J-A03041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: L.N., FATHER : No. 2077 EDA 2021
Appeal from the Order Entered September 14, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001201-2017
IN THE INTEREST OF: A.A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: L.N., FATHER : No. 2078 EDA 2021
Appeal from the Decree Entered September 14, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000572-2019
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 14, 2022
L.N. (Father) appeals from the orders entered in the Philadelphia County
Court of Common Pleas, which: (1) involuntarily terminated his parental
rights to his child, A.M. (Child), born in May of 2012; and (2) changed the
permanency goal to adoption.1 Father’s attorney, Harry Levin, Esquire
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1 The termination order was entered at trial docket CP-51-AP-0000572-2019,
and the goal change order at CP-51-DP-0001201-2017. Thus, Walker is not
implicated. See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018)
(“[W]here a single order resolves issues arising on more than one docket,
separate notices of appeal must be filed for each case.”), overruled in part,
(Footnote Continued Next Page)
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(Counsel), has filed an Anders brief and petition to withdraw from
representation, averring Father’s appeal is frivolous.2 We affirm the orders
and grant Counsel’s petition to withdraw.
I. Procedural History
As stated above, Child was born in May of 2012. The trial court
summarized:
On April 25, 2017[, when Child was almost five years old,]
DHS received a General Protective Services report alleging
concerns for Mother’s mental health and arson. [N.T., 9/14/21,
at 10.] Child was adjudicated dependent on May 25, 2017 based
on present inability. . . . Child was removed from Mother’s care
____________________________________________
Commonwealth v. Young, 265 A.3d 462, ___, 2021 WL 6062566, *1 (Pa.
Dec. 22, 2021) (reaffirming that Pa.R.A.P. 341 requires separate notices of
appeal when single order resolves issues under more than one docket, but
holding Pa.R.A.P. 902 permits appellate court to consider appellant’s request
to remediate error when notice of appeal is timely filed). In any event, Father
properly filed separate notices of appeal for each order. This Court sua sponte
consolidated the two appeals on October 27, 2021.
On September 14, 2021, the trial court also terminated the parental
rights of Child’s mother, L.G. (Mother). According to the trial court, Mother
did not appeal. Trial Ct. Op., 11/2/21, at 1 n.1.
Finally, we note Child’s guardian ad litem (GAL) has filed an appellee’s
brief. The Philadelphia Department of Human Services (DHS), however, has
filed a letter with this Court, stating it would not file a brief.
2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The Anders/Santiago procedures, for
attorneys seeking to withdraw from representation on appeal, have been
extended to both termination of parental rights and goal change proceedings.
In re J.D.H., 171 A.3d 903, 905-06 (Pa. Super. 2017). See also id. at 906
(“Parents have a right to counsel at every stage of a dependency
proceeding.”).
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and placed in Foster Care[, and] has remained in care consistently
since this time. [Id. at 13.]
Prior to the adjudication, Father was not involved in the
Child’s life. [N.T. at 10.] Throughout the life of this case, Father’s
single case plan objectives have remained the same[:] maintain
stable housing, visit with the Child consistently, and report to the
Clinical Evaluation Unit (“CEU”) for a forthwith drug screen, dual
diagnosis assessment [for mental health and drug use,] and three
random screens. [Id. at 19; Order 5/25/17 at 2.]
Trial Ct. Op. at 1-2 (some record citations omitted).
Two years and two months after Child’s dependency adjudication, on
August 1, 2019, DHS filed the underlying petitions for a goal change to
adoption and the termination of both parents’ parental rights. The trial court
conducted a hearing on September 14, 2019. At that time, Child was 10 years
old and in fourth grade, and was represented by a guardian ad litem. N.T. at
15, 28. Father appeared and testified, but Mother did not appear.
A Community Umbrella Agency (CUA) case manager, Macy Johnston,
testified that “throughout the life of the case,” Father “would often go long
periods of time without visiting the Child.” Trial Ct. Op. at 2, citing N.T. at 22.
He had one visit with Child in September of 2020, two visits in March of 2021,
and none since then. Id. Ms. Johnston further testified to the following:
Father completed his forthwith [drug] screen, but never
completed a drug and alcohol assessment. [N.T. at 22-23.
A]lthough Father’s home in Philadelphia was appropriate, [Ms.
