J-S31031-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: S.R., A MINOR,

APPEAL OF: W.C., FATHER

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2147 MDA 2015

Appeal from the Order Entered November 13, 2015

in the Court of Common Pleas of Lancaster County

Orphans’ Court at No(s): 2015-0722

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 24, 2016

W.C. (Father) appeals from the decree that terminated his parental 

rights to his biological daughter, S.R.1 We affirm.

The orphans’ court aptly set forth the factual and procedural history of 

this matter as follows.

S.R. was born [in November of 2013]. At the time of her 

birth, [Mother] was incarcerated. Mother named [E.T.] as the 

father of S.R. and [CYS] attempted to locate him. [A] shelter 

care hearing was held on November 26, 2013, at which time 

temporary and legal custody was granted to [CYS]. [An] 

adjudication and disposition hearing was held on January 7, 

2014. [A] review hearing was held on April 25, 2014. [CYS] was 

unable to establish [E.T.’s] whereabouts during this period of 

time. [S.R. was placed in the care of her foster parents, where 

she has remained.]

On July 17, 2014, Mother reported she saw S.R.’s father in 

Lancaster and he gave her his number and address. Mother then 

gave [CYS] his contact information, explaining that his correct 

name was [W.C.] and that [E.T.] was the false name he had 

 

1 Mother consented to the termination of her parental rights and a decree to 

that effect was entered on July 28, 2015. 
J-S31031-16

- 2 -

given Mother. [Father denies having used E.T. as an alias, 

stating this is what caused him to question paternity.]

[CYS] then modified [its] search for Father. Father did not 

have a prior history with [CYS] but did have a criminal history, 

which included robbery in 1998, burglary armed or causing 

injury in 1998, manufacturing/delivering drugs in 2009, retail 

theft in 2012 and 2013, public drunkenness in 2013, and false 

identification to [l]aw [e]nforcement in 2013. [CYS] was unable 

to contact Father using the information he had provided Mother. 

His whereabouts remained unknown until August 15, 2014, when 

he was located at the Lancaster County Prison (LCP).

[A CYS] caseworker met with Father at LCP on August 22, 

2014. Father reported that he met Mother in April or May of 

2014 and provided his information to her. Mother provided that 

information to [CYS] in July 2014. Father testified that he had 

doubts about paternity. He stated he wanted to be involved with 

[S.R.], if he [was] in fact her father. However, he had done 

nothing to establish the validity of Mother’s claim after being 

given notice [of S.R.’s existence]. Father did not deny the 

possibility that he was S.R.’s father. In fact, the caseworker 

testified that he appeared interested in the fact that S.R. might 

be his daughter. On August 29, 2014, the [CYS] caseworker 

again met with Father while he was in prison, informing him of a 

paternity test scheduled September 16, 2014.

At the ten month review hearing on September 2, 2014, 

Father was present for the first time. The [c]ourt reminded 

Father to stay in contact with [CYS] after his release from prison 

and to participate in [CYS’s] assessments. He was cooperative 

and submitted to the paternity testing while incarcerated. 

However, after his release later in September, [CYS] was once 

again unable to contact Father. Father never attempted to 

contact [CYS] after his release.

On October 2, 2014, the paternity results established 

[Father] as the biological father of S.R. That same day, the 

caseworker went unannounced to Father’s home. When no one 

answered, she left her card with instructions to contact [CYS]. 

The caseworker also sent a letter informing Father of the 

paternity results. Father testified he never received the card, but 

did agree that he received the letter confirming his paternity. 
J-S31031-16

- 3 -

The caseworker again conducted an unannounced home visit on 

October 15, 2014, but was unable to make contact with Father. 

It is uncontested that [CYS] had no contact with Father during 

this period of time, despite his paternity being confirmed and 

[CYS’s] attempts to contact him. Neither Mother nor Father 

[was] present for the eleven month review hearing held on 

October 22, 2014.

Father contacted [CYS] in November 2014, nearly eight 

months after Father had been apprised [of] S.R.’s existence. He 

was once again in the LCP, having violated his probation. He 

testified that he did not contact the caseworker during the nearly 

two months after he was released from prison because he was 

shocked and distraught that he had a daughter and that she was 

in placement. Father stated that he would be incarcerated for 

one year and was unable to care for S.R. He did provide names 

of possible kinship resources.

Father was given a child permanency plan [(CPP)] for 

reunification with the following objectives: mental health, drug 

and alcohol, crime free, parenting skills, financial stability, obtain 

housing, and commitment. [CYS] encouraged Father to 

participate any mental health and drug and alcohol programs 

available while incarcerated. The fifteen month review hearing 

was held on February 4, 2015. Father, who remained 

incarcerated, was present. Father did send letters to [CYS] for 

S.R., but no progress was reported on his CPP.

