J-S45014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN THE INTEREST OF: D.N.M., A MINOR, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

APPEAL OF: R.M., FATHER, 

 Appellant No. 511 EDA 2014 

Appeal from the Order Entered January 8, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000711-2013, CP-51-DP-0001380-2011, 

FID: 51-FN-002998-2011

BEFORE: BOWES, WECHT, and FITZGERALD,*JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014 

R.M. (“Father”) appeals from the order entered January 8, 2014, 

wherein the trial court involuntarily terminated his parental rights to then 

six-year-old D.N.M.1

 We affirm. 

The Philadelphia Department of Human services (“DHS”) first became 

involved with this family on June 14, 2011, after it received a General 

Protective Services (“GPS”) report alleging that D.D. (“Mother”) had been 

involuntarily hospitalized for mental health treatment following a psychotic 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 

1

 The parental rights of Mother and the father of D.N.M.’s younger sibling 

were also terminated at the same proceeding. Mother and the other father 

have filed separate appeals, which are before this panel. 
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episode. The report, which was later substantiated, further alleged that 

Mother chronically used drugs, abused PCP, angered easily, screamed and 

yelled at the children, and hit D.M.N. in a heavy-handed manner. Father 

was incarcerated, and D.M.N. and her younger sibling were placed in the 

care of their maternal grandmother. 

Mother indicated that she would enter an inpatient drug and alcohol 

rehabilitation program. The children remained with maternal grandmother 

and a safety plan was implemented. Mother returned to maternal 

grandmother’s home upon her discharge. DHS learned that the children 

were not being properly cared for and obtained Orders of Protective Custody 

(“OPC”). On July 7, 2011, the children were placed with their maternal aunt, 

K.S. At the July 8, 2011 shelter care hearing, the OPC was lifted and the 

children’s temporary commitment to DHS was ordered to stand. Following a 

hearing on July 13, 2011, D.M.N. and her sister were adjudicated dependent 

and placed together with the maternal aunt, where they remained until 

March 2012, when they were placed in their present pre-adoptive foster 

home. Mother was referred to for a dual diagnosis evaluation and Father 

was referred to the Achieving Reunification Center (ARC). 

A permanency review hearing was held on October 6, 2011. Although 

Father had been contacted by DHS social worker Akilah Owens, he did not 

respond. Father remained incarcerated and did not participate in the 

January 27, 2012 Family Service Plan (“FSP”) meeting. His FSP objective 
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was to contact DHS so that services could be made available to him. At a 

subsequent FSP meeting on July 10, 2012, additional objectives of parent 

training and drug and alcohol treatment were added for Father. 

DHS decide to change D.M.N.’s placement goal at the December 28, 

2012 FSP meeting. At that point, Mother was not progressing in her 

meeting her objectives, Father remained incarcerated, and D.M.N. had been 

in foster care since July 2011. Father was to contact D.N.M. through letters, 

attend parenting classes and participate in counseling. At the permanency 

hearing on March 20, 2013, the court listed the matter for a goal 

change/involuntary termination of parental rights proceeding. During the 

latter half of 2013, Father responded to DHS correspondence to decline 

visitation with his daughter in prison as he did not feel it was appropriate. 

He also expressed that he did not want his daughter to be placed with her 

sister’s father. 

On August 14, 2013, DHS informed the court of its intention to seek 

involuntary termination and a goal change to adoption. On December 20, 

2013, DHS filed petitions to that effect, and following a hearing on January 

8, 2014, the trial court terminated both Father and Mother’s parental rights 

to D.N.M. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Father filed 

the instant appeal and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a Rule 

1925(b) concise statement of errors complained of on appeal. The trial 
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court addressed the arguments in its Rule 1925(a) opinion. Father presents 

two questions for our review: 

1. Whether the Trial Court erred by terminating the parental 

rights of Appellant, Father, under 23 Pa.C.S.A. § 2511 

subsections (a)(1), (a)(2), (a)(5) and § 2511(a)(8)? 

