J-A11017-19

2019 PA Super 269

IN RE: INVOLUNTARY TERMINATION 

OF PARENTAL RIGHTS

J.R.E., A MINOR

APPEAL OF: D.E., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1674 MDA 2018

Appeal from the Order Entered September 11, 2018

In the Court of Common Pleas of Dauphin County Orphans' Court at 

No(s): 22-AD-2018

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.: FILED: SEPTEMBER 3, 2019

Appellant, D.E. (Mother), appeals pro se from an order entered on 

September 11, 2018 in the Orphans’ Court Division of the Court of Common 

Pleas of Dauphin County that involuntarily terminated her parental rights to 

J.R.E. (hereinafter Child). We reverse.

Mother and B.J. (Father) are the biological parents of Child, who was 

born in November, 2006 in Florida. Following Child’s birth, Mother assumed 

custody of Child and Father returned to Pennsylvania. Child resided with 

Mother without incident for approximately six months.

In May 2007, when Child was approximately six months old, Mother 

transported Child to a local hospital in Florida where he presented with 

hemorrhaging in the eyes and swelling of the brain. Doctors believed Child’s 

injuries were consistent with shaken baby syndrome. Mother admitted to 

Florida authorities that her paramour, T.B., caused the injuries to Child. 
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Because Child was diagnosed with shaken baby syndrome and only Mother 

and T.B. served as his caretakers, Florida officials determined that Child was 

at great risk of harm if he continued to reside with Mother. Consequently, 

Child was removed from Mother’s custody.

Eventually, Mother received permission to have unsupervised visits with 

Child on weekends, with a goal of reunification, provided that a safety plan 

would be implemented. Court records from Florida show that Mother enjoyed 

unsupervised visitation with Child from January 2008 through mid-March 2008 

and that overnight visitation commenced on March 14, 2008. Mother’s 

visitation program proceeded well until April 28, 2008 when, during an 

unannounced visit, a Florida guardian ad litem discovered an unapproved 

person (believed to be Child’s abuser) in Mother’s home during one of her 

visitation periods with Child. 

After this incident, Child was placed into Father’s custody in 

Pennsylvania on August 8, 2008. From that date until the present, Child has 

been under the care and custody of Father and his wife, K.J. Child believes 

that K.J., his step-mother, is his biological mother.

 In the years since Father acquired custody, Mother has had only 

sporadic contact with Father and enjoyed only indirect contact with Child. 

Mother occasionally communicated with Father by telephone and through 

social media and has infrequently forwarded packages containing clothing for 

Child. Father, however, has not cooperated with Mother’s efforts to contact 

Child. Instead, he has declined her telephone calls and rejected her packages. 
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When he allowed Child to keep some of the items sent by Mother, he did not 

inform Child who forwarded the gifts.

Presently, Mother holds a full-time job in Florida as a surgical technician 

and is engaged to be married. She also has two younger children who 

understand that Mother has a child from a prior relationship.

In February 2017, Mother purchased airfare from Florida to 

Pennsylvania in the hope that Father would permit Child to meet his biological 

mother. Upon arrival, however, Father barred any contact between Child and 

Mother.

On March 13, 2017, Mother filed a complaint seeking custody of Child 

and seeking Child’s enrollment in counseling aimed at developing and 

implementing a plan for reunification with Child. Mother filed a petition for 

modification of custody on September 20, 2017. Mother’s custody action 

against Father remains pending at this time.

Father filed the instant petition to involuntarily terminate Mother’s 

parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a) on March 1, 2018.1 

Mother filed a responsive pleading on July 2, 2018 opposing termination. After 

a continuance, the trial court convened a hearing on Father’s termination 

petition on June 20, 2018. Father and Mother testified at the hearing. In 

addition, an attorney-guardian ad litem (GAL) appointed to represent Child

testified. The GAL recommended that Mother’s parental rights be terminated 

____________________________________________

1 On the same date, Father and K.J. filed a petition to allow K.J. to adopt Child.
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since Child did not know of Mother’s existence and since reunification would 

not be in Child’s best interest. The trial court adopted the GAL’s 

recommendation and determined that Father met his burden of proof under 

23 Pa.C.S.A. § 2511(a)(1). In addition, the court found that termination of 

Mother’s parental rights would be in Child’s best interest under 23 Pa.C.S.A. 

§ 5328(a), which identifies the relevant statutory factors governing an award 

of custody. Mother’s timely appeal followed.

In reviewing an appeal from an order terminating parental rights, we 

adhere to the following standard: 

[A]ppellate courts must apply an abuse of discretion standard 

when considering a trial court’s determination of a petition for 

termination of parental rights. As in dependency cases, our 

standard of review requires an appellate court to accept the 

findings of fact and credibility determinations of the trial court if 

they are supported by the record. In re: R.J.T., 9 A.3d 1179, 

1190 (Pa. 2010). If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa. 2011) 

(plurality opinion)]. As has been often stated, an abuse of 

discretion does not result merely because the reviewing court 

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

Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011); 

Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a 

decision may be reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, partiality, 

prejudice, bias, or ill-will. Id.