Johnston “had not assessed the home since ‘the early years of the
case.’” He] often traveled back and forth between Philadelphia
and New Jersey for work, where he also lives part time. [Id. at
23, 39.] Father had disclosed that he planned to bring the Child
back and forth on the road with him when he worked, should they
be reunified. [Id. at 24. Ms. Johnston] also testified that Father
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has not met any of Child’s medical or educational needs over the
past four years and is no closer to reunifying with the Child than
he was when the case began four years ago. [Id. at 25, 28.]
. . . Child has been in the current Foster Mother’s home for over
four years and . . . they share a mother-daughter bond. [N.T. at
25-26.] Foster Mother meets all of Child’s general, medical, and
educational needs. [Id. at 26.] Child refers to the Foster Mother
as “Mom” and has indicated that she wishes to be adopted. [Id.
at 27. I]t would not cause any irreparable harm to the Child to
change the permanency goal to adoption and to terminate Mother
and Father’s parental rights. [Id.]
Trial Ct. Op. at 2-3 & n.2 (some record citations omitted).
DHS also called Roya Paller, a forensic social worker to testify. Ms. Paller
was retained by DHS to assess Child in the foster home and determine Child’s
understanding about adoption.
Ms. Paller visited the Child in the home on January 30, 2021. She
testified that the Child is happy in her pre-adoptive foster home
and that she wants to be adopted and stay in that home forever.
She also testified that the Child wants to sever her relationship
with Mother and Father. Ms. Paller testified that the Child does
not enjoy visits with Father and finds them “very scary” and
therefore no longer wants to visit with Father. [N.T. at 51-52.]
Trial Ct. Op. at 3 (some record citations omitted).
Father testified to the following: (1) he attended “about a hundred”
visits, which were “documented;” (2) the visits were “[r]ecorded” and
“[v]ideoed [sic];” and (3) he and Child “had a good time.” N.T. at 53. Father
stated he was recently hospitalized for two or three months for COVID-19,
which prevented him from attending visits with Child. Id. at 54. Furthermore,
he was incarcerated in New Jersey from November 2017 to June 2018. Id. at
55.
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Father maintained he “completed everything that was court ordered.”
N.T. at 53. He denied that he was ordered to complete dual diagnoses or any
mental health treatment, and instead, he was only directed to submit to
random urine testing, which he did. Id. On cross-examination, DHS’s counsel
asked Father if he were present at the last hearing, where the trial court
ordered him to complete “a dual diagnosis, drug and alcohol, and mental
health assessment.” Id. at 56. Father first responded that he did not recall
if he were present, and then that “the last hearing was postponed.” Id. at
57. We note that in closing argument, DHS argued Father did attend “the last
several hearings” where the court had “ordered him to go for a dual diagnosis
assessment.” Id. at 59.
Next, Father denied that he was “on the road” for work, and stated he
owned a production company, which “work[s] out of New York.”3 Id. at 54.
He then stated, without further explanation, “I’m from New York. And me
relocating I was without employment for three years because of this [sic].”
Id. Nevertheless, Father also stated he has “kept a home in Philadelphia . . .
for over four years.” Id. at 55. He “reached out to Ms. Johnston numerous
times via text messages” about evaluating his home, but she did not respond.
Id.
____________________________________________
3 Father stated that his production company “film[s] for VH1.” N.T. at 54.
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The trial court changed the permanency goal to adoption and terminated
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and
(8). The court also found termination will best serve Child’s developmental,
physical, and emotional needs and welfare, pursuant to 23 Pa.C.S. § 2511(b).
Appellant filed a timely appeal, along with a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2).
II. Anders Petition to Withdraw & Brief
“Before reaching the merits of [Father’s] appeal, we must first address
the propriety of [C]ounsel’s petition to withdraw and Anders brief.” See In
re J.D.H., 171 A.3d at 905. This Court has explained:
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 [Anders] brief to the
[appellant]; and 3) advise the [appellant] that he or she
has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the
court’s attention.
With respect to the third requirement of Anders, that counsel
inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must “attach to their
petition to withdraw a copy of the letter sent to their client
advising him or her of their rights.”
Additionally, an Anders brief must comply with the following
requirements:
(1) provide a summary of the procedural history and
facts, with citations to the record;
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(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.
In re J.D.H., 171 A.3d at 907 (some citations omitted). If this Court “is
satisfied that counsel has complied with the aforementioned requirements, the
Court then must undertake an independent examination of the record to
determine whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d
1235, 1237 (Pa. Super. 2004).
