J-S19018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: TERMINATION OF PARENTAL 

RIGHTS TO L.J.A., A MINOR

APPEAL OF: K.K., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 294 MDA 2023

Appeal from the Decree Entered January 12, 2023

In the Court of Common Pleas of Lancaster County Orphans' Court at 

No(s): 2022-01554

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 1, 2023

K.K. (“Father”) appeals from the decree terminating his parental rights 

to L.J.A. (“Child”). Father’s counsel has filed an Anders1 brief and application 

for leave to withdraw. For the reasons set forth below, we affirm the decree 

and grant counsel’s application to withdraw.

Child was born to K.K. and E.A. (“Mother”) in 2021. Decree, 1/12/23, at 

¶ 1. The Lancaster County Children and Youth Social Service Agency (“the 

Agency”) became involved when Mother began experiencing withdrawal

symptoms during labor and Child began experiencing withdrawal symptoms 

hours after her birth. Trial Court Opinion, filed Jan. 12, 2023, at 2 

(unpaginated).2 Mother was incarcerated for drug use shortly thereafter, and 

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1 Anders v. California, 386 U.S. 738 (1967).

2 The trial court relied on this opinion to satisfy its obligation under Pa.R.A.P. 

1925(a).
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after Child was released from the hospital, Child was placed with foster parents 

who are the adoptive parents of one of Mother’s other children. Child’s older 

sister, L.M.A., was removed from Mother’s care at the same time.

The court adjudicated the children dependent in April 2021. Father did 

not attend the adjudication and disposition hearing. “Father’s reunification 

objectives were to be financially stable to provide for himself and his children, 

obtain and maintain a home free and clear of hazards for himself and his 

children, to maintain an ongoing commitment to his children, and to undergo 

an assessment once paternity was established.” Id. at 3. Father’s paternity 

was confirmed in June 2021. The court held permanency review hearings in 

early and mid-2022, at which it found Father had been minimally compliant 

with his reunification objectives and changed Child’s permanency plan from 

reunification to adoption. Id. at 5-6.

The Agency filed petitions to terminate the parental rights of both 

parents as to both Child and her older sister, L.M.A., in June 2022. The court 

held a hearing on the petitions in December 2022. Relevant to the termination 

of Father’s parental rights to Child,3the court heard the testimony of Father;

paternal grandmother, R.A.; and a caseworker, Krista Rankin. The court 

summarized the relevant evidence presented at the hearing as follows:

At the time of the hearing, Father was incarcerated since 

early November 2022 for driving with a suspended license. Father 

testified he had been employed full-time and providing child 

support until that point; he did not report income to the Agency

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3 Mother consented to Child’s adoption.
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or alert them he was paying support. Father agreed he had not 

visited Children since August 2021 and had not communicated 

with the Agency about changing visitation to fit his work schedule. 

Father had undergone a biopsychosocial evaluation that referred 

him for a parenting capacity evaluation, which Father did not 

complete. Father testified that he had contacted the evaluator’s 

officer personally and was told the evaluation would cost $2,000; 

he did not discuss the prohibited cost with his caseworker, who 

testified at the hearing she had previously told Father he did not 

have to pay for the evaluation.

Father had not engaged in mental health treatment and had 

not been drug screened since 2021 due to the Agency’s difficulty 

reaching him. He resided in housing inappropriate for Children 

until his November 2022 incarceration and had never participated 

in parenting classes because of incomplete evaluations. Father 

testified he was not sure why he wanted his parental rights to 

Children, except that he did not trust the system because the 

Agency had moved L.M.A. to a home where there were sexual 

allegations.

Father presented Children’s paternal grandmother, [R.A.], 

as a potential kinship placement for Children. [R.A.] had been 

unavailable to take Children when first asked by the Agency in 

August 2021. Once she became available, she did not pursue 

kinship placement until recently. [R.A.] testified she could not be 

an immediate kinship placement because she had just met [Child] 

the day of the hearing and needed to start small to get “to that 

choice.” She testified she wanted visits with Children and the 

chance to be there for Children.

