J. S29031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.F., A MINOR :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.F., MOTHER :

: No. 329 EDA 2019

Appeal from the Decree Entered January 2, 2019,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2018-A0128

BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 23, 2019

T.F. (“Mother”) appeals from the January 2, 2019 decree entered in the 

Court of Common Pleas of Montgomery County, Orphans’ Court Division, 

involuntarily terminating her parental rights to her dependent child, J.F., male 

child, born in October of 2010 (“Child”), pursuant to the Adoption Act, 

23 Pa.C.S.A. §§ 2511(a)(1), (2), (8), and (b).

1

 After careful review, we 

affirm.

 

1 We note that the record reflects that by final decree entered on January 2, 

2019, the trial court also terminated the parental rights of birth father 

(“Father”) to Child. (Final decree terminating parental rights of birth father, 

1/2/19.) In correspondence filed with this court on May 20, 2019, however, 

Father’s counsel incorrectly states that Father “voluntarily relinquished his 

parental rights” and then notifies this court that Father has “no position 

regarding the appeal.” (Correspondence to Prothonotary, Superior Court of 

Pennsylvania, from Richard J. Tomkins, Esquire, 5/20/19.)

The record further reflects that the trial court appointed a guardian 

ad litem for Child who also served as Child’s legal counsel. In this case, Child 

was eight years old at the time of the termination hearing. The record reflects

that Child has special needs resulting from autism and attention deficit 
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The trial court set forth the following findings of fact:

[Child] entered into [Montgomery County Office of 

Children and Youth (“OCY”)] custody due to an 

emergency order on August the 5th, 2016[

2] -- that’s 

the date of the emergency order -- after [M]other’s 

arrest for fighting, drug use and drug sales. Prior to 

this placement OCY had received 13 case referrals 

regarding [M]other.[

3]

. . . . The birth father [(“Father”)] is not a resource 

for [Child]. One year after [Child’s] placement a 

paternity test identified [Father] as the birth father.

In the spring of 2017 OCY located [Father], but he has 

not responded to OCY contact attempts, nor has he 

had contact with [Mother] during this placement 

period.

I also note that despite receiving notice[, Father] 

failed to show up for the [termination of parental 

rights] hearing.

 

hypersensitivity disorder. Child’s legal counsel and guardian ad litem stated 

at the termination hearing that based on her interactions with Child, there is 

no conflict between his best and legal interests. (Notes of testimony, 

11/28/18 at 153-154.) Therefore, because no conflict existed between Child’s 

legal and best interests, Child’s guardian ad litem was permitted to represent 

Child’s legal interests. See In re T.S., 192 A.3d 1080, 2018 Pa. LEXIS 4374, 

2018 WL 4001825, at *10 (Pa. 2018) (stating that “during contested 

termination-of-parental-rights proceedings, where there is no conflict between 

a child’s legal and best interests, an attorney-guardian ad litem representing 

the child’s best interests can also represent the child’s legal interests.”). See 

also In re D.L.B., 166 A.3d 322, 329 (Pa.Super. 2017) (stating that 

“separate representation would be required only if the child’s best interests 

and legal interests were somehow in conflict.”).

2 The record reflects that Child was adjudicated dependent on August 16, 

2016. (Order of adjudication – dependent child, 8/16/16.)

3 Mother’s caseworker testified that the 13th General Protective Services 

referral came in on June 15, 2016 and “concern[ed] drug use in the home and 

possible manufacturing of drugs in the home where small children live.” 

(Notes of testimony, 11/26/18 at 59-60.)
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[Child] is a child with developmental special needs. 

When born he tested positive for marijuana. Since 

entering OCY custody[, Child] has been diagnosed 

with ADHD and autism. He has seen a mobile 

therapist, a behavioral specialist and a trauma 

therapist in addition to receiving Family Based 

Services.

As a result of her arrest on August 6, 2016, [Mother]

pled guilty to the felony charge of possession with 

intent to distribute and received a sentence of four 

years [of] probation on December 11, 2017.

This sentence was issued along with or concurrent to 

several probation violations on the same day, in 

addition to a guilty plea to a misdemeanor of the third 

degree, disorderly conduct charge, for the August 5, 

2016, arrest. August 5 or August 6, on or about 

August 5.

Since the guilty plea date[, Mother] has had 

subsequent contacts with our criminal justice system. 

They include a DUI arrest on March 7, 2017, where 

she received a time-served sentence. And on 

October 1, 2018, [Mother] was arrested for an 

additional possession with intent to distribute charge. 

She is still in jail at this point awaiting disposition of 

that charge.

[Mother’s] initial involvement with OCY after her 

arrest in August of 2016 was promising. She tested 

positive for marijuana in August and September of 

2016. By mid-October the tests were negative and 

visits with [Child] increased and even became 

unsupervised.

