J-S65034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.L.-M.C., A 

MINOR

APPEAL OF: M.S.B., MOTHER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1226 MDA 2019

Appeal from the Decree Entered June 24, 2019

In the Court of Common Pleas of Lancaster County Orphans’ Court at 

No(s): 2019-00097

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 30, 2019

Appellant, M.S.B. (“Mother”), appeals from the decree of the Orphans’ 

Court Division of the Court of Common Pleas of Lancaster County, entered 

June 24, 2019, terminating her parental rights to her child, A.L.-M.C. (“Child”), 

born September 2010.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant 

facts and procedural history of this case. Trial Court Opinion, filed August 23, 

2019, at 2-6. For convenience of the reader, we note that, on October 12, 

2017, Lancaster County Children and Youth Social Service Agency (“the 

Agency”) implemented a safety plan for this family “based on concerns related 

to drug abuse by Mother”; “[a]ccording to the safety plan, Mother was to have 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 On April 11, 2019, Child’s biological father, A.C., voluntarily relinquished his 

parental rights to Child.
J-S65034-19

- 2 -

no unsupervised contact with” Child. Id. at 2. On December 8, 2017, the 

Agency petitioned for temporary custody of Child, which the trial court 

granted, and the Agency placed Child with her maternal grandparents, L.B. 

(“Maternal Grandmother”) and M.B. (collectively, “Maternal Grandparents”). 

Id. at 3. On January 22, 2018, Child was adjudicated dependent. Id. “From 

the time of the Child’s placement to the date the Agency filed to terminate 

parental rights, Mother is recorded as only visiting with the Child twice out of 

her scheduled visits, amounting to two times in one year[,]” even though the 

trial court had ordered weekly visitation at the Agency. Id. at 3, 9. Although 

Mother was incarcerated in Lancaster County from July 13 to 24 and July 28 

to August 14, 2018, N.T., 5/20/2019, at 11, there is nothing in the record to 

suggest that Mother had been incarcerated or otherwise prevented from 

visiting Child between her placement on December 8, 2017, and Mother’s first 

incarceration on July 13, 2018.

Following permanency review hearings on May 11 and October 18, 

2018, the Agency petitioned to terminate Mother’s parental rights to Child

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b) on January 9, 2019. 

Trial Court Opinion, filed August 23, 2019, at 4-5; Petition to Terminate 

Parental Rights of Parents, 1/9/2019, at 2-3 ¶¶ 7(A)-(D) (citing Section 

2511(a)(1), (2), (5), and (8)), ¶ 10 (“[t]ermination would best serve the 

needs and welfare of [C]hild”).
J-S65034-19

- 3 -

Hearings on the termination petition2 were held on February 11,3

April 8,4 and May 20, 2019. Mother was incarcerated in Lebanon County 

during the February hearing but participated via telephone. N.T., 2/11/2019, 

at 3. She was in a rehabilitation center during the April hearing but again 

participated by telephone. N.T., 4/8/2019, at 3; N.T., 5/20/2019, at 11.5 

During the May hearing, Mother was once more incarcerated in Lebanon 

____________________________________________

2 Child was represented at all termination hearings by a guardian ad litem

(“GAL”). The trial court is “not required to appoint a separate attorney to 

represent Child[]’s legal interests, so long as Child[]’s GAL was an attorney, 

and so long as Child[]’s legal and best interests [do] not appear to be in 

conflict.” In re G.M.S., 193 A.3d 395, 400 (Pa. Super. 2018); see also In 

re L.B.M., 161 A.3d 172, 173-75, 180 (Pa. 2017) (courts must appoint 

counsel to represent the legal interests of any child involved in a contested 

involuntary termination proceeding; a child’s legal interests are distinct from 

his or her best interest, in that a child’s legal interests are synonymous with 

the child’s preferred outcome, and a child’s best interest must be determined 

by the court); In re T.S., 192 A.3d 1080, 1089-93 (Pa. 2018) (a child’s 

statutory right to appointed counsel is not waivable, even where the child is 

too young or nonverbal to communicate his or her preference; reaffirming the 

ability of an attorney-guardian ad litem to serve a dual role and to represent 

a child’s non-conflicting best interests and legal interests).

In the current case, Child’s GAL was an attorney, and her legal and best 

interests do not appear to have been in conflict, as Child testified that she 

wanted to live with Maternal Grandparents and not with Mother. N.T., 

6/24/2019, at 7, 9. Ergo, the trial court did not need to appoint a separate 

attorney to represent Child’s legal interests. G.M.S., 193 A.3d at 400.

