Term. of Par. Rights to I.B., Appeal of: J.J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS TO I.B., A MINOR : PENNSYLVANIA
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APPEAL OF: J.J., FATHER :
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: No. 1407 MDA 2022
Appeal from the Decree Dated September 16, 2022
In the Court of Common Pleas of Lycoming County Orphans' Court at
No(s): 2022-6798
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 3, 2023
J.J. (Father) appeals from the decree entered in the Lycoming County
Orphans’ Court on September 16, 2022, involuntarily terminating Father’s
parental rights to his son, I.B. (Child), born in July 2014, and changing Child’s
permanency goal to adoption.1 On appeal, Appellant argues there was
insufficient evidence to support termination, and that the court relied solely
on his “extremely limited income.” In addition, counsel for Father (Counsel),
has filed an application to withdraw and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
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1 A.B. (Mother), the mother of Child, signed a Consent to Adoption on August
25, 2022. Father and Mother were not married at the time of Child’s birth and
did not appear to be together at the time of the termination hearing. Mother
is not a party to this appeal.
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Santiago, 978 A.2d 349 (Pa. 2009). After review, we affirm the termination
decree, and grant the application to withdraw.
Child was placed in the emergency custody of Lycoming County Children
and Youth Services (Agency) on January 13, 2021, after Father was not
present to pick up Child from the school bus. N.T. 9/15/22, at 43. Child’s
school, Agency caseworkers, and “crisis workers” attempted to contact Father
several times. Id. When he did not respond, the Agency asked Child’s
neighbors if they could provide short term care for Child but were
unsuccessful. Id. The Agency then took emergency custody of Child. Id.Father did not contact the Agency until approximately 11 hours later, at “about
2:00 a.m.[,]” on January 14th, but only to inquire as to why he had “so many
missed calls from [the Agency],” and did not ask about Child or “seem to
process the fact that [Child] wasn’t home with him.” Id. at 44. A Shelter
Care hearing was held on January 15th,
at which time the [c]ourt found that allowing . . . Child to remain
in [Appellant’s] home would be contrary to [Child’s] welfare.
Legal and physical custody of . . . Child was to remain with the
Agency and . . . Child was to remain in foster care.
Orphans’ Ct. Op. 9/19/22, at 2.2
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2 The court filed an opinion related to this appeal on October 4, 2022, in which
it adopted its September 19th opinion supporting the termination decree.
Orphan’s Ct. Op. 10/4/22, at 2 (unpaginated). We rely on the court’s
September 19th opinion in our analysis.
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The orphans’ court held a dependency hearing and several permanency
hearings between January 2021 and June 2022. The court summarized the
hearings as follows:
A Dependency Hearing was held on January 22, 2021, at
which time the [c]ourt found that . . . Child was without proper
care or control, education as required by law, or other care or
control necessary for his physical, mental, or emotional health, or
morals. The [c]ourt ordered that legal and physical custody
remain with the Agency and that . . . Child remain in foster care.
The [c]ourt noted that . . . Child had been absent from school on
[36] days, with [21] of those days being unexcused, and that
Father had previously been referred for Outreach Services by
Bradford County [Children and Youth Services], but those were
discontinued due to Father’s noncompliance.
A permanency review hearing was held on May 14, 2021.
Father did not attend. The [c]ourt noted that Father had only
minimal compliance with the permanency plan, in that he
attended [12] out of [26] visits during the review period. He
attended an intake at Crossroads but did not attend any sessions
and was discharged on April 6, 2021, due to non-attendance.
Father was not compliant with Outreach services and they were
subsequently closed[, and] Father relocated to Bradford County.
Father was found to have made no progress towards alleviating
the circumstances which necessitated the original placement.
Following the hearing, the [c]ourt reaffirmed dependency and . . .
Child remained in the legal and physical custody of the Agency
with continued placement in his foster care home.
A permanency review hearing was held on August 16, 2021.