[Mother’s] urine test on January 19, 2017, was 

positive for PCP and the visits then reverted to 

two-hour supervised visits.

Since then[, Mother] failed to meet Family Service 

Plan goals. OCY offered Time Limited Family 
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Reunification in September of 2016. [M]other 

voluntarily terminated those services in April of 2017.

[Mother] consistently tested positive for drugs and 

failed to take advantage of treatment options. She 

successfully completed one drug program, Aldie, yet 

continued to test positive on future urine tests.

[Mother] failed to obtained [sic] psychological and 

psychiatric evaluations so that if mental health issues

existed they could not be addressed as required under 

the Family Service Plan.

[Mother] consistently attended visits made available 

by OCY. During those visits she consistently had 

inappropriate conversations[

4] with [Child] despite 

counseling.

The parental bond is tenuous and predicated upon 

meeting the needs of [Mother]. [Child] has remained 

with the same foster family since his placement with 

OCY. The home is a supportive environment where 

[Child] looks to the foster parents for guidance and to 

meet his needs in a loving relationship. He is bonded 

with his foster parents.

I will now address factors as they relate to my 

decision.

I am unable to consider the issue of mental health as 

a factor.

The Family Service Plans, namely Exhibit[s] 3 and 4, 

require [Mother] to get a psychiatric and a 

psychological evaluation. Exhibit No. 4 lists no 

progress for that effort, whereas Exhibits 3 and 5 list

progress as minimal in meeting that goal. No 

evidence was presented at trial regarding [Mother’s] 

 

4 The caseworker provided examples of the inappropriate conversations 

Mother had with Child, which included Mother’s telling Child that she was 

fighting with her lawyer, that her lawyer was not doing his job, that OCY was 

not doing its job, and that Child’s foster parents would “turn [Child] gay.” 

(Notes of testimony, 11/26/18 at 96-97.)
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mental health concerns other than the fact that she 

failed to receive the required assessment.

Notes of testimony, 1/2/19 at 6-10.

I acknowledge [Mother’s] current participation in the 

parenting classes while incarcerated at Montgomery 

County Correctional Facility despite earlier

opportunities for improvement in that area.

Furthermore, [Mother’s] continued behavior that 

makes her subject to incarceration, knowing she is on 

probation, is troublesome and it belies the sincerity of 

her attempts to improve.

[C]hild’s safety is the paramount concern of this 

Court. Substitute care as provided in foster care is 

only a temporary setting. It is not a place for children 

to grow up.

The bulk of the evidence received in this matter 

focused on parental drug use, so I will next address 

that factor. In addition to [Mother’s] admitted use, 

the evidence of drug testing with the petitioner 

reveals predominantly positive tests for PCP with 

occasional marijuana results. [Mother’s] continued 

drug use and her resulting incarcerations in the plural 

make it impossible for her to provide the parental 

care, control, housing, nutrition, comfort and support 

necessary for the child’s physical and mental 

well-being.

Id. at 12-13.

In this case the testimony clearly established that 

there is affection and that [Mother] cares for and 

interacts with [C]hild. Throughout my deliberations I 

consistently viewed the photos. This showed me 

pictures of concern and care for [Child]. [Mother] has 

maintained throughout her visits consistent contact, 

yet inappropriate contact, and the Court received 

credible testimony that there is a tenuous parental 

bond between [C]hild and [Mother] in this matter.
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The pictures provided by [Mother] unfortunately only 

tell one side of the story. In this case I find that a 

limited parental bond exists between [Mother] and 

[Child]. I find that there is no parental bond between 

[Child] and [Father]. However, I find that a strong 

bond exists between [Child] and the foster parents. 

Therefore, I find from the evidence and the testimony 

that termination of the birth parents’ rights best 

serves the needs and the welfare of [Child], and that 

termination of the parental rights will not irreparably 

harm [Child].

Id. at 18-19.

The record reflects that Mother filed a timely notice of appeal, together 

with a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i). At the termination hearing, the trial court stated that

it explained its termination decision on the record “to satisfy the Pennsylvania 

Rule of Appellate Procedure 1925(a)[(2)(ii)].” (Notes of testimony, 1/2/19 

at 2.)

Mother raises the following issues for our review:

1. Did the Honorable Trial Court commit error in 

terminating the parental rights of Mother, 

pursuant to Pa. C.S.[A.] §2511(a)(1), when the 

testimony at trial demonstrated that Mother 

has made determined and courageous efforts 

to address her addiction issues and at no point 

has evidenced a settled purpose of 

relinquishing her parents [sic] claim nor has 

she failed or refused to perform parental 

duties?

