J-S53001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.J.W., A 

MINOR

APPEAL OF: R.C.W., FATHER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2185 MDA 2015

Appeal from the Decree entered November 30, 2015 in 

the Court of Common Pleas of Berks County Orphans’ 

Court at No(s): 84332

BEFORE: BOWES, SHOGAN, FITZGERALD*, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 16, 2016

R.C.W. (“Father”) appeals from the November 30, 2015 decree 

involuntarily terminating his parental rights to his daughter, A.J.W., born in 

August of 2013.1 We affirm and grant counsel’s petition to withdraw. 

Berks County Children and Youth Services (“CYS”) first contacted this 

family during September of 2013 as a result of Mother’s history of drug 

abuse. A.J.W. was one month old when the agency opened its file. On 

December 13, 2013, Mother gave guardianship of A.J.W. to a friend due to 

Mother’s impending arrest. On March 25, 2014, the juvenile court placed 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 K.T. (“Mother”) relinquished her parental rights voluntarily on December 

14, 2015. 
J-S53001-16

- 2 -

A.J.W. into CYS’s emergency custody after her guardian was unable to care 

for her and both Mother and Father were serving prison sentences. On April 

2, 2014, the juvenile court adjudicated A.J.W. dependent. 

The court ordered Father, who has been incarcerated throughout the 

juvenile court and orphans’ court proceedings, to participate in services 

including, inter alia, parenting education, a mental health evaluation, and a 

drug and alcohol evaluation. He was also directed to follow the evaluators’ 

recommendations. Father’s imprisonment compromised his ability to comply 

with the juvenile court’s directives. During the three successive permanency 

review hearings following the adjudication of dependency, Father’s 

compliance with the court-ordered services was characterized as moderate, 

minimal, and minimal, respectively. Furthermore, although Father was 

initially granted fifteen minutes of weekly visitation with his daughter while 

Father was incarcerated at the Berks County prison, the juvenile court 

suspended Father’s visitation three months later due to A.J.W.’s “young age, 

[F]ather’s incarceration [at] SCI . . . Somerset, and Father’s anticipated 

continued incarceration.” CYS Exhibit 13 at 2.

On July 23, 2015, CYS filed a petition for the involuntary termination 

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

and (b). The orphans’ court held a hearing on November 2, 2015. CYS did 

not present any witnesses. Rather, the agency introduced twenty-one 

exhibits into evidence without objection. N.T., 11/2/15, at 5. Father 
J-S53001-16

- 3 -

testified from prison by videoconference. During his testimony, Father 

acknowledged that he has been incarcerated for A.J.W.’s entire life. Id. at 

10. However, he stressed that, while imprisoned, he participated in 

beneficial prison programs like parenting and substance abuse classes, and 

sent his daughter letters, video books, and pictures. Id. at 6-8. 

Significantly, however, Father initiated the prison programs after CYS filed 

its petition to terminate his parental rights. Id. at 30-32.

By decree dated November 30, 2015, the orphans’ court terminated 

Father’s parental rights. Father timely filed a notice of appeal and a concise 

statement of errors complained of on appeal. On January 28, 2016, the 

orphans’ court filed its Rule 1925(a) opinion.

Father’s counsel filed a petition with this Court requesting to withdraw 

from representation and submitted a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).2 We address counsel’s Anders brief at the outset. 

See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) 

(“‘When faced with a purported Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

____________________________________________

2 On April 6, 2016, this Court remanded the appeal to the orphans’ court for 

a determination of whether counsel had abandoned Father on appeal by 

neglecting to file a brief during the applicable time-period. Counsel filed the 

petition to withdraw and Anders brief two days later, and the orphans’ court 

determined that counsel had not abandoned Father. 
J-S53001-16

- 4 -

withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 

(Pa.Super. 1997)). In In re X.J., 105 A.3d 1, 3 (Pa.Super. 2014), this 

Court “extended the Anders principles to appeals involving the termination 

of parental rights.” 

