J-S50030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.F.F., A MINOR

APPEAL OF: C.C., NATURAL FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 780 WDA 2019

Appeal from the Order Entered March 12, 2019

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

No(s): 11A-2018-O.C.

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 07, 2019

C.C. (Father) appeals from the order involuntarily terminating his 

parental rights to his minor child, A.F.F. (Child), pursuant to 23 Pa.C.S.A. § 

2511(a)(1), (2), and (b). After careful review, we affirm.

Child was born in September 2011 to A.M. (Mother) and Father, 

although the relationship did not last. See N.T., 6/13/18, at 6. Father had 

two other children who were half-siblings of Child. Id. Mother began a 

relationship with B.M. (Stepfather) in 2014, and the two were married in 

August 2016. Mother subsequently gave birth to Child’s half-sibling, D.M. Id.

at 5-6, 14-15-20, 48-51. Mother, Stepfather, Child, and D.M. continue to live 

together as a family, and Child looks to Stepfather as her father. Id. at 5-6, 

15-19, 38-39, 48-51. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Father had contact with Child, despite the fact that he was incarcerated 

three times between 2011 and 2018, and hospitalized in 2013 for issues 

related to medication adjustment for his mental illness. Id. at 18, 51-52, 91-

92, 113-16. Child and Father had several visits while Father was incarcerated. 

Id. at 18, 94-95, 99-100. However, Father has had no contact with Child 

since April 2017, and, shortly thereafter, he was arrested in New York State 

on drug-related offenses. Id. at 10-14. On May 23, 2017, while Father was 

incarcerated, an emergency custody order was entered. Id. at 6. Father 

claimed that he never received the emergency custody order, although the 

order was served at his mother’s residence, Father’s last known address. Id.

at 8, 108-09, 130-33. 

Child stopped asking about Father around December 2017. Id. at 27. 

During his most recent incarceration, Father telephoned his two other 

children, but did not telephone Child. Id. at 11, 28, 88. Mother testified that 

Father did not send Child gifts, letters, cards or support; however, paternal 

grandfather testified that Father sent him letters, which he read to Child.

1

 Id.

at 11, 28, 61-66. Child never expressed a desire to write to Father. Id. at 

70. Paternal grandfather continued to see Child during Father’s incarceration,

every 30 to 45 days for two or three hours; however, the visits ceased when 

Mother discovered he had been taking Child to see her half-siblings. Id. at 

22, 36-37, 55-58.

____________________________________________

1 Six letters, dated July 2017, August 2017, October 2017, December 2017, 

January 2018, and May 2018, were admitted to the record. Id. at 66-67.
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Father was released from jail in April 2018, and resides in a homeless 

shelter in Bath, New York, while awaiting admission to a halfway house. Id. 

at 90-91. Father is on New York state parole, and probation in Jefferson 

County, Pennsylvania. Id. at 101.

On March 14, 2018, Mother and Stepfather filed a petition seeking the 

involuntary termination of Father’s parental rights pursuant to 23 Pa.C.S.A. § 

2511(a)(1), (2), and (b). A number of continuances were granted, and the 

court held a hearing on the petition on June 13, 2018. Gina Bianco, Esquire, 

served as Child’s guardian ad litem. Mother; maternal grandfather (J.F.); and 

Stepfather testified in support of the petition. Father, represented by counsel, 

testified on his own behalf. Additionally, Father presented the testimony of 

paternal grandfather, C.C.; father’s sister, N.C.; and Father’s former 

paramour and the mother of Child’s half siblings, C.R.

On July 9, 2018, the court terminated Father’s parental rights. Father 

timely filed a notice of appeal and concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On December 19, 

2018, this Court remanded the matter to the trial court so that Child’s attorney 

could determine Child’s preferred outcome. See In re A.F.F., 203 A.3d 333 

(Pa. Super. 2018) (unpublished memorandum).

On remand, the court appointed Keith Strano Taylor, Esquire, to serve 

as Child’s attorney. On March 1, 2019, Attorney Taylor sent the court 

correspondence indicating that Child’s preference was consistent with Child’s 

best interests, as indicated by Attorney Bianco. The letter specifically stated 
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that Child would like to have the same last name as D.M., so “we can be a 

family,” and noted that although Child knew Father was her biological father, 

she viewed Stepfather as her father. The letter misidentified Father’s last 

name, mistakenly using Mother’s maiden name. On March 14, 2019, by order 

dated March 12, 2019, the court terminated Father’s rights.

