In Re: Adopt. of W.R.S., Appeal of: L.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ADOPTION OF W.R.S. : IN THE SUPERIOR COURT OF
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APPEAL OF: L.M., FATHER : No. 1036 WDA 2021
Appeal from the Decree Entered August 9, 2021
In the Court of Common Pleas of Indiana County Orphans’ Court at
No(s): 32-20-0414
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: MAY 02, 2022
L.M. (“Father”) appeals from the decree granting the petition to
involuntarily terminate his parental rights to his daughter, W.R.S. (“Child”).
Additionally, Father’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and a petition to withdraw from
representation. We deny counsel’s petition to withdraw and direct counsel to
file an advocate’s brief.
Our review of the certified record reflects the following factual and
procedural history. Father and M.T. (“Mother”) were in a non-committed
relationship when Mother informed Father of her pregnancy. N.T., 7/26/20,
at 10, 12-14. Father, who had been convicted and sentenced for drug-related
offenses, was incarcerated when Child was born in June 2016. Id. at 12-14.
The parents had no further contact until about a year after Child’s birth, when
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* Retired Senior Judge assigned to the Superior Court.
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Mother received a letter that Father sent her from prison. Id. at 12. Father
remained in prison until April 2019, during which time he frequently sent
Mother letters. Id. at 37.
Shortly after Child’s birth, Mother began a relationship with B.T.
(“Stepfather”). Id. at 27-28. Mother and Stepfather began living together in
June 2017, and married in July 2020. Id. at 28. Stepfather has assisted in
raising Child and supporting her financially, and has been the sole paternal
figure in her life. Id. at 17-18.
Father’s first and only contacts with Child occurred following his release
from prison in 2019. According to Mother, Father attended a birthday party
for Child in July 2019, and “got her some birthday presents and cupcakes, and
he just talked with [Stepfather] mostly.” Id. at 15. Father saw Child a second
time “maybe three or four weeks later.” Id. Mother’s recollection of this
interaction is that Father “got to see [Child] and have a conversation with her
and she just kept on playing.” Id. Father has not seen Child since then, nor
has he sent cards or gifts. Id. at 15-16. In addition, Father has never
provided financial support for Child. Id. at 16. Mother claimed that Father
made little effort to maintain a relationship with Child despite having
opportunities to do so. Id. at 16-20, 23-24.
Father generally blamed Mother for his lack of contact with Child,
contending that Mother prevented contact, and that he was afraid she would
pursue criminal charges if he continued to seek contact. Id. at 40-51. Mother
acknowledged that: (1) she blocked Father on Facebook and possibly her
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phone;1 (2) she would not have allowed Father to have even supervised
contact with Child if he had requested it; and (3) that Father would not have
known the address where she resided for the last two years. Id. at 17, 21-
26.
Father’s last contact with Mother involved an exchange of heated text
messages that occurred sometime in 2020. Id. at 23, 41-42. In Mother’s
version of the text messages, Father learned that Stepfather wanted to adopt
Child and “got angry and he just texted me a lot of negative names and then
I just blocked him.” Id. at 23. Father claimed that he sent text messages to
Mother “through March and May of 2020” to try to arrange contact with Child,
but Mother acted “controlling.” Id. at 42.
In the months following the exchange of text messages, Father learned
of Mother’s new address, apparently from a third party. Id. at 41. He then
filed a complaint for custody and a complaint to establish paternity/request
for genetic testing. Father’s custody and paternity pleadings are not present
in the record, but the trial court indicates that Father filed these pleadings on
or about October 13, 2020. One week later, on October 21, 2020, Mother and
Stepfather filed a petition to involuntarily terminate Father’s parental rights to
Child, as well as a petition for adoption. After a continuance, the trial court
conducted a termination hearing on April 13, 2021, and entered a decree on
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1At the termination hearing, Mother asserted that she was no longer blocking
Father on Facebook but did not indicate when the blocking ended. See N.T.,
7/26/21, at 22.
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April 16, 2021, granting the petition to involuntarily terminate Father’s
parental rights to Child.
On April 20, 2021, despite the involuntary termination of Father’s
parental rights, the trial court conducted a hearing on Father’s complaint to
establish paternity/request for genetic testing. At the hearing, Father claimed
that, although he was aware that the original termination hearing had been
continued, he did not receive notice of the rescheduled hearing date of April
13, 2021. In light of this information, the trial court vacated the April 16,
2021 decree and scheduled a new termination hearing.
