J-S15001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.C.T.R., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.L.

No. 1738 MDA 2014

Appeal from the Order Entered October 2, 2014

In the Court of Common Pleas of Tioga County

Orphans' Court at No(s): 43 O.C. 2014

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 27, 2015

A.L. (Mother) appeals from the orphans’ court’s order, entered in the 

Court of Common Pleas of Tioga County, involuntarily terminating her 

parental rights to her minor son, J.C.T.R. (Child). After careful review, we 

are constrained to reverse.

Child was born in Ohio in March 2009; at the time of Child’s birth, 

biological Father lived in Pennsylvania. Shortly after Child was born, Mother 

became addicted to pain killers and heroin.1 In August 2009, Mother was 

arrested for distributing drugs from her home and was placed on probation. 

In August 2012, Mother was arrested for violating her probation by testing 

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1

Father testified that he was not aware of Child’s birth until Child was seven 

months old. However, Mother claims that she told Father about Child when 

she found out she was pregnant. N.T. Termination Hearing, 10/1/14, at 

213.
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positive for drugs;2she was placed in a drug treatment facility for four 

months. Mother violated her probation by breaking rules at the treatment 

facility,3and, as a result, the court sentenced her in October 2012 to serve 

six months in prison. Maternal Grandmother, who also lived in Ohio, cared 

for Child during Mother’s periods of drug treatment and incarceration. 

In November 2012, Father filed an emergency custody petition while 

Mother was in prison; the petition was denied. In March 2013, Mother was 

released from prison and entered a halfway house. In April 2013, the Ohio 

court granted Father weekend visitation. Later that month, the Ohio court 

held a hearing and granted Father legal and physical custody of Child in 

Pennsylvania as of May 24, 2013.4 The order also permitted Mother and her 

family to have companionship time with Child once Father assumed custody 

in Pennsylvania. 

In August 2013, Father refused to allow Maternal Grandmother to 

“Skype” with Child. Thereafter, in September 2013, Maternal Grandmother 

filed a contempt petition against Father for his failure to comply with courtordered companionship time. Mother testified that she waited until she was 

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2 Child and Mother’s three other children were living with her when she 

violated her probation for using drugs in August 2012. N.T. Termination 

Hearing, 10/1/14, at 182.

3 Specifically, Mother told a fellow inmate why she had been placed at the 

facility, which was a violation of the rehabilitation center’s rules.

4

Father resides with Step-Mother in Tioga County.
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released to the halfway house to contact Child in September 2013 because 

the prison would not accept collect calls from a cell phone without 

preauthorization. Once released to the halfway house, Mother called Father 

to speak to Child; Father refused to allow her to talk to Child on the phone, 

told her not to call again and further told her that she was harassing him. 

Father also told the staff at the halfway house about Mother’s call and 

Mother was advised by the halfway house not to have any contact with 

Father until the contempt proceedings had concluded. Mother last saw 

Child in October 2012 and last spoke to Child on May 23, 2013. 

After a hearing held in Ohio on October 22, 2013, the Ohio court 

denied Maternal Grandmother’s contempt petition. The court noted that 

because there was an “ongoing criminal investigation,”5it suspended Mother 

and Maternal Grandmother’s companionship time with Child until further 

order of court.6 

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5 Although the order does not specify exactly what this investigation was 

about, the record bears out that there appeared to have been allegations of 

sexual and physical abuse perpetrated against Child, although the record is 

unclear as to who made the allegations and who the exact alleged abuser 

was.

6 As of August 2014, the investigation into the alleged abuse had been 

suspended; the Ohio court transferred jurisdiction over the matter to 

Pennsylvania, finding that it is the home state of Child. The court also 

stated that “all issues of custody, companionship and support [are] properly 

before the Court of Common Pleas of Tioga County, Pennsylvania.” Ohio 

Court Order, 8/1/14, at ¶13. 
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Maternal Grandmother sent letters to the court, monthly, letting the 

Ohio judge know that there was no actual investigation regarding any abuse 

of Child and requesting a new court date so that contact with Child could be 

resumed. Mother was ultimately released from the halfway house in January 

2014. 

