Adoption of: D.M.C., Appeal of: K.C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.M.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.C., FATHER :
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: No. 2686 EDA 2019
Appeal from the Order Entered August 13, 2019
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2019-A0104
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 06, 2020
K.C. (“Father”) appeals from the order terminating his parental rights to
D.M.C. (“Child”). Counsel has filed an Anders1 brief and a petition to withdraw
as counsel. We affirm the order and grant counsel’s petition to withdraw.
Child was born in January 2010. The Montgomery County Office of
Children and Youth (“OCY”) became involved with this family in January 2012.
In November 2017, Child was removed from the home and placed with pre-
adoptive foster parents, with whom she continues to reside.
In July 2019, OCY filed a petition to terminate Father’s parental rights.
The trial court held a hearing, which Father did not attend.2
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1 Anders v. California, 386 U.S. 738 (1967).
2 Father’s counsel stated that he “followed through with every known resource
to find [Father].” N.T., 8/12/19, at 12. He stated there was “the possibility
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At the hearing, OCY caseworker Michael Weaver testified to the
following. OCY developed a family service plan for Father, which included,
among other goals: be a law abiding citizen; have no police contact; keep OCY
up to date with contact information; and establish a visitation schedule. Father
did not make any progress on the goals. N.T., 8/12/19, at 20. Father has had
no contact with Child since her placement. The only contact Father has had
with OCY is a November 2018 text message, stating he wanted to get Child
back. Id. at 17. OCY responded, but Father did not reply. Id. OCY sent copies
of the family service plans, requesting that Father review them, but Father did
not execute and return them. Id.
Mr. Weaver also testified that Child was “responding well to the structure
that the foster parents are providing for [her], [she is] doing much better in
school, [she is] participating in individual therapy.” N.T., 8/12/19, at 16. He
felt her “progress has been remarkable,” and that she is “anxious about what’s
going on, but [is] doing well.” Id.
The trial court terminated Father’s parental rights finding termination
proper under 23 Pa.C.S.A. § 2511(a) (1), (2), and (8), and 2511(b).3 The
court concluded that Father had no contact with Child since she was placed in
foster care in November 2017, and had almost no contact with OCY. It stated
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that he’s in state custody for a crime, but we have not received confirmation
of that.” Id. He stated that Father “was not an active participant once he was
initially released.” Id.
3 Mother consented to termination of her parental rights. N.T., 8/12/19, at 9.
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he failed to provide for Child as a father. He “has not provided her with love,
support, emotional support, clothing, food, shelter, or any other things that
the child needs to grow and thrive.” Id. at 35. The court concluded that Father
“simply [has] been failing to parent for the entire period of time, and [has]
failed to meet [Child’]s needs or be a presence in [her] life at the time [she
was] removed, and that condition continues to exist, and termination of
parental rights so that [Child] may be freed for adoption will best serve the
developmental needs and welfare of [Child].” Id. at 37. The court further
found there was no parental bond between Father and Child, and that “a bond
has developed between the foster parents and [Child].” Id. at 38. It therefore
found that “termination of the rights of [Father] best served the needs and
welfare of [Child] and will not irrevocably harm [Child].” Id. at 38-39.
The court further addressed Father’s incarceration:
The Court need not consider whether the incarceration of
[Father] either established a ground or establishes any kind
of an excuse for not having contact with the children
because it appears, to the best of this Court’s knowledge
and from Mr. Weaver’s testimony, that [he has] been
released for a significant period of time and did not use that
time to establish and maintain a parental role in [Child’s
life].
N.T., 8/12/19, at 37.
Father filed a timely notice of appeal. Counsel filed an Anders brief,
stating counsel found no non-frivolous issues for appeal.
Before reviewing the merits of this appeal, we must first determine
whether counsel has satisfied the procedural requirements for withdrawing as
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counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (stating that “[w]hen faced with a purported Anders brief,
this Court may not review the merits of any possible underlying issues without
first examining counsel's request to withdraw”). To withdraw pursuant to
Anders, counsel must: 1) petition the court for leave to withdraw stating that,
after a conscientious examination of the record, counsel has determined that
the appeal would be frivolous; 2) furnish a copy of the brief to the client; and
3) advise the client that he or she has the right to retain other counsel or
proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032
(Pa.Super. 2013) (en banc).
Further, in the Anders brief, counsel seeking to withdraw 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel
meets all of the above obligations, “it then becomes the responsibility of the
reviewing court to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id. at 355, n.5 (quoting Commonwealth v. McClendon, 434 A.2d
1185, 1187 (Pa. 1981)).
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Here, we conclude that counsel has substantially complied with the
technical requirements of Anders and Santiago. In the Anders brief, counsel
has provided a summary of the procedural and factual history of the case.
Further, counsel’s brief identifies four issues that could arguably support the
appeal, as well as counsel’s assessment of why the appeal is frivolous, with
citations to the record. Additionally, counsel provided a copy of the Anders
brief to Father and advised him of his right to proceed pro se or to retain a
new counsel. Petition for Leave to Withdraw Appearance, filed Dec. 10, 2019;
Letter to Father, dated Dec. 4, 2019; Anders Br. at 10. Father has not filed
any documents with this court.