3 Mother had again been incarcerated in Lancaster County between 

December 6, 2018, and January 10, 2019. N.T., 5/20/2019, at 11.

4 An additional permanency review hearing was held on March 29, 2019.

5 At some point between her incarceration in Lebanon County and her release 

to the rehabilitation facility, Mother had also been incarcerated in Berks 

County, although the record is unclear as to when this Berks County 

incarceration occurred. Id.
J-S65034-19

- 4 -

County after she was unsuccessfully discharged from treatment, which 

qualified as a violation of her probation; she again participated by telephone. 

N.T., 5/20/2019, at 4, 11, 16, 22, 24. Mother was represented by counsel at 

all termination proceedings. During the May hearing, a caseworker from the 

Agency confirmed that Mother had been “sending letters to the Child from 

prison since the month of February [2019].” Trial Court Opinion, filed 

August 23, 2019, at 6 (citing N.T., 5/20/2019, at 17-19). 

Although all parties had rested at the end of the May hearing, on 

June 12, 2019, the trial court sua sponte re-opened the record and scheduled 

a fourth hearing for June 24, 2019. Order to Reopen the Record, 6/12/2019. 

At that additional hearing, the trial court “spoke with the Child in chambers, 

where the Child was unequivocally clear in her desire to be adopted by 

[M]aternal [G]randparents.” Trial Court Opinion, filed August 23, 2019, at 6 

(citing N.T., 6/24/2019, at 7-9). When asked why she did not want to live 

with Mother, Child answered that Mother “sometimes” does not “learn her 

lesson.” N.T., 6/24/2019, at 9. Maternal Grandmother testified that “Child 

hardly ever asks about her Mother and does not ask to see her Mother.” Trial 

Court Opinion, filed August 23, 2019, at 6 (citing N.T., 6/24/2019, at 22). 

Both Maternal Grandparents testified that “they are not opposed to Mother 

having contact with the Child in the future if Mother maintains sobriety.” Id.

at 15 (citing N.T., 6/24/2019, at 22).

Following the June hearing, the trial court entered a decree terminating 

Mother’s parental rights to Child. On July 24, 2019, Mother filed this timely 
J-S65034-19

- 5 -

appeal, along with a concise statement of errors complained of on appeal. 

See Pa.R.A.P. 1925(a)(2)(i).6

Mother now presents the following issues for our review:

I. Did the [trial] court err and abuse its discretion in 

terminating the parental rights of Mother in that Mother was either 

incarcerated or a patient in a court-ordered inpatient rehabilitation 

facility during a significant period of time during the pendency of 

the underlying juvenile dependency action and the termination of 

parental rights action, but Mother nevertheless utilized the 

resources available to her in maintaining a place of importance in 

[C]hild’s life. Mother regularly forwarded appropriate 

correspondence to the [Agency] case worker that either inquired 

about the well-being of [C]hild or that was intended for [C]hild?

II. Did the [trial] court err and abuse its discretion in 

terminating the rights of Mother, as termination of the Mother’s 

rights is not in the best interests of the child and will not promote 

the physical, mental, or emotional well-being of [C]hild, as a bond 

exists between Mother and the child, Mother being the primary -

and only - caretaker for [C]hild, who was seven years old at the 

time of placement, from the birth of [C]hild until implementation 

of the Safety Plan?

III. Did the [trial] court err and abuse its discretion in 

terminating the rights of Mother, as termination of the Mother’s 

rights is not in the best interests of the child and will not promote 

the physical, mental, or emotional well-being of [C]hild, as Mother 

will in the near future be released from prison and within a 

reasonable time be capable of performing parental duties and 

providing permanency for [C]hild[?]

Mother’s Brief at 8-9 (suggested answers omitted).

We consider Mother’s issues in light of our well-settled standard of 

review:

____________________________________________

6 The trial court entered its opinion on August 23, 2019. See Pa.R.A.P. 

1925(a)(2)(ii).
J-S65034-19

- 6 -

When reviewing an appeal from a decree terminating parental 

rights, 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.

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.

The trial court is free to believe all, part, or none of the evidence 

presented and is likewise free to make all credibility 

determinations and resolve conflicts in the evidence. If competent 

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

the record could also support the opposite result.

In re B.J.Z., 207 A.3d 914, 921 (Pa. Super. 2019) (internal quotation marks 

and some internal citations omitted) (some formatting). “A decision to 

terminate parental rights [is] never to be made lightly or without a sense of 

compassion for the parent[.]” In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 

2012).

