J-S31016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.M.H., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: B.K.E., FATHER No. 145 MDA 2015

Appeal from the Order entered December 22, 2014, 

in the Court of Common Pleas of Lancaster County,

Orphans’ Court, at No(s): 1387 of 2013

BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.: FILED JUNE 24, 2015

Appellant, B.K.E., (“Father”) appeals from the trial court’s order 

terminating his parental rights to his son, D.M.H. (“Child”), (born in 

December of 2002).1 After a thorough review of the record, we affirm.

On November 22, 2011, the Lancaster County Children and Youth 

Social Service Agency (“CYS”) first learned of this family due to burns, 

suspicious marks and bruises found on Child’s body. Child was removed 

from the care of Mother and Mother’s husband, B.J. (“Step-father”). Child 

was adjudicated dependent on January 30, 2012. On June 7, 2012, Child 

was placed in foster care. 

In 2003, a support order was entered against Father. Father lived 

with his wife and two daughters in New Jersey. Father last saw Child in the 

summer of 2008. On June 19, 2013, CYS filed a petition to terminate the 

parental rights of Mother and the unknown birth father. 

 

1 On March 4, 2014, the trial court terminated the parental rights of K.J., 

(“Mother”), to Child. Mother is not a party to this appeal, nor did she file a 

separate appeal. 
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On September 5, 2014, Father contacted CYS after learning that Child 

was in CYS’s custody. On September 8, 2014, Father contacted CYS for the 

last time. On October 8, 2014, foster parents filed a report of intention to 

adopt Child. On October 23, 2014, Father filed a petition to set aside 

termination of parental rights and to intervene in any pending adoption. 

On November 25, 2014, CYS filed a petition to terminate Father’s 

parental rights. On November 26, 2014, foster parents filed an answer to 

petition to set aside termination of parental rights. On December 5, 2014, 

CYS filed their response to the petition to set aside the termination of 

parental rights. 

On December 22, 2014, a hearing was held on that petition. At the 

termination hearing, Brandy Cromley, a CYS caseworker; Rene Dolly, a CYS 

caseworker; Crystal Bowman, a CYS paralegal; Rosa Morales Wilson, a CYS 

technician; Kelly Jacobs, an outpatient therapist; D.E., Father’s wife; P.H., 

Child’s maternal aunt; P.J.F., Child’s foster father; and Father testified.

A hearing was held on December 22, 2014, after which the trial court 

terminated Father’s parental rights to Child. On January 6, 2015, Father 

filed a notice of appeal, along with a concise statement of errors complained 

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

Father sets forth his issues on appeal as follows:

1. Whether 23 Pa.C.S.A. 2511(a)(1) is inconsistent with the Due 

Process and Equal Protection Clauses of the [Fourteenth] 

Amendment of the U.S. and Pa. Constitutions in requiring 

termination of a non-custodial parent’s rights to a child with 

whom he was consistently involved where birth mother 
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absconded with the child, thwarted Father’s efforts to 

ascertain [Child]’s whereabouts by deception, where a child 

support order remained in place in [Child]’s birth county and 

where Father’s identity could easily have been ascertained 

had CYS made sufficient investigation.

2. If 23 Pa C.S.A. 2511(a) is deemed constitutional, whether the 

lower court committed an abuse of discretion and/or erred as 

a matter of law in involuntarily terminating Father’s parental 

rights under 23 Pa.C.S.A. Section 2511(a)(1) where such 

determination was not supported by clear and convincing 

evidence.

3. Whether under 23 Pa.C.S.A. 2511(b), the trial court erred as 

a matter of law and committed reversible error when it 

involuntarily terminated Father’s parental rights without 

giving primary consideration to the effect that termination 

would have on the developmental, physical and emotional 

needs of the 12 year old child who ran away from his foster 

home on two occasions, and where [Child] was not informed 

that his birth Father, who was not the cause of [Child]’s 

dependency placement, recently became aware of his 

whereabouts and predicament and desires reunification.

4. Whether Father’s constitutional right to a fair hearing and 

impartial hearing was thwarted by ineffective assistance of 

counsel.

5. Whether Father’s constitutional right to a fair and impartial 

hearing was thwarted by the lower court’s general bias 

throughout the termination hearing.

Father’s Brief at 3-4.

