In the Interest of: K.A.H.T.E., Appeal of: J.D.T. ( 2019 )

J-S57035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.A.H.T.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.D.T., MOTHER : No. 893 MDA 2019
Appeal from the Decree Entered May 2, 2019
in the Court of Common Pleas of Berks County
Orphans' Court at No(s): 86248
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 24, 2019
J.D.T. (“Mother”) appeals from the Decree granting the Petition filed by
the Berks County Children and Youth Services (“BCCYS”) and involuntarily
terminating Mother’s parental rights to her daughter, K.A.H.T.E. (“Child”),
born in November 2015, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8),
and (b).1 Mother’s counsel, Gregory S. Ghen, Esquire (“Counsel”), has filed a
Petition to withdraw as counsel and a brief pursuant to Anders v. California,
386 U.S. 738 (1967). We grant Counsel’s Petition to withdraw as counsel,
and affirm the trial court’s Decree.
The trial court summarized the procedural and factual history as follows:
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1 On November 13, 2015, an acknowledgement of paternity was signed by
D.O.G.E. (“Putative Father”). Subsequently, pursuant to DNA tests, D.M.
(“Biological Father”) was determined to be the father. Putative Father
consented to adoption, and the trial court involuntarily terminated the
parental rights of Biological Father. Neither Putative Father nor Biological
Father has filed an appeal or is a party to the instant appeal.
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[O]n March 31, 2017, the [t]rial [c]ourt took [] Child into
emergency protective custody after obtaining an Order from the
Hon[orable] Mary Ann Ullman of the Berks County Court of
Common Pleas. In its Dependency Petition to obtain protective
custody, BCCYS asserted the following allegations, among others,
with regard to Mother and [Putative] Father:
….
(b) [Putative] Father was late to a meeting with a
BCCYS caseworker because he had just been released
from the Berks County Prison that day;
(c) Mother and [Putative] Father had ongoing
domestic violence issues resulting in each filing
Protection from Abuse [Petitions] (“PFAs”) against the
other;
(d) [Putative] Father texted Mother in February
2017[,] telling her he was dropping [] Child off with
BCCYS because he “can’t do it anymore”;
(e) [Putative] Father posted a picture to social media
on March 21, 2017, in which he was smoking
something. He captioned the picture with: “Smoking
the pain away ...[.] This shit is killing me”; and
(f) On March 30, 2017, [Putative] Father admitted to
a BCCYS caseworker that he was smoking [synthetic
cannabinoids] in the presence of [] Child.
On May 22, 2017, the [t]rial [c]ourt entered an Order
declaring [] Child dependent, finding by clear and convincing
evidence that BCCYS had established the allegations set forth in
its [P]etition seeking dependency. In its dispositional [O]rder, the
[t]rial [c]ourt ordered Mother to comply with certain services,
treatment, and testing. The [t]rial [c]ourt expanded that list of
obligations through subsequent Orders … as a result of Mother’s
continued failure to make suitable progress. Among other things,
Mother was ordered to:
(a) Participate in casework sessions through BCCYS[,]
and comply with any recommendations;
(b) Maintain a stable lifestyle, including appropriate
housing and a sufficient, legal[,] source of income;
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(c) Sustain a stable mental health and participate in
any recommended evaluations and treatment;
(d) Sustain a clean and sober lifestyle, participate in
any recommended evaluations and treatment;
(e) Submit to random urinalysis;
(f) Sustain a safe and violence free lifestyle,
participate in any recommended domestic violence
evaluations and treatment;
(g) Sign releases of information for any service
providers; and
(h) Participate in visitation with [] Child as scheduled,
while acting in an appropriate manner.
Over the next 22 months, Mother made little to no progress
in complying with these requirements.
Trial Court Opinion, 7/15/19, at 4-6 (footnotes and citations to record
omitted).
On July 26, 2018, BCCYS filed Petitions for Involuntary Termination of
Parental Rights as to Mother, Biological Father, and Putative Father, pursuant
to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On January 22, 2019,
BCCYS withdrew its Petition as to Putative Father, and filed a Petition to
confirm Putative Father’s consent to adoption.
A hearing was conducted on the termination Petitions on April 29, 2019.
Mother and Biological Father were present and represented by counsel.
