J-S82037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.K.P. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.L.P., FATHER

No. 1308 MDA 2016

Appeal from the Decree June 23, 2016

in the Court of Common Pleas of Berks County

Orphans’ Court at No.: 84598

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 19, 2016

A.L.P. (Father) appeals the decree of the Court of Common Pleas of 

Berks County, entered June 23, 2016, that terminated his parental rights to 

his daughter, A.K.P., born in August of 2012, (Child), and changed Child’s 

goal to adoption. We affirm.1

Berks County Children and Youth Services (CYS) filed a petition to 

terminate Father’s parental rights to Child on December 15, 2015. The trial 

court aptly summarized the events that led CYS to file those petitions in its 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 A.M.P. (Mother) voluntarily relinquished her parental rights by executing a 

consent to the adoption of Child on May 16, 2016. The trial court entered a 

decree of voluntary termination of her parental rights on June 23, 2016.
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opinion entered August 12, 2016. We direct the reader to that opinion for 

the facts of this case. 

The trial court held a hearing on CYS’ petitions on June 20, 2016. 

Testifying at that hearing were Father, from prison by videoconference, and 

CYS caseworker, Brynn Fizz. The trial court entered its decree terminating 

Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) 

and (b) on June 23, 2016. Father filed his timely notice of appeal and 

statement of errors complained of on appeal on July 12, 2016. See 

Pa.R.A.P. 1925(a)(2)(i).2

Father’s attorney has filed an application to withdraw as counsel and 

an Anders brief in which he raises the following question: “Did the [trial 

c]ourt err by terminating [Father’s] parental rights because the evidence 

presented by [CYS] was insufficient to support the [trial] court’s decision?” 

(Anders Brief, at 5).

Our standard of review is as follows:

In an appeal from an order terminating parental rights, our 

scope of review is comprehensive: we consider all the evidence 

presented as well as the trial court’s factual findings and legal 

conclusions. However, our standard of review is narrow: we will 

reverse the trial court’s order only if we conclude that the trial 

court abused its discretion, made an error of law, or lacked 

competent evidence to support its findings. The trial judge’s 

decision is entitled to the same deference as a jury verdict. 

____________________________________________

2 The court entered a Rule 1925(a) opinion on August 12, 2016. See 

Pa.R.A.P. 1925(a)(2)(ii).
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). 

Further, we have stated:

Where the hearing court’s findings are supported by 

competent evidence of record, we must affirm the hearing court 

even though the record could support an opposite result. 

We are bound by the findings of the trial court 

which have adequate support in the record so long 

as the findings do not evidence capricious disregard 

for competent and credible evidence. 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. 

Though we are not bound by the trial court’s 

inferences and deductions, we may reject its 

conclusions only if they involve errors of law or are 

clearly unreasonable in light of the trial court’s 

sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

Here, the trial court terminated Father’s parental rights pursuant to 23 

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). In order to affirm the 

termination of parental rights, this Court need only agree with any one 

subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. 

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). 

Requests to have a natural parent’s rights terminated are governed by 23 

Pa.C.S.A. § 2511, which provides, in pertinent part:

§ 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:
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(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).

It is well settled that a party seeking termination of a parent’s rights 

bears the burden of proving the grounds to so do by “clear and convincing 

evidence,” a standard which requires evidence that is “so 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 issue.” In 

re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted).

To terminate parental rights pursuant to section 2511(a)(1), the 

person or agency seeking termination must demonstrate through clear and 

convincing evidence that, for a period of at least six months prior to the 

filing of the petition, the parent’s conduct demonstrates a settled purpose to 

relinquish parental rights or that the parent has refused or failed to perform 
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parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. 

Super. 2003).

With respect to subsection 2511(a)(1), our Supreme Court has 

held:

Once the evidence establishes a failure to perform parental 

duties or a settled purpose of relinquishing parental rights, the 

court must engage in three lines of inquiry: (1) the parent’s 

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).

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998) 

(citation omitted). Further, 

the trial court must consider the whole history of a given case 

and not mechanically apply the six-month statutory provision. 

The court must examine the individual circumstances of each 

case and consider all explanations offered by the parent facing 

termination of his or her parental rights, to determine if the 

evidence, in light of the totality of the circumstances, clearly 

warrants the involuntary termination.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 

A.2d 1200 (Pa. 2005) (citations omitted). 