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

abuse of discretion standard of review in these cases. We 

observed that, unlike trial courts, appellate courts are not 

equipped to make the fact-specific determinations on a cold 

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

relevant hearing and often presiding over numerous other 

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

Therefore, even where the facts could support an opposite result, 
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as is often the case in dependency and termination cases, an 

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

and impose its own credibility determinations and judgment; 

instead we must defer to the trial judges so long as the factual 

findings are supported by the record and the court’s legal 

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

discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066 

(Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

The burden is upon the petitioner to prove by clear and convincing 

evidence that the asserted grounds for seeking the termination of parental 

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). 

Moreover, we have explained: “[t]he standard of clear and convincing 

evidence is defined as testimony that is so ‘clear, direct, weighty and 

convincing as to enable the trier of fact to come to a clear conviction, without 

hesitance, of the truth of the precise facts in issue.’” Id., quoting In re J.L.C., 

837 A.2d 1247, 1251 (Pa. Super. 2003).

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

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

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

address section 2511(a)(1) and then move on to section 2511(b), which the 

trial court did not address. Section 2511 provides, in relevant part, as follows:

§ 2511. Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a child may 

be terminated after a petition filed on any of the following 

grounds:
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(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.

* * *

(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 petitioner seeking termination of parental rights under Section 

2511(a)(1) must demonstrate through clear and convincing evidence that, for 

a period of at least six months prior to the filing of the petition, the parent’s 

conduct demonstrated a settled purpose to relinquish parental rights or that 

the parent refused or failed to perform parental duties. In Re Adoption of 

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).

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

Once the evidence establishes a failure to perform parental duties 

or a settled purpose of relinquishing parental rights, the court 

must engage in three lines of inquiry: (1) the parent’s explanation 

for his or her conduct; (2) the post-abandonment contact between 

parent and child; and (3) consideration of the effect of termination 

of parental rights on the child pursuant to Section 2511(b). 

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further, 
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the trial court must consider the whole history of a given case and 

not mechanically apply the six-month statutory provision. The 

court must examine the individual circumstances of each case and 

consider all explanations offered by the parent facing termination 

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

of the totality of the circumstances, clearly warrants the 

involuntary termination. 

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

This Court has long recognized that a parent is required to make diligent 

efforts toward the reasonably prompt assumption of full parental 

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

parent’s vow to cooperate, after a long period of uncooperativeness regarding 

the necessity or availability of services, may properly be rejected as untimely 

or disingenuous. Id. at 340.

In Adoption of S.P., our Supreme Court reiterated the standard with 

which a parent must comply in order to avoid a finding that she abandoned 

her child.

Applying [In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 

1975)] the provision for termination of parental rights based upon 

abandonment, now codified as § 2511(a)(1), we noted that a 

parent “has an affirmative duty to love, protect and support his 

child and to make an effort to maintain communication and 

association with that child.” [McCray] at 655.

* * *

Where the parent does not exercise reasonable firmness in 

declining to yield to obstacles, his other rights may be forfeited.

Adoption of S.P., 47 A.3d at 828, quoting In re: Adoption of McCray, 331 

A.2d at 655 (footnotes and internal quotation marks omitted).

The trial court reasoned as follows in finding that Father met his burden 

under section 2511(a)(1):
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[The trial c]ourt is under the belief that [Mother] has clearly failed 

to have steady and consistent contact with [Child]. Simply put, 

sending gifts through the mail and showing up unexpectedly is not 

enough to establish a consistent and steady relationship. 

[Mother’s] minimal attempts at contact were not serious enough 

to demonstrate her desire to create a lasting relationship.

Trial Court Opinion, 10/30/18, at 2.

After careful review of the certified record, we conclude that Father has 

not met his burden of showing, through clear and convincing evidence, that 

Mother “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.A. § 2511(a)(1). Although the record establishes that Mother had no 

contact with Child during the relevant statutory period, and very little contact 

for a lengthy period prior to that timeframe, it is equally clear that the lack of 

contact and support is due, in substantial part, to a lack of cooperation and 

reasonable accommodation on the part of Father, the custodial parent. As the 

October 30, 2018 opinion makes clear, the trial court made no effort to 

examine Mother’s explanation for her conduct. In the absence of an 

individualized assessment of the explanations offered by Mother who faced 

permanent severance of her parental connection to Child, there could be no 

reasoned determination that the circumstances of this case clearly called for 

involuntary termination. Hence, the trial court abused its discretion in finding 

that the record was sufficient to support termination under section 

2511(a)(1).
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Although our discussion could end with our disposition of the section 