Where a party raises ineffective assistance of counsel in a termination 

of parental rights case, “we review the record as a whole to determine 

whether or not the parties received a ‘fundamentally fair’ hearing: a finding 

that counsel was ineffective is made only if the parent demonstrates that 

counsel’s ineffectiveness was the cause of the decree of termination.” In re 
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J.T., 983 A.2d 771, 775 (Pa. Super. 2009) (internal citations omitted). 

Accordingly, our review of the ineffective assistance of counsel claim is 

inextricably linked to our determination of whether the trial court’s 

termination order is supported by the record. 

Our standard of review regarding orders terminating parental rights is 

as follows:

When reviewing an appeal from a decree terminating parental 

rights, we are limited to determining whether the decision of the 

trial court is supported by competent evidence. Absent an 

abuse of discretion, an error of law, or insufficient evidentiary 

support for the trial court’s decision, the decree must stand. 

Where a trial court has granted a petition to involuntarily 

terminate parental rights, this Court must accord the hearing 

judge’s decision the same deference that we would give to a 

jury verdict. We must employ a broad, comprehensive review 

of the record in order to determine whether the trial court’s 

decision is supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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. 

Id. at 806. We have previously stated:

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 

hesitance, of the truth of the precise facts in issue.” 

In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

The trial court is free to believe all, part, or none of the evidence 

presented and is likewise free to make all credibility determinations and 

resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. 
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Super. 2004). If competent evidence supports the trial court’s findings, we 

will affirm even if the record could also support the opposite result. In re 

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally, 

this Court “need only agree with [the trial court’s] decision as to any one 

subsection in order to affirm the termination of parental rights.” In re 

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581 

Pa. 668, 863 A.2d 1141 (2004). Accordingly, as the trial court focused on 

Section 2511(a)(1) in terminating Father’s parental rights, we likewise will 

focus on that section in our review.

In terminating Father’s parental rights, the trial court relied upon 

Section 2511(a)(1) and (b) which provide:

§ 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:

(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.

* * *

(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 
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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.

We have explained this Court’s review of a challenge to the sufficiency 

of the evidence to support the involuntary termination of a parent’s rights 

pursuant to Section 2511(a)(1) as follows:

To satisfy the requirements of Section 2511(a)(1), 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 addition,

Section 2511 does not require that the parent 

demonstrate both a settled purpose of relinquishing 

parental claim to a child and refusal or failure to perform 

parental duties. Accordingly, parental rights may be 

terminated pursuant to Section 2511(a)(1) if the parent 

either demonstrates a settled purpose of relinquishing 

parental claim to a child or fails to perform parental 

duties.

Once the evidence establishes a failure to perform 

parental duties or a settled purpose of relinquishing 

parental rights, the court must engage in three lines of 

inquiry: (1) the parent’s explanation for his or her 

conduct; (2) the post-abandonment contact between 

parent and child; and (3) consideration of the effect of 

termination of parental rights on the child pursuant to 

[s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations 

omitted).

Regarding the definition of “parental duties,” this Court has stated:
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There is no simple or easy definition of parental duties. Parental 

duty is best understood in relation to the needs of a child. A 

child needs love, protection, guidance, and support. These

needs, physical and emotional, cannot be met by a merely 

passive interest in the development of the child. Thus, this 

Court has held that the parental obligation is a positive duty 

which requires affirmative performance.

This affirmative duty 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.

Because a child needs more than a benefactor, parental duty 

requires that a parent exert himself to take and maintain a place 

of importance in the child’s life.

Parental 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. A parent must utilize all 

available resources to preserve the parental relationship, and 

must exercise reasonable firmness in resisting obstacles placed 

in the path of maintaining the parent-child relationship. Parental 

rights are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental responsibilities while 

others provide the child with . . . her physical and emotional 

needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 582 

Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).

In Father’s first two issues, he argues that the trial court committed an 

abuse of discretion in involuntarily terminating his parental rights to Child. 

The trial court found that, aside from paying child support, Father 

“failed to perform parental duties or undertake parental responsibilities” 

since he was separated from Child in 2008. Trial Court Opinion, 2/12/15, at 

12. The trial court explained: 
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Father has testified that he could not find Mother or 

[Child]. While this Court does agree that there were obstacles 

for Father to overcome, in that Mother left abruptly without 

leaving an address for Father or contacting him, [the trial c]ourt 

is of the opinion that a parent must use all reasonable efforts 

within their power to overcome obstacles and remain in their 

child’s life. Father failed to do so. 

