J-S69017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.A.C.N.,

A MINOR

APPEAL OF: H.B.C., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1905 EDA 2019

Appeal from the Order Entered June 13, 2019,

in the Court of Common Pleas of Philadelphia County,

Family Court at No(s): CP-51-AP-0000387-2019, 

FID: 51-FN-004746-2011.

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 11, 2020

H.B.C. (Father) appeals the order terminating his parental rights to his 

two-year-old daughter, D.A.C.N. (Child), pursuant to the Adoption Act, 23 

Pa.C.S.A. § 2511(a)(2), (5), (8) and(b).1 We affirm.

The record discloses the following relevant factual and procedural 

history. Child, born in February 2017, first came to the attention of the 

Philadelphia Department of Human Services (DHS) when Mother tested 

positive for phencyclidine (PCP) at the time of Child’s birth. At that time, 

Father was incarcerated. DHS obtained a protective custody order and 

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* Retired Senior Judge assigned to the Superior Court.

1 The trial court also terminated the parental rights of D.N. (Mother). Her 

appeal is listed before a separate panel of this Court.
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removed Child from Mother’s care. At the ensuing shelter hearing, the court 

determined that Mother and Child were receiving in-patient treatment and 

reunified Child and Mother.

The case became active again in December 2017, following reports that 

the parents were using illicit drugs and that Father was verbally abusive. The 

latter incident triggered police intervention after Father threatened to kill 

everyone at the scene. DHS obtained a protective custody order, marking the 

last time Father had contact with Child. At the shelter hearing, the court 

referred Father to the clinical evaluation unit (CUA) for a drug screen. Father 

tested positive for marijuana and PCP. Child was adjudicated dependent on 

February 1, 2018.

Throughout the dependency case, Father never complied with Child’s 

court-ordered permanency plan. Following the adjudication, the court 

referred Father to the Achieving Reunification Center (ARC) for appropriate 

services, but he failed to attend the intake evaluation. Although Father was 

referred to another drug test, he did not comply. The court also referred 

Father for parenting, housing, and financial services, and it further ordered 

Father to engage in dual diagnosis treatment. Father failed to participate with 

any of these programs.

In January 2019, Father was arrested on a bench warrant for a probation 

violation; he had been on probation following a 2015 guilty plea to burglary 
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and conspiracy. Father was sentenced to eleven and a half months to twentythree months for the probation violation.2

On May 28, 2019, DHS filed termination and goal-change petitions. On 

June 13, 2019, the court conducted an evidentiary hearing. The court granted

the petitions and terminated Father’s parental rights under 23 Pa.C.S.A. § 

2511(a)(2), (5), (8) and (b). Father presents this timely-filed appeal.

Father does not appeal the goal-change determination, nor does he

contend that DHS failed to meet its burden under § 2511(b). Instead, Father 

raises the following issue for our review:

Whether the trial court committed reversible error when it 

involuntarily terminated Father’s parental rights where such 

determination was not supported by clear and convincing 

evidence under the Adoption Act, 23 Pa.C.S.A. §

2511(a)(2), (5) and (8).

Father’s Brief at 4.

In reviewing an appeal from an order terminating parental rights, we 

adhere to the following principles:

[A]ppellate courts must apply an abuse of discretion 

standard when considering a trial court's determination of a 

petition for termination of parental rights. As in dependency 

cases, our standard of review requires an appellate court to 

accept the findings of fact and credibility determinations of 

the trial court if they are supported by the record. In re: 

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). 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.; In re R.I.S., 36 A.3d 567, 572 (Pa. 

2011) (plurality). As has been often stated, an abuse of 

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2 The record is unclear as to precisely when his sentence began.
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discretion does not result merely because the reviewing 

court might have reached a different conclusion. Id.; see 

also Samuel–Bassett v. Kia Motors America, Inc., 34 

A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 

634 (Pa. 2003). Instead, a decision may be reversed for an 

abuse of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for 

applying an abuse of discretion standard of review in these 

cases. We observed that, unlike 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 Atencio, 650 

A.2d 1064, 1066 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re 

Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).

At the termination hearing, 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 the “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 
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hesitance, of the truth of the precise facts in issue.’” Id. (quoting In re J.L.C., 

837 A.2d 1247, 1251 (Pa. Super. 2003)). 

This Court has explained that the focus in terminating parental rights 

under section 2511(a) is on the parent, but under section 2511(b), the focus 

is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 

2008) (en banc). As Father does not contest the second prong of the 

termination analysis under Section 2511(b), we will only address the first 

prong under Section 2511(a). Here, the court terminated Father’s parental 

rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5) and (8). We note that this 

Court may affirm the trial court's decision regarding the termination of 

parental rights with regard to any one subsection of section 2511(a). In re 

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Thus, we may 

narrow our focus even further, confining our discussion to subsections (a)(2), 

which provides:

§ 2511. Grounds for involuntary termination

(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:

(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.

