J-S15044-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.T.S.

APPEAL OF: S.M.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1798 WDA 2018

Appeal from the Order Entered November 19, 2018

In the Court of Common Pleas of Cambria County

Orphans' Court at No(s): 2017-716 IVT

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 26, 2019

Appellant, S.M. (“Mother”), appeals from the order entered in the 

Cambria County Court of Common Pleas, which granted the petition of 

Appellees, S.P. and D.P., Jr., for involuntary termination of Mother’s parental 

rights as to her minor child, J.T.S. (“Child”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. In 

August 2016, Mother was incarcerated in SCI when she gave birth to Child. 

Child was addicted to methadone at birth and spent three weeks detoxing in

the NICU. Mother gave Father custody of Child while Mother was in prison

and, following Child’s detox, Father took Child home to live with Father and 

Child’s paternal grandmother. On September 23, 2016, when Child was five 

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1 J.S. (“Father”) is not a party to this appeal as he is now deceased. 
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weeks old, Child’s paternal grandfather asked Appellees (Child’s paternal 

second cousin and her husband) to watch Child for “a while.” Child has 

remained with Appellees ever since. During this time, Mother remained 

incarcerated. 

On May 5, 2017, Appellees filed a complaint for custody of Child and a 

petition for special relief. As a result, Appellees acquired sole legal and 

physical custody of Child per the order issued July 11, 2017, which provided

that Mother could not have contact with Child except by written request and 

after a full hearing before the court. On August 8, 2017, Appellees filed a 

petition for involuntary termination of Mother’s parental rights to Child. The 

court appointed independent counsel for Mother and counsel for Child. 

Following Mother’s release from prison on February 24, 2018, the court held 

two hearings on the termination petition, on March 8, 2018, and November 9, 

2018.

2

 

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2 Throughout the termination proceedings, the same attorney-guardian ad 

litem (“GAL”) represented Child’s interests. Because Child was less than three 

years old at the time of the termination proceedings, we can presume, absent 

any evidence in the record to the contrary, that there was no conflict between 

Child’s best interests and his legal interests. See In Re: T.S., ___ Pa. ___, 

192 A.3d 1080 (2018) , cert. denied, ___ U.S. ___, ___ S.Ct. ___, 2019 WL 

659981 (Feb. 19, 2019) (holding appointment of second counsel for child, in 

contested termination proceedings, is not required to represent separate legal 

interests of child, where child’s legal interests and best interests do not 

diverge; due to child’s young age (less than three years old), presumption 

exists that child was too young to express subjective preferred outcome of 

termination proceedings; therefore attorney-GAL could fulfill statutory 

mandate for appointment of counsel and represent both best interests and 

legal interests of child). 
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During the March 2018 termination hearing, Appellee S.P. testified that 

Mother did not contact Appellees concerning Child until after Appellees filed 

the custody complaint. S.P. explained that Mother sent only one letter to 

Appellees during the entire time they had Child, but Appellees did not respond

to that letter. S.P. also stated that following the July 11, 2017 order, Mother

made no written request to contact Child. S.P. stated Appellees hoped to 

adopt Child if the court granted their petition to terminate Mother’s parental 

rights. On cross-examination by Child’s attorney-GAL, S.P. discussed 

Appellees’ relationship with Child and how Child views Appellees as his 

parents. (See N.T. Termination Hearing, 3/8/18, at 4-28). Appellee D.P., Jr. 

testified similarly. (Id. at 29-33). 

Mother also testified on her own behalf at the March termination 

hearing. Mother explained that while there were no formal custody 

agreements in effect, all three of her other children lived with their fathers. 

Mother, however, stated that she kept in contact with these children while she 

was in prison through letters and phone calls. Mother explained she could not 

communicate with Appellees concerning Child until after she obtained their 

address through the custody complaint. Testimony also revealed, however, 

that following the July 11, 2017 order, Mother made no requests for contact 

with Child. 

Mother further testified regarding her extensive history of mental health

issues, incarceration, drug use, and failed rehabilitation attempts. Mother 
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admitted being incarcerated during thirty out of the thirty-six months

preceding February 24, 2018. Mother also confessed that during the six 

months Mother was not incarcerated, she used illegal drugs. Mother further 

testified that since her release from prison, she had remained clean and was 

living with her father while applying for jobs. Finally, Mother stated that if the 

court denied Appellees’ petition, she hoped to seek custody time with Child 

and was willing to have monitored supervision and random drug tests if 

necessary. (Id. at 33-95). 