2. Whether the Trial Court erred by finding under 23 Pa.C.S.A. § 

2511(b), that termination of Appellant’s parental rights best 

serves the child’s developmental, physical and emotional 

needs and welfare? 

Father’s brief at 4. 

The test for terminating parental rights consists of two parts. In In re 

L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

Initially, the focus is on the conduct of the parent. The party 

seeking termination must prove by clear and convincing 

evidence that the parent’s conduct satisfies the statutory 

grounds for termination delineated in Section 2511(a). Only if 

the court determines that the parent’s conduct warrants 

termination of his or her parental rights does the court engage in 

the second part of the analysis pursuant to Section 2511(b): 

determination of the needs and welfare of the child under the 

standard of the 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. 

“[C]lear 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.’” In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009) (quoting In re 

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

When reviewing an order terminating parental rights, 
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 we are limited to determining whether the decision of the trial 

court is supported by competent evidence. Absent an abuse of 

discretion, an error of law, or insufficient evidentiary support for 

the trial court's decision, the decree must stand. Where a trial 

court has granted a petition to involuntarily terminate parental 

rights, this Court must accord the hearing judge's decision the 

same deference that we would give to a jury verdict. 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 R.N.J., supra at 276 (quoting In re S.H., 879 A.2d 802, 805 

(Pa.Super. 2005). “[I]f competent evidence supports the court’s findings, we 

will affirm even if the record could also support the opposite result.” In re 

N.C., 763 A.2d 913, 917 (Pa.Super. 2000). To affirm, we need only find 

competent evidence in support of any one of the subsections pled. In re 

S.M.B., 856 A.2d 1235 (Pa.Super. 2004). 

 Title 23 Pa.C.S. § 2511(a) sets forth the grounds for termination of 

parental rights and provides in pertinent part: 

(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 conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will 

not be remedied by the parent. 
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. . . . 

(5) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 

with an agency for a period of at least six months, 

the conditions which led to the removal or placement 

of the child continue to exist, the parent cannot or 

will not remedy those conditions within a reasonable 

period of time, the services or assistance reasonable 

available to the parent are not likely to remedy the 

conditions which led to the removal or placement of 

the child within a reasonable period of time and 

termination of the parental rights would best service 

the needs and welfare of the child. 

. . . . 

(8) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 

with an agency, 12 months or more have elapsed 

from the date of removal or placement, the 

conditions which led to the removal or placement of 

the child continue to exist and termination of 

parental rights would best serve the needs and 

welfare of the child. 

. . . . 

23 Pa.C.S. § 2511. 

Father’s first contention is that DHS did not produce clear and 

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

filing of the termination petition on December 20, 2013, which revealed a 

settled intent on Father’s part to relinquish his parental claim or a failure to 

perform parental duties for purposes of section 2511(a)(1). According to 

Father, the evidence established that he met all of his objectives. He made 

his whereabouts known to DHS in 2012, and he wrote a letter to the social 
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worker in 2013. Furthermore, it was undisputed that Father completed 

parenting and drug and alcohol classes while incarcerated. Finally, Father 

sent letters to D.N.M., spoke to her on the telephone and sent gifts to her. 

In light of his compliance with his objectives, Father argues that DHS failed 

to prove by clear and convincing evidence that his parental rights should be 

terminated under (a)(1). 

DHS counters that, for the first two years when D.N.M. was in 

placement, Father made no effort to contact her. He effectively abandoned 

her, grounds for termination pursuant to subsection (a)(1). Father’s first 

contact with D.N.M. and increased contact with the agency occurred two to 

three months prior to the termination hearing, and coincided with the 

agency’s desire to change D.N.M.’s goal to adoption. According to DHS, 

Father was not genuinely interested in a parental relationship with D.N.M. or 

in assuming parental responsibilities. Nor does Father’s incarceration excuse 

performance of parental obligations. DHS maintains that Father remained 

obligated to utilize available resources “and take affirmative steps to support 

a parent-child relationship.” In re Adoption of K.J., 936 A.2d 1128, 1133 

(Pa.Super. 2007). DHS contends that Father did not utilize the available 

resources to communicate with his child to that end. 