Father did not attend. The [c]ourt found that Father had no
compliance with the permanency plan, in that he attended only
[8] out of [19] visits during the review period. The Agency
received a report on June 7, 2021,[3] that Father had overdosed
and was receiving in patient services at Family Recovery
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3The termination petition states the Agency received this report on July 7,
2021. Petition for Involuntary Termination, 4/13/22, at 7. This discrepancy
does not impact our review.
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Solutions, but Father did not provide any documentation to
support this. Father did not participate in any other drug or
alcohol treatment during this review period, nor did he participate
in any parenting programs. The [c]ourt further found that Father
had made no progress towards alleviating the circumstances
which necessitated the original placement and noted that Father
needed to take steps to seek help for himself before he could be
considered a resource for the Child. Following the hearing, the
Court reaffirmed dependency and the Child remained in the legal
and physical custody of the Agency with continued placement in
his foster care home.
A permanency review hearing was held on November 29,
2021. Father attended by telephone. The [c]ourt found that
Father had no[t] compli[ed] with the permanency plan, in that he
attended no visits during the review period, participated in no drug
or alcohol programs during the review period, and had not
participated in any programs for parenting during the review
period. Father’s communication with the Agency was very
sporadic. For these reasons, the Court also found that Father had
made no progress towards alleviating the circumstances which
necessitated the original placement. The Agency requested that
Father’s visits be reduced to the statutory minimum of one time
every other week for one hour. The [c]ourt granted this request,
with the caveat that if Father attended regularly his visits may be
increased. Following the hearing, the [c]ourt reaffirmed
dependency and . . . Child remained in the legal and physical
custody of the Agency with continued placement in his foster care
home.
A permanency review hearing was held on March 9, 2022.
Father attended in person. During this review period[,] Child’s
placement was modified to the [home of Carol Swartz, a resource
parent], where he has remained since that time. . . . The [c]ourt
found that Father had minimal compliance with the permanency
plan. He attended [four] out of [eight] visits and had [four] no[-
]shows. He was receiving no drug or alcohol services, and had
not participated in any services for parenting. Father was not
involved with Outreach services. For these reasons, the [c]ourt
found that Father had made no progress towards alleviating the
circumstances which necessitated the original placement.
Following the hearing, the [c]ourt reaffirmed dependency
and . . . Child remained in the legal and physical custody of the
Agency with continued placement in his foster care home. The
[c]ourt directed the Agency to make a referral to Outreach
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services to Father, and to offer to provide those services at the
Agency on the same day as Father’s scheduled visits with the
Child.
A permanency review hearing was held on June 24, 2022.
Father attended in person. The [c]ourt found that Father had
minimal compliance with the permanency plan, in that he
attended [six] out of [seven] visits. However, he was still not
receiving any drug or alcohol counseling and he only attended two
Outreach appointments. He did not participate in any of . . .
Child’s medication checks, which occurred virtually. Father
requested that his visits be increased to one time per week, which
the [c]ourt granted as he had demonstrated good attendance
during this review period and the visits were going well. The
[c]ourt found that Father had made minimal progress towards
alleviating the circumstances which necessitated the original
placement, as he reported having a trailer to live in but that he
had quit his job and his sole source of income was [Social Security
Disability]. Following the hearing, the [c]ourt reaffirmed
dependency and . . . Child remained in the legal and physical
custody of the Agency with continued placement in his foster care
home.
Orphans’ Ct. Op. at 2-5.
Meanwhile, on April 13, 2022, the Agency filed a petition for involuntary
termination of parental rights as to both Father and Mother pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), and (8). As mentioned above, on August 25,
2022, Mother signed a Consent to Adoption. A hearing regarding the
termination petition was held on September 15, 2022. Despite being properly
served notice of the hearing, Father failed to appear but was represented by
Jessica Feese, Esquire. Orphans’ Ct. Op. at 1. Mother participated by phone
and was represented by Trisha Hoover Jasper, Esquire. John Pietrovito,
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Esquire, counsel for the Agency, and Angela Lovecchio, Esquire, Child’s
guardian ad litem (GAL/Legal Counsel),4 were also present at the hearing. Id.
