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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.B., A : IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.B., MOTHER : No. 2534 EDA 2017
Appeal from the Decree July 17, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000489-2017,
CP-51-DP-0002974-2015
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.B., MOTHER : No. 2536 EDA 2017
Appeal from the Decree July 17, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000490-2017,
CP-51-DP-0002975-2015
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 07, 2018
T.B. ("Mother") appeals from the decrees entered July 17, 2017, in the
Court of Common Pleas of Philadelphia County, which involuntarily terminated
her parental rights to her minor sons, L.B., born in October 2014, and A.B.,
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born in September 2015 (collectively, "the Children").1 Mother also appeals
from the order entered that same day, which changed the permanent
placement goal of A.B. to adoption. Additionally, Mother's counsel filed a
motion to withdraw and brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon
review, we grant counsel's motion to withdraw and affirm the decrees and
order.
The trial court summarized the relevant factual and procedural history
of this matter as follows.
. . The Philadelphia Department of Human Services ("DHS")
. .
first became aware of this family on September 27, 2015 when it
received a General Protective Services ("GPS") report concerning
allegations that Mother, while pregnant with A.B., tested positive
for marijuana at one of her two prenatal visits. The GPS report
also alleged that Mother had mental health issues. The report was
determined to be valid, and the Community Umbrella Agency
("CUA") placed in -home services in the home and put a safety
plan in place. In November 2015, DHS received a Child Protective
Services ("CPS") report concerning allegations of abuse against
L.B. The CPS report was validated and indicated Mother as the
alleged perpetrator. Based on the allegations in the CPS report,
the Children were removed from the home on November 14,
201[5].
Following a shelter care hearing for the Children on
November 16, 2015, the Honorable Glynnis Hill granted temporary
legal custody to DHS and allowed Mother to have supervised visits
1 The trial court entered a separate decree that same day, terminating the
parental rights of A.B.'s putative father, D.M. The court entered an order
denying termination with respect to L.B.'s putative father, A.W. The court
also entered decrees terminating the parental rights of any unknown fathers
that the Children may have. Neither, D.M., nor any unknown father, appealed
the termination of his parental rights.
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with the Children at the agency. Following the shelter care
hearing, DHS filed dependency petitions for the Children based on
the information discussed supra. Judge Hill subsequently held an
adjudicatory hearing on November 24, 2015 and adjudicated the
Children dependent based on Mother's present inability. At the
adjudicatory hearing, Judge Hill discharged the temporary
commit[ment] and granted full legal and physical custody of the
Children to DHS. An initial permanency review hearing was held
on February 24, [2016], at which time the goal was identified as
reunification.
Trial Court Opinion, 9/1/2017, at 1-2 (citations to the record omitted).
On April 28, 2017, DHS filed petitions to involuntarily terminate Mother's
parental rights to the Children, and to change the Children's permanent
placement goals to adoption. The trial court conducted a combined
termination and goal change hearing on July 17, 2017.2 Following the hearing,
the court entered decrees terminating Mother's parental rights to both
Children, and entered an order changing A.B.'s goal to adoption.3 Mother
timely filed notices of appeal on August 3, 2017, along with statements of
counsel's intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).4
Counsel filed an Anders brief on October 2, 2017, and filed a motion to
withdraw on October 3, 2017.
2 The Honorable Daine Grey, Jr., presided over the hearing.
3The docket reflects that the trial court subsequently amended its goal change
order to include a provision vacating the appointment of A.B.'s counsel.
4 Mother indicated in her notices of appeal that she was also appealing the
order changing J.B.'s permanent placement goal to adoption. While the trial
court entered a permanency review order with respect to J.B. on July 17,
2017, the order maintained his prior goal of return to parent or guardian.
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Before reaching the merits of Mother's appeal, we must address
counsel's motion to withdraw. See Commonwealth v. Rojas, 874 A.2d 638,
639 (Pa. Super. 2005) ("When faced with a purported Anders brief, this Court
may not review the merits of the underlying issues without first passing on
the request to withdraw.") (quoting Commonwealth v. Smith, 700 A.2d
1301, 1303 (Pa. Super. 1997)). This Court extended the Anders procedure
to appeals from decrees involuntarily terminating parental rights in In re V.E. ,
611 A.2d 1267 (Pa. Super. 1992). To withdraw pursuant to Anders, counsel
must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). With respect to the third requirement of Anders, that counsel inform
the appellant of his or her rights in light of counsel's withdrawal, this Court
has held that counsel must "attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights." Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following
requirements:
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(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.