Termination of parental rights is governed by Section 2511 of the 

Adoption Act, 23 Pa.C.S. §§ 2101-2938. “Our case law has made clear that 

under Section 2511, the court must engage in a bifurcated process prior to 

terminating parental rights.” B.J.Z., 207 A.3d at 921 (citation omitted).

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 
J-S65034-19

- 7 -

determines that the parent’s conduct warrants termination of his 

or her parental rights does the court engage in the second part of 

the analysis pursuant to Section 2511(b): determination of the 

needs and welfare of the child under the standard of best interests 

of the child.

In re G.M.S., 193 A.3d 395, 401 (Pa. Super. 2018) (citation omitted).

23 Pa.C.S. § 2511(a)

The trial court terminated Mother’s parental rights pursuant to 23 

Pa.C.S. § 2511(a)(1), (2), (5), and (8). This Court will affirm if it agrees with 

the trial court’s decision as to any one subsection of 23 Pa.C.S. § 2511(a). In 

re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We affirm the 

trial court’s decision to terminate Mother’s parental rights to Child under 

subsections 2511(a)(1), which provides:

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). Section 2511 further provides: “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 condition described therein 

which are first initiated subsequent to the giving of notice of the filing of the 

petition.” Id. § 2511(b).

Mother contends that the trial court –

erred and abused its discretion in terminating [her] parental rights 

. . . in that Mother was either incarcerated or a patient in a court-
J-S65034-19

- 8 -

ordered inpatient rehabilitation facility during a significant period 

of time during the pendency of the underlying juvenile 

dependency action and the termination of parental rights action, 

but Mother nevertheless utilized the resources available to her in 

maintaining a place of importance in [C]hild’s life. Mother 

regularly forwarded appropriate correspondence to the . . . Agency 

case worker that either inquired about the well-being of [C]hild or 

that was intended for [C]hild.

Mother’s Brief at 18. Mother continues that “[i]ncarceration alone is not a 

basis upon which an involuntary termination may be ordered pursuant to 

Section 2511.” Id. at 20 (citing In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 

2000) (en banc)). She argues that she “did what she could to remain involved 

with [C]hild and to prepare herself for doing the things necessary for 

reunification with [C]hild after release from prison.” Id. at 21. She insists 

that her “efforts to show concern for [C]hild and the nearness of the 

completion of her prison sentence justifies denial of the Agency’s request to 

terminate [her] parental rights.” Id. at 22. Mother does not contest that any 

particular element of any of 23 Pa.C.S. § 2511(a)(1) was not established by 

the Agency. See Mother’s Brief at 18-23.

Contrary to Mother’s assertion, id. at 20, C.S. does not, in fact, support 

her claim. Instead, C.S. states, in relevant part:

We agree that incarceration of a parent does not, in itself, provide 

sufficient grounds for termination of parental rights; however, 

an incarcerated parent’s responsibilities are not tolled 

during his incarceration. Parental rights may not be preserved 

by waiting for some more suitable financial circumstance or 

convenient time for the performance of parental duties and 

responsibilities. Further, parental duty requires that the parent 

not yield to every problem, but must act affirmatively, with good 

faith interest and effort, to maintain the parent-child relationship 

to the best of his or her ability, even in difficult circumstances.
J-S65034-19

- 9 -

761 A.2d at 1201 (emphasis added). In truth, this Court’s discussion of the 

appellant’s circumstances in C.S. is analogous to that of Mother’s 

circumstances in the current appeal:

We note that, even for the sake of his child, apparently Appellant 

cannot stay out of jail. Further, the trial court concluded, and we 

find that the record supports its conclusion, that despite his 

incarceration Appellant has not made every possible effort to stay 

in touch with his child and to participate, however vicariously, in 

his child’s life.

Id. Like the appellant in C.S., Mother has also failed to stay out of prison –

in three different counties -- even for Child’s sake. Compare id. with N.T., 

2/11/2019, at 3; N.T., 4/8/2019, at 3; N.T., 5/20/2019, at 4, 11, 16, 22. The 

trial court also concluded – and we find that the competent evidence of record 

supports its conclusion – that, despite Mother’s incarceration, she has not 

made every possible effort to stay in touch with Child and to participate, 

however vicariously, in Child’s life. Compare C.S., 761 A.2d at 1201, with

Trial Court Opinion, filed August 23, 2019, at 5, 9-10 (e.g., “[w]hile Mother 

sent letters to the Child during her incarceration, such action took place after 

the filing of the petition for termination of parental rights, therefore, the [trial 

c]ourt is prohibited from considering Mother’s subsequent efforts to have 

contact with her child after the filing of the petition” pursuant to 23 Pa.C.S. 