Parenting a child is more than paying child support. Father 

effectively relied on Mother’s family, and social media to locate 

Mother and [Child]. Despite having a significant income, he did 

not hire an attorney; he did not hire a private investigator; he 

did not search for Mother’s marriage license despite knowing she 

was married; he did not contest his child support modifications, 

or request information, or seek a hearing to obtain information 

about Mother and [Child], or file a custody action. All of these 

suggested, although not all-inclusive, actions were reasonable 

and were within his control and ability to do. Any one of these 

avenues might have provided him with information about where 

Mother and [Child] were living. Furthermore, Father knew that 

maternal grandparents were having contact and going to visit 

Mother in 2011, and he made no efforts to attempt to legally 

compel maternal grandparents to divulge their whereabouts, 

through subpoena or any other means in either a support or 

custody proceeding. The point is that Father did nothing except 

search social media, occasionally talk to maternal relatives and 

drive by Mother’s old residence. He did not use the reasonable 

and available resources and options available to him to maintain 

contact and a role of importance in [Child]’s life.

Id. at 12-13. 

We have stated that a child’s life “simply cannot be put on hold in the 

hope that [a parent] will summon the ability to handle the responsibilities of 

parenting.” In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010). Rather, “a 

parent’s basic constitutional right to the custody and rearing of his child is 

converted, upon the failure to fulfill his or her parental duties, to the child’s 

right to have proper parenting and fulfillment of his or her potential in a 
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permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa. Super. 2004). With respect to Section 2511(a)(1), the trial court in this 

case found clear and convincing evidence that Father demonstrated a settled 

purpose of relinquishing his claim to Child and failed to perform his parental 

duties. After our careful review of the record, we find that the trial court’s 

credibility and weight determinations are supported by competent evidence 

in the record. In re Adoption of S.P., 616 Pa. at 325-326, 47 A.3d at 826-

827. Accordingly, the trial court did not abuse its discretion in terminating 

Father’s parental rights pursuant to Section 2511(a)(1).

In reviewing the evidence in support of termination under Section 

2511(b), our Supreme Court recently stated:

[I]f the grounds for termination under subsection (a) are 

met, a court “shall give primary consideration to the 

developmental, physical and emotional needs and welfare of the 

child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare 

of the child have been properly interpreted to include 

“[i]ntangibles such as love, comfort, security, and stability.” In 

re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., 

[620 A.2d 481, 485 (Pa. 1993)], this Court held that the 

determination of the child’s “needs and welfare” requires 

consideration of the emotional bonds between the parent and 

child. The “utmost attention” should be paid to discerning the 

effect on the child of permanently severing the parental bond. 

In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

We have stated that, in conducting a bonding analysis, the court is not 

required to use expert testimony, but may rely on the testimony of social 

workers and caseworkers. In re Z.P., 994 A.2d at 1121. This Court has 
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observed that no bond worth preserving is formed between a child and a 

natural parent where the child has been in foster care for most of the child’s 

life, and the resulting bond with the natural parent is attenuated. In re 

K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).

Father argues that the trial court’s assessment of Section 2511(b) is 

inadequate because the record lacked competent evidence that termination 

of Father’s parental rights would serve the best interest of Child. Father’s 

Brief at 19. Father also asserts that the trial court did not analyze the effect 

of the severance of their relationship on Child. Id. at 22. 

The trial court found that termination of Father’s parental rights is in 

the best interest of Child and that termination of Father’s parental rights 

would not be harmful to Child. Trial Court Opinion, 2/12/15, at 20. Child’s 

therapist, Ms. Kelly Jacobs, testified that Child has an adjustment disorder 

with mixed anxiety and depressed mood as a result of being the victim of 

physical abuse as a child. N.T., 12/22/14, at 76. Ms. Jacobs testified that 

Child has made substantial improvements and she testified that foster 

parents’ unconditional love has helped him progress. Id. at 77. Ms. Jacobs 

testified that Child has “very little recollection” of Father. Id. at 79. Ms. 

Jacobs testified that Child is aware that he has a biological father, and that 

Child stated he does not have a relationship with Father. Id. at 79-80. Ms. 

