Adoption of: K.K., Appeal of: R.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.F., FATHER :
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: No. 1735 MDA 2019
Appeal from the Decree Entered September 30, 2019
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 060-ADOPT-2019
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2020
R.F. (“Father”) appeals from the September 30, 2019 Decree
involuntarily terminating his parental rights to his daughter, K.K. (“Child”),
born in December 2009, pursuant to 23 Pa.C.S. § 2511(a) and (b).
Additionally, Father’s counsel, Joseph L. Hitchings, Esquire, seeks to withdraw
his representation of Father pursuant to Anders v. California, 386 U.S. 738(1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and In re
V.E., 611 A.2d 1267, (Pa. Super. 1992). After careful review, we grant
counsel’s Application for Leave to Withdraw as Counsel, and affirm the
orphans’ court’s Decree.1
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* Retired Senior Judge assigned to the Superior Court.
1The court also involuntarily terminated the parental rights of Child’s mother,
S.K. (“Mother”). Mother did not appeal the termination of her parental rights.
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Summary of Facts and Procedural History
We glean the following relevant procedural and factual history from our
review of the certified record and the orphans’ court’s Pa.R.A.P. 1925(a)
Opinion. Orphan’s Ct. Op, dated Dec. 20, 2019. The Child and her Mother were
living with the Child’s maternal grandparents (“Grandparents”) in September
2017. On or about September 17, 2017, Mother left the home without taking
the Child and without informing the Child or Grandparents if or when she
would return. When Mother left, the Child only had enough seizure medicine
to last a few days and she did not provide releases for Grandparents to obtain
refills from the Child’s doctor when the medication ran out.
Prior to her departure, Mother had not been taking the Child to school
on a regular basis. Father, who has never met the Child, was incarcerated in
September 2017, as he had been for most of the Child’s life.2 Thus, following
Mother’s disappearance, Cumberland County Children and Youth Services
(“CYS”) became involved, and the court adjudicated the Child dependent on
October 21, 2017. The Child remained with Grandparents in kinship foster
care.
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2 There was a period of more than a year during the Child’s life when Father
was not in jail. Significantly, he never made a serious attempt to be part of
her life, nor did he ever pursue visitation. Most importantly, he never provided
any parental care essential to the child’s well-being. The child was not even
aware that he was alive until her therapist informed her that he recently
attempted to contact her by letter.
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On September 9, 2019, CYS filed a Petition to involuntarily terminate
Father’s and Mother’s parental rights. The court appointed both a Guardian
Ad Litem and legal counsel for Child. On September 27, 2019, the court
conducted an evidentiary hearing on the Petition. At the hearing, CYS
presented the testimony of its caseworker, Gan Fry; Tiffany Merril, Child’s
therapist; and P.W., Child’s maternal grandmother. Mother and Father
testified on their own behalf.
On September 30, 2019, the court entered a Decree involuntarily
terminating Father’s parental rights to Child. Father timely filed a Notice of
Appeal and Concise Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b), contending the orphans’ court erred in
involuntarily terminating his parental rights pursuant to 23 Pa.C.S. § 2511(a)
and (b). The orphan’s court responded with its Rule 1925(a) Opinion.
Counsel’s Application to Withdraw
On January 24, 2020, Father’s counsel filed an Application for Leave to
Withdraw as Counsel and an Anders brief. When presented with an Anders
brief, this Court may not review the merits of any possible underlying issues
without first examining counsel’s request to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to
withdrawing as counsel under Anders, counsel must file a brief that meets
the requirements established by the Pennsylvania Supreme Court in
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Santiago, supra.3 In addition, counsel must provide a copy of the Anders
brief to the client with a letter stating that he or she may retain new counsel,
proceed pro se, or raise any additional issues not raised by counsel in the
Anders brief. Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa.
Super. 2014). 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).
Here, Father’s counsel has complied with the requirements of
Anders/Santiago. We thus proceed to the merits of the issues raised in the
Anders brief.
