J-S94018-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF H.D.S., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.G., MOTHER

No. 1510 MDA 2016

Appeal from the Decree entered August 19, 2016

in the Court of Common Pleas of Lancaster County,

Orphans' Court, at No(s): 545 of 2016.

BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.* 

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2017

Appellant, C.G., (“Mother”), appeals from the decree entered in the 

Lancaster County Court of Common Pleas, which terminated her parental 

rights to her minor daughter, H.D.S., pursuant to the Adoption Act, 23 

Pa.C.S. § 2511(a) and (b). Counsel for Mother has also filed with this Court 

both an application for leave to withdraw as counsel and a brief pursuant to 

Anders v. California, 87 S. Ct. 1396 (1967). We grant counsel’s 

application for leave to withdraw and affirm the decision of the Orphans’ 

Court.

The relevant facts and procedural history are as follows: Child was 

born to Mother and Q.S. (“Father”) in August 2004. Pursuant to a court 

order entered in April 2006, Child has been in the sole legal and primary 

physical custody of P.S. and R.S. (“Paternal Grandparents”), and Mother has 
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been awarded periods of visitation. On March 8, 2016, Paternal 

Grandparents filed a petition to confirm the consent to adoption given by 

Father, and to involuntarily terminate Mother’s parental rights (“TPR 

Petition”). The TPR Petition was served on Mother on March 31, 2016.

The Orphans’ Court held an evidentiary hearing on August 19, 2016. 

Both Paternal Grandparents testified. Mother presented her own testimony, 

as well as testimony from M.S., her aunt. At the request of the Orphans’ 

Court, Child testified in chambers. The court made the following factual 

conclusions:

The [c]ourt found the testimony of [Paternal 

Grandparents] and Child to be credible and persuasive. 

Conversely, the [c]ourt found that [M.S.’s] testimony and 

Mother’s testimony was inconsistent and lacked credibility.

The [c]ourt finds the following evidence relevant and 

persuasive. Both [Paternal Grandparents] and Mother 

agree that, for the first two months of her life, [Child] lived 

between [the parties]. Since October 2004, [Child] 

primarily resided with [Paternal Grandparents]. [Child] 

was returned to Mother’s care in December 2004. That 

evening, Mother was having difficulty with [Child], who 

was fussy and not used to Mother. Mother brought [Child] 

to the home of [M.S.], who intervened on Mother’s behalf 

and contacted [Paternal Grandparents]. [The parties] 

signed a written custody agreement and Child was 

returned to [Paternal Grandparents]. Since that time, 

[Paternal Grandparents] have been performing all rights, 

duties, and responsibilities for Child. Mother testified that 

she saw Child on two occasions since 2004.

Orphans’ Court Opinion, 9/23/16, at 2-3.

That same day, the court issued a decree confirming Father’s consent 

to adoption and terminating Mother’s parental rights pursuant to 23 Pa.C.S. 
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§ 2511(a)(1) and (b). Mother filed this timely appeal, as well as a 

statement pursuant to Pa.R.A.P. 1925(b). On October 26, 2016, Mother’s 

counsel filed an application to withdraw as counsel and a brief pursuant to 

Anders.

The Anders brief raises the following issue:

A. Whether [Paternal Grandparents] produced sufficient 

evidence to support granting their request to 

involuntarily terminate Mother’s parental rights.

Anders Brief at 5.

Initially, we address the Anders brief and application seeking 

permission to withdraw. The principles that guide our review are as follows:

When counsel files an Anders brief, this Court may not 

review the merits without first addressing counsel’s 

request to withdraw. Commonwealth v. Washington, 

63 A.3d 797, 800 (Pa. Super. 2013). In In re V.E., 417 

Pa. Super. 68, 611 A.2d 1267 (Pa. Super. 1992), this 

Court extended the Anders principles to appeals involving 

the termination of parental rights. Id. at 1275. In these 

cases, counsel appointed to represent an indigent parent 

on a first appeal from a decree involuntarily terminating 

parental rights may petition this Court for leave to 

withdraw representation and submit and Anders brief. In 

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

review counsel’s Anders brief for compliance with the 

requirements set forth by our Supreme Court in 

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(Pa. 2009). 

[W]e hold that in the Anders brief that accompanies 

court-appointed counsel’s petition to withdraw, counsel 

must: (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) states counsel’s reasons for 
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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.

Id. at 361.

