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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF J.T.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.T.M., FATHER :
:
:
:
:
: No. 1157 WDA 2021
Appeal from the Decree Entered July 2, 2021
In the Court of Common Pleas of Butler County Orphans' Court at No(s):
O.A. No. 5 of 2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 28, 2022
J.T.M (Father) appeals from the July 2, 2021 decree involuntarily
terminating his parental rights to his daughter, J.T.M. (Child), born in May
2007. In addition, Father’s court-appointed counsel, Dennis W. McCurdy,
Esquire (Counsel), has filed a petition to withdraw and accompanying
amended brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we grant the petition to withdraw and affirm the termination decree.
We begin with an overview of the relevant facts and procedural history.
This appeal arises from the petition filed by T.K.B. (Mother) on January 27,
2021, for the involuntary termination of Father’s parental rights pursuant to
23 Pa.C.S. § 2511(a)(1), (2), and (b). Mother’s husband, D.I.B. (Stepfather),
filed a petition for adoption on the same date. The orphans’ court scheduled
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the evidentiary hearing for July 1, 2021, and it appointed Carrie S. O’Connell,
Esquire, as counsel for Child pursuant to 23 Pa.C.S. § 2313(a).
On the date of the hearing, Father was incarcerated at State Correctional
Institution (SCI) – Greene, where he was transferred on or about the date
that Mother filed the involuntary termination petition.1 N.T., 7/1/21, at 3.
Father did not appear at the evidentiary hearing, and no counsel appeared on
his behalf. Mother’s counsel, Elizabeth A. Gribik, Esquire, introduced into the
record, and the court admitted, proofs of service filed on April 21, 2021, and
May 6, 2021. Id. at 3-5. The court concluded that Father “was served by
mail” with the petition and the notice of hearing on April 21, 2021, and May
6, 2021.2 Orphans’ Ct. Op., 9/27/21, at 1. The court further found that
Father, however, filed no documentation in the orphans’ court to indicate that
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1 The court took judicial notice of Father’s criminal record. N.T. at 11. Mother
testified that Father is incarcerated for a parole violation involving burglary
and crimes involving possession and intent to deliver illegal drugs. Id.
2 Attorney Gribik served Father on two separate occasions with the involuntary
termination petition, the adoption petition, and a petition requesting in forma
pauperis status and court-appointed counsel, inter alia. She attached to the
proofs of service notifications of delivery made by the United States Postal
Service (USPS) on April 21, 2021, and May 6, 2021. The record does not
reveal whether Attorney Gribik served Father by registered or certified mail.
See Pa.O.C.R. 15.4(a) (providing, in part, “Notice to every person to be
notified shall be by personal service, service at his or her residence or an adult
member of the household, or by registered or certified mail to his or her last
known address.”).
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he contested Mother’s petition, such as requesting court-appointed counsel or
appearing at the hearing. Id. at 2.
During the hearing, Mother testified on her own behalf, and she
presented the testimony of Stepfather. Additionally, Child, who was 14 years
old at the time of the hearing, testified in open court that she preferred
Father’s parental rights be terminated so that Stepfather can adopt her.
Mother and Father have three natural daughters, and Child is the oldest.
See N.T. at 7. Mother previously filed petitions for the involuntary termination
of Father’s parental rights to his two other natural daughters, which the court
granted on December 10, 2020. Id. at 7, 38-39. At that time, Child did not
consent to Stepfather adopting her, so Mother did not file a petition regarding
Father’s parental rights to Child.3 Id. at 7-8.
Mother testified that Father was regularly involved in Child’s life until
she was five years old. See N.T. at 8. Thereafter, Father was rarely involved,
and he did not perform any parental duties for Child. Id. at 8-10; 11-13. As
related supra, Father has spent time in jail on various occasions and he was
incarcerated at the time of the hearing. Id. at 8-9. Furthermore, Father last
saw Child during a supervised visit at Family Pathways in September 2020.
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3 The record reveals that Stepfather filed petitions to adopt Child’s sisters, but
an adoption hearing had not yet occurred. At the conclusion of the subject
proceeding, the court terminated Father’s parental rights to Child, and
directed that the adoption hearing, when scheduled, include Child and her two
sisters. N.T. at 39-40.
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Id. Child terminated the visit early because she hoped Father would turn his
life around, and it was evident that he had not. Id. at 31-32. Child shares a
bond with Stepfather, who has been involved in her life since 2017. Id. at
13-14, 21-24. Child made a conscientious decision that she wants Father’s
parental rights terminated and that she wishes to be adopted by Stepfather.
Id. at 31-34.