The Adoption Act provides that a trial court “shall give primary 

consideration to the developmental, physical and emotional needs and 

welfare of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make 

specific reference to an evaluation of the bond between parent and child but 

our case law requires the evaluation of any such bond. See In re E.M., 620 

A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court 
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is not required by statute or precedent to order a formal bonding evaluation 

performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. 

Super. 2008).

As an initial matter, we must dispose of the application to withdraw as 

counsel filed by Father’s attorney. Father’s counsel, Gregory S. Ghen, 

Esquire, has filed an application with this Court to withdraw from 

representation pursuant to Anders v. California, 386 U.S. 738 (1967) and 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

Pursuant to Anders, when counsel believes an appeal is frivolous and 

wishes to withdraw representation, he or 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 anything that might arguably support 

the appeal, but which does not resemble a “no-merit” letter or 

amicus curiae brief; and 

(3) furnish a copy of the brief to defendant and advise him of his 

right to retain new counsel, proceed pro se, or raise any 

additional points he deems worthy of the court’s attention.

In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).

In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended 

the Anders principles to appeals involving the termination of parental rights. 

See In re V.E., supra at 1275. “When considering an Anders brief, this 

Court may not review the merits of the underlying issues until we address 

counsel’s request to withdraw.” In re S.M.B., supra at 1237. 
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In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our 

Supreme Court addressed the contents of an Anders brief, and required 

that it:

(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, supra at 361. “After an appellate court receives an Anders brief 

and is satisfied that counsel has complied with the aforementioned 

requirements, the Court then must undertake an independent examination 

of the record to determine whether the appeal is wholly frivolous.” In re 

S.M.B., supra at 1237.

With respect to the third requirement of Anders, that counsel inform 

the defendant of his or her rights in light of counsel’s withdrawal, this Court 

has held that 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).

Father’s attorney, in his application to withdraw as counsel, has stated 

that he has made a conscientious review of the record and concluded that 
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his client’s appeal is wholly frivolous. (See Application for Leave to 

Withdraw as Counsel, 9/07/16, at unnumbered page 1). In addition, he 

timely mailed his client: (1) a copy of his petition to withdraw; (2) a copy of 

his Anders brief; and (3) a letter advising his client of his rights to proceed 

pro se or to retain private counsel if the petition is granted and to raise any 

additional issues that he deems worthy of consideration. (See id. at 

unnumbered page 2, Exhibit A). Counsel has filed the required Anders brief 

in this Court setting forth the background of this case, the issue he believes 

might arguably support Appellant’s appeal, his conclusion that the appeal is 

frivolous, and the reasons for his conclusion. (See Anders Brief, at 5-9). 

Thus, counsel for Father has satisfied the procedural requirements of 

Anders and we grant him leave to withdraw as counsel.

We have examined the opinion entered by the trial court on August 12, 

2016 in light of the record in this matter and are satisfied that that opinion is 

a complete and correct analysis of this case. 

Accordingly, we affirm the decree of the Court of Common Pleas of 

Berks County that terminated Father’s parental rights and changed Child’s 

goal to adoption, on the basis of the trial court’s opinion.

Decree affirmed. Application to withdraw as counsel granted.
J-S82037-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2016
1 

1 Mother has two other children by different men. Given that only A.LP. has filed an appeal, this Opinion addresses 

only the matter of Child, A.KP. 

months immediately preceding the filing of the petition either has evidenced a settled purpose of 

be terminated on. the grounds that a "parent by conduct continuing for a period of at least six 

The statute at paragraph 251 l(a)(l) provides that parental rights in regard to a child may 

filed a Notice of Appeal and a Concise Statement of Matters Complained of on Appeal. 

23, 201.6, the Court granted the petition to terminate Father's parental rights to the Child. Father 

hearing. Upon conclusion of the hearing, the Court took the matter under advisement. On June 

present via video from SCI Graterford. Father's court-appointed counsel was present for the 

June 20, 2016. Mathe; was present with counsel before being excused by the Court. Father was 

Pa.C.S.A. §251 l(a)(l), (2), (5), and (8). After a series of continuances, a hearing was held on 

terminate Father's rights was filed on December 15, 2015 on the grounds set forth in 23 

adoption, which was confirmed by the Court on June 23, 2016. The petition to involuntarily 

Services ("BCCYS") to terminate the parental rights of A.M.P. ("Mother") and A.L.P. ("Father") 

to the child, A.K.P., date of birth Augustt· 2012 ("Child").1 Mother signed a consent to 

This matter came before the Court on the petitions r-f'Berks County Children and Youth 

OPINION, Scott D. Keller, S.J. Dated: August 12, 2016 

Jennifer L. Grimes, Attorney for BCCYS, Petitioner/Appellee 

Cathy Badal, Guardian Ad Litem for A.K.P. 

