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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.S.C.P. A/K/A I.C.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.A.P. A/K/A D.P., :
MOTHER :
:
:
: No. 3125 EDA 2016
Appeal from the Order August 8, 2016
in the Court of Common Pleas of Bucks County
Civil Division at No: No. 2016-9060
BEFORE: SHOGAN, STABILE, and PLATT*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 23, 2017
D.A.P. a/k/a D.P. (“Mother”) appeals from the decree entered on
August 16, 2016, in the Court of Common Pleas of Bucks County,
involuntarily terminating her parental rights to her daughter, I.S.C.P. a/k/a
I.C.P. (“Child”), born in August of 2013. Counsel for Mother has filed also
with this Court both a petition for leave to withdraw as counsel and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and its progeny.
We affirm, and grant counsel’s petition to withdraw.1
The trial court set forth the following factual and procedural history.
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*
Retired Senior Judge assigned to the Superior Court.
1
By separate decree entered on August 16, 2016, the trial court
involuntarily terminated the parental rights of R.C. (“Father”). He did not
file a notice of appeal.
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Child’s drug test [at birth] was positive for unprescribed
medication, oxycodone, which prompted the Agency [Bucks
County Children and Youth Social Services Agency] to implement
a Safety Plan regarding Mother. The Safety Plan provided that
Mother was not to be alone with Child in an unsupervised
setting.
Following ongoing concerns, an Emergency Order was sought in
Dependency Court, and on August 7, 2014, Child was placed in
the legal and physical custody of the Agency. A subsequent
Shelter Care Order was entered on August 11, 2014.
Approximately six (6) weeks later, Child was adjudicated
dependent. On May 4, 2016, the Agency filed a Petition to
Terminate Parental Rights as to Mother and Father pursuant to
23 Pa.C.S. § 2511(a)(2), (5), and (8).
Trial Court Opinion, 9/21/16, at 1-2 (citations to record omitted) (footnote
omitted).
The trial court held a hearing on August 8, 2016, during which the
Agency presented the testimony of its caseworker, Ashley Lorenz. Mother
did not personally appear for the hearing, but she was represented by court-
appointed counsel.
By decree dated August 8, 2016, and entered on August 16, 2016, the
trial court involuntarily terminated Mother’s parental rights. Mother timely
filed a notice of appeal on September 6, 2016. On that same date, Mother’s
counsel filed a statement of intent to file an Anders brief in lieu of a
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(c)(4). See In re J.T., 983 A.2d 771, 774 (Pa.
Super. 2009) (holding that decision of counsel to follow Rule 1925(c)(4)
procedure in a termination of parental rights case was proper). On
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September 21, 2016, the trial court filed its opinion pursuant to Rule
1925(a).
On November 16, 2016, Mother’s counsel filed a petition with this
Court requesting to withdraw from representation and submitted a brief
pursuant to Anders, supra. We address counsel’s Anders brief at the
outset. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005) (“‘When faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the
request to withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d 1301,
1303 (Pa. Super. 1997)). In In re V.E., 611 A.2d 1267 (Pa. Super. 1992),
this Court extended the Anders principles to appeals involving the
termination of parental rights. 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) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). 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
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of the letter sent to their client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
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;
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Instantly, counsel filed a petition to withdraw certifying that she had
reviewed the case and determined that Mother’s appeal was frivolous.
Counsel also filed a brief that includes a summary of the history and facts of
the case, the issue raised by Mother, the facts that arguably support the
appeal, and counsel’s assessment of why the appeal is frivolous with
citations to relevant legal authority. Counsel attached to her petition to
withdraw a copy of the letter to Mother advising her that she could obtain
new counsel or raise additional issues pro se. Accordingly, counsel complied
with the requirements of Anders and Santiago.
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We next proceed to review the issue outlined in the Anders brief. In
addition, we must “conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote omitted). Counsel’s Anders brief raises the following issue for our
review:
1. Did the trial court commit an error of law and abuse of
discretion by involuntarily terminating [Mother’s] parental rights?
Anders Brief at 2. The Agency counters that it established by clear and
convincing evidence the statutory grounds to terminate Mother’s parental
rights and that severing Mother’s rights would serve Child’s best interest.2
The standard of review in termination of parental rights cases
requires appellate courts to 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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2
Similarly, the guardian ad litem filed a brief in support of the decree
involuntarily terminating Mother’s parental rights.
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
conclude that the certified record sustains the trial court’s decision to
terminate under Sections 2511(a)(2) 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:
...
(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 conditions and causes of the
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incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
...
(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)(2), (b).
This Court has stated as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
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)). Further, we have stated, “[t]he 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).