At the conclusion of the proceeding, the orphans’ court terminated
Father’s parental rights on the record in open court pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), and (b). See N.T. at 37-38. By decree dated July 1, 2021,
the court involuntarily terminated Father’s parental rights to Child. An
affidavit of service related to the decree was filed on the court’s docket on July
2, 2021, and a proof of service was filed on July 12, 2021.
Father, acting pro se, timely filed a notice of appeal on August 6, 2021.4
However, Father failed to file a concise statement of errors complained of on
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4 We treat Father’s appeal as being timely filed because the decree was not
entered on the orphans’ court docket with the required notation that notice
had been given to Father. Pa.O.C.R. 4.6; Pa.R.A.P. 903(a). This constituted
a breakdown in court operations, which resulted in the 30-day appeal period
not being triggered. Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa.
1999); Carr v. Michuck, 234 A.3d 797 (Pa. Super. 2020).
Specifically, on July 2, 2021, the orphans’ court clerk recorded on the
docket, “ADOPT – AFFD OF SERVICE (INVOL) TERM ORDER, FINDINGS,
CONCLUSIONS & NOTICE OF RCP 236 COMPLIANCE.” On July 12, 2021, the
clerk recorded on the docket, “PROOF OF SERVICE FILED.” However, neither
docket entry includes the date that the clerk provided written notice to Father.
See Carr, 234 A.3d at 805-806; see also Pa.O.C.R. 4.6. Indeed, attached
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appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). See In Re K.T.E.L., 983
A.2d 745, 747 (Pa. Super. 2009) (holding that the failure to file a concise
statement of errors complained of on appeal with the notice of appeal will
result in a defective notice of appeal, to be disposed of on a case-by-case
basis).
Pursuant to Father’s request, by order dated September 28, 2021, the
orphans’ court appointed counsel, Nicole Thurner, Esquire, for Father. In the
same order, the court directed Attorney Thurner to file a concise statement
within 30 days. See Order, 9/28/2021, at ¶ 3. Attorney Thurner failed to
comply. See J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (appellant
waived all issues by failing to timely comply with the trial court’s direct order
to file a concise statement).
By order issued on November 12, 2021, this Court remanded the case
to the orphans’ court to determine whether Attorney Thurner had abandoned
Father and, if necessary, appoint new counsel, and to file, on or before
November 22, 2021, written findings with the Prothonotary’s Office of this
Court. See Order, 11/12/2021. In addition, we directed that, if the court
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to the proof of service included in the certified record is a USPS tracking slip
indicating that Father was served with the decree and notice of right to appeal,
inter alia, on July 8, 2021. As such, we will “regard as done which ought to
have been done” and deem this pro se appeal as timely filed, i.e., treat this
appeal as if the clerk inscribed the notation required by Rule 4.6.
Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015).
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finds Attorney Thurner has not abandoned Father, then it shall include, “in its
notice of findings, the date certain that counsel will file [Father’s] concise
statement of errors complained of on appeal.” Id.
The orphans’ court complied with the November 12th order. Following
a status conference with Attorney Thurner and Attorneys O’Connell and Gribik,
the court found that Attorney Thurner had not abandoned Father. Further,
the court determined that, on November 19, 2021, Attorney Thurner filed a
statement of intent to withdraw in lieu of filing a concise statement pursuant
to Pa.R.A.P. 1925(c)(4).5 See In re J.T., 983 A.2d 771, 774 (Pa. Super.
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5 Rule 1925 provides, in relevant part:
(c) Remand.
* * *
(4) If counsel intends to seek to withdraw in a criminal case
pursuant to Anders/Santiago or if counsel intends to seek to
withdraw in a post-conviction relief appeal pursuant to
Turner/Finley, counsel shall file of record and serve on the judge
a statement of intent to withdraw in lieu of filing a Statement. If
the appellate court believes there are arguably meritorious issues
for review, those issues will not be waived; instead, the appellate
court shall remand for the filing and service of a Statement
pursuant to Pa.R.A.P. 1925(b), a supplemental opinion pursuant
to Pa.R.A.P. 1925(a), or both. Upon remand, the trial court may,
but is not required to, replace an appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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2009) (holding that decision of counsel to follow Pa.R.A.P. 1925(c)(4)
procedure in a termination of parental rights case was proper).
Counsel thereafter filed a petition to withdraw and Anders brief in this
Court.6 On May 24, 2022, this Court denied Attorney Thurner’s petition and
directed her to comply with Santiago, 978 A.2d at 771 and Anders, 386 U.S.
at 738, or file an advocate’s brief within thirty days from the date of the
decision. See In Re Adoption of J.T.M., 1157 WDA 2021 (Pa. Super. May
24, 2022) (unpub. memo.). Attorney Thurner failed to comply. Accordingly,
this Court entered another order on July 18, 2022, mandating that Attorney
Thurner file a brief within ten days of that order. See Order, 7/18/2022.
