J-S01001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: P.T.M. AND K.L.M., MINORS

APPEAL OF: J.H. AND C.N.M., 

FATHER AND MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1539 MDA 2017

Appeal from the Decree Entered September 5, 2017

in the Court of Common Pleas of Lancaster County,

Orphans’ Court at No(s): 0287-2017

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018

J.H. (“Father”) and C.N.M. (“Mother”) appeal from the Decree entered 

on September 5, 2017, granting the Petition filed by the Lancaster County 

Children and Youth Social Service Agency (“Agency”) to terminate their 

parental rights to their minor, female child, K.L.M. (“K”) (born in April of 

2015). Mother additionally challenges the termination of her parental rights 

her minor, male child, P.T.M. (“P”) (born in June of 2009).1 After careful 

review, we vacate and remand for additional proceedings in the trial court.

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1 P’s father is R.F.M., whose paternal rights to P were voluntarily terminated 

by a Decree entered on June 5, 2017. Trial Court Opinion, 11/2/17, at 1 n.1. 

R.F.M. has not filed an appeal from the termination of his parental rights, nor 

is he a party to the instant appeal. 
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In its Opinion, the trial court summarized the factual and procedural 

history underlying the instant appeal, which we adopt as though fully restated 

herein. See Trial Court Opinion, 11/2/17, at 1-14. 

 On September 5, 2017, the trial court entered its Decree terminating 

the parental rights of Mother to P, and of Mother and Father to K. On October 

3, 2017, both parents filed a joint, single Notice of appeal from the Decree, 

along with a Concise Statement of errors complained of on appeal, pursuant 

to Pa.R.A.P. 1925(a)(2)(i) and (b).

2

 

Father and Mother argue that the Agency did not establish, by clear and 

convincing evidence, the grounds for termination pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), and/or (8). Brief for Appellants at 15-57. Father and 

Mother further contend that, even if the Agency established by clear and 

convincing evidence grounds for termination pursuant to 23 Pa.C.S.A.

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2 On April 16, 2013, the Note to Pa.R.A.P. 341 was amended to state that,

where one or more orders resolves issues arising on more than one docket or 

relating to more than one judgment, an appellant must file separate notices 

of appeal from each order or judgment. See Pa.R.A.P. 341, Note. In General 

Electric Credit Corp. v. Aetna Casualty and Surety Co., 263 A.2d 448, 

452 (Pa. 1970), the Pennsylvania Supreme Court stated that “taking one 

appeal from several judgments is not acceptable practice and is discouraged.” 

In Commonwealth v. C.M.K., 932 A.2d 111, 113 (Pa. Super. 2007), this 

Court quashed a joint notice of appeal filed by co-defendants from separate 

judgments of sentence, citing General Electric, supra and Pa.R.A.P. 512, 

Note. Father and Mother should have filed a separate notice of appeal from 

the termination Decrees as to each child, and had the appeals entered on 

separate dockets. If they had done so, the appeals would have been 

consolidated for the convenience of the panel and the parties, in any event. 

See Pa.R.A.P. 513. We, therefore, do not find the appeals defective, and will 

address them.
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§ 2511(a), the Agency did not establish, by clear and convincing evidence, 

the 23 Pa.C.S.A. § 2511(b) requirement, i.e., that the developmental, physical

and emotional needs and welfare of the children would not be harmed by 

termination of parental rights. Brief for Appellants at 52. Father and Mother 

assert that the case should be remanded for a proper subsection (b) analysis.

In reviewing an appeal from the termination of parental rights, we 

adhere to the following standard: 

[A]ppellate courts must apply an abuse of discretion 

standard when considering a trial court’s determination of a 

petition for termination of parental rights. As in dependency 

cases, our standard of review requires an appellate court to accept 

the findings of fact and credibility determinations of the trial court 

if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 

A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, 

appellate courts review to determine if the trial court made an 

error of law or abused its discretion. Id.; R.I.S., 36 A.3d [567,]

572 [(Pa. 2011) (plurality opinion)]. As has been often stated, an 

abuse of discretion does not result merely because the reviewing 

court might have reached a different conclusion. Id.; see also 

Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371, 34 

A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647, 838 

A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed 

for an abuse of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for 

applying an abuse of discretion standard of review in these cases. 

We observed that, unlike trial courts, appellate courts are not 

equipped to make the fact-specific determinations on a cold 

record, where the trial judges are observing the parties during the 

relevant hearing and often presiding over numerous other 

hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. 