To withdraw pursuant to Anders, counsel must: 

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the [Anders] brief to the [appellant]; and 3) advise the 

[appellant] that he or she has the right to retain private counsel 

or raise additional arguments that the [appellant] deems worthy 

of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en 

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 

2009)). With respect to the third requirement of Anders, that counsel 

inform the appellant 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).

Additionally, an Anders brief must comply with the following 

substantive requirements:

(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
J-S53001-16

- 5 -

(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. 

Instantly, counsel filed a petition to withdraw certifying that he has 

reviewed the case and determined that Father’s appeal is frivolous. Counsel 

also filed a brief that includes a summary of the history and facts of the 

case, the issue raised by Father, the facts that arguably support the appeal, 

and counsel’s assessment of why the appeal is frivolous with citations to 

relevant legal authority. Counsel attached to his petition to withdraw a copy 

of his letter to Father advising him that he may obtain new counsel or raise 

additional issues pro se. Accordingly, counsel complied with the 

requirements of Anders and Santiago. 

We next proceed to review the issue outlined in the Anders brief. In 

addition, we must “conduct an independent review of the record to discern if 

there are any additional, non-frivolous issues overlooked by counsel.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015) 

(footnote omitted). Counsel’s Anders brief raises one issue for our review.

1. Did the [orphans’] [c]ourt err by terminating [Father’s] 

parental rights because the evidence presented . . . was 

insufficient to support the [orphans’] court’s decision?
J-S53001-16

- 6 -

Anders brief at 4. CYS counters that it established by clear and convincing 

evidence the statutory grounds to terminate Father’s parental rights and that 

severing Father’s rights would serve A.J.W’s best interest.3

Our standard of review is as follows:

The standard of review in termination of parental rights cases 

requires appellate courts to accept the findings of fact and 

credibility determinations of the trial court if they are supported 

by the record. If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. A decision may be reversed for an 

abuse of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. The trial 

court’s decision, however, should not be reversed merely

because the record would support a different result. We have 

previously emphasized our deference to trial courts that often 

have first-hand observations of the parties spanning multiple 

hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks 

omitted). 

Termination of parental rights is governed by § 2511 of the Adoption 

Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis. 

Initially, the focus is on the conduct of the parent. The party 

seeking termination must prove by clear and convincing 

evidence that the parent’s conduct satisfies the statutory 

grounds for termination delineated in Section 2511(a). Only if 

the court determines that the parent’s conduct warrants 

termination of his or her parental rights does the court engage in 

the second part of the analysis pursuant to Section 2511(b): 

determination of the needs and welfare of the child under the 

standard of best interests of the child. One major aspect of the 

____________________________________________

3 Similarly, the guardian ad litem filed a brief in support of the decree 

involuntarily terminating Father’s parental rights.
J-S53001-16

- 7 -

needs and welfare analysis concerns the nature and status of the 

emotional bond between parent and child, with close attention 

paid to the effect on the child of permanently severing any such 

bond.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). 

We need only agree with the orphans’ court as to any one subsection 

of § 2511(a), as well as § 2511(b), in order to affirm. See In re B.L.W., 

843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Presently, we find that the 

certified record sustains the orphans’ court’s decision to terminate under §

2511(a)(2) and (b), which provides 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:

. . . .

(2) The 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.

. . . .

(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.
J-S53001-16

- 8 -

23 Pa.C.S. § 2511(a)(2) and (b).

To terminate parental rights pursuant to § 2511(a)(2), the moving 

party must produce clear and convincing evidence regarding the following 

elements: (1) repeated and continued incapacity, abuse, neglect or refusal; 

(2) such incapacity, abuse, neglect or refusal caused the child to be without 

essential parental care, control or subsistence necessary for his physical or 

mental well-being; and (3) the causes of the incapacity, abuse, neglect or 

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 

A.2d 1266, 1272 (Pa.Super. 2003). 

This Court has explained that, “[t]he grounds for termination due to 

parental incapacity that cannot be remedied are not limited to affirmative 

misconduct. To the contrary, those grounds may include acts of refusal as 

well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326, 

337 (Pa.Super. 2002) (citations omitted). Further, parents are required to 

make diligent efforts towards the reasonably prompt assumption of full 

parental responsibilities. Id. at 340. A parent’s vow to cooperate, after a 

long period of uncooperativeness regarding the necessity or availability of 

services, may properly be rejected as untimely or disingenuous. Id. 