Step-Mother, Father’s wife, requested services for Child due to his 

emotional issues, constant temper tantrums, and sexualized behaviors that 

she believed stemmed from Mother and Mother’s family. Behavioral 

specialist, Amanda Herr, began working with Child in August 2013; Herr 

testified at the hearing on October 1, 2014, that Child spoke about Mother 

using “crazy pills,” that Mother hit and punched him and that Maternal 

Grandmother hit him with a belt. N.T. Termination Hearing, 10/1/14, at 8-9. 

Herr also testified that Father and Step-Mother were very proactive in 

securing counseling for Child and working with other organizations to 

improve Child’s speech and support in school. Herr stated that Child would 

require intense counseling and services for “quite some time.” Id. at 13. 

However, Herr acknowledged that any perspective she had on treating Child 

came solely from Father and Step-Mother, id. at 15, that she never had an 

opportunity to speak with Mother, and that Child had never specifically 

named anyone as his abuser, including Mother and her family. Id. at 26.

Family therapist, Laura Knowlton, testified that she has been working 

with Child since August 2014, providing support to Father and Step-Mother’s 

family so that they could become more functional. She was asked to take 
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over services due to Child’s behavioral regression and need for a more 

intensive program. She testified that while she has been working with Child 

he has never spoken about Mother or her Ohio family, id. at 33, and that 

anything she has learned about Mother and her family has come from Father 

and Step-Mother. Id. at 41.

On April 30, 2014, Father7filed the instant petition seeking involuntary 

termination of Mother’s parental rights.8 On October 1, 2014, the court held 

a hearing on the petition; on October 2, 2014, the court announced its 

decision, to terminate Mother’s rights pursuant to 23 Pa.C.S. §§ 2511(a)(1) 

and (b), in open court. On appeal, Mother presents the following issues for 

our consideration:

(1) Did the trial court abuse its discretion when it determined 

that Mother has shown that she wants to relinquish her 

parental rights or has failed to perform her parental 

duties?

(2) Did the trial court abuse its discretion in determining that 

the best interest of the child would be served by 

terminating the Mother’s parental rights?

Mother first contends that the court improperly determined that her 

parental rights should be terminated pursuant to section 2511(a)(1). 

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7 See 23 Pa.C.S. § 2512(a)(1) (“A petition to terminate parental rights with 

respect to a child under the age of 18 years may be filed by . . . [e]ither 

parent when termination is sought with respect to the other parent.”).

8

In July 2014, the Ohio court issued an order clarifying the fact that Mother 

“did not voluntarily give up [her] right to have companionship and contact 

with child,” and transferred jurisdiction of the parties’ matter to 

Pennsylvania.
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Specifically, she claims that because she was precluded by an Ohio court 

order from contacting Child for months preceding the filing of the 

termination petition, and that she had taken the only actions available to her 

to attempt to foster a relationship with Child during the relevant periods; it 

was, therefore, not proven by clear and convincing evidence that she “either 

has evidenced a settled purpose of relinquishing parental claim to a child or 

has refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). 

In a proceeding to terminate parental rights involuntarily, the 

burden of proof is on the party seeking termination to establish 

by clear and convincing evidence the existence of grounds for 

doing so. 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." It is well established that a court must examine the 

individual circumstances of each and every case and consider all 

explanations offered by the parent to determine if the evidence 

in light of the totality of the circumstances clearly warrants 

termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation 

omitted). Moreover, we review a trial court’s decision to involuntarily 

terminate parental rights for an abuse of discretion or error of law. In re 

A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited 

to determining whether the trial court’s order is supported by competent 

evidence. Id.
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Instantly, the trial court terminated Mother’s parental rights pursuant 

to section 2511(a)(1) of the Adoption Act.9 Section 2511(a)(1) sets forth 

the following 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.