23 Pa.C.S.A. § 2511(a)(2).
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Our Supreme Court established a three-part test when terminating a 

parent’s rights under Section 2511(a)(2). The petitioner must satisfy the 

following criteria: 

(1) A parent’s repeated and continued incapacity, abuse, 

neglect or refusal must be shown; (2) such incapacity, 

abuse, neglect or refusal must be shown to have caused the 

child to be without essential parental care, control or 

subsistence; and (3) it must be shown that the causes of 

the parent’s incapacity, abuse, neglect or refusal cannot or 

will not be remedied.

See In re A.D., 93 A.3d 888, 896 (Pa. Super. 2014) (citing In re Geiger, 

331 A.2d 172, 173-174 (Pa. 1975)).

The trial court found that DHS established clear and convincing evidence 

warranting the termination of Father’s rights:

Throughout the time that Child has been in the custody of 

DHS, Father’s [reunification] goals were dual diagnosis, 

random drug screens, domestic violence [], and to make 

outreach to CUA. [...] Father never provided any 

documentation that showed he successfully completed any 

type of domestic violence program. Father completed 

intake at ARC on February 26, 2018, but did not engage and 

complete the parenting, housing, and financial counseling 

programs. [...] Father also indicated that he only completed 

drug and alcohol while incarcerated, but failed to complete 

the mental health component of his dual diagnosis 

objective. Father admitted that between the adjudicatory 

hearing in April 2018[3] and his incarceration in January 

2019, Father never attempted to engage in dual diagnosis 

services. [At the time of the shelter hearing], Father 

completed the only random drug screen for the life of the 

case. Father has not been in contact with CUA since April 

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3 We note that the adjudication hearing occurred in February 2018. The first 

permanency review occurred in April 2018.
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2018. Father acknowledged that he failed to maintain 

contact with CUA. [...] During the life of the case, Father 

has not visited Child. Father’s visitation was suspended in 

April 2018 and has remained suspended for the life of the 

case. Father has been incarcerated since January 2019. 

Father indicated that the sentence he was given for the 

violation of probation was between eleven and a half months 

to twenty-three months. Father indicated that he does not 

have housing arranged for his release from prison. Father 

was aware of his objectives and that his visitation would be 

reinstated if he engaged in his objectives, but Father refused 

to comply. 

T.C.O., 9/11/19, at 7-8 (citations to the record omitted).

On appeal, Father acknowledges his failure to comply with the 

permanency plan, but notes that he completed a drug program while in prison. 

The crux of his argument is that he has attempted to utilize all available 

resources while in prison. See Father’s Brief at 13.

Although not a litmus test, a parent’s incarceration is relevant to the 

Section 2511(a)(2) analysis and, depending on the circumstances of the case, 

a petitioner may use incarceration as evidence of a parent’s inability to provide

the “essential parental care, control or subsistence” that the section 

contemplates. See In re A.D., 93 A.3d at 897 (citing 23 Pa.C.S.A. §

2511(a)(2)). Incarceration does not relieve a parent of the obligation to 

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

Rather, an incarcerated parent must “utilize available resources to continue a 

relationship” with his or her child. Id. (quoting In re Adoption of S.P., 47

A.3d 817, 828 (Pa. 2012)) (supra).
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Here, Father claims that his completion of the prison program 

demonstrated that he utilized available resources, and so his rights should not 

be terminated under Section 2511(a)(2). He wants this Court to find that he 

parented as much as he was able. This argument blatantly ignores the prior 

eleven months between his incarceration and Child’s dependency 

adjudication, when Father failed to comply with any part of the permanency 

plan – to say nothing of the preceding two months between the adjudication 

and Child’s removal from the home, which was the last time Father sought to 

have contact with Child. It would be one thing if the record demonstrated 

that, prior to his incarceration, Father had ample ability to provide parental 

care, that he was able to maintain a relationship with Child while incarcerated, 

and that he would be able to resume parental care upon his imminent release. 

Instead, the record indicates the opposite. Father either refused to parent or 

was incapable of parenting before he went to prison, he has done next to 

nothing while incarcerated, and, notwithstanding his eventual release from 

prison, the conditions of the incapacity or refusal cannot or will not be 

remedied.

Accordingly, we conclude that the trial court did not abuse its discretion

by terminating involuntarily Father’s parental rights to Child pursuant to 

Section 2511(a)(2). Therefore, we affirm the court’s order granting DHS’s 

petition.

Order affirmed.

Judge Colins joins the memorandum.
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Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/20