J-A02022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: C.C., A MINOR

APPEAL OF: J.C., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1336 MDA 2023

Appeal from the Order Entered August 22, 2023

In the Court of Common Pleas of Tioga County

Orphans' Court at No(s): 3 OC 2022

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED: MARCH 25, 2024

Appellant, J.C. (“Father”), appeals from the order entered in the Tioga 

County Court of Common Pleas, granting the petition of Appellee, Tioga 

County Department of Human Services (“DHS”), for involuntary termination 

of Father’s parental rights to his minor child, C.C (“Child”). We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

Father and child’s mother, T.T. (“Mother”), never married. Prior to Child’s

birth, Father was incarcerated for approximately eight years for burglary and 

related offenses. Child was born in September 2020. At that time, Father

was on parole and living with Mother and her other children. Complicating 

matters, Father also faced an indicated report for sexual abuse of a minor. 

(See Findings of Fact and Conclusions of Law, filed 8/22/23, at 2). After his 

birth, Child tested positive for methamphetamines. Father claimed that he 

was unaware of Mother’s drug use, and Mother and Father took Child home 
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from the hospital. Shortly thereafter, DHS filed an application for emergency 

protective custody. On April 28, 2021, the court granted legal and physical 

custody to DHS. (Id. at 1). 

Less than a month later, Father violated his parole and was 

reincarcerated for using methamphetamine. Father committed a misconduct 

while incarcerated, and he was ineligible for parole until May 2023. (Id. at 2, 

4). While incarcerated, Father received a service plan directing him to utilize 

resources that were available in prison. Specifically, the plan required Father 

to complete parenting programs, a drug and alcohol program, and a 

psychological evaluation. DHS also required Father to meet with his 

caseworker every two months. 

The court conducted regular permanency review hearings after Father 

received the service plan. At each hearing, the court determined that Father 

was minimally compliant. In the meantime, the court adjudicated Child 

dependent in July 2021. On August 2, 2021, DHS placed Child into kinship 

care with a paternal aunt (“Aunt”) and her husband (“Uncle”), where Child has 

remained ever since. (Id. at 2). Significantly, Aunt and Uncle also adopted 

Child’s biological siblings. 

On January 4, 2022, DHS filed a petition to terminate Father’s parental 

rights. The court conducted a termination hearing on April 12, 2023. On 

August 22, 2023, the court entered an order terminating Father’s parental 
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rights to Child.

1

 Father timely filed a notice of appeal and concise statement

of matters complained of on appeal on September 18, 2023. 

Father now raises five issues on appeal. 

Did the trial court err in finding that [DHS] established by 

clear and convincing evidence proper grounds for 

involuntary termination pursuant to 23 Pa.C.S.A. § 

2511(a)(1)? 

Did the trial court err in finding that [DHS] established by 

clear and convincing evidence proper grounds for 

involuntary termination pursuant to 23 Pa.C.S.A. § 

2511(a)(2)? 

Did the trial court err in finding that [DHS] established by 

clear and convincing evidence proper grounds for 

involuntary termination pursuant to 23 Pa.C.S.A. § 

2511(a)(5)? 

Did the trial court err in finding that [DHS] established by 

clear and convincing evidence proper grounds for 

involuntary termination pursuant to 23 Pa.C.S.A. § 

2511(a)(8)? 

Did the trial court err in failing to give primary consideration 

to the parent-child bond between [Father] and the minor 

child pursuant to 23 Pa.C.S.A. § 2511(b) and thus, 

erroneously terminating [Father’s] parental rights? 

(Father’s Brief at 4-5). 

Appellate review in termination of parental rights cases implicates the 

following principles: 

A parent’s right to make decisions concerning the care, 

custody, and control of his or her children is among the 

____________________________________________

1 Mother consented to the termination of her parental rights in April 2022, and

she is not a party to the current appeal. (See N.T. Termination Hearing, 

4/12/23, at 1). 
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oldest of fundamental rights. The time-tested law of the 

Commonwealth requires that we balance this intrinsic 

parental interest within the context of a child’s essential 

needs for a parent’s care, protection, and support. We 

readily comprehend the significant gravity of a termination 

of parental rights, which has far-reaching and intentionally 

irreversible consequences for the parents and the child. For 

these reasons, the burden of proof is upon the party seeking 

termination to establish by clear and convincing evidence 

the existence of the statutory grounds for doing so. [C]lear 

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. Because of this 

serious impact attending the termination of parental rights, 

it is important that a judicial decree extinguishing such 

rights be based solely on competent evidence. 