Santiago, 978 A.2d at 361.
In the instant matter, Mother's counsel filed a motion to withdraw,
certifying that she reviewed the case and determined that Mother's appeal is
frivolous. Counsel also filed a brief, which includes a summary of the history
and facts of the case, potential issues that could be raised by Mother, and
counsel's assessment of why those issues are frivolous, with citations to
relevant legal authority. Counsel provided Mother with a copy of the brief,
and with a letter advising her that she may obtain new counsel or raise
additional issues pro se.5 Accordingly, counsel complied with the
requirements of Anders and Santiago. We may therefore proceed to review
the issues outlined in the Anders brief. In addition, we must "conduct an
independent review of the record to discern if there are any additional, non -
5 Counsel initially failed to attach a Millisock letter to her motion to withdraw.
On October 10, 2017, this Court entered a per curiam order, directing counsel
to file a Millisock letter within fourteen days. We also directed Mother's
counsel to file a certificate of service, indicating that she served the Anders
brief on Mother. Counsel complied by filing the letter and certificate on
October 11, 2017.
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frivolous issues overlooked by counsel." Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Counsel's Anders brief raises the following claim for our review. "Did
the trial court commit an error of law and abuse of discretion by involuntarily
terminating [Mother's] parental rights?" Anders brief at 2.
We review this claim mindful of our well -settled standard of review.
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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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
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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).
In this case, the trial court terminated Mother's parental rights pursuant
to Sections 2511(a)(1), (2), (5), (8), and (b). We need only agree with the
court as to any one subsection of Section 2511(a), as well as Section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court's
decision to terminate under Section 2511(a)(2) and (b), which provides 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:
***
(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.
***
(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
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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)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother's parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). "The grounds for termination due to parental incapacity that cannot
be remedied are not 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) (citations
omitted).
Instantly, the trial court found that Mother is incapable of parenting
the Children and that she will not remedy her parental incapacity. Trial Court
Opinion, 9/1/2017, at 8-9. The court reasoned that Mother failed to comply
with her Single Case Plan ("SCP") objectives. Id. at 8.
In response, Mother argues that the trial court's decision resulted from
ineffective assistance of counsel. Anders brief at 8-10.6 This Court has
6 Mother's counsel on appeal is not the same counsel who represented her
during the hearing.
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discussed claims of ineffective assistance of counsel in termination matters as
follows.
In the context of a termination proceeding, the best approach to
suggest itself 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
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.
In re Adoption of T.M.F., 573 A.2d 1035, 1044 (Pa. Super. 1990) (en banc)
(plurality); see also In re K.D., 871 A.2d 823, 829 (Pa. Super. 2005), appeal
denied, 889 A.2d 1216 (Pa. 2005) (explaining in the context of a goal change
appeal that an appellant must "show by clear and convincing evidence that it
is more likely than not that the result would have been different absent the
ineffectiveness[.]").
After careful review, we conclude that the record supports the trial
courts findings, and that the court's decision did not result from ineffective
assistance of counsel. During the termination and goal change hearing, DHS
presented the testimony of CUA case manager, Agnieska Feulner. Ms. Feulner
testified that Mother's SCP objectives included finding affordable housing,
participating in and completing drug and alcohol treatment, complying with
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random drug screens, addressing mental health concerns, attending parenting
classes, completing a parenting capacity evaluation, attending anger
management, and attending weekly visits with the Children. N.T., 7/17/2017,
at 8.
Concerning Mother's compliance with these objectives, Ms. Feulner
testified that CUA referred Mother to the Achieving Reunification Center
("ARC") for housing, parenting, financial education, and anger management.
Id. However, ARC discharged Mother unsuccessfully after she "verbally
attacked" and "physically tried to punch" her ARC case manager. Id. at 9.