Legal Analysis
In reviewing cases in which the orphans’ court involuntarily terminated
parental rights, appellate courts must accept the findings of fact and credibility
determinations of the orphans’ court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). If the record supports the factual
findings, appellate courts then determine if the orphans’ court made an error
of law or abused its discretion. Id. Where the competent record evidence
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3 Santiago requires an attorney to: (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.
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supports the court’s findings, we must affirm the orphans’ court even though
the record could support an opposite result. In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
“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., 855 A.2d 68, 73–74 (Pa. Super.
2004) (citations omitted). Appellate courts defer to the orphans’ court that
often has “first-hand observations of the parties spanning multiple hearings.”
In re T.S.M., supra at 267 (citations and quotation marks omitted).
Importantly, “[t]he court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future. Indeed, we work under statutory and case law that
contemplates only a short period of time . . . in which to complete the process
of either reunification or adoption for a child who has been placed in foster
care.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006)
(emphasis in original; citations omitted).
In addressing petitions to terminate parental rights involuntarily, the
Adoption Act requires courts to conduct a bifurcated analysis. See 23 Pa.C.S.
§ 2511(a) and (b). Courts first focus on the conduct of the parent, and if the
party seeking termination presents clear and convincing evidence that the
parent’s conduct meets one of the grounds for termination set forth in Section
2511(a), then the court will analyze whether termination of parental rights
will meet the needs and welfare of the child, i.e., the best interests of the
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child, as provided in Section 2511(b). Courts particularly focus on the
existence of the child’s bond with the parent, if any, and the potential effect
on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa. Super.
2007). A parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his parental duties, to the child’s
right to have proper parenting and fulfillment of the child’s potential in a
permanent, healthy, safe environment. In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
While the orphans’ court here found that CYS met its burden of proof
under 23 Pa.C.S. § 2511(a)(1), (2), and (b), we need only agree with its
decision as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm the termination of parental rights. See In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Termination Pursuant to Section 2511(a)(2)
We first conclude that the orphans’ court properly exercised its
discretion by terminating Father’s parental rights pursuant to Section
2511(a)(2). Section 2511(a)(2) provides for termination of parental rights
where the petitioner demonstrates by clear and convincing evidence that
“[t]he 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, abuse, neglect or refusal cannot or will not be
remedied by the parent.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P.,
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47 A.3d 817, 827 (Pa. 2012) (citations omitted). The grounds for termination
of parental rights under Section 2511(a)(2) due to parental incapacity 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). This Court has long recognized that a
parent is required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities. Id. At a termination hearing, the
orphans’ court may properly reject as untimely or disingenuous a parent’s vow
to follow through on necessary services when the parent failed to co-operate
with the CYS agency or take advantage of available services during
dependency proceedings. Id. at 340.
With respect to incarcerated parents, our Supreme Court has held that
“incarceration, while not a litmus test for termination, can be determinative of
the question of whether a parent is incapable of providing essential parental
care, control, or subsistence.” In re Adoption of S.P., 47 A.3d 817, 830 (Pa.
2012) (citation and internal quotation marks omitted). Notably, “the length
of the remaining confinement can be considered as highly relevant to whether
the conditions and causes of the incapacity . . . cannot or will not be remedied
by the parent, sufficient to provide grounds for termination pursuant to 23
Pa.C.S. § 2511(a)(2).” Id. (internal quotation marks omitted).
Also relevant are the efforts the parent made to care for a child before
the parent was incarcerated as an indication of the efforts the parent will make
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when no longer incarcerated. See In re Z.P., 994 A.2d 1108, 1126 (Pa.
Super. 2010) (terminating parental rights of incarcerated father after
examining his parenting history before incarceration and finding “Father’s
overall parenting history revealed no genuine capacity to undertake his
parental responsibilities”). Another factor to consider is the parent’s effort to
maintain a relationship with a child while incarcerated. In re E.A.P., 944 A.2d
79, 83 (Pa. Super. 2008). However, the orphans’ court may place weight on
other factors even when the parent is doing what he is supposed to do while
incarcerated. Id. at 84. In other words, the orphans’ court must consider
“[t]he complete circumstances” of the case. In re Z.P., 994 A.2d at 1125.