Here, Counsel’s one-page petition to withdraw does not state, as
required, that he made a conscientious examination of the record, nor that he
has determined the appeal would be frivolous. See In re J.D.H., 171 A.3d
at 907. Instead, the petition merely states, in pertinent part:
In accordance with the mandate of [Santiago, 602 A.2d 159,]
counsel is sending Father . . . a copy of the filed Anders brief,
this petition to withdraw, and is so informing [Father] of his right
to proceed pro se or hire a new attorney.
Counsel’s Petition to Withdraw Appearance of Counsel, 11/19/21.
However, this Court has stated,
Anders is not a hyper-technical process. Rather, it is a procedure
designed specifically to afford the appellant specific constitutional
rights.
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By following the Anders procedure correctly, . . . counsel not
only affords the appellant the . . . constitutional rights [to counsel]
but also demonstrates to this Court that those rights have, in fact,
been afforded. . . .
* * *
[“W]hile counsel’s finding of frivolousness is subject to our review,
the Anders brief, as well as the Anders petition, gives this Court
and the appellant an assurance that an officer of the court — a
trained attorney — has applied a lawyer’s learning and expertise
when examining the case on the appellant’s behalf.” Ultimately,
then, Anders does not involve a pointless formalism but, instead,
a fruitful protocol, adherence to which not only facilitates an
appellant’s exercise of constitutional rights but also allows counsel
to prove to this Court the appellant has been afforded those rights.
Commonwealth v. Woods, 939 A.2d 896, 898-99 (Pa. Super. 2007)
(citations omitted).
Here, we note Counsel attached, to his petition to withdraw, a copy of
the letter he sent to Father, which advised: (1) Counsel was requesting to
withdraw as counsel; (2) Counsel was attaching a copy of the brief prepared
in support of his request to withdraw; and (3) Father had the right to retain
new counsel or proceed pro se and raise any additional claims worthy of
consideration. Counsel’s Letter to Father, 11/18/21. Furthermore, we note
Counsel’s Anders brief includes a section entitled, “Summary of Statement in
Support of Withdrawal of Counsel.” Anders Brief at 11. This section states,
The record does not support the conclusion that
[Father] has filed a meritorious appeal. Counsel has
investigated the record and identified the issues that may be
raised in this appeal . . . .
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In this brief counsel has provided a procedural history of the
case, and the facts solicited at the goal change/termination
hearing, referred to anything in the record that counsel believes
arguably supports the appeal, sets forth counsel’s conclusion
that the appeal is frivolous and has stated the reasons for
reaching that conclusion. Therefore, this [Anders] brief should
be accepted and counsel should be permitted to withdraw.
Id. (emphases added).
Although Counsel’s petition does not state that he made a
conscientious examination of the record and has determined Father’s appeal
would be frivolous, his Anders brief clearly sets forth these statements. See
In re J.D.H., 171 A.3d at 907; Anders Brief at 11. The petition does state
that Counsel provided a copy of the Anders brief to Father, and informed him
of his right to proceed pro se or hire a new attorney. As Counsel has satisfied
to this panel that he has examined the case on Father’s behalf and afforded
Father his right to counsel, we conclude the petition is minimally compliant
with the Anders procedure.4 See In re J.D.H., 171 A.3d at 907; Woods,
939 A.2d at 899. We do remind Attorney Levin of the requirements of a
petition to withdraw. See In re J.D.H., 171 A.3d at 907.
Furthermore, we conclude Counsel’s Anders brief complies with the
Santiago requirements. See In re J.D.H., 171 A.3d at 907. The brief: (1)
sets forth a summary of the facts and procedural history of this dependency
____________________________________________
4Furthermore, we note that if we were to find Counsel’s petition deficient, we
would deny the petition and remand for Counsel to either comply with Anders
or file an advocate’s brief. See Woods, 939 A.2d at 898.
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matter, with citations to the record and termination hearing transcript; (2)
refers to anything in the record that could arguably support the appeal; and
(3) sets forth Counsel’s conclusion that, and reasons why, the appeal is
frivolous. See id. Pertinently, Counsel suggests that Father’s claims — that
he has completed all his objectives and has a strong bond with Child — are
not supported by the record evidence. Instead, Counsel states, Father has
refused throughout the case to participate in drug and alcohol therapy, mental
health services, single case plan meetings, or court hearings. Anders Brief
at 14-15.
