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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S.S. :
:
:
:
: No. 1662 MDA 2017
Appeal from the Order Entered September 27, 2017
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000062-2016
IN THE INTEREST OF: H.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S.S. :
:
:
:
: No. 1669 MDA 2017
Appeal from the Decree Entered September 27, 2017
In the Court of Common Pleas of Cumberland County Orphans’ Court at
No(s): 96-2017
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY: FILED APRIL 06, 2018
In these consolidated appeals, M.S. (Father) appeals from the decree
entered September 28, 2017, which involuntarily terminated his parental
rights to his minor son, H.P. (Child), born in December of 2014. Father also
appeals from the order entered the same day, which changed Child’s
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S16024-18 & J-S16025-18
permanency goal to adoption.1 Additionally, Father’s counsel filed a petition
to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we grant counsel’s petition to withdraw and affirm.
The orphans’ court summarized the relevant factual history of this case
as follows.
[Father] is the biological father of [Child]. . . . [Child] was
adjudicated dependent on April 25, 2016 and placed in the kinship
home of his paternal great-grandparents [(Paternal Great-
Grandparents)]. [Child] had been living with his great-
grandparents for approximately three weeks at the time he was
adjudicated dependent, due to [Father’s] violation of probation
and subsequent incarceration for heroin use. Neither [A.P.
(Mother)] nor any family members on Mother’s side were an
appropriate resource for [Child]. [Child] has remained in
placement over the life of his dependency, which at the time of
the termination hearing had been over seventeen months.
[Child,] at no time[,] has been returned to the care of his parents.
In July 2016, a permanency plan and family service plan were put
in place with the goal of family reunification. At that time, it was
agreed that [Father] would have 1-3 visits per week with the
[C]hild, said visits to occur in the [Paternal Great-Grandparents’]
home and under their supervision; in the intervening seventeen
months until the present, the nature and frequency of those visits
have not changed. [Father] participated in the George Junior
Republic parent-child visitation program while he was
incarcerated, and completed several men’s parenting classes once
he was out of prison. However, [Father] did not successfully
complete the program and has not attended any parenting classes
since May 23, 2016. In August 2016, [Father] completed a FAST
____________________________________________
1 On September 28, 2017, the orphans’ court also terminated the parental
rights of A.P. (Mother); Mother did not appeal that determination, nor is she
a party to this appeal.
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assessment, and it was recommended that he participate in TIPS
parenting education. [Father] did not participate in TIPS.
[Father] has a long history of drug abuse. [Father] was most
recently incarcerated for heroin use on April 5, 2016. [Father] has
had numerous relapses over the period of [Child’s] dependency,
and most recently overdosed on heroin in April 2017. [Father]
has been involved in several rehabilitation programs, both
inpatient and outpatient, but has not been able to maintain
sobriety outside of rehab or after he is released from
incarceration. [Father] overdosed on heroin and was hospitalized
on or around July 27, 2016, approximately three weeks after being
released from incarceration. [Father] was discharged from the
Roxbury treatment program and the Discovery House program
due to missing classes on September 9, 2016. In mid-October
2016, [Father] was fired from his job, missed a probation
appointment, failed to show for a scheduled mental health
evaluation at Stevens Center, and left his grandparents’ home
with a friend and later refused to tell them where he was living.
In late October 2016, [Father] entered rehab at Clearbrook and
moved into a halfway house in Simpson, PA; [Father] was
discharged from the halfway house in November 2016 for
relapsing. In February 2017, [Father] entered inpatient treatment
at Keep it Green treatment program, but was discharged on
February 15, 2017 for abusing heroin. On February 27, 2017,
[Father] entered rehab at Pyramid Health Care, but overdosed on
heroin and was hospitalized in mid-April 2017. [Father] went into
inpatient therapy at Safe Haven on April 27, 2017 after being
discharged from the hospital. [Father] has been unsuccessful in
each of his attempts to complete the programs and stay sober.
Orphans’ Court Opinion, 12/11/17, at 2-4 (footnotes omitted).
On March 22, 2017, Cumberland County Children and Youth Services
(CYS) filed a petition to change Child’s permanency goal from reunification to
adoption. Thereafter, on August 17, 2017, CYS filed a petition to terminate
Father’s parental rights to Child. The orphans’ court conducted a hearing on
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both petitions on September 27, 2017.2 At the conclusion of the hearing, the
orphans’ court orally delivered its decree terminating Father’s parental rights
to Child and changing Child’s permanency goal to adoption. The orphans’
court entered its decree on September 28, 2017. Father timely filed notices
of appeal on October 27, 2017, along with concise statements of errors
complained of on appeal. On January 31, 2018, Father’s counsel filed a
petition to withdraw and Anders brief in this Court.
Before reaching the merits of Father’s appeal, we must address
counsel’s petition 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.
____________________________________________
2At the hearing, Child was represented by Marylou Matas, Esquire, who served
as both Guardian ad litem and legal counsel. See Petition for Appointment of
Counsel, 8/11/17.