Additionally, DHS takes the position that the evidence also satisfied 

the statutory grounds for termination under (a)(2), since Father had not 

provided parental care and was not in a position to do so due to his 
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continuous incarceration. It relies upon In re Adoption of S.P., 47 A.3d 

817, 828 (Pa. 2012), where our High Court held that incarceration is a 

factor, “and indeed can be a determinative factor” in the termination of 

parental rights under subsection (a)(2) “where the repeated and continued 

incapacity of a parent due to incarceration has caused the child to be without 

essential parental care, control or subsistence and that the causes of the 

incapacity cannot or will not be remedied.” 

The record indicates that Father had no contact with D.N.M. for more 

than two years while she was in foster care. In September 2013, one month 

after DHS indicated that it would seek a goal change to adoption, Father 

initiated contact. The timing of his efforts made the trial court “question the 

sincerity of Father’s actions.”2

 Trial Court Opinion, 3/11/14, at 6. While he 

did complete parenting and drug and alcohol classes, Father’s “efforts to 

foster a relationship with his child were belated[.]” Trial Court Opinion, 

3/11/14, at 6. It characterized Father’s role as “a passive one and akin to 

that of a pen pal rather than a parent[,]” and found that he “failed to 

demonstrate a persistent interest in his child’s well-being[.]” Id. 

____________________________________________ 

2

 While the trial court declined to consider any post-petition efforts by 

Father to remedy conditions described therein pursuant to 23 Pa.C.S. 

§ 2511(b), it properly considered Father’s efforts to foster a relationship with 

his daughter in the months prior to the filing of the goal change/termination 

petition. However, due to the fact that Father had no contact with D.N.M. 

for more than two years and only initiated contact upon learning that DHS 

intended to seek a goal change to adoption, the trial court was not 

persuaded that the interest in her well-being was genuine. 
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Furthermore, the court found it was unknown when Father would be 

able to parent D.N.M. Id. In essence, the trial court concluded that Father’s 

incarceration rendered him incapable of parenting and acknowledged that 

this was a condition that could not be remedied by Father for purposes of 23 

Pa.C.S. § 2511(a)(2). 

The law is well settled that “[t]he 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 acts of refusal as well as incapacity to perform parental 

duties.” In re K.J., 936 A.2d 1128, 1132 (Pa.Super. 2007). In considering 

the effect of incarceration for purposes of subsection (2), our High Court 

stated: 

we now definitively hold 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 e.g. Adoption of J.J., 515 A.2d at 891 ("[A] 

parent who is incapable of performing parental duties is just as 

parentally unfit as one who refuses to perform the duties."); 

E.A.P., 944 A.2d at 85 (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). 
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In re Adoption of S.P., supra at 830-831. As this Court has repeatedly 

noted, “[A] parent's basic constitutional right to the custody and rearing of 

his...child is converted, upon the failure to fulfill...parental duties, to the 

child's right to have proper parenting and fulfillment of his or her potential in 

a permanent, healthy, safe environment.” In re K.J., supra at 1133 

(quoting In re N.M.B., 856 A.2d 847, 856 (Pa.Super. 2004)). 

In the instant case, the court found a legal basis for terminating 

Father’s parental rights under 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). We 

find that the record supports termination of Father’s parental rights under 

both subsections (a)(1) and (a)(2).3

 The record confirms that Father made 

very limited outreach to DHS until three months before the termination 

hearing. Similarly, after no contact with his daughter for more than two 

years, Father reached out to her at approximately the same time. The trial 

court correctly noted that Father’s “efforts coincided with [its] decision at the 

permanency review hearing on August 19, 2013” to schedule a contested 

goal change hearing, but that he failed to demonstrate a “persistent 

interest” in D.N.M.’s well-being. Trial Court Opinion, 3/11/14, at 5. 

