSUANT TO 23 Pa. C.S.A. §2511(a)(6)?
WHETHER THE ORPHANS’ COURT COMMITTED AN ERROR
OF LAW AND/OR ABUSED ITS DISCRETION WHEN IT
CONCLUDED THAT TERMINATION OF PARENTAL RIGHTS
WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE
PURSUANT TO 23 Pa. C.S.A. §2511(b)?
-6-
J-S92029-16
Anders Br. at 3.
When reviewing a trial court’s order terminating parental rights, we
must accept the trial court’s factual findings if they are supported by the
record and must “determine if the trial court made an error of law or abused
its discretion.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). An
abuse of discretion “does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision may be
reversed for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. (internal
citations omitted).
The Pennsylvania Supreme Court has explained the reason for
applying an abuse of discretion to termination decisions:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
Id. at 826-27 (internal citation omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. § 2511, which requires a bifurcated analysis.
-7-
J-S92029-16
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) (citations omitted).
The petitioner has the burden of proving by clear and convincing
evidence that the asserted statutory grounds for seeking termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super.
2009). This Court need only agree with any one subsection of section
2511(a), along with section 2511(b), in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc).
We conclude that the trial court properly terminated Father’s parental
rights pursuant to sections 2511(a)(1) and (b), 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.
...
-8-
J-S92029-16
(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), (b).
This Court has explained the review of a challenge to the sufficiency of
the evidence supporting the involuntary termination of a parent’s rights
pursuant to section 2511(a)(1) as follows:
To satisfy the requirements of section 2511(a)(1), the
moving party must produce clear and convincing evidence
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.
...
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 his 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) (citations omitted).
This Court has emphasized that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
-9-
J-S92029-16
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (quoting
In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)). We have explained:
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 himself 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 his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the
path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one's parental responsibilities
while others provide the child with his or her physical and
emotional needs.
Id. (internal quotations and citations omitted).
Here, the trial court found:
[Father’s] failure to perform parental duties and his
absence from the child’s life shows [Father’s] settled
purpose of relinquishing his parental rights to [Child].
Since August, 2014, when J.D. began caring for the child,
[Father] made no credible attempt to maintain contact
with the child, send birthday cards, letters, pictures, or
gifts. J.D. learned third hand [Father] inquired about
[Child], passed along her attorney’s information, whom the
[Father] called at least twice. Despite this interaction
- 10 -
J-S92029-16
Father had no contact with J.D. or child, and failed to
follow through with the attorney’s simple directives to
appear at his office to go over paperwork. [Father]
admitted he went to the attorney’s office at some point but
did not go in, stating he thought “[the attorney and him]
would have a problem, so [he] avoided that problem.”
The trial court rejected much of [Father’s] additional
testimony as incredible. [Father] claimed he was disabled,
unable to work, and unable to read and write, yet later
reported he could work as many as twenty hours and claim
disability checks, or work full time, but only through the
work release program at the county prison. [Father]
testified time and time again he paid cellmates or had his
brother write documents for him. [Father] asserted he was
so “good with his law work” his motion for early release
from incarceration was granted. Yet, despite [Father’s]
self-proclaimed proficiency in the law and available
assistance, he never filed for custody, any other relief, or
attempted to contact the child.
1925(a) Op. at 7-8 (internal citations omitted). The record supports the trial
court’s factual findings, and the court did not abuse its discretion in
terminating Father’s rights under section 2511(a)(1).
We must next review the trial court’s conclusion that termination of
Father’s parental rights would best serve the developmental, physical, and
emotional needs and welfare of Child. We have discussed our analysis
pursuant to section 2511(b) as follows:
Section 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child. As
this Court has explained, Section 2511(b) does not
explicitly require a bonding analysis and the term ‘bond’ is
not defined in the Adoption Act. Case law, however,
provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with
his or her child is a major aspect of the subsection 2511(b)
- 11 -
J-S92029-16
best-interest analysis, it is nonetheless only one of many
factors to be considered by the court when determining
what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and
citations omitted).
Here, the trial court found:
An argument termination of [Father’s] parental rights
was not in the child's best interest is unsupported by the
record. At the time the natural mother gave the child to
J.D., the child was only three months old. According to
both [Father’s] and J.D.’s testimony, [Father] had not seen
the child since August, 2014. In no way could [Father] be
bonded to [Child].
The child continuously lived with J.D. It is clear she and
the child are closely bonded. The home provided by J.D. is
likely the only home the child remembers or knows. The
child calls J.D. “mama” and J.D. has provided for all of the
child’s medical care, food, clothing, and shelter. Based on
J.D.’s demeanor on the witness stand, it is clear she cares
deeply for the child and is likewise bonded to her. The
child’s interests are best served by terminating [Father’s]
parental rights and allowing her to stay in J.D.’s care.
1925(a) Op. at 8 (internal citations omitted). The record supports the trial
court’s factual findings. We conclude that the trial court did not abuse its
- 12 -
J-S92029-16
discretion in finding termination of Father’s parental rights would best serve
the developmental, physical, and emotional needs and welfare of Child.
Further, we have conducted a thorough and independent review of the
record and have found no non-frivolous issues for appeal.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
- 13 -