The court first addressed Mother, who stipulated to the Agency’s exhibits
and all the allegations in the termination petition. N.T. at 5-9. She also
admitted that if the Agency had presented its full case against her, it would
have established by clear and convincing evidence grounds for termination.
Id. at 10.
The Agency then presented the testimony of Lycoming County Children
and Youth Outreach Program (Outreach) caseworker David Ryder, who stated
that during his time working with Father, Father was “difficult . . . or
impossible almost” to coordinate meetings with, “constantly” had issues with
phone contact, and was never able to work on identified goals. N.T. at 12-13.
When Caseworker Ryder inquired about Father’s visits with Child, Father told
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4 During involuntary termination proceedings where one or both parents are
contesting termination, the orphans’ court must appoint legal counsel to the
subject child to represent their legal interests. 23 Pa.C.S. § 2313(a). When
a court appoints one attorney as both GAL and legal counsel for the child, this
Court conducts a “sua sponte review to evaluate . . . whether the orphans’
court determined that the child’s best interests and legal interests did not
conflict.” In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. Super. 2020)
(this Court must conduct independent review of whether orphans’ court
appointed counsel to represent the child’s legal interests, and when that same
counsel is also appointed as GAL, whether the orphans’ court determined that
the child’s best interests and legal interests do not conflict). Appellate review
“does not involve second-guessing whether GAL/Counsel in fact had a conflict
. . . but solely whether the orphans’ court made the determination in the first
instance.” Id. On June 16, 2022, the orphans’ court issued an order finding
no conflict of interest with Attorney Lovecchio acting as both GAL and Child’s
Legal Counsel. Order, 6/16/22.
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him they were “going good” but “it was costing . . . a lot of money for
transportation” because Appellant recently wrecked his car and did not have
the money for repairs. Id. at 14. Caseworker Ryder testified that Father
relocated to Bradford County to live with an aunt. Id. at 14. The caseworker
still offered to “work with [Father] on parenting” during his visitation with
Child, but Father declined. Id. at 14-15. Caseworker Ryder also provided
Father information to “pursue parenting” in Bradford County and stopped his
services with Father on April 13, 2021. Id. at 15.
Barbie Barnes, another Outreach Caseworker, then testified that Father
was referred back to Outreach services on March 31, 2022. N.T. at 17. She
stated that her experience working with Father was “identical in nature” to
that of Caseworker Ryder, explaining that Father met with her only “three
times successfully face-to-face[,]” “willfully avoided” her, and made “no
progress” while working with her. Id. at 18-19. On August 10, 2022, Father
sent Caseworker Barnes a “lengthy text message . . . stating he wanted to
close [Outreach] services[.]” Id. at 19. Caseworker Barnes recommended
that Father continue working with Outreach and sent him a letter stating if he
did not contact Outreach by August 25th, the program would close services.
Id. at 20-21. The letter was not returned to Outreach as undelivered and
Father did not respond. Id. at 21.
Heather Wood, a specialized services supervisor for the Agency, testified
that when Father attended the supervised visits, he was “engaged” and played
with Child, would “usually bring[ ] something for [Child] to do[,]” and brought
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“dinner or a snack[.]” N.T. at 33. Child “enjoy[ed]” the visits at first,
however, more recently, Child would express that he did not want to attend,
and on more than one occasion communicated that he “want[ed] to go home”
— referring to his foster home. Id. at 29, 33.
Carol Swartz, Child’s resource parent, testified that at the time of the
hearing, Child had resided with her for six months. N.T. at 34. She stated
she cares for Child by ensuring his medical and mental health needs are taken
care of, doing activities with him on weekends, and making sure he is bathed,
clothed, and fed. N.T. at 34-38. Since residing with Swartz, Child’s behavior,
attendance, and performance in school have improved. Id. at 38-39. Swartz
stated that Father had the ability to call Child at her home and would do so
for “about [f]ifteen minutes” once a week, but Child “never wanted to talk.”
