J-S87037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.W.R.R., A                  IN THE SUPERIOR COURT OF
MINOR                                                  PENNSYLVANIA




APPEAL OF: K.W.W., FATHER

                                                     No. 1028 MDA 2016


                 Appeal from the Order Entered May 24, 2016
               In the Court of Common Pleas of Dauphin County
           Orphans' Court at No(s): 023-AD-2016 CP-22-DP-67-2014


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

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

        K.W.W. (Father)1 appeals from the trial court’s order involuntarily

terminating his parental rights to his minor daughter, M.W.R.R. (born

11/2013) and changing M.W.R.R.’s placement goal to adoption. 2             In
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Child’s guardian ad litem joins in the brief filed by Appellee, Dauphin
County Social Services for Children and Youth, agreeing with its position that
termination of Father’s parental rights is in the best interest of Child.
2
  When reviewing a trial court’s decision to grant or deny a termination of
parental rights petition, an appellate court should apply an abuse of
discretion standard, accepting the findings of fact and credibility
determinations if they are supported by the record, and reversing only if the
trial court made an error of law or abused its discretion. In re D.C.D., 105
A.3d 662, 670-71 (Pa. 2014), citing In re Adoption of S.P., 47 A.2d 817,
826 (Pa. 2012). “A decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness, partiality, prejudice,
(Footnote Continued Next Page)
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addition, Father’s counsel has filed an application to withdraw on appeal,

together with an Anders3 brief, averring the appeal is frivolous.         After

careful review, we affirm and grant counsel’s application to withdraw.4

                       _______________________
(Footnote Continued)

bias, or ill-will.” Id. An appellate court employs a de novo standard of
review, however, when faced with questions of law, such as whether an
agency must provide reasonable services to a parent before a court may
grant a petition seeking termination of parental rights. In re Adoption of
S.E.G., 901 A.2d 1017 (Pa. 2006).
3
    Anders v. Santiago, 386 U.S. 738 (1967).
4
  Father’s counsel has filed an application for leave to withdraw. See In re
V.E., 611 A.2d 1267 (Pa. Super. 1992) (extending Anders briefing criteria
to appeal from decrees involuntarily terminating parental rights).          To
withdraw, 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. In the Interest of
J.J.L., 2016 PA Super 249, at *8 (Pa. Super. filed Nov. 15, 2016). We
further review counsel's Anders brief for compliance with the requirements
set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In his
brief, counsel must also: (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. We conclude
that counsel has satisfied the first requirement of Anders by filing a motion
to withdraw, wherein he asserts that he has made a conscientious review of
the record and determined the appeal would be frivolous. Likewise, counsel
has satisfied the second requirement by filing an Anders brief that complies
with the requirements set forth in Santiago, supra. With respect to the
third requirement, counsel has attached to the motion to withdraw a copy of
the letter sent to Father advising him of his rights, and enclosed a copy of
(Footnote Continued Next Page)


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      In February 2014, when Child was three months old, Dauphin County

Social Services for Children and Youth (“Agency”) was notified that Child’s

parents were using illegal drugs.                Parents tested positive for opiates,

oxycodone, benzodiazepines, and marijuana.                In May 2014, the Agency

received court-ordered protective custody of Child. On May 19, 2014, Child

was adjudicated dependent as a result of Parents overdosing on heroin and

being arrested. Child was placed in a pre-adoptive foster home where she

currently resides. The Agency implemented a family service plan (“FSP”) for

Parents to promote their reunification with Child.            Father’s FSP objectives

required him to:

             Attend all court hearings, agency meetings, and treatment
              plan meetings;

             Cooperate with the Agency and comply with its directives;

             Participate in all scheduled visits with Child;

             Participate in Child’s health care appointments;

             Participate in family reunification services;

             Maintain safe, sanitary housing;

             Obtain a drug/alcohol evaluation;

             Complete all recommended drug treatment plans; and

             Refrain from using illegal drugs.




                       _______________________
(Footnote Continued)

the Anders brief. Hence, we conclude that counsel has complied with the
Anders requirements and proceed to a review of the merits.



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        Over the following months, Father successfully completed an inpatient

drug/alcohol treatment program; however, he achieved no other FSP

objectives. In August 2014, Father was incarcerated for various probation

violations. The following month, Father was hospitalized for another heroin

overdose. Father failed to participate in permanency review hearings held in

August and November 2015. On April 6, 2016, the Agency petitioned for the

involuntary termination of Father’s parental rights on the basis of 23 Pa.C.S.

