J-S08015-20

2020 PA Super 59

IN RE: C.B., A MINOR

APPEAL OF: BLAIR COUNTY 

CHILDREN, YOUTH AND FAMILIES

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1487 WDA 2019

Appeal from the Order Entered September 5, 2019

In the Court of Common Pleas of Blair County Orphans' Court at No(s): 

2018 AD 40

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

OPINION BY OLSON, J.: FILED MARCH 13, 2020

Appellant, Blair County Children, Youth and Families, appeals from the 

order entered September 5, 2019, denying Appellant’s petition for involuntary 

termination of the parental rights of B.M.M. (“Mother”) to her dependent child, 

C.B., a female child born in May 2017, pursuant to the Adoption Act, 23 

Pa.C.S.A. § 2511.1 We affirm without prejudice to Appellant seeking 

termination of Mother’s parental rights at a later date.

The trial court set forth the following:

The subject child in this case, [C.B.], was born [in] May []2017. 

[Appellant] took custody of the child on July 10, 2017. The child 

was adjudicated dependent on September 14, 2017. The child 

was placed in foster care after release from the hospital and 

eventually was placed with T.M., the child's paternal grandmother.

[The incident that precipitated Appellant’s involvement with the 

____________________________________________

1 On May 17, 2019, the trial court terminated the parental rights of C.B.’s

biological father, T.M.B. (“Father”), after Father voluntarily relinquished his 

parental claim to C.B. Trial Court Final Decree, 5/17/19.
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family concerned a specific incident of abuse for which Father] was 

eventually charged with serious criminal offenses. [During the 

incident, Father was alleged to have violently shaken C.B.

2]

[]Mother[] was also charged with recklessly endangering another 

person and endangering the welfare of a child[3]for her failure to 

seek medical treatment for [C.B. following the incident involving 

Father]. Dependency proceedings preceded through the Court of 

Common Pleas [of Blair County].

On November 14, 2018, [Appellant] filed a [p]etition for 

[t]ermination of [p]arental [r]ights [(“petition”)]. Tyler Rowles, 

Esquire was appointed counsel for the child and guardian ad litem

counsel. The parents were provided an opportunity to object to 

Attorney Rowles serving as guardian ad litem counsel and counsel 

for the child. No party objected to the appointment. During the 

course of the proceedings, Attorney Rowles indicated that due to 

the developmental problems of the child and the child's age, he 

was confident he could serve in both capacities [without a conflict 

of interest.

4]

In [its petition, Appellant] alleged that [termination of] the 

parental rights of [Mother] are justified pursuant to 23 Pa.C.S.A. 

[§]§ 2511(a)(2),(a)(5),(a)(8), and (b). In support of [its]

position, [Appellant] averred, amongst other things, the details of 

the facts that gave rise to the criminal charges against the parents 

and the fact that those charges remained pending. [Appellant]

also allege[s] that []Mother does not have a full understanding of 

[C.B.’s] injuries, that she has not taken responsibility for the 

injuries, and that she has not established that she can care for the 

child. [Appellant] also avers that []Mother does not have 

independent and stable housing and that she does not have stable 

____________________________________________

2 The record demonstrates that Father admitted to violently shaking C.B.; this 

action ultimately led Appellant to seek the removal and placement of C.B. 

Appellant’s Application for Emergency Protective Custody, 7/11/17. Father 

pled guilty to aggravated assault, endangering the welfare of a child, simple 

assault, recklessly endangering another person, and harassment. 18 

Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), 2705, and 2709(a)(1), 

respectively; see also N.T., 2/19/19, at Petitioner’s Exhibit 4.

3 18 Pa.C.S.A. §§ 2705 and 4304(a)(1), respectively.

4 N.T., 12/6/18, at 1-4.
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income. [Appellant] also assert[s] that the child is progressing 

well in the care of [T.M.].

The [trial c]ourt conducted several evidentiary hearings on 

[Appellant’s p]etition. These hearings occurred on December 6, 

2018, February 19, 2019, March 28, 2019, May 7, 2019, and 

August 14, 2019.

Trial Court Opinion, 11/8/19, at 1-2.

