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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.A.E.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.J., MOTHER :
:
:
:
:
: No. 372 WDA 2022
Appeal from the Order Entered March 30, 2022
In the Court of Common Pleas of Clarion County
Orphans' Court at No(s): No. 23 OC 2022
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 21, 2022
A.J. (“Mother”) appeals from order granting the petition filed by the
Clarion County Children and Youth Services (“CYS”) and terminating Mother’s
parental rights of her daughter C.A.E.B. (“Child”), born in February 2010,
under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b).1 Additionally, Gina L.
Bianco, Esquire (“Attorney Bianco”), Mother’s counsel, has filed a petition for
leave to withdraw as counsel and an accompanying brief pursuant to Anders
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court also terminated the parental rights of C.B.’s father, J.B.
(“Father”). Father has not appealed the termination of his parental rights.
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v. California, 386 U.S. 738, 744 (1967).2 We grant Attorney Bianco’s petition
for leave to withdraw and affirm the order.
In September 2020, CYS filed a petition alleging Child’s dependency due
to unstable housing and homelessness; concerns about Mother’s mental
health; and the fact that Child was acting out sexually and sending nude
photographs of herself. Following a hearing, the trial court found Child to be
dependent but allowed her to remain in Mother’s care. The trial court ordered
Mother to immediately obtain a mental health evaluation and stable housing.
Several months later, in January 2021, Mother made multiple suicidal
comments and attempted to exit a moving vehicle with Child in the vehicle.
As a result, CYS filed a shelter care application. The trial court granted
the application, and Child was placed with her maternal uncle and aunt. The
trial court again informed Mother of the necessity to stabilize her mental
health. However, Mother continued to struggle with her mental health and
failed to consistently participate with mental health services. In October 2021,
Mother ceased attending her mental health appointments, stating that they
were not helping her. In contrast, Mother completed parenting classes and
regularly participated in supervised visits. Nevertheless, Mother had a difficult
time engaging with Child and applying the lessons from the classes to her
____________________________________________
2 It is well settled that the Anders principles have been extended “to appeals
involving the termination of parental rights.” In re X.J., 105 A.3d 1, 3 (Pa.
Super. 2014).
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relationship with Child; and Mother was distracted by other matters, including
her relationships with various men.
On January 7, 2022, the trial court entered an order changing the
permanency goal from reunification to adoption. Subsequently, Child indicated
that she did not want to participate in visits with Mother. CYS then filed a
petition seeking the termination of Mother’s parental rights. At the hearing on
the petition, the trial court heard testimony from CYS caseworker Amanda
Gregory; family resource specialist Mary Milford; and Mother. Significantly,
Gregory testified that Child had alleged that when she was 8 years old, she
had been sexually assaulted by a man who accompanied her and Mother on a
camping trip; however, Mother demonstrated no concern about these
allegations and took no steps to address the incident when it was reported to
her. Ultimately, the trial court involuntarily terminated Mother’s parental
rights, finding that Child had been dependent for 18 months, and in kinship
care with maternal uncle and aunt for 14 months, where she had been
adjusting well and wished to remain.
After Attorney Bianco timely filed the instant appeal and a Pa.R.A.P.
1925(b) concise statement, she filed in this Court petition for leave to
withdraw as counsel and a separate Anders Brief.
Attorney Bianco presents the following issues on Mother’s behalf in the
Anders Brief:
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1. Whether the Trial Court erred or committed an abuse of
discretion in terminating [Mother’s] Parental Rights under 23
Pa.C.S.A. [§] 2511(a)(1)?
2. Whether the Trial Court erred or committed an abuse of
discretion in terminating [Mother’s] Parental Rights under 23
Pa.C.S.A. [§] 2511(a)(2)?
3. Whether the Trial Court erred or committed an abuse of
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. [§] 2511(a)(5)[?]
4. Whether the Trial Court erred or committed an abuse of
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. [§] 2511(b)[?]
Anders Brief at 5-6. Mother neither filed a pro se brief, nor retained alternate
counsel for this appeal.
Before reviewing the merits of Mother’s claims, we must first determine
whether Attorney Bianco has complied with the dictates of Anders in
petitioning to withdraw from representation. See In re X.J., 105 A.3d at 3.
Pursuant to Anders, when an attorney believes that an appeal is frivolous and
wishes to withdraw as counsel, he or she must (1) petition the court for leave
to withdraw stating that after making a conscientious examination of the
record, counsel has determined the appeal would be frivolous, (2) file a brief
referring to any issues in the record of arguable merit, and (3) provide a copy
of the brief to the client and advise her of the right to proceed pro se or retain
new counsel to raise any additional arguments worthy of the court’s review.
See In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). “With respect to
the third requirement of Anders, that counsel inform the appellant of his or
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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.” In re J.D.H., 171 A.3d 903, 907 (Pa.
