J-S04004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: B.N.E., A 

MINOR

APPEAL OF: P.E., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1603 MDA 2017

Appeal from the Decree Entered September 12, 2017

In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s): 

A-8563

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018

P.E. (“Father”) appeals from the Luzerne County Orphans’ Court’s

September 12, 2017 decree involuntarily terminating his parental rights to 

his daughter, B.N.E. (“Child”), born in May of 2015.1 N.T., 8/10/17, at 20. 

Following our careful review, we affirm.

The record reveals the following relevant facts and procedural history. 

On April 18, 2016, Father pleaded guilty2to one count of aggravated 

assault, a second-degree felony, pursuant to 18 Pa.C.S. § 2702(a)(8), which 

provides that a person is guilty of aggravated assault if he “attempts to 

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1 By decree of the same date, the orphans’ court involuntarily terminated 

the parental rights of B.W. (“Mother”). Mother did not file a notice of appeal

and is not involved in this appeal.

2

 Commonwealth v. [P.E.], Luzurne County Criminal Division, 4066 of 

2015. N.T., 8/10/17, at 22.
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cause or intentionally, knowingly or recklessly causes bodily injury to a child 

less than six years of age, by a person 18 years of age or older.” N.T., 

8/10/17, at 20–23, 43; Orphans’ Court Opinion, 11/3/17, at 3. Father 

perpetrated this crime on Child on or about September 25, 2015, when Child 

was four months old. N.T., 8/10/17, at 44. Specifically, Father pleaded 

guilty to pinching Child “multiple times to the point where he left bruises.” 

Id. In addition, he admitted “to grabbing [Child] by the sides and squeezing 

her to the point where he left fingernail marks.” Id. On June 16, 2016, the 

criminal court sentenced Father to a term of imprisonment followed by 

twelve months of special probation. Id. at 43. On October 27, 2015, Father 

entered the State Correctional Institution (“SCI”) at Rockview, where he 

remained at the time of the subject proceedings. N.T., 8/10/17, at 40.

On September 28, 2015, Luzerne County Children and Youth Services 

(“CYS”) took custody of Child, placed her in a foster home, and initiated 

dependency proceedings.

3

 N.T., 8/10/17, at 19, 63. A court order entered 

on an unspecified date prohibits Father’s contact with Child.4 Id. at 66; 

N.T., 9/5/17, at 12–13. As such, Father has not seen Child at any time 

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3

 Dependency Docket DP-421 of 2015.

4

 It appears that order was entered within Father’s criminal case and 

provided that Father was to have “no contact with [Child] unless contact was 

approved by a Family Court Judge. As of [the date of the filing of the 

petition to terminate Father’s parental rights,] contact between [Child] and 

[Father] has not been approved.” Petition for Termination of Parental 

Rights, 6/8/17, at ¶ 11.
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since Child, now nearly three years old, was four months old. N.T., 8/10/17, 

at 66.

During Child’s dependency, Child’s paternal grandmother and stepgrandfather (collectively “Paternal Grandparents”), who reside in California, 

apparently were presented as a kinship resource for Child. N.T., 8/10/17, at 

48–49; Orphans’ Court Opinion, 11/3/17, at 3. Therefore, CYS initiated an 

Interstate Compact on the Placement of Children (“ICPC”) with respect to

Paternal Grandparents.

5

 N.T., 8/10/17, at 48–49; N.T., 9/7/17, at 62.

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5 Section 761 of the Pennsylvania Public Welfare Code, the Interstate 

Compact on the Placement of Children, 62 P.S. § 761, is implemented, inter 

alia, under 55 Pa. Code § 3130.41. The Council of State Governments 

recommended the Interstate Compact on the Placement of Children to 

address common problems arising from the interstate care and placement of 

children in foster care or adoptive homes because when a child was sent out 

of state, that state of origin lost jurisdiction over the child and supervision 

became difficult or impossible.

As drafted, the [ICPC] provides for notification of 

appropriate state or local authorities in the receiving state before 

placement by out-of-state persons and agencies. The authorities 

in the receiving state are given the opportunity to investigate 

and, if satisfied, must notify the sending state that the proposed 

placement does not appear to be contrary to the child's best 

interest. After a placement has been made, the sending state 

continues to have financial responsibility for support and retains 

jurisdiction over the child.

McComb v. Wambaugh, 934 F.2d 474, 479–480 (3d Cir. 1991).
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The juvenile court held multiple hearings regarding the ICPC, with the 

final one apparently occurring on October 3, 2016.6 N.T., 9/5/17, at 14, 31–

32. The juvenile court issued an order dated October 7, 2016, finding that 

Child’s best interests required that she remain in her current foster care 

placement (“ICPC order”).7 Id. at 32; N.T., 8/10/17, at 50, 54; Orphans’ 

Court Opinion, 11/3/17, at 3. As such, since her placement, Child has 

resided with the same foster parents, and they are a pre-adoptive resource. 