On May 6, 2019, Father’s counsel filed a motion for leave to file a notice 

of appeal nunc pro tunc, averring that Father desired to appeal, but that 

“inexplicably,” counsel failed to file the notice of appeal. See Motion, 5/6/19, 

at 1. Counsel argued that Father should not be penalized for counsel’s failure. 

Id. On May 14, 2019, the court granted the motion, and thereafter, Father 

timely filed a notice of appeal and concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

Father raises the following issues for our review:

I. WHETHER THE LOWER COURT ERRED IN TERMINATING 

[FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE 

WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23 

PA.C.S.A. § 2511(a)(1)?

II. WHETHER THE LOWER COURT ERRED IN TERMINATING 

[FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE 

WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23 

PA.C.S.A. § 2511(a)(2)?

III. WHETHER THE LOWER COURT ERRED IN TERMINATING 

[FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE 

WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23 

PA.C.S.A. § 2511(b)?

IV. WHETHER THE LOWER COURT ERRED IN CONSIDERING A 

SUBMISSION FROM THE ATTORNEY FOR THE CHILD, WHERE SAID 

SUBMISSION DOES NOT ADDRESS THE CHILD’S POSITION 
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RELATIVE [TO HER NATURAL FATHER], AND MISIDENTIFIES SAID 

NATURAL FATHER[?]

Father’s Brief at 4.

We review cases involving the termination of parental rights 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) (internal citations and quotations 

omitted).

Further, termination 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 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).

The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
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(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.

(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.

23 Pa.C.S.A. § 2511.

With regard to Section 2511(a)(1), this Court has observed:

To meet the requirements of this section, “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) (citing In re 

Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The 

court must then consider “the parent’s explanation for his or her 

conduct” and “the post-abandonment contact between parent and 
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child” before moving on to analyze Section 2511(b). Id. (quoting 

In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88, 

92 (1998)).

This Court has explained that a parent does not perform his or her 

parental duties by displaying a “merely passive interest in the 

development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. 

Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) 

(quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), 

appeal denied, 580 Pa. 687, 859 A.2d 767 (2004)). Rather, 

“[p]arental 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.” Id. (citation 

omitted). Critically, incarceration does not relieve a parent of the 

obligation to perform parental duties. An incarcerated parent 

must “utilize available resources to continue a relationship” with 

his or her child. In re Adoption of S.P., 616 Pa. 309, 47 A.3d 

817, 828 (2012) (discussing In re Adoption of McCray, 460 Pa. 

210, 331 A.2d 652 (1975)).

In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

To satisfy the requirements of Section 2511(a)(2), the moving party 

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal; 

(2) that such incapacity, abuse, neglect or refusal caused the child to be 

without essential parental care, control or subsistence; and (3) that the causes 

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” 

See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The 

grounds for termination are not limited to affirmative misconduct, but concern 

parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward 

the reasonably prompt assumption of full parental duties. Id. Further, 

“evidence concerning a parent’s ability to care for another child is irrelevant 
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and inadmissible in a proceeding to terminate parental rights with regard to 

the child at issue.” In re A.L.D., 797 A.2d 326, 338 (citations omitted).

With regard to a parent’s incarceration, in In re Adoption of S.P., 47 

A.3d 817 (Pa. 2012), our Supreme Court reiterated the standard pursuant to 

section 2511(a)(1) for abandonment, and added: 

[a]pplying [In re: Adoption of McCray,] the provision for 

termination of parental rights based upon abandonment, now 

codified as § 2511(a)(1), we noted that a parent “has an 

affirmative duty to love, protect and support his child and to make 

an effort to maintain communication and association with that 

child.” [460 Pa. 210, 217, 331 A.2d 652, 655]. We observed that 

the father’s incarceration made his performance of this duty “more 

difficult.” Id. 

* * *

[A] parent’s absence and/or failure to support due to incarceration 

is not conclusive on the issue of abandonment. Nevertheless, we 

are not willing to completely toll a parent’s responsibilities during 

his or her incarceration. Rather, we must inquire whether the 

parent has utilized those resources at his or her command while 

in prison in continuing a close relationship with the child. Where 

the parent does not exercise reasonable firmness in declining to 

yield to obstacles, his other rights may be forfeited.