In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme 

Court addressed the relevance of incarceration in termination decisions 

under § 2511(a)(2). The S.P. Court held that “incarceration is a factor, and 

indeed can be a determinative factor, in a court’s conclusion that grounds for 
J-S53001-16

- 9 -

termination exist under § 2511(a)(2) where the repeated and continued 

incapacity of a parent due to incarceration has caused the child to be without 

essential parental care, control or subsistence and that the causes of the 

incapacity cannot or will not be remedied.” Id. at 828. 

With respect to § 2511(b), this Court has explained the requisite 

analysis as follows: 

Subsection 2511(b) focuses on whether termination of parental 

rights would best serve the developmental, physical, and 

emotional needs and welfare of the child. In In re C.M.S., 884 

A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, 

“Intangibles such as love, comfort, security, and stability are 

involved in the inquiry into the needs and welfare of the child.” 

In addition, we instructed that the trial court must also discern 

the nature and status of the parent-child bond, with utmost 

attention to the effect on the child of permanently severing that 

bond. Id. However, in cases where there is no evidence of a 

bond between a parent and child, it is reasonable to infer that no 

bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 

2008). Accordingly, the extent of the bond-effect analysis 

necessarily depends on the circumstances of the particular case. 

Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

In this matter, the orphans’ court found as follows with respect to § 

2511(a)(2).

At the time of hearing on the petition to terminate his parental 

rights, Father continued to be incarcerated. A.J.W. was two 

years old, but Father had not seen A.J.W. in almost a year. 

Throughout A.J.W.’s placement, Father did correspond with 

caseworkers and the resource parents. Father testified that he 

participated in drug and alcohol and other programs while in 

prison. He testified that in the beginning of his incarceration he 

maintained contact with A.J.W. by sending books, via video, and 

in-jail visits. He said that he continued to correspond through 

letters[,] and that he sends pictures and cards through the foster 
J-S53001-16

- 10 -

family who does respond to him. Father did not explain how an 

infant or toddler could appreciate and recognize him as a father 

when he had such minimal contact, yet he asked to delay action 

on the petition for termination until his release from prison so 

that he could have the chance to prove he can raise his child.

Father has been charged multiple times over the last 18 years (a 

fairly regular occurrence during his adult life) with drug-related 

crimes, assault, harassment and the like. He has received jail 

sentences ranging in length from 18 to 48 months to 5 to 10 

years. His current incarceration is due to a 436 day to 5 year 

sentence. He anticipates being released in September 2016, 

almost a full year from the date of hearing in this matter. His 

maximum date is roughly the end of July 2018. Thereafter[,] he 

is to serve two years of probation. 

Trial Court Opinion, 1/28/16, at 5-6 (footnote omitted).

The certified record supports the court’s findings. CYS presented a 

summary from the Berks County Court of Common Pleas demonstrating that 

Father was arrested just weeks before his daughter’s birth and has remained 

incarcerated since that date. Father acknowledged that he engaged in the 

criminal activity resulting in his incarceration even though he knew Mother 

was expecting his child. N.T., 11/2/15, at 9-10. On October 3, 2014, Father 

pled guilty to crimes involving the manufacture, delivery, or possession of 

illegal drugs for which he received 436 days to five years of imprisonment. 

CYS Exhibit 20. In addition, Father received a two-year sentence of 

probation.

4

 Id. Father testified that he anticipated being released from 

____________________________________________

4 The court summary reveals that Father entered guilty pleas in 1999, 2001, 

2006, and 2007 in Lackawanna, Lehigh, and Monroe Counties for crimes 

(Footnote Continued Next Page)
J-S53001-16

- 11 -

prison on September 19, 2016, approximately one-year from the November 

2, 2015 termination hearing. N.T., 11/2/15, at 6. However, even assuming 

that Father is released at the earliest date possible, he still will have not had 

any physical contact with his now-toddler-aged daughter since the juvenile 

court suspended the fifteen-minute jailhouse visitations during July 2014. 