N.T., 8/10/17, at 63. We note that Judge Rogers stated on the record in 

open court that Paternal Grandparents had filed a custody action, which they 

withdrew following issuance of the ICPC order. N.T., 9/5/17, at 32.

On June 8, 2017, CYS filed a petition for the involuntary termination of 

Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(9)(ii) and (b). The 

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6

 Because the juvenile court record was not incorporated into the instant 

record, we lack myriad details concerning the dependency proceedings. We 

have gleaned much of that procedural history from comments by the 

orphans’ court jurist, the Honorable Jennifer L. Rogers, who also presided 

over the dependency proceedings. Orphans’ Court Opinion, 11/3/17, at 3. 

See 42 Pa.C.S. § 6351(i) (Juvenile Act suggests that it is appropriate for the 

dependency judge to also preside over the termination hearing).

7 Judge Rogers issued the involuntary termination decree, presided over the 

ICPC hearings, and issued the ICPC order. During the termination hearing, 

Father presented the ICPC order as an exhibit, which the orphans’ court 

accepted without objection, and the court took judicial notice of the order. 

N.T., 8/10/17, at 51-53. However, despite its inclusion in the Reproduced 

Record at P3, the ICPC order is not included in the record certified to us on 

appeal. See Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 

2006) (en banc) (It is the appellant’s responsibility to ensure the record is 

complete). As we explain infra, the state of the record is one factor 

impacting our decision regarding waiver.
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orphans’ court held a hearing on August 10, 2017, and September 5–7, 

2017, during which Father was represented by court-appointed counsel. 

Child also was represented by counsel. N.T., 8/10/17, at 11. During the 

hearing, CYS presented the testimony of CYS supervisor, Paul Guido; CYS 

caseworker, Jeff Setser; and Father’s corrections counselor at SCI Rockview, 

Richard Lansberry. Father testified on his own behalf via telephone from SCI 

Rockview on September 5, 2017.

8

By decree dated September 8, 2017, and entered September 12, 

2017, the orphans’ court involuntarily terminated Father’s parental rights. 

On October 12, 2017, Father, through new counsel,9filed a timely notice of 

appeal and a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a) 

opinion on November 3, 2017.

Father raises a single issue for our review:

Whether the [orphans’] [c]ourt abused its discretion in 

terminating the parental rights of Father in that:

The [c]ourt erroneously terminated Father’s parental 

rights in that Father obtained the support of [Paternal 

Grandparents]. . . . [Paternal Grandparents] presented 

themselves to Luzerne County CYS as kinship resources 

and were approved under the interstate compact. The 

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8 The involuntary termination hearing continued to September 6 and 7, 

2017, with respect to Mother’s parental rights only.

9

 New counsel entered his appearance on behalf of Father on October 12, 

2017.
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[c]ourt wrongfully rejected [Paternal Grandparents] as 

kinship resources and allowed the minor child to remain 

in foster care. Had [Paternal Grandparents] been 

approved as [a] kinship resource[], that would have 

alleviated the conditions that led to placement and 

thereby provided no grounds for termination.

Father’s Brief at 4.

We review Father’s issue according to the following standard:

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).

Termination of parental rights is governed by Section 2511 of the 

Adoption Act, which 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 
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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).

In this case, the orphans’ court terminated Father’s parental rights 

pursuant to Section 2511(a)(9)(ii) and (b), which 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:

* * *

(9) The parent has been convicted of one of the following 

in which the victim was a child of the parent:

* * *

(ii) a felony under 18 Pa.C.S. § 2702 (relating to 

aggravated assault);

* * *

(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(a)(9)(ii) and (b).

Father does not contest the termination of his parental rights under 

Section 2511(a)(9)(ii). Father’s Brief at 20. Rather, Father’s argument 

relates to the ICPC order, and he asserts that “the availability of an 
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appropriate family placement through kinship is grounds for a court 

exercising its discretion and not terminating parental rights.” Id. at 22. He 

relies, in part, on Section 2511(b) (“Other considerations”). Id. at 21.

The statute outlining the Kinship Care Program provides, in pertinent 

part:

(b) Placement of children.—If a child has been removed from 

the child’s home under a voluntary placement agreement or is in 

the legal custody of the county agency, the county agency shall 

give first consideration to placement with relatives. The county 

agency shall document that an attempt was made to place the 

child with a relative. If the child is not placed with a relative, the 

agency shall document the reason why such placement was not 

possible.