Thus, we now independently examine the record to determine whether
this appeal is wholly frivolous. See In re S.M.B., 856 A.2d at 1237.
III. Termination of Parental Rights
We first note the claims set forth in Counsel’s Anders brief:
1. Whether the trial court committed reversible error, when it
involuntarily terminated [F]ather’s parental rights where such
determination was not supported by clear and convincing evidence
under the adoption act, 23 PA.C.S.A. § 2511 (a)(1), and (2), (5)
and (8).
2. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical and emotional needs of the
child as required by the adoption act, 23 PA.C.S.A. § 2511(b).
3. Whether the trial court erred because the evidence was
overwhelming and undisputed that [F]ather demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with [his] child.
Anders Brief at 6.
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Our standard of review of dependency matters is broad. In re M.P.,
204 A.3d 976, 985 (Pa. Super. 2019) (citation omitted). However, we do not
nullify the fact-finding of the lower court. We accord great weight
to this function of the hearing judge because he is in the position
to observe and rule upon the credibility of the witnesses and the
parties who appear before him. Relying upon his unique posture,
we will not overrule his findings if they are supported by
competent evidence.
Id. (citation omitted). Moreover, we have stated:
It is this Court’s responsibility to ensure that the record represents
a comprehensive inquiry and that the hearing judge has applied
the appropriate legal principles to that record. Nevertheless, we
accord great weight to the court’s fact-finding function because
the court is in the best position to observe and rule on the
credibility of the parties and witnesses.
Interest of D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009) (citation omitted).
We also note the standard of review of an order terminating parental
rights:
[O]ur scope of review is comprehensive: we consider all the
evidence presented as well as the trial court’s factual findings and
legal conclusions. However, our standard of review is narrow: we
will reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It 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
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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 at 511 (citations omitted). We need only agree with the
court as to any one subsection of 2511(a), in addition to subsection 2511(b),
to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, the trial court found grounds for termination of Father’s parental
rights under Subsections 2511(a)(1), (2), (5), and (8). We first observe that
Subsections (a)(5) and (8) include the removal of the child “from the care of
the parent” for at least, respectively, six months and 12 months. See 23
Pa.C.S. § 2511(a)(5), (8). Because the evidence did not show Child was ever
in Father’s care, we conclude termination under those subsections was
mistaken. See id.
Nevertheless, we consider the statutory grounds for termination under
Subsection (a)(2):
(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
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conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[ ]
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
At the termination hearing, Father and CUA case manager, Ms.
Johnston, gave generally conflicting testimony. Whereas Father testified he
visited Child approximately 100 times, Ms. Johnston stated that “throughout
the life of the case,” “there [were] long periods where he would go without
visiting,” and that Father’s most recent three visits, as of September 14, 2021,
were in September of 2020 and March of 2021. N.T. at 20, 22, 53. We
acknowledge Father’s testimony that beginning in November 2017, he was
incarcerated for a seven month-period, and that, shortly before the
termination hearing, he was hospitalized for COVID-19 for “over two to three
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months.” N.T. at 54-55. However, any inability to visit Child during these
periods does not explain the other “long periods,” “throughout the life of the
case,” of no visitation. See id. at 20, 22. In any event, there was no evidence
that Father attempted to maintain contact with Child during his incarceration
or hospitalization. This Court has stated:
Incarceration alone is not sufficient to support termination under
any subsection, but “incarceration will certainly impact a parent’s
capability of performing parental duties, and may render a parent
incapable of performing parental duties under subsection (a)(2).”
. . . [Nevertheless, “p]arental 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.” Rather, “[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.”
Importantly, a parent’s “recent efforts to straighten out [her] life”
upon release from incarceration does not require that a court
“indefinitely postpone adoption.”
See Int. of K.M.W., 238 A.3d 465, 474 (Pa. Super. 2020) (citations omitted).
Furthermore, we note that despite DHS’ evidence as to Father’s goals
throughout this dependency matter, Father denied that he was ever directed
to complete “dual diagnosis,” and instead, he “completed everything that was
. . . ordered.” Id. at 19, 53. Finally, whereas Ms. Johnston testified that
Father frequently traveled to New Jersey for work, Father denied such travel,
but instead stated, somewhat confusingly, that he owned a production
company that “work[s] out of New York,” but he “relocate[ed] without
employment for three years because of this [sic].” Id. at 23-24, 54. In any
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event, Father did not refute Ms. Johnston’s testimony that he had stated an
intention to take Child, then 10 years old, “back and forth on the road with
him.” See id. at 24. Finally, Ms. Johnston believed that Father was not “in a
substantially closer place to reunifying with [Child than] he was four years”
earlier. Id. at 25.