2511(a)(1), (2), (5), (8) and (b) of the Adoption Act. 5 Subsequently, Father

expressed his intention to voluntarily relinquish his parental rights to Child.

At Father’s request, the court arranged for Father to participate in the

termination proceeding via teleconference. However, on the scheduled date

of the termination hearing, Father decided not to participate and, instead,

chose to participate in recreational activities in prison.

        After the hearing, at which the Agency presented evidence, the trial

court found, by clear and convincing evidence, that termination was proper

and in Child’s best interests. On May 24, 2016, the court entered its order

terminating Father’s parental rights to Child and changing the goal to

adoption.     This timely appeal follows.        On appeal, Father presents the

following issue for our review:         Did the trial court abuse its discretion, or

commit an error of law by ordering a goal change to adoption and the


____________________________________________


5
    23 Pa.C.S. §§ 2101-2910.



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involuntary termination of [F]ather’s parental rights, although the agency

failed to make reasonable efforts to enable [F]ather to achieve timely

reunification with his child?

      Father claims that the Agency was “required to make reasonable

efforts – over a reasonable period of time – to promote [his] reunification

with [C]hild.” Appellant’s Brief, at 8. Because the Agency did not transport

the Child to his place of confinement for visits, Father asserts that he was

unable to form a bond with Child. Father claims that to terminate his rights

under such circumstances was an abuse of discretion.

      In In re D.C.D., supra, our Supreme Court held that:

      Neither subsection (a) nor (b) [of 23 Pa.C.S. § 2511] requires a
      court to consider the reasonable efforts provided to a parent
      prior to termination of parental rights. Nevertheless, the
      provision or absence of reasonable efforts may be relevant to a
      court's consideration of both the grounds for termination and the
      best interests of the child. For example, as applicable to
      subsection (a)(2), a court may find an agency’s lack of
      assistance to a parent relevant to whether a parent’s incapacity
      cannot or will not be remedied by the parent. 23 Pa.C.S §
      2511(a)(2).

                                 *    *    *

      [T]he Pennsylvania legislature [also] has not incorporated
      reasonable efforts into the language of 23 Pa.C.S. § 2511(a)(2),
      and it would be improper and, indeed, unwise for this Court to
      add such an element to the statute by judicial fiat.

                                 *    *    *

      We also do not find reasonable efforts are required prior to
      termination when Section 2511 of the Adoption Act, entitled
      “Grounds for termination,” is read in conjunction with Section

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      6351 of the Juvenile Act, entitled “Disposition of dependent
      child.” Rather, we conclude that the Superior Court and Father
      conjured a requirement in Section 6351(f)(9), when none exists.
      Instead of a requirement to provide reasonable efforts prior to
      the filing of a termination petition, Section 6351 actually creates
      an exception that excuses the filing of an otherwise required
      termination petition[.]

Id. at 672-73. Accordingly, proof that the Agency made reasonable efforts

to reunify Father with Child was not a prerequisite to ordering termination of

his parental rights. In re D.C.D., supra.

      However, even if the statute required that the Agency expend such

efforts prior to termination, the record supports the fact that the Agency

attempted to facilitate Father’s compliance with his FSP and aid in his

reunification with Child.   The Agency referred Father to drug and alcohol

treatment programs and parenting programs. It also attempted to arrange

visits with Child and Father after he was released from rehabilitation.     In

fact, it was a result of Father’s failure to inform the Agency that he had

moved to Maryland that prevented the Agency from facilitating more visits.

      In sum, Father’s continued incapacity to perform his parental duties,

due to his heroin addiction and repeated incarcerations, caused Child to be

without essential care necessary for her physical and mental well-being. As

a result, the court properly terminated Father’s parental rights under section

2511(a)(2).   See In re Z.P. (Pa. Super. 2010) (termination proper under

section 2511(a)(2) where father was incarcerated prior to child’s birth, had

history of drug and alcohol abuse and arrests, and needs and welfare of child

would be met by termination); see also 23 Pa.C.S. § 2511(a)(2) (rights of


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parents in regard to child may be terminated where “[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.”).

       Order affirmed. Petition to withdraw granted.6

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




____________________________________________


6
  Although Father references section 2511(b) on page 13 of his appellate
brief, he does so only to acknowledge that in order to terminate parental
rights a court must consider the effect of the termination on the child.
Father makes no claim or legal argument regarding that prong of the
termination analysis in the instant case. Therefore, we have confined our
review to section 2511(a).



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