Id. at 7-8.

The court found termination of Father’s parental rights to Child was 

warranted under Sections 2511(a)(1) and 2511(a)(2). It found Father’s only 

role in Child’s life for the preceding 16 months was “one of mere financial 

obligation.” Id. at 11. The court noted Father had not visited Child since 

August 2021 and had made no efforts to do so since October 2021. It found 

Father had “made little to no progress on any of his goals in the [18] months 
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because he failed to communicate with the Agency or engage with his 

permanency plan objectives.” Id. It observed that Father reported 

inappropriate housing for the duration of the case. It added that while he had 

completed an initial biopsychosocial evaluation, he did not follow through with 

mental health treatment, comply with drug screening, or complete the intake 

paperwork and evaluations needed for parental education. Id. at 11-12. The 

court noted that as of the termination hearing, Father was again incarcerated. 

Id. at 11. The court concluded, “Father’s instability and lack of personal 

commitment to [the c]hildren show a refusal by him to perform his parental 

duties to [the c]hildren for the last [21] months.” Id. at 12. It further 

concluded that Father’s “lack of effort to perform essential duties or ask how 

[the c]hildren are doing . . . prove[s] by clear and convincing evidence that 

Father’s refusal to provide care will not be remedied.” Id. at 14.

Next, the court concluded that termination of Father’s parental rights 

was warranted under Section 2511(b), as termination would best serve Child’s 

welfare. Id. at 16. It stated,

The court heard testimony . . . about how [Child] has lived in a 

potentially permanent resource home since March 2021 and 

considers her resource parents to be [her] mother and father. 

[Child] has family and church supports in her placement. [Child] 

has been in Agency care since days after her birth in March 2021, 

and Father has no parental bond to speak of. His paternity was 

not confirmed until June 2021, and his last contact with [Child] 

was in August 2021. The court did not hear testimony regarding 

[Child]’s attachment to Father, and Father did not testify he loved 

[Child], or that she had a relationship with him.
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Id. The court accordingly entered a decree terminating Father’s parental 

rights to Child, and Father appealed.

As stated above, counsel filed an Anders brief and application for leave 

to withdraw as counsel. We must pass on the merits of the request before 

reaching the substantive merits of the appeal. In re Adoption of B.G.S., 240 

A.3d 658, 661 (Pa.Super. 2020).

To withdraw pursuant to Anders, counsel must comply with the 

following requirements:

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.

Counsel must provide this Court with a copy of the letter advising 

the appellant of his or her rights. 

Additionally, our Supreme Court has sent forth the following 

requirements for Anders briefs:

(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.

Id.
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The Anders brief states that counsel was unable to identify any nonfrivolous issues for appeal and sets forth counsel’s belief that the appeal is 

wholly frivolous. Counsel has summarized the pertinent facts, giving citations 

to the record, and has outlined the applicable law. Counsel has attached to 

her application a copy of the letter she sent to Father on March 31, 2023, 

enclosing both a copy of the application and a copy of the Anders brief, and 

advising Father that he has the right to retain another attorney or represent 

himself and raise any additional issues. As of July 1, 2023, Father has not 

responded.

We find counsel has substantially complied with Anders and its 

progeny, and therefore turn to our own independent review of the record “to 

discern if there are any additional, non-frivolous issues overlooked by 

counsel.” Id. at 662 (citation omitted).

We review a court’s decision to terminate parental rights for an error of 

law or abuse of discretion. In re Adoption of K.C., 199 A.3d 470, 473 

(Pa.Super. 2018). “We accept the findings of fact and credibility 

determinations of the trial court if the record supports them.” Id.