Several witnesses testified at these proceedings[; s]pecifically, 

T.M., []Dr. Terry O'Hara, [Appellant’s] case worker Kierstin 

Whysong, [Appellant’s] case aide Stephanie Barton and [Mother.]

T.M. provided several updates on her care of [C.B.,] as well as the 

child's progress. She testified at numerous hearings. Her 

testimony established that the child remains at a zero to 

three[-]month developmental stage. However, the child has 

shown some progress in certain areas. The testimony established 

that T.M. has a bond with the child and the child recognizes and 

responds to her. In light of the child's age and developmental 

stage, it is difficult to acquire evidence regarding the child's bonds 

with certain individuals. It seems that T.M.'s testimony 

establishes that the child reacts more to individuals that she has 

a history with and with individuals [whose voices she is able to 

recognize]. T.M. testified that she communicates with [Mother]

and provides her updates on the child's health and doctors 

appointments. She indicated that []Mother responds to her 

updates and is receptive to communication with her. T.M. 

explained that she has learned how to care for the child by 

learning from the foster parents and due to her own research and 

experience with the child and the child's physicians.

[Appellant] presented the testimony of Kierstin Whysong, a case 

worker[,] and the testimony of Stephanie Barton, a case aide.

This testimony was utilized to explain [Appellant’s] position on the 

[petition] and to provide background on the child, T.M.'s 

involvement with the child, and [Mother’s] progress. This 

testimony established several positives regarding []Mother. The 

testimony established that []Mother has been compliant with 

treatment recommended by [Appellant]. []Mother completed the 

Circles of Security Program through Kids First and has been 

cooperative with the United Way Parent Education Program. 

[]Mother has also engaged in drug and alcohol treatment. 
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[]Mother is also compliant with her visits regarding [C.B.] except 

when those visits had to be rescheduled for []Mother's work or 

unavailability. [Appellant’s witnesses] also expressed various

concerns about reunification. [Appellant’s] witnesses indicated 

that []Mother's expectations of [C.B.] moving forward were not 

realistic. They also stated that []Mother did not have independent 

housing or stable employment. They raised concerns about 

[]Mother's attentiveness to the child during visits and her ability 

to care for the child in the future. In addition, a large portion of 

[Appellant’s] expression of concern surrounded the underlying 

abuse of the child and the fact that []Mother's criminal charges 

remain pending. During a portion of Ms. Whysong's testimony, 

she acknowledged that if the criminal charges would be resolved 

in []Mother's favor, [Appellant] may move forward with 

reunification. [Appellant’s] witnesses present some but not 

extensive testimony about the bond between the child and 

[]Mother. Ms. Whysong indicated that she [did not attend] visits 

between []Mother and the child but understood from the aides 

that the child recognizes []Mother. Ms. Whysong believes that the 

child was bonded with []Mother during the visits.

Dr. Terry O'Hara, an expert in the field of forensic psychology[,]

testified at the evidentiary hearing. Two reports of Dr. Terry 

O'Hara were placed into evidence[; s]pecifically, a report dated 

November 8, 2017[,] and a report dated February 22, 2018. Dr. 

O'Hara's testimony at the evidentiary hearing preceded the 

second evaluation on February 22, 2018. Dr. O'Hara explained 

during his testimony that he was unable to complete an 

interactional evaluation due to the criminal charges against 

[]Mother. Dr. O'Hara's testimony at the initial hearing was rather 

speculative in light of his inability to do the interactional evaluation 

at that time. However, Dr. O'Hara indicated that []Mother had 

been compliant with treatment and that she had denied any issues 

with domestic violence or psychiatric hospitalizations. The doctor 

also concluded that []Mother had an average IQ. The doctor felt

that further evaluation of []Mother would be needed after 

disposition of her criminal charges so that he could assess her

involvement in the criminal activity and assess what impact that 

would have on her parenting ability moving forward. [Appellant]

asked Dr. O'Hara if he believed that independent housing would 

be a concern for []Mother's ability to care for the child and the 

doctor concluded that that would depend on the stability of the 

household where she would reside.
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Id. at 4-6.