In cases concerning the involuntary termination of parental 

rights, appellate review is limited to a determination of 

whether the decree of the termination court is supported by 

competent evidence. This standard of review corresponds 

to the standard employed in dependency cases, and 

requires appellate courts to accept the findings of fact and 

credibility determinations of the trial court if they are 

supported by the record, but it does not require the 

appellate court to accept the [trial] court’s inferences or 

conclusions of law. That is, if the factual findings are 

supported, we must determine whether the trial court made 

an error of law or abused its discretion. An abuse of 

discretion does not result merely because the reviewing 

court might have reached a different conclusion; we reverse 

for an abuse of discretion only upon demonstration of 

manifest unreasonableness, partiality, prejudice, bias, or ill 

will. Thus, absent an abuse of discretion, an error of law, 

or insufficient evidentiary support for the trial court’s 

decision, the decree must stand. We have previously 

emphasized our deference to trial courts that often have 

first-hand observations of the parties spanning multiple 

hearings. However, [w]e must employ a broad, 

comprehensive review of the record in order to determine 

whether the trial court’s decision is supported by competent 

evidence. 
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In re Adoption of C.M., ___ Pa. ___, ___, 255 A.3d 343, 358-59 (2021) 

(internal citations and quotation marks omitted). 

DHS filed a petition for the involuntary termination of Father’s parental 

rights on the following grounds: 

§ 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 wellbeing 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(a)(2), (b). “Parental rights may be involuntarily 

terminated where any one subsection of Section 2511(a) is satisfied, along 

with consideration of the subsection 2511(b) provisions.” In re Z.P., 994 
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A.2d 1108, 1117 (Pa.Super. 2010).2 

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] 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. 

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted). 

Father’s issues are related, and we address them together. Father

contends that DHS did not present clear and convincing evidence to support 

the termination of his parental rights. Specifically, Father argues that DHS 

“failed to identify any current concerns regarding Father’s care of” Child. 

(Father’s Brief at 21) (emphasis in original). Father asserts that he was

paroled in May 2023, and he is now sober, employed, and in possession of

stable housing. Based upon the foregoing, Father asserts that he has 

remedied any causes of parental incapacity that led to Child’s removal. 

Regarding Section 2511(b), Father insists that he presented evidence to 

establish his bond with Child. Despite his incarceration, Father maintains that 

a bond exists because Father sent letters and gifts to Child, interacted with 

Child through video calls, and Child calls Father “daddy.” (Id. at 30). Father 

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2 DHS also sought the involuntary termination of Father’s parental rights under 

Section 2511(a)(1), (5) and (8), but we need only analyze Section 2511(a)(2) 

for purposes of this appeal. 
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also claims that DHS “failed to present any testimony that the severing of that

bond would be in the best interest of the child.” (Id.) For these reasons, 

Father concludes that the court erred and abused its discretion by terminating 

his parental rights. We disagree. 

“The bases for termination of parental rights under Section 2511(a)(2), 

due to parental incapacity that cannot be remedied, are not limited to 

affirmative misconduct; to the contrary, those grounds may include acts of 

refusal as well as incapacity to perform parental duties.” In re S.C.B., 990 

A.2d 762, 771 (Pa.Super. 2010). Under Section 2511(a)(2), “the petitioner 

for involuntary termination 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.” In re Z.P., supra at 1117 (quoting In Interest of 

Lilley, 719 A.2d 327, 330 (Pa.Super. 1998)). 

“[I]ncarceration is a factor, and indeed can be a determinative factor, 

in a court’s conclusion that grounds for termination exist under [Section]

2511(a)(2)[.]” In re Adoption of S.P., 616 Pa. 309, 328-29, 47 A.3d 817, 

828 (2012). “Each case of an incarcerated parent facing termination must be 

analyzed on its own facts, keeping in mind ... that the child’s need for 

consistent parental care and stability cannot be put aside or put on hold[.]” 

Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (en banc) (quoting 
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In re E.A.P., 944 A.2d 79, 84 (Pa.Super. 2008)). 

The focus is on whether the parent utilized resources 

available while in prison to maintain a relationship with his 

or her child. An incarcerated parent is expected to utilize all 

available resources to foster a continuing close relationship 

with his or her children. 

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). “Importantly, a 

parent’s ‘recent efforts to straighten out [his] life’ upon release from 

incarceration does not require that a court ‘indefinitely postpone adoption.’” 

Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at 1125). 

Under Section 2511(b), the court must consider whether termination 

will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516 

(Pa.Super. 2006). 

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

involved when inquiring about the needs and welfare of the 

child. The court must also discern the nature and status of 

the parent-child bond, paying close attention to the effect 

on the child of permanently severing the bond. 

Id. at 520 (internal citations omitted). “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.” 

In re Z.P., supra at 1121 (internal citations omitted). 