Mother did not complete a housing program anywhere else, and did not have
housing at the time of hearing. Id. Regarding her drug and alcohol objective,
Mother enrolled in a treatment program, but then failed to comply with
treatment. Id. at 8. Mother also missed four recent drug screens, and failed
to complete a parenting capacity evaluation. Id. at 8, 15. Finally, regarding
mental health, Ms. Feulner testified that Mother was involuntarily committed
to a mental hospital from June 9, 2017, until June 21, 2017. Id. at 16. During
her commitment, Mother was diagnosed with schizoaffective disorder bipolar
type. Id. Mother is currently enrolled in mental health treatment, but Ms.
Feulner was unsure whether Mother attends treatment regularly. Id. at 15-
16.
Ms. Feulner acknowledged that Mother did make some progress, by
completing a parenting program and anger management at Turning Points for
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Children in May 2017. Id. at 9-10. However, despite completing anger
management, Mother continues to engage in angry and threatening behavior.
Id. at 10. Ms. Feulner explained, "Mother would text threats, she would tell
me to go kill myself, I should die, my children should die, she has come to the
office and basically verbally attacked every single worker that she's been
working with." Id.
DHS also presented the testimony of Mother's brother, C.C. Prior to
June 2017, C.C. permitted Mother to reside with him in his home. Id. at 18.
However, C.C. testified that he became concerned with Mother's mental health
and that he called the police to have her involuntarily committed. Id. C.C.
observed Mother "Walking to herself, cussing a lot, throwing things around in
the room[.]" Id. at 19. C.C. also noticed that his kitchen knives were missing.
Id. at 18-19. The knives were later discovered under Mother's bed. Id. C.C.
testified that Mother returned to his home the day she was discharged and
"got into an incident with my fianc[é]e. . . . fracturing my fianc[e]e's face,
breaking her around the cheek bone area." Id. at 19-20.
Thus, the record confirms that Mother is incapable of parenting the
Children, and that she cannot, or will not, remedy her parental capacity.
Mother failed to comply with her SCP objectives, and she is in no position to
provide the permanence and stability that the Children require. Mother's poor
mental health, and the danger that it may pose to the Children, is particularly
troubling. As this Court has stated, "a child's life cannot be held in abeyance
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while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child's
need for permanence and stability to a parent's claims of progress and hope
for the future." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006).
For the same reasons, the record belies any suggestion that the trial
court terminated Mother's parental rights due to the ineffectiveness of her trial
counsel. See T.M.F. 573 A.2d at 1044; K.D., 871 A.2d at 829. Mother
received a fair hearing, during which DHS presented overwhelming evidence
in support of its termination petition. Our review has uncovered nothing that
counsel could have done to preserve Mother's parental rights given the facts
of this case.
We next consider whether the trial court abused its discretion by
terminating Mother's parental rights pursuant to Section 2511(b).
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) 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 bond examination, the trial court can
a
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
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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 that terminating Mother's parental rights will
best serve the Children's needs and welfare. Trial Court Opinion, 9/1/2017,
at 12. The court reasoned that the Children have no bond with Mother, and
will not suffer irreparable harm if her parental rights are terminated. Id. The
court further reasoned that the Children are bonded with their foster parent.
Id.
Mother argues that DHS failed to present clear and convincing evidence
in support of its petition to terminate her parental rights with respect to
Section 2511(b). Anders brief at 11. Mother contends that DHS presented
very little evidence regarding her relationship with A.B., and that DHS
presented no evidence at all regarding her relationship with L.B. Id.
We again discern no abuse of discretion. During the hearing, Ms.
Feulner testified that CUA offered Mother weekly visits with the Children. N.T.,
7/17/2017, at 10. Ms. Feulner was unsure of how many of those visits Mother
attended, due to possible omissions in CUA's records. Id. at 11. However,
she reported that Mother missed six of her last seven visits. Id.
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Regarding A.B.'s relationship with Mother, Ms. Feulner testified that he
"does not interact with mom at all. He kind of just does his own thing during
the visits. He is very attached to his resource parents." Id. at 12. While
visiting with Mother, A.B. asks for "Da da," his pre -adoptive foster parent. Id.
at 12-13. Ms. Feulner did not "sense a bond" between A.B. and Mother, and
she opined that A.B. would not suffer irreparable harm if Mother's parental
rights are terminated, due to the strong bond that he shares with his foster
parent. Id. at 12, 14.