On July 26, 2021, the trial court conducted a second termination hearing
at which Mother, Stepfather, and Father testified.2 On August 9, 2021, the
court entered a decree granting Mother and Stepfather’s petition to
involuntarily terminate Father’s parental rights to Child. Father’s counsel filed
a notice of appeal and a concise statement of errors complained of on appeal.3
Father’s counsel also filed a statement of intent to file an Anders brief. The
trial court then ordered Father to file a second concise statement, and Father
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2 The trial court appointed counsel to represent Child’s legal interests.
3 Father’s notice of appeal is not in the trial court record. Upon review, it
appears that the trial court transmitted the original notice of appeal to this
Court, rather than a copy. See Pa.R.A.P. 905(b) (providing that “[t]he clerk
[of the trial court] shall immediately transmit to the prothonotary of the
appellate court named in the notice of appeal a copy of the notice of appeal”).
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timely complied.4 In this Court, Father’s counsel filed an Anders brief and
petition to withdraw from representation.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he/she must do the following:
(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 any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(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
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4The trial court docket indicates that Father filed his second concise statement
on September 13, 2021; however, it is absent from the trial court record.
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(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. This Court extended the Anders principles to
appeals involving the termination of parental rights. See In re V.E., 611 A.2d
1267, 1274-75 (Pa. Super. 1992). “Once counsel has satisfied the [Anders]
requirements, it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (citation
omitted).
Here, counsel avers in her petition to withdraw that she conducted a
thorough and conscientious review of the record and applicable case law, and
thereafter determined that there are no meritorious grounds to support
Father’s appeal. Counsel further avers that she mailed Father copies of the
petition and the Anders brief, as well as correspondence explaining Father’s
rights to retain private counsel or proceed pro se and raise any additional
arguments he believes are meritorious. Counsel’s Anders brief includes a
summary of the facts and procedural history of the case, a list of issues that
could arguably support Father’s appeal, and counsel’s analysis of why the
issues lack merit, with citations to the record and minimal legal authority. We
conclude counsel has technically complied with the requirements of the
Anders procedure. Accordingly, we will conduct an independent review to
determine whether Father’s appeal is wholly frivolous.
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In the Anders brief, counsel identifies the following issues for our
review:
1. Did the trial court commit [an] abuse of discretion or error of
law when it concluded that [appellees] established grounds for
termination pursuant to 23 Pa.C.S.A. 2511(a)(1)?
2. Did the trial court commit [an] abuse of discretion or error of
law when it concluded that the termination of parental rights was
appropriate and in [C]hild’s best interest pursuant to 23 Pa.C.S.A.
2511(b)?
Anders Brief at unnumbered 14 (unnecessary capitalization omitted).
Appellate review in cases involving the involuntary termination of
parental rights is limited to determining whether the trial court’s decision is
supported by competent evidence. See In re Adoption of C.M., 255 A.3d
343, 358 (Pa. 2021). When applying this standard of review, an appellate
court must accept the findings of fact and credibility determinations of the trial
court if they are supported by evidence of record. Id. Where the trial court’s
factual findings are supported by the evidence, an appellate court may not
disturb the trial court’s ruling unless it has discerned an error of law or abuse
of discretion. Id.Pennsylvania’s Adoption Act governs involuntary termination of parental
rights proceedings. See 23 Pa.C.S.A. §§ 2101-2938. Subsections 2511(a)
and (b) of the Adoption Act set forth the grounds a petitioner must prove in
order for the court to grant an involuntary termination of parental rights. See
23 Pa.C.S.A. § 2511. Subsection (a) provides eleven types of parental
conduct which would provide grounds for involuntary termination. Id. §
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2511(a). If the trial court finds clear and convincing evidence supporting the
existence of one of the grounds for termination set forth in subsection (a), the
court must then consider whether termination would best serve the child
under subsection (b). Id. § 2511(b).
In the instant matter, the trial court terminated Father’s parental rights
to Child pursuant to sections 2511(a)(1) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(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.
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(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
To satisfy the requirements of section 2511(a)(1), the party requesting
termination must prove conduct by the parent, sustained for at least the six
months immediately prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a refusal or
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failure to perform parental duties. See In re Z.S.W., 946 A.2d 726, 730 (Pa.
