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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.C., PRESUMPTIVE :
FATHER :
:
:
:
: No. 526 WDA 2020
Appeal from the Decree Entered March 27, 2020
In the Court of Common Pleas of Indiana County Orphans' Court at
No(s): 32-19-0473
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 12, 2021
J.C. (“Father”) appeals from the decree terminating his parental rights
to his minor child, B.C. (“Child”), born in 2012. Father’s counsel has filed an
Anders1 brief and an application to withdraw as counsel, to which Father has
not responded. We grant counsel’s withdrawal request and affirm the decree
terminating Father’s parental rights to Child.
Father is Child’s presumptive father. Indiana County Children and Youth
Services (“CYS”) began its involvement shortly after Child was born addicted
to opiates. The court adjudicated Child dependent in April 2016, when Child
was three years old. The court placed Child with paternal uncle and aunt, with
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1Anders v. California, 386 U.S. 738 (1967); see also In re V.E., 611 A.2d
1267, 1275 (Pa.Super. 1992) (holding Anders protections apply to appeals
of involuntary termination of parental rights).
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whom Child had already been living off and on, and later with Father in
November 2016. The court terminated supervision in 2017.
Less than two years later, in January 2019, CYS removed Child from
Father’s home after learning Father had been arrested and incarcerated for
operating a methamphetamine laboratory in his home and his car. Father was
to become eligible for parole in July 2020. Child was six years old at the time.
The court adjudicated Child dependent in February 2019 and ordered
placement with paternal aunt and uncle.
Approximately seven months later, in October 2019, CYS filed a petition
for involuntary termination of Father’s parental rights. The court held a
hearing in March 2020 at which Child, then seven years old, was represented
by both counsel and guardian ad litem. The court heard testimony from Father
and a CYS caseworker, as well as the expert testimony of a clinical
psychologist.
Father testified that he had visits with Child during his incarceration
between January and June 2019, but the visits stopped after he was moved
from county jail to state prison. Father said he did not request visits with Child
after moving to the state penitentiary because he “lost his paperwork,” and
admitted that he has only seen Child once since June 2019. Trial Court Opinion
and Decree, 3/27/20, at 6. Father testified that he and Child had a good
relationship in the past, but that he “definitely was not performing parental
duties” for Child at the time of his arrest, and that their relationship is now
“strained.” Id. at 7. Father testified he received drug and alcohol counseling
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and mental health counseling while in prison, and, at the time of the hearing,
had enrolled in violence prevention and parenting classes.
The CYS caseworker testified that once Father is released on parole, he
would have to be free of illegal drug use for at least six months before he
could be considered a placement option for Child. Id. She also testified that
Child, who has lived with his uncle and aunt for over two years, “is very
comfortable with his uncle and aunt, and very comfortable in their home,” and
refers to his uncle and aunt as “Dad” and “Mom.” Id. at 6-7.
A clinical psychologist, Dr. Carolyn Menta, testified that she had
conducted a bonding assessment in November 2019. The resulting report was
admitted into evidence. She observed that Child feels “happy” when he thinks
about his aunt and uncle, and that he addresses Father by his first name. Id.
at 15 (quoting Agency Exhibit 1, at 2-3). Dr. Menta found that Child was
“parentified,” meaning he feels responsibility for Father’s well-being and is
forced to take on the role of an adult in keeping his Father happy. Id. at 8
(quoting Agency Exhibit 1, at 3). She opined that “[t]hough Child was
cooperative with his father, he did not appear comfortable. He did not appear
to be happy or excited to see his father. His presentation was one of
cooperation and compliance, but not enthusiasm.” Id. (quoting Agency Exhibit
1, at 4). She found Child’s bond with Father to be “minimal, at best,” and that
it was in Child’s “best interest to have permanency and stability with his aunt
and uncle.” Id. at 8-9 (quoting Agency Exhibit 1, at 4).