Id. at 39-40. Lastly, she said that if the court terminated Father and Mother’s
parental rights, she was ready, willing, and able to adopt Child. Id. at 40.
Lastly, Ryan Snyder, a supervisor at the Agency, testified that his office
became involved with Child before January 2021, after: (1) receiving “multiple
reports of [Child] being outside unsupervised[;]” (2) learning Father was not
administering proper medical care; (3) learning of Father’s issues with
substance abuse; and (4) concerns arose regarding Child’s attendance at
school. N.T. at 42. He also stated that Appellant has a criminal conviction
from January 29, 2018, for endangering the welfare of a child and a “report”
from May 2017 for “creating a reasonable likelihood of bodily injury.” Id. at
51. In both instances, Child was the victim. Id. He testified that the Agency
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recommended to terminate Father’s parental rights and that this course of
action “would best serve the needs and welfare” of Child. Id. at 54.
At the conclusion of the hearing, the court found the Agency “clearly
established the grounds to terminate [Father’s] parental rights” and that it
was “in the best interest of [Child] to do so.” N.T. at 56. The next day, the
court entered a decree terminating Father’s rights and stating Child may be
subject to adoption proceedings without further notice to Father. Decree,
9/16/22. Counsel for Father timely filed a notice of appeal and a
contemporaneous concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2) and (b). In the Rule 1925(b) statement,
Counsel also notified the court she intended to file an Anders brief. Counsel
filed her application to withdraw and an accompanying brief on November 17,
2022.5
We begin by reviewing Counsel's application to withdraw and Anders
brief. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (“When counsel files
an Anders brief, this Court may not review the merits without first addressing
counsel’s request to withdraw.”) (citation); see also In re V.E., 611 A.2d
1267 (Pa. Super. 1992) (extending the Anders procedure to appeals from
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5In its brief, the Agency adopted the orphans’ court September 19, 2022,
opinion as part of its argument. Appellee’s Brief at 4. GAL/Legal Counsel for
Child sent a letter to this Court on December 12, 2022, stating that she was
not going to file a brief and was relying on the orphans’ court’s September
19th opinion. GAL/Legal Counsel Letter, 12/12/22.
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involuntary termination decrees). 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). With respect to the third Anders requirement, 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 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has directed that Anders
briefs 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.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct [our] 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 (citation omitted). Here, Counsel has
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filed an Anders brief and application to withdraw stating she has conducted
a review of the record and determined that Father’s appeal is frivolous. See
Application to Withdraw as Counsel, 11/17/22, at 1 (unpaginated). Attached
to her brief is a copy of a letter Counsel sent to Father, which properly
addressed and explained his rights pursuant to Millisock.
Likewise, Counsel has filed an Anders brief that substantially complies
with the requirements in Santiago. While Counsel provided a summary of
the procedural and factual history, made citations to the record where
appropriate, and concluded the present appeal is frivolous, the Anders brief
is sparse in its presentation of controlling law and the application of that law.
Nevertheless, Anders and Santiago require substantial, not perfect
compliance. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.
2007). As we find the applicable law regarding termination to be
straightforward and referenced in part by Counsel’s discussion, we conclude
that her brief substantially complies with Anders and Santiago. See
Wrecks, 934 A.2d at 1290 (stating that “[w]hile the brief fails to cite the law
relevant to the question of timeliness, we find the applicable time limits to be
straightforward[,]” thus substantially complying with Anders). We therefore
proceed with our independent review of the record and the issues presented
on Father’s behalf. See In re X.J., 105 A.3d at 4.
Counsel’s Anders brief raises the following issues:
I. Whether the [orphans’] court erred in terminating the [parental
rights of [Father] when the evidence was insufficient to justify
termination under 23 Pa.C.S. § 2511.
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II. Whether the [orphans’] court erred in terminating the parental
rights of [Father] when the termination of his parental rights
improperly rested on his extremely limited income.
