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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: IN THE SUPERIOR COURT
A.E.Y., A MINOR OF
PENNSYLVANIA
v.
APPEAL OF: C.Y.
No. 1716 MDA 2017
Appeal from the Order, October 6, 2017,
in the Court of Common Pleas of Luzerne County,
Orphans' Court at No(s): A-8562
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED: OCTOBER 17, 2018
C.Y. (“Mother”) appeals from the order involuntarily terminating her
parental rights to her 14-year-old daughter, A.E.Y. (“Child”), pursuant to the
Adoption Act, 23 Pa.C.S.A. §§ 2511(a)(1), (2) and (b).1 Concluding that her
appeal is frivolous, Mother’s counsel has filed an application to withdraw. But
before we could address either the merits of the appeal or the application to
withdraw, we remanded the matter back to the orphans’ court with instruction
that the guardian ad litem (“GAL”) ascertain Child’s preferred outcome, in
accordance with In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). We
specified that the court may re-enter the order – and Mother’s counsel may
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1The orphans’ court also terminated the parental rights of W.Z. (“Father”),
who does not appeal.
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re-file her application – if it was discovered that Child’s preference aligned
with the result of the termination hearing.
On September 4, 2018, the orphans’ court filed a supplemental opinion,
noting Child’s preferred outcome was to have her Mother’s rights terminated
so that she may be adopted by the petitioning paternal grandmother and step-
grandfather (“Grandparents”).2 As such, we may now proceed with Mother’s
appeal.
We begin by reiterating the factual history.
Child has been residing in her Grandparents’ care since she was three
years old. See Orphan’s Court Opinion, 12/4/17, at 6. The local children and
youth agency had originally removed Child from Mother in 2006, because
Mother was using heroin. Id., at 9. Mother also admitted to previously using
cocaine. Id. When Child was three years old, she was found dependent and
placed with Grandparents. Id., at 6.
Approximately two years after Child’s placement, in 2008, the trial court
entered an order that discontinued the dependency litigation and conferred
custody of Child to Grandparents; Mother was permitted to enjoy only
supervised custody. Id. Afterward, the contact between Mother and Child
was sporadic. Id. In 2012, Mother filed for custody modification and was
awarded partial physical custody of Child. Id. Pursuant to the modified order,
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2 The orphans’ court noted that the GAL did, in fact, meet with the child before
and after the termination hearing and that the child’s preference was the same
throughout.
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Mother was entitled to have overnight custody. Id. But throughout the
following year, Mother was not consistent with her exercise of custody; e.g.,
she often did not answer the door when Grandmother transported Child to
Mother’s home. Id., at 7. In 2013, Mother’s partial custody reverted back to
supervised visitation. In October 2014, Mother stopped contacting Child
completely. Id.
On June 6, 2017, Grandparents filed a petition to terminate Mother’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) and (b) of the
Adoption Act. The orphans’ court conducted hearings on October 3 and
October 5, 2017. At the hearings, Susan Maza, Esquire, represented Child’s
best interests as a court-appointed guardian ad litem (“GAL”). Mother was
also represented by counsel. On October 6, 2017, the orphans’ court entered
an order terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. §§
2511(a)(1), (2), and (b). This timely-filed appeal followed.
On January 5, 2018, Mother’s counsel filed an application to withdraw
as counsel and an Anders3 brief. Initially, we note that Mother’s counsel filed
an Anders brief and a petition to withdraw. Before reaching the merits of
Mother’s appeal, we must first address counsel’s request to withdraw. See
Commonwealth v. Rojas, 847 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.’”)
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3 See Anders v. California, 386 U.S. 738 (1967).
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(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)). “In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended
the Anders principles to appeals involving the termination of parental rights.”
In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014). To withdraw pursuant to Anders,
counsel must:
1) petition the court to 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:
(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
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(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, counsel has filed an application to withdraw,
certifying that he has reviewed the case and determined that Mother’s appeal
is wholly frivolous. Counsel has also filed a brief that includes a summary of
the history and facts of the case, issues raised by Mother, counsel’s
assessment of why those issues are frivolous, with citations to relevant legal
authority. Counsel has included with his brief a copy of his letter to Mother,
advising her that she may obtain new counsel or raise additional issues pro
se. Accordingly, counsel has substantially complied with the requirements of
Anders and Santiago. See Commonwealth v. Reid, 117 A.3d 777, 781
(Pa. Super. 2015) (observing that substantial compliance with the Anders
requirements is sufficient). We, therefore, may 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-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (footnote omitted).