In re Adoption of S.P., 47 A.3d at 828, quoting In re: Adoption of McCray, 

331 A.2d 652, 655 (Pa. 1975) (footnotes and internal quotation marks 

omitted). Further, the Supreme Court stated, “incarceration neither compels 

nor precludes termination of parental rights.” In re Adoption of S.P., 47 

A.3d at 828 (adopting this Court’s statement in In re Z.P., 994 A.2d 1108, 

1120 (Pa. Super. 2010)).
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In In re Adoption of S.P., our Supreme Court addressed Section 

2511(a)(2), and concluded:

[I]ncarceration 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 328-29, 47 A.3d at 828; see also In re D.C.D., 105 A.3d 662, 675 

(Pa. 2014) (holding that incarceration prior to the child’s birth and until the 

child was at least age seven renders family reunification an unrealistic goal 

and the court was within its discretion to terminate parental rights 

“notwithstanding the agency’s failure” to follow court’s initial directive that 

reunification efforts be made). The Court in S.P. additionally stated:

[W]e now definitively hold that 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.[A.] § 2511(a)(2). 

See e.g. Adoption of J.J., [511 Pa. 590, 605,] 515 A.2d [883, 

891 (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).

S.P., 47 A.3d at 830 (footnote omitted).
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Instantly, Father argues that the evidence was not clear and convincing 

to support the termination of his parental rights pursuant to Section 

2511(a)(1) and (2). Father’s Brief at 7. Father contends that he has not 

abandoned Child, and states that “he has a plan to improve himself and return 

to Pennsylvania and parent and support his child.” Id. at 14.

Pertinently, the trial court recounted:

Father has been in and out of jail during [Child’s] life. Despite 

this, there is no doubt that he had a positive relationship with 

[Child], until this last jail term which started in April of 2017.

Turning to the time period in question, dating from April 2017, 

[F]ather’s only contact has been through a number of letters he 

sent to his daughter by way of paternal grandfather, [C.C]. These 

letters were regularly shared with the child. During prior 

incarcerations, [M]other was in touch with [F]ather, even taking 

the child to visit him in jail settings. This continued up until 

[M]other became very involved with [Stepfather].

Thereafter, [M]other ceased visits with [F]ather, and gradually 

restricted paternal grandfather’s time with [Child]. All contact was 

stopped by [M]other and her family when the present proceeding 

commenced.

Father could have telephoned [Child] as he did his other children, 

but did not do so. He could have made efforts to contact [Child]

directly, but failed to do so even though he knew how to contact

[M]other and her family. For example, during much of this time, 

he was in contact with his father who was seeing [Child] regularly. 

His excuses are not credible.

. . .

Here, [F]ather wrote a number of letters, perhaps one a month. 

He did no more. Without much effort or expense, he could have 

had much more of a role in [Child’s] life. Thus, the [c]ourt must 

conclude that [F]ather failed to perform parental duties for a 

period in excess of six months.
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Trial Court Opinion, 7/9/18, at 3-4.

We find no error in the court’s reasoning and its order terminating 

Father’s rights pursuant to Section 2511(a)(1) and (2). During Father’s 

incarceration, while Father occasionally wrote letters, he did nothing more. 

There is no indication Father attempted to arrange visits with Child, call Child, 

or contact Mother to request visitation with Child. Father made no attempt to 

modify the custody order or petition the court for visitation. Significantly, as

of the date of the hearing, Father had had no contact with Child since 2017. 

Additionally, Father is on parole in New York and did not indicate or 

provide further proof of when he would complete his supervision. Indeed, 

Father indicated that he would soon be living in a New York halfway house 

rather than returning to Pennsylvania. The record is not clear as to Father’s

timeline for returning to Pennsylvania. Thus, contrary to his assertion that he 

has remedied his parental incapacity, the record reflects that such incapacity 

remains.

Consistent with the foregoing, we discern no error in the trial court’s

finding that competent, clear and convincing evidence supported the 

termination of Father’s parental rights pursuant to Section 2511(a)(1) and 

(2), based upon Father’s failure to perform his parental duties and his 

continued incapacity – namely, his lack of attempts to contact and maintain a 

relationship with Child, and his failure to remedy the conditions leading to 

Child’s placement – that resulted in Child being without essential parental 
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care, the cause of which “cannot or will not be remedied.” See Lilley, 719 

A.2d at 330; Z.P., 994 A.2d at 1117.

