J-S38016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: E.D.

APPEAL OF: L.D., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1871 EDA 2022

Appeal from the Decree Entered June 16, 2022

In the Court of Common Pleas of Wayne County

Civil Division at 18-AD-2022

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 29, 2022

L.D. (Father) appeals from the decree involuntarily terminating his 

parental rights to E.D. (Child).1In addition, Father’s counsel (Counsel), seeks 

to withdraw from representation pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2

Upon review, we grant Counsel’s petition, and affirm the termination decree.

Child was born in February 2019. On December 18, 2020, Wayne 

County Children & Youth Services (WCCYS) became involved with the family

at the request of the Pennsylvania State Police, who reported Father and 

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1 The court also terminated the parental rights of C.F. (Mother), who has 

appealed at 1872 EDA 2022.

2 Anders principles apply to appeals involving termination of parental 

rights. See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014).
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Mother’s suspected drug abuse. N.T., 6/7/22, at 4; see also Exhibit 1 

(Permanency Plan, 1/4/21, at 1). The WCCYS caseworker, Sarah Mooney, 

testified that Father

appeared impaired and was unable to care for the child. [Mother] 

was not present at the residence[.] ...

The agency did try to case plan with [Father] at the home and 

[Mother] over the phone to avoid protective custody, however, 

both parents were very combative and stated they did not want 

[Child] and to place [her], or to place [Child] in foster care.

Id. at 4.

The trial court adjudicated Child dependent on December 28, 2020. 

WCCYS established family service plan goals for Father of cooperating with 

the agency, maintaining sobriety, addressing his “mental health needs,”

attending anger management classes, providing a substance-free home for 

Child, and meeting Child’s basic needs. Id. at 43-45.

Ms. Mooney testified that initially Father “was not cooperative ... would 

not answer phone calls, or when he would answer phone calls, we could not 

understand anything he was saying.” Id. at 10. Because Father “was not 

cooperative with the agency or attending any visitation or it was very difficult 

to get a hold of him, we sent [Father’s family service plan] to him.” Id. at 11. 

Father “was arrested and incarcerated” in Sullivan County on March 15, 2021. 

Id. at 15. Prior to being incarcerated, Father was offered 11 visits, but 

“attended only one of those visits, so he had missed 10 of them.” Id.
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Father was in the Sullivan County Jail from March 15 – December 15, 

2021. Id. He did not have visitation during that time because the jail did not 

offer virtual visits. Id. When Father was moved to the Pike County

Correctional Facility on December 15, 2021, he missed 4 of “6 or 7” visits, 

“however it’s unclear whether it was the fault of the prison or if it was 

[Father’s] doing.” Id. at 16, 58.

Child’s placement experienced some “twists and turns.” Id. at 5. For 

example, Child was returned to Mother on October 15, 2021, but placed back 

with her foster parents a few weeks later, on November 1, 2021, after Mother 

tested positive for methamphetamine. Id. at 5-6. WCCYS also attempted 

kinship care. Child was placed with her maternal grandparents, although 

maternal grandmother was not permitted to be alone with Child. The 

placement was unsuccessful, and Child was removed from maternal 

grandparents’ care a few months after placement. Id. at 6-7; see also

Exhibit 1 (Permanency Plan, 1/4/21, at 1 (stating maternal grandparents 

“failed drug screens, [maternal grandfather] had a criminal record and 

[maternal grandmother] has a PFA against someone in NJ.”)). Child was 

placed with her foster parents three times and has remained with them since 

November 2021. Id. at 8.

The trial court conducted permanency review hearings and issued orders 

on January 4, 2021, October 12, 2021, November 1, 2021, and February 8, 

2022. On February 8, 2022, the trial court “found no compliance and minimal 
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progress with the permanency plan by Father.” Opinion and Decree, 6/16/22, 

at 2. On April 11, 2022, WCCYS petitioned for termination of Father’s parental 

rights. The trial court held a hearing on June 7, 2022. At that time, Child was 

three years old and had been in placement for 16 months. N.T., 6/7/22, at 

47, 122.

In addition to Ms. Mooney, WCCYS presented testimony from a licensed 

psychologist, Dr. Brittney Tunilo. WCCYS sought to introduce Dr. Tunilo’s

testimony “specifically as it regards [Dr. Tunilo’s] bonding evaluation” of 

Mother and Child. Id. at 78. The parties stipulated to Dr. Tunilo being an 

expert in forensic psychology. Id.

Father testified in opposition to termination. He testified by Zoom 

because he was incarcerated in Pike County. See N.T., 6/7/22, at 3, 113. 

