J-S67016-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.D., A MINOR

APPEAL OF: J.S., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1790 EDA 2018

Appeal from the Decree Entered May 18, 2018

In the Court of Common Pleas of Wayne County Domestic Relations at 

No(s): 2017-00030

IN RE: I.D., A MINOR

APPEAL OF: J.S., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1791 EDA 2018

Appeal from the Decree Entered May 18, 2018

In the Court of Common Pleas of Wayne County Domestic Relations at 

No(s): 2017-00031

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 18, 2018

J.S. (Mother) appeals the decrees granting the petitions of Wayne 

County Children and Youth Services (CYS) and involuntarily terminating her 

parental rights to her two minor sons, D.D., born in April 2008, and I.D., born 

in July 2009 (collectively, Children). We affirm.
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Children were born to Mother and J.D. (Father).1 At all times relevant 

to this appeal, Mother and Father lived separately, and Mother was married to 

M.S. (Stepfather). Father was the subject of a protection from abuse order 

directing him to have no contact with Children. 

Children were known to CYS and had long histories of fire-setting 

behaviors. In March 2016, Children were evaluated by the Center for Arson 

Research. The fire setter evaluation recommended that there be no fire 

starting materials in Mother and Stepfather’s home, and that Mother and 

Stepfather, who were smokers, keep a single lighter on their person at all 

times. However, each time caseworkers visited the home, candles were 

burning and lighters were left on the table. See N.T., 4/18/18, at 9; Order of 

Adjudication, 5/31/16, at 1. On May 3, 2016, Mother and Stepfather disclosed 

that there were at least two fires set by Children since the March 2016 

evaluation that had not been previously reported. See N.T., 4/18/18, at 9. 

On May 9, 2016, a second fire starter evaluation was conducted and Children 

were both recommended for residential placement. 

On May 11, 2016, CYS filed applications for protective custody and 

shelter care. On May 13, 2016, CYS filed dependency petitions.

Children were adjudicated dependent on May 31, 2016. See Order of 

Adjudication, 5/31/16; see also N.T., 4/18/18, at 11. At that time, Mother’s 

____________________________________________

1 We note that although Father did not appear at the termination hearing. 

However, he was represented by counsel at the hearing. Father has not 

appealed the order terminating his parental rights. 
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goals were to build and maintain an attachment to Children; participate in 

family therapy; be open and honest with the therapist and staff; follow any 

and all recommendations of the diagnostics or treatment plan; attend 

reasonable appointments; follow the schedule provided by CYS with regard to 

visitation; be available for visitation contact requests; provide adequate 

supervision of Children and maintain a structured home; lock up all fire-related 

items immediately; be a law-abiding citizen; and provide the agency with any 

changes in address or family circumstances within twenty-four hours. See 

N.T., 4/18/18, at 12-15; see also Pet. Ex. 1. D.D. was placed in a residential 

treatment facility, and I.D. was placed in therapeutic foster care. Id. at 25-

26.

On August 9, 2016, Mother was charged with committing sexual 

offenses against Stepfather’s relatives, who were minors.

2

 The offenses were 

alleged to have been committed in 2013 and 2014. 

Permanency review hearings were held in September 2016, December 

2016, March 2017, August 2017, and October 2017. Id. at 14. During the 

pendency of this case, Mother was often minimally or non-compliant. Id. at 

14-15. Between May 2016 and July 2017, she attended nine of twenty-nine 

visits. Id. at 15. In September 2016, she had no contact with CYS. In 

December 2016, she did not participate in treatment meetings or scheduled 

visits. See Permanency Review Order, 12/6/16, at 1. In March 2017, Mother 

____________________________________________

2 Stepfather was a co-defendant. 
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reached out to her caseworker to express an interest in seeing Children, but 

did not provide a telephone number; nor was she participating in treatment 

meetings or scheduled visits. See Permanency Review Order, 3/7/17, at 1. 

In July 2017, Mother and Stepfather were found guilty of sexual offenses.3 In 

August 2017, Mother was in moderate compliance, but was awaiting 

sentencing on criminal charges. See Permanency Review Order, 8/8/17, at 

1. 

Mother was sentenced in October 2017 to an aggregate term of eleven 

to forty years’ incarceration. Additionally, she was designated as both a Tier 

III sex offender and a sexually violent predator.4 See N.T., 4/18/18, at 17; 

see also Pet. Ex. 4 and 5. Although Mother was in moderate compliance

with the family plan, CYS sought a finding of aggravated circumstances based 

on the convictions. See Permanency Review Order, 10/25/17, at 1.

