J-S15029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ADOPTION OF K.R.S-P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.D.P. :
:
:
:
:
: No. 1712 WDA 2019
Appeal from the Order Dated September 19, 2019
In the Court of Common Pleas of Warren County Orphans' Court at
No(s): AN-08 of 2019
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED APRIL 6, 2020
Appellant, Z.D.P. (“Father”),1 appeals from the order entered on
September 19, 2019, granting the petition filed by K.L.T. (“Mother”) and
T.S.T. (“Stepfather”) to involuntarily terminate Father’s parental rights to his
minor child, K.R.S-P., (“Child”) a female born in December 2010, pursuant to
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). On this direct appeal,
Father’s counsel, Attorney Alan M. Carr (“Counsel”), filed a petition for leave
to withdraw as counsel and an accompanying brief 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 parents represented
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* Former Justice specially assigned to the Superior Court.
1 At all relevant times, Father was incarcerated at the State Correctional
Facility in Greene County (“SCI Greene”). To date, he remains imprisoned.
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by court-appointed counsel in involuntary termination matters). Upon review,
we grant Counsel leave to withdraw and affirm.
The trial court summarized the facts and procedural history of this case
as follows:
The petitioners, [Mother and Stepfather], filed a petition for [the]
involuntary termination of [Father’s] parental rights on June 25,
2019. On June 27, 2019, the [trial] court entered a preliminary
decree scheduling an evidentiary hearing on the petition for
September 19, 2019, and further directed the petitioners to serve
upon [F]ather a copy of the preliminary decree, important
notice - birth parent, a copy of the petition with all attachments,
and the post-adoption contact agreement notice. Service was
directed to be made at least ten (10) days prior to [the] hearing
and in compliance with 23 Pa.C.S.A. § 2513(b) and [Pennsylvania]
Orphans’ Court Rule 15.6. On July 22, 2019, counsel for the
petitioners filed a certificate of service indicating that [F]ather was
served with the above documents at SCI Greene by certified mail,
restricted delivery, return receipt requested. The domestic return
receipt indicating service on July 10, 2019, was attached to the
certificate of service.
[Father] made no contact with the [trial] court requesting [the]
appointment of counsel, or for his appearance at the hearing to
be coordinated. The hearing occurred as scheduled with [Father]
not appearing. At the conclusion of the hearing[,] the [trial] court
placed on the record its findings that the petitioners had proven
by clear and convincing evidence the grounds for termination set
forth in 23 Pa.C.S.A. § 2511(a)(1) and § 2511(b) and entered a
decree [involuntarily] terminating [Father’s] parental rights [to
Child]. On October 3, 2019, [Father] filed a pro se document with
the [trial] court. The [trial] court deemed this correspondence to
be a timely notice of appeal from the [trial] court’s decree of
September 19, 2019, terminating [Father’s] rights, by order dated
October 8, 2019. That order also granted [Father] in forma
pauperis status, appointed [Counsel] to represent [Father] and
directed that the court reporter prepare a transcript of the
termination hearing.
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Also[,] the [trial] court entered an order [on October 9, 2019,]
directing [Counsel] to file a concise statement of [errors]
complained of on appeal[.]
Trial Court Opinion, 11/13/2019, at 1-2 (superfluous capitalization omitted).2
Before reviewing the merits of this appeal, this Court must first
determine whether Counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. See Commonwealth v. Flowers,
113 A.3d 1246, 1248–1249 (Pa. Super. 2015) (citation omitted). “In order to
withdraw from appellate representation pursuant to Anders, certain
procedural and substantive requirements must be met.” Commonwealth v.
Tejada, 176 A.3d 355, 358 (Pa. Super. 2017). Procedurally, 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.
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2 The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November
13, 2019. In that opinion, the trial court noted that Counsel had not filed a
Rule 1925(b) concise statement as directed. However, in an abundance of
caution, the trial court addressed the sole issue Father presented in his pro se
correspondence, which it deemed as Father’s notice of appeal. Therein,
Father claimed he was not afforded an opportunity to be present, and legally
represented, at the termination proceeding. It should be noted that Counsel
filed a statement of intent to file an Anders brief, pursuant to Pa.R.A.P.
