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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF L.L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.H., NATURAL FATHER :
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: No. 766 WDA 2019
Appeal from the Decree Entered April 1, 2019
In the Court of Common Pleas of Warren County Orphans' Court at
No(s): AN No. 2 of 2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 22, 2019
J.H. (“Father”) appeals from the decree entered on April 1, 2019, which
terminated his parental rights to his approximately three-year-old son, L.L.B.
(“Child”). Father’s counsel has filed an Anders1 brief and a petition to
withdraw as counsel. Upon review, we grant counsel’s petition to withdraw
and affirm the decree.
Child was born in April 2016 to H.B. (“Mother”) and Father. Although
Father and Mother lived together for a short time, Mother never revealed her
pregnancy to Father, whose paternity was not established until July 2018. On
July 2, 2018, Mother brought Child to the emergency room for multiple
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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bruises. Ultimately, Mother admitted to physically abusing Child and is
currently incarcerated as a result. Father is also currently serving an unrelated
sentence for reckless endangerment and aggravated indecent assault of a
victim under 16. Accordingly, Father is also a registered sex offender. His
release date is uncertain because his minimum release date is January 2020
and his maximum release date is February 2027. Father began his sentence
shortly before Child’s birth and thus he has never met Child.
Shortly after Mother brought Child to the hospital, in July 2018, Warren
County Children and Youth Services (“CYS”) filed petitions for emergency
protective custody of Child, dependency of Child, and for aggravated
circumstances against Mother and Father. After a hearing on July 30, 2018,
the trial court adjudicated Child dependent and found aggravating
circumstances against both Mother and Father, pursuant to the definition set
forth under 42 Pa.C.S.A. § 6302. The court supported its finding of aggravated
circumstances by emphasizing that Mother was incarcerated for abusing Child
and Father was incarcerated for aggravated indecent assault of a minor under
16 years old, resulting in his status as a registered sex offender. Further,
Father had previously had his parental rights involuntarily terminated
regarding another child. As a result of the aggravated circumstances finding,
the court set Child’s goal as adoption and ordered Mother and Father to have
no contact with Child. The court also noted that Child had significant special
needs and ordered such needs to be paramount in his foster placement.
Mother did not appeal the trial court’s dependency order but Father filed a
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timely appeal. This Court affirmed the trial court’s order in a memorandum
opinion filed in March 2019. See In re L.B., 1296 WDA 2018 (Pa.Super. March
19, 2019).
On January 25, 2019, CYS filed the instant termination petition against
both Mother and Father and the trial court held an evidentiary hearing
regarding the petition on April 1, 2019. At the hearing, the court heard
testimony regarding, inter alia, the progress Child had made in the care of his
foster parents, who are an adoptive resource for Child. When Child first
entered foster care, his delays required significant services. However, while in
the care of his foster parents, Child’s need for services completely abated.
Following the hearing, the trial court entered the instant order terminating the
parental rights of both Mother and Father. Specifically regarding Father, the
trial court found that CYS established by clear and convincing evidence that
grounds for the termination of his parental rights existed under 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (11), and that termination was proper under 23
Pa.C.S.A. § 2511(b).
Father filed a timely notice of appeal and Pa.R.A.P. 1925(b) statement.2
The trial court issued a responsive Pa.R.A.P. 1925(a) opinion. Counsel for
Father raises three issues in his Anders brief:
1. Did the Trial Court abuse its discretion in failing to afford
[Father] any consideration in its analysis that [Mother]
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2Mother did not appeal from the instant termination of parental rights
decree.
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had intentionally and purposefully concealed the
existence of the child from [Father][?]
2. Did the Trial Court abuse its discretion in not recognizing
the [Mother’s] concealment of [Child] precluded
[Father], and any of his relatives, from any involvement
in the life of [Child][?]
3. Does [Father] have any colorable meritorious claims in
the instant appeal such that the appeal would not be
frivolous and subject to Anders treatment[?]
Anders Br. at 6.
Before reviewing the merits of this appeal, we must first determine
whether counsel has satisfied the requirements for withdrawing as counsel.