On September 5, 2018, the trial court denied Appellant’s petition finding 

that Appellant had “failed by clear and convincing evidence to prove any of 

the applicable sections pursuant to 23 Pa.C.S.A. § 2511.” Trial Court Order, 

9/5/19. This appeal followed.5

Appellant presents the following issues for our review:

1. Whether the trial court erred and/or abused its 

discretion in concluding that [Appellant] did not meet 

its burden of proof by clear and convincing evidence 

to terminate the parental rights of [Mother] pursuant 

to 23 Pa.C.S.A. § 2511(a)(5)?

2. Whether the trial court erred and/or abused its 

discretion in concluding that [Appellant] did not meet 

its burden of proof by clear and convincing evidence 

to terminate the parental rights of [Mother] pursuant 

to 23 Pa.C.S.A. § 2511(a)(8)?

3. Whether the trial court erred and/or abused its 

discretion in concluding that [Appellant] did not meet 

its burden of proof of clear and convincing evidence to 

terminate the parental rights of [Mother] pursuant to 

23 Pa.C.S.A. § 2511(b)?

Appellant’s Brief at 4.

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 

____________________________________________

5 On October 1, 2019, Appellant filed a concise statement of errors complained 

of on appeal with its notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The 

trial court subsequently filed its Rule 1925(a) opinion on November 8, 2019.
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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 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). “[T]he 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 Q.R.D., 

214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted). “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) (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 [trial] 

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 [trial] 

court determines that the parent’s conduct warrants termination 

of his or her parental rights does the [trial] 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 
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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.

In re B.J.Z., 207 A.3d at 921 (citation omitted, emphasis added). 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 

Z.P., 994 A.2d 1108, 1116 (Pa. Super. 2010) (citation omitted).

Here, while the trial court found Appellant failed to provide clear and 

convincing evidence to prove any of the grounds for termination of parental 

rights under Section 2511(a), Appellant appeals only the trial court’s 

determination under Sections 2511(a)(5) and (a)(8). Appellant’s Rule 

1925(b) Statement, 10/1/19; see also Appellant’s Brief at 4. Therefore, 

Appellant waives any claims under the remaining subsections of Section

2511(a). In re L.V., 209 A.3d 399, 413 (Pa. Super. 2019) (stating, failure to 

preserve issue in Rule 1925(b) statement or statement of questions presented 

in brief results in waiver of issue).

Sections 2511(a)(5), (a)(8), and (b), provide 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:

. . .

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

by the court or under a voluntary agreement with an agency 
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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 

reasonably 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 serve 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.

(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)(5), (a)(8), and (b). 

This Court, in discussing the grounds for termination of parental rights 

under Sections 2511(a)(5) and (a)(8), stated,

Termination of parental rights under Section 2511(a)(5) requires 

that: (1) the child has been removed from parental care for at 

least six months; (2) the conditions which led to removal and 

placement of the child continue to exist; and (3) termination of 

parental rights would best serve the needs and welfare of the 

child. 23 Pa.C.S.A. § 2511(a)(5). “To terminate parental rights 
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pursuant to 23 Pa.C.S.A. § 2511(a)(8), the following factors must 

be demonstrated: (1) the child has been removed from parental 

care for 12 months or more from the date of removal; (2) the 

conditions which led to the removal or placement of the child 

continue to exist; and (3) termination of parental rights would 

best serve the needs and welfare of the child.” In re Adoption 

of M.E.P., 825 A.2d 1266, 1275–[12]76 (Pa. Super. 2003); 23 

Pa.C.S.A. § 2511(a)(8). “Section 2511(a)(8) sets a 12-month 

time frame for a parent to remedy the conditions that led to the 

children's removal by the court.” In re A.R., 837 A.2d 560, 564 

(Pa. Super. 2003). Once the 12-month period has been 

established, the court must next determine whether the conditions 

that led to the child's removal continue to exist, despite the 

reasonable good faith efforts of [Children & Youth Services 

(“CYS”)] supplied over a realistic time period. Id. Termination 

under Section 2511(a)(8) does not require the court to evaluate 

a parent's current willingness or ability to remedy the conditions 

that initially caused placement or the availability or efficacy of 

[CYS] services. In re Adoption of T.B.B., 835 A.2d 387, 396 

(Pa. Super. 2003); In re Adoption of M.E.P., supra.

In re Z.P., 994 A.2d at 1118 (original brackets omitted).