Anders Brief at 7.6
The Anders Brief presents similar arguments in each of Father’s
potential claims. As such, we address them together. Father avers the
Agency did not present clear and convincing evidence that termination “was
in the best interest of Child” or that he “willfully refused his parental duties.”
Anders Brief at 13, 15. He insists, instead, that the court terminated his
rights “on the basis that he has extremely limited income.” Id. at 16. Father
notes that he advised Outreach employees that his financial limitations made
it difficult for him to attend visitation. Id. at 15. Father explained that he
often did not attend because he “wrecked” his car and “it was costing him a
lot of money for” transportation services to the visitation center. Id. at 16.
Further, Father maintains that the Agency’s evidence failed to show that the
bond between Father and Child was broken, contending that Child “want[ing]
to go [to his foster] home” during visitation sessions did “not clear[ly]” support
that their bond was severed. Id. at 15.
Counsel also points out in the Anders brief that Father: (1) “was
homeless and his employment was inconsistent[;]” (2) had an “overdose”
prior to the termination hearing; and (3) “had not made any progress towards
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6 In the statement of questions involved, Counsel also included an inquiry as
to whether her petition to withdraw should be granted. Anders Brief at 7.
We address this issue separately.
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alleviating the circumstances” that lead to Child’s placement. Anders Brief at
16.
Our standard of review in termination of parental rights cases requires
us to accept the findings of fact and credibility determinations of the trial court
if they are supported by the record. In re T.S.M., 71 A.3d 251, 267 (Pa.
2013) (citation omitted). The 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., 855 A.2d 68, 73-74 (Pa.
Super. 2004) (citations omitted). We defer to the court because it often has
“first-hand observations of the parties spanning multiple hearings.” In re
T.S.M., 71 A.3d at 267 (citations and quotation marks omitted). If the record
supports the court’s findings, we must determine whether the court committed
an error of law or abused its discretion. Id. An abuse of discretion does not
occur “merely because the record could support a different result.” In re
Adoption of L.A.K., 265 A.3d 580, 587 (Pa. 2021) (citation omitted). An
abuse of discretion will only be found upon “demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. (citation
omitted).
Involuntary termination of parental rights is governed by Pennsylvania’s
Adoption Act. See 23 Pa.C.S. §§ 2101-2938. Termination under the Act
requires the court to conduct a bifurcated analysis in which the court focuses
on parental conduct pursuant to Section 2511(a) and the needs and welfare
of the child pursuant to Section 2511(b). In re L.M., 923 A.2d 505, 511 (Pa.
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Super. 2007). If the court finds that the movant has established grounds to
terminate parental rights under Section 2511(a), the court must then analyze
the evidence under Section 2511(b). Id. “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.” Id. The movant is burdened to
show “clear and convincing” grounds for termination under both Sections
2511(a) and (b). In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), (5), (8), and (b). As we need only agree
with the court as to any one subsection of Section 2511(a), as well as Section
2511(b), we will analyze the termination decree pursuant to Sections
2511(a)(1) and (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). Those sections 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,
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income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to [S]ubsection (a)(1), . . . 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).
With respect to Section 2511(a)(1), this Court previously explained:
To satisfy the requirements of [S]ection 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 addition,
Section 2511 does not require that the parent demonstrate
both a settled purpose of relinquishing parental claim to a
child and refusal or failure to perform parental duties.
Accordingly, parental rights may be terminated
pursuant to Section 2511(a)(1) if the parent either
demonstrates a settled purpose of relinquishing
parental claim to a child or fails to perform parental
duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his or her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations omitted
& emphasis added). This Court has also instructed: “[I]t is the six months
immediately preceding the filing of the petition that is most critical to our
analysis. However, the . . . court must consider the whole history of a given
case and not mechanically apply the six-month statutory provisions, but
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instead consider the individual circumstances of each case.” In re D.J.S.,
737 A.2d 283, 286 (Pa. Super. 1999) (citations omitted). This requires the
court to “examine the individual circumstances of each case and consider all
explanations offered by the parent facing termination of his or her parental
rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” In re B., N.M.,
856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted).
