J-A26041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.W., A 

MINOR

APPEAL OF: M.W., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1217 EDA 2021

Appeal from the Order Entered June 1, 2021

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0002042-2018

IN THE INTEREST OF: H.W., A 

MINOR

APPEAL OF: M.W., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1218 EDA 2021

Appeal from the Order Entered June 1, 2021

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-AP-0000083-2021

BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.

DISSENTING MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2021

As I believe the certified record sustains the trial court’s decision to 

terminate the parental rights of M.W. (“Father”) to his son, H.W., I respectfully 

dissent. In contrast to the learned majority, I can find no basis to disturb the 

trial court’s conclusion that the Philadelphia Department of Human Services 

(“DHS”) presented clear and convincing evidence to establish the statutory 

grounds to terminate Father’s parental rights pursuant to 23 Pa.C.S. 
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§ 2511(a)(1). Thus, I would address Father’s remaining three claims and, as 

discussed infra, affirm the orders.

Instantly, the trial court found grounds for termination pursuant to 23 

Pa.C.S. § 2511(a)(1), (2), (5), and (8). These subsections provide 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:

(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.

. . . .

(5) The child has been removed from the care of the parent 

by the court or under a voluntary agreement with an agency 

for a period of at least six months, the conditions which led 

to the removal or placement of the child continue to exist, 

the parent cannot or will not remedy those conditions within 

a reasonable period of time, the services or assistance 

reasonably available to the parent are not likely to remedy 

the conditions which led to the removal or placement of the 

child within a reasonable period of time and termination of 

the parental rights would best serve the needs and welfare 

of the child.

. . . .

(8) The child has been removed from the care of the parent 

by the court or under a voluntary agreement with an 
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agency, 12 months or more have elapsed from the date of 

removal or placement, the conditions which led to the 

removal or placement of the child continue to exist and 

termination of parental rights would best serve the needs 

and welfare of the child.

23 Pa.C.S. § 2511(a)(1), (2), (5), (8). We need only agree with the court as 

to any one subsection of § 2511(a), in addition to § 2511(b), to affirm the 

order terminating involuntarily Father’s parental rights. In re B.L.W., 843 

A.2d 380, 384 (Pa.Super. 2004) (en banc). 

Appellate review in cases involving involuntary termination of 

parental rights is limited to determining whether the trial court’s 

determination is supported by competent evidence. When 

applying this standard of review, an appellate court must accept 

the findings of fact and credibility determinations of the trial court 

if they are supported by evidence of record. Where the trial 

court’s factual findings are supported by the evidence, an 

appellate court may not disturb the trial court’s ruling unless it 

has discerned an error of law or abuse of discretion. An abuse of 

discretion is found where there is a demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill will. It matters 

not that an appellate court might have reached a different 

conclusion, as it is well-established that absent an abuse of 

discretion, an error of law, or insufficient evidentiary support for 

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

In re Adoption of L.A.K., No. 14 WAP 2021, 2021 WL 6071745 at *7 (Pa. 

Dec. 23, 2021) (cleaned up).

Initially, I agree with the learned majority that § 2511(a)(5) and (8) are 

inapplicable because H.W. was not removed from the care of Father. See 

Majority at 12. In fact, Father was already incarcerated at the time of H.W.’s 

removal. Nonetheless, I cannot agree with the majority’s conclusion that the 

trial court erred in finding DHS presented clear and convincing evidence 

establishing grounds for termination under § 2511(a)(1). Contrary to our 
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Supreme Court’s recent admonishment, it appears that, “[r]ather than 

determine whether the trial court’s findings of fact were supported by evidence 

of record, the [majority instead] reviewed the record de novo, making its own 

credibility determinations and findings of fact.” L.A.K., supra at *10. Our 

Supreme “Court has repeatedly stated that in termination cases involving 

close calls, deference to the trial court’s determination is particularly crucial.” 

Id. at *11.