Additionally, pursuant to Commonwealth v. Millisock, 

873 A.2d 748 (Pa. Super. 2005) and its progeny, 

“[c]ounsel also must provide a copy of the Anders brief to 

his client. Attending the brief must be a letter that advises 

the client of his right to: (1) retain new counsel to pursue 

the appeal; (2) proceed pro se on appeal; or (3) raise any 

points that the appellant deems worthy of the court[‘]s 

attention in addition to the points raised by counsel in the 

Anders brief.” Commonwealth v. Orellana, 86 A.3d 

877, 880 (Pa. Super. 2014) (internal quotation marks and 

citation omitted). “Once counsel has satisfied the above 

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.” Commonwealth v. Goodwin, 928 A.2d 

287, 291 (Pa. Super. 2007) (en banc), quoting 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. 

Super. 2004).

In re X.J., 105 A.3d 1, 3-4 (Pa. Super. 2014).

Here, we conclude that Mother’s counsel has complied with the 

requirements as set forth above. Counsel has provided Mother with a copy 

of the Anders brief and indicated in his correspondence that Mother may 

proceed pro se or retain new counsel. In his brief, counsel references facts 

of record that might arguably support Mother’s appeal and sets forth his 

conclusion that the appeal is frivolous. See Anders Brief at 13-14. 

Accordingly, we undertake our independent review of the record to 

determine whether Mother’s appeal is wholly frivolous.
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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.” In re Adoption of 

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported, 

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

or abused its discretion.” Id. We may reverse a decision based on an abuse 

of discretion only upon demonstration of “manifest unreasonableness, 

partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however, 

merely because the record would support a different result.” Id. at 827. 

We give great 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). The Orphans’ 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. In re M.G., 855 A.2d 

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination 

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

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) 

(en banc).

The burden is upon the petitioner to prove by clear and convincing 

evidence that the asserted grounds for seeking the termination of parental 

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We 

have explained that “[t]he standard of clear and convincing evidence is 
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defined as testimony 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.” Id. (citations omitted).

Section 2511(a)(1) provides that the trial court may terminate 

parental rights if the Petitioner establishes that for six months, the parent 

demonstrated a settled intent to relinquish a parental claim or a refusal or 

failure to perform parental duties:

a) 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 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). This Court has interpreted this provision as 

requiring the Petitioner to demonstrate a settled intent to relinquish a 

parental claim to a child or a refusal or failure to parent:

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.

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations 

omitted). 
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This Court has defined “parental duties” in general as the obligation to 

affirmatively and consistently provide safety, security and stability for the 

child:

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 ... 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 himself to take and maintain a place of 

importance in the child’s life. 

Id. 

Moreover, a parent must exercise reasonable firmness in 

resisting obstacles placed in the path of maintaining the parent 

child relationship: 

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. 

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations 

omitted).
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And most importantly, “parental rights are not preserved by waiting 

for a more suitable or convenient time to perform one’s parental 

responsibilities while others provide the child with her physical and 

emotional needs.” Id.

In the instant case, the Orphans’ Court properly concluded that the 

Agency met the requirements of Section 2511(a)(1). Applying the above 

standards, the Orphans’ Court concluded:

The record is clear, Mother did not contact [Paternal 

Grandparents] or the Child in the six months prior to her 

receipt of the termination petition. . . . She has not 

provided any type of emotional or financial support to 

[Child], has not made any attempts at maintaining contact 

with [Child], and has not used any of the resources at her 

disposal to maintain a place of importance in [Child’s] life. 

Mother failed in all respects to perform parental duties or 

responsibilities within that time period, and arguably 

throughout [Child’s] whole life.

***

By Mother’s own testimony, she attempted to call [Paternal 

Grandparents] only a few times before she stopped 

completely. Mother did not ask [Paternal Grandparents] 

for contact. Mother testified the she gave up and did 

nothing else thereafter. The last time Mother saw [Child] 

was over eight years ago. Mother clearly failed to exert 

herself to establish and maintain a place of importance in 

[Child’s] life.

***

Mother argues that [Paternal Grandparents] created an 

insurmountable obstacle to her maintaining a parent-child 

relationship and contact with [Child]. The Court does not 

find this argument credible.

Child has not seen Mother for at least eight years. 

[Paternal Grandparents] have not hidden [Child] from 

Mother. [They] have resided in the same home since 
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before Child’s birth. Mother knew where [they] lived. 

[Paternal Grandparents] did not withhold any mail from 

Mother addressed to [Child], Mother testified that she did 

not send any cards, letters, or presents to [Child]. Mother 

made no attempts to contact [Child] through her family 

members, who had intervened on her behalf before. 

Mother presented no evidence that she inquired into 

[Child’s] well-being from any individual who had contact 

with [Child].

Outside of contacting [Paternal Grandparents] or Child 

directly, Mother had other reasonable avenues available to 

her to maintain contact with [Child]. [Child] is the subject 

of an active custody order. Mother made no effort to 

enforce visits, as provided by the custody order. 

Moreover, with the existence of a custody order, Mother 

could have sought to modify the custody order. Mother 

did not initiate any action in the custody matter.