As counsel has substantially met the technical requirements of Anders
and Santiago, we now turn to the issues identified in the Anders brief:
1. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible
grounds for appeal and finds the appeal frivolous.
2. Whether the Honorable Court committed an error of law
and/or abuse of discretion when it held that appellee had
proven by "clear and convincing evidence" that appellant's
parental rights should be terminated pursuant to 23 Pa. C.S.
§ 2511 (a)(1) where birth father was making substantial
progress on his Family Service Plan(s) goals as evidenced
by the testimony at the hearing and Family Service Plans
themselves.
3. Whether the Honorable Court committed an error of law
and/or abuse of discretion when it held that appellee had
proven by "clear and convincing evidence" that appellant's
parental rights should be terminated pursuant to 23 Pa. C.S.
§ 2511 (a)(2) in that 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 their physical or mental well-being and the
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conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
4. Whether the Honorable Court committed an error of law
and/or abuse of discretion when it held that appellee had
proven by "clear and convincing evidence" that appellant's
parental rights should be terminated pursuant to 23 Pa. C.S.
§ 2511 (a)(8) in that the Child had been removed from the
care of a parent or guardian by the Court, 12 or more
months have elapsed from the date of the removal or
placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the need and welfare of the
child.
5. Whether the Honorable Court committed an error of law
and/or abuse of discretion when it terminated Appellant's
parental rights pursuant to 23 Pa. C.S. 2511 (b) on the basis
that the developmental, physical, emotional and welfare of
the child's was best served by termination of birth father's
rights where he was making substantial progress on the
Family Service Plans.
Anders Br. at 6. The issues challenge the trial court’s decision that
termination of parental rights was proper under Section 2511(a) and (b).
When we review termination of parental rights cases, we “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) (quoting
In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings
have support in the record, we then determine if the trial court committed an
error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470,
473 (Pa.Super. 2018). We may find an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” In re Adoption of S.P., 47 A.3d at 826.
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Our Supreme Court has explained the reasons for applying an abuse of
discretion standard of review in termination of parental rights cases:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29
(Pa.Super. 2008)).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Section 2511
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
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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.
Id. (citations omitted).
Where the trial court has terminated parental rights pursuant to multiple
subsections of Section 2511(a), we need only agree with the trial court’s
decision as to one subsection, as well as to its analysis under Section 2511(b).
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we will
address only the court’s decision to terminate pursuant to Section 2511(a)(1).
That subsection provides that a parent’s rights to a child may be terminated
if:
[t]he 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.
23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to
subsection (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.A. § 2511(b).
Subsection 2511(a)(1) requires the moving party to prove by clear and
convincing evidence that the subject parent engaged in “conduct, sustained
for at least the six months prior to the filing of the termination petition, which
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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 parental obligation is a “positive duty which requires
affirmative performance” and “cannot be met by a merely passive interest in
the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
2003) (quoting In re Burns, 379 A.2d 535 (Pa. 1977)). Indeed,
[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.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Here, the trial court concluded that OCY established grounds for
termination under Section 2511(a)(1). The court found that for the six month
period Father “failed and refused to perform parental duties.” N.T., 8/12/19,
at 37. The court noted that Father “simply [has] been failing to parent for the
entire period of time, and [has] failed to meet [Child’s] needs or be a presence
in [her] life.” Id.
The record supports the trial court’s findings of fact and it did not abuse
its discretion or err as a matter of law in terminating Father’s rights under
Section 2511(a)(1). Father did not contact Child in anyway during her
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dependency. He contacted OCY only once, via text message. Although OCY
responded to Father, Father did not reply.
We next address the trial court's conclusion that termination would best
serve Child's developmental, physical and emotional needs and welfare under
Section 2511(b). Section 2511(b) provides:
(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.
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23 Pa.C.S.A. § 2511(b).
The focus under Section 2511(b) is not on the parent, but on the child.
In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).
Pursuant to Section 2511(b), the trial court must determine “whether
termination of parental rights would best serve the developmental, physical
and emotional needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1286 (Pa.Super. 2005). This Court has explained that “[i]ntangibles such as
love, comfort, security, and stability are involved in the inquiry into [the]
needs and welfare of the child.” Id. at 1287. 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.
Here, the trial court concluded termination would best serve the needs
and welfare of Child and will not irrevocably harm Child. N.T., 8/12/19, at 38-
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39. The trial court concluded no bond existed between Father and Child and
that a bond had developed between Child and her foster parents.
The record supports the trial court’s factual finding and it did not err or
abuse its discretion in concluding termination would best serve Child’s needs
and welfare. Father has made no effort to remain in Child’s life, and Child is
thriving in her pre-adoptive foster home.
We agree with counsel that the issues raised in counsel’s Anders brief
are wholly frivolous. Moreover, our independent review of the record has
disclosed no non-frivolous issue. Therefore, we grant counsel’s petition to
withdraw and affirm the decree terminating Father’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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