2511(a) analysis, we turn now to discuss the second part of a termination 

analysis which looks to section 2511(b). This Court has stated that “once the 

statutory grounds for termination have been met under Section 2511(a), the 

[trial] court must consider whether termination serves the needs and welfare 

of the child, pursuant to [s]ection 2511(b).” In re Adoption of C.L.G., 956 

A.2d 999, 1009 (Pa. Super. 2008) (en banc) (emphasis added). Instead of 

examining section 2511(b), the court considered Child’s “best interests” under 

23 Pa.C.S.A. § 5328(a). In so doing, the court failed to consider the proper 

statutory provisions in terminating Mother’s parental rights to Child. This was 

error.

In reviewing the evidence in support of termination under section 

2511(b), our Supreme Court 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. 

§ 2511(b). The emotional needs and welfare of the child have 

been properly interpreted to include “[i]ntangibles such as love, 

comfort, security, and stability.” In re K.M., 53 A.3d 781, 791 

(Pa. Super. 2012). In In re E.M., 620 A.2d 481, 485 (Pa. 1993), 

th[e Supreme] Court held that the determination of the child’s 

“needs and welfare” requires consideration of the emotional bonds 

between the parent and child. The “utmost attention” should be 

paid to discerning the effect on the child of permanently severing 

the parental bond. In re K.M., 53 A.3d at 791.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

In the exceptional circumstances presented in this case, where Child has 

not been informed of Mother’s existence and believes that K.J. is his biological 
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mother, the trial court elected to forgo the mandatory analysis under section 

2511(b), which examines the emotional bond between a parent facing 

termination and her child. The court instead considered Child’s “best 

interests” under 23 Pa.C.S.A. § 5328(a), a statutory provision that sets forth 

the factors to be considered in making an award of custody. We strongly 

suspect that this clearly erroneous choice was made to avoid the disclosure of 

Mother’s true identity to Child, as the court adopted the GAL’s belief that 

Child’s reintroduction to Mother would be highly disruptive. See Trial Court 

Opinion, 10/30/18, at 3 (“It is [the trial court’s] opinion that it is in [Child’s] 

best interest to maintain the lifestyle that he has been living for approximately 

the past eleven years. Reintroducing [Mother] to [Child] as his biological 

mother would be highly disruptive and detrimental to his life, considering that 

he is under the belief that [K.J.] is his mother. The [GAL] also held this same 

viewpoint.”). In any event, while it may be correct that, in the short term, 

reintroduction may prove disruptive, it is more probable that Child’s longer 

term interests in stability and security in knowing his true parentage can only 

be served by a comprehensive program of counseling and accurate 

identification of his biological parents.2 Permanently severing a bond between 

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2

 In In Re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017), our Supreme 

Court held that orphans' courts must appoint counsel to represent the legal 

interests of any child involved in a contested involuntary termination 

proceeding pursuant to 23 Pa.C.S. § 2313(a). The Court further explained 

that a child's legal interests are distinct from his or her best interests, in that 
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a natural parent and a child in order to perpetuate a relationship built upon a 

misrepresentation does not, clearly and convincingly, serve the long-term 

well-being and emotional interests of Child. As these unique and challenging 

issues were never explored by the trial court, we cannot agree that the record 

would support termination under section 2511(b). Accordingly, we reverse.

Order reversed. 

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a child's legal interests are synonymous with the child's preferred outcome, 

while a child's best interests must be determined by the court. Id. at 174.

Here, an attorney-GAL appointed to represent Child advocated solely for 

Child’s best interests. At the time of the proceedings before the trial court, 

Child was approximately eleven years old, had no contact with his biological 

mother since he was an infant, and believed his step-mother was his biological 

mother. Akin to the preferred outcome concept articulated by our Supreme 

Court in L.B.M., Child might have a legal interest in learning of and developing 

a relationship with his biological mother that does conflict with his best 

interests. Medical issues or issues with identity may arise in the future that 

necessitate identification of biological relations. Moreover, since Child was 

born in November 2006, the anticipated adoption by his step-mother will not 

be completed before Child’s twelfth birthday. Thus, Child must consent to it. 

See 23 Pa.C.S.A. § 2711(a)(1). As these issues were never explored by either 

the trial court or the GAL, Child was impermissibly deprived of his statutory 

right to counsel who would protect his legal interests. See In re Adoption 

of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (“[Under L.B.M.,] it is clear 

that where a court appoints an attorney ostensibly as counsel, but the 

attorney never attempts to ascertain the client's position directly and 

advocates solely for the child's best interests, the child has been deprived 

impermissibly of his statutory right to counsel [under 23 Pa.C.S.A. § 2313(a) 

who serves] his legal interests.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/03/2019