The party requesting termination of parental rights “bears the burden of 

establishing grounds for termination by clear and convincing evidence.” Id. at 

473 (internal quotation marks and citation omitted). This calls for evidence 

“that is so clear, direct, weighty, and convincing as to enable the trier of fact 

to come to a clear conviction, without hesitation, of the truth of the precise 

facts in issue.” Id. (citation omitted). The party must carry its burden to prove 
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grounds for termination under any subsection of Section 2511(a) of the 

Adoption Act, and whether termination serves the best interest of the child, 

as set forth in subsection (b). See In re L.M., 923 A.2d 505, 511 (Pa.Super. 

2007).

Here, the court first found the Agency had presented clear and 

convincing evidence that termination was warranted under both subsections

(a)(1) and (a)(2). Subsection (a)(1) provides:

(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.

23 Pa.C.S.A. § 2511(a)(1). In other words, subsection (a)(1) requires clear 

and convincing evidence “that the parent’s conduct during the six months 

preceding the filing of the termination petition demonstrate . . . a refusal or 

failure to perform parental duties.” In re Adoption of K.C., 199 A.3d at 473-

74. A parent’s obligation to perform parental duties requires affirmative action 

rather than “a merely passive interest in the development of the child.” In re 

B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (quoting In re C.M.S., 832 

A.2d 457, 462 (Pa.Super. 2003)). It “encompasses more than a financial 

obligation; it requires continuing interest in the child and a genuine effort to 

maintain communication and association with the child.” Id. (quoting In re 

C.M.S., 832 A.2d at 462). Nonetheless, “[t]he rights of a parent shall not be 
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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.” 23 Pa.C.S.A. § 2511(b) (emphasis 

added).

The challenge to the sufficiency of the evidence to the termination of 

Father’s rights pursuant to subsection (a)(1) is frivolous. According to the 

record, for a period of at least six months preceding the filing of the petition, 

Father refused or failed to perform parental duties. Father has never directly 

cared for Child. He did not obtain suitable housing or comply with the other 

directives that would allow him to care for Child. There is no evidence that it

was not within Father’s power to comply with these objectives in the six 

months preceding the filing of the petition, or even after the filing of the 

petition, before Father was incarcerated. Moreover, Father has not visited or 

otherwise associated with Child since August 2021, when Child was only a few 

months old, nearly a year before the petition was filed. There is no reasonable 

basis in the record on which to challenge the finding of termination under 

subsection 2511(a)(1). 

As the termination under subsection 2511(a)(1) are not assailable on 

this record, we need not consider the court’s alternate finding under

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

(en banc) (“we need only agree with [the trial court’s] decision as to any one 

subsection [of Section 2511(a)] in order to affirm the termination of parental 

rights”).
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We turn to the court’s finding that termination best suits “the 

developmental, physical and emotional needs and welfare of the child.” See 

23 Pa.C.S.A. § 2511(b). This includes both an analysis of the child’s bond with 

her biological parent, if any, and an assessment of her pre-adoptive home, 

with consideration of the child’s “developmental, physical, and emotional 

needs, including intangible needs of love, comfort, security, safety, and 

stability.” Interest of K.T., --- A.3d ----, Nos. 37 & 38 WAP 2022, 2023 WL 

4092986, at *18 (Pa. filed June 21, 2023).

We again find no basis in the record on which to contest the court’s 

finding that termination is in Child’s best interest pursuant to subsection 

2511(b). It is undisputed that Child has lived in her pre-adoptive home since 

days after her birth in Spring 2021 and considers her pre-adoptive parents to 

be her mother and father. Meanwhile, the evidence does not suggest that 

Father or R.A. have any parental bond with Child. Allowing for Child’s adoption 

by her foster parents would therefore best serve her need for “love, comfort, 

security, safety, and stability.” Id.

Our independent review of the record reveals no non-frivolous basis on 

which to challenge the trial court’s decision to terminate Father’s parental 

rights to Child. We therefore affirm the decree and grant counsel’s application 

to withdraw.

Decree affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/01/2023