23 Pa.C.S. § 2511(a)(1) (emphasis added). When considering section 

2511(a)(1) in a termination matter, the court should consider the entire 

background of the case and not simply:

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 h[er] . . . parental rights, to determine if the evidence, in light 

of the totality of the circumstances, clearly warrants the 

involuntary termination.

In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (citing In re D.J.S., 737 

A.2d 283, 286 (Pa. Super. 1999)). Additionally, we note that a parent’s 

responsibilities are not tolled during incarceration. In re B.,N.M., 856 A.2d 

847, 855-56 (Pa. Super. 2004). Rather, “[a]n incarcerated parent is 

expected to utilize all available resources to foster a continuing close 

relationship with h[er] . . . children. The focus is on whether the parent 

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9

 23 Pa.C.S. §§ 2101-2938.
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utilized resources available while in prison to maintain a relationship with 

h[er] . . . child.” Id. 

In In re R.J.S., 901 A.2d 502 (Pa. Super. 2006), an incarcerated 

Father similarly argued that a custody order barred him from any contact 

with his children and that his numerous efforts to modify the no-contact 

order were unsuccessful. Our Court noted that “the record contains no

evidence, other than Father’s testimony, that he took any concrete steps to 

modify the custody order or that he was rebuffed by the court. To the 

contrary, the evidence suggests that Father did not pursue the avenues that 

were open to him for assistance through DCYF.” Id. at 508-509 (emphasis 

in original). Father in R.J.S. was not only assigned a caseworker, who 

“identified what he needed to do to get the family court order modified,” id.

at 509, but was also given constant updates on his children and sent copies 

of his family service plan by the caseworker without any prompting on his 

part. Id. In response, Father never took the caseworker’s suggestions to 

modify the order, failed to respond to a single letter or request by the 

caseworker, and never tried to contact the agency relative to his children. 

Id.

Here, unlike the Father in R.J.S., Mother was not offered any 

assistance with regard to the no-contact order from a local department of 

children and youth services. Instantly, Mother testified that from August 

2012 (when she was in the drug treatment facility and in jail) to May 2013 

(when Father obtained custody of Child), she called Maternal Grandmother 
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one to two times a day and talked to Child. Additionally, Mother attempted 

to call Child in September 2013 when she was at the halfway house; 

however, Father told Mother that she could not speak to Child, that she was 

harassing him and that she was not to call him anymore. Moreover, when 

Father reported the call to authorities at the halfway house, Mother was 

instructed not to call Father anymore. N.T. Termination Hearing, 10/1/14, 

at 241.10

From May 2013 (when Father had custody of Child) through October 

2013 (date of no companionship/contact order), Mother testified that she 

called Maternal Grandmother consistently to get updates on Child. Because 

Father and halfway house personnel told Mother not to call Child, her best 

chances at finding out about Child was through her mother. After the 

October 2013 Ohio order precluded Mother and Maternal Grandmother from 

contacting Child, Maternal Grandmother attempted, on behalf of Mother who 

was still in a halfway house, to have the no-companionship order modified 

so that she could resume her visitation with Child. Id. at 168. After 

recovering from a heart attack in March, Maternal Grandmother continued to 

attempt to have the court order modified. Id. at 169. Finally, following 

Mother’s release from the halfway house in January 2014, Mother, herself, 

tried to have the order modified. Id. 