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Following the hearing, the court entered a decree involuntarily
terminating Father’s parental rights to Child.2 The court found termination was
warranted under 23 Pa.C.S.A. § 2511(a)(5) and (b).
Father appealed. Father’s counsel filed an Anders brief and motion to
withdraw. Father did not respond. CYS filed a letter stating it would not file an
appellee’s brief, and that the guardian ad litem and counsel for Child both
joined CYS in asking us to affirm the trial court.
We initially denied counsel’s motion to withdraw because Father’s
counsel had erroneously advised Father that he may only proceed pro se or
with private counsel after we granted the withdrawal request. See
Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa.Super. 2016).3
Father’s counsel has since filed a new Anders brief and motion to
withdraw that satisfy the Anders requirements. Counsel seeking to withdraw
pursuant to Anders must file a brief in which counsel (1) summarizes the
procedural history and facts of the case, with citations to the record; (2) refers
to anything in the record that arguably supports the appeal; (3) sets forth
counsel’s conclusion that the appeal is frivolous; and (4) sets forth counsel’s
reasons for so concluding. Commonwealth v. Santiago, 978 A.2d 349, 361
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2 Child’s biological mother executed a Consent to Adoption, and the court
terminated her parental rights to Child on March 16, 2020. That same day,
the court involuntarily terminated the parental rights of Child’s natural father.
3 See also In re Adoption of L.B., 237 A.3d 427 (Pa.Super. 2020)
(unpublished memorandum at *3) (applying Muzzy to appeal from
termination of parental rights).
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(Pa. 2009). Counsel’s withdrawal request must also state that counsel has
examined the record and determined the appeal is frivolous. Commonwealth
v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc). Counsel must
furnish a copy of the Anders brief to the appellant, and advise the appellant
that he or she has the immediate right to retain other counsel or proceed pro
se. Id.
Because the new filings meet these requirements, we will conduct our
own review of the record to determine whether the appeal is wholly frivolous
before passing on counsel’s request to withdraw. Santiago, 978 A.2d at 355
n.5.
In the Anders brief, counsel identifies the following issues:
1. Did the Trial Court commit [an] abuse of discretion or error of
law when it concluded that the Agency established grounds for
termination pursuant to 23 Pa.C.S.A. [§] 2511(a)(5)?
2. Did the Trial Court commit [an] abuse of discretion or error of
law when it concluded that the termination of parental rights was
appropriate and in the child’s best interest pursuant to 23
Pa.C.S.A. [§] 2511(b)?
3. Did the Trial Court commit [an] abuse of discretion or error of
law when it concluded that the bond between Father and the minor
child was minimal at best?
Anders Br. at 6-7.
When reviewing the involuntary termination of parental rights, 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)). We review
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the trial court’s decision for an error of law or abuse of discretion. In re
Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). We will not reverse
without a “demonstration of manifest unreasonableness, partiality, prejudice,
bias, or ill-will.” In re Adoption of S.P., 47 A.3d at 826.
Counsel raises a potential challenge to the conclusions of the trial court
in favor of termination under 23 Pa.C.S.A. §§ 2511(a) and (b). A petition to
terminate parental rights entails a bifurcated analysis. See In re L.M., 923
A.2d 505, 511 (Pa.Super. 2007). First, pursuant to Section 2511(a), the court
must focus on the conduct of the parent and determine whether there is “clear
and convincing evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a).” Id. Clear and
convincing evidence is 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.” In re Adoption of K.C.,
199 A.3d at 473.
Here, the court found termination was appropriate under Section
2511(a)(5). Subsection (a)(5) provides for termination when
[t]he child has been removed from the care of the parent by the
court or under a voluntary agreement with an agency for a period
of at least six months, the conditions which led to the removal or
placement of the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable period of time,
the services or assistance reasonably available to the parent are
not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and
termination of the parental rights would best serve the needs and
welfare of the child.
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23 Pa.C.S.A. § 2511(a)(5).