1925(c)(4), with the trial court five days after the trial court issued its
Pa.R.A.P. 1925(a) opinion. As will be discussed, however, the sole potential
issue in the Anders brief currently on appeal is whether the trial court failed
to arrange for Father to participate in the termination proceedings. Despite
the Rule 1925 procedural anomaly in this case, the trial court’s Rule 1925(a)
opinion squarely addressed the issue identified in the Anders brief and our
independent review is unhampered.
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Id. at 359. Substantively, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state
counsel's reasons for concluding that the appeal is frivolous.
Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
In this case, it appears that Counsel has complied with the procedural
requirements of Anders and its progeny. Counsel filed an Anders brief, and
corresponding petition to withdraw as counsel, on January 15, 2020. In
addition to complying with the briefing requirements set forth in Santiago,
Counsel provided Father with a letter advising him of his rights, which is
attached to the motion to withdraw, as required. See Tejada. To date,
Father has not filed a pro se response to the motion to withdraw as counsel.
Based upon the foregoing, we conclude that Counsel has complied with
Anders' procedural and substantive requirements. “Therefore, we now have
the responsibility ‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016),
quoting Flowers, 113 A.3d at 1248.
Counsel's Anders brief raises the following issue for our review:
Did [Father’s] termination of parental rights hearing lack due
process, when the [trial c]ourt did not arrange to have [Father]
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participate in the termination of parental rights hearing either
personally or via videoconference?
Anders’ Brief at 5.
Our standard of review regarding orders terminating parental rights is
as follows:
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.
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. If competent
evidence supports the trial court's findings, we will affirm even if
the record could also support the opposite result.
In re A.R., 125 A.3d 420, 422 (Pa. Super. 2015) (internal quotations and
citations omitted).
The appointment of counsel for indigent parents in termination
proceedings is controlled by 23 Pa.C.S.A § 2313(a.1), which states, in
pertinent part:
(a.1) PARENT.—The court shall appoint counsel for a parent
whose rights are subject to termination in an involuntary
termination proceeding if, upon petition of the parent, the
court determines that the parent is unable to pay for counsel or if
payment would result in substantial financial hardship.
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In re A.R., 125 A.3d at 424 (emphasis added), citing 23 Pa.C.S.A
§ 2313(a.1). “The appointment of counsel is not an automatic right.” Id. An
incarcerated, indigent parent is entitled to notice of a termination hearing. Id.
If that notice informs the parent that they have the right to counsel and
includes instructions for notifying the Family/Orphans' Court Administrator to
obtain a court-appointed attorney, the parent’s subsequent failure to petition
the trial court for a court-appointed attorney does not amount to an abuse of
trial court discretion for failing to appoint counsel. Id., citing In re Adoption
of J.N.F., 887 A.2d 775, 780 (Pa. Super. 2005).
Here, Father “has indicated that he believed that the trial court would
arrange for him to participate in his termination of parental rights hearing
either [in] person or by videoconference.” Anders’ Brief at 7. However, there
is no dispute that Father received the following notice:
A PETITION HAS BEEN FILED ASKING THE COURT TO PUT AN END
TO ALL RIGHTS YOU HAVE TO YOUR CHILD, WHOSE NAME
APPEARS ON THE CAPTION OF THIS IMPORTANT NOTICE. THE
COURT HAS SET A HEARING TO CONSIDER ENDING YOUR
RIGHTS TO YOUR CHILD. THAT HEARING WILL BE HELD AS
INDICATED IN THE PRELIMINARY DECREE ATTACHED TO THIS
NOTICE. YOU ARE WARNED THAT EVEN IF YOU FAIL TO APPEAR
AT THE SCHELDUED HEARING, THE HEARING WILL GO ON
WITHOUT YOU AND YOUR RIGHTS TO YOUR CHILD MAY BE
ENDED BY THE COURT WITHOUT YOUR BEING PRESENT. YOU
HAVE A RIGHT TO BE REPRESENTED AT THE HEARING BY A
LAWYER. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD
ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
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Court Administrator’s Office
WARREN COUNTY COURTHOUSE
204 4TH Avenue
Warren PA 16365
814-728-3400
Trial Court Opinion, 11/13/2019, at 2-3.
The notice clearly instructed Father that a hearing was scheduled and
would proceed even in his absence. It also notified him to contact the Court
Administrator’s Office if he did not have an attorney or could not afford one.