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BCCYS presented the testimony of Biological Father, Mother, and Christine
Wisniewski (“Wisniewski”), a BCCYS adoption caseworker.2
By Decree entered May 2, 2019, the trial court involuntarily terminated
the parental rights of Mother to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b).3 On May 28, 2019, Mother, through counsel, filed a
Notice of Appeal, as well as a Concise Statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On August 20, 2019, Counsel filed with this Court a Petition to withdraw
as counsel and an Anders brief. When counsel files an Anders brief, this
Court may not review the merits of the appeal without first addressing
counsel’s request to withdraw. Commonwealth v. Washington, 63 A.3d
797, 800 (Pa. Super. 2013). In In re V.E. & J.E., 611 A.2d 1267, 1275 (Pa.
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2 Child was represented by Carmen Stanziola, Esquire (“Attorney Stanziola”),
as guardian ad litem (“GAL”) and legal counsel during this proceeding. See
In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality) (holding that
23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the
legal interests of any child involved in a contested involuntary termination
proceeding, and defining a child’s legal interest as synonymous with his or her
preferred outcome); see also In re T.S., 192 A.3d 1080 (Pa. 2018) (holding
that the trial court did not err in allowing the children’s GAL to act as their sole
representative during the termination proceeding because, at two and three
years old, they were incapable of expressing their preferred outcome). As
Child was three years old at the time of the hearing and too young to express
a preference, we find the requirements of Section 2313(a) are satisfied.
3 The Decree does not specify the subsections under which the court
terminated Mother’s parental rights. However, we observe that in its Opinion,
the court appears to suggest that all grounds requested by BCCYS are
supported. See Trial Court Opinion, 7/15/19, at 11-13.
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Super. 1992), this Court extended the Anders principles to appeals involving
the termination of parental rights. Pursuant to Anders, when counsel believes
an appeal is frivolous and wishes to withdraw from representation, 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 anything that might arguably support
the appeal…; and
(3) furnish a copy of the brief to [the client] and advise him of his
right to retain new counsel, proceed pro se, or raise any additional
points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief
(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.2d at 361. “After an appellate court receives an Anders
brief and is satisfied that counsel has complied with the aforementioned
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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 at 1237.
With respect to the third requirement of Anders, that counsel inform
the client 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.” Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
In the instant case, our review of the Anders Brief and the Petition to
withdraw reveals that Counsel has substantially complied with each of the
requirements of Anders/Santiago. See Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must substantially
comply with the requirements of Anders). Counsel indicates that he has
made a conscientious examination of the record and determined that an
appeal would be frivolous. Further, Counsel’s Anders Brief comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, Counsel provided Mother with a copy of the Anders Brief and advised
her of her rights to retain new counsel or to raise any additional points deemed
worthy of the Court’s attention. Thus, Counsel has complied with the
procedural requirements for withdrawing from representation. We next
examine the record and make an independent determination of whether
Mother’s appeal is, in fact, wholly frivolous.
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Counsel’s Anders Brief raises the following issue for our review:
Did the [trial court] err by terminating [Mother]’s parental rights
because the evidence presented by [BCCYS] was insufficient to
support the [trial] court’s decision?
Anders Brief at 4.
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, quotation marks and
brackets omitted). “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.” In re M.G. & J.G., 855 A.2d 68, 73-
74 (Pa. Super. 2004) (citation omitted). “[I]f competent evidence supports
the trial court’s findings, we will affirm even if the record could also support
the opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.
Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and 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 505, 511 (Pa. Super. 2007) (citations omitted). We
have defined clear and convincing evidence as 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc).
In the case sub judice, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We have long
held that, in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as well
as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). Here, we analyze the court’s termination Decree pursuant to
subsections 2511(a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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 incapacity,
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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. …
23 Pa.C.S.A. § 2511(a)(2), (b).
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). “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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015).
“Parents are required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities…. [A] parent’s vow to cooperate,
after a long period of uncooperativeness regarding the necessity or availability
of services, may properly be rejected as untimely or disingenuous.” In re
A.L.D., 797 A.2d at 340 (internal quotation marks and citations omitted).
Further, as to Section 2511(b), our Supreme Court has stated,
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if the grounds for termination under subsection (a) are met, a
court shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The
emotional needs and welfare of the child have been properly
interpreted to include intangibles such as love, comfort, security,
and stability. In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this
Court held that the determination of the child’s needs and welfare
requires consideration of the emotional bonds between the parent
and child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
However, as discussed below, evaluation of a child’s bonds is not
always an easy task.