Here, the learned majority focuses on § 2511(a)(2), concluding that 

clear and convincing evidence was not presented where the caseworker’s “sole 

reason” for “why reunification would not be possible . . . was Father’s 

incarceration and consequent inability to be a resource for the child.” Majority 

at 16 (citation and quotation marks omitted). While the majority relies on In 

re R.I.S., 36 A.3d 567, 569 (Pa. 2011), for the proposition that “a parent’s 

incarceration, standing alone, cannot constitute proper grounds for the 

termination of his or her parental rights,” it neglected the trial court’s finding 

that Father failed to use reasonable efforts to overcome the obstacle of his 

incarceration. Id. Hence, for the reasons I explain below, I reject my learned 

colleagues’ preoccupation with § 2511(a)(2) and, instead, would find that the 

certified record supports the trial court’s analysis pursuant to § 2511(a)(1). 

In In Re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court 

addressed the effects of incarceration on a court’s termination analysis under 

§ 2511(a)(1) and (2). As to § 2511(a)(2), “[i]ncarceration neither compels 

nor precludes termination[,]” but rather “is a factor, and indeed can be a 
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determinative factor, in a court’s conclusion that grounds for termination exist 

under § 2511(a)(2)[.]” Id. at 828 (cleaned up). As to subsection 2511(a)(1), 

the S.P. Court observed as follows:

Applying in [In re McCray's Adoption, 331 A.2d 652 (Pa.1975)] 

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.” Id. at 655. We observed that the 

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

difficult.” Id.

. . . .

[The McCray's Court] stated:

[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.

Id. at 655 (footnotes and internal quotation marks omitted).

Notably, we did not decree that incarceration could never be a 

factor in a court’s determination that grounds for termination had 

been met in a particular case. Instead, the emphasis of this 

passage was to impose on the incarcerated parent, 

pursuant to an abandonment analysis, a duty to utilize 

available resources to continue a relationship with his or 

her child.

Id. at 828 (emphasis added). Thus, as established in In re McCray's 

Adoption, the primary focus of the § 2511(a)(1) analysis is whether an 
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incarcerated parent exercised reasonable firmness in declining to yield to 

obstacles created by imprisonment and employed available resources to 

maintain a relationship with his or her child. See In re Adoption of Dale A., 

II, 683 A.2d 297, 302 (Pa.Super. 1996) (noting “a parent’s responsibilities 

are not tolled during his incarceration. Instead, a reviewing court must 

analyze whether the parent utilized those resources available while in prison 

to maintain a relationship with his child.”).

Instantly, at the time of the hearing on April 28, 2021, H.W. was four 

years old. Father had been incarcerated H.W.’s entire life, and his earliest 

potential release date would be May of 2022. Jasmine Jackson, the case 

manager for the Community Umbrella Agency, testified that Father was aware 

of H.W.’s placement. She noted that although Father was engaged in a 

parenting program and GED course as part of his single case plan, due to his 

continued incarceration, he was not available as a resource for H.W. N.T., 

4/28/21, at 103. Father did not have telephone contact with H.W. through 

the foster parent. Id. at 126. Father inquired about virtual visits with H.W., 

but Ms. Jackson did not hear back from the contact person with whom she 

had been put in contact with by Father for arranging such visits. Id. at 111, 

127. According to Father, he “check[ed] in here and there” about the virtual 

visits but had not heard anything. Id. at 111. Prior to H.W.’s placement, 

Mother would bring H.W. to visit Father in the county jail on a weekly basis. 

However, since H.W.’s placement in 2019, the only contact Father has had 
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with H.W. was an undisclosed number of telephone calls, which only occurred

during Mother’s visits with H.W. Id. at 104. 

While Father testified that his earliest release date could be in May of 

2022, over one year from the date of the hearing, Father could not guarantee 

he would be released at that time. Accordingly, H.W. would remain in foster 

care for at least another twelve months until Father’s possible release. Even 

after Father’s release, it is unclear when, if ever, he would be able to 

demonstrate the maturity and stability needed to parent H.W. As this Court 

has often emphasized, “a child’s life cannot be held in abeyance while a parent 

attempts to attain the maturity necessary to assume parenting 

responsibilities. The court cannot and will not subordinate indefinitely a child’s 

need for permanence and stability to a parent’s claims of progress and hope 

for the future.” In re R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006). Moreover, 

the evidence presented did not establish an attempt by Father to use his 

available resources to overcome the obstacle of incarceration in providing 

parental care to H.W. Besides asking once to set up virtual visits and checking 

the status of that request “here and there[,]” Father did not otherwise attempt 

to set up virtual visits or call H.W. through the foster parent, and there was 

no evidence that Father sent H.W. letters, cards, or other correspondence in 

an attempt to maintain a place of importance in H.W.’s life. 

