J. S10044/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: N.R., A MINOR :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: J.S., NATURAL FATHER : No. 1829 MDA 2019

Appeal from the Decree Entered October 22, 2019,

in the Court of Common Pleas of Franklin County

Orphans’ Court Division at No. 61 ADOPT 2019

BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 01, 2020

J.S. (“Father”) appeals from the October 22, 2019 decree entered in the 

Court of Common Pleas of Franklin County, Orphans’ Court Division, 

involuntarily terminating his parental rights to his dependent male child, born 

in June 2018 (the “Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. 

§§ 2511(a)(1), (2), and (b).

1

 We affirm.

The orphans’ court set forth the following factual findings:

[In June] 2018, [Franklin County Children & Youth 

Service (the “Agency”)] received a referral concerning 

[the Child,] a newborn[,] who was in the Newborn 

Intensive Care Unit (NICU) at the Chambersburg 

Hospital; the referral relayed concerns regarding 

[M]other’s ability to provide the [C]hild with basic 

care. The following day, the Agency conducted a 

hospital visit to determine whether Mother would be 

able to care for [the Child] upon discharge. Mother 

related Father was incarcerated at the Franklin County 

 

1 We note that on the same date, the orphans’ court entered a decree that 

terminated the parental rights of the Child’s natural mother, I.R. (“Mother”). 

Mother is not a party to this appeal.
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Jail[Footnote 2] and was facing deportation, leaving 

her without sufficient family supports.

[Footnote 2] The record reveals the 

following concerning Father’s 

incarceration[:] On February 6, 2018, 

Father was charged by the Chambersburg 

Police Department with two third degree 

felonies—Dissemination of Sexually 

Explicit Materials to a Minor and Unlawful 

Contact with a Minor—as well as felony 

counts of Identify Theft and Theft by 

Unlawful Taking—Movable Property. As a 

result, Father was incarcerated at the 

Franklin County Jail on February 6. He 

subsequently pled guilty to the 

Dissemination charge and entered a plea 

of nolo contendere on the Identity Theft 

charge.

The February 2018[] charges were not 

Father’s first run-in with the law. In July 

2014, he was charged with Simple Assault 

and was placed on Accelerated 

Rehabilitative Disposition (ARD). 

However, Father later violated the 

conditions of ARD, and his participation in 

ARD was revoked as a result. In April 

2015, Father was charged with Theft by 

Deception—False Impression, to which he 

later pled guilty.

[When the Child] was discharged from Chambersburg 

Hospital [eight days after his birth,] the [orphans’

c]ourt immediately entered an Order for Emergency 

Protective Custody; [the Child] was placed in the 

temporary physical and legal custody of the Agency, 

as [the orphans’ court] determined that allowing [the 

Child] to remain in the home would be contrary to his 

welfare, given Mother’s issues with mental health and 

substance abuse, as well as her overall parenting 

ability.
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That same day, a caseworker for the Agency visited

Father at the Franklin County Jail and advised him of 

[the Child’s] placement with the Agency. Until that 

meeting, Father was unaware [the Child] had been 

born. On June 19, 2018, the Agency attempted to 

contact Father again, but was advised Father had 

been transferred out of the Franklin County Jail the 

previous day. At the time of the Adjudication and 

Disposition Hearing, which occurred on June 28, 2018, 

the Agency was without knowledge of Father’s 

location.

In July 2018, the Agency became aware Father had 

been transferred to York County prison where he was 

in Immigration and Customs Enforcement (ICE) 

custody awaiting deportation. Because [the Child] 

was declared dependent, Father was ordered to 

establish and maintain consistent contact with [the 

Child] and the Agency if Father wished to be 

considered a resource for [the Child].[Footnote 3]

[Footnote 3] Had Father been released

from custody at any point during this 

process, the Agency indicated further 

evaluation would be necessary to 

determine whether any additional 

parenting service was needed.