Gregory S. Ghen, Attorney for A.L.P., Father 

Peter David Maynard, Attorney for A.M.P., Mother 

: No. 84598 

IN THE COURT OF COMMON PLEAS 

OF BERKS COUNTY, PENNSYLVANIA 

A.K.P. ORPHANS' COURT DIVISION 

INRE: 

Circulated 12/07/2016 04:00 PM
2 

relinquishing parental claim to a child or has refused or failed to perform parental duties." 

Paragraph (a)(2) provides that parental rights may be terminated on the grounds 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." Paragraph (a)(5) provides for termination of parental rights 

when a "child has been removed from the care of the parent by the court or under a voluntary 

agreement with an agency for a period of at least six months, the conditions which led to the 

removal or placement of the child continue to exist, the parent cannot or will not remedy those 

conditions within a reasonable period chime, the services or assistance reasonably available to 

the parent are not likely to remedy the conditions which led to the removal or placement of the 

child within a reasonable period of time and termination of the parental rightswould best serve 

the needs and welfare of the child." Paragraph (a)(8) provides that parental rights may be 

terminated on the grounds that "[t]he child has been removed from the care of the parent by the 

court or under a voluntary agreement with an agency, twelve months or more have elapsed from 

the date of removal or placement, the conditions which led to the removal or placement of the 

child continue to exist and termination of parental rights would best serve the needs and welfare 

of the child." "With respect to any petition filed pursuant to _(a)(l), (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. § 251 l(b). 

"Parental rights may not be preserved by waiting for some more suitable financial 

circumstance or convenient time for the performance of parental duties and responsibilities." In 

re: DJS, 737 A.2d 283, 287 (Pa. Super. 1999). The long-standing law of the Commonwealth 
3 

is that the inability of a parent to perform parental duties makes him or her just as parentally unfit 

as a parent who refuses to perform these duties. In re: B.L. W, 843 A.2d 380, 388 (Pa. Super. 

2004). Regardless of inability or refusal, once a parent demonstrates a failure to fulfill his or her· 

parental duties, the child's right to fulfillment of his or her potential in a permanent, healthy, safe 

enviromnent with proper parenting supersedes the parent's basic constitutional right to custody 

and rearing of the child. Id. In terminating the rights of a parent, the court must give "primary 

consideration to the developmental, physical, and emotional needs and welfare of the child." 23 

Pa.C.S.A. §251 l(b). 

Incarceration is not in and of itself determinative of parental incapacity, but it "can be 

determinative of the question of whether a parent is incapable of providing 'essential parental 

care, control or subsistence."' In Re: Adoption ofS.P., 47 A.3d. 817, 831 (Pa. 2012); In re R.IS. 

& A.JS., 36 A.3d 567, 576 (Pa. 2011), Justice Baer concurring. "The length of the remaining 

confinement can be considered as highly relevant to whether 'the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,' sufficient to 

provide grounds for termination pursuant to 23 Pa.C.S. § 251 l(a)(2)." In Re: Adoption of SP., 47 

A.3d. at 831. If a parent will remain incarcerated for too long of a period of time to permit 

unification with a child "in a timely basis in order to provide the child with the permanent home 

to which he or she is entitled, then the length of sentence, standing alone, should and does meet 

the legal criteria for involuntary termination of the incarcerated parent's parental rights." In re 

R.JS. & A.IS., at 576. "[T]he child's need for consistent parental care and stability cannot be put 

aside or put on hold simply because the parent is doing what [he] is supposed to do in prison." 

In re E.A.P., 944 A.2d 79, 84 (Pa.Super.2008). "It is incumbent upon the judicial system to be 

child-focused." In re R.JS., 36 A.2d at 579. 
In response to a BCCYS letter to Father on March 25, 2014, Father reported that he was 

incarcerated at SCI Coal Township, that he was not parole eligible until December 2015, but that 

he wanted to help any way that he could. He completed a jail program called "Thinking for a 

Change" in April 2014. He was present at a dispositional hearing on September 17, 2014 vial 

telephone and was ordered to comply with a multitude of services. 