In light of the foregoing evidence, a challenge to the grounds for
termination under Subsection 2511(a)(2) would go to the weight of the
testimony presented. Here, the trial court found Ms. Johnston’s testimony
credible, as evidenced by the findings set forth in its opinion:
Applying M.E.P. and the elements set forth under 2511(a)(2)
to the instant case, DHS met its burden of demonstrating that
termination was proper. The evidence established . . .
“incapacity” and “refusal” under 2511(a)(2)[,] given that Father
failed to demonstrate a concrete desire or ability to care for the
Child. Father has failed to complete his single case plan objectives
throughout the life of this case. [N.T. at 22-23.] Despite having
had four years to do so, Father has failed to participate in his
court-ordered drug screens and assessments. [Id.]
Additionally, although Father has a home in Philadelphia, his
work schedule requires him to travel back and forth in and out of
state and Father has no stable plan to parent Child during this
time. [N.T. at 24.] Moreover, the evidence established that
“neglect” existed given that Father has failed to consistently visit
with Child throughout the life of the case. [Id. at 22-23.] Father
has only visited three times in the past year, and the testimony
established that Father has frequently gone long periods of time
without visiting the Child throughout the past four years. This
Court found that Father’s failure to comply with his single case
plan objectives and consistently visit . . . has left the Child without
essential parental care, and the cause of such neglect, refusal,
and continued incapacity will not be remedied by Father. . . .
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Trial Ct. Op. at 8-9 (paragraph break added and some record citations
omitted).
To the extent Father’s testimony, about his visitation and compliance
with plan objectives, conflicted, we do not disturb to the trial court’s credibility
findings. See In re M.P., 204 A.3d at 985; Interest of D.P., 972 A.2d at
1225. The record supports the court’s findings, and thus we do not disturb
the termination order as to Subsection 2511(a)(2). Furthermore, we need not
assess the termination under Subsection (a)(1). See In re B.L.W., 843 A.2d
at 384.
Next, we review the termination of Father’s parental rights under
Subsection 2511(b).
“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.” The
court is not required to use expert testimony, and social workers
and caseworkers may offer evaluations as well. Ultimately, the
concern is the needs and welfare of a child.
We have explained:
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 parent’s rights would destroy
something in existence that is necessary and beneficial.
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The 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. Where
there is no evidence of a bond between the parent and child, it is
reasonable to infer that no bond exists. “[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 M.P., 204 A.3d at 983-84 (citations omitted).
Here, Father testified, that his approximately 100 visits with Child were
recorded and videotaped, and that the visits went “[v]ery well.” N.T. at 53.
However, as stated above, Ms. Johnston testified that throughout this
dependency matter, there were “long periods where [Father] would go without
visiting.” Id. at 22. Pertinently, forensic social worker, Ms. Paller, testified
as to what Child told her: that Child would like to end visits with Father, as
the visits are “very scary” and “[s]he doesn’t enjoy them.” Id. at 51-52. Child
also understood that “adoption is a forever home,” and “definitely wants to be
adopted.” Id. at 50.
Again, the conflicts in the testimony were for the trial court to weigh,
and we do not disturb its credibility findings on appeal. See In re M.P., 204
A.3d at 985; Interest of D.P., 972 A.2d at 1225. In the year before the
termination hearing, Father visited Child three times, the last of which was six
months before the hearing. See N.T. at 19-20. At the age of nine, Child
expressed to Ms. Paller that visits with Father were “very scary,” she wished
for the visits to stop, and she wished to be adopted. See id. at 50-52.
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Finally, the trial court found:
There was compelling testimony that the Child would not suffer
[emotional] harm if Father’s parental rights were terminated and
that Child was significant bonded with her foster mother. [N.T. at
27, 50.] Father failed to offer any evidence establishing the
existence of a parent-child bond. The testimony demonstrated
that Child’s primary bond is with her foster-mother[, and] that
Child’s foster mother meets all her general and developmental
needs. [Id. at 26.] Moreover, the Child is afraid of Father and no
longer wishes to have a relationship with him. [Id. at 51-52.] In
determining that termination would best serve the needs and
welfare of the Child, this Court considered that Father has not
been able to meet the Child’s emotional, physical, and
developmental needs for almost three years prior to the
termination hearing. [Id. at 26.] For the foregoing reasons. this
Court properly granted DHS’s petition to involuntarily terminate
Father’s parental rights pursuant to Section 2511(b).