Attorney Thurner failed to comply with that order as well.7
On August 9, 2022, this Court remanded the matter to the orphans’
court to remove Attorney Thurner as counsel and to appoint new counsel for
Father.8 This Court directed newly appointed counsel to file a brief within 30
days from the date of appointment. The orphans’ court removed Attorney
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6 Counsel revealed that she represented Father in the involuntary termination
proceeding concerning his two other daughters, Child’s younger sisters,
discussed above. See Anders Brief, 1/14/2022, at 10 n.1.
7 Attorney Thurner did not communicate to this Court that she had any issues
complying with the May 24, 2022 order, or the subsequent July 18, 2022
order. Her conduct has caused a substantial and needless delay in resolving
this appeal.
8This Court also ordered Attorney Thurner to return any fees she received in
connection with representation of this matter to the orphans’ court.
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Thurner as the attorney of record for Father on September 6, 2022, and
appointed Counsel to represent Father in the instant appeal. Thereafter, on
September 26, 2022, Counsel filed a petition to withdraw and Anders brief in
this Court, which we address first.
This Court has explained:
When counsel files an Anders brief, this Court may not review the
merits without first addressing counsel’s request to withdraw.
[T]his Court [has] extended the Anders principles to appeals
involving the termination of parental rights. . . .
In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citations omitted).
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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).
In Santiago, our Supreme Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Santiago, 978 A.3d at 361. Additionally, this Court has stated that,
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[P]ursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.
Super. 2005) and its progeny, “[c]ounsel also must provide a copy
of the Anders brief to his client[, along with] a letter that advises
the client of his right to: (1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points that
the appellant deems worthy of the court[’]s attention in addition
to the points raised by counsel in the Anders brief.”
In re X.J., 105 A.3d at 4 (citation omitted). 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 counsel must “attach to
their petition to withdraw a copy of the letter sent to their client advising him
or her of their rights.” Commonwealth v. Millisock, 873 A.2d at 752.
Finally, “[o]nce counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” In re X.J., 105 A.3d at 4 (citations omitted).
Instantly, Counsel filed a petition to withdraw certifying his
conscientious review and determination that Father’s appeal is frivolous.
Counsel also filed an amended Anders brief which includes a summary of the
procedural history and facts of the case with citations to the record, that no
issues arguably support the appeal, and Counsel’s assessment regarding why
the appeal is frivolous with citations to relevant legal authority. Finally,
Counsel attached to his petition the letter that he sent to Father advising of
his right to 1) retain new counsel to pursue the appeal; 2) proceed pro se on
appeal; or 3) raise any points that Father deems worthy of this Court’s
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attention. Accordingly, Counsel complied with the requirements of Anders
and Santiago.
We next “conduct a review of the record to ascertain if on its face, there
are non-frivolous issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc).
We note the standard of review in termination of parental rights cases:
[A]ppellate courts . . . accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record. If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or
abused its discretion. A decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re J.N.M., 177 A.3d 937, 941-42 (Pa. Super. 2018) (citation omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights and requires a bifurcated analysis. See 23 Pa.C.S. § 2511.
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.
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In re J.N.M., 177 A.3d at 942 (citation omitted). In order to affirm a
termination of parental rights, we need only agree with the orphans’ court as
to any one subsection of Section 2511(a), as well as Section 2511(b). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In the matter at bar, the orphans’ court terminated Father’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). Here, we analyze
the court’s decision to terminate pursuant to Sections 2511(a)(1) and (b),
which provide 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.
* * *
(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. § 2511(a)(1), (b).
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To satisfy the requirements of Section 2511(a)(1), “the moving party
must produce clear and convincing evidence of conduct, sustained for at least
the six months prior to the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a refusal or failure to
perform parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
The orphans’ court must then consider the parent’s explanation for their
abandonment of the child, in addition to any post-abandonment contact. Id.
This Court has emphasized that a parent does not perform parental duties by
displaying “a merely passive interest in the development of [a] child.” In re
B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted). Rather,
[p]arental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every problem, in
order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs. . . .
Id. (citations omitted).
Critically, incarceration does not relieve a parent of the obligation to
perform parental duties. An incarcerated parent must “utilize available
resources to continue a relationship” with his or her child. In re Adoption of
S.P., 47 A.3d 817, 828 (Pa. Super. 2018) (discussing In re Adoption of
McCray, 331 A.2d 652 (Pa. 1975)).
