J-S07016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ADOPTION OF W.R.S.

APPEAL OF: L.M., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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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1 At 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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4 The 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.

* * * *

(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 postabandonment 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 parentchild 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 sixmonth 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.