In re T.S.M., 71 A.3d at 267 (citations, quotation marks and brackets
omitted). “In 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, 762-63 (Pa. Super. 2008).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121.
Moreover,
[w]hile 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.
[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….
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In re Adoption of C.D.R., 111 A.3d at 1219 (quotation marks and citations
omitted).
With regard to subsections 2511(a)(2) and (b), the trial court stated as
follows:
The [t]rial [c]ourt believes Mother genuinely cares for and
loves [] Child. Although the [t]rial [c]ourt appreciates the
profound significance of these proceedings, Mother knew she
needed to comply with court-ordered services since very early in
the dependency process. Although Mother does appear to have
completed parenting classes and domestic violence counseling,
she failed to take advantage of the majority of visitation periods
with [] Child, she did not provide urine screenings to BCCYS as
required, and she failed to start mental health treatment until
approximately one month prior to the Termination Hearing, after
BCCYS filed the Petitions.
The [t]rial [c]ourt is not without sympathy for Mother[,] who
detailed many challenges she says have prevented her from
complying fully with the ordered services. The [t]rial [c]ourt
cannot, however, allow [] Child to exist indefinitely in legal limbo
without the permanency she deserves while everyone waits for
Mother to reach a point where she may, someday, possibly be able
to care for [] Child. By Mother’s own admission, she believes
[Biological] Father (who did not appeal the termination of his
parental rights) would be better suited to care for [] Child than
she would.
BCCYS offered testimony that [] Child is well-bonded with
her resource family. The foster family is a long-term, adoptive
resource, and [] Child appears healthy and secure in her
placement. Further, Child has spent a majority of her life in
placement, with only limited contact with Mother. [] Child was 16
months old at the time of placement, with the Termination Hearing
taking place approximately 25 months later.
After much reflection on the matter, and after careful
consideration, the [t]rial [c]ourt terminated Mother’s parental
rights to offer [] Child the permanency she needs. [] Child
deserves stability, permanency, and an opportunity to grow up in
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an environment free of the disruption and turmoil surrounding the
dependency process.
***
The [t]rial [c]ourt did not come to this decision lightly, and
it did so upon a showing of clear and convincing evidence that,
among other things, [] Child was bonded to her resource family,
that such bond outweighed Mother’s limited bond with Child, and
that the needs and welfare of [] Child are met through granting
the termination of parental rights. As such, the [t]rial [c]ourt
entered its Decree terminating the parental rights of Mother to []
Child.
Trial Court Opinion at 11-13 (footnotes omitted; some brackets in original).
Our independent review of the record reveals that Mother exhibited no
compliance with the permanency plan and made no progress toward
alleviating the circumstances which necessitated Child’s placement.
Significantly, Wisniewski reported that Mother’s Interstate Compact on the
Placement of Children (“ICPC”)4 was “denied for failure to comply with all of
her services.” N.T., 4/29/19, at 56; see also Exhibit 13. Wisniewski indicated
that she discussed the denial with Mother, and that Mother was aware that
approval was required for reunification. See N.T., 4/29/19, at 56. Further,
Mother acknowledged the necessity of the ICPC and of completing the court-
ordered services for reunification. Id. at 41.
While Mother completed parenting classes and intensive outpatient
treatment, Mother did not follow through with and complete drug and alcohol
treatment or mental health treatment. Id. at 56-57 (wherein Wisniewski
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4An ICPC was required, as Mother resided in New Jersey. N.T., 4/29/19, at
55-56.
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testified that Mother did not complete “[d]rug and alcohol services and the
mental health services. I believe she completed parenting. She did complete
the intensive outpatient program, but then she was to continue in drug and
alcohol counseling and did not do so.”); see also Exhibit 28. As to mental
health treatment, Mother admitted that she had only attended two sessions
since commencing treatment in March 2019.5 See N.T., 4/29/19, at 30-31,
41. Further, as to drug and alcohol treatment, Mother testified that she did
not complete the stepdown subsequent to her intensive outpatient treatment
program. Id. at 41. Furthermore, Mother’s last drug screen was in October
2018, and she could not say that, if she submitted to a drug screen the day
of the hearing, it would be clean. Id. at 45, 57.