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With respect to Section 2511(b), we consider whether termination of
parental rights will best serve children’s developmental, physical and
emotional needs and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). “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.” Id. “[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 B., N.M., 856 A.2d 847, 856 (Pa. Super.
2004).
“When conducting a bonding analysis, the court is not required to use
expert testimony. [Instead, s]ocial workers and caseworkers can offer
evaluations as well.” In re Z.P., 994 A.2d at 1121. “Intangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
welfare of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
“‘Above all else . . . adequate consideration must be given to the needs and
welfare of the child.’ A parent’s own feelings of love and affection for a child,
alone, do not prevent termination of parental rights.” In re Z.P., 994 A.2d at
1121.
In the instant case, the orphans’ court stated, “the evidence presented
demonstrates [Father] failed to perform parental duties for at least six (6)
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months preceding filing of the [p]etition on January 27, 2021.” Orphans’ Ct.
Op. at 6. The court continued,
In making its determination, the [c]ourt considered the
circumstances regarding [Father’s] incarceration. There was no
evidence presented that [Father] sent letters or cards to [Child],
while incarcerated. Upon release, [Father] was granted the
opportunity to reunify with [Child]. [Father] attended only one
(1) court-ordered reunification counseling session at Family
Pathways. While the session occurred within six (6) months of
filing the [p]etition, a single supervised visit is not a “continuing
interest in the child and a genuine effort to maintain
communication and association with the child.” See In re C.M.S.,
832 A.2d [457, 457 (Pa. Super. 2003)]. [Father] failed to perform
parental duties when he was not incarcerated. Therefore,
[Father’s] incarceration does not preclude termination of his
parental rights.
Id. at 7.
A careful review of the record supports the orphans’ court’s finding. At
the time of the hearing, Child was 14 years old. Mother testified that Father
has not participated in Child’s life since she was five years old. See N.T. at 8.
He does not attend any of her extracurricular activities; he does not help with
homework; he does not attend any of Child’s school functions; and he does
not provide any financial support for Child. Id. at 12. Additionally, Father
has Mother’s contact information, but he does not reach out asking to speak
with Child or to see how Child is doing. Id. at 12-13. Father’s last visit with
Child occurred in September 2020, and the visit ended early because it was
too difficult for Child. Id. at 10, 31-32. Father has been incarcerated during
various periods of Child’s life, and the record does not indicate that he has
made efforts to perform parental duties whether incarcerated or not.
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Based on the foregoing, we discern no abuse of discretion by the
orphans’ court in concluding that Father’s conduct warrants termination
pursuant to Section 2511(a)(1). The record demonstrates that for a period of
far in excess of six months immediately preceding the filing of the petition,
Father refused or failed to perform parental duties.
We turn now to Section 2511(b). The orphans’ court aptly stated:
[I]t is in [Child’s] best interest to terminate [Father’s] parental
rights. [Child] testified she still feels a connection with [Father],
but not a bond like she feels with Mother and [Stepfather].
[Child’s] decision in favor of terminating [Father’s] parental rights
is mature and well-reasoned. The record is void of any evidence
a bond exists between [Father] and [Child], who will be able to
maintain connection with the paternal family through [p]aternal
[g]randmother. On the other hand, the credible evidence
established [Child] and [Stepfather] are bonded and enjoy a
loving father-daughter relationship.
Orphans’ Ct. Op. at 7-8. The court also stated that Mother and Stepfather
provide a stable family unit and provide for the needs and welfare of Child.
Id. at 8.
The record confirms the orphans’ court’s findings. Child’s counsel, with
permission from Child in open court to give a statement on her behalf, stated
that Child feels a connection with Father, but not a bond. N.T. at 31. Child
initially hoped that Father would turn his life around, but ultimately Child made
her decision to terminate his rights knowingly, intelligently, and voluntarily.
Id. at 31, 35.
Furthermore, Mother and Stepfather testified to the significant bond that
Child and Stepfather have cultivated. Mother testified that Child and
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Stepfather are “very much alike” and have “father/daughter” nights on
Monday nights. Id. at 13. Stepfather confirmed that he and Child are alike
and that he loves Child. Id. at 21-22. Stepfather also testified that he takes
time each week to spend quality time with Child. Id. at 24. Accordingly, the
orphans’ court did not abuse its discretion in determining that termination best
serves Child’s developmental, physical, and emotional needs and welfare
pursuant to Section 2511(b).
Our independent review of the certified record reveals no preserved
non-frivolous issue that would arguably support this appeal from the decree.
See In re X.J., 105 A.3d at 4. Therefore, we grant Counsel’s petition to
withdraw from representation, and affirm the decree terminating Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).
Counsel’s petition to withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2022
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