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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.J.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.T. A/K/A D.W.T. :
A/K/A D.W.T. A/K/A D.T., FATHER :
:
:
:
: No. 1004 EDA 2019
Appeal from the Decree Entered February 26, 2019
In the Court of Common Pleas of Bucks County Orphans’ Court at No(s):
2018-9036
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 21, 2019
Appellant, D.T. (“Father”), appeals from the decree entered
February 26, 2019, involuntarily terminating his parental rights to his child,
M.J.T. (“Child”), born May 2012.1 Additionally, Father’s counsel,
Julieanne Bateman, Esquire, seeks to withdraw her representation of Father
pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), and In re V.E., 611 A.2d 1267, 1275
(Pa. Super. 1992) (extending Anders briefing criteria to appeals by indigent
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 That same day, the court terminated the parental rights of Child’s biological
mother, J.K. (“Mother”). Mother has also appealed, and we address her issues
in a separate memorandum at 1002 EDA 2019. Mother has therefore elected
not to participate in the instant appeal. Letter from Mother’s Counsel,
Jennifer E. Pierce, Esquire, to Office of the Prothonotary, Superior Court of
Pennsylvania (July 15, 2019).
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parents represented by court-appointed counsel in involuntary termination
matters). After careful review, we affirm and grant counsel’s petition to
withdraw.
We summarize the facts and procedural history underlying this appeal
as follows. See Trial Court Opinion, filed 5/24/2019, at 1-7; N.T., 2/21/2019,
at 1-232. Prior to the commencement of the instant matter, the Bucks County
Children and Youth Social Services Agency (“the Agency”) had previously
provided general protective services to the family. The first referral to the
Agency was made in May 2016, due to lack of supervision and general welfare
concerns; it was closed in June 2016. A second referral was made in
September 2016 due to inadequate parenting, lack of supervision, and
substance abuse concerns. A third referral was made in December 2016
averring that Child’s biological mother, J.K. (“Mother”), was living in a shelter
with Child and was impaired while caring for him.
In January 2017, the Agency obtained an emergency shelter care order
after Mother informed the Agency she was no longer receiving mental health
treatment and revealed a long history of substance abuse. At that time,
Mother tested positive for heroin, cocaine, and marijuana.
On March 20, 2017, Child was adjudicated dependent. Father was given
objectives for reunification which included remaining drug-free, obtaining and
completing substance abuse and mental health counseling, and obtaining and
maintaining appropriate housing and income, and cooperating with his parole
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officer. On February 7, 2018, Child’s permanency goal was changed from
reunification to adoption. Father did not appeal the goal change.
On April 6, 2018, the Agency filed petitions for the involuntary
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b).
On February 26, 2019, the court held a hearing on the termination
petitions. Child was represented by guardian ad litem, Lisa A. Horne, Esquire,
and legal interests counsel, Timothy J. Barton, Esquire. Mother, represented
by counsel, appeared, and testified on her own behalf. Father, although
represented by counsel, was not present and did not testify on his own behalf.2
The Agency presented the testimony of Jodi Hertzberg, the Agency
caseworker. Father did not present any witnesses.
At the time Child was taken into custody, Father was not involved with
Child and was incarcerated in the state of Delaware. N.T., 2/21/2019, at 21-
22. Regardless, the Agency prepared family service objective goals for him.
Father was released from custody in April 2017 but maintained limited contact
with the Agency. Id. at 22. Caseworkers had to reach out numerous times
to engage Father in reviewing the goals of the plan and arrange visitation. Id.
Father made a few visits between April 2017 and September 2017 but has not
____________________________________________
2Father initially did not respond to counsel’s written communication in January
2019, but eventually indicated to counsel via text message that he would not
be attending the hearing. N.T., 2/21/2019, at 9.
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had contact with Child since that date. Id. at 23. Father did not provide his
address or contact information to the Agency, only the name and location of
the barbershop where he is employed. Id. at 22-23.