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3 See 18 Pa.C.S. §§ 3122.1 (relating to statutory sexual assault), 3123 

(relating to involuntary deviate sexual intercourse). In full, Mother was 

convicted of involuntary deviate sexual intercourse, statutory sexual assault 

–11 years or older, two counts of indecent assault–complainant less than 13, 

two counts of indecent exposure, two counts of corruption of minors related 

to sexual offenses, and indecent assault. See 18 Pa.C.S. §§ 3123, 3122.1, 

3127, 6301, 3126, respectively. 

4 Mother took an appeal from the criminal conviction. Mother’s appellate 

counsel in the criminal case indicated an intent to file an Anders/Santiago

brief, but subsequently failed to file a brief. See Anders v. California, 386 

U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

Mother’s appeal was dismissed for the failure to file a brief on September 20, 

2018. See 3494 EDA 2017, Order, 9/20/18, at 1. On October 15, 2017, 

counsel filed a certificate indicating that he informed Mother by mail of the 

dismissal of her criminal appeal. 
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On October 25, 2017, the trial court entered an order finding aggravated 

circumstances due to Mother’s criminal convictions, which required her to 

register as a sex offender. See Aggravated Circumstances Order, 10/25/17,

at 1. On November 27, 2017, CYS filed petitions seeking to involuntarily 

terminate the parental rights of Mother and Father pursuant to Section 

2511(a)(1), (2), (5), (8), and (11). 

The trial court convened hearings on the petitions to terminate parental 

rights on and May 18, 2018. Mother appeared, represented by counsel.

5

Children were represented by legal counsel, Michael Lehutsky, Esq., and a 

guardian ad litem (GAL), Leatrice Anderson, Esq.

6

 Veronica Rohrbach, a 

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5 As noted above, Father did not appear at the termination proceeding. 

6 Although not raised by Mother, we briefly address the representation 

provided to Children by Attorney Lehutsky. See In re K.J.H., 180 A.3d 411, 

412-14 (Pa. Super. 2018). Our Supreme Court, in In re Adoption of L.B.M., 

161 A.3d 172, 183 (Pa. 2017) (plurality), held that 23 Pa.C.S. § 2313(a) 

requires that counsel be appointed to represent the legal interests of any child 

involved in contested involuntary termination proceedings. The Court noted 

that legal interests are synonymous with the child’s preferred outcome, but 

the child’s best interests are determined by the court. Id. at 174. Since 

L.B.M., this Court has clarified the requirements counsel must meet in order 

to provide adequate representation in termination matters. See In re 

Adoption of T.M.L.M., 184 A.3d 585, 587-91 (Pa. Super. 2018). The 

Pennsylvania Supreme Court has held that: (1) a GAL may serve as counsel 

where there is no conflict between the child’s legal and best interests, and (2)

there is no conflict between the child’s best and legal interests if the child is 

non-communicative due to the child’s young age. See In re T.S., 192 A.3d 

1080, 1092-93 (Pa. 2018).

Children, approximately ten and eight years old at the time of the hearing, 

were able to communicate their preferences. The trial court appointed 

Attorney Lehutsky as legal counsel for Children. Attorney Lehutsky was 
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caseworker, testified for CYS. Additionally, the dependency case records were 

admitted into evidence, along with exhibits from both CYS and Mother.

Ms. Rohrbach testified regarding the history of the case, and noted that 

Children want to remain with their mother, and have a very strong bond with 

her. See N.T., 4/18/18, at 23. However, she did not believe Children would 

be negatively impacted by termination. Id. at 24-25. At the time of the 

termination hearings, Children had been in care twenty-three months and 

were aware there was a possibility they would not be going home. Id. at 25. 

Children were aware Mother was in prison and the length of her sentence. Id.

at 25. I.D.’s foster mother was interested in a permanent placement, and I.D. 

had developed a bond with her, and would like a permanent home. Id. at 27. 

D.D. wanted a family he could call his own. Id. at 30. Additionally, both 

Children were undergoing extensive trauma therapy, and D.D. and I.D. had 

recently disclosed to their therapists more details regarding the physical and 

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present at the hearings and participated in cross-examination, and stated 

Children’s preferences to stay with Mother on the record. 