Despite having resources to maintain contact with [Child] 

Mother exerted no effort whatsoever to be a part of 

[Child’s] life. Mother testified that she was young and 

stupid when [Child] was born and could not handle raising 

[Child]. Mother’s inability to parent [Child] is no different 

than refusing to perform parental duties and 

responsibilities. The Court found that Mother did not 

utilize all, or really any, of the resources available to her to 

maintain a relationship with [Child].

Orphan’s Court Opinion, 9/23/16, at 4-7 (citation omitted).

Our review of the record amply support’s the Orphans’ Court’s 

conclusions. It was for the Orphans’ Court, as a matter of credibility, to 

accord the weight to be given Mother’s testimony. In re M.G., supra. The 

court did not abuse its discretion concluding that Mother “evidenced a 

settled purpose of relinquishing her parental claim” to Child, and has failed 

to perform any parental duties during the relevant time period. Orphans’ 
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Court Opinion at 7. Accordingly, the Orphans’ Court properly terminated 

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1).

We also agree with the Orphans’ Court’s determination that, pursuant 

to 23 Pa.C.S. § 2511(b), termination of Mother’s parental rights is in the 

best interest of Child. 

With respect to Section 2511(b), our analysis shifts focus from 

parental actions in fulfilling parental duties to the effect that terminating the 

parental bond will have on the child. Section 2511(b) “focuses on whether 

termination of parental rights would best serve the developmental, physical, 

and emotional needs and welfare of the child.” In re: Adoption of J.M., 

991 A.2d 321, 324 (Pa. Super. 2010).

In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court 

found that “intangibles such as love, comfort, security, and stability are 

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

the orphans’ court must also discern the nature and status of the parentchild bond, with utmost attention to the effect on the child of permanently 

severing that bond. Id. In cases where there is no evidence of a bond 

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

In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the extent of 

the bond-effect analysis necessarily depends on the circumstances of the 

particular case. Id. at 763.
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In the instant case, the Orphans’ Court provided the following rationale 

to support its conclusion that termination of Mother’s parental rights was in 

Child’s best interest:

The Court is persuaded by the totality of the evidence, as 

well as the Guardian ad litem’s recommendation, that 

termination of Mother’s parental rights in furtherance of 

adoption is in [Child’s] best interest. Mother has been 

either unwilling or unable to meet [Child’s] basic needs for 

an inordinate amount of years. Mother’s lack of 

involvement began when [Child] was just a few months 

old. Mother’s own testimony and actions are direct 

evidence that any parent-child relationship they shared 

ended years ago.

[Child] has no meaningful contact with Mother. She is 

currently twelve years old and has not seen Mother since 

she was an infant. For over 95% of her life, [Child] has 

had no contact with Mother. She is not bonded to Mother. 

In fact, she testified she would not recognize Mother if she 

saw her. Therefore, the Court found that terminating 

Mother’s parental rights would not be detrimental to 

[Child’s] well-being or destroy an existing, necessary or 

beneficial relationship between the Child and Mother.

Conversely, [Paternal Grandparents] have provided [Child] 

with the love, comfort and security that Mother has failed 

to provide. [Child] has been living as an intact family with 

[Paternal Grandparents] since December 2004. They have 

maintained a continuous parent-daughter relationship. It 

was not until Father’s girlfriend told [Child] that Father was 

her father that [Child] was even made aware that 

[Paternal Grandparents] were not her parents. [Paternal 

Grandparents] have provided for [Child’s] physical, 

emotional, and mental well-being. She is at an age where 

stability and consistency are crucial. [Paternal 

Grandparents] provide the stability and permanency that 

[Child] needs and deserves. 

Based upon the totality of the record and for the 

reasons set forth above, the Court found that the 

developmental, physical and emotional needs and welfare 
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of [Child] would be met and enhanced by the termination 

of the parental rights of Mother, so that [Child] may be 

adopted.

Orphans’ Court Opinion, 9/23/16, at 8-9.

Once again, our review of the record amply supports the Orphans’ 

Court’s conclusions. Additionally, we note Child’s preference to not see her 

Mother and her wish to be adopted by Paternal Grandparents. See N.T., 

8/19/16, at 124-38. 

In sum, our review of the record supports the conclusion by Mother’s 

counsel that the issue Mother wished to raise on appeal is frivolous. Thus, 

we agree with the Orphans’ Court’s conclusion that the Paternal 

Grandparents met their burden of proving by clear and convincing evidence 

that Mother’s parental rights should be terminated pursuant to 23 Pa.C.S. §§ 

2511(a)(1) and 2511(b). Further, our independent review of the record 

reveals no non-frivolous claims that Mother could have raised. Accordingly, 

we grant Mother’s counsel’s application to withdraw and affirm.

Application to Withdraw granted. Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2017