See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
banc) (stating that “[w]hen 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”). 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 brief to the defendant; and 3) advise
the defendant that he or she has the right to retain private
counsel or raise additional arguments that the defendant
deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc). Further, in the Anders brief, counsel seeking to withdraw must:
(1) provide a summary of the procedural history and facts,
with citations to the record; (2) refer to anything in the
record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that
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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. If counsel meets all of the above obligations, “it
then becomes the responsibility of the reviewing court to make a full
examination of the proceedings and make an independent judgment to decide
whether the appeal is in fact wholly frivolous.” Id. at 355, n.5 (citation
omitted).
We conclude that counsel has complied with all of the above technical
requirements. In his Anders brief, counsel has provided a summary of the
procedural history and facts of the case. Further, counsel’s brief identifies
materials in the record that could arguably support the appeal, and includes
counsel’s assessment of why those issues are frivolous, with citations to
relevant legal authority. In addition, counsel served Father a copy of the
Anders brief and advised him of his right to proceed pro se or to retain a
private attorney to raise any additional points he deemed worthy of this court’s
review. See Counsel’s letter to Father, dated July 15, 2019. Father has not
responded to counsel’s petition to withdraw. As we find the technical
requirements of Anders and Santiago are met, we will proceed to the issues
on appeal.
When we review termination of parental rights cases, we “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting
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In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings
have support in the record, we then determine if the trial court committed an
error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470,
473 (Pa.Super. 2018). We may reverse a trial court decision for an abuse of
discretion “only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d at 826.
Our Supreme Court has explained the reasons for applying an abuse of
discretion standard of review in termination of parental rights cases:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
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the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29
(Pa.Super. 2008)).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under section
2511, the trial court must engage in a bifurcated analysis prior to terminating
parental rights:
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.
Id. (citations omitted).
In the instant case, Father does not present a specific argument
regarding the sufficiency of the evidence supporting the trial court’s
determination that termination of Father’s parental rights was warranted
under either Section 2511(a) or (b). Instead, in his first two issues on appeal,
Father argues that Mother’s failure to inform him about his paternity
hampered his, and his family’s, ability to bond with Child. Father avers that
the trial court should have considered this factor when engaging in a Section
2511 analysis, especially in regards to a review of Child’s best interests. The
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crux of Father’s argument lies in his contention that under a best interest of
the child analysis, as is required under Section 2511(b), the trial court erred
by failing to consider that Child will never have the opportunity to know Father,
or his family, due to Mother’s failure to inform Father of his paternity in a
timely manner. We decline to agree.
First, Father fails to acknowledge that the conditions that led the trial
court to find that aggravating circumstances should preclude contact between
Father and Child, and by extension Father’s relatives, arose prior to Child’s
birth. Father, via his own criminal conduct involving, inter alia, the sexual
assault of a minor, was incarcerated prior to Child’s birth. Moreover, even prior
to his incarceration, when Father had the ability to engage fully as a parent,
the trial court determined that sufficient grounds supported the termination
of Father’s parental rights to another child. Accordingly, we conclude that
Father’s argument that the trial court abused its discretion by failing to
consider Father’s delayed knowledge of his paternity is factually inapposite
because aggravated circumstances supported the barring of contact between
Father and Child, even before Child’s birth.
Further, in regards to Child’s best interests, Father does not address
Child’s tremendous progress under the care of his foster parents, who are an
adoptive resource for Child. Nor does Father explain how the removal of Child
from his foster parents, to instead potentially place Child with paternal
relatives he has never met, let alone bonded with, would advance Child’s best
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interests under a Section 2511(b) analysis. See In re L.M., 923 A.2d at 511.
Accordingly, we conclude that Father’s issues on appeal are devoid of merit.
In the third issue presented in counsel’s Anders brief, counsel maintains
that Father’s issues are frivolous because Father’s previous criminal conduct
and resulting incarceration and his lack of any bond with Child, make it
impossible for him to “legally and practically” assume a parental role in Child’s
life regardless of when he learned he was Child’s natural Father. See Anders
Br. at 13. We agree with counsel that the issues raised in counsel’s Anders
brief are wholly frivolous. Moreover, after an independent review of the record,
we conclude that no other non-frivolous issue exists. Therefore, we grant
counsel’s petition to withdraw and affirm the decree terminating Father’s
parental rights.
Petition to withdraw as counsel granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2019
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