Super. 2017) (citation and quotation marks omitted).
Additionally, a proper Anders brief 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 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.
Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Once counsel has satisfied the above requirements, this Court “must
undertake an independent examination of the record to determine whether
the appeal is wholly frivolous.” In re S.M.B., 856 A.2d at 1237.
Here, Attorney Bianco has complied with the requirements set forth in
Anders by indicating that she made a conscientious review of the record and
determined that Mother’s appeal would be wholly frivolous. Further, the record
contains a copy of the letter that Attorney Bianco sent to Mother, informing
her of Attorney Bianco’s intention to withdraw and advising her of her right to
proceed pro se, retain counsel, and file additional claims. Finally, Attorney
Bianco’s Anders Brief meets the standards set forth in Santiago. Because
Attorney Bianco has complied with the procedural requirements for
withdrawing from representation, we will independently review the record to
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determine whether Mother’s appeal is, in fact, wholly frivolous. See In re
J.D.H., 171 A.3d at 908.
We review an appeal from the termination of parental rights with
significant deference to the trial court’s verdict:
In an appeal from an order terminating parental rights, our 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).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon CYS to prove by
clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. See In re D.A.T., 91 A.3d 197, 203
(Pa. Super. 2014). “Clear and convincing evidence is that which is so clear,
direct, weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.”
Interest of A.M., 256 A.3d 1263, 1270 (Pa. Super. 2021) (citation and
quotation marks omitted). Further, 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. See In re D.A.T., 91
A.3d at 203. “If competent evidence supports the trial court’s findings, we will
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affirm even if the record could also support the opposite result.” In re M.M.,
106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted).
Satisfaction of any one subsection of section 2511(a), along with
consideration of section 2511(b), is sufficient for the involuntary termination
of parental rights. See Interest of S.S., 252 A.3d 681, 686 (Pa. Super.
2021). In this case, we will review the trial court’s decision to terminate
Mother’s parental rights based upon sections 2511(a)(1) and (b), which state
the following:
(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.
***
(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), (b).
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To terminate parental rights under Section 2511(a)(1), the party
seeking termination must prove that 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. Parental duties are not
defined in the Adoption Act, but our courts long have interpreted
parental duties in relation to the needs of a child, such as love,
protection, guidance and support. Parental duties are carried out
through affirmative actions that develop and maintain the parent-
child relationship. The roster of such positive actions undoubtedly
includes communication and association. The performance of
parental duties requires that a parent exert himself to take and
maintain a place of importance in the child’s life. Fortitude is
required, as a parent must act with reasonable firmness to
overcome obstacles that stand in the way of preserving a parent-
child relationship and may not wait for a more suitable time to
perform parental responsibilities.
In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (citations, quotation
marks, and brackets omitted). Further,
[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.
In re Adoption of B.G.S., 240 A.3d 658, 665 (Pa. Super. 2020) (citation
omitted).
Mother contends that the trial court erred in granting the Petition to
involuntarily terminate her parental rights to Child under Section 2511(a)(1).
See Anders Brief at 12-14. Mother argues that she has not evidenced a
settled purpose of relinquishing her parental claims to Child. See id. at 14.
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In finding that Mother had shown an intent to relinquish her rights to
Child, the trial court highlighted the low priority she gave to her relationship
with Child:
[Child] was removed from her Mother’s care in January 2021 due
to Mother’s inability to maintain her mental health despite CYS
establishing services for her and assisting her to meet her mental
health needs. In March 2022, Mother was still demonstrating a
lack of mental health stability. Over the pendency of this case,
Mother did not consistently take her mental health medication or
participate in mental health counseling. Of even greater concern
was the general lack of care she demonstrated for the well-being
of [Child]. She did not engage with [Child] during visits, she did
not make choices in her own life that would allow her to establish
a safe and appropriate home for [Child] in that she continued to
invite various adult men to live with her or stay at her residence,
knowing that [Child] had made allegations of being sexually
assaulted by an adult male friend during a camping trip while in
Mother’s care. And Mother repeatedly allowed her relationship
with men to overshadow her visit time with [Child]. While Mother
was offered parenting classes and coaching to assist her with
connecting with [Child] during visits, she was still unable to
establish a relationship with [Child] or connect with her in any
meaningful way. Mother has generally failed to demonstrate that
she has the ability or the desire to provide love, comfort, security
and stability for [Child].
Trial Court Opinion, 4/28/22, at 4-5 (unnumbered).
After a careful review of the record, we find that there is competent
evidence in the record that supports the trial court’s findings and credibility
determinations. Indeed, Child was removed from Mother’s home after Mother
suffered multiple mental health crises in January 2021, including making
multiple suicidal statements and attempting to exit a moving vehicle
containing Child and her paramour at the time. See N.T., 3/1/22, at 7-8.