62 P.S. § 1303(b). We have explained:

[K]inship care is a subset of foster care where the care provider 

already has a close relationship to the child. In kinship care (as 

with foster care generally), legal custody of the child is vested in 

[CYS]. [CYS] then places the child with the care provider. The 

court may place children with a foster family, although there 

might be willing relatives, where foster care is in the best 

interests of the children or aggravated circumstances exist. The 

goal of preserving the family unit cannot be elevated above all 

other factors when considering the best interests of children, but 

must be weighed in conjunction with other factors.

In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa. Super. 2011) (internal 

citations and quotation marks omitted).

In its Rule 1925(a) opinion, the orphans’ court regarded Father’s issue 

as waived because Father failed to appeal the juvenile court’s ICPC order. 

Orphans’ Court Opinion, at 11/3/17, at 3; see also Pa.R.A.P. 903(a) 

(providing that an appeal “shall be filed within 30 days after the entry of the 
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order from which the appeal is taken”). Such a conclusion implies that the 

ICPC order was final and appealable when entered. The orphans’ court 

failed to recite any supporting law or explain its conclusion. Orphans’ Court 

Opinion, at 11/3/17, at 3. Conversely, Father contends that the ICPC order 

was interlocutory and not appealable when entered.

Pursuant to 42 Pa.C.S. § 742, this Court has jurisdiction over appeals 

from “final orders.”10 Moreover, it is well settled that with respect to 

dependency proceedings, an order granting or denying a placement goal 

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10 Pa.R.A.P. 341 defines a “final order” as follows:

* * *

(b) Definition of Final Order.—A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to paragraph (c) 

of this rule.

(c) Determination of finality.—When more than one claim for 

relief is presented in an action, whether as a claim, 

counterclaim, cross-claim, or third-party claim or when multiple 

parties are involved, the trial court or other government unit 

may enter a final order as to one or more but fewer than all of 

the claims and parties only upon an express determination that 

an immediate appeal would facilitate resolution of the entire 

case. Such an order becomes appealable when entered. In the 

absence of such a determination and entry of a final order, any 

order or other form of decision that adjudicates fewer than all 

the claims and parties shall not constitute a final order. . . .

Pa.R.A.P. 341(b), (c).
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change shall be deemed a final order when entered. See In re H.S.W.C.-

B., 836 A.2d 908, 911 (Pa. 2003). In this case, however, the record does 

not reveal, nor does Father assert, that the ICPC order granted or denied a 

goal change. Indeed, during the instant termination hearing on September 

5, 2017, the orphans’ court stated, “[W]e are now into the [dependency]

docket, DP-421-2015, addressing the agency’s petition for change of goal to 

that of adoption addressing natural father’s portion[,]” lending credence to 

the conclusion that the ICPC order did not address a goal change for Father.

N.T., 9/5/17, at 17.

We are not inclined to find waiver in this case. The combination of the 

incomplete certified record, the failure of CYS to incorporate the dependency 

record, and the orphans’ court’s failure to support its conclusion compel our 

determination that waiver is inappropriate herein. Thus, we address Father’s 

claim.

Father baldly asserts that “the availability of an appropriate family 

placement through kinship is grounds for a court exercising its discretion 

[pursuant to Section 2511(b)] and not terminating parental rights.” Father’s 

Brief at 22. Father continues,

Simply put: there is no valid reason why [C]hild should not 

have been placed with [her paternal grandparents] so long as 

firm appropriate restrictions on [Father’s] contact w[ere] in 

place. Where a child is born into a situation like this, the child 

should not lose her entire family and heritage without 

exceptional reasons for doing so.
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Id. Father provides no statutory or case law in support of his assertion that 

a court may deny a petition for the involuntary termination of parental rights 

under Section 2511(b) based solely on finding that an appropriate family 

placement through kinship exists.

This Court has explained that the requisite inquiry into the “needs and 

welfare” of the child under Section 2511(b), the only determination Father 

challenges, involves intangibles of the parent-child relationship “such as 

love, comfort, security, and stability. . . .” In re C.M.S., 884 A.2d 1284, 

1287 (Pa. Super. 2005) (citation omitted). Further, the orphans’ 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.” Id. (citation omitted). However, “[i]n cases where there is no 

evidence of any bond between the parent and child, it is reasonable 

to infer that no bond exists. The extent of any bond analysis, therefore, 

necessarily depends on the circumstances of the particular case.” In re 

K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (emphasis added)

(citation omitted). Moreover, we have explained:

While a parent’s emotional bond with his or her child is a 

major aspect of the subsection 2511(b) best-interest analysis, it 

is nonetheless only one of many factors to be considered by the 

court when determining what is in the best interest of the child. 