On March 12, 2015, [CYS] denied kinship care placement, 

having determined it was in S.R.’s best interest to remain in her 

current resource home where she had been placed since birth, 

and not be moved to either her paternal grandparents’ home or 

Father’s wife’s home. Her resource parents were a possible 

adoptive resource. [On March 26, 2015, CYS filed a petition 

seeking to terminate involuntarily Father’s parental rights to S.R. 

and confirm Mother’s consent to adoption by S.R.’s foster 

parents.]

The [termination of parental rights (TPR)] hearing and 19 

month review hearing were held on June 2 [and July 28,] 2015. 

At that time, Father was incarcerated at SCI Camp Hill and

reported an anticipated release date of November 2015. Father 

reported he participated in the drug and alcohol program and 
J-S31031-16

- 4 -

parenting program at LCP. Father continued to send letters to 

[CYS] for S.R. All of Father’s [CPP] goals remained incomplete.

Orphans’ Court Opinion, 11/13/2015, at 3-6 (citations and unnecessary 

capitalization omitted). 

On November 13, 2015, the orphans’ court issued its decree 

terminating Father’s parental rights to S.R. Father timely filed a notice of 

appeal, along with a concise statement of errors complained of on appeal. 

The orphans’ court filed an opinion.

Father presents this Court with a single question:

Where Father was incarcerated prior to learning that he was the 

parent of a dependent child; where he, while incarcerated 

initiated frequent contact with [CYS] and sought opportunities to 

be involved with his child; where he availed himself of remedial 

programs while in prison; and where his maximum release date 

is not distant, was it an abuse of discretion to grant [CYS’s] 

petition to terminate?

Father’s Brief at 5 (suggested answer omitted).

We consider Father’s question mindful of the following.

In cases involving the termination of a parent’s rights, our 

standard of review is limited to determining whether the order of 

the trial court is supported by competent evidence, and whether 

the trial court gave adequate consideration to the effect of such 

a decree on the welfare of the child.

Absent an abuse of discretion, an error of law, or 

insufficient evidentiary support for the trial court’s decision, the 

decree must stand.... 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.
J-S31031-16

- 5 -

In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (internal quotations and 

citations omitted).

Here, the orphans’ court determined that CYF met its burdens under 

subsections (a)(1) and (a)(2) of 23 Pa.C.S. § 2511, as well as its subsection 

(b) burden. Because we agree with the orphans’ court’s determination that 

CYS met its burden under subsection (a)(2), we need not consider Father’s 

other arguments. In re I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (“This 

Court must agree with only one subsection of [] 2511(a), in addition to 

subsection 2511(b), in order to affirm the termination of parental rights.”). 

The governing statute provides as follows.

(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.

* * *

(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. 
J-S31031-16

- 6 -

23 Pa.C.S. § 2511. 

We first address whether the orphans’ court abused its discretion by 

terminating Father’s parental rights pursuant to Section 2511(a)(2).

In order to terminate parental rights pursuant to 23 Pa.C.S.[] 

§ 2511(a)(2), the following three elements must be met: (1) 

repeated and continued incapacity, abuse, neglect or refusal; (2) 

such incapacity, abuse, neglect or refusal has caused the child to 

be without essential parental care, control or subsistence 

necessary for his physical or mental well-being; and (3) the 

causes of the incapacity, abuse, neglect or refusal cannot or will 

not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation 

omitted). 

[S]ubsection (a)(2) does not emphasize a parent’s refusal or 

failure to perform parental duties, but instead emphasizes the 

child’s present and future need for essential parental care, 

control or subsistence necessary for his physical or mental wellbeing. Therefore, the language in subsection (a)(2) should not 

be read to compel courts to ignore a child’s need for a stable 

home and strong, continuous parental ties, which the policy of 

restraint in state intervention is intended to protect. This is 

particularly so where disruption of the family has already 

occurred and there is no reasonable prospect for reuniting it[.] 

Further, grounds for termination under subsection (a)(2) are not 

limited to affirmative misconduct; those grounds may include 

acts of incapacity to perform parental duties. 

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (citations and quotation 

marks omitted; emphasis in original).

Instantly, the orphans’ court concluded that Father has demonstrated 

a continued inability to parent S.R., and has demonstrated that he is 

incapable of remedying this incapacity. Orphans’ Court Opinion, 11/13/2015, 

at 10-13. In so holding, the court emphasized Father’s present incarceration 
J-S31031-16

- 7 -

and his continued involvement in criminal activity despite confirmation of 

S.R.’s paternity. Id. 

Father contends that, although he has never met S.R. in person, he 

has communicated with his CYS caseworker to inquire about her well-being. 

Father’s Brief at 10-11. Further, while incarcerated, Father has completed a 

number of programs required by CYS. Id. at 14. Finally, Father argues that 

he is “not facing a prolonged period of waiting before he could be in a 

position to parent” S.R. because his “maximum release date is October 

2017, with an earlier release a possibility.” Id. at 13.