Next, we consider whether Child’s needs and welfare will be met by 

termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In this 

context, the court must take into account whether a bond exists between child 

and parent, and whether termination would destroy an existing, necessary 

and beneficial relationship.” Id. The court is not required to use expert 

testimony, and social workers and caseworkers may offer evaluations as well. 

Id. Ultimately, the concern is the needs and welfare of a child. Id.

We have stated:

[b]efore granting a petition to terminate parental rights, it is 

imperative that a trial court carefully consider the intangible 

dimension of the needs and welfare of a child—the love, comfort, 

security, and closeness—entailed in a parent-child relationship, as 

well as the tangible dimension. Continuity of the relationships is 

also important to a child, for whom severance of close parental 

ties is usually extremely painful. The trial court, in considering 

what situation would best serve the child[ren]’s needs and 

welfare, must examine the status of the natural parental bond to 

consider whether terminating the natural parents’ rights would 

destroy something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 

2000)). The trial court may equally emphasize the safety needs of the child 

and may consider intangibles, such as the love, comfort, security, and stability 

the child might have with the foster parent. See In re N.A.M., 33 A.3d 95, 

103 (Pa. Super. 2011). “[A] parent’s basic constitutional right to the custody 

and rearing of . . . her child is converted, upon the failure to fulfill . . . her 
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parental duties, to the child’s right to have proper parenting and fulfillment of 

[the child’s] potential in a permanent, healthy, safe environment.” In re 

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

Father argues that the court erred in terminating his rights under 

Subsection (b) because the court ignored the relationship between Child and 

Father’s family, including Child’s paternal grandfather, paternal aunt, and 

Child’s half-siblings. The trial court observed:

Whatever limited bond there was has been broken by [F]ather’s 

failure to act and be a substantial part of [C]hild’s life. [Child] is 

only 6 years old, and [F]ather has been absent for much of her 

life. She has a very positive relationship with her stepfather who 

plans to adopt her and [Stepfather] meets all of [Child’s] needs.

In term[s] of post abandonment contact, [F]ather has done little 

beyond opposing the present petition. No direct letters, gifts, 

cards, and the like have been forthcoming. He is essentially 

homeless and hopes to live in a New York State halfway house. 

While [F]ather must be recognized for trying to get his own life 

together, the [court’s] ultimate focus is on [C]hild. [C]hild cannot 

wait for [F]ather to solve all of his own problems.

Trial Court Opinion, 7/9/18, at 4-5.

The record supports the trial court’s disposition. We note that the law 

is not concerned with parental relatives, but the bond between Child and 

Father. See, e.g., T.S.M., 71 A.3d at 267 (noting that needs and welfare 

requires consideration of emotional bonds between parent and child). In this 

case, the court appropriately analyzed the evidence and concluded that Father 

has not acted to maintain the bond, and Stepfather provides for Child’s needs 

and welfare. The record reflects that Child does not ask about Father, was 
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not interested in contacting him, and does not often speak of him. Rather, 

Child wishes to be adopted by Stepfather. Accordingly, we discern no abuse 

of discretion in the trial court’s conclusion that Child’s needs and welfare are 

best served by termination. 

Finally, Father argues that the court erred in terminating his parental 

rights where Child’s attorney filed a letter that misidentified Father’s last name 

when indicating that Child wanted to be adopted by Stepfather. Father’s Brief 

at 16. Counsel identified Father by Mother’s maiden name. Id. However, it 

is clear from the record that this was a typographical error, where the letter 

was otherwise accurate as to Father, and conveys Child’s position with regard 

to Father and adoption — that while Child knows Father is her biological father, 

she views Stepfather as her father in “all of the ways that matter,” including 

being there for her on a day-to-day basis. See Letter, 3/1/19, at 1. Child did 

not evidence any hesitation or remorse, although she expressed a desire to 

see Father’s two children who are her half-sisters. Id. Mother offered 

assurances that play dates had been arranged for Child to see her sisters. Id. 

Thus, the court appropriately considered the letter. 

In sum, clear and convincing evidence supports the trial court’s

termination of Father’s parental rights under Section 2511(a)(1) and (2), as 

well as its Section 2511(b) finding that any bond between Child and Father is 

outweighed by the fact that adoption would best serve Child’s needs and 

welfare. See Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.

Order affirmed.
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Judge Lazarus joins the memorandum.

Judge Colins concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/19