Counsel’s Anders lists the following questions on appeal:
(1) Did the orphans’ court abuse its discretion, commit an
error of law, and/or there was insufficient evidentiary
support in terminating the parental rights of the Mother of
A.E.Y., as the grounds pursuant to 23 Pa.C.S.A. §
2511(a)(1) and 23 Pa.C.S.A. § 2511(a)(2) were not
established by clear and convincing evidence, and such
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granting of a petition to terminate parental rights was
against the weight of the evidence presented by the parties.
(2) Did the orphans’ court abuse its discretion, commit an
error of the law, and/or there was insufficient evidentiary
support in terminating the parental rights of the Natural
Mother of A.E.Y., pursuant to 23 Pa.C.S.A. § 2511(a)(1) and
23 Pa.C.S.A. § 2511(a)(2) as the orphans’ court did not
properly weight Natural Mother’s allegations that the child’s
caretakers blocked and/or thwarted Mother’s attempts at
contact with the minor child during the applicable statutory
time frames.
(3) Did the orphans’ court abuse its discretion, commit an
error of law, and/or there was insufficient evidentiary
support for the court’s decision that the best needs and
welfare of the minor child A.E.Y. would be served by
terminating Mother’s parental rights as required by 23
Pa.C.S.A. § 2511(b).
Mother’s Brief, at 3.
Our standard of review regarding orders terminating parental rights is
settled:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court's decision,
the decree must stand. Where a trial court has granted a
petition to involuntarily terminate parental rights, this Court
must accord the hearing judge's decision the same
deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in
order to determine whether the trial court's decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
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the asserted grounds for seeking the termination of parental rights are
valid. Id. at 806. We have previously stated:
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.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73–74 (Pa. Super.
2004). If competent evidence supports the trial court's findings, we will affirm
even if the record could also support the opposite result. In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
The termination of parental rights is controlled by 23 Pa.C.S.A. § 2511.
Under this statute, the trial court must engage in a bifurcated process. The
focus initially centers on the conduct of the parent under Section
2511(a). See In the Interest of B.C., 36 A.3d 601 (Pa.Super.2012).
In this case, the trial court terminated Mother’s parental rights pursuant
to §§ 2511(a)(1) and (a)(2), 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
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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.
23 Pa.C.S.A. §§ 2511(a)(1), (2),
Additionally, this Court “need only agree with [the trial court's] decision
as to any one subsection in order to affirm the termination of parental
rights.” In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
We address Mother’s first two issues simultaneously:
Child is 14 years old. She has resided with her Grandparents for 11
years, or, put another way, for just about as long as she can remember. N.T.
10/3/17, at 9. She came into her Grandparents’ care at age 3 when Luzerne
County’s Children and Youth Services filed a dependency action against
Mother. Id., at 12. The dependency action was discontinued two years later
when a final custody order granted Grandparents’ primary custody of Child.
Id. Thereafter, Mother’s contact with Child was described as “sporadic.”
Specifically, Mother would check in on her daughter, but months would go by
without contact. Id., at 14. Since the dependency action closed, there have
been several custody orders. The current custody order awarded
Grandparents legal custody and restricted Mother’s time to only supervised
visits. But Mother was not consistent with these visits; indeed, the last time
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she saw Child was October 2014 – three years prior to the termination
hearing.
It is clear that Mother has caused Child to go without essential parental
care, per § 2511(a)(2). Similarly, Mother has evidenced a refusal or failure
to perform parental duties. For instance, Grandmother testified that she and
her husband fulfill certain quintessential parenting hallmarks. For example,
they take Child to her medical appointments, provide her with insurance,
enroll her in school, and attend parent-teacher conferences. Id., at 23-25.
But this is not all they do. In actuality, the Grandparents do everything. We
may infer, on account of Mother’s absence for the three years prior to the
termination hearing, that Grandparents have provided for every parental duty
under the sun. They have been significantly involved with Child during the
previous decade.
Mother argues that Grandparents’ prevented her from contacting Child.