Under Section 2511(a)(8), in determining whether the conditions that 

led to removal and placement continue to exist, “[t]he relevant inquiry in this 

regard is whether the conditions that led to removal have been remedied and 

thus whether reunification of parent and child is imminent at the time of the 

hearing.” In re I.E.P., 87 A.3d 340, 345 (Pa. Super. 2014) (citation and 

original quotation marks omitted). 

The application of Section [2511](a)(8) may seem harsh when the 

parent has begun to make progress toward resolving the problems 

that had led to removal of her children. By allowing for 

termination when the conditions that led to removal continue to 

exist after a year, the statute implicitly recognizes that a child's 

life cannot be held in abeyance while the parent is unable to 

perform the actions necessary to assume parenting 

responsibilities. This Court cannot and will not subordinate 
J-S08015-20

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indefinitely a child's need for permanence and stability to a 

parent's claims of progress and hope for the future.

Id. at 345-346 (citation and original brackets omitted).

With respect to the “needs and welfare” analysis pertinent to 

[Sections] 2511(a)(8) and (b), we have observed:

Initially, the focus in terminating parental rights is on the 

parent, under Section 2511(a), whereas the focus in Section 

2511(b) is on the child. However, Section 2511(a)(8) 

explicitly requires an evaluation of the “needs and welfare 

of the child” prior to proceeding to Section 2511(b), which 

focuses on the “developmental, physical and emotional 

needs and welfare of the child.” Thus, the analysis under 

Section 2511(a)(8) accounts for the needs of the child in 

addition to the behavior of the parent. Moreover, only if a 

court determines that the parent's conduct warrants 

termination of his or her parental rights, pursuant to Section 

2511(a), does a 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.” Accordingly, while both Section 

2511(a)(8) and Section 2511(b) direct us to evaluate the 

“needs and welfare of the child,” we are required to resolve 

the analysis relative to Section 2511(a)(8), prior to 

addressing the “needs and welfare” of the child, as 

proscribed by Section 2511(b); as such, they are distinct in 

that we must address Section 2511(a) before reaching 

Section 2511(b).

Id. at 346 (citation and original brackets omitted, quotation marks in original, 

emphasis added).

Statutory and case law contemplates that either reunification or 

adoption for a child occur within 18 months of removal and placement. In re 

I.J., 972 A.2d 5, 12 (Pa. Super. 2009) (citation omitted). A parent’s 

affirmative duty to meet the needs of a child “encompasses more than a 

financial obligation; it requires continuing interest in the child and a genuine 
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effort to maintain communication and association with the child. Because a 

child needs more than a benefactor, parental duty requires that a parent exert 

himself [or herself] to take and maintain a place of importance in the child's 

life.” In re Z.P., 994 A.2d at 1119 (citation omitted).

Here, the record demonstrates that the specific incidents necessitating 

the removal and placement of C.B. were allegations of child abuse stemming 

from Father’s admitted shaking of C.B. and both parents’ failure to seek 

immediate medical attention for C.B. Appellant’s Petition, 11/14/18, at ¶6(c); 

see also Appellant’s Application for Emergency Protective Custody, 7/11/17, 

at 3 (stating, “[d]ue to the doctor’s suspicion of child abuse, [C.B.] could not 

ret[ur]n to her parents”), Trial Court Opinion, 11/8/19, at 2 (stating, “[i]n 

support of [its petition, Appellant] averred, amongst other things, the details 

of the facts that gave rise to the criminal charges against parents and the fact 

that those charges remained pending [at the time the petition was filed]”). 

The allegations of child abuse ultimately led to criminal charges being filed 

against Mother, which remained pending at the time the petition was filed but 

were resolved prior to closure of the evidentiary record.6 Trial Court Opinion, 

11/8/19, at 13.

Appellant contends that “when [it] got to the point of [C.B.] being in 

placement for 15 months, [Appellant] was compelled to file [a petition].” 