Jacobs testified that it is in the best interest of Child to have “permanency 

with this family he’s been with for two and a half years.” Id. at 80. Ms. 
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Jacobs testified that “trying to reintroduce or establish a relationship with 

[Father] especially if it were to be in a caretaker role that would be even 

more difficult for [Child] because he does have negative past experience 

with abandonment.” Id. Ms. Jacobs testified that it would not be 

detrimental to child if Father’s rights were terminated. Id. at 88. The trial 

court found the testimony of Ms. Jacobs to be credible. We defer to the trial 

court’s determination of credibility, absent an abuse of discretion, and 

discern no such abuse in its finding credible the testimony of Ms. Jacobs. 

See In re S.H., 879 A.2d at 805.

The trial court found that the record established that “Father’s desire 

to now be a parent, after a six year absence, is too little and too late.” Trial 

Court Opinion, 2/12/15, at 19. The trial court concluded, “there is no 

relationship to continue between parent and child in this case because 

Father has not been involved in the life of the child in any meaningful way 

since Mother left in 2008.” Id. See In re K.Z.S., 946 A.2d at 763 (In cases 

where there is no evidence of any bond between the parent and child, it is 

reasonable to infer that no bond exists.).

While the trial court recognized that Father professed that he loves 

Child and wants to maintain a relationship with Child, we have held that a 

parent’s love of her child, alone, does not preclude termination. Trial Court 

Opinion, 2/12/15, at 19; In re L.M., 923 A.2d 505, 512 (Pa. Super. 2007) 
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(stating that a parent’s own feelings of love and affection for a child, alone, 

will not preclude termination of parental rights). 

As part of its bonding analysis, the trial court examined Child’s 

relationship with his pre-adoptive caregivers. “The strength of emotional 

bond between a child and a potential adoptive parent is an important 

consideration in a ‘best interests’ analysis.” In re I.J., 972 A.2d 5, 13 (Pa. 

Super. 2009). Here, the trial court observed: 

A child needs more than financial support from a parent. The 

pre-adoptive parents filled the parental void and have been 

providing love, support, and permanency to [Child] on a daily 

basis for the last two and one half years. [Child] is thriving in 

the care of pre-adoptive parents. He now lives in an intact 

family. [Child] is safe and secure. [Child] is loved. This 

relationship with his pre-adoptive parents has not occurred 

overnight. It has been an ongoing process. His life with preadoptive parents must be maintained and kept intact for his 

emotional and developmental needs and welfare. It is in the 

best interest of [Child] that this parent-child relationship be 

allowed to continue and thrive. 

Trial Court Opinion, 2/12/15, at 19-20. Notably, Ms. Jacobs testified that it 

would be emotionally detrimental to Child if Child were removed from foster 

parents. N.T. 12/22/14, at 88. 

In light of the above, it is clear that the record supports the trial 

court’s decision to terminate Father’s parental rights.

Father asserts that but for counsel’s act of not objecting to 

inadmissible evidence and not presenting any evidence regarding Section 

2511(b), CYS could not have established grounds for termination under 

Section 2511(a)(1) or (b). In this case, we find that a fair hearing was held, 
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and that there was an abundance of evidence to support the trial court’s 

termination of Father’s parental rights. Counsel was aware of the 

overwhelming evidence against Father. Counsel cross-examined each of 

CYS’s witnesses. Additionally, counsel did not present evidence relative to 

Section 2511(b) because Father had no relationship with Child, and Father 

had not seen Child since 2008. Thus, counsel’s alleged ineffectiveness was 

not a factor in the trial court’s decision. Father thus has failed to establish 

that counsel’s alleged ineffectiveness was the cause of the termination 

decree. In re J.T., supra. 

Finally, we find no merit to Father’s assertion that the trial court acted 

with bias against him. Father argues that the trial court made a “detailed 

inquiry, geared toward establishing termination of [Father]’s parental 

rights.” Father’s Brief at 25. Father also contends that the trial court 

exhibited bias by questioning the expert witness about purported trauma 

suffered by Child. However, our review indicates that the trial court 

questioned Ms. Jacobs to assist the trial court in determining whether the 

termination of Father’s parental rights are in Child’s best interest. See Trial 

Court Opinion, 2/12/15, at 14. The trial court did not abuse its discretion 

because the trial court may examine a witness regardless of who calls the 

witness. Our review discloses no abuse of discretion. Accordingly, we affirm 

the trial court’s order terminating Father’s parental rights.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2015