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Furthermore, Mother was non-compliant with mental health services
and would stop taking her medicine, without indicating her concerns to
providers or CYS. See id. at 9-10, 66. Although Mother completed parenting
classes, she could not apply what she learned to Child. See id. at 18, 41.
Indeed, Mother made weekly supervised visits with Child, which never
increased in frequency, and Mother did not make significant progress with
Child during the visits. See id. at 18-19, 20-21, 43-44, 59, 74. Mother
additionally admitted that she only called Child half the time when the
opportunity arose. See id. at 20; see also id. at 21 (noting that there were
no phone calls between Mother and Child after the goal change).
Mother indicated that she received notice of Child’s medical and
educational appointments but did not attend any of the appointments. See id.
at 90. Moreover, CYS caseworker Gregory expressed concern with the fact
that Mother had five separate relationships with men between August 2021
and January 2022. See id. at 15; see also id. at 58 (wherein Family Specialist
Milford testified that Mother loses focus on reunifying with Child when she is
in a relationship with a man). CYS caseworker Gregory additionally testified
that Child stated that one of Mother’s paramours had sexually abused her
when she was 8 years old during a camping trip and that Mother did not do
anything to stop the abuse. See id. at 22-25.
In light of the foregoing, the trial court did not err in finding that Mother
did not perform her parental duties. See In re Adoption of B.G.S., 240 A.3d
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at 665 (stating that a parent does not perform “her parental duties by
displaying a merely passive interest in the development of a child.”).
Therefore, we find no reason to disturb the trial court’s conclusions or its
discretion in terminating Mother’s parental rights to Child under section
2511(a)(1).
Having determined termination is appropriate pursuant to Section
2511(a)(1), we next review whether the requirements of Section 2511(b) are
satisfied. See In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).
Under section 2511(b), the trial court inquires whether the termination of
parental rights would best serve the developmental, physical, and emotional
needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286 (Pa.
Super. 2005). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287
(citation omitted). The 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. See Interest of L.W., 267 A.3d 517, 523
(Pa. Super. 2021); see also In re Z.P., 994 A.2d at 1121 (stating that “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.”). “[C]ourts considering termination must also consider whether
the children are in a pre-adoptive home and whether they have a bond with
their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citation
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omitted). In conducting a bonding analysis, the court is not required to use
expert testimony, but may rely on the testimony of social workers and
caseworkers. See Interest of L.W., 267 A.3d at 523. Finally, although the
focus in terminating parental rights under section 2511(a) is on the parent, it
is on the child under section 2511(b). See In re C.L.G., 956 A.2d at 1008.
Mother contends that the trial court erred in determining that
termination served Child’s best interests under section 2511(b). See Anders
Brief at 17. Mother argues that she demonstrated a bond with Child. See id.
at 18.
Here, upon removal from Mother’s care, Child was placed with her
maternal uncle and aunt. See N.T., 3/1/22, at 29-30. CYS caseworker Gregory
testified that Child has been doing well in her new home environment, she has
been in therapy, and she was regularly attending school and performing well
at school. See id. at 30-32; see also id. at 33, 43, 44 (noting that Child
stated that her relationship with Mother triggers behavioral issues and that
talking to Mother did not make her feel safe). Further, Gregory testified that
Child expressed that she wanted to be adopted by her uncle and aunt, and
that she does not want contact with Mother. See id. at 33-34. Gregory
indicated that terminating Mother’s parental rights was appropriate due to
Child’s progress with her uncle and aunt. See id. at 34.
Family Resource Specialist Milford testified that Mother struggled to
bond with Child during visits. See id. at 59. Mother would express that she
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loved Child at the end of visits, and they would hug. See id. at 63-64.
However, Mother also admitted that she did not attend to Child’s medical or
educational appointments. See id. at 70.
The trial court determined that termination of Mother’s parental rights
best served Child’s needs and welfare, explaining that Child was in loving and
stable home where her needs are being met. See Trial Court Opinion,
4/28/22, at 5 (unnumbered). The trial court’s determination that Child’s best
interests are served by the termination of Mother’s parental rights is supported
by competent, clear, and convincing evidence in the record. See In re K.Z.S.,
946 A.2d 753, 763-64 (Pa. Super. 2008) (affirming the involuntary
termination of the mother’s parental rights, despite the existence of some
bond, where placement with the mother would be contrary to the child’s best
interests); see also In re Z.P., 994 A.2d at 1125 (stating that, a child’s life
“simply cannot be put on hold in the hope that [a parent] will summon the
ability to handle the responsibilities of parenting.”). Therefore, we conclude
that the trial court did not abuse its discretion in terminating the parental
rights of Mother under section 2511(b).
Moreover, as we cannot find any additional meritorious issues in the
record, and we agree with Attorney Bianco that Mother’s appeal is frivolous,
we grant her petition for leave to withdraw from representation.
Order affirmed. Petition for leave to withdraw as counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2022
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