Further, we have stated:
[T]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted).
Regarding the definition of “parental duties,” this Court has emphasized
the following:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
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Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a
place of importance in the child's life.
Parental 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.
In re B., N.M., 856 A.2d at 855 (internal citations & some punctuation
omitted).
Here, in concluding the Agency presented clear and convincing evidence
of Subsection § 2511(a)(1), the orphans’ court opined:
[Agency Specialized Services Supervisor Wood] testified that
Father has been on call-in status since March 3, 2021, meaning
he must call . . . Agency between 8:00-8:30 a.m. on the day of
his scheduled visit to indicate that he will be attending, and if he
does not, . . . Child will not be transported to the visit. On March
24, 2021, Father was placed on check-in status, meaning that in
addition to calling [o]n the morning of the visit, Father must arrive
one hour before the scheduled visit or . . . Child would not be
transported[.] These extra conditions were put into place
due to Father’s excessive no-shows, which would disappoint .
. . Child and cause unnecessary disruptions to his schedule. At
one point, . . . Agency requested that Father’s visits be reduced
to the statutory minimum due to his poor attendance. With the
exception of one review period, Father never attended
more than 44% of his [scheduled] visits [with Child].
Given the fact that Father had a very inconsistent visitation
attendance, and he failed to maintain frequent and regular
contact with the Agency, and failed to take advantage of all
the resources offered to him to help him maintain a bond with
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. . . Child, [the c]ourt is satisfied that he has demonstrated a
settled purpose of relinquishing parental claim to . . . Child.
Additionally, grounds for termination under 23 Pa.C.S.
2511(a)(1) may also be proven where a parent fails to perform
parental duties for a period in excess of six months prior to the
filing of the Petition for Involuntary Termination of Parental Rights.
Orphans’ Ct. Op. at 7-8 (paragraph break & emphases added).
Regarding Father’s performance of parental duties, the orphans’ court
further stated that Child was placed in foster care “due to concerns about
parenting, truancy[,] and inadequate supervision.” Orphans’ Ct. Op. at 9.
Child’s “greatest needs” included “food, shelter, clothing, education, medical
care, and comfort.” Id. Since Father failed to attend visitation regularly, he
failed to perform these duties consistently, leaving Child to rely on his foster
family “for all of his physical and emotional needs.” Id. Lastly, the court
recognized that despite Father being engaged in visits that he did attend,
Father only spent a total of 36.3 hours with Child during the period between
his January 13, 2021, emergency placement to the September 15, 2022,
hearing. Id. Consequently, the court found that the Agency presented clear
and convincing evidence that Father demonstrated “a settled purpose to
relinquish parental claim to . . . Child and failed to perform his parental duties
for at least six months prior to the filing of the termination.” Id. We agree
with the court and conclude it did not abuse its discretion in termination
Father’s rights.
The record supports the court’s findings: in addition to not attending
regular visits with Child or performing parental duties, Father consistently
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failed to make reasonable advancements in his identified goals — parenting
classes, budgeting, organization, “follow through[,]” and housing — and
“willfully avoid[ed]” caseworkers when they attempted to help him make
progress. See N.T. at 12-18 (showing Father: (1) was difficult to reach; (2)
never made progress towards identified goals; (3) did not pursue parenting
classes; and (4) did not respond to Caseworker Ryder, leading to Outreach
closing services), 17-21 (demonstrating Father: (1) continued to be difficult
to reach; (2) did not respond to Caseworker Barnes when she tried to confirm
meetings, and in one instance “hung up the phone” when she asked to meet
him; (3) made no progress towards his identified goals; and (4) requested to
discontinue services with Outreach).
Father avers that termination was based solely on his limited financial
situation, and then referenced the expense of transportation to the visitation
sessions. However, it is apparent from the termination hearing testimony that
even without his financial hardships, Father was uninterested in making
progress on his identified parental goals, or even communicating with
caseworkers in some instances. See id. Moreover, we reiterate that Father
also did not attend the termination hearing, even though he received proper
notice.
