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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADOPTION OF J'L.M.O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: K.H., NATURAL FATHER :
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: No. 565 WDA 2019
Appeal from the Decree Entered March 22, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
133 of 2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 23, 2020
K.H. (“Father”) appeals from the decree terminating his parental rights
to J’L.M.O. (“Child”). Counsel has filed a petition for leave to withdraw as
counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 We grant
counsel’s petition to withdraw and affirm the decree terminating Father’s
parental rights.
Child was born in September 2017 to J.O. (“Mother”) and Father. Father
was at the hospital for Child’s birth. Child suffered from drug withdrawal
symptoms at the time of his birth. Following a September 2017 shelter care
hearing, the court concluded that returning to Mother’s home would not be in
Child’s best interest. In October 2017, Child was adjudicated dependent.
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1Counsel filed an application to adopt the Anders brief filed by prior counsel.
We grant this petition.
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Mother did not reveal the identity of Child’s father at the shelter care hearing
or the dependency hearing. In December, Erie County Office of Children and
Youth (“OCY”) filed a petition for termination of parental rights.
The trial court held a hearing on the petition. It set forth the following
factual history:
[M]other did not reveal the name of [Father] to OCY until
June 20, 2018. [Mother] refused to give OCY the location of
[F]ather, so the agency made efforts to find [Father]. Those
efforts were not successful until October of 2018. [Father]
was found at the Erie County Prison after being incarcerated
on September 28, 2018. [Father’s] paternity of [Child] was
established by the results of a DNA test given [F]ather on
October 12, 2018.
Lisa Langer, supervisor of the family’s case, along with the
ongoing caseworker [Kyra] Taylor, met with [Father] at the
Erie County Prison on October 29, 2018. [F]ather told
Langer that he was aware he had a son since his birth.
[Father] was at the hospital when [Child] was born and cut
the umbilical cord, a fact corroborated by the [Mother].
[M]other had always stated she did not know who the father
was, but the Agency suspected it was [Father] and that he
was living with her. [Mother] said she did not know where
[Father] was, and refused to allow caseworker visits to take
place in her home.
Despite the fact the agency had no contact from [Father],
he told Langer he knew of OCY involvement through his
contacts with the mother. [F]ather also said he was aware
of OCY involvement due to a video surveillance system
outside [Mother’s] home and so he knew when caseworkers
and others would be coming in and out. Corroborating this
claim by [Father] was his recognition of Ms. Taylor as the
ongoing caseworker when she and Ms. Langer visited him in
prison. [Father] further indicated he had been in receipt of
all paperwork for this case since he would get it from
[M]other.
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Gaylene Abbott-Fay is a permanency caseworker at OCY
who was assigned [Child’s] case. She reported that the
foster home he has been in since his discharge from the
hospital is an adoptive resource. The foster parents began
working with [C]hild while he was still in the NICU as a drug
exposed child. Their efforts continued in the foster home,
and [Child] is now on track developmentally despite his
precarious birth. [C]hild has thrived in the foster home and
receives stability, structure, support and the routine he
needs by being drug exposed. Ms. Abbott-Fay concluded
[Child’s] best interests would be served by terminating
[F]ather’s parental rights as [C]hild has thrived in the foster
home and receives the stability, structure, support and
routine he needs as a drug-exposed child. [Child’s] growth
with his potential adoptive parents demonstrates that there
will be no detrimental impact upon [C]hild by the
termination of [F]ather’s parental rights. [Father], other
than the day [Child] was born, has not seen the child or
been a part of his short life. As Ms. Abbott–Fay testified,
[F]ather never stepped up to be a parent, and was not in
any position currently to provide any parenting. [Father]
had never contacted [OCY] about his son.
Lisa Langer believed as well that it was in [C]hild’s best
interests to terminate [Father’s] parental rights. [F]ather
had never supported [C]hild. Conditions which led to
[C]hild’s placement had not been alleviated and [Child]
needed stability and permanence[.]
Trial Court Opinion, filed May 14, 2019, at 1-3. Following a hearing on the
petition to terminate parental rights, the trial court found the Agency had
established by clear and convincing evidence grounds for termination under
23 Pa.C.S.A. 2511(a)(1), (2), (4), (5), and (8), and that termination was
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proper under Section 2511(b). The court granted the petition to terminate.2
Father filed a timely notice of appeal.3
Before reviewing the merits of an appeal in which a counsel has
submitted an Anders brief, 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:
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2 The trial court also terminated Mother’s parental rights to Child. We affirmed
this order on October 18, 2019. See Adoption of J’L.M.O., No. 530 WDA
2019 (Pa.Super. filed October 18, 2019).
3 Original appellate counsel filed a petition to withdraw and an Anders brief.
She subsequently left her place of employment, withdrew from this case, and
new counsel entered an appearance. Following repeated orders and
memoranda from this Court requiring counsel to file a petition to withdraw
that complied with the dictates of Anders, and counsel’s failure to comply, we
remanded to the trial court for the appointment of new counsel. New counsel
entered an appearance and filed a petition to withdraw and a petition to adopt
the prior Anders brief.
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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.