Father asserts that he did not abuse, neglect or refuse to provide
essential care to Child, and that he could have a relationship with Child and
meet her needs upon his release from prison. Anders Brief at 10. Father
also argues that he made attempts to contact Child through Mother. Id.The orphans’ court addressed Section 2511(a)(2) as follows:
Here, we found that, except for a brief period between 2013 and
2014, Father had been incarcerated since the [C]hild’s birth. He
had never provided the [C]hild with essential parental care. While
[Father] claimed that he tried to contact Mother to check in on the
[C]hild, those efforts were few and far between. Furthermore, he
never made any efforts to formally pursue custody or visitation.
Moreover, Father still had approximately 18 months remaining on
his maximum sentence. Even if Father would have been paroled
the day of the termination hearing, it would have been many more
months, if not years, until he would have been able to unite with
the child. The [C]hild did not know [Father] was alive until
recently. They had never met. Family and individual therapy
would have been necessary before he could be a permanency
resource for the [C]hild.10 The [C]hild had been dependent for
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nearly two years. She could not wait any longer for permanency.
Accordingly, we concluded that the conditions and causes of his
incapacity could not be remedied by Father in time to align with
the child’s needs. . . .
10The reunification efforts would be further complicated by
Father’s status as a lifetime Megan’s Law offender.
Orphans’ Court Opinion, 12/20/19, at 5-6 (footnote in the original).
Having reviewed the record, we conclude that it supports the findings of
the orphans’ court that Father has not provided the Child with the essential
parental care, control and subsistence necessary for her mental and physical
well-being, and that Father is unable to remedy the causes of his parental
incapacity, neglect or refusal any time in the foreseeable future. Thus, Father
is not entitled to relief.
Termination Pursuant to Section 2511(b)
We also conclude that, pursuant to Section 2511(b), the orphans’ court
properly determined that termination of Father’s parental rights would be in
the best interests of Child. With respect to Section 2511(b), we consider
whether termination of parental rights will best serve Child’s developmental,
physical, and emotional needs and welfare. See In re Z.P., 994 A.2d at 1121.
“In this context, the court must take into account whether a bond exists
between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The orphans’ court may equally
emphasize the safety needs of the child and may consider intangibles, such
as the love, comfort, security, and stability the child might have with the foster
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parent. See In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately,
the concern is the needs and welfare of a child. In re Z.P., supra at 1121.
Father argues the orphans’ court erred in its analysis of Child’s needs
and welfare because Father loves Child and wants to prove that he can provide
the care she needs. Anders Brief at 10-11. In terminating Father’s parental
rights, the orphans’ court credited testimony that Father and Child had never
met, and concluded that no bond existed between them. Orphans’ Court
Opinion, 12/20/19, at 5-6. Accordingly, the court concluded that terminating
Father’s parental rights would not negatively impact Child. Id. at 6. The court
observed that the Child is thriving with her maternal grandparents, who
provide the Child with love, stability, and permanency. Id. The court
determined that it served the best interests of the Child to involuntarily
terminate Father’s parental rights. Id. at 6-7.
Our review of the record supports the orphans’ court’s findings. We do
not discern an error of law or abuse of discretion with respect to the orphans’
court’s conclusion, and thus affirm the court’s determination that involuntary
termination of Father’s parental rights is in the best interests of Child.
Furthermore, our independent review of the record, conducted in
accordance with Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.
Super. 2018), confirms counsel’s assertion that there are no issues of merit
to be considered by this Court and this appeal is, thus, wholly frivolous.
Accordingly, we grant counsel’s Application to Withdraw and affirm the Decree
involuntarily terminating Father’s parental rights.
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Counsel’s Application to Withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2020
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