Our Supreme Court has held 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. § 2511(a)(2). See e.g. 

Adoption of J.J., 515 A.2d at 891 (“[A] parent who is incapable 

of performing parental duties is just as parentally unfit as one 

who refuses to perform the duties.”); E.A.P., 944 A.2d at 85 

(holding termination under § 2511(a)(2) 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). If a court finds 

grounds for termination under subsection (a)(2), a court must 

determine whether termination is in the best interests of the 

child, considering the developmental, physical, and emotional 

needs and welfare of the child pursuant to § 2511(b). In this 

regard, trial courts must carefully review the individual 

circumstances for every child to determine, inter alia, how a 
J-S31031-16

- 8 -

parent’s incarceration will factor into an assessment of the child’s 

best interest.

In re Adoption of S.P., 47 A.3d 817, 830-31 (Pa. 2012).

After a thorough review of the record in this matter, we conclude that 

the orphans’ court did not abuse its discretion by terminating Father’s 

parental rights involuntarily. The court properly found that Father has never 

provided S.R. with essential parental care, despite having the opportunity to 

do so during 2014 after his release from LCP. The court noted that “it may 

be commendable that Father, while incarcerated, has made an effort to 

become involved in [S.R.’s] life via correspondence, but it is compelling that 

he never made any effort to be involved in her life when in the community.” 

Orphans’ Court Opinion, 11/13/2015, at 10-11. Moreover, the court noted 

that Father cannot presently provide S.R. with parental care and that 

Father’s “declared resolve” to care for S.R. upon his eventual release “is 

doubtful, given his past parenting history while not incarcerated” and his 

“continued criminal activity within the past several years ... despite the 

existence of his other children, the possibility that S.R. might be his child, 

and the later confirmation that S.R. was his child.” Id. at 11. We agree with 

the court that Father’s repeated and continued incapacity has caused the 

S.R. to be without essential parental care, control or subsistence necessary 

for her physical or mental well-being, and the conditions and causes of the 

incapacity cannot or will not be remedied. Accordingly, we find no abuse of 
J-S31031-16

- 9 -

discretion in the orphans’ court determination that CYS met its burden under 

subsection (a)(2).

Next, we consider whether termination was proper under Section 

2511(b). The requisite analysis is as follows.

Subsection 2511(b) focuses on whether termination of parental 

rights would best serve the developmental, physical, and 

emotional needs and welfare of the child. In In re C.M.S., 884 

A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, 

“Intangibles such as love, comfort, security, and stability are 

involved in the inquiry into the needs and welfare of the child.” 

In addition, we instructed that the trial court must also discern 

the nature and status of the parent-child bond, with utmost 

attention to the effect on the child of permanently severing that 

bond. However, in cases where there is no evidence of a bond 

between a parent and child, it is reasonable to infer that no bond 

exists. Accordingly, the extent of the bond-effect analysis 

necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some 

citations omitted).

Here, the orphans’ court concluded that it would be in the best 

interests of S.R. for Father’s parental rights to be terminated. The court 

found that S.R. is strongly bonded with her foster parents, who have cared 

for her since birth, provide for her daily needs and welfare, and wish to 

adopt her. Orphans’ Court Opinion, 11/13/2015, at 14. The court 

determined that, because the two have never met, S.R. has no bond with 

Father. Id. Further, the court expressed concern that Father’s continued 

incarceration and lack of parental involvement during 2014 when he was not 

incarcerated, demonstrate that Father’s “future ability to provide for S.R.’s 
J-S31031-16

- 10 -

welfare and needs and his ability to forge a bond with her is [sic] merely 

speculative.” Id.

Again, we conclude that the record supports the orphans’ court’s 

decision it would be in S.R.’s best interest if Father’s parental rights were 

terminated. S.R. is bonded with her foster parents and is thriving in their 

care. In contrast, the record establishes that S.R. has no bond with Father. 

While Father contends that he will perform his parental duties upon his 

release from state prison, it is clear that, even by Father’s estimation, he will 

not be able to care for S.R. for another year. S.R. deserves better than 

what Father can offer. See, e.g., In re C.L.G., 956 A.2d at 1008 (“[I]f we 

were to permit Mother further opportunity to cultivate an environment where 

she can care for C.L.G., we would be subjecting a child, who has been 

waiting for more than two years for permanency, to a state of proverbial 

limbo in anticipation of a scenario that is speculative at best.”). 

Accordingly, because we conclude that the orphans’ court did not 

abuse its discretion by involuntarily terminating Father’s parental rights 

pursuant to Sections 2511(a)(2) and (b), we affirm the order of the orphans’ 

court.

Order affirmed.
J-S31031-16

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016