Here, counsel has complied with the requirements of Anders and
Santiago. Counsel filed a petition to adopt the Anders brief filed by prior
counsel, a request that we grant. The Anders brief provides a summary of
the procedural and factual history, with citations to the record; refers to items
in the record that could arguably support the appeal; sets forth counsel’s
conclusion that the appeal is frivolous; and explains counsel’s reasons for this
conclusion. Further, counsel filed a petition to withdraw with this Court, sent
a copy of the Anders brief to Father, and informed Father that he had the
right to proceed pro se or with new retained counsel.
We next turn to the issues raised in the Anders brief:
1. Whether the Orphan’s Court committed an abuse of
discretion and/or error of law when it concluded that the
ECOCY established grounds for termination of parental
rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (4), (5), (8).
2. Whether the Orphan’s Court committed an abuse of
discretion and/or error of law when it concluded that the
termination of [Father’s] parental rights was in the Child’s
best interest pursuant to 23 Pa.C.S.A. § 2511(b).
Anders Br. at 4 (trial court answers omitted).
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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
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 find 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
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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
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). Section 2511
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.
Id. (citations omitted).
Where the trial court has terminated parental rights pursuant to multiple
subsections of Section 2511(a), we need only agree with the trial court’s
decision as to one subsection, as well as to its analysis under Section 2511(b).
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we will
address only the court’s decision to terminate pursuant to Section 2511(a)(1).
That subsection provides that a parent’s rights to a child may be terminated
if:
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[t]he 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
parental claim to a child or has refused or failed to perform
parental duties.
23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to
subsection (a)(1) . . . , 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(b).
Subsection 2511(a)(1) requires the moving party to prove by clear and
convincing evidence that the subject parent engaged in “conduct, sustained
for at least the six months prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties.” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008). The parental obligation is a “positive duty which requires
affirmative performance” and “cannot be met by a merely passive interest in
the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
2003) (quoting In re Burns, 379 A.2d 535 (Pa. 1977)). Indeed,
[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path
of maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
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In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Here, the trial court found that OCY established grounds for termination
under Section 2511(a)(1). 1925(a) Op. at 4-5. The Court explained:
A review of the evidence provides a portrait of a father who
wanted nothing to do with his child. Despite [M]other’s
refusal until June 20, 2018 to identify [Father] as the father
of [Child], [Father] knew from the child’s birth that he was
[C]hild’s dad. [Father] was present at the birth; cut the
umbilical cord; and knew of [C]hild’s placement with OCY.
[F]ather was in communication with [M]other during the
[OCY’s] involvement, and had access to video surveillance
of those who came to [Mother’s] residence to such an
extent, that he knew who the ongoing caseworker was for
the family. Despite [Father’s] knowledge of [C]hild's
placement with [OCY], he never came forward to offer any
support or interest in [Child]. [OCY] went through a number
of efforts to track down [Father], and was only able to
contact him once he was incarcerated, a year after the
child’s placement. [Father’s] actions evidence a “father” in
name only. [F]ather knew OCY couldn’t identify or locate
him, and he did nothing to correct that fact. [Father] took
no affirmative steps to demonstrate an interest in his son or
his son’s development. [Father], since he was present at
[C]hild’s birth, had to know of the extremely serious
concerns over the boy[] being born drug exposed. [F]ather
never showed any concern for that condition, or [C]hild’s
welfare.
Id. at 5. The trial court concluded that Father’s conduct “clearly evidenced a
settled purpose to relinquish his parental rights to [Child].” Id. at 17. It
reasoned that “[Father] refused to come forward for over a year after the
child’s placement to demonstrate any interest or concern for his son [and
w]ithout the Agency’s efforts to locate the father, [Father] would have been
content to stay unknown and anonymous.” Id. It noted that “[o]ver a period
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in excess of 12 months, [F]ather did not evidence any desire or ability to
parent his son.” Id.
The record supports the trial court’s factual findings and it did not abuse
its discretion or err as a matter of law in finding termination proper under
Section 2511(a)(1). Father knew Child had been adjudicated dependent and
had been removed from the home, and made no effort to meet or parent
Child.
We next address whether the trial court erred in finding termination
would best meet Child’s developmental, physical and emotional needs and
welfare under Section 2511(b).
Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
Court has explained that “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into [the] needs and welfare of the child.”
In re C.M.S., 884 A.2d at 1287. The trial 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.
Here, the trial court found that Child was “thriving and developmentally
on target due to the attention provided by his foster parents.” 1925(a) Op. at
6. It found Child was “in a good, stable home and has bonded well with the
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potential adoptive parents.” Id. It concluded that there was “no parental bond
between [F]ather and [Child] and the interests of Child are best served by
termination.” Id. at 7.
We agree with counsel that the issues raised in counsel’s Anders brief
are wholly frivolous. The record supports the trial court’s factual findings and
it did not err as a matter of law or abuse its discretion in finding termination
would best meet Child’s interests under Section 2511(b). The testimony
established that Child bonded with his foster parents and that he was thriving
in their care. Further, Father has had no contact with Child following Child’s
birth. The record contains no evidence suggesting contrary conclusions. It thus
provides no basis for challenging the trial court’s decision to terminate Father’s
parental rights under Subsection 2511(a)(1) or Section 2511(b).
Moreover, our independent review of the record has disclosed no non-
frivolous issue. Therefore, we grant counsel’s petition to withdraw and affirm
the decree terminating Father’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: March 23, 2020
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