In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The 

mere existence of an emotional bond does not preclude the 

termination of parental rights. See In re T.D., 949 A.2d 910 

(Pa. Super. 2008) (trial court’s decision to terminate parents’ 

parental rights was affirmed where court balanced strong 

emotional bond against parents’ inability to serve needs of 
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child). Rather, the orphans’ court must examine the status of 

the bond to determine whether its termination “would destroy an 

existing, necessary and beneficial relationship.” In re Adoption 

of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we 

explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

In addition to a bond examination, the trial court can 

equally emphasize the safety needs of the child, and 

should also consider the intangibles, such as the love, 

comfort, security, and stability the child might have with 

the foster parent. Additionally, this Court stated that the 

trial court should consider the importance of continuity of 

relationships and whether any existing parent-child bond 

can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).

Furthermore, our Supreme Court has stated that “[c]ommon sense 

dictates that courts considering termination must also consider whether the 

children are in a pre-adoptive home and whether they have a bond with 

their foster parents.” T.S.M., 71 A.3d at 268. The Supreme Court directed 

that in weighing the bond considerations pursuant to Section 2511(b), 

“courts must keep the ticking clock of childhood ever in mind.” Id. at 269. 

The T.S.M. Court observed that “[c]hildren are young for a scant number of 

years, and we have an obligation to see to their healthy development 

quickly. When courts fail . . . the result, all too often, is catastrophically 

maladjusted children.” Id.

Based on the foregoing, we reject Father’s argument that the alleged 

existence of an appropriate kinship placement is relevant to the termination 

of parental rights under Section 2511(b). Indeed, we recently stated, “Any 

benefit Child may receive from knowing other biological family does not 
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affect whether it would be in her best interests to terminate Father’s 

parental rights.” In Interest of H.K., 161 A.3d 331, 340 (Pa. Super. 

2017). The issue raised simply is not related to the only order on appeal, 

the involuntary termination of parental rights.

Moreover, even if relevant, we would reject Father’s claim that the

ICPC order was an abuse of discretion or constituted legal error because the 

court did not consider Child’s best interests pursuant to Section 5328(a) of 

the Child Custody Act, 23 Pa.C.S. § 5328(a), in denying her kinship 

placement with Paternal Grandparents. In this regard, Father requests that 

this Court vacate the involuntary termination decree and remand this matter 

“for full consideration of all relevant factors including the child custody 

factors as set forth by statute including the value of the child being placed 

with biological relatives.” Father’s Brief at 23.

The ICPC order arose in Child’s dependency case. Therefore, the 

Juvenile Act, not the Custody Act, was pertinent. We have explained, 

“‘[K]inship care’ is a subset of foster care where the care provider already 

has a close relationship to the child. 62 P.S. § 1303. In kinship care, as 

with foster care generally, legal custody of the child is vested in [CYS]. 

[CYS] then places the child with the care provider.” In re J.P., 998 A.2d 

984, 987 n.3 (Pa. Super. 2010). It is important to note that Father does not 

assert that the ICPC order was erroneous as a matter of law or was 

otherwise an abuse of discretion pursuant to the foregoing relevant law. In 
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its Pa.R.A.P. 1925(a) opinion, the orphans’ court stated that it denied the 

request for kinship care placement with Paternal Grandparents because the 

ICPC report

raised some concerns regarding [Paternal Grandparents’] ability 

to meet all the child’s needs on a consistent basis. Furthermore, 

the court noted that at no time during [Child’s] placement 

totaling approximately two (2) years did [Paternal Grandparents] 

make any effort or attempt to have any contact with [C]hild 

either physically or in any other form. . . . In this case, [C]hild 

remained with her foster parents because the court found that it 

is in [C]hild’s best interest.

Orphans’ Court Opinion, 11/3/17, at 4. We discern no abuse of discretion in 

denying the kinship care placement.

We have carefully reviewed the testimonial evidence during the 

involuntary termination hearing, at which time Child was two years old. 

Child was removed from Father when she was four months old, and she has 

had no contact with him during her two years in placement. Therefore, no 

parent-child bond exists between them. Rather, a parent-child bond exists 

between Child and the foster parents, who desire to adopt her. N.T., 

8/10/17, at 63, 66–69. The competent record evidence supports the 

orphans’ court’s decision that terminating Father’s parental rights serves 

Child’s developmental, physical, and emotional needs and welfare pursuant 
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to Section 2511(b).11 Accordingly, we affirm the decree pursuant to 23 

Pa.C.S. § 2511(a)(9)(ii) and (b).

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/23/2018

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11

 We further note the orphans’ court’s statement that “[a]ssuming 

arguendo that the court placed [Child] with [Paternal Grandparents] in 

California, Father’s rights would still have been terminated.” Orphans’ Court 

Opinion, 11/3/17, at 3.