2. Did the Honorable Trial Court commit error in 

terminating the parental rights of Mother, 

pursuant to Pa. C.S.[A.] §2511(a)(2), when the 

testimony at trial demonstrated that Mother 

has made determined and courageous efforts 
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to address her addiction issues and has 

successfully remedied any alleged causes of 

the [C]hild’s separation from Mother?

3. Did the Honorable Trial Court commit error in 

terminating the parental rights of Mother, 

pursuant to Pa.C.S.[A.] §2511(a)(8), when the 

testimony at trial demonstrated that (i) the 

conditions which led to the removal of [C]hild 

have been remedied by Mother’s determined 

efforts to address her addiction issues, and 

(ii) termination of Mother’s parental rights 

would not serve the needs and welfare of 

[C]hild given the strong and living [sic] bond 

between Mother and [C]hild?

4. Did the Honorable Trial Court commit error in 

terminating Mother’s parental rights where the 

facts demonstrated that a strong and loving 

bond exists between Mother and [C]hild and 

the petitioner failed to establish by clear and 

convincing evidence that termination was in the 

best interest of [C]hild as contemplated by 

23 Pa.C.S.[A.] §2511(b)?

Mother’s brief at 2.

In matters involving involuntary termination of parental rights, our 

standard of review is as follows:

The standard of review in termination of parental 

rights cases requires appellate courts “to accept the 

findings of fact and credibility determinations of the 

trial court if they are supported by the record.” In re 

Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may 

be reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will.” Id. The trial 

court’s decision, however, should not be reversed 

merely because the record would support a different 
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result. Id. at 827. We have previously emphasized 

our deference to trial courts that often have first-hand 

observations of the parties spanning multiple 

hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa. 

2010)].

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

855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f competent 

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

could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d 

387, 394 (Pa.Super. 2003) (citation omitted).

The termination of parental rights is guided by Section 2511 of the 

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis 

of the grounds for termination followed by the needs and welfare of the child.

Our case law has made clear that under Section 2511, 

the court must engage in a bifurcated process prior to 

terminating parental rights. 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 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. 
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In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have 

defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting 

Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).

Here, the trial court terminated Mother’s parental rights pursuant to 

Sections 2511(a)(1), (2), and (8), as well as (b). We have long held that, in 

order to affirm a termination of parental rights, we need only agree with the 

trial court as to any one subsection of Section 2511(a), as well as 

Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc). Here, we analyze the trial court’s termination decrees pursuant 

to Sections 2511(a)(2) and (b), which provide as follows:

(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:

. . . .

(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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(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)(2), (b).

We first address whether the trial court abused its discretion by 

terminating Mother’s parental rights pursuant to Section 2511(a)(2).

In order to terminate parental rights pursuant to 

23 Pa.C.S.A. § 2511(a)(2), the following three 

elements must be met: (1) repeated and continued 

incapacity, abuse, neglect or refusal; (2) such 

incapacity, abuse, neglect or refusal has caused the 

child to be without essential parental care, control or 

subsistence necessary for his physical or mental 

well-being; and (3) the causes of the incapacity, 

abuse, neglect or refusal cannot or will not be 

remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation 

omitted). “The grounds for termination 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015), 

quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are 
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required to make diligent efforts towards the reasonably prompt assumption 

of full parental responsibilities. . . . [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.” In re A.L.D., 797 

A.2d at 340 (internal quotation marks and citations omitted).

With respect to incarcerated parents, in In re Adoption of S.P., our 

supreme court held as follows:

[W]e 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.A. 

§ 2511(a)(2). See e.g. Adoption of J.J., 511 Pa. 

590, 515 A.2d 883, 891 (Pa. 1986) (“[A] parent who 

is incapable of performing parental duties is just as 

parentally unfit as one who refuses to perform the 

duties.”); [In re:] E.A.P., [944 A.2d 79, 85 

(Pa.Super. 2008)] (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). If a court finds grounds for 

termination under subsection (a)(2), a court must 

determine whether termination is in the best interests 

of the child, considering the developmental, physical, 

and emotional needs and welfare of the child pursuant 

to § 2511(b). In this regard, trial courts must 

carefully review the individual circumstances for every 

child to determine, inter alia, how a parent’s 
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incarceration will factor into an assessment of the 

child’s best interest.

In re Adoption of S.P., 47 A.3d at 830-831.

Here, the trial court terminated Mother’s parental rights under 

Section 2511(a)(2) because it found:

clear and convincing evidence that [Mother’s] drug 

use creates a parental incapacity and has resulted in 

the neglect of parental duties and an inability to 

provide a safe and secure home for [Child]. Moreover, 

this drug use is a condition that led to the removal of 

[C]hild from [Mother’s] care and [the trial court finds] 

that OCY has demonstrated that this condition cannot 

and will not be remedied by [Mother] within a 

reasonable period of time.