Trial Ct. Op. at 12-13. After independent review of the record, we conclude
the evidence supports the court’s finding of sufficient grounds for termination
under Subsection 2511(b).
For all the foregoing reasons, we decline to disturb the order terminating
Father’s parental rights.
IV. Goal Change
We next review the trial court’s order changing Child’s goal to adoption.
We note the relevant standard of review:
[O]ur standard is abuse of discretion. In order to conclude that
the trial court abused its discretion, we must determine that the
court’s judgment was manifestly unreasonable, that the court did
not apply the law, or that the court’s action was a result of
partiality, prejudice, bias or ill will, as shown by the record. We
are bound by the trial court’s findings of fact that have support in
the record. The trial court, not the appellate court, is charged
with the responsibilities of evaluating credibility of the witnesses
and resolving any conflicts in the testimony. In carrying out these
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responsibilities, the trial court is free to believe all, part, or none
of the evidence. When the trial court’s findings are supported by
competent evidence of record, we will affirm even if the record
could also support an opposite result.
In re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007) (citation omitted).
With respect to a goal change:
The best interests of the child, and not the interests of the parent,
must guide the trial court. [“A] child’s life simply cannot be put
on hold in the hope that the parent will summon the ability to
handle the responsibilities of parenting.”
In re A.B., 19 A.3d 1084, 1089 (Pa. Super. 2011) (citations omitted).
When the child welfare agency has made reasonable efforts to
return a foster child to his or her biological parent, but those
efforts have failed, then the agency must redirect its efforts
towards placing the child in an adoptive home. This Court has
held that the placement process should be completed within 18
months.
* * *
While this 18-month time frame may in some circumstances seem
short, it is based on the policy that a child’s life simply cannot be
put on hold in the hope that the parent will summon the ability to
handle the responsibilities of parenting.
In re A.K., 936 A.2d at 533 (citation omitted).
Section 6351(f) of the Juvenile Act5 provides, in relevant part:
(f) Matters to be determined at permanency hearing.—
At each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness of
the placement.
____________________________________________
5 42 Pa.C.S. §§ 6301-6375.
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(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the
child might be achieved.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
* * *
(8.2) That a transition plan has been presented in
accordance with section 475 of the Social Security Act (49
Stat. 620, 42 U.S.C. § 675(5)(h)).
(9) If the child has been in placement for at least 15 of
the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable efforts
to prevent or eliminate the need to remove the child from the
child’s parent, guardian or custodian or to preserve and
reunify the family need not be made or continue to be made,
whether the county agency has filed or sought to join a
petition to terminate parental rights and to identify, recruit,
process and approve a qualified family to adopt the child . . .
* * *
(12) If the child has been placed with a caregiver,
whether the child is being provided with regular, ongoing
opportunities to participate in age-appropriate or
developmentally appropriate activities. In order to make the
determination under this paragraph, the county agency shall
document the steps it has taken to ensure that:
(i) the caregiver is following the reasonable and
prudent parent standard; and
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(ii) the child has regular, ongoing opportunities to
engage in age-appropriate or developmentally
appropriate activities. The county agency shall consult
with the child regarding opportunities to engage in such
activities.
42 Pa.C.S. § 6351(f).
We incorporate our above discussion concerning Father’s failure, over
four years, to maintain consistent visitation and to complete his plan
objectives. At the time of the termination hearing, Child had been committed
to DHS’s care and placed in foster care for four years and three months — far
longer than the 18-month period contemplated in In re A.K. See In re A.K.,
936 A.2d at 533. The record supports the goal change order, as Child’s life
“cannot be put on a hold in the hope that [Father] will summon the ability to
handle the responsibilities of parenting.” See id. Accordingly, we affirm the
goal change order.
IV. Conclusion
For the foregoing reasons, we agree with Counsel that the instant appeal
is frivolous. We affirm the order involuntarily terminating Father’s parental
rights and the order changing the goal to adoption. We also grant Counsel’s
petition to withdraw.
Orders affirmed. Counsel’s petition to withdraw from representation
granted.
Judge Stabile joins the Memorandum.
Judge Dubow Did Not Participate.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2022
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