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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:
(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, Father’s counsel filed a petition to withdraw,
certifying that he reviewed the record and determined that Father’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 Father, and
counsel’s assessment of why those issues are frivolous, with citations to
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relevant legal authority. Counsel provided Father with a copy of the brief and
a letter advising him that he may obtain new counsel or raise additional issues
pro se. Accordingly, counsel complied substantially with the requirements of
Anders and Santiago. Therefore, we may proceed to review the issues
outlined in the Anders brief. We must also “conduct an independent review
of the record to discern if there are any additional, non-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 issues for our review.
1. Did the [orphans’] court abuse its discretion and commit an
error of law when it found that the child’s permanent placement
goal of reunification was neither appropriate, nor feasible and
ordered a goal change to adoption, thus contravening section
6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f)?
2. Did the [orphans’] court abuse its discretion and commit an
error of law when it found that sufficient grounds existed for a
termination of [Father’s] parental rights to his child, thus
contravening section 2511(a) of the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)?
Anders Brief at 4 (suggested answers omitted).
We first address Father’s claim that the orphans’ court erred by
terminating his parental rights.
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
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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
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 orphans’ court terminated Father’s parental rights pursuant to
Section 2511(a)(2), (5), (8) and (b). This Court need only agree with the
orphans’ court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination. See In re B.L.W., 843 A.2d
380, 384 (Pa. Super. 2004) (en banc). Accordingly, we focus our analysis on
Section 2511(a)(2) and (b), which provides as follows.
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(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
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) and (b).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence that the following three
conditions are met: (1) repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal 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); 23 Pa.C.S.A. § 2511(a)(2). The
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grounds for termination of parental rights under Section 2511(a)(2), 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).
Parents have an “affirmative duty” to work toward the return of their
children. See In re Julissa O., 746 A.2d 1137, 1141 (Pa. Super. 2000)
(citations omitted). “This ‘affirmative duty,’ at minimum, requires a showing
by the parent of a willingness to cooperate . . . to obtain the rehabilitative
services necessary for the performance of parental duties and
responsibilities.” Id. (citation omitted).
In granting CYS’s petition for involuntary termination, the orphans’ court
made the following determination:
[Father’s] abuse of heroin was a principal cause of the removal of
[Child]. After [Child’s] removal, [Father] agreed to a service plan
that required him to stop using drugs and seek treatment. The
record shows [Father] continued to use drugs. In the seventeen
months between April 2016 and September 2017, [Father]
relapsed several times. These relapses occurred while [Father]
was in treatment and/or counseling meant to help treat his
substance abuse problems and while he was in frequent contact
with [CYS] and the Child. [Father] testified that he understands
that he has an addiction, that he cannot guarantee that he will
stay sober long-term, and that he has to “take things one day at
a time.” However, this [c]ourt notes that the purpose of the family
service plan [CYS] and [Father] have agreed to is to reunify the
Father with the [C]hild and transition back to full-time care, and
Father’s lack of progress on the goals within the service plan make
this transition impossible. This [c]ourt also notes that [Father]
repeatedly relapsed while participating substantially in the
services available to him. Relapses under such circumstances
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certainly weighs against [Father’s] avowals of his current sobriety,
and negates [Father’s] pleas to this [c]ourt to “get more clean
time under his belt” in order to have the opportunity to parent the
[C]hild. This [c]ourt also notes that [Child] was originally
removed from [Father’s] care due to his substance abuse and the
fact that [Father] has had numerous inpatient stays in rehab,
relapses, and overdoses over the last seventeen months reflects
[Father’s] struggle with addiction.
Viewing the record as a whole, this [c]ourt agrees with [CYS’s]
assessment that [Father] has not proven himself capable, thus
far, of maintaining long-term sobriety. Furthermore, [Father’s]
relapses are of a quality that ensures he is not able to provide
appropriate parental supervision for his son. While [Father]
testified to his commitment to being in his son’s life, his desire to
care for the child on his own, and his other efforts to commit
himself to sobriety, the fact remains that [Father] has a
demonstrated history of relapse, which is dangerous to any child
in [Father’s] primary care. While [CYS], the guardian ad litem,
and indeed, even [Child’s] current caregivers have provided
[Father] with multiple chances to get sober and prove himself
capable of providing safe and stable parental supervision for the
child, he has not achieved that goal. This [c]ourt found [CYS] has
shown [Father] is not able to provide essential parental care and
control, that the conditions that existed at the time of removal
continue to persist, and that [Father’s] addiction, which causes
such harm to [Father] and potentially the [C]hild, will not be
remedied within a reasonable period of time.
Orphans’ Court Opinion, 12/11/17, at 11-12.
Father argues that he has complied with the objectives put in place by
CYS. Anders Brief at 13. Namely, Father asserts that, in the six months
preceding the termination hearing, he has maintained sobriety. Id. Father
contends that the orphans’ court erred by “disregarding [his] pleas for
additional time to achieve his objectives” before terminating his parental
rights. Id. at 11.