In addition, the orphans’ court reasoned: 

[Father] has not provided or arranged for the provision of 

“essential parental care, control or subsistence necessary for 

[A.J.W.’s] 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” because he still has almost 

another full year of incarceration left on his sentence if his 

anticipation is correct. Father’s conduct has contributed to the 

child’s removal from parental care and placement with a foster 

family, and Father simply cannot remedy his situation within a 

reasonable period of time. A.J.W. will be three years old before 

Father gets out of prison. A.J.W. deserves better than to be 

ripped from the only family she knows to be united with the man 

she does not know at some distant time in the future. 

Trial Court Opinion, 1/28/16, at 6. 

We discern neither an abuse of discretion nor legal error in the 

orphans’ court’s determination that Father’s repeated and continued 

incapacity due to incarceration has caused A.J.W. to be without essential 

parental care, control, or subsistence necessary for her physical and mental 

well-being, and that the causes of the incapacity cannot or will not to be 

remedied. See In re Adoption of S.P., supra. Accordingly, we do not 

(Footnote Continued) _______________________

involving illegal drugs, disorderly conduct, possession of firearms, and/or 

careless driving. CYS Exhibit 20. 
J-S53001-16

- 12 -

disturb the court’s conclusion that CYS satisfied its evidentiary burden of 

proving the statutory ground to terminate Father’s parental rights pursuant 

to § 2511(a)(2).

Next, we review the trial court’s needs-and-welfare analysis pursuant 

to § 2511(b). This Court has emphasized:

While a parent’s emotional bond with his or her child is a major 

aspect of the subsection 2511(b) best-interest analysis, it is 

nonetheless only one of many factors to be considered by the 

court when determining what is in the best interest of the child.

[I]n addition to a bond examination, the trial court 

can equally emphasize the safety needs of the child, 

and should also consider the intangibles, such as the 

love, comfort, security, and stability the child might 

have with the foster parent. 

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting 

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and 

citations omitted)). In addition, our Supreme Court stated that, “[c]ommon 

sense dictates that courts considering termination must also consider 

whether the children are in a pre-adoptive home and whether they have a 

bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013). 

Moreover, the High Court directed that, in weighing the bond considerations 

pursuant to Section 2511(b), “courts must keep the ticking clock of 

childhood ever in mind.” Id. at 269. The In re T.S.M. Court observed that, 

“[c]hildren are young for a scant number of years, and we have an 

obligation to see to their healthy development quickly. When courts fail . . . 

the result, all too often, is catastrophically maladjusted children.” Id. 
J-S53001-16

- 13 -

Instantly, the orphans’ court found that A.J.W. “knows no other 

parental bond than that which she has with [her] foster parents. There is no 

bond with Father. Termination of Father’s parental rights will cause no harm 

to the child, but rather will give her the chance to fulfill [her] potential in a 

permanent, healthy, safe environment with proper parenting.” Trial Court 

Opinion, 1/28/16, at 6. As the certified record does not reveal any evidence 

of a bond between Father and A.J.W., the orphans’ court properly concluded 

that no relationship existed between them. See In re Adoption of J.M., 

supra. 

Moreover, in contrast to the child’s non-existent attachment with 

Father, CYS adduced evidence to demonstrate that A.J.W. is closely bonded 

with her foster family, with whom she has resided since she was 

approximately seven months old. CYS Exhibit 21 at 12. Indeed, foster 

parents are the only parents that the nearly three-year-old-child has ever 

known. Accordingly, the orphans’ court did not err in concluding that 

terminating Father’s parental rights will serve the developmental, physical, 

and emotional needs and welfare of A.J.W. 

Finally, our independent review of the certified record revealed no 

preserved non-frivolous issue that would arguably support this appeal. 

Therefore, we grant counsel’s petition to withdraw and affirm the decree 

terminating Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and 

(b).
J-S53001-16

- 14 -

Petition of Gregory Ghen, Esquire, to withdraw from representation is 

granted. Decree affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/2016