In addition, at the time of the hearing, Mother’s last visit with Child was
in August 2018. Id. at 57. Notably, Mother only attended two hours of
visitation between March 4, 2017, and May 18, 2017; three hours between
May 12, 2017, and July 7, 2017; fifteen and one-quarter hours between July
8, 2017, and November 6, 2017; and approximately six and one-quarter hours
between November 7, 2017, and January 5, 2018. See Exhibits 14, 15, 16,
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5 Mother was diagnosed with post-traumatic stress disorder and anxiety as
well as depressive disorder. See N.T., 4/29/19, at 32, 43. Mother conceded
that she was admitted to Temple University Hospital “just to treat my mental
[sic] at the time.” Id. at 49; see also Exhibit 23. While she admitted to
feeling suicidal, she denied that this was a suicide attempt. See N.T.,
4/29/19, at 50-51.
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and 17. It appears that Mother then had one visit in May 2018, and two in
August 2018. See Exhibits 19, 20, and 21.
As such, Wisniewski expressed her concerns were as follows:
That [Mother] has not fully engaged in mental health
treatment. We also do not have urine screens. We don’t know if
she’s currently using. She did not successfully complete drug and
alcohol. Her employment has been stable now at this point since
September. She did just obtain an apartment. So whether or not
she’s able to maintain that on her own, that is yet to be
determined since that is new.
Id. at 57-58.
The record substantiates the conclusion that Mother’s repeated and
continued incapacity, abuse, neglect, or refusal has caused Child to be without
essential parental control or subsistence necessary for [her] physical and
mental well-being. See In re Adoption of M.E.P., 825 A.2d at 1272; see
also 23 Pa.C.S.A. § 2511(a)(2). Moreover, Mother cannot or will not remedy
this situation. See id. § 2511(a)(2). Accordingly, the record supports the
trial court’s finding of grounds for termination under Section 2511(a)(2).
As to subsection (b), the evidence reveals that Child is in a foster home
that is a long-term resource, where she had resided for approximately two
years at the time of the hearing. See N.T., 4/29/19, at 60-61. Child is happy
in the home and her needs are met. Id. at 60. As described by Wisniewski,
“[Child is] very comfortable there. She sees that as her home. She calls her
foster mom[] mommy. She looks to them to meet her needs.” Id. at 60.
Mother even admitted that Child appeared happy in her foster home and is
well taken care of. Id. at 42.
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Highlighting that Mother has not had a visit with Child since August
2018, and has not seen Child since last in court in November 2018, Wisniewski
related no concerns with terminating Mother’s parental rights. Id. at 60-61.
Wisniewsky testified that “[Child] has not seen [Mother] since August, 2018,
for a visit. And [Mother] testified that she saw her when she was last in court
in November. But[,] because it’s already been another five months[,] I don’t
think [Child] would recognize [Mother] at this point.” Id. at 61. Further,
Wisniewski testified that Child does not ask for Mother. Id.
Noting the bond between Child and her foster family, Attorney Stanziola
reiterated that termination of parental rights would be in Child’s best interest,
stating, “[h]aving observed this young lady and observed the interactions
between her and foster mom, I believe there is a strong bond between her
and the foster family[,] … [and] there would be a lack of detriment severing
the bond between this young lady and her natural parents….” Id. at 65.
Additionally, Wisniewski opined that termination is in Child’s best interest,
stating, “she needs to have permanency and [] stability long-term.” Id. at
61. At the time of the hearing, Child had already been in care for just over
two years and is entitled to permanency and stability. Thus, as confirmed by
the record, termination of Mother’s parental rights serves Child’s
developmental, physical and emotional needs and welfare, and was proper
pursuant to Section 2511(b).
Based on the foregoing independent analysis of the trial court’s
termination of Mother’s parental rights, we discern no abuse of discretion. The
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record supports the trial court’s finding that Child’s developmental, physical
and emotional needs and welfare favor termination of Mother’s parental rights
pursuant to subsections 2511(a)(2) and (b). Accordingly, because we agree
with Counsel that the within appeal is wholly frivolous, we grant Counsel’s
Petition to withdraw, and affirm the Decree of the trial court.6
Decree affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2019
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6Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015).
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