____________________________________________

6 The record demonstrates that Mother, as part of her plea agreement, was 

sentenced to an aggregate 2 years’ probation and required, among other 

things, to comply with all directives of Appellant. N.T., 8/14/19, Petitioner’s 

Exhibit 3.
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Appellant’s Brief at 19. Appellant argues that at the time the petition was 

filed, Mother had not resolved her criminal case. Id. at 19-20. Appellant also 

argues Mother still had contact with Father, did not have independent housing, 

only obtained employment after the petition was filed, and had not 

participated in a non-offenders treatment program. Id. at 20-21. Appellant 

contends Mother failed to remedy the conditions that necessitated removal 

and placement of C.B. prior to the filing of the petition, and at the initial 

hearing on the petition, C.B. had been in placement for 17 months. Id. at

19-21. Appellant avers it did not start the reunification process prior to filing 

the petition because Mother’s bail conditions required fully supervised 

visitation and because Appellant’s expert witness, Dr. O’Hara, was unable to 

recommend reunification based on Mother’s refusal to discuss anything 

relating to the incident that caused C.B.’s injuries. Id. at 19. Appellant 

contends it provided clear and convincing evidence that satisfied the 

requirements for termination of Mother’s parental rights under Sections

2511(a)(5) and (a)(8) and that Mother “presented no evidence that she can 

care for a child with such significant needs.” Id. at 16, 21. C.B., through her

guardian ad litem, joined Appellant’s argument in support of termination of 

Mother’s parental rights. C.B.’s Brief at 4.

Mother contends Appellant did not prove the requirements for 

termination of her parental rights by clear and convincing evidence but, 

rather, supported its petition for termination with evidence based on 

speculation and conjecture in an attempt to shift the burden of proof to 
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Mother. Mother’s Brief at 1. Mother argues that she complied with Appellant’s 

training and treatment requirements, that her housing situation remains a 

concern only because Appellant lacks information and has not visited Mother’s 

home, that once Mother obtained employment Appellant raised concerns 

about how she will provide childcare and continue to work, and that she 

resolved her criminal case. Id. at 5-7.

A review of the record demonstrates that 16 months elapsed from the 

time C.B. was removed from Mother’s parental care in July 2017 to November 

2018 when Appellant filed the petition.7 Therefore, the first requirements of 

both Sections 2511(a)(5) and (a)(8) were satisfied.

As to the second requirements under Sections 2511(a)(5) and (a)(8),

Appellant was required to demonstrate by clear and convincing evidence that 

the conditions which led to the removal and placement of the child 

continued to exist at the time the petition was filed. See In re Z.P., 994 A.2d 

at 1118. The analysis of whether the second requirements under Sections 

2511(a)(5) and (a)(8) have been satisfied differs only in that Section 

2511(a)(5) permits the trial court to consider the parent’s current willingness 

and ability, within a reasonable time, to resolve the condition, that led to the 

removal and placement of the child, while Section 2511(a)(8) does not permit 

such a consideration. Id.

____________________________________________

7 We note that when the trial court closed the record in this matter in August 

2019, C.B. had been in placement for 25 months.
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Here, the trial court gave “little weight to several of [Appellant’s] 

allegations against []Mother.” Trial Court Opinion, 11/8/19, at 9. Specifically, 

the trial court found Appellant failed to present credible evidence as to why 

Mother’s housing conditions, employment status, or contact with Father, who 

was incarcerated for “a lengthy prison term,” supported termination of 

Mother’s parental rights. Id. at 9-11. These factors might justify termination 

but they are not the factors that led to the removal and placement of C.B. in 

the case sub judice. Since these factors did not lead to C.B.’s removal and 

placement, we concur in the trial court’s conclusion that they do not support 

termination under Sections 2511(a)(5) or (a)(8).

The specific incidents that led to the removal and placement of C.B. 

were the allegations of child abuse and Mother’s failure to seek immediate 

medical care. In examining whether these specific incidents continued to exist 

at the time the petition was filed, the trial court recognized Appellant’s 

assertion that the underlying abuse and pending criminal charges, as well as 

the fact C.B. had been in placement for 15 months, justified termination of 

Mother’s parental rights. Id. at 12. The trial court, however, concluded that

[t]aking [Appellant’s] position to its logical conclusion would mean 

that []the [trial c]ourt would have a basis to terminate parental 

rights when criminal charges are filed against a parent when those

criminal charges were awaiting disposition at the fifteen month 

mark. [The trial c]ourt is aware of no support for that legal 

conclusion. Nothing in our statutes indicate that the underlying 

abuse or the pendency of charges of this nature alone support the 

automatic termination of parental rights.
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Id. at 12. The trial court found that Appellant failed to establish “any 

explainable nexus between the fact that the criminal charges remained 

pending and the termination of parental rights other than the simple 

conclusion that the resolution of the charges have not occurred within a 

specified timeframe.” Id. at 13.