Father stated he had accepted a plea for a misdemeanor and was awaiting 

sentencing; however, he also stated he had “pending charges from 2016, 

which ... is scheduled for trial for the beginning of July.” Id.

Father claimed he had cooperated with WCCYS “as far as anything that’s 

been made possible.” Id. Father referenced his completion of an anger

management program. Id. He claimed drug and alcohol counseling was not 

available in prison “because of Covid and the quarantine.” Id. at 115. As to 

mental health treatment, Father stated he “got an evaluation,” was “taking 

medication for anxiety and bi-polar,” and “see[s] the psychiatrist once every 
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six weeks.” Id. Father also testified that he had participated in every visit 

with Child “that was made available” to him. Id. at 118.

By decree entered June 16, 2022, the trial court terminated Father’s 

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

timely appealed. Father and the trial court have complied with Pa.R.A.P. 

1925.3

On September 21, 2022, Counsel filed his petition to withdraw with this 

Court. “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 

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

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 

1997)); see also In re V.E., 611 A.2d 1267 (Pa. Super. 1992) 

(extending Anders procedure to appeals from involuntary termination 

decrees).

To withdraw pursuant to Anders, counsel must:

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.

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3 After reviewing Father’s Rule 1925 concise statement, the trial court stated 

it “incorporates and adopts the entirety of the June 16, 2022 Opinion and 

Decree,” and “there are no issues which merit an appeal.” Statement of 

Reasoning, 8/4/22.
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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 Anders’ third requirement that counsel inform appellant 

of his rights in light of counsel’s withdrawal, this Court has held 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, the Pennsylvania Supreme Court has directed 

that Anders briefs must:

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, 978 A.2d at 361.

Here, Counsel avers in his petition that he conducted a conscientious 

examination of the record and found the appeal to be wholly

frivolous. Counsel also avers he mailed Father a letter explaining his rights

and attached a copy of the letter to his petition to withdraw. Counsel’s letter 

complies with the law, as it informs Father he may retain new counsel or 

proceed pro se and raise any additional arguments he deems worthy of our 

attention.
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Counsel’s Anders brief summarizes the facts and procedural history, 

includes issues that could arguably support Father’s appeal and Counsel’s 

assessment of why the issues are frivolous, with citations to the record and 

relevant legal authority. Because Counsel has complied with Anders, we 

review the issues presented in his brief. In addition, we “conduct an 

independent review of the record to discern if there are any additional, nonfrivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113 

A.3d 1246, 1250 (Pa. Super. 2015); see also Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (describing our 

duty as a “simple review of the record to ascertain if there appears ... to be 

arguably meritorious issues that counsel, intentionally or not, missed or 

misstated”).

Counsel presents the following questions on Father’s behalf:

1. Did the trial court err as a matter of law in determining that 

termination of parental rights of [Father] was in the best interests 

of the subject minor child?

2. Did the trial court err as a matter of law in determining that 

Wayne County Children and Youth Services had met its burden of 

proof in the involuntary termination of parental rights in this 

matter?

Anders Brief at 7. 

In reviewing the termination of parental rights,

our standard of review requires [us 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. As has been often stated, an 
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abuse of discretion does not result merely because the reviewing 

court might have reached a different conclusion. Instead, a 

decision may be reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, partiality, 

prejudice, bias, or ill-will.

As [the Supreme Court] discussed in In re: R.J.T., [9 A.3d 1179, 

1190 (Pa. 2010)], there are clear reasons for applying an abuse 

of discretion standard of review in these cases. [U]nlike trial 

courts, appellate courts are not equipped to make the fact-specific 

determinations on a cold record, where the trial judges are 

observing the parties during the relevant hearing and often 

presiding over numerous other hearings regarding the child and 

parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts 

could support an opposite result, as is often the case in 

dependency and termination cases, an appellate court must resist 

the urge to second guess the trial court and impose its own 

credibility determinations and judgment; instead, we must defer 

to the trial judges so long as the factual findings are supported by 

the record and the court’s legal conclusions are not the result of 

an error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations 

omitted).

CYS has the burden to prove by clear and convincing evidence that its 

asserted grounds for termination are valid. In re R.N.J., 985 A.2d 273, 276 

(Pa. Super. 2009). “[T]he standard of clear and convincing evidence is 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. Under 23 Pa.C.S.A. § 2511, “the court must 

engage in a bifurcated process prior to terminating parental rights.” In re

L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the focus is on the 

conduct of the parent pursuant to Section 2511(a). Id.
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Section 2511(a)

With respect to grounds for termination under Section 2511(a), we need 

only agree “as to any one subsection in order to affirm 

the termination of parental rights.” In re A.S., 11 A.3d 473, 478 (Pa. Super. 