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10 Father does not contest this testimony.
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In In re J.F., 572 A.2d 223 (Pa. Super. 1990), a father similarly filed 

a petition to terminate natural mother’s parental rights to their child. When 

child was nine months old, mother had relinquished physical custody to 

father and his parents, but still maintained contact with child. Father 

ultimately married his current wife; however, child continued to reside with 

paternal grandparents. Ultimately, legal custody was awarded to father with 

liberal visitation to mother and paternal grandparents. In father’s petition to 

terminate mother’s rights, father claimed that mother had relinquished her 

parental rights for at least six months, under section 2511(a)(1). The court 

ultimately found that mother could have done much more to demonstrate a 

place of importance in child’s life, and that mother had failed to perform 

parental duties for at least three years or take reasonable, affirmative action 

to maintain communication and a relationship with child. Specifically, the 

court found that even though father had made it difficult for mother to 

contact child, mother had not visited with daughter despite being granted 

visitation rights and had never attempted legal action to enforce her 

visitation rights. 

Here, in contrast to the mother in In re J.F., Mother was faced with 

insurmountable obstacles that were exacerbated by her incarceration. To 

overcome these obstacles partially put in place by Father, the halfway 

house, and the court in Ohio, Mother employed the help of Maternal 

Grandmother to keep her updated on Child’s well-being and have letters and 

motions filed with the Ohio court in her stead. Under the circumstances, we 
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find that these attempts were not only reasonable, but the most feasible way 

to regain contact with Child upon her release from the rehabilitation center, 

prison, and the halfway house. See B.,N.M., supra at 855 (a court “must 

consider situations in which a custodial parent has deliberately created 

obstacles and . . . erected barriers intended to impede free communication 

and regular association between noncustodial parent and h[er] child.”).

We do not overlook or diminish the fact that Mother’s imprisonment, 

which was a direct result of her drug addiction/dependency and selling drugs 

from her home, was the main reason that Child was removed from her care. 

However, while Mother will admittedly be challenged in parenting Child as 

she has not actively parented him for the past two years of his life, the 

statute does not permit the trial court to terminate her rights under section 

2511(a)(1) on such a presumption. Cf. In re C.L.G., 956 A.2d 999 (Pa. 

Super. 2008) (where Mother was incarcerated for drug-related crimes, 

underlying drug issues precluded her from properly parenting Child and 

supported termination under section 2511(a)). At the termination hearing, 

Mother offered evidence showing that she has been drug-free since August 

2012. She also testified that she is currently employed as a waitress at a 

local pub/sports restaurant.

By the same token, we cannot ignore the fact that Child lived with and 

was cared for by Mother for the first three-and-a-half years of his life. 

Despite the fact that Mother was a drug addict, she enrolled child in preschool during that time, kept him up to date on his doctor’s appointments, 
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had him enrolled in an early intervention program for his behavioral issues, 

and had Maternal Grandmother take care of him while she was in prison.11 

In In re Shives, 525 A.2d 801 (Pa. Super. 1987), our Court stated:

Only where the totality of the circumstances demonstrates 

clearly and convincingly that a parent has refused or failed to 

perform parental duties for a minimum period of six months may 

an order be entered terminating parental rights. The pertinent 

inquiry is not the degree of success a parent may have had in 

reaching the child, but whether, under the circumstances, 

the parent has utilized all available resources to preserve 

the parent-child relationship.

Id. at 803 (emphasis added). Based on a careful and comprehensive review 

of the record in this case, we are forced to conclude that the evidence did 

not clearly and convincingly demonstrate that Mother refused or failed to 

perform her parental duties for six months. Mother’s incarceration, coupled 

with Father’s refusal to allow her to communicate with child as well as an 

out-of-state no-contact order, amounted to overwhelming barriers that 

prevented her from utilizing traditional methods of communication to 

demonstrate her continued interest in maintaining a parental relationship 

with Child. By using her mother to update her on Child’s well-being and to 

file court papers and letters requesting modification of the no-contact order, 

Mother’s actions in this case amounted to diligent attempts to preserve the 

parent-child relationship under the circumstances and means available to 

her. See In re J.G.J., Jr., 532 A.2d 1218, 1220 (1987) (“In Pennsylvania, 

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11 We note that Father was not in the picture at all until he filed for custody 

in November 2012.
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courts applying this standard have required that the evidence be so clear, 

direct, weighty, and convincing as to enable the factfinder to come to a clear 

conviction without hesitancy, of the truth of the precise facts in issue.”). 