Therefore, even where the facts could support an opposite result, 

as is often the case in dependency and termination cases, an 

appellate court must resist the urge to second guess the trial court 

and impose its own credibility determinations and judgment; 

instead we must defer to the trial judges so long as the factual 
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findings are supported by the record and the court’s legal 

conclusions are not the result of an error of law or an abuse of 

discretion. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 

1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.” 

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

This Court may affirm the trial court’s decision regarding the termination 

of parental rights with regard to any one subsection of section 2511(a). See 

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Section 2511 

provides, in relevant part, as follows:

§ 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.

(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 
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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 

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.

* * *

(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.
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With respect to subsection 2511(a)(1), our Supreme Court has held as 

follows:

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 Section 2511(b). 

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

Further, this Court has directed that

the trial court must consider the whole history of a given case and 

not mechanically apply the six-month statutory provision. The 

court must examine the individual circumstances of each case and 

consider all explanations offered by the parent facing termination 

of his or her parental rights, to determine if the evidence, in light 

of the totality of the circumstances, clearly warrants the 

involuntary termination. 

In re B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).

To satisfy the requirements of subsection 2511(a)(2), the moving party 

must produce clear and convincing evidence regarding the following elements: 

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

incapacity, abuse, neglect or refusal caused the child to be without essential 

parental care, control or subsistence necessary for his physical or mental wellbeing; and (3) the causes of the incapacity, abuse, neglect or refusal cannot 

or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 

(Pa. Super. 2003). The grounds for termination of parental rights under 

subsection 2511(a)(2), due to parental incapacity that cannot be remedied, 

are not limited to affirmative misconduct; to the contrary, those grounds may 
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include acts of refusal as well as incapacity to perform parental duties. In re 

A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

When we review the trial court’s analysis of subsection 2511(a)(5), we 

consider the following:

Under [subsection] 2511(a)(5), we, thus, review the record to 

determine whether [a child has] been removed from [the parent] 

for six months and whether [the parent] can remedy the 

conditions leading to the removal of [the child]. See[] In the 

Interest of Lilley, 719 A.2d 327, 334 (Pa. Super. 1998) (the 

child has been removed from the parents by the court and the 

conditions which led to placement of the child continue to exist 

and have not been remedied within a reasonable time and 

termination of parental rights would best serve the needs and 

welfare of the child). We also note that in considering the 

importance of stability to a child’s welfare, the reasons why the 

child has been with the third party for so long must be taken into 

account. In Re: Adoption of Steven S., 417 Pa. Super. 247, 

612 A.2d 465, 471 (1992), appeal denied, 533 Pa. 661, 625 A.2d 

1194 (1993).

In re Adoption of T.B.B., 835 A.2d 387, 395 (Pa. Super. 2003).

Further, to terminate parental rights pursuant to 23 Pa.C.S.A. 

§ 2511(a)(8), it must be demonstrated that “(1) [t]he child has been removed 

from parental care for 12 months or more from the date of removal; (2) the 

conditions which led to the removal or placement of the child continue to exist; 

and (3) termination of parental rights would best serve the needs and welfare 

of the child.” In re Adoption of M.E.P., 825 A.2d at 1275-76. “Section

2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions 

that led to the children’s removal by the court.” In re A.R., 837 A.2d 560, 

564 (Pa. Super. 2003). Once the 12-month period has been established, the 
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trial court must next determine whether the conditions necessitating 

placement persist, despite the reasonable good faith efforts Agency supplied 

over a realistic period of time. Id. Terminating parental rights under 

subsection (a)(8) does not require the trial court to evaluate a parent’s current 

“willingness or ability to remedy the conditions that initially caused 

placement.” T.B.B., 835 A.2d at 396 (citation omitted).

In its Opinion, the trial court provided a comprehensive summary and 

analysis of the evidence supporting termination pursuant to subsections 

(a)(1), (2), (5), and (8). See Trial Court Opinion, 11/2/17, at 2-14, 15-19. 

Our review discloses that the trial court’s decision to terminate the parental 

rights of Father and Mother under subsections (a)(1), (2), (5), and (8), is 

supported by competent, clear and convincing evidence in the record, and we 

discern no abuse of discretion in this regard. We therefore adopt the trial 

court’s Opinion as to termination of Father’s and Mother’s parental rights 

pursuant to subsections (a)(1), (2), (5) and (8). See Trial Court Opinion, 

11/2/17, at 15-19.