§ 2511(b)); see also B.J.Z., 207 A.3d at 921 (“we are limited to determining 

whether the decision of the trial court is supported by competent evidence”); 

contra Mother’s Brief at 18, 20. Furthermore, Mother’s incarceration is not a 

defense for her failure to attend visitation with Child, Mother’s Brief at 18, 
J-S65034-19

- 10 -

because she only appeared at two of her scheduled weekly visits between 

Child’s placement in December 2017 and the Agency’s filing of the termination 

petition in January 2019, even though there is no evidence of record that 

Mother was incarcerated during the seven months between Child’s placement 

and Mother’s initial incarceration in July 2018. Trial Court Opinion, filed 

August 23, 2019, at 3, 5, 9; N.T., 5/20/2019, at 11.

As for Mother’s arguments that she “prepare[d] herself for doing the 

things necessary for reunification with [C]hild after release from prison” and 

that “the nearness of the completion of her prison sentence justifies denial of 

the Agency’s request to terminate [her] parental rights[,]” Mother’s Brief at 

21-22, we observe: “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 his or her physical and emotional needs.” In re 

K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted); see also 

C.S., 761 A.2d at 1201 (“Parental rights may not be preserved by waiting for 

some more suitable financial circumstance or convenient time for the 

performance of parental duties and responsibilities.”). Mother’s parental 

rights cannot be preserved while waiting for her release from prison and from 

drug and alcohol treatment. See C.S., 761 A.2d at 1201; K.Z.S., 946 A.2d 

at 759.

For these reasons, the trial court did not err nor abuse its discretion in 

finding that the statutory grounds for terminating Mother’s parental rights 
J-S65034-19

- 11 -

pursuant to 23 Pa.C.S. § 2511(a) were established through clear and 

convincing evidence. See B.J.Z., 207 A.3d at 921.

23 Pa.C.S. § 2511(b)

Having determined that Mother’s conduct warrants termination of her 

parental rights, the court also must engage in the second part of the analysis 

pursuant to Section 2511(b). G.M.S., 193 A.3d at 401.

The court in terminating the right 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.

23 Pa.C.S. § 2511(b).

Section 2511(b) focuses on whether termination of parental rights 

would best serve the developmental, physical, and emotional 

needs and welfare of the child. As this Court has explained, 

Section 2511(b) does not explicitly require a bonding analysis and 

the term ‘bond’ is not defined in the Adoption Act. Case law, 

however, provides that analysis of the emotional bond, if any, 

between parent and child is a factor to be considered as part of 

our analysis. While a parent’s emotional bond with his or her child 

is a major aspect of the subsection 2511(b) best-interest analysis, 

it is nonetheless only one of many factors to be considered by the 

court when determining what is in the best interest of the child.

In addition to a bond examination, the trial court can equally 

emphasize the safety needs of the child, and should also consider 

the intangibles, such as the love, comfort, security, and stability 

the child might have with the foster parent. Additionally, this 

Court stated that the trial court should consider the importance of 

continuity of relationships and whether any existing parent-child 

bond can be severed without detrimental effects on the child.

G.M.S., 193 A.3d at 401 (citation and internal brackets omitted) (some 

formatting).
J-S65034-19

- 12 -

Mother maintains that the trial court --

erred and abused its discretion in terminating [her] rights . . . , as 

termination of [her] rights is not in the best interests of the child 

and will not promote the physical, mental, or emotional well-being 

of the child, as a bond exists between Mother and [C]hild, Mother 

being the primary – and only - caretaker for [C]hild, who was 

seven years old at the time of placement, from the birth of [C]hild 

until implementation of the Safety Plan [and] . . . as Mother will 

in the near future be released from prison and within a reasonable 

time be capable of performing parental duties and providing 

permanency for [C]hild.

Mother’s Brief at 24, 27. Mother continues that “the section 2511(b) analysis 

done by the [trial] court was overly simplistic and fails to consider the context 

and history of this case.” Id. at 27-28. Mother acknowledges that Child stated 

that “she does not want to live with Mother,” but Mother asserts that “there 

is a significant difference between the stated desire of an eight year old and 

the lack of a parent child bond.” Id. at 25. Mother adds that the trial court 

“err[ed] in placing such considerable weight on a decision supposedly made 

by an eight year old. The child at that age simply lacks the maturity to make 

such a decision.” Id.