Super. 2008). Though we do not adhere to any strict definition of “parental
duty,” a child has a right to essential parental care, and our jurisprudence
reveals certain irreducible qualities of a parent’s attendant obligation. C.M.,
255 A.3d at 364. Foremost, it is a positive duty requiring affirmative
performance. Id. Additionally, parental duty requires that a parent exert
himself to take and maintain a place of importance in the child’s life. Id.
(noting that communication and association are essential to the performance
of parental duties).
However, even where the evidence clearly establishes that a parent has
failed to perform affirmative parental duties for a period in excess of six
months, the court must examine the individual circumstances and any
explanation offered by the parent to determine if that evidence, in light of the
totality of circumstances, clearly warrants permitting the involuntary
termination of parental rights. Id. In other words, even if competent
evidence establishes the statutory criteria under subsection (a)(1),
consideration of the totality of the circumstances includes evaluation of the
following: (1) the parent’s explanation for his or her conduct; (2) the post-
abandonment contact between the parent and child, if any, including any
efforts made by the parent to reestablish contact with the child; and (3) the
effect that termination of parental rights would have on the child pursuant to
subsection (b). Id. at 365.
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It is within this framework that a trial court determines whether a parent
has faced barriers that prevented the parent from maintaining the parent-
child relationship. See In re Adoption of L.A.K., 265 A.3d 580, 593 (Pa.
2021). What may constitute a “barrier” in the context of a section 2511(a)(1)
analysis will vary with the circumstances of each case. Id. “In some
instances, obstructive behavior by the child’s custodian presents a barrier to
the parent’s ability to perform parental duties, which mitigates the parent’s
failure to maintain the parent-child relationship.” Id. In other instances, trial
courts have found substance abuse, mental health issues, homelessness,
joblessness, criminal charges, or a confluence of some or all of these issues
created barriers to the maintenance of the parent-child relationship. Id.Recently, in C.M., our Supreme Court considered the significance and
effect of custody-related legal filings by a parent in a section 2511(a)(1)
analysis. In that case, mother rebuffed father’s requests to see the child for
years and eventually stopped answering his calls and instructed him not to
contact her. After more than two years, father filed a custody action. Two
months later, mother and maternal grandparents sought the termination of
father’s parental rights. The C.M. Court ruled that because father had initiated
and actively pursued a complaint for custody in the two months prior to the
filing of the termination petition, including attending court-ordered mediation
and conciliation proceedings, his actions demonstrated an affirmative
performance of his parental duties to the maximum extent apparent at the
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time and under the circumstances. C.M., 255 A.3d at 368. The C.M. Court
explained that a parent’s efforts to enforce his or her legal custody rights
unquestionably establish the affirmative performance of a positive parental
duty, and that when such action is taken in the face of a custodial parent’s
efforts to thwart access to the child, the attempts to enforce custodial rights
provide evidence that is highly relevant to the question of whether the
requirements of section 2511(a)(1) have been met. Id. at 367. In the C.M.
Court’s view, “because . . . [f]ather continuously exercised parental duties
during the two months preceding the filing of the petition, appellants did not
meet their burden to establish by clear and convincing evidence he failed or
refused to perform parental duties, or a settled purpose of relinquishment, for
a period of at least six months immediately preceding the filing of the
petition.” Id. (internal citations omitted).
A few months after deciding C.M., our Supreme Court again considered
the significance and effect of custody-related legal filings by a parent in a
section 2511(a)(1) analysis. See L.A.K., supra. In L.A.K., father refrained
from contact with his children until he had attained a year of sobriety, and
then instituted a legal action to modify the existing custody order so that he
could begin to establish a relationship with them. Approximately one week
later, mother and stepfather filed petitions to involuntarily terminate father’s
parental rights, which the trial court denied. Our Supreme Court concluded
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the trial court acted within its discretion by denying termination. The L.A.K.
Court explained its reasoning, as follows:
As in C.M., this legal action constituted the affirmative
performance by father of a positive parental duty in the crucial
six-month period before appellees filed the termination petitions.
Based upon our ruling in C.M., father must be credited for his
assertion of custody rights during the crucial six-month period.