Father has never provided voluntary child support, food, clothing, or
other necessities of life. Id. at 24. Father never sent Child cards, gifts, or
letters. Id. Father never reached out to the Agency about being a father to
Child, nor has he had contact with the Agency since the filing of the petition.
Id. at 25. Father never completed the objectives of his family service plan.
Id. Ms. Hertzberg testified that it was in Child’s best interests for Father’s
parental rights to be terminated. Id. at 55.
Ms. Hertzberg further testified that, since April 2017, Child has been
residing in a foster home. Id. at 35. Child’s foster parent is a single woman
whose mother and father live in an in-law suite attached to the home. Id. at
41. Child has his own bedroom, which he is very proud of, and a dog he loves.
Id. at 103-04. “Foster grandparents” are very involved in Child’s life and Child
adores them, calling them “Mom-mom” and “Pop-pop.” Id. at 41. Child calls
his foster mother “Mommy” and is loving and affectionate towards her. Id. at
42. Foster mother is an adoptive resource. Id. at 44. At the beginning of
his placement, Child was rough, had difficulty with limits and acting out, and
had issues with wetting the bed and nightmares. Id. at 93. Child was placed
in therapy to work on these behaviors. Id. at 93-94.
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Mother testified at length about the abuse she suffered at Father’s
hands. Id. at 146-71. The abuse was physical, emotional, and sexual and
included hitting her, controlling her, breaking her phone, and “imprisoning
her” in a motel room. Id. Mother also testified regarding Father’s drug use.
Id. at 147. Eventually, she obtained an order against Father pursuant to the
Protection from Abuse Act (“PFA”). Id. at 161, 188.
Timothy Barton, Esquire, Child’s counsel, stated that he had met with
Child on two occasions, first in December 2018 and again the week of the
termination hearing. Id. at 226-27. Child is bright and articulate, although
Attorney Barton did not think that Child understood all of the legal
ramifications of a termination hearing. Id. Child told Attorney Barton he is
very happy with foster mother, wants to stay with his foster family, and does
understand that, as a result of the hearing, there was a possibility his foster
mother could adopt him. Id. at 228. Child indicated he wanted to be adopted
by foster mother. Id. Child did not understand the events that had separated
him from Mother. Id. at 229.
Following the hearing, the court terminated Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). Father’s counsel timely
filed a notice of appeal and, in lieu of a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), counsel filed an indication
of her intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). In this
Court, counsel has filed an Anders brief.
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When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal
under Anders, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his
right to: (1) retain new counsel to pursue the appeal; (2) proceed
pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(citation and internal brackets and quotation marks omitted). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, only then may this Court “conduct an independent review of
the record to discern if there are any additional, non-frivolous issues
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overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted).
Attorney Bateman’s Anders brief complies with the above
requirements. She includes a summary of the relevant factual and procedural
history, and she sets forth her conclusion that the appeal is frivolous and no
issues could be raised. Additionally, Attorney Bateman has supplied Father
with a copy of the Anders brief and a letter explaining the rights enumerated
in Orellana, 86 A.3d at 879-80. Thus, counsel has complied with the technical
requirements for withdrawal, and we therefore proceed to our independent
review of the record to determine if the issues raised are frivolous and to
ascertain whether there are non-frivolous issues Father may pursue on appeal.
We review cases involving the termination of parental rights according
to the following standards.
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) (internal citations and quotations
omitted).
Termination requires a bifurcated analysis:
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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). We
focus our analysis on subsections (a)(2) and (b).
The relevant subsections of 23 Pa.C.S. § 2511 provide:
(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.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
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without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The grounds for
termination are not limited to affirmative misconduct but also concern parental
incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010). Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties. Id.
In the current action, Father was incarcerated for much of Child’s life.