Confronted with these unique circumstances,

8 we must determine 

whether evidence of the pendency of criminal charges, which are the direct 

consequence of the specific incidents that led to the removal and placement 

of the child, in itself, satisfies the second requirements of either Section 

2511(a)(5) or Section 2511(a)(8) when the criminal charges remain pending 

at the time the petition is filed.

In addressing this issue, we are guided by this Court’s prior conclusion 

that evidence of the “incarceration of a parent does not, in itself, provide 

sufficient grounds for termination of parental rights; [the parent] must act 

affirmatively, with good faith interest and effort, to maintain the parent-child 

____________________________________________

8 Here, what led to the removal and placement of C.B. was specific incidents 

of behavior or conduct by Mother that were episodic in nature. These specific 

incidents were single occurrences that, while they could not be undone, were 

not on-going. The analysis of the second requirement for termination under 

either Section 2511(a)(5) or Section 2511(a)(8) is concerned with whether 

the conditions, implying a situation that is on-going (i.e. unable to provide 

adequate food for child), that led to the removal and placement of the child 

continued to exist at the time the petition was filed. Because of Mother’s 

pending charges and the concern with Mother’s self-incrimination, Dr. O’Hara 

was not able to perform an assessment of Mother. As a result, Dr. O’Hara 

was not able to reach a conclusion as to whether her conduct would reoccur 

or if she understood the significance of her actions and omissions with regard 

to the care of C.B.
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relationship to the best of his or her ability, even in difficult circumstances.” 

In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citations 

omitted); see also In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en 

banc) (stating, “[i]ncarceration alone is not sufficient to support termination 

under any subsection [of Section 2511(a)]” (emphasis added, citation 

omitted)). We find the pendency of Mother’s criminal charges, which resulted 

from allegations of child abuse and the failure to seek immediate medical care,

together with Mother’s restricted visitation with C.B. due to the conditions of 

her bail, akin to the circumstances and limitations of an incarcerated parent. 

Evidence of a parent’s pending criminal charges, in itself, does not justify 

termination of parental rights under either Section 2511(a)(5) or Section 

2511(a)(8). In order to satisfy the second requirement of either Section 

2511(a)(5) or Section 2511(a)(8), clear and convincing evidence must 

demonstrate the parent failed to adequately maintain the parent-child 

relationship taking into consideration the unique circumstances of the parent’s 

pending criminal charges that were the direct result of the specific incidents

that led to the removal and placement of the child.

Here, the trial court found, and the record supports, that prior to the 

filing of the petition

Mother participated in and completed every parenting class and 

treatment recommended by [Appellant]. The record established 

that []Mother was compliant with drug and alcohol treatment, 

completed a Circles of Security Program, and was compliant with 

parent education. There was no credible evidence of any 

continued drug use and no evidence that []Mother failed to remain 

compliant with her visits with [C.B.]. [Appellant] presented no 
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explanation for why they did not increase []Mother's visitation 

with [C.B.] or activities with the child. While [the trial c]ourt has 

general familiarity with the criminal orders that were placed 

against []Mother, [Appellant] never made the details of these 

[o]rders part of the record of this proceeding. [The trial c]ourt 

does not recall any [o]rders that would have prevented 

[Appellant] from increasing the periods of contact between 

[]Mother and [C.B.] to further ascertain []Mother's abilities. The 

criminal [o]rders also did not prevent [Appellant] from moving 

forward on any additional services for []Mother that would have 

further permitted her to maintain her parental rights. These

[o]rders did not prevent a bonding assessment being done by Dr. 

O'Hara or any increased community services that would have 

helped maintain the mother/daughter relationship.

Trial Court Opinion, 11/8/19, at 11. In discussing the pendency of the criminal 

charges, the trial court stated,

There can be numerous reasons why criminal charges may be 

delayed or why a criminal case may take some time to proceed to 

trial. There were serious criminal charges pending against 

[]Father and []Mother's case was joined with []Father's case. 