However, Attorney Lehutsky focused most of his argument on Children’s best 

interests and continues to argue their best interests before this Court. See, 

e.g., T.M.L.M., 184 A.3d at 590 (recognizing that counsel’s duty to represent 

a child does not stop at the conclusion of the termination hearing); see also 

T.S., 192 A.3d at 1092 (noting child’s statutory right to appointed counsel is 

not subject to waiver). We remind counsel that he should have advocated for 

Children’s legal preferences. See T.M.L.M., 184 A.3d at 590-91. However, 

this error does not impede our review under the circumstances of this case 

and, accordingly, we need not remand. 
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sexual abuse they suffered in Mother’s home.7 Id. at 58-59. CYS believed it 

was in Children’s best interests for Mother’s parental rights to be terminated. 

Id.

Mother testified that she is currently incarcerated in a state correctional 

institution.

8

 See N.T., 5/18/18, at 5-10. In addition to D.D. and I.D., Mother 

has five other children, one of whom lives with his biological father, the other 

four of whom live with Mother’s mother-in-law and father-in-law. Id. at 22. 

Mother stated that she could participate in a program to gain contact visits 

with Children within a year. Id. at 18-19. Additionally, she testified that she 

could still be a parent to Children and call them every day twice a day if 

needed. Id. at 18. The last time she had contact with Children was July 2017, 

before her criminal trial. She has been incarcerated since her conviction. Id. 

However, Mother writes to Children two to three times a month and draws 

pictures for Children. Id. at 20. Mother introduced a number of certificates 

for programs and religious classes she had completed while incarcerated. Id.

at 26-27. 

Mother could parent them “on the side” by telephone. Id. at 29-30. 

Mother asserted that her sister in Philadelphia could be a resource for Children. 

Id. She also identified her mother and Stepfather’s parents as possible

resources. However, maternal grandmother has an indicated report of child 

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7 The record does not provide further details regarding this abuse.

8 Mother was brought to Wayne County Correctional Facility for the purposes 

of the hearing. 
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abuse against her that was under administrative appeal at the time of the 

hearing, and Mother acknowledged that Stepfather’s parents would need 

assistance to find a larger home to accommodate Children. Id. at 44. 

At the conclusion of the hearing, the trial court found that CYS had met 

its burden by clear and convincing evidence and terminated Mother’s parental 

rights under Sections 2511(a)(1), (2), (5), (8), and (11). Mother filed a timely 

notice of appeal and in response to the trial court’s order, subsequently filed 

a concise statement of errors complained of on appeal. The trial court filed a 

responsive opinion. 

Mother presents the following issue for our review: “Whether the [t]rial 

[c]ourt abused its discretion in terminating [Mother’s] parental rights?” See

Mother’s Brief at 5.

Mother raises several interconnected arguments challenging the 

termination of her parental rights under Section 2511(a)(11). First, she 

contends that the termination orders are premature due to her pending appeal 

of her July 2017 criminal convictions. See Mother’s Brief at 13-16. Mother 

notes that the grounds upon which termination was based are “somewhat tied 

into the fact” that Mother is currently incarcerated. Id. Second, Mother 

argues that even if her convictions are upheld, she can provide meaningful 

but distant parental care for Children with the assistance of family members. 

Id. at 15. 

We review cases involving the termination of parental rights according 

to the following standards:
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The standard of review in termination of parental rights cases 

requires appellate courts to accept the findings of fact and 

credibility determinations of the trial court if they are supported 

by the record. If the factual findings are supported, appellate

courts review to determine if the trial court made an error of law 

or abused its discretion. A decision may be reversed for an abuse 

of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. The trial 

court’s decision, however, should not be reversed merely because 

the record would support a different result. We have previously 

emphasized our deference to trial courts that often have first-hand 

observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted). To affirm the trial court, we need only agree with any one of the 

subsections of 2511(a), as well as subsection (b). See In re B.L.W., 843 

A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we will focus our analysis 

on Subsection (a)(11) and (b). 

Termination requires a bifurcated analysis:

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 

or her 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. One major aspect of the needs and welfare analysis 

concerns the nature and status of the emotional bond between 

parent and child, with close attention paid to the effect on the child 

of permanently severing any such bond.

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

The relevant sections of 23 Pa.C.S. § 2511 provide that:
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(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:

* * *

(11) The parent is required to register as a sexual offender 

under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration 

of sexual offenders) or I (relating to continued registration 

of sexual offenders) [42 Pa.C.S. §§ 9799.10 et seq., 

9799.51 et seq.] or to register with a sexual offender 

registry in another jurisdiction or foreign country.