Hannah Crean, a caseworker with the Agency who was 

assigned to [the Child’s] case, testified at the hearing 

to Father’s contacts with the Agency. She stated 

Father sent many letters to the Agency, but had never 

sent any letters or other correspondence directed to 

[the Child].[Footnote 4] In his letters to the Agency, 

Father focused primarily on his request that his 

mother, Ms. [S.], be considered a resource for [the 

Child]. The letters generally did not inquire into [the 

Child’s] well-being, though he did express a desire to 

be there for [the Child] and make sure [the Child] was 

being cared for.

[Footnote 4] Ms. Crean testified that 

Father has in fact been provided with the 
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foster agency’s information, including its 

mailing address.

With respect to Father’s request that his mother[, 

Ms. S.,] be awarded custody of [the Child], Ms. Crean 

testified that the Agency made efforts to determine 

whether the request was tenable. Specifically, the 

Agency conducted an Interstate Compact on the 

Placement of Children (ICPC) study on 

Ms. [S.][Footnote 5]

[Footnote 5] This is legally required 

before approving placement outside of 

Pennsylvania, and Ms. [S.] lives in North 

Carolina.

The study was denied, however, as Ms. [S.] failed to 

provide the necessary information requested of her. 

In particular, Ms. [S.] was residing with another 

individual who the Agency attempted to collect 

information on for the purpose of completing 

background checks; information on this individual was 

not provided.[Footnote 6] Further, Ms. [S.] has never 

met [the Child].

[Footnote 6] The Agency communicated 

with Ms. [S.] through written 

correspondence. While Ms. Crean 

conceded the correspondence was in 

English although Ms. [S.] only speaks 

Haitian Creole, Ms. [S.] was able to 

respond to the letter indicating she was 

willing to be a resource for [the Child].

While Father was at the York County prison, the 

Agency made several attempts to contact him and set 

up phone conferences both for court purposes and to 

update him on [the Child’s] status. Those attempts 

were all unsuccessful, though there is no allegation 

this was due to Father’s refusal to cooperate.

In May 2019, Father was relocated to the Clinton 

County correctional facility where he remains to this 

day. While he finished serving his criminal 
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incarceration, he continues to be held in ICE custody 

awaiting deportation, and, according to 

representations by authorities at Clinton Correctional, 

will not be released from prison. Because Father has 

been incarcerated since [the Child’s] birth, Father has 

never met [the Child]; as such, Ms. Crean testified 

she has “no reason to believe there is a bond or 

attachment” between the two.

On the other hand, Ms. Crean stated [the Child] has 

been with his foster parents for fifteen months, and 

they are willing to be a permanent resource for him; 

in her opinion, [the Child’s] foster parents are meeting 

“all of his needs, welfare, and emotional needs.”

Orphans’ court opinion, 11/25/19 at 2-6 (record citations omitted).

At the conclusion of the hearing, the orphans’ court entered the order 

involuntarily terminating Father’s parental rights to the Child. Father filed a 

timely notice of appeal, together with a concise statement of errors 

complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i). 

Thereafter, the orphans’ court filed its Rule 1925(a)(2)(ii) opinion.

Father raises the following issue for our review:

Did the [orphans’ c]ourt err in summarily 

[t]erminating [Father’s] parental rights when limited 

effort was engaged in by the Agency possessing [the 

Child], to unite the [C]hild with [Father’s m]other so 

to keep the familial bond in place, pending [Father’s] 

availability and where [Father] was not offered 

counsel until after a filing to terminate his rights 

occurred?

Father’s brief at 6.

At the outset, we note that Father raised the following “reason for his 

appeal” in his Rule 1925(a)(2)(i) statement:
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Failure of preventative agencies to meet burdens of 

25 Pa.C.S.[A. §] 2511(a)(2), (a)(5), (a)(8), by [the] 

fact that an agency did not exercise diligent efforts to 

facilitate [Father’s] requests to maintain his parental 

relationship via placement of the [C]hild with his 

mother.

Father’s Rule 1925(a)(2)(i) concise statement, 11/6/19.

In his appellate brief, Father contends that he “was not appointed an 

attorney at the time of the [A]gency’s intervention in the case, but only after 

[the Agency] filed a petition to terminate his rights.” (Father’s brief at 9.)