As Mother argues, DHS did not present any testimony regarding L.B.'s
relationship with Mother. After DHS presented its testimony regarding A.B.,
the trial court announced that it had "incorporated by evidence [sic] any and
all relevant testimony from the matter of [A.B.] into that of [L.B.]" Id. at 35.
When counsel for DHS indicated that she intended to recall Ms. Feulner in
order to present testimony regarding L.B.'s relationship with his foster parent,
the court stated, "For what, to get that in? She testified to it on the other
child. We incorporated it by reference. It's in the testimony. I already told
you that I know it." Id. at 41. Ms. Feulner later testified that L.B. resides in
the same pre -adoptive foster home as A.B., and that he is doing well in the
home. Id. at 42.7
After the court announced its decision to terminate Mother's parental rights,
Ms. Feulner added, "Based on [L.B.'s] emotional status with visits with mom
he does regress per the therapist." N.T., 7/17/2017, at 58.
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Accordingly, the record confirms that terminating Mother's parental
rights will best serve A.B.'s needs and welfare. A.B. was removed from
Mother's care about two months after his birth. He does not interact with
Mother during visits, and there is no indication of a parent/child bond. A.B. is
bonded with his pre -adoptive foster parent, and terminating Mother's parental
rights will allow A.B. to achieve permanence and stability.
The record also supports the trial court's conclusion that terminating
Mother's parental rights will best serve the needs and welfare of L.B. At the
outset, we express concern with the court's decision to incorporate by
reference Ms. Feulner's testimony regarding A.B.'s relationship with Mother,
and to apply that testimony to L.B. It appears that the court simply assumed
that Ms. Feulner's testimony would be the same for both Children. However,
no one asked Ms. Feulner whether her testimony would be the same, and the
parties did not stipulate on the record that her testimony would be the same.
Even counsel for DHS seemed to believe that additional testimony regarding
L.B.'s needs and welfare would be necessary.
Nonetheless, L.B. has been out of Mother's care since he was a year old.
By the time of the hearing, L.B. was over two -and -a -half years old, and had
spent the majority of his life in foster care. It is doubtful that L.B. and Mother
share a parent/child bond under these circumstances. Even assuming that
L.B. and Mother do share a parent/child bond, it is clear that this bond is
outweighed by the safety risk that Mother poses to L.B. As noted by the trial
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court in its opinion, Mother is an indicated perpetrator of abuse against L.B.
Mother also continues to engage in threatening and violent behavior, such as
assaulting C.C.'s fiancée. Preserving Mother's parental rights in this case
would serve only to deny L.B. the benefits of a permanent and stable home,
and to expose him to further risk of harm.
Finally, we consider whether the trial court abused its discretion when
it changed A.B.'s permanent placement goal from reunification to adoption.8
Our standard of review is well -settled.
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court's inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alias (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child's safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
8 While Mother appealed A.B.'s goal change order, her counsel did not raise
an issue regarding the order in her Anders brief, and the trial court did not
discuss it in its opinion. Nonetheless, we address this issue in light of our duty
to review the record in search of potentially meritorious issues that counsel
may have overlooked. See Flowers, 113 A.3d at 1250.
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guide the trial court. As this Court has held, a child's life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted).
For the reasons discussed above, we conclude that the trial court did
not abuse its discretion. Mother remains incapable of parenting A.B., and
poses a risk to his safety. A.B. has no bond with Mother, and is bonded with
his pre -adoptive foster parent. It is unquestionable that A.B.'s best interest
would be served by changing his permanent placement goal from return to
parent or guardian to adoption.
Accordingly, our independent review of Mother's claims demonstrates
that they do not entitle her to relief. Moreover, our review of the record does
not reveal any non -frivolous claims overlooked by counsel. See Flowers, 113
A.3d at 1250. We therefore grant counsel's motion to withdraw, and we affirm
the July 17, 2017 decrees and order.
Motion to withdraw granted. Decrees affirmed. Order affirmed.
Jurisdiction relinquished.
Judgment Entered.
,--
Jseph D. Seletyn,
Prothonotary
Date: 2/7/18
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