Instantly, the court received testimony from Randy Brewer, the DHS 

caseworker from April 2021 to November 2022. Mr. Brewer testified that 

Father spent most of his adult life in prison. Despite Father’s reincarceration 
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in May 2021, Mr. Brewer recognized that Father attempted to comply with the 

service plan. Mr. Brewer indicated, however, that Father did not contact him 

until January 2022. Moreover, Mr. Brewer explained that Father was

minimally compliant with the service plan. Although Mr. Brewer admitted he 

did not observe Father’s video calls with Child, Mr. Brewer confirmed that 

Father has not served a parental role since Child was six months old. (See

N.T. Termination Hearing at 49). 

Aunt provided testimony about Child’s placement. Aunt adopted Child’s 

siblings and is amenable to adopting Child. Child is “extremely close” with his 

biological siblings. (Id. at 96). Aunt also stated that she and Uncle have a 

“typical parent relationship” with Child. (Id. at 98). Child calls Aunt 

“momma.” (Id.) Aunt also reiterated that Father did not perform parental 

duties following his reincarceration. 

In addition, Father testified in his own defense. Regarding Mr. Brewer’s 

testimony that Father did not contact him until January 2022, Father claimed 

that the prison caused the delay by failing to add Mr. Brewer to Father’s call 

list. Although Father completed a drug and alcohol program, he admitted that 

he failed to complete parenting classes and a psychological evaluation.

3

Father also testified that he started video calls with Child seven to eight

____________________________________________

3 Father noted, however, that he wrote multiple letters to the teacher inquiring 

about enrollment in the parenting class. (See N.T. Termination Hearing at 

129). 
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months after his incarceration. While Father described Child as being excited 

to see him during the video calls, Father conceded that it was difficult to 

maintain their relationship through video calls. (Id. at 154). Father testified

that he sent his first letter to Child in July 2022 and first gift to Child in 

September 2022. Moreover, Father acknowledged that he spent a minimal 

amount of time with Child since the opening of the case, and his prison

misconduct effectively prevented him from parenting Child. (Id. at 152). 

The court considered the testimony and determined that DHS provided 

clear and convincing evidence in support of termination. 

[Father’s] role as a parent has been nearly non-existent 

although there is evidence of some interest. The most 

troubling features of Father’s stated commitment to 

parenthood are the developments since the birth of [Child]. 

Seven months after [Child] was born, Father received a 

parole violation for drugs and weapons, which means that 

he was engaging in the use of illegal substances. Once 

incarcerated, his stay was extended as a result of at least 

two institutional violations. Bottom line: Father has been 

absent for nearly 21⁄2 years of the 3 years of this child’s life. 

The [c]ourt concludes that Father may well be sincere in his 

desire to remain as [Child’s] parent. Based on the pattern 

of Father’s behaviors, the [c]ourt has no confidence that the 

pattern of behavior of Father will change to the degree that 

promotes a reunification of Father and Child. 

There is no question that [DHS] has demonstrated by clear 

and convincing evidence that the Father, for at least six 

months prior to the filing of the petition on January 4, 2021, 

failed to perform parental duties, and [DHS] established a 

pattern of continuing incapacity to care for [Child]. The only 

question is whether it will be remedied, and the [c]ourt 

cannot accept Father’s representation that all behavioral 

issues are resolved. 
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Secondly, if the [c]ourt were to deny [DHS’s] Petition, it 

would at the very minimum extend the uncertainty for this 

child indefinitely. A number of the ordered components of 

the family service plan remain uncompleted. Father would 

have to complete all of them satisfactorily and endure a 

graduated physical custody schedule. During this period of 

time he would be under state supervision and any violations 

would either serve to extend the uncertainty for this child or 

cause [DHS] to refile for termination. 

(Findings of Fact and Conclusions of Law at 8-9). We accept the court’s 

analysis, which is supported by the record. See In re Adoption of C.M, 

supra. 

The court did not err in determining that Father’s incapacity caused Child 

to be without essential parental care, and the causes of the incapacity cannot 

or will not be remedied. See In re Z.P., supra. Father’s plan to straighten 

out his life following his release from prison does not necessitate a disruption 

of the stability that Child currently enjoys. See Interest of K.M.W., supra. 

Regardless of any bond between Father and Child, terminating Father’s 

parental rights does not destroy an existing, necessary, and beneficial 

relationship for Child. See In re Z.P., supra. Child can achieve permanency 

with Aunt and Uncle, who adopted Child’s siblings and provided Child with 

necessary care since his placement. Thus, our review confirms that clear and 

convincing evidence supported termination of Father’s parental rights under 

Sections 2511(a)(2) and (b). Id. Accordingly, we affirm the order 

terminating Father’s parental rights. 

Order affirmed. 
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/25/2024