* * *

(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.

We first address the trial court’s findings under 23 Pa.C.S. § 

2511(a)(11). Mother’s criminal convictions require her to submit to lifetime 

registration as a Tier III sex offender. See 42 Pa.C.S. § 9799.14(d)(3)-(4); 

42 Pa.C.S. § 9799.15(a)(3). Mother admitted that she had been convicted of 

these crimes, and evidence of her convictions was also admitted into evidence 

at the time of the hearing. See N.T., 5/18/18, at 5-10. Mother acknowledged 

that, upon her eventual release from prison, she will be required to submit to 

lifetime registration. Id. Mother does not challenge the propriety of the trial 
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court’s findings under Section 2511(a)(11), or aver that CYS did not present 

sufficient evidence that she falls into this category, but only argues that the 

termination petition should have been held in abeyance until the conclusion of 

her appeal. She cites no authority in support of this position, and we have 

found none. Accordingly, her argument is unavailing and we discern no error 

in the trial court’s finding that CYS had met its burden by clear and convincing 

evidence that Section 2511(a)(11) applied.9 T.S.M., 71 A.3d at 267.

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9 We add that our review also compels us to agree that with the trial court 

that termination of Mother’s parental rights was proper under Section 

2511(a)(2). 

Section 2511(a)(2) requires proof of “(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., 994 A.2d 1108, 1117 (Pa. Super. 2010) 

(citation omitted). Section 2511(a)(2) emphasizes “the child’s present and 

future need for essential parental care, control or subsistence necessary for 

his physical or mental well-being. . . . This is particularly so where disruption 

of the family has already occurred and there is no reasonable prospect for 

reuniting it.” Id. (citation and emphasis omitted). Moreover:

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).

In re Adoption of S.P., 616 Pa. 309, 332, 47 A.3d 817, 830 (Pa. 2012). 
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We turn next to the trial court’s findings under Section 2511(b). We 

note that Mother makes no effort to argue that the trial court abused its 

discretion with regard to this section or, indeed, any concrete argument 

regarding the needs and welfare of Children. Accordingly, she risks waiver of 

the issue. See In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 

2013) (declining to address subsection 2511(b) where the appellant did not 

make an argument concerning that subsection). But see In re C.L.G., 956 

A.2d 999, 1010 (Pa. Super. 2008) (en banc). Even if she did not waive the 

issue, however, her arguments would be unavailing.

In the context of a Section 2511(b) analysis, “the court must consider 

whether the child’s needs and welfare will be met by termination[,] whether 

a natural parental bond exists between child and parent, and whether 

termination would destroy an existing, necessary and beneficial relationship.” 

In re Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. 2007) (citations 

omitted). The court is not required to use expert testimony, and social 

workers and caseworkers may offer evaluations as well. Z.P., 994 A.2d at 

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Mother asserts that she “has attempted—and believes that she will be capable 

going forward—to provide some parental governance and support to 

remediate some of her admitted parental incapacity due to her incarceration 

. . . .” Mother’s Brief at 13-14. As noted by the trial court, however, in 

addition to Mother’s current incarceration, Mother “failed to perform parental 

duties for at least two years and, even before she was incarcerated, 

demonstrated a lack of capacity to perform parental duties, an inability to 

handle [C]hildren’s special needs, and an inability to keep the Children and 

others around them safe.” Trial Court Op., 6/19/18, at 7-8. Our review 

reveals no basis to disturb the trial court’s conclusion as to Section 

2511(a)(2). 
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1121. Ultimately, the concern is the needs and welfare of a child. Id. Where 

there is no evidence of a bond between the 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).

We have noted that

[b]efore granting a petition to terminate parental rights, it is 

imperative that a trial court carefully consider the intangible

dimension of the needs and welfare of a child—the love, comfort, 

security, and closeness—entailed in a parent-child relationship, as 

well as the tangible dimension. Continuity of relationships is also 

important to a child, for whom severance of close parental ties is 

usually extremely painful. The trial court, in considering what 

situation would best serve the child[ren]’s needs and welfare, 

must examine the status of the natural parental bond to consider 

whether terminating the natural parents’ rights would destroy 

something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 

2000)) (emphasis in original).