At the November 2018 termination hearing, Appellees’ counsel 

introduced additional evidence that Mother had used illegal drugs, in violation 

of the terms of her parole, and had been resentenced on November 6, 2018, 

to three (3) to six (6) months in county prison. (See N.T. Termination 

Hearing, 11/9/18, at 2-4). On November 19, 2018, the court terminated 

Mother’s parental rights to Child under 23 Pa.C.S.A. § 2511(a)(1)-(2) and (b), 

and allowed for adoption of Child by Appellees without further notice to or 

consent of Mother. Mother timely filed a notice of appeal on December 17, 

2018, as well as a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925.

Mother raises the following issue for our review:

WHETHER THE COURT EITHER ABUSED ITS DISCRETION 

OR COMMITTED AN ERROR OF LAW WHEN IT GRANTED THE 

PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL 

RIGHTS, THEREBY TERMINATING THE PARENTAL RIGHTS 

OF S.M. [MOTHER] TO J.T.S. [CHILD]? 
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(Mother’s Brief at 2). 

Mother challenges the termination of her parental rights under Sections 

2511(a)(1) and (2). Under Section 2511(a)(1), Mother argues she did not 

show a settled purpose of relinquishing her parental claim, as she attempted 

to defend Appellees’ custody action during the six months prior to the filing of 

the termination petition. Mother contends she also made an effort to 

communicate with Appellees regarding Child when she sent a letter, which 

Appellees ignored, less than two months before the filing of the termination 

petition and within a month of learning Appellees’ address. While Mother 

stipulates she failed to perform her parental duties in the past, she asserts 

that her failure is excused due to her incarceration and the barriers Appellees 

erected, such as the July 11, 2017 custody order, which forbade Mother from 

contacting Child unless she filed a written request and the court held a full 

hearing. 

Similarly, under Section 2511(a)(2), Mother maintains Appellees failed 

to present any proof of Mother’s refusal to parent Child. Mother again alleges 

Appellees prevented Mother from parenting Child by ignoring her efforts to 

communicate with Child and by seeking an onerous custody order. 

Additionally, Mother emphasizes that, despite her past drug use, she should 

be given the opportunity to parent Child and is willing to accept any 

supervision the court finds suitable. Mother stresses Appellees lacked 

evidence to show that Mother’s prior criminal and drug issues were not already 
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addressed or could not be addressed. Mother claims her parole violation,

which resulted in a new sentence of three to six months, was not for drug use, 

but for leaving rehab one day early. Mother concludes the court erred in 

terminating her parental rights to Child. We disagree. 

Appellate review in termination of parental rights cases implicates the 

following principles:

In cases involving termination of parental rights: “our 

standard of review is limited to determining whether the 

order of the trial court is supported by competent evidence, 

and whether the trial court gave adequate consideration to 

the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 

A.2d 5, 8 (Pa.Super. 2009)). 

Absent an abuse of discretion, an error of law, or 

insufficient evidentiary support for the trial court’s 

decision, the decree must stand. ... We must employ 

a broad, comprehensive review of the record in order 

to determine whether the trial court’s decision is 

supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en 

banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) 

(internal citations omitted).

Furthermore, we note that the trial court, as the finder 

of fact, is the sole determiner of the credibility of 

witnesses and all conflicts in testimony are to be 

resolved by [the] finder of fact. The burden of proof 

is on the party seeking termination to establish by 

clear and convincing evidence the existence of

grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 

2002) (internal citations and quotation marks omitted). The 

standard of clear and convincing evidence means testimony 
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that is so clear, direct, weighty, and convincing as to enable 

the trier of fact to come to a clear conviction, without 

hesitation, of the truth of the precise facts in issue. In re 

J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may 

uphold a termination decision if any proper basis exists for 

the result reached. In re C.S., 761 A.2d 1197, 1201 

(Pa.Super. 2000) (en banc). If the court’s findings are 

supported by competent evidence, we must affirm the 

court’s decision, even if the record could support an opposite 

result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super. 