 The trial court was unpersuaded that Father, having failed to maintain 

a relationship with D.N.M. during his incarceration, could fulfill his role as 

____________________________________________ 

3

 Since we need only find that one statutory ground for involuntary 

termination of parental rights was established pursuant to subsection (a), we 

do not reach Father’s contentions regarding subsections (5) and (8). 
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parent upon release from prison. We agree that Father’s completion of 

parenting and drug and alcohol classes cannot compensate for the fact that 

he has not been present for much of D.N.M.’s life and that he made no effort 

to contact her for more than two years. 

 Having concluded that the subsection (a) statutory requirement for 

involuntary termination of parental rights was established, we must consider 

whether the record supports the trial court’s conclusion that D.N.M.’s needs 

and welfare will be met by termination pursuant to subsection (b). See In 

re D.W., 856 A.2d 1231, 1234 (Pa.Super. 2004). Section 2511(b) provides 

in pertinent part: 

(b) Other considerations.—The court in terminating the rights 

of a parent shall give primary consideration to the 

developmental, physical and emotional needs and welfare of the 

child. The rights of a parent shall not be terminated solely on 

the basis of environmental factors such as inadequate housing, 

furnishings, income, clothing and medical care if found to be 

beyond the control of the parent. With respect to any petition 

filed pursuant to subsection (a)(1), (6) or (8), the court shall not 

consider any efforts by the parent to remedy the conditions 

described therein which are first initiated subsequent to the 

giving of notice of the filing of the petition. 

23 Pa.C.S. § 2511(b). 

It is well-settled that when evaluating a parental bond, “the court is 

not required to use expert testimony. Social workers and caseworkers can 

offer evaluations as well. Additionally, § 2511(b) does not require a formal 

bonding evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). 

Instantly, the DHS social worker Akilah Owens, and the foster care social 
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worker, Zakiah Snead, both testified to the absence of a father-child bond. 

Ms. Snead represented that, “[D.N.M.] doesn’t know her Father other than 

what I have presented to her in the last couple of months.” N.T., 1/8/14, at 

89. Ms. Owens agreed that there was no “Child/Father bond” and that 

termination of Father’s parental rights would have no negative effect on 

D.N.M. Id. at 41. The trial court concluded that there was no evidence 

presented at the hearing of a parent–child bond between Father and D.N.M. 

The court also credited the testimony of Ms. Snead that D.N.M. was 

“very bonded” to her pre-adoptive foster parents with whom she had resided 

since July 2011. N.T., 1/8/14, at 88. Ms. Owens, who had observed D.N.M. 

in the home of her foster parents a least twenty-four times concurred in that 

assessment. Id. at 43. The record confirmed that D.N.M. referred to her 

foster parents as “Mom” and “Dad” and looked to them for nurture. N.T., 

1/8/14, at 40, 88. “They care for [D.N.M. and her sister] like they are their 

own.” Id. Ms. Snead testified that there would be no negative effects upon 

D.N.M. if the parental rights of Father were terminated, id. at 89, and 

opined that adoption was the proper goal for D.N.M. Id. at 90. 

Additional facts in the record support the trial court’s finding that 

termination of Father’s parental rights would best satisfy D.N.M.’s 

developmental, physical, and emotional needs and welfare. Father had not 

seen his daughter for at least two and one-half years and had no contact at 

all for at least two years. Father initiated contact only after an impending 
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goal change to adoption was announced in August 2013, and that contact 

consisted of one supervised phone call and several letters and gifts. Id. at 

73-4. We also view the fact that D.N.M. and her younger sister are together 

in the pre-adoptive foster home as highly beneficial in satisfying the siblings’ 

emotional needs and welfare. 

Based upon the foregoing, we find that DHS satisfied its statutory 

burden pursuant to § 2511(a) and that the termination of Father’s parental 

rights would serve the best interests of D.N.M. under § 2511(b). 

Accordingly, we affirm the order terminating Father’s parental rights as to 

D.N.M. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/8/2014