In considering the affection which a child may have for his or her natural 

parents, this Court has stated the following:

[C]oncluding a child has a beneficial bond with a parent simply 

because the child harbors affection for the parent is not only 

dangerous, it is logically unsound. If a child’s feelings were the 

dispositive factor in the bonding analysis, the analysis would be 

reduced to an exercise in semantics as it is the rare child who, 

after being subject to neglect and abuse, is able to sift through 

the emotional wreckage and completely disavow a parent. . . . Nor 

are we of the opinion that the biological connection between [the 

parent] and the children is sufficient in of itself, or when 

considered in connection with a child’s feeling toward a parent, to 

establish a de facto beneficial bond exists. The psychological 

aspect of parenthood is more important in terms of the 

development of the child and [the child’s] mental and emotional 

health than the coincidence of biological or natural parenthood.
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In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and quotation 

marks omitted). 

Here, there was evidence presented that Children have a bond with 

Mother, and would prefer to remain with her if possible. However, Mother, 

even if released at her minimum sentence date, will be incarcerated until 

Children are adults. Children have been in care for two years, and both require 

extensive therapy in order to achieve stability and permanency. Ms. 

Rohrbach, Children’s caseworker, concluded that severing the bond with 

Mother would not harm Children and that such a severance would best serve 

their needs and welfare.

The trial court thoroughly and aptly observed:

[w]ith respect to the bond effects and needs and welfare analyses 

required by [Subsection (b)], it was and remains clear to us that 

the best interests and welfare of the Children require that Mother’s 

parental rights be terminated. It appears that Mother and the 

Children are bonded. However, given the history of this case, 

Mother’s sex offense convictions and registration obligation, the 

Children’s special needs, and the Children’s own abuse that is just 

now coming to light, the parent-child bond is not a healthy one. 

Considering all relevant facts and circumstances, we found that 

maintaining the unhealthy bond would be contrary to the needs, 

welfare, and best interests of the Children and that the benefits of 

severing the bond far outweighed any adverse impacts that might 

be felt as a result of the severance.

We further found that severing the bond would have the salutary 

effect of clearing the way for the adoption of both boys, which is 

and has been the unappealed goal of the underlying dependency 

cases. This is especially significant as to I.D. who has developed 

a strong bond with his foster mother who desires to adopt him. 

As to this relationship, we found and continue to believe that 

severing the bond between I.D. and his foster Mother would cause 

I.D. severe harm. I.D. deserves and has the right of finality and 
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permanency in his life, and with an adoptive resource readily 

available there is no reason why that right should be withheld from 

him.

D.D. is not in a pre-adopt[ive] home. D.D. has more behavioral 

issues than I.D. This has caused him to be placed in congregate 

care, a placement that will hopefully change soon. At the TPR 

hearing, evidence was presented that interaction with Mother 

triggers D.D.’s behavioral issues and causes him to regress. D.D. 

deserves the opportunity to heal and achieve a point in his life 

where permanency is made available to him and he can find a 

forever home. With Mother in the picture, this goal would likely 

be unachievable.

The Children need and deserve the permanency, stability, love, 

support, and parental care that the law demands and that is the 

natural right of all children. Their needs have not been met by 

Mother. Rather, others have been providing parenting and care 

for the Children while Mother has not. Further, Mother will be 

incarcerated until after the Children become adults. Nothing in 

the record even remotely suggests that Mother will be able to 

meet the Children’s needs in the future. Given all relevant 

circumstances, we found and still believe that the Children’s lives 

simply could not and should not be put on hold based on Mother’s 

longshot hopes that her criminal convictions will be overturned or 

that, at some point in the future when Mother is released from 

prison after both boys become adults, Mother will summon the 

ability to handle the responsibility of parenting. Even if Mother 

was not incarcerated, the facts presented show that the 

environment Mother would have the Children in is one that is not 

suitable and would raise severe concerns for the Children’s safety 

and well-being. Simply, under the facts and circumstances of this 

case, we found that termination of Mother’s parental rights would 

best serve the developmental, physical, and emotional needs and 

welfare of the children and promote the children’s best interests. 

We still do.

See Trial Ct. Op., 7/19/18, at 10-12. We find no error or abuse of discretion 

in this analysis.

Accordingly, we conclude that the clear and convincing evidence of 

record supports the termination of Mother’s parental rights under Section
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2511(a)(11) as well as the Section 2511(b) findings that despite the bond 

between Mother and Children, termination would best serve Children’s needs 

and welfare. See Z.P., 994 A.2d at 1126-27. 

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/18