Next, we address Father’s and Mother’s claim that the trial court abused 

its discretion in terminating their parental rights to their children pursuant to 

section 2511(b). See Brief for Appellants at 50-55. Father and Mother assert 

that the trial court improperly failed to conduct a separate analysis pursuant 

to subsection (b), requiring remand to the trial court for a full analysis 

pursuant to that subsection. See id. at 55. 
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The focus in terminating parental rights under subsection 2511(a) is on 

the parent, but it is on the child pursuant to subsection 2511(b). See In re 

Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In 

reviewing the evidence in support of termination under section 2511(b), our 

Supreme Court has stated the following:

[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.[A.] § 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 

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) (citation omitted).

When evaluating a parental bond, “the court is not required to use 

expert testimony. Social workers and caseworkers can offer evaluations as 

well. Additionally, section 2511(b) does not require a formal bonding 

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal 

citations omitted). Although it is often wise to have a bonding evaluation and 

make it part of the certified record, “[t]here are some instances ... where direct 

observation of the interaction between the parent and the child is not 

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d 

753, 762 (Pa. Super. 2008).

A parent’s abuse and neglect are likewise a relevant part of this analysis: 
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A child’s feelings toward a parent are relevant to the section 

2511(b) analysis. Nonetheless, concluding 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 [his or her] mental and 

emotional health than the coincidence of biological or natural 

parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and 

quotation marks omitted). “[A] parent’s basic constitutional right to the 

custody and rearing of ... her child is converted, upon the failure to fulfill ... her 

parental duties, to the child’s right to have proper parenting and fulfillment of 

[the child’s] potential in a permanent, healthy, safe environment.” In re 

B.,N.M., 856 A.2d at 856 (internal citations omitted).

With regard to section 2511(b), the trial court stated the following:

When the Agency has met its burden under [s]ection 

2511(a), the [c]ourt must also look to the requirements of 

[s]ection 2511(b) before terminating any parental rights. “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 
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to the giving of notice of the filing of the petition.”

[FN]

 23 Pa.C.S.A.

§ 2511(b). Section 2511(b) centers judicial inquiry upon the 

welfare of the child rather than the fault of the parent. In re A.R., 

837 A.2d [at 565]. “Considering what situation would best serve 

the child’s needs and welfare, the court must examine the status 

of the bond between the natural parent and the child to consider 

whether terminating the parent’s rights would destroy an existing, 

necessary and beneficial relationship.” [T.B.B., 835 A.2d at 396].

On appeal, the parents assert that the [c]ourt’s Order is not 

supported by evidence, and not in the best interests of the 

children. A review of the record, however, indicates otherwise.

___________________________________________________

[FN] The parents’ Concise Statement asserts that this final sentence 

of section 2511(b) violates their due process and equal protection 

rights because the Agency can still use the setbacks and failures, 

occurring after the Petition is filed, against the parents. The 

[c]ourt notes that, in this matter, both the progress and setbacks 

or failures of these parents occurred before the February 2017 

Petition was filed; that the setbacks or failures continued 

afterwards did not alter the [c]ourt’s decision.

Trial Court Opinion, 11/2/17, at 15-16 (footnote in original). 

Although the trial court stated that the termination of Father’s and 

Mother’s parental rights was in the best interests of the children, it failed to 

discuss subsection (b) with regard to the evidence of record. Rather, the trial 

court focused its analysis of the evidence strictly on subsection (a). A 

consideration of both subsections (a) and (b) is necessary for the involuntary 

termination of parental rights. Therefore, we are constrained to vacate the 

Decree, and remand the matter to the trial court for a full section 2511(b) 

analysis. See T.S.M., supra; In re K.Z.S., supra.

On remand, the trial court has the discretion to take additional 

testimony and receive more evidence to complete the section 2511(b) best 
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interests analysis. Accordingly, although we discern no abuse of the trial 

court’s discretion with regard to 23 Pa.C.S.A. § 2511(a), we vacate the Decree 

and remand the case for the trial court’s consideration and analysis under 23 

Pa.C.S.A. § 2511(b). The trial court shall hold further evidentiary 

proceedings, if necessary, and then enter a new decree.3 

Decree vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/21/2018

____________________________________________

3 Because of our disposition, we do not reach the parents’ argument 

concerning whether the second portion of section (b) is unconstititutional as 

violative of the guarantee to due process, and the trial court’s reasoning for 

rejecting that argument. See Trial Court Opinion, 11/2/17, at 15 n.5, supra.