In the Interest of: S.O.S., Appeal of: Z.S.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.O.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: Z.S.S., FATHER :
:
:
:
: No. 870 MDA 2019
Appeal from the Decree Entered May 3, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2018-01841
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 11, 2019
Z.S.S. (Father) appeals from the trial court’s decree involuntarily
terminating his parental rights to his minor son, S.O.S. (born 12/2014).
Father’s counsel has also filed an Anders/McClendon1 brief and
accompanying application seeking to withdraw from representing him on
appeal.2 After careful review, we affirm the termination decree on the basis
of the trial court’s opinion and grant counsel’s application to withdraw.3
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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2 See In re V.E., 611 A.2d 1267 (Pa. Super. 1992) (extending Anders
briefing requirements to termination of parental rights appeals involving
indigent parents represented by court-appointed counsel).
3 Child was represented by guardian ad litem, Jeffrey Gonick, Esquire, and
attorney, Pamela J. Breneman, Esquire, at the termination hearing. See 23
Pa.C.S. § 2313(a) (children have statutory right to counsel in contested
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Child resided with K.F.T. (Mother) and Father for approximately three
months following Child’s birth. After a physical altercation between Mother
and Father, Mother filed a protection from abuse (PFA) petition against Father
on February 23, 2015. Father was named as the perpetrator of the abuse.
On March 17, 2015, Father filed a custody action against Mother. After a
criminal record/abuse hearing held on April 24, 2015, Father was ordered to
complete a professional evaluation within 10 days to determine whether
Father was a risk of harm to Child. Father was granted supervised partial
physical custody pending the outcome of the evaluation; Maternal Grandfather
agreed to supervise the visitation. Father never completed the required
evaluation.
The court held a hearing on Mother’s PFA petition and, on March 25,
2015, made a finding of abuse against Father and entered a final PFA order,
effective for one year. No custody provisions were included in the PFA order.
Beginning in April 2015, Father visited with Child approximately twice a month
for one hour. In later months, the frequency of the visits decreased due to
scheduling problems. In 2017, Father’s visits with Child decreased to one visit
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involuntary termination proceedings) and In re K.R., 200 A.3d 969 (Pa.
Super. 2018) (en banc), but see In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa.
2018) (“[D]uring contested termination-of-parental-rights proceedings,
where there is no conflict between a child’s legal and best interests, an
attorney-guardian ad litem representing the child’s best interests can also
represent the child’s legal interests.”).
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approximately every three months. Father last visited with Child in October
or November 2017.
On August 17, 2018, Mother filed a petition to terminate Father’s rights
to Child. See 23 Pa.C.S. § 2512(a)(1) (parent may file petition to terminate
rights of child with respect to other parent). At the same time, Mother’s
husband, M.A.T. (Stepfather), also filed a petition to adopt Child. See 23
Pa.C.S. § 2512(b) (petitioner assumes custody of child until such time child is
adopted; petition must contain averment of contemplated adoption). On
January 9, 2019, the trial court held a termination hearing at which Father,
Mother, and Maternal Grandfather testified. Following the hearing, the court
granted Mother’s petition to terminate Father’s parental rights to Child
pursuant to sections 2511 (a)(1)4 and (b) of the Adoption Act.5 Father filed a
timely notice of appeal and contemporaneous Pa.R.A.P. 1925(a)(2)(i)
statement of errors complained of on appeal. Father presents the following
issues for our review:
(1) Whether the [c]ourt erred when it terminated [F]ather’s
parental rights when the evidence presented showed that
[F]ather still had an interest in parenting . . . [C]hild.
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4 A parent’s rights to a child may be terminated where “[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. § 2511(a)(1).
5 23 Pa.C.S. §§ 2101-2938.
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(2) Whether termination of [F]ather’s parental rights was in the
best interests of the child.
Appellant’s Brief, at 5.
We may not address the merits of Father’s appeal without first reviewing
counsel’s request to withdraw. Commonwealth v. Rojas, 874 A.2d 638,
639 (Pa. Super. 2005). In V.E., supra, our Court held:
Counsel appointed to represent an indigent parent on a first
appeal from a decree involuntarily terminating his or her parental
rights, may, after a conscientious and thorough review of the
record, petition the court for leave to withdraw representation if
he or she can find no issues of arguable merit on which to base
the appeal. Given the less stringent standard of proof required
and the quasi-adversarial nature of a termination proceeding in
which a parent is not guaranteed the same procedural and
evidentiary rights as a criminal defendant, appointed counsel
seeking to withdraw representation must submit an advocate’s
brief.
611 A.2d at 1275. In In re Adoption of V.G., 751 A.2d 1174 (Pa. Super.
2000), our Court reiterated the requirements counsel must satisfy before
being permitted to withdraw in termination appeals: (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 in the record of arguable merit; and (3) furnish a
copy of the brief to the appellant and advise the appellant of his or her right
to retain new counsel or proceed pro se and raise any additional points he
deems worthy of this Court’s review. Id. at 1176.
Instantly, counsel has complied with the withdrawal requirements
outlined in V.G. She has filed a separate petition to withdraw concluding that
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the appeal would be frivolous, filed a brief referring to any issues of arguable
merit, stated in her brief that she has furnished Father with a copy of the brief,
and informed him of his rights in lieu of counsel’s representation. Therefore,
we find counsel has substantially complied with the withdrawal requirements.
Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007) (substantial
compliance sufficient to satisfy withdrawal on appeal).
Moreover, based on our own independent review of the certified record,
including the notes of testimony from the termination hearing, relevant case
law and the trial court opinion, we agree with counsel’s assessment that any
appeal would be frivolous. Turning to the merits of the issues on appeal, we
rely upon the May 3, 2019 opinion, authored by the Honorable James P.
Cullen, to affirm the final decree terminating Father’s parental rights to Child
under 23 Pa.C.S. §§ 2511(a)(1) and (b), where Father has failed to take
affirmative steps to maintain a relationship with Child and termination is in
the best interests of Child.
Judge Cullen thoroughly and thoughtfully addresses the issues,
concluding that: Father only made two attempts to contact Maternal
Grandfather for visits with Child from November 2017 to March 2018; since
the PFA order against Father expired in March 2016, Father has not reached
out to Mother to request visits with Child save for one or two times at the
parties’ child support hearings; Father has not seen Child since October or
November 2017; Father last sent Child a gift in November 2017; Stepfather
has filled the void in Child’s life created by Father’s absence; Mother and
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Stepfather can provide Child with the stability, permanency and safety he
needs; and termination is in Child’s best interests and will promote his
developmental, psychological, and emotional welfare.6
We advise the parties to attach a copy of Judge Cullen’s decision in the
event of further proceedings in the matter.
Decree affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2019
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6 Both legal counsel for Child and Child’s guardian ad litem concur that
termination is in Child’s best interests.
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