Based on the foregoing, I agree with the trial court that “Father’s 

continued incapacity caused [H.W.] to be without essential parental care, 
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control or subsistence, and the causes of the incapacity could not or would not 

be remedied by him, [thereby] establishing grounds for termination of his 

parental rights.” Trial Court Opinion, 7/27/21, at 20. Hence, the trial court 

did not abuse its discretion in concluding that DHS proved, by clear and 

convincing evidence, that termination of Father’s parental rights was 

warranted pursuant to § 2511(a)(1).

Next, I address whether the involuntary termination of parental rights 

would best serve H.W.’s developmental, physical, and emotional needs and 

welfare pursuant to subsection 2511(b).1

This Court has explained the requisite analysis 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 

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1 The Adoption Act outlines the pertinent considerations as follows:

(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. § 2511(b).
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status of the parent-child bond, with utmost attention to the effect 

on the child of permanently severing that bond. Id. 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. In re K.Z.S., 

946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent 

of the bond-effect analysis necessarily depends on the 

circumstances of the particular case. Id. at 63.

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

matter, Pennsylvania does not require the trial court to enlist a formal bonding 

evaluation, and the court’s needs and welfare analysis need not hinge upon 

expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).

In relation to § 2511(b), the trial court “found that DHS provided clear 

and convincing evidence that termination of Father’s parental rights met the 

developmental, physical and emotional needs and welfare of the Child, and 

the statutory requirements pursuant to 23 Pa.C.S. . . . § 2511(b).” Trial Court 

Opinion, 7/27/21, at 20. For the following reasons, I agree.

Father argues that he was trying to work on the bond by setting up 

virtual visits, albeit unsuccessfully, and speaking to H.W. on the telephone 

during Mother’s visits. Father’s brief at 38-39. The record belies this 

assertion. 

At the evidentiary hearing, Ms. Jackson acknowledged that Father had 

inquired about virtual visits, but his contact person did not respond to her. 

She further acknowledged that the content of the telephone calls she observed 

during Mother’s visits was “appropriate.” However, she did not observe any 

parent/child bond between Father and H.W., who never asked for Father, and 
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Father conceded that H.W. probably would not remember him. N.T., 

4//28/21, at 104, 111, 126-27. Accordingly, I would find that the trial court 

did not abuse its discretion in concluding that DHS had presented clear and 

convincing evidence in support of termination under § 2511(b).

Finally, I turn to Father’s arguments challenging the goal change. This 

Court reviews a goal change order for an abuse of discretion. In re R.J.T., 9 

A.3d 1179, 1190 (Pa. 2010). When considering a goal change petition, “[t]he 

best interests of the child, and not the interests of the parent, must guide the 

trial court. As this Court has held, a child’s life simply cannot be put on hold 

in the hope that the parent will summon the ability to handle the 

responsibilities of parenting.” In re A.B., 19 A.3d 1084, 1089 (Pa.Super. 

2011) (citations and quotation marks omitted). 

As with his first claim, Father posits that the trial court abused its 

discretion when it changed H.W.’s goal to adoption because Father was 

complying with his single case plan goals and attempting to maintain contact 

with H.W. Father’s brief at 39-45. For the reasons already discussed 

throughout this dissenting memorandum, I believe Father’s claim is meritless. 

In sum, Father has failed to meaningfully attempt to overcome the obstacle 

of his incarceration. He has shown himself unwilling or incapable of providing 

H.W. with permanence and stability. Moreover, the certified record confirms 

that H.W. does not share a parental bond with Father. Thus, the record 

supports the court’s finding that it does not serve H.W.’s best interests to 
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preserve the goal of reunification. Accordingly, I would not disturb the goal 

change order.

For all of the foregoing reasons, I do not discern an error of law or abuse 

of discretion in the trial court's decision to terminate Father's parental rights 

to H.W. and change H.W.’s permanent placement goal to adoption.

Accordingly, I would affirm the trial court’s orders.