Thus, because the evidence establishes Father failed to perform parental
duties and demonstrated a settled purpose to relinquish his claim to Child
since placement, we conclude the orphans’ court did not abuse its discretion
in terminating his parental rights pursuant to Section 2511(a)(1). See 23
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Pa.C.S. § 2511(a)(1); B., N.M., 856 A.2d at 855 (explaining that a parent
“must exercise reasonable firmness in resisting the obstacles” which limit his
ability to maintain a parent/child relationship). As we discern no abuse of
discretion, we do not disturb the court's findings. See In re T.S.M., 71 A.3d
at 267.
We next review whether termination was proper under Section 2511(b).
As to Section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under [S]ubsection (a) are met,
a court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M. a/k/a
L.C., Jr.], [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. In
re K.M., 53 A.3d at 791. However, . . . [an] evaluation of a child’s
bonds is not always an easy task.
In re T.S.M., 71 A.3d at 267. “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) (citation omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (citations omitted).
Moreover,
[w]hile a parent’s emotional bond with his or her child is a major
aspect of the [S]ubsection 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. 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 Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quotation
marks and citations omitted).
The orphans’ court concluded the Agency presented clear and
convincing evidence satisfying Subsection 2511(b). Specifically, it stated that
despite Father being “very invested” when he did visit with Child, “a parent’s
own feelings of love and affection do not prevent termination[.]” Orphans’ Ct.
Op. at 15. Further, it opined that: (1) it “feels strongly” that any bond Father
has with Child “deteriorated” due to Father’s inconsistency; (2) Father only
minimally used the numerous services offered to him by the Agency, designed
to help with parenting skills and substance abuse issues; (3) testimony at the
hearing demonstrated that Child has lived with Swartz for six months and over
that time has bonded with her; and (4) under the care of Swartz, Child is
loved, cared for, participating in counseling, attends school every day, and
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has his medical needs taken care of. Id. The court also noted that Swartz is
ready, willing, and able, to adopt Child and his permanency should not be
delayed “until Father decides to take tangible steps towards establishing a
bond and being a resource for” him. Id. at 16. Lastly, it determined that
termination would not destroy an existing bond or cause trauma, and adoption
was in the best interests of Child. Id. We agree with the court’s conclusions.
Father has failed to demonstrate that the orphans’ court abused its
discretion in its determinations. Child is cared for physically, mentally, and
emotionally with Swartz, who expressed that she was ready to adopt him.
Father has not offered any evidence suggesting that returning Child to him
would be in Child’s best interests. He just baldly asserts that the evidence
failed to show that his bond with Child was broken. See Anders Brief at 15.
To the contrary, in addition to the evidence the court noted — Father’s
inconsistency in visitation — the Agency also presented the following: (1) Child
expressed he did not want to go to visitations with Father; (2) Child asked to
go home during visitations with Father; and (3) during phones calls with
Father, Child “never wanted to talk” and said he was “done” speaking with
him. See N.T. at 29, 39. Moreover, we note that the Agency scheduled a
bonding evaluation after a scheduled visit with Child, and Father failed to
attend the visit. Id. at 30. Thus, Father’s own actions resulted in him missing
an opportunity to demonstrate any semblance of a bond he may have had
with Child. Id. The record supports the court’s conclusions and Father has
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shown no abuse of discretion on the part of the court. See 23 Pa.C.S. §
2511(b); In re K.Z.S., 946 A.2d at 762-63; In re T.S.M., 71 A.3d at 267.
Accordingly, based on our review of the record, Counsel did not overlook
any non-frivolous issues. We conclude that the orphans’ court properly
terminated Father’s parental rights under Sections 2511(a)(1) and (b), and
Father is not entitled to any relief. Therefore, we affirm the decree terminating
Father’s parental rights and grant Counsel’s application to withdraw.
Decree affirmed. Counsel’s application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/03/2023
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