Even if Father preserved this claim with the orphans’ court by including it in 

his concise statement as required by Pa.R.A.P. 1925(b)(4)(vii), the issue 

would not properly be before us. Father appeals the termination order on the 

adoption docket. Father did not take an appeal from a final order on the 

dependency docket. Consequently, claims of error arising from the 

dependency proceeding are not properly before us.

We further note that the issue raised in Father’s concise statement is

not entirely consistent with the issue raised in his brief. Nevertheless, we 

conclude that the issue Father raises for our review is fairly suggested in his 

concise statement; specifically, that the orphans’ court erred in terminating 

his parental rights because the Agency only made a limited effort to place the 

Child with Father’s mother, Ms. S.

In matters involving involuntary termination of parental rights, our 

standard of review is as follows:
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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.” In re 

Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may 

be reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will.” Id. The trial 

court’s decision, however, should not be reversed 

merely because the record would support a different 

result. Id. at 827. We have previously emphasized 

our deference to trial courts that often have first-hand 

observations of the parties spanning multiple 

hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa. 

2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe 

all, part, or none of the evidence presented and is likewise free to make all 

credibility determinations and resolve conflicts in the evidence.” In re M.G., 

855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f competent 

evidence supports the trial court’s findings, we will affirm even if the record 

could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d 

387, 394 (Pa.Super. 2003) (citation omitted).

The termination of parental rights is guided by Section 2511 of the 

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis 

of the grounds for termination followed by the needs and welfare of the child.

Our case law has made clear that under Section 2511, 

the court must engage in a bifurcated process prior to 

terminating parental rights. Initially, the focus is on 

the conduct of the parent. The party seeking 

termination must prove by clear and convincing 
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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). We have 

defined clear and convincing evidence as that which 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.” 

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting 

Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).

Here, the orphans’ court terminated Father’s parental rights pursuant to 

Sections 2511(a)(1), (2), and (b). Father, however, advances no claim that 

the orphans’ court erred or abused its discretion in terminating his parental 

rights under any of those sections. Rather, Father contends that the orphans’

court erred in terminating his parental rights because the Agency engaged in 

limited efforts to unite the Child with Father’s mother, Ms. S. It is well settled 

that neither Section 2511(a)(2) nor (b) requires an orphans’ court to consider 

the reasonable efforts provided to a parent prior to terminating parental

rights. In re D.C.D., 105 A.3d 662, 672 (Pa. 2014); see also In re C.K., 
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165 A.3d 935, 944 (Pa.Super. 2017) (“parental rights may be terminated even 

if the agency fails to make reasonable efforts to reunify the family”); 

In re B.L.W., 843 A.2d 380, 384 n.1 (Pa.Super. 2004) (en banc) (“the

adequacy of [the agency’s] efforts towards reunification is not a valid 

consideration at the termination of parental rights stage, as the law allows 

[the agency] to ‘give up on the parent’” (citation and internal brackets 

omitted).) Clearly, then, neither Section 2511(a)(2) nor (b) requires the 

orphans’ court to consider the reasonable efforts to unite the Child with 

Father’s mother prior to terminating Father’s parental rights.2 Nevertheless, 

we will proceed to review the orphan court’s termination order.

We have long held that, in order to affirm a termination of parental 

rights, we need only agree with the orphans’ court as to any one subsection 

of Section 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d at 

384. We will, therefore, analyze the orphans’ court’s termination order 

pursuant to Subsections 2511(a)(2) 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:

. . . .

(2) The repeated and continued 

incapacity, abuse, neglect or refusal 

 

2 We note that the record reflects that the Agency did make efforts to 

determine whether Ms. S. was a viable resource. The inquiry ended, however, 

when Ms. S. failed to provide the Agency with information that it requested 

which was necessary to the determination. (Notes of testimony, 10/22/19 

at 11.)
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of the parent has caused the child 

to be without essential parental 

care, control or subsistence 

necessary for his physical or mental 

well-being and the conditions and 

causes of the incapacity, abuse, 

neglect or refusal cannot or will not 

be remedied by the parent.

. . . .

(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).

We first address whether the orphans’ court abused its discretion by 

terminating Father’s parental rights pursuant to Section 2511(a)(2).