Recognizing that we are limited, on appeal, to determining whether 

the court’s order is supported by competent evidence and that we review a 

trial court’s decision to terminate a parent’s rights for an abuse of discretion 

or error of law, we must reverse.12 Under the totality of the circumstances, 

Z.P., supra, we find that termination was not warranted under section 

2511(a)(1).13

Having found that Father did not prove, by clear and convincing 

evidence, that Mother’s rights should be terminated under section 2511(a), 

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12 The trial court also bases its decision to terminate under section 

2511(a)(1), in part, on the fact that Mother never sent the Child letters, 

pictures or gifts. Trial Court Opinion, 11/10/14, at 1. However, Mother 

explained that she was not permitted to send presents from prison and, that 

based on Father’s prior actions refusing her contact with Child, she 

reasonably believed that anything she would send Child would not be given 

to him. Moreover, if she was under court order to not contact Child, any 

such attempted gifts or communication would be a direct violation of the 

court, subjecting her to sanctions or further loss of her rights to see Child.

13 We recognize that Mother testified that she does not want to take Child 

away from Father and Step-Mother, but just wants to be back in her Child’s 

life. She seeks visitation with him, although acknowledging that it will be a 

gradual process requiring supervision at first. In sum, she does not want to 

disrupt Child’s life in Pennsylvania with the family he has been living with for 

the past two and one-half years. N.T. Termination Hearing, 10/1/14, at 

250-51. Moreover, Step-Mother testified that she and Mother had, for the 

most part, a relatively cordial relationship and that she “absolutely 

believe[s] that [they] can . . . as two sets of parents[,] that we can coparent with Child.” Id. at 138.
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we do not address Mother’s second issue related to the court’s determination 

under section 2511(b). See In re C.L.G., 956 A.2d 999 (Pa. Super. 2008) 

(only after determining parent's conduct warrants termination of parental 

rights under section 2511(a), may court engage in second part of analysis 

under section 2511(b)).14 While it may be tempting to look at the best 

interests of the Child and bootstrap the section 2511(a) arguments and 

conclusions, the statute does not permit a court to engage in such an 

analysis.

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14 However, even if we concluded that termination was proper under section 

2511(a), we disagree with the court’s determination that the best interests 

of Child were served by terminating Mother’s parental rights under section 

2511(b). Here, the court concluded that the impact in severing any potential 

parent-child bond “would be outweighed by the potential harm of the child in 

the resumption of contact at this time.” N.T. Termination Hearing, 10/2/14, 

at 325-26 (emphasis added). As a result, the court concluded that 

terminating Mother’s rights to Child would be in his best interests under 

section 2511(b). However, the court’s focus in this regard is short-sighted; 

it must assess the permanent effect that severing any parent-child bond 

would have on Child. Here, there was no testimony from any witness 

directly addressing the presence or absence of any bond between Mother 

and Child. In fact, behavioral specialist, Amanda Herr, testified that it 

would be “difficult” for her to say whether Child had a familiar bond with 

Mother and her family. N.T. Termination Hearing, 10/1/14, at 11. While 

neither a formal bond evaluation nor an expert opinion is required for a 

section 2511(b) analysis, at a minimum the court must consider the 

presence of any parent-child emotional bond and the effect that severance 

would have on the child. In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 

2005). Interestingly, the trial court even questioned Ms. Herr’s qualification 

to make a recommendation to terminate Mother’s rights. See N.T. 

Termination Hearing, 10/1/14, at 305. Moreover, it is inappropriate to even 

discuss this issue unless and until section 2511(a) is proven by clear and 

convincing evidence.
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Order reversed.15 Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2015

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15 We express no opinion with regard to whether an emotional bond exists 

such that its severance would not be in Child’s best interest. This is 

something that must be further explored by the trial court should a new 

petition to terminate Mother’s rights be filed.