2010). Instantly, we address the second subsection, which provides for 

termination when

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.

23 Pa.C.S.A. § 2511(a)(2). 

Subsection 2511(a)(2) “emphasizes the child’s present and future need 

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

or mental well-being.’” In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008)

(citation omitted). Grounds for termination under subsection (a)(2) are not 

limited to affirmative misconduct. Id. “Where the parent does not exercise 

reasonable firmness in declining to yield to obstacles, h[is parental] rights 

may be forfeited.” Id. at 83. Grounds for termination under § 2511(a)(2) 

may include acts of refusal as well as incapacity to perform parental duties. 

In re S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021). We have long recognized 

that a parent is required to make diligent efforts toward the reasonably prompt 

assumption of full parental responsibilities. In re Adoption of M.A.B., 166 

A.3d 434, 443 (Pa. Super. 2017).
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Pertinently, the Pennsylvania Supreme Court has addressed the 

relevance of incarceration in termination decisions under Section 2511(a)(2) 

in In re Adoption of S.P., 47 A.3d 817 (Pa. 2012). The Pennsylvania

Supreme Court expressly held that “incarceration is a factor, and indeed can

be a determinative factor, in a court’s conclusion that grounds for 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 (emphasis added). Our Supreme 

Court further explained 

incarceration, while not a litmus test for termination, can be 

determinative of the question of whether a parent is incapable of 

providing “essential parental care, control or subsistence” and 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. § 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d 

[883, 891 (Pa. 1986) ] (“[A] parent who is incapable of performing 

parental duties is just as parentally unfit as one who refuses to 

perform the duties.”); [In re] E.A.P., 944 A.2d [79, 85 (Pa.

Super. 2008) ] (holding termination under § 2511(a)(2) was 

supported by mother’s repeated incarcerations and failure to be 

present for child, which caused child to be without essential care 

and subsistence for most of her life and which cannot be remedied 

despite mother's compliance with various prison programs).

In re Adoption of S.P., 47 A.3d at 830 (footnote omitted).

As to Section 2511(a), Father claims WCCYS failed to meet its burden 

of proving grounds for termination by clear and convincing evidence. In 

contrast, WCCYS asserts the trial court
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correctly terminated Father’s parental rights where he failed to 

show any progress in reaching even one of the objectives in the 

[C]hild’s permanency plan over a period of time in excess of 15 

months, having only just begun anger management services at 

the time of the termination hearing[.]

WCCYS Brief at 7. Similarly, Child’s counsel states, “Father has failed to work 

[sic] many of the objectives in the plan despite having programs available to 

him in the jail.” Appellee Brief at 8. 

The trial court made the following findings:

1. Father attended 6 of 19 total visits offered with [Child].

2. Father was incarcerated at the Sullivan County Correctional 

Facility from March 15, 2021, to December 15, 2021.

3. Since December 15, 2021, Father has been incarcerated at the 

Pike County Correctional Facility.

4. There has been minimal interaction between Father and 

WCCYS.

5. There is no bond between Father and [Child].

Opinion and Decree, 6/16/22, at 3.

The court explained:

As to Father, he has been incarcerated for the majority of [Child’s] 

dependency and remains incarcerated at the Pike County 

Correctional Facility. Father has made little contact with WCCYS 

during [Child’s] dependency. Father has attended anger 

management services during his incarceration but has not 

participated in drug and alcohol services. There has been no bond 

observed between Father and [Child].

Id. at 7. The court concluded Father’s “failure to cooperate with WCCYS 

indicates [Father does not] possess the skillset to care for and nurture” Child. 

Id.
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The record supports the trial court’s determination. Caseworker Sarah 

Mooney testified that Father did not cooperate with the agency prior to being 

incarcerated. N.T., 6/7/22, at 10. For example, Father was offered 11 visits 

with Child but only attended one. Id. at 15. No visitation was offered from 

March 15, 2021, to December 15, 2021, when Father was incarcerated in 

Sullivan County. Id. Father was permitted virtual visits after being moved to 

a correctional facility in Pike County on December 15, 2021. Id. At 15-16. In 

total, when Father was not incarcerated or incarcerated in Pike County, he 

attended six of 19 — or 32% — of the visits WCCYS offered. Id. at 15.

Ms. Mooney testified that Father’s overall compliance with his family 

service plan was minimal. Id. at 42. Father attended an anger management 

program at the Pike County Correctional Facility. Id. However, Father did 

not participate in the individual drug and alcohol program available to him, 

and “reported that he did not have a substance use problem [and] stated the 

reason I am here is not due to drugs.” Id. at 44. Ms. Mooney further testified 

that Father

reported he met with the individual mental health counselor once 

while he was in Sullivan County Jail and once while he was in Pike 

County Jail. He does have the ability to seek individual mental 

health services or counseling services while he is incarcerated, 

however, he has not or I am not aware that he is, ... and when I 

discuss this with [Father] he had reported (inaudible) not like to 

talk to people.

