In Re: T.S.C., a minor Appeal of: J.G-F (memorandum)
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J-S19031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: T.S.C., a Minor IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.G.-F. No. 1960 MDA 2013 Appeal from the Decree entered October 21, 2013, in the Court of Common Pleas of Lycoming County, BEFORE: PANELLA, OLSON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED APRIL 23, 2014 J.G.paternal grandmother, E.H.C 1 to involuntarily of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), so that Paternal to Withdraw as Counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). W Withdraw. 1 The trial court found that custody stipulation in October 2010, granting Paternal Grandmother sole legal custody and primary physical custody, and that Child has resided with Paternal Grandmother, as the only constant parent in his life, since that time. The trial court also found that Paternal Grandmother has standing in loco parentis to file the termination Petition. J-S19031-14 The trial court set forth the findings of fact in its Opinion and Order which we adopt for the purpose of this appeal. See Opinion and Order, 10/21/13, at 2-5.2 Relevantly, Mother has been in and out of prison since October 2008. Mother has been in prison since May 2013 and expects to be absences, Paternal Grandmother has been the only constant parent in ovember 15, 2012, Paternal Grandmother filed a Petition adopt him. The trial court appointed counsel for Mother, and a guardian ad litem for Child. The trial court held a hearing on the Petition on September 11, 2013. At the hearing, Paternal Grandmother testified on her own behalf, and presented the testimony of her paramour, H.E.H., and Father. Mother testified on her own behalf. On October 21, 2013, the trial court entered the Decree terminating court directed Mother to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) within twenty-one days. 2 The Opinion and Order is dated October 8, 2013. While the last page of the Opinion and Order includes a date stamp of October 14, 2013, the docket indicates that the Opinion and Order was not docketed until October 21, 2013. Thus, we will utilize the October 21, 2013 date when citing to the Opinion and Order. -2- J-S19031-14 Mother filed a timely Concise Statement.3 On December 23, 2013, Attorney Frankenburger filed an Anders brief with this Court that raises the following questions for our review: granted where counsel has investigated the possible grounds for appeal and finds the appeal frivolous[?] II. Whether the lower court erred in terminating the parental rights of [Mother] when [Paternal Grandmother] did not prove by clear and convincing evidence the grounds for termination[?] Anders Brief at 5 (capitalization omitted). Frankenburger has filed a separate Petition to Withdraw as counsel with this Court. Mother filed neither a pro se brief, nor retained alternate counsel for this appeal. Initially, we note that in In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court extended the Anders principles to appeals Anders brief, this Court may not review the merits of the underlying issues until we In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004). Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw from representation, he must do the following: 3 quired to simultaneously file her notice of appeal and Rule 1925(b) concise statement. See Pa.R.A.P. 1925(a)(2)(i); Pa.R.A.P. 905(a)(2). However, Paternal Grandmother has not raised any objection or claim of prejudice. Accordingly, we conclude that the claims waived on appeal. See In re K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009). -3- J-S19031-14 (1) petition the court for leave to withdraw stating that after determined the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resembl amicus curiae brief; and (3) furnish a copy of the brief to defendant and advise [her] of [her] right to retain new counsel, proceed pro se, or attention. In re S.M.B., 856 A.2d at 1237 (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) and (4) 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 n Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination In re S.M.B., 856 A.2d at 1237. -4- J-S19031-14 Here, Frankenburger has complied with each of the requirements of Anders. Frankenburger indicates that he conscientiously examined the record and determined that an appeal would be frivolous. Further, Anders brief comports with the requirements set forth by the Supreme Court of Pennsylvania in Santiago. Finally, the record contains a copy of the letter that Frankenburger sent to Mother, advising her of her right to proceed pro se or retain alternate counsel and file additional claims, and withdraw. Accordingly, Frankenburger has complied with the procedural requirements for withdrawing from representation and we will review In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the and legal conclusions. However, our standard of review is that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial verdict. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). Termination of parental rights is controlled by section 2511 of the convincing evidence that its asserted grounds for seeking the termination of In re R.N.J., 985 A.2d 273, 276 (Pa. Super. -5- J-S19031-14 clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in Id. (citation and internal quotation marks omitted). Further, the is likewise free to make all credibility determinations and resolve conflicts in the evid In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Further, satisfaction of any one subsection of section 2511(a), along with consideration of section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, the trial 2511(a)(1) and (b), which provide as follows: § 2511. Grounds for involuntary termination (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 -6- J-S19031-14 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. review of a challenge to the sufficiency pursuant to section 2511(a)(1) as follows: To satisfy the requirements of section 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. *** Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the 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) (citations omitted). [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 parentchild relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to -7- J-S19031-14 reestablish [her] parental responsibilities bears the burden of proof on this question. In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en banc). stated as follows: 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 court 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. Because a child needs more than a benefactor, parental duty requires that a parent exert [herself] to take and maintain a 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 tal responsibilities while others provide the child with . . . her physical and emotional needs. -8- J-S19031-14 In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). Here, the trial court thoroughly considered the facts and determined that Mother had failed to perform her parental duties for the requisite sixmonth period. The trial court pointed out that Mother had not seen Child since January 2009 and has not performed any parental duties since that time. Opinion and Order, 10/21/13, at 2-4, 13; see also Trial Court Opinion, 11/21/13, at 2. The trial court further stated that Mother has been incarcerated and re-incarcerated for her drug-related conduct and that Mother was currently in prison and not expected to be released until September 2014. Opinion and Order, 10/21/13, at 2-3; N.T., 9/11/13, at 50, 61-62; see also In re Adoption of S.P., 47 A.3d at 828 (stating that a of contact with Child during her prior periods of incarceration. Opinion and Order, 10/21/13, at 3, 13; see also Trial Court Opinion, 11/21/13, at 2. Indeed, the trial court Child around the time of his birthday in 2010, which was not returned, was insufficient to amount to the performance of her parental duties. Opinion and Order, 10/21/13, at 3, 13-14; see also Trial Court Opinion, 11/21/13, at 2. The trial court additionally found that Mother did not send Child any gifts, cards, or letters. Opinion and Order, 10/21/13, at 3, 13; see also In -9- J-S19031-14 re Adoption of S.P. affirmative duty to love, protect and support his child and to make an effort omitted); , 851 A.2d 967, 976 (Pa. Super. 2004) en separated from his child to maintain communication and association with the child. This requires an affirmative demonstration of parental devotion, imposing upon the parent the duty to exert himself, to take and maintain a place of importance in the ch that Mother failed to perform her parental duties with regard to Child, and that she failed to sustain her burden of proof with regard to the post- section 2511(a)(1) are supported by competent, clear and convincing evidence in the record. See In re Adoption of S.P., 47 A.3d at 826-27. Regarding section 2511(b), the court inquires whether the termination emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Sup security, and stability are involved in the inquiry into the needs and welfare Id. at 1287 (citation omitted). The court must also discern - 10 - J-S19031-14 the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id.; see also In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (stating that where there is no evidence of any bond between the parent and child, it is reasonable to infer between a child and a potential adoptive parent is an important In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009). Finally, the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child under section 2511(b). In re Adoption of C.L.G., 956 A.2d at 1008. Here, the trial court found that Child had not seen Mother since January 2009. See Opinion and Order, 10/21/13, at 4, 14; see also In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003) (stating that parent must put himself in a position to assume daily parenting responsibilities so that he could develop a bond with child). The trial court additionally stated that 10/21/13, at 14. Further, the trial court found that Child has no bond with Mother, and that Child would not suffer any trauma from the termination of Id.; see also In re K.K.R.-S., 958 A.2d at 53536 (stating that where no clear bond between the parent and the subject child was apparent, there was no requirement to prove the absence of a positive bond). The trial court also pointed out that Paternal Grandmother - 11 - J-S19031-14 See Opinion and Order, 10/21/13, at 14-15; see also In re T.S.M., 71 tion must also consider whether the children are in a pre-adoptive home and whether See In re Z.P. be put on hold in the hope that [a parent] will summon the ability to handle see also In re Adoption of S.P., 47 A.3d at 826-27. Petition to Withdraw under the precepts of Anders. Decree affirmed. Petition to Withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/23/2014 - 12 -
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