Based on our review of the record, we conclude that Father had proper notice
of the hearing and his right to counsel, and that he received clear instructions
regarding how to obtain a lawyer if he could not afford one. However, Father
failed to take any action to obtain counsel prior to the termination hearing or
to participate in the hearing.3 As such, we discern no error or abuse of
discretion by the trial court regarding the appointment of counsel for Father
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3 Mother testified that Father contacted her from prison after receiving notice
of the petition to terminate his rights. N.T., 9/19/2019, at 19. The trial court
determined that since Father was able to contact Mother, “[F]ather could have
taken steps to contact the court administrator by telephone[.]” Trial Court
Opinion, 11/13/2019, at 3. The record supports this finding. Moreover, Father
has not complained that he did not receive notice regarding the appointment
of counsel or that he tried contacting the court administrator to obtain counsel
to no avail or to make arrangements to participate in the hearing.
Finally, we note that because Father did not request counsel or otherwise alert
the trial court that he contested the termination proceeding, the trial court
was not required to appoint counsel to represent Child. See 23 Pa.C.S.A.
§ 2313(a) (“The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being contested
by one or both of the parents.”).
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or Father’s non-participation in the termination hearing and conclude that this
issue is frivolous.
Finally, we are required to make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
wholly frivolous. Termination of parental rights 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).
Here, Mother and Stepfather petitioned for the involuntary termination
of Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b) of the
Adoption Act, which provides, in pertinent part, as follows:
(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
parental claim to a child or has refused or failed to perform
parental duties.
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(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)(1) and (b).
In this case, the trial court determined:
[T]he evidence in this case could not have been more persuasive.
Even before his incarceration [Father] walked away from all
contact and communication with [Child]. He was being afforded
periods of visitation by [Mother] and voluntarily ended those.
Despite knowing where [Mother] lived and knowing her cell[ular
tele]phone number, [F]ather stopped all contact and
communication. He provided no support, cards, letters, gifts or
anything else to maintain his parental relationship. Well before
his incarceration, clear and convincing evidence was presented
regarding his settled intent and failure to perform any parental
duties. After his incarceration, [Father] made no effort at all to
avail himself [of] resources available to maintain the relationship.
The [trial c]ourt also found that the [p]etitioners had met [their]
burden of proof under 23 Pa.C.S.A. § 2511(b). […] The [trial]
court found that [Father’s] prolonged absence left [Child] with no
bond or, at best, a negative bond as the result of [Father’s]
abandonment. On the contrary, the [trial] court found that [Child]
had bonded significantly with the petitioner/[S]tep-father and that
[her] best interests would be clearly served by the termination of
[Father’s] rights and adoption by [S]tep-father.
Trial Court Opinion, 11/13/2019, at 5.
Upon review, we discern no error or abuse of discretion by involuntarily
terminating Father’s parental rights to Child. Mother testified that, aside from
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a chance meeting with Father at a store two years prior to the termination
hearing, Father did not maintain any contact with Child for over three years
prior to the termination hearing. N.T., 9/19/2019, at 11-13. Father was
incarcerated in April of 2018. Id. at 24. Child does not have photographs
or memories of Father. Id. at 19. She rarely asks about Father. Id. at 18-19.
Child has not maintained contact with Father’s family. Id. at 18. In May of
2015, Mother and Stepfather began cohabiting with Child. Id. at 14. Mother
and Stepfather were married in January of 2019. Id. at 15. Mother and
Stepfather have a three-year-old son together. Id. at 22. Child has called
Stepfather “Dad” for several years. Id. at 21-22 and 29. Stepfather views
Child as his own daughter. Id. at 28-29. Mother and Stepfather intend for
Stepfather to adopt Child. Id. at 15 and 32.
Based upon the record before us, we also agree with Counsel that
Father’s issue, as presented in the Anders brief, is frivolous. Moreover, the
trial court did not commit an abuse of discretion in terminating Father’s
parental rights. Pursuant to Section 2511(a)(1), Father refused or failed to
perform parental duties for well over six months prior to the filing of the
petition to terminate Father’s rights. The trial court also gave primary
consideration to the developmental, physical and emotional needs and welfare
of Child under Section 2511(b), concluding that no bond worthy of
preservation existed between Father and Child and that termination was in
Child’s best interest. We have independently reviewed the record and find no
other issues of arguable merit that Father could pursue on appeal.
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Accordingly, we affirm the trial court order and grant Counsel's petition to
withdraw.
Order affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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Adoption of K.R.S-P., Appeal of: Z.D.P.
Combined Opinion