2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 

(2008)). 

Section 2512 governs who may bring a petition to terminate parental 

rights, and what the petition must contain, as follows:

§ 2512. Petition for involuntary termination

(a) Who may file.─A petition to terminate parental rights 

with respect to a child under the age of 18 years may be 

filed by any of the following:

(1) Either parent when termination is sought with 

respect to the other parent.

(2) An agency.

(3) The individual having custody or standing in loco 

parentis to the child and who has filed a report of 

intention to adopt required by section 2531 (relating to 

report of intention to adopt).

(4) An attorney representing a child or a guardian ad 

litem representing a child who has been adjudicated 

dependent under 42 Pa.C.S.A § 6341(c) (relating to 

adjudication).

(b) Contents.─The petition shall set forth specifically 
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those grounds and facts alleged as the basis for terminating 

parental rights. The petition filed under this section shall 

also contain an averment that the petitioner will assume 

custody of the child until such time as the child is adopted. 

If the petitioner is an agency it shall not be required to aver 

that an adoption is presently contemplated nor that a person 

with a present intention to adopt exists. 

* * *

23 Pa.C.S.A. § 2512. If the petitioner is not an agency, then the petition must 

include “an averment that an adoption is presently contemplated or that a 

person with a present intention to adopt exists.” In re Adoption of J.F.D., 

782 A.2d 564, 567 (Pa.Super. 2001). In any event, the burden of proof 

remains with the petitioning party, who must establish valid grounds for 

termination by clear and convincing evidence. In re J.L.C., 837 A.2d 1247, 

1251 (Pa.Super. 2003). 

Appellees sought termination of Mother’s parental rights on the following 

grounds: 

§ 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 
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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)(1)-(2), (b). “Parental rights may be involuntarily 

terminated where any one subsection of Section 2511(a) is satisfied, along 

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117. 

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...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.

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

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the 

moving party must produce clear and convincing evidence 

of conduct, sustained for at least the six months prior to the 

filing of the termination petition, which reveals a settled 
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intent to relinquish parental claim to a child or a refusal or 

failure to perform parental duties. In addition,

Section 2511 does not require that the parent 

demonstrate both a settled purpose of relinquishing 

parental claim to a child and refusal or failure to 

perform parental duties. Accordingly, parental rights 

may be terminated pursuant to Section 2511(a)(1) if 

the parent either demonstrates a settled purpose of 

relinquishing parental claim to a child or fails to 

perform parental duties. 

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...her conduct; (2) the postabandonment 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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations 

omitted). Regarding the six-month period prior to filing the termination 

petition:

[T]he 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...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, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 

718, 872 A.2d 1200 (2005) (internal citations omitted). 

The grounds for termination of parental rights under Section 

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

limited to affirmative misconduct; to the contrary, those grounds may include 
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acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 

797 A.2d 326 (Pa.Super. 2002). “Parents are required to make diligent efforts 

towards the reasonably prompt assumption of full parental responsibilities.” 

Id. at 340. The fundamental test in termination of parental rights under 

Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa. 

636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced 

that under what is now Section 2511(a)(2), “the petitioner for involuntary 

termination must prove (1) repeated and continued incapacity, abuse, neglect 

or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child 

to be without essential parental care, control or subsistence; and (3) that the 

causes of the incapacity, abuse, neglect or refusal cannot or will not be 

remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998). 

With respect to an incarcerated parent, this Court has stated:

[I]ncarceration alone does not provide sufficient grounds for 

the termination of parental rights. Likewise, a parent’s 

incarceration does not preclude termination of parental 

rights if the incarcerated parent fails to utilize given 

resources and fails to take affirmative steps to support a 

parent-child relationship. As such, a parent’s 

responsibilities are not tolled during incarceration. 

In re Adoption of K.J., supra at 1133 (internal citations omitted). 

Under Section 2511(b), the court must consider whether the child’s 

needs and welfare will be met by termination. In re C.P., 901 A.2d 516 

(Pa.Super. 2006). 

Intangibles such as love, comfort, security, and stability are 

involved when inquiring about the needs and welfare of the 
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child. The court must also discern the nature and status of 

the parent-child bond, paying close attention to the effect 

on the child of permanently severing the bond. 