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable 

David R. Workman, we conclude Mother’s second and third appellate issues –

both concerning Section 2511(b) -- merit no relief. The trial court opinion 

properly discusses and disposes of those questions:

The [trial c]ourt went to great lengths to ensure that the Child’s 

welfare would best be promoted through a termination of Mother’s 

parental rights. The [trial c]ourt reopened the record to hear from 
J-S65034-19

- 13 -

the Child and [M]aternal [G]randparents to ensure permanency 

for the Child with the grandparents. The Child’s testimony made 

it clear that she desired to stay with her grandparents and 

potentially be adopted by them. N.T., 6/24/19, p. 7. The Child 

indicated that she would not want to live with Mother again for 

fear that her Mother would go back to doing drugs. N.T.,

6/24/2019, p. 9. Maternal [Grandparents] testified that they are 

available as a permanent resource for the Child. Maternal 

[G]randmother testified that at this point in time, the Child hardly 

asks about her Mother, nor does she ask to visit or see her Mother. 

N.T., 6/24/2019, p.22.

In the case of In re C.L.G., the Superior Court reviewed a trial 

court’s opinion to involuntarily terminate the parental rights of a 

Mother who struggled with drugs and had endangered the welfare 

of her child. 956 A.2d 999, 1003 (Pa. Super. 2008). Even though 

the Mother in In re C.L.G., maintained sobriety in prison, id. at 

1004, and sent gifts to her child from prison, id. at 1005, the 

Court nevertheless terminated her parental rights. Part of the 

Superior Court’s opinion rings especially true in this case as well:

Furthermore, if we were to permit Mother further 

opportunity to cultivate an environment where she can care

for C.L.G., we would be subjecting a child, who has been 

waiting for more than two years for permanency, to a state 

of proverbial limbo in anticipation of a scenario that is 

speculative at best. While it appears that Mother has 

managed to remain drug-free in the confines of 

incarceration, whether she can maintain that status among 

the external pressures of the outside world remains to be 

proven.

Id. at 1008. [Child], likewise, has been waiting for nearly two 

years for permanency - a fact that the Court took into great 

consideration when deciding whether to terminate the Mother’s 

parental rights. Whether Mother will be successful in maintaining 

sobriety upon release from prison is to be determined - but the 

Child’s permanency should not be delayed based on a chance that 

Mother will be able to care for her again. It is apparent to the 

[trial c]ourt that it is in the best interest of the Child to terminate 

Mother’s parental rights so the Child may be free for adoption by 

her grandparents. Additionally, Maternal Grandparents made it 

clear during their testimony that they are not opposed to Mother

having contact with the Child in the future if Mother maintains 

sobriety. N.T., 6/24/2019, pp. 15, 21. While there may be an 
J-S65034-19

- 14 -

opportunity for a relationship between Mother and the Child in the 

future, at present, the Child does not have a bond with her Mother 

and the [trial c]ourt found that the Child’s welfare will best be 

served by terminating Mother’s parental rights.

Trial Court Opinion, filed August 23, 2019, at 14–15 (some formatting).

Our only addition to the trial court’s analysis is that, although Mother 

contends that “a bond exists between” herself and Child, she cites no evidence 

whatsoever in support of this statement. Mother’s Brief at 24. She merely 

argues that the trial court should not have found Child’s testimony about “the 

lack of a parent child bond” to be credible. Id. at 25. However, as noted 

above, “The trial court is free to believe all, part, or none of the evidence 

presented and is likewise free to make all credibility determinations[.]” B.J.Z., 

207 A.3d at 921. Credibility determinations are the prerogative of the trial 

court as fact-finder, and we cannot and will not substitute our judgment for 

that of the trial court, as Mother now requests we do. See id.

Accordingly, the decision of the trial court that “termination of Mother’s 

rights is in the best interest of the Child pursuant to Section 2511(b)” is 

supported by competent evidence. Trial Court Opinion, filed August 23, 2019, 

at 15-16; see also B.J.Z., 207 A.3d at 921.

* * *

Based on the foregoing, we conclude the trial court did not err nor abuse

its discretion by terminating Mother’s parental rights to Child. See B.J.Z., 

207 A.3d at 921.

Decree affirmed.
J-S65034-19

- 15 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2019