He was provided with objectives to complete in order to be reunified with
Child, but Father never completed those objectives, which included providing
child support, food, clothing, necessities of life, cards, gifts, or letters. Father
did not remain in contact with the Agency and did not provide contact
information so that the Agency could reach him. Father’s only contact with
Child was a few visits between April and September 2017, but he has not had
contact with Child since then.
Accordingly, we discern no error or law nor abuse of discretion in the
trial court’s finding that clear and convincing evidence supported the
termination of Father’s parental rights pursuant to Section 2511(a)(2). See
T.S.M., 71 A.3d at 267; L.M., 923 A.2d at 511. Father’s continued “refus[al]
to perform his parental duties[,]” Trial Court Opinion, filed 5/24/2019, at 8 –
including his failure to complete a single objective or to remain in contact with
Child -- resulted in Child being without essential parental care, and “the
conditions and causes” of Father “refusal cannot or will not be remedied by”
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him. 23 Pa.C.S. § 2511(a)(2); see also Lilley, 719 A.2d at 330; Z.P., 994
A.2d at 1117.
Next, we must consider whether Child’s needs and welfare will be met
by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In
this context, the court must take into account whether a bond exists between
child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Id. (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000)). The trial
court may equally emphasize the safety needs of the child and may consider
intangibles, such as the love, comfort, security, and stability the child might
have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa. Super.
2011). Additionally, the court may emphasize the safety needs of a child.
See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008). Where there is no
evidence of a bond between the parent and child, it is reasonable to infer that
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no bond exists. Id. “[A] parent’s basic constitutional right to the custody and
rearing of . . . her child is converted, upon the failure to fulfill . . . her parental
duties, to the child’s right to have proper parenting and fulfillment of [the
child’s] potential in a permanent, healthy, safe environment.” In re B.,N.M.,
856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).
In the current appeal, the record contains no testimony or other
evidence of a bond between Father and Child; on the contrary, the last contact
Father had with Child was in September 2017. As the trial court explained:
Regrettably, [the court] heard no evidence of any relationship at
all between Father and Child. . . . [T]ermination was clearly
warranted here. The record contains clear and convincing
evidence that Father has made essentially no efforts toward any
adequate parenting of [Child]. At this time, we know nothing of
Father’s life circumstances other than representations and
descriptions which were provided by Mother. The evidence
suggests that Father has no desire to provide for Child. The record
is devoid of testimony or evidence of a necessary and beneficial
relationship between the two, the existence of which, should
Father’s rights be terminated, would result in a negative effect on
Child.
Trial Court Opinion, filed 5/24/2019, at 10-11.
Furthermore, as noted above, a trial court may consider intangibles,
such as the love, comfort, security, and stability a child might have with a
foster parent. N.A.M., 33 A.3d at 103. In the current case, Child is thriving
in his foster placement, where he had been since April 2017; he has a strong
and loving bond with his foster mother and wishes to be adopted by her. See
Trial Court Opinion, filed 5/24/2019, at 9-10. Child has had a stable home in
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his foster placement, and it is in his best interests that he remains there. See
L.M., 923 A.2d at 511.
Consequently, we discern no error of law or abuse of discretion in the
trial court’s conclusion that Child’s needs and welfare are best served by
termination. See 23 Pa.C.S. § 2511(b); T.S.M., 71 A.3d at 267; L.M., 923
A.2d at 511.
Accordingly, clear and convincing evidence supports the trial court’s
termination of Father’s parental rights under Section 2511(a)(2) as well as
the Section 2511(b) findings that no bond existed between Father and Child,
and that adoption would best serve Child’s needs and welfare. See Z.P., 994
A.2d at 1126-27; K.Z.S., 946 A.2d at 763.
In sum, we agree with Attorney Bateman that Father’s issues are
frivolous. We have independently reviewed the record and find no other issues
of arguable merit that he could pursue on appeal. Accordingly, we affirm the
trial court decree and grant counsel’s petition to withdraw.
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/19
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