Id. at 44-45. Ms. Mooney reiterated that drug and alcohol, mental health, 

parenting, and anger management programs were available to Father during 
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his incarceration. Id. at 59. Yet of the four programs, Father only participated 

in anger management. Id. at 59-60. Under the circumstances, Ms. Mooney 

could not identify a timeframe in which Child could “return home,” stating, 

“it’s undetermined.” Id. at 46.

At the conclusion of the hearing, Child’s counsel observed that Child’s 

“case has been pending for nineteen months. She has been in care for sixteen 

of those.” Id. at 125. Child’s counsel advocated for termination, stating:

As it relates to [F]ather, the dependency bench book is very 

clear in what the court should consider when you have an 

incarcerated parent. All those questions that have been asked 

here today. His rights can’t be terminated simply because he’s 

incarcerated and I don’t think that’s what [WCCYS] is arguing. I 

think that if you look at it there’s a lot more that could have been 

done. There’s always more that a parent can do while they’re 

incarcerated and I just don’t think that we have seen that 

demonstrated here today. So at this point in time I think it’s in 

[Child’s] best interest that [F]ather’s parental rights be 

terminated.

Id. at 127.

Consistent with the foregoing, the trial court concluded that Father’s 

incapacity to parent caused Child to be without essential care, and the 

incapacity cannot or will not be remedied. 23 Pa.C.S.A. § 2511(a)(2). We 

discern no error.

Section 2511(b)

Father also claims the trial court erred in terminating his parental rights

under Section 2511(b), which requires the trial court “give primary 
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consideration to the developmental, physical and emotional needs and welfare 

of the child.”

“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.” In

re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). When the court considers a 

child’s needs and welfare, the “extent of any [parental] bond analysis ... 

necessarily depends on the circumstances of the particular case.” In re 

K.Z.S., 946 A.2d 753, 763 (Pa. 2008).

[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. Additionally, this 

Court stated that the trial court should consider the importance of 

continuity of relationships and whether any existing parent-child 

bond can be severed without detrimental effects on the child.

In re A.S., 11 A.3d at 483 (citations omitted).

Here, the trial court explained:

As to the best interests of [Child] under 23 Pa.C.S.A. § 2511(b), 

WCCYS presented credible evidence that termination of parental 

rights would best serve [Child’s] needs and welfare. Testimony 

indicated [Child] is bonded with Mother. Testimony also 

confirmed [Child] is bonded with the family that has been 

identified to provide permanency for her. The parental obligation 

is a positive duty that requires affirmative performance. In re 

Z.P., 994 A2d 1108, 1119 (Pa. Super. 2010) (citing In re B.,N.M., 

856 A.2d 847, 855 (Pa. Super. 2004)). Parental rights are not 

preserved by waiting for a more suitable or convenient 

time to perform one’s parental responsibilities while others 
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provide [for the child’s] physical and emotional needs. Id.

(emphasis in original).

***

[I]t is in the best interest of [Child] that the parental rights be 

terminated. This will allow [Child] the permanency she deserves.

Opinion and Decree, 6/16/22, at 7-8.

The record supports the trial court’s decision.

[Child] was placed in foster care with [foster parents] multiple 

times throughout her dependency. She returned to the care of 

[foster parents] for the third time on February 18, 2022. There is 

a bond between [Child and foster parents, who are an “adoptive 

resource”].

Id. at 3; see also N.T., 6/7/22, at 18, 47 (Ms. Mooney opining that foster 

parents have an established bond with Child, who is doing well and “adjusted 

quickly to her return” to foster parents). 

Also, while Dr. Tunilo primarily discussed Child’s bond with Mother, Dr. 

Tunilo stated that Child would experience a “second trauma” if removed from 

her foster family. Id. at 82. Dr. Tunilo confirmed it would be detrimental 

“because [Child] would be losing the bond between her and her foster family 

and would have to, again, readjust[.]” Id. at 83.

We discern no error in the trial court’s termination of Father’s parental 

rights under 23 Pa.C.S.A. § 2511(b). Further, our review reveals no arguably 

meritorious issues Father could raise on appeal. See Dempster, 187 A.3d at 

272. Accordingly, we grant Counsel’s petition to withdraw from 
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representation, and affirm the termination of Father’s parental rights pursuant 

to 23 Pa.C.S.A. § 2511(a)(2) and (b).

Petition to withdraw granted. Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2022