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With respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial 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.” Id. (citation omitted). However, “[i]n cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946
A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
In this matter, the Agency established the following Family Service
Plan (“FSP”) objectives for Mother, in part: complete a substance abuse
evaluation and follow through with all recommendations; maintain suitable
housing; obtain a mental health evaluation and follow through with all
recommendations; and visit with Child regularly. N.T., 8/8/16, at 12-13.
The trial court found that Mother has not successfully completed any of
the recommended substance abuse or mental health treatment programs.
In addition, the trial court found that Mother has not maintained suitable
housing. Specifically, the trial court found that Mother “was a resident of
Section 8 housing but was terminated from that program in 2014. In 2015,
Mother was living in a Red Cross Shelter; however, she lost her opportunity
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to continue to reside there due to her violations of the shelter’s rules.” Id.
at 6 (citations to record omitted). In addition, the trial court found that
Mother “was selected for a supportive housing opportunity. However, to be
the recipient of such housing[,] Mother was required to have custody of
Child. Mother remains, then, without stable housing.” Id.
Moreover, the trial court found that “throughout the history of the
Agency’s involvement, Mother has been inconsistent with her visits with
Child.” Id. at 6 (citations to record omitted). Specifically, the trial court
found as follows:
At the time of the August [8], 2016 hearing, Mother had not
visited with Child since February 2016. In October 2015, visits
by Mother at the foster mother’s home were discontinued due to
Mother’s threats directed toward the foster mother. And, at one
point, Mother’s visits with Child were suspended. [ ] Mother was
unsuccessfully discharged from several parenting programs,
which programs were incorporated into and partially dependent
upon her visitation with Child.
Id. at 6-7 (citations to record omitted).
Upon careful review, the testimony of the Agency’s caseworker, Ashley
Lorenz, supports the foregoing findings of the trial court. Indeed, Ms.
Lorenz’s testimony demonstrates that Mother’s repeated and continued
incapacity, neglect, or refusal to successfully complete her FSP objectives of
substance abuse and mental health treatment programs, housing, and
visitation has caused Child to be without essential parental care, control, or
subsistence necessary for her physical or mental well-being. Further, the
causes of Mother’s incapacity, neglect, or refusal cannot or will not be
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remedied. As such, we discern no abuse of discretion by the trial court in
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
With respect to Section 2511(b), this Court has explained as follows:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910
(Pa. Super. 2008) (trial court’s decision to terminate parents’
parental rights was affirmed where court balanced strong
emotional bond against parents’ inability to serve needs of
child). Rather, the orphans’ court must examine the status of
the bond to determine whether its termination “would destroy an
existing, necessary and beneficial relationship.” In re Adoption
of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we
explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Our Supreme Court has stated that, “[c]ommon sense dictates that
courts 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 at 268. The Court directed that, in
weighing the bond considerations pursuant to Section 2511(b), “courts must
keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.
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Court observed that, “[c]hildren are young for a scant number of years, and
we have an obligation to see to their healthy development quickly. When
courts fail . . . the result, all too often, is catastrophically maladjusted
children.” Id.
Instantly, the trial court found as follows:
[T]he record is devoid of testimony or evidence of a beneficial
relationship between Mother and Child, the existence of which
would result in a negative effect on Child should Mother’s rights
be terminated. The record contains clear and convincing
evidence that Mother has not made strides toward adequately
parenting Child. The evidence suggests, unfortunately, that
Mother has repeatedly failed to pursue the avenues that were
open to her for assistance through the Agency. Child is
deserving of consistent affection and consistent attention to her
needs and welfare, along with permanence and stability. Child’s
life cannot continue to remain on hold indefinitely, in hopes that
Mother will one day be able to act responsibly and consistently
as her parent.
Id. at 9-10 (citations omitted).
Further, the trial court found that Child shares a parent-child bond
with her foster mother, with whom she has resided since birth.3 Trial Court
Opinion, 9/21/16, at 8. The trial court also found that Child is thriving in her
foster placement, and that “Ms. Lorenz testified that Child is developmentally
ahead of her age-appropriate benchmarks.” Id. at 8-9 (citation to record
omitted). In addition, Ms. Lorenz testified that Child’s foster mother is a
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3
Ms. Lorenz testified that, at an unspecified time, Child was in another
foster home, but she implied that it was for a brief amount of time. N.T.,
8/8/16, at 16; Trial Court Opinion, 9/21/16, at 8.
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pre-adoptive resource. N.T., 8/8/16, at 17. Upon careful review of the
testimonial evidence, we discern no abuse of discretion by the trial court in
concluding that terminating Mother’s parental rights will serve Child’s
developmental, physical, and emotional needs and welfare.
Finally, our independent review of the certified record reveals no
preserved non-frivolous issue that would arguably support this appeal.
Therefore, we grant counsel’s petition to withdraw and affirm the decree
terminating Mother’s parental rights pursuant to Section 2511(a)(2) and (b).
Petition of Jennifer E. Pierce, Esquire, to withdraw from representation
is granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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