Thus, appellees failed to provide clear and convincing evidence
that father failed or refused to perform parental duties, or
demonstrated a settled purpose of relinquishment during the six-
month period immediately preceding the filing of the termination
petitions.
Id. at 594-95 (footnote and unnecessary capitalization omitted). The L.A.K.
Court reiterated that “[i]t is crystal clear, and of vital importance . . . that a
parent’s legal efforts to enforce custodial rights demonstrate affirmative
performance of a positive parental duty.” Id. at 594 (citing C.M., 255 A.3d
at 367).
Although C.M. was decided four months prior to the filing of the Anders
brief, Father’s counsel did not acknowledge that decision, or discuss the
significance of custodial legal filings in a section 2511(a)(1) analysis.5
The trial court acknowledged C.M. in its Pa.R.A.P. 1925(a) opinion, but
determined that C.M. was factually and legally distinguishable on the basis
that, although Father filed the custody complaint one week before the
termination petition was filed, he “did not then actively pursue the custody
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5 We note that our Supreme Court’s decision in L.A.K. was filed in November
2021, which was after counsel filed the Anders brief and after the trial court
filed its Rule 1925(a) opinion.
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complaint.” Trial Court Opinion, 9/17/21, at 6. In the trial court’s view, “the
filing of the custody complaint without any other substantive affirmative action
does not remedy [Father’s] failure to perform any parental duties.” Id.
(unnecessary capitalization omitted).
We recognize that the C.M. Court seemed to emphasize the fact that, in
the two months after father filed his custody complaint and before the filing
of the termination petition, father actively pursued his custody complaint by
participating in court-ordered mediation and conciliation. However, in L.A.K.,
as in the instant matter, the Court was confronted with a one-week period
between father’s filing of the complaint for custody and the filing of the petition
for termination of his parental rights. Importantly, the L.A.K. Court did not
emphasize a need to actively pursue a custody filing in order to avoid
involuntary termination of parental rights. Instead, the L.A.K. Court made
clear that, under the circumstances of that case, the mere filing of the custody
complaint, without more, “constituted the affirmative performance by father
of a positive parental duty in the crucial six-month period before appellees
filed the termination petitions” which prevented appellees from meeting their
evidentiary burden under subsection 2511(a)(1). L.A.K., 265 A.3d at 595.
In the instant matter, Father, like the father in L.A.K., filed for custody
approximately one week before Mother and Stepfather filed the termination
petition. Given the brief period between Father’s custody filing and the
termination filing, Father would have had little, if any, opportunity to litigate
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the custody filing in that one-week period. Under these circumstances, L.A.K.
makes clear that the filing for custody one week prior to the filing of a
termination petition is sufficient, by itself, to preclude the involuntary
termination of parental rights under section 2511(a)(1).
We further observe that, in the instant matter, Mother took affirmative
steps to block Father’s ability to communicate with her via phone and
Facebook, and to hinder Father’s ability to ascertain her whereabouts. This
obstructive behavior by Mother is precisely the type of “barrier” which
mitigates a parent’s failure to maintain the parent-child relationship in the
context of a section 2511(a)(1) analysis. L.A.K., 265 A.3d at 593. In the
face of Mother’s attempts to thwart Father’s access to Child, Father’s efforts
to enforce his legal custody rights to Child unquestionably established the
affirmative performance of a positive parental duty under section 2511(a)(1).
See C.M., 255 A.3d at 367.
In light of C.M. and L.A.K., our independent review reveals an issue of
arguable merit overlooked by Father’s counsel; namely, that Father’s filing of
a custody complaint one week preceding the filing of the termination petition
constitutes the affirmative performance of a positive parental duty under
section 2511(a)(1). As Father’s counsel overlooked this non-frivolous issue,
we deny counsel’s petition to withdraw. See In re Adoption of M.C.F., 230
A.3d 1217, 1220 (Pa. Super. 2020) (holding that, when counsel overlooks an
arguably meritorious issue in a parental termination appeal, the appropriate
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remedy is to deny the petition to withdraw and remand for an advocate’s
brief). We therefore direct Father’s counsel to file an advocate’s brief within
thirty days from the date of this decision. Mother and Stepfather shall have
thirty days thereafter to file a supplemental response brief, should they decide
that one is warranted.
Petition to withdraw denied. Counsel for appellant is directed to file an
advocate’s brief consistent with this memorandum.
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