To terminate parental rights under section 

2511(a)(2), the moving party must produce clear and 

convincing evidence of the following elements: 

“(1) repeated and continued incapacity, abuse, 

neglect or refusal; (2) such incapacity, abuse, neglect 

or refusal has caused the child to be without essential 

parental care, control or subsistence necessary for his 

physical or mental well-being; and (3) the causes of 

the incapacity, abuse, neglect or refusal cannot or will 

not be remedied.” In re Adoption of M.E.P., 825 

A.2d 1266, 1272 (Pa.Super. 2003).
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. . . .

The Pennsylvania Supreme Court has instructed that 

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). See [In re:

E.A.P., 944 A.2d 79, 85 (Pa. Super. 

2008)] (holding termination under 

§ 2511(a)(2) supported by mother’s 

repeated incarcerations and failure to be 

present for child, which caused child to be 

without essential care and subsistence for 

most of her life and which cannot be 

remedied despite mother’s compliance 

with various prison programs).

Accordingly, courts properly consider the 

incapacitating effect of a parent’s incarceration and 

whether the duration of that incarceration would 

prevent a parent from remedying the incapacity. See

id.; see also In re D.C.D., 629 Pa. 325, 105 A.3d 

662, 677 (2014) (holding that trial court properly 

concluded that father's incarceration rendered him 

“incapable of providing care for his child and that [his] 

incapacity will exist at least until [f]ather’s minimum 

release date [four years later], when [c]hild will be 

seven”).

In re Adoption of: A.C., 162 A.3d 1123, 1131-1132 (Pa.Super. 2017)

(brackets in original).
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Here, the record reflects that at the time of the Child’s birth, Father was 

incarcerated and was not aware that the Child had been born. When the 

Agency filed the termination petition, Father remained incarcerated. 

Moreover, at the time of the termination hearing, which was 15 months after 

the Child’s birth, Father was still incarcerated and was awaiting deportation. 

Indeed, Father testified that he did not know when he would be an available 

resource for the Child. (Notes of testimony, 10/22/19 at 50-51.) The record 

further reflects that Father was required to establish consistent contact with 

the Child, which he failed to do. Therefore, we conclude that the record 

supports the orphans’ court’s factual findings and that the orphans’ court did 

not abuse its discretion in terminating Father’s parental rights under 

Section 2511(a)(2). The record demonstrates that the conditions that existed 

upon removal establish repeated and continued incapacity, abuse, neglect, or 

refusal of Father that caused the Child to be without essential parental care, 

control, or subsistence necessary for his physical or mental well-being. The 

record also supports the orphans’ court’s conclusion that Father continued to 

lack capacity to parent the Child.

We now turn to whether termination was proper under Section 2511(b). 

As to that section, our supreme court has stated as follows:

[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 
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love, comfort, security, and stability.” In re K.M., 53 

A.3d 781, 791 (Pa.Super. 2012). 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. However, as discussed below, 

evaluation of a child’s bonds is not always an easy 

task.

In re T.S.M., 71 A.3d at 267. “In 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) (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). 

Moreover,

[w]hile 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.

[I]n 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, 
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comfort, security, and stability the child 

might have with the foster parent. . . .

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015), quoting

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

citations omitted). 

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 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, 

“[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.

Here, in terminating Father’s parental rights under Section 2511(b), the 

orphans’ court found that:

[Father] has never met [the Child]. While he may 

have love and concern for the [C]hild, [the orphans’

court] cannot find that a parent/child bond exists. 

[Father] has never provided for the [C]hild’s physical, 

emotional, [and] moral well[-]being or welfare, and is

in no position to do so in the foreseeable future.

On the other hand, the [C]hild is in a foster family 

where his needs are met. The foster family has 

offered themselves as a permanency resource. It is 

in the [C]hild’s best interest to move the [C]hild 

forward toward permanency.
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Decree, 10/22/19 at 4.

Our review of the record supports this determination, and the orphans’

court did not abuse its discretion in terminating Father’s parental rights to the 

Child.

Accordingly, we find no abuse of discretion and conclude that the 

orphans’ court appropriately terminated Father’s parental rights to the Child

under Sections 2511(a)(2) and (b).

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/01/2020