Mother also points to Grandmother’s testimony that she never “invited”
Mother to participate in medical visits. Id., at 32; see also Anders Brief, at
6. She argues that Grandparents never asked Mother for money to pay for
Child’s tuition. N.T., at 32; see also Anders Brief, at 6-7. Mother notes that
Child’s phone number changed so she was unable to contact her. N.T., at 29;
see also Anders Brief, at 6.
Grandmother testified that she never prevented Mother from contacting
her daughter. N.T., at 30. Moreover, she testified that while Child got a new
phone, and she disconnected her landline, her and her husband’s cell phone
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numbers never changed. Id., at 29; 13. Regardless of whether Mother had
their phone number, there is no excuse for her failure to contact Child. Mother
had available other avenues; e.g., she could have petitioned the court to
enforce her supervised custody. Mother has struggled with sobriety and
homelessness during the course of this child’s life. See id., at 98; 17. The
record is clear that she would not or could not attempt reunification. As such,
Grandparents established clear and convincing evidence that termination
under §§ 2511(a)(1) and (a)(2) was warranted.
Having met the first part of the bifurcated termination analysis, we next
determine whether termination would serve the children’s needs and welfare
under section 2511(b).
Section 2511(b) provides, in pertinent part:
(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.
23 Pa.C.S.A. § 2511(b).
Pursuant to Section 2511(b), the trial court must take into account
whether a natural parental bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial
relationship. In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
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“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In addition, we instructed that
the orphans' court must also discern the nature and status of the parent-child
bond, with utmost attention to the effect on the child of permanently severing
that bond. Id. However, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d
753, 763 (Pa. Super. 2008).
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 the court must consider when determining the best interest of
the child. The mere existence of an emotional bond does not preclude the
termination of parental rights. Rather, the orphans' court must examine the
status of the bond to determine whether termination “would destroy an
existing, necessary and beneficial relationship.” As we explained in In re
N.A.M.:
[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.
33 A.3d 95, 103 (Pa. Super. 2011) (citing In re A.S., 11 A.3d 473, 483 (Pa.
Super. 2010). Moreover, we have found termination to be proper despite the
existence of a parent-child bond when the bond is not necessarily meaningful
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or healthy. In re M.M., 106 A.3d 114, 120 (Pa. Super. 2016); see In re
T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that the strong parent-child
bond was an unhealthy one that could not by itself serve as grounds to prolong
foster care drift); see also In re L.M., 923 A.2d 505, 512 (Pa. Super.
2007) (holding that a parent's love of her child, alone, does not preclude a
termination).
Grandmother testified that she and her husband believe Child is bonded
to them. Id., at 78. She testified that she does not know what the future will
hold, but Grandmother also concluded that as far as the here and now were
concerned, Child does not know either of her parents. Id., at 79. She testified
that there is no relationship between Mother and Child. Id.
Bond aside, we cannot ignore Mother’s lengthy absence from Child’s life.
Because Mother would not or could not be a part of the Child’s life, she
prevented herself from providing Child with necessary love, comfort, security
or stability. Child was forced to go without. Luckily, she appears to have
found those intangibles in her relationship with Grandparents.
Paradoxically, termination proceedings usually do not involve the
testimony from the subject children. As our previous remand makes clear,
however, they are still stakeholders and their preferred outcome must be
ascertained. In Interest of A.E.Y., 2018 WL 3372730 (Pa. Super. 2018).
To that end, we also acknowledge that, at 14 years of age, Child is among the
older class of children who must participate in these types of proceedings.
With age comes maturity; the preference of an older child is much weightier
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than that of a small child. Here, Child made it known that she wished for her
parents’ rights to be terminated so that she may be adopted by Grandparents.
We must not discount Child’s own ideas about what is in her best interests.
The record is clear that termination best serves Child’s needs and welfare.
The evidence overwhelmingly supported the termination of Mother’s
parental rights. After conducting a full examination of all the proceedings as
required under Anders, we discern no non-frivolous issues to be raised on
appeal. See Commonwealth v. Flowers, supra, 113 A.3d at 1250.
Therefore, we conclude that the orphans’ court did not abuse its discretion
when it granted Grandparents’ petition to terminate Mother’s rights.
Order affirmed. Petition to withdraw granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2018
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