2 Mother was knownto BCCYS as a foster child during the years of 1995 to 2004. 

4 

This family came to the attention ofBCCYS has the result of a March 2014 report that 

alleged lack of appropriate housing, lack of stable income, lack of parenting skills, and substance 

abuse by the parents - specifically Mother, her paramour, and the father of Mother's oldest child 

-in Mother's apartment while the children were present.2 BCCYS's investigation revealed that 

Mother had three children, all by different men; Mother, her paramour and others regularly 

smoked K-2 in the apartment; the sink was broken; there was a potential bedbug problem; and 

Father was incarcerated. The case was opened for in-home services. On September 3, 2014, the 

children were placed in foster care. 

Because Mother signed a consent to adoption, this Opinion will focus on Father's 

parenting or, rather, lack thereof and will not delve into the details of Mother's parental conduct 

and corresponding relationship with BCCYS. 

Father has a criminal history dating back to 2006, when he was incarcerated for · 

approximately a year and a half on a firearms charge. After jail, he was in a halfway house. He 

was home in 2009 until a new arrest in April 2009. He was confined until 2011. Based on his 

own testimony, Father was an absconder for about one year until he was caught in Florida in 

2012. December 19, 2012 charges for fleeing or attempting to elude a police officer, resisting 

arrest and litany of driving offenses landed him back in jail. Child was four months old at the 

time. 
5 

Father participated in the first permanency review hearing on February 17, 2015 via 

telephone. The Court found that there was no compliance with the permanency plan and no 

progress toward alleviating the circumstances of placement. Father was ordered to contact 

BCCYS to schedule casework ifhe wished to be eligible for visitation with Child. 

Father was present for the second and third permanency review hearings on August 11, 

2015 and January 19, 2016 via telephone. The Court found Father to have been minimally 

compliant with the permanency plan and that he made no progress toward alleviating the 

circumstances of placement. He completed a parenting course in December 2015. There were 

no visits with Child. 

On multiple occasions during his incarceration, Father wrote and telephoned BCCYS. 

He stated he was willing to do whatever he needed and to work toward reunifying with Child. 

Father set forth no plan to implement this willingness. BCCYS encouraged Father to write to 

Child, to send her pictures, and to send her cards. Father never sent correspondence to BCCYS 

for Child. 

In January 2016, Father reported a hope that he would be released from jail in a few 

months. He planned to go to a halfway house. BCCYS directed him to report to the agency 

upon his release to arrange services. Father was released on March 22, 2016, but he did not 

contact BCCYS. On April 7, 2016, BCCYS learned that Father was not reporting to his parole 

officer, that he was considered an absconder, and that a warrant had been issued for his arrest. 

As of the June 20, 2016 hearing, Father was back in a state correctional institution without 

having made any attempt to see Child. He believes he is parole eligible in October 2016. 

Father has not seen Child since she was four months old- she is now four years old. In 

over three and one-half years, Father never saw her, wrote her, called her, or provided her with 
6 

3 Child has three paternal siblings. 

Certffi-&d to be a true and correct 

copy of the original on ma. 

. . " ~ i I /» 

. ~ - I~ I & £i2:--..£~ {( .-;i,vt~v Wc¢;:r, 

Date Clerk 01 O;,phans' Court 

Distribution: Clerk of the Orphans' Court; BCCYS Solicitor; Guardian Ad Litem; Attomeyfor/fotier; Attorney 

for Father 

rights to Child. 

For the foregoing reasons, the Court entered its Decree terminating Father's parental 

for permanency and stability and will be in her best interests. 

Child has no bond with Father. Freeing Child for adoption will provide her with the opportunity 

siblings.' .She is bonded with her foster parents to whom she looks for love, safety, and support. 

Child is doing very well in her foster home where she has been placed with her maternal 

of Child are paramount, and Father has not provided for them for most of Child's life. 

can or will remedy his failures as a parent in a reasonable period of time. The needs and welfare 

will be incarcerated for at least several more months, the Court has no expectation that Father 

reach out to his daughter, especially upon his release from jail in March 2016, and given that he 

being in jail or a halfway house more often than not during his adult life, given his failure to 

financial support or any other kind of parental control and subsistence. Given his history of