There were pretrial motions filed and the criminal practitioners 

were actively involved in discussions about the timing of trial. 

[Appellant] did not present any specific facts to suggest the delay 

of the criminal charges should be attributed to []Mother. The 

record reveals that []Mother's criminal charges were resolved 

prior to [the closure of the] evidentiary record[]. Nonetheless, 

[Appellant] did not request any further evaluations or treatment 

of []Mother at that point. This is despite the fact that [Appellant’s] 

witnesses indicated during the pendency of the [petition] that 

other options would be considered (including reunification) if the 

criminal charges were resolved [in Mother’s favor. Appellant] 

never explained why [its] position changed when the criminal 

charges were resolved during the pendency of the [petition] and 

prior to the final closing of the record. [Appellant] also never 

explained why [it] did not request an additional evaluation with 

Dr. O'Hara.

Id. at 13-14.
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There would be a great deal of irony in the law if pending criminal 

charges could support the termination of parental rights under Section 

2511(a) while actual incarceration (and, obviously, conviction) does not, in 

itself, support termination of parental rights. It is not a foreign concept in 

Pennsylvania law that certain proceedings should or must be deferred where 

criminal charges are pending. See Spanier v. Freeh, 95 A.3d 342, 345 

(Pa. Super. 2014) (recognizing trial court’s ability to stay civil proceedings 

until criminal charges resolved if appropriate six-factor balancing test 

satisfied). It is not our intent to suggest that a child’s life be held in abeyance 

while the criminal charges are resolved but, rather, to find that the pendency 

of criminal charges, in itself, does not automatically result in termination of 

parental rights. Moreover, the adjudication of one’s guilt in charges stemming 

from allegations of child abuse is not necessary to assess whether the parent 

appreciates the harm caused and understands the wrongfulness of the conduct 

or whether there will likely be a reoccurrence of the behavior and conduct. 

See Commonwealth v. Brown, 26 A.3d 485, 508 (Pa. Super. 2011) 

(holding, “a psychiatrist [is permitted] to presume a juvenile's guilt in 

determining amenability to treatment”).

Based upon the record currently before us, the record supports the trial 

court’s determination that Mother complied with Appellant’s requirements for 

reunification and maintained a relationship with C.B., albeit constrained by 

fully supervised visitation, during the pendency of her criminal charges. 

Appellant failed to present clear and convincing evidence that Mother’s 
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behavior and conduct would reoccur or that she did not understand and take 

responsibility for the actions and omissions that led to the pending criminal 

charges. While her criminal charges remained pending, Mother acted 

affirmatively to adequately maintain the parent-child relationship with C.B, 

given her unique circumstances. Therefore, we find no error in the trial court’s 

determination that the pendency of the criminal charges, which were not filed 

until sometime after the occurrence of the specific incidents that led to the 

removal and placement of C.B., did not – by themselves – support 

termination. Consequently, Appellant failed to establish grounds justifying 

termination of Mother’s parental rights pursuant to either Section 2511(a)(5) 

or Section 2511(a)(8).9

____________________________________________

9 The record demonstrates the trial court analyzed the needs and welfare of 

C.B. under Section 2511(b)’s best interest of the child standard where the 

focus is on the child but did not analyze the needs and welfare of C.B. under 

Section 2511(a). The trial court’s failure to perform a needs and welfare

analysis under Section 2511(a), however, constitutes no grounds for 

reversible error in the case sub judice because the record supports the trial 

court’s conclusion that Appellant failed to present clear and convincing 

evidence of the second requirements of the either Section 2511(a)(5) or 

Section 2511(a)(8). We remind the trial court that before determining the 

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

pursuant to Section 2511(b), the third requirements of both Sections

2511(a)(5) and (a)(8) require the trial court to evaluate the needs and welfare 

of the child with a focus on the parent and the parent’s behavior, taking into 

consideration, among other things, the parent-child bond and intangibles such 

as love, comfort, security, and stability. See In re I.E.P., 87 A.3d at 346; 

see also In re I.J., 972 A.2d at 12.
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Order affirmed without prejudice to Appellant seeking termination of 

Mother’s parental rights at a later date where a fuller record could be 

developed given the resolution of Mother’s criminal charges.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2020