Id. at 520 (internal citation omitted). “In this context, the court must take 

into account whether a bond exists between child and parent, and whether 

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

In re Z.P., supra at 1121.

The statute permitting the termination of parental rights outlines certain 

irreducible minimum requirements of care that parents must provide for their 

children, and a parent who cannot or will not meet the requirements within a 

reasonable time following intervention by the state may properly be 

considered unfit and have her parental rights terminated. In re B.L.L., 787 

A.2d 1007 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental

duties. Parental duty is best understood in relation to 

the needs of a child. A child needs love, protection, 

guidance, and support. These needs, physical and 

emotional, cannot be met by a merely passive interest 

in the development of the child. Thus, this court has 

held that the parental obligation is a positive duty 

which requires affirmative performance.

This affirmative duty encompasses more than a 

financial obligation; it requires continuing interest in 

the child and a genuine effort to maintain 

communication and association with the child.

Because a child needs more than a benefactor, 

parental duty requires that a parent exert himself to 

take and maintain a place of importance in the child’s 

life.
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Parental duty requires that the parent act affirmatively with 

good faith interest and effort, and not yield to every 

problem, in order to maintain the parent-child relationship 

to the best of...her ability, even in difficult circumstances. A 

parent must utilize all available resources to preserve the 

parental relationship, and must exercise reasonable 

firmness in resisting obstacles placed in the path of 

maintaining the parent-child relationship. Parental rights 

are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental responsibilities 

while others provide the child with [the child’s] physical and 

emotional needs.

In re B.,N.M., supra (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 his...potential in a permanent, 

healthy, safe environment.” Id. at 856. 

Instantly, the record supports the court’s decision to terminate Mother’s 

parental rights under Section 2511(a). Mother’s repeated drug use, 

incarceration, and failed attempts at rehabilitation have characterized her life 

for the past several years. Mother gave birth to Child while in prison in August 

2016. Child was born addicted to methadone and spent three weeks in the 

NICU detoxing. Following his detox, Child left the hospital with Father, only 

to end up in Appellees’ care two weeks later. Mother, however, remained 

incarcerated until February 24, 2018. During the March termination hearing, 

Mother admitted being incarcerated for thirty of the thirty-six months 

preceding her February 2018 release and, for the six months she was not 

incarcerated, Mother confessed to using illegal drugs. Mother also failed to 
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complete several drug rehabilitation programs. Finally, just a few months 

after Mother’s February 2018 release, she violated the terms of her parole and 

was resentenced to an additional three to six months’ imprisonment. 

During Mother’s incarceration, she made minimal effort to communicate 

with Child. Prior to Appellees’ custody complaint, Mother had no contact with 

Appellees. Mother failed to use her family and friends to find Appellees’ 

address and phone number after Mother was given Appellees’ names. Though 

Mother claimed she could not obtain Appellees’ address, even after doing so, 

Mother sent them only one letter. Additionally, after entry of the July 11, 

2017 court order, Mother made no written request to contact Child. Though 

Mother’s incarceration does not, in itself, provide grounds for involuntary 

termination of her parental rights, her parental responsibilities continued

during that time. See In re Adoption of K.J., supra. Mother failed to show 

she utilized all available resources to foster a meaningful relationship with 

Child. See B., N.M., supra. 

Moreover, the record supports the court’s decision to terminate Mother’s 

parental rights under Section 2511(b). Mother has been incarcerated for the 

vast majority of Child’s life. Having spent only two hours with Child on the

day of his birth, Mother has no parental bond with Child. In contrast, 

Appellees have raised Child since he was five weeks old. During the March 

termination hearing, Appellees discussed their relationship with Child and how 

Child views them as his parents. Appellees spoke of how they feed and bathe 
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Child, read to him, and put him to sleep. Appellees also discussed Child’s 

favorite colors, books, and television programs. Appellees have been the only 

parents Child has ever known. Terminating Mother’s parental rights would 

not sever any bond. Allowing Appellees to adopt Child is in Child’s best 

interest. Because competent evidence of record supports the court’s decision 

to terminate Mother’s parental rights, we have no reason to disturb it. See 

In re B.L.W., supra. Accordingly, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2019