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After a careful review of the record, we find there is ample, competent
evidence to support the orphans’ court’s factual findings, and that the court’s
conclusions are not a result of an error of law or an abuse of discretion. The
certified record reveals that CYS established the following objectives for
Father: meet Child’s developmental needs, improve parenting skills, meet
Child’s medical needs, maintain contact with Child, refrain from using drugs
and alcohol, obtain adequate and safe housing, address mental health
concerns, and cooperate with CYS. Orphans’ Court Opinion, 12/11/17, at 4-
5; Petition to Terminate Father’s Parental Rights, 8/17/17.
Child was initially placed in Paternal Great-Grandparents’ care in April
2016, when Father was incarcerated for violating his probation after he tested
positive for heroin. N.T., 9/27/17, at 6. Father testified that since April 2016,
he has relapsed or overdosed “four or five times,” gone through inpatient
treatment “three or four” times and resided in recovery houses “four or five
[times] – give or take.” Id. at 77. Although Father testified that he has been
sober for five months, the fact of the matter is that Father has been unable to
maintain sobriety for any appreciable amount of time. Id. at 61, 67.
The record also reveals that visits between Father and Child have been
inconsistent. Father testified that he sees Child approximately once every
other week, with the most recent visit lasting “[p]robably 10 or 15 minutes.”
N.T., 9/27/17, at 71. Likewise, Paternal Great-Grandmother testified that she
has tried to encourage Father to spend additional time with Child, such as on
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Christmas and New Year’s, but Father declined the extra time with Child,
preferring to spend the time with his current girlfriend. Id. at 18. Further,
Paternal Great-Grandmother testified that Father does not attend Child’s
medical appointments or attend to his daily needs. Id. at 11-12.
Moreover, contrary to Father’s claims, Father has been unable to secure
stable housing or employment. Since April 2016, Father has either resided
with Paternal Great-Grandparents, been incarcerated, or lived at a
rehabilitation facility or halfway house. Although Father recently moved into
an apartment owned by his boss, he resides with a roommate who is also on
probation and recovering from a heroin addiction. N.T., 9/27/17, at 69.
Father also testified that he does not have a lease for the apartment because
he and his boss “trust” each other. Id. at 60. Most importantly, Father
testified that he lacks basic supplies for Child, such as a crib or bedding. Id.
at 75. Moreover, Father has been employed at his current job for only three
months, and was terminated from his prior employment after he overdosed in
the employees’ bathroom. Id. at 75-76.
Thus, the record confirms that Father is incapable of parenting Child,
and that he cannot, or will not, remedy his parental capacity. Father failed to
comply with his permanency plan goals, and he is in no position to provide
the permanence and stability that Child requires. Father’s drug addiction, and
the danger that it may pose to Child, is particularly troubling. As this Court
has stated, “a child’s life cannot be held in abeyance while a parent attempts
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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 claim of progress and hope for the
future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
We next consider whether the orphans’ court abused its discretion by
terminating Father’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 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).
Instantly, Father’s counsel does not challenge the termination of his
parental rights pursuant to Section 2511(b) in the argument section of his
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brief, nor did he include such claim in his concise statement or statement of
questions involved. Thus, we conclude that Father waived any challenge as
to Section 2511(b). See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.
2017) (concluding that appellant waived her challenge in regard to Section
2511(b) by failing to include it in her concise statement and statement of
questions involved).
Even if Father had preserved such a challenge, we would likewise
conclude that Father would not be entitled to relief. See Flowers, 113 A.3d
at 1250 (holding that we must “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel”). Here, the orphans’ court concluded that it was in Child’s best
interest to terminate Father’s parental rights and allow Paternal Great-
Grandparents to adopt him. The court found that although Father wishes to
maintain sobriety, he has been unable to do so. Child has resided with
Paternal Great-Grandparents for over 18 months, the majority of his life, and
looks to them for love and security. The record supports the finding that
Child’s primary bond is with Paternal Great-Grandparents, rather than Father,
and Paternal Great-Grandparents desire to adopt Child and provide him with
the stability and permanency he needs.
Although Father’s love for Child is not in question, along with his desire
for the opportunity to parent Child, a parent’s own feelings of love and
affection for a child, alone, will not preclude termination of parental rights.
See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). A child’s life “simply
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cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” In re Z.S.W., 946 A.2d at 732.
Rather, “a parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of his or her potential in
a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d at 856.
In sum, because the orphans’ court’s findings are supported by the record and
free of legal error, we affirm the orphans’ court’s determination that
termination of Father’s parental rights was in Child’s best interest. See
T.S.M., 71 A.3d at 267.
Finally, we consider whether the orphans’ court abused its discretion
when it changed Child’s permanency goal from reunification to adoption. 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.A.] § 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 alia: (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)
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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
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 orphans’ court
did not abuse its discretion. Father remains incapable of parenting Child, and
poses a risk to Child’s safety. Child is bonded with Paternal Great-
Grandparents, who are a pre-adoptive resource. It is clear that Child’s best
interest is served by changing his permanency goal from return to parent or
guardian to adoption.
Accordingly, our independent review of Father’s claims demonstrates
that they do not warrant 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 petition to withdraw, and affirm
the September 28, 2017 decree and order.
Petition to withdraw granted. Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2018
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