If the court determines that Section 2511(a) is met, it then must, under
§ 2511(b), shift its focus to the child, and determine “the needs and welfare
of the child under the standard of best interests of the child.” In re L.M., 923
A.2d at 511. Subsection (b) states, “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.” 23 Pa.C.S.A. § 2511(b). “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 at 511. The court must consider whether severing the bond “would
destroy an existing, necessary and beneficial relationship.” In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011) (citation omitted). The court must also
consider any bond between the child and pre-adoptive foster parents. In re
T.S.M., 71 A.3d at 268.
In finding termination warranted under subsection (a)(5), the court first
acknowledged that more than six months had elapsed since Child’s removal
in January 2019, as more than 13 months had elapsed by the time of the
hearing. Trial Ct. Op. and Decree at 10.
The court also observed that the conditions leading to Child’s removal
continued to exist. The court noted that Father had operated a very dangerous
methamphetamine lab in his home and car while Child was living with him,
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was now absent from Child’s life due to his incarceration, and would not be an
immediate placement option upon his release. Id. at 10-11.
The court next found that Father could not remedy the conditions which
led to Child’s removal within a reasonable time. According to the court, “[i]n
order for [Father] to remedy the situation that led to [Child]’s removal, he
would need to be released from incarceration, successfully engage in services,
and obtain and maintain stable employment and housing.” Id. at 11. The court
reviewed the dependency case since Child’s birth, and found “there have been
multiple investigations, one shelter care hearing, two adjudications, six
permanency review hearings, and at least three separate placements with
paternal uncle and aunt. [Father]’s persistent illegal drug use and criminal
activity have spanned Child’s lifetime.” Id. at 12. The court noted that the
CYS caseworker had testified that Father had not stayed in contact with CYS
or informed CYS of his engagement with prison services. The court stated,
“Father’s testimony regarding his participation in services during his
incarceration over the last 13 months is paltry at best. He did not possess any
certificates of participation and/or completion.” Id.
The court stressed that Father’s incarceration alone did not serve as the
basis for termination of his parental rights. It explained that its findings were
“based on Father’s actions from the time of [Child’s] birth until removal in
January of 2019, his current incarceration, and his almost complete failure to
demonstrate his desire to be a father to [Child] during his period of
incarceration.” Id. at 13. The court found it “troubling and unexplainable” that
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Father did not request visits with Child while serving his state sentence. Id.
at 11. Father also failed to send Child “cards or letters during his period of
incarceration. This total lack of effort by Father has resulted in one contact
with [Child] in over nine months, and that contact was necessary for the
[CYS]-directed Bonding Assessment.” Id. at 11-12.
The court further found that termination would best serve Child’s needs
and welfare, the final inquiry under subsection (a)(5). The court relied on Dr.
Menta’s uncontradicted expert testimony, and her conclusion that it is in
Child’s “best interest to have permanency and stability with his aunt and
uncle.” Id. at 13 (quoting Agency Exhibit 1, at 4).
The court similarly relied on Dr. Menta’s testimony in finding that
termination would best serve the “developmental, physical, and emotional
needs and welfare” of Child, under subsection (b). Id. at 15 (quoting 23
Pa.C.S.A. § 2511(b)). The court contrasted Dr. Menta’s findings that Child has
a minimal bond with Father and refers to him as “Jeremy,” with Dr. Menta’s
observation that he is happy with his aunt and uncle, and the CYS
caseworker’s testimony that Child refers to them as “Mom” and “Dad.” Id. at
15. The court also noted Child “has resided with his aunt and uncle for
approximately two years of [his] young life.” Id.
Counsel found the issues she identified in the Anders brief to be
frivolous, and we concur. Our own review of the record reveals no other non-
frivolous issues. We therefore grant counsel’s petition to withdraw, and affirm
the degree terminating Father’s parental rights to Child.
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Decree affirmed. Motion to withdrawal granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2021
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