While [Mother] has been clean and sober for very brief 

periods of time, including her incarceration, she has 

repeatedly relapsed, leaving [Child] without adequate 

parental care and supervision.

Given the length of time that [Child] has been placed 

in foster care, OCY has demonstrated that the 

conditions that led to his removal from the home 

cannot or will not be remedied within a reasonable 

time.

Notes of testimony, 1/2/19 at 13.

We conclude that the record supports the trial court’s factual findings 

and that the trial court did not abuse its discretion in terminating Mother’s 

parental rights under Section 2511(a)(2). The record demonstrates that the 

conditions that existed upon removal establish repeated and continued 

incapacity, abuse, neglect, or refusal of Mother that caused Child to be without 

essential parental care, control, or subsistence necessary for his physical or 
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mental well-being. The record also supports the trial court’s conclusion that 

Mother continued to lack capacity to parent Child.

We now turn to whether termination was proper under Section 2511(b). 

As to that section, our supreme court has 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.[A.] § 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)], this 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. However, as discussed below, 

evaluation of a child’s bonds is not always an easy 

task.

In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any 

bond between the parent and child, it is reasonable to infer that no bond 

exists. The extent of any bond analysis, therefore, necessarily depends on 

the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 

762-763 (Pa.Super. 2008) (citation omitted).

When evaluating a parental bond, “the court is not required to use 

expert testimony. Social workers and caseworkers can offer evaluations as 

well. Additionally, Section 2511(b) does not require a formal bonding 

evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted). 
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Moreover,

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.

[I]n 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. . . .

In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d 

95, 103 (Pa.Super. 2011) (quotation marks and citations omitted). 

Our supreme court has stated that, “[c]ommon sense dictates that 

courts considering termination must also consider whether the children are in 

a pre-adoptive home and whether they have a bond with their foster parents.” 

T.S.M., 71 A.3d at 268. The court directed that, in weighing the bond 

considerations pursuant to Section 2511(b), “courts must keep the ticking 

clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed, 

“[c]hildren are young for a scant number of years, and we have an obligation 

to see to their healthy development quickly. When courts fail . . . the result, 

all too often, is catastrophically maladjusted children.” Id.

In her appellate brief, Mother rehashes the trial testimony in an effort 

to convince this court to reach a different result. (See Mother’s brief at 

21-23.) Where, however, as here, the record supports the trial court’s 

findings of fact and credibility determinations, we are bound by those findings 
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and determinations. See T.S.M., 71 A.3d at 267 (citation omitted). Mother 

also contends that termination “will deny [] Child the opportunity to pursue a 

relationship with a mother who dearly loves him and desperately wants to be 

a productive citizen and positive part of his life.” (Mother’s brief at 22-23.) 

Mother’s argument, however, fails to address the primary consideration under 

Section 2511(b), which is Child’s developmental, physical, and emotional 

needs and welfare.5 

Here, the record supports the trial court’s determination that 

termination of Mother’s parental rights is in Child’s best interest. The 

caseworker testified that termination is in Child’s best interest because Child 

needs permanency and needs to know he is safe and in a stable home. (Notes 

of testimony, 11/26/18 at 86, 117.) She also testified that termination will 

not detrimentally impact Child, so long as he remains with his foster parents 

and continues to receive the services that he needs. (Id. at 86.) The 

caseworker also stated that Child’s foster parents have made every effort to 

put services in place for Child and that they help Child with his issues. (Id.

at 85.) Child looks to his foster parents for guidance and support. (Id.)

Child’s foster mother testified that Child is loved, safe, and happy. 

(Notes of testimony, 12/5/18 at 4.) She stated that since Child has been in 

 

5 We note that Mother further claims that the trial court “unduly relied on 

caseworkers from [OCY], as opposed to expert testimony.” (Mother’s brief 

at 22.) It is well settled that when evaluating a parental bond, expert 

testimony is not required and caseworkers may offer evaluations. See 

In re Z.P., 94 A.2d at 112.
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her care and receiving needed services, “he has come a really long way” in 

managing his emotions and becoming self and socially aware. (Id. at 6.) 

Child is also doing “great” in school. (Id.) Foster mother described her 

relationship with Child as “sort of typical of a parent-son” relationship with 

“[l]ots of love and laughter and clear boundaries, predictability.” (Id. at 7.) 

Foster mother also stated that she and her wife are willing to be adoptive 

resources. (Id.)

Our review of the record supports the trial court’s determination that 

termination was proper under Section 2511(b). 

In conclusion, we find no abuse of discretion and conclude that the trial 

court appropriately terminated Mother’s parental rights under 

Sections 2511(a)(2) and (b).

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/19