J-S82018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF T.T.H., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: S.S.S., MOTHER

No. 1130 MDA 2016

Appeal from the Decree June 14, 2016,

in the Court of Common Pleas of York County,

Orphans' Court, at No(s): 2016-0020a

IN THE INTEREST OF T.T.H., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: S.S.S., MOTHER

No. 1133 MDA 2016

Appeal from the Order entered June 14, 2016,

in the Court of Common Pleas of York County,

Juvenile Division at No(s): CP-67-DP-0000154-2014.

BEFORE: OTT, DUBOW, PLATT, JJ.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 09, 2016

Appellant, S.S.S. (“Mother”) appeals from the Decree involuntarily 

terminating her parental rights to her son, T.T.H. (“Child”), pursuant to the 
J-S82018-16

- 2 -

Adoption Act, 23 Pa.C.S. § 2511(a) and (b), and from the Order changing 

the permanency goal from reunification to adoption.1 We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

Counsel stipulated to the majority of the pertinent facts. Child was 

born in September 2011. At the time Mother and T.B.H., the putative father 

(“Father”), were not wed, but have since married.2 On July 24, 2014, the 

York County Office of Children, Youth and Families (“the Agency”) filed an 

application for emergency protective custody following Mother’s arrest for, 

inter alia, attempted murder, robbery, and conspiracy. In an order entered 

the next day, the Agency presented sufficient evidence to demonstrate that 

continuation or return of Child to either parent was not in Child’s best 

interest. The trial court reached the same conclusion in a shelter care Order 

dated August 4, 2014, and awarded legal and physical custody of Child to 

the Agency. The Agency placed Child in emergency foster care.

On August 6, 2014, the Agency filed a dependency petition, and the 

court adjudicated Child dependent on August 11, 2014. The court once 

again awarded legal and physical custody to the Agency for placement of 

Child in foster care, with a goal of reunification.

____________________________________________

1 This Court sua sponte consolidated Mother’s Appeals.

2 The Orphans’ Court also terminated Father’s parental rights. The Agency 

avers that he has not filed an appeal. Agency’s Brief at 6. 
J-S82018-16

- 3 -

Over the ensuing year and a half, the Agency provided Mother with 

Family Services Plans (“FSP”). In each subsequent permanency review 

Order, the court concluded that Mother had minimally complied with the 

FSPs, despite the reasonable efforts made by the Agency, although she did 

complete a parenting program offered at the York County Prison.3 As a 

result of her incarceration and Father’s minimal compliance with his FSP, 

there was a continued need to place Child outside the care of his parents.

On March 8, 2016, the Agency filed a Petition for the Involuntary 

Termination of Mother’s Parental Rights (“TPR petition”), pursuant to 23 

Pa.C.S. § 2511(a)(1), (2), (5), and (8), and (b). That same date, the 

Agency filed a petition to change the court-ordered goal in the dependency 

proceeding to adoption. 

On April 29, 2016, Mother pled guilty to attempted robbery and 

conspiracy to commit robbery. The court sentenced her to a term of thirty 

to sixty months’ incarceration in a state correctional facility.

____________________________________________

3 We note that the Agency caseworker testified at the termination hearing 

that since August 2015, Mother had had bi-weekly, half-hour, contact visits 

with Child, and spoke with Child on the phone two to three times per month 

when she would call Father’s cell phone during Father’s supervised visits 

with Child. The case manager also testified that although the visits between 

Mother and Child went well, Child’s bond with his foster parents is stronger 

than the bond with Mother. See N.T. Hearing, 5/19/16, at 83. The CYS 

case manager acknowledged that prison regulations barred Mother from 

having visits with Child for the first year of her incarceration due to the 

homicide charge pending against Mother. 
J-S82018-16

- 4 -

On May 27, 2016, the Orphans’ Court held an evidentiary hearing on 

both Agency Petitions. The Agency presented the testimony of one of its 

caseworkers, as well as Child’s therapist, and a family resources specialist. 

Mother declined the opportunity to testify on her own behalf. The Agency 

stated that it had identified a prospective adoptive family. 

At the conclusion of the hearing, the Orphans’ Court took the matter 

under advisement. By final decree entered June 14, 2016, the Orphans’ 

Court terminated Mother’s parental rights based upon Section 2511(a)(1), 

(2), (5), and (8), and (b). By order entered that same day, the court 

changed the permanency goal to adoption. 

These consolidated appeals by Mother follow. 

ISSUES ON APPEAL

Mother raises the following issues on appeal:

1. Whether the [Orphans’] court abused its discretion in 

terminating parental rights under 23 Pa.C.S. 

2511(a)(1)[,] (2)[,] (5)[,] and (8) in that Mother was 

incarcerated and performed parental duties to the best 

of her ability given her incarceration including contact 

visits, telephone contact, and sending cards and letters 

to her son and the [Orphans’] Court erred in finding 

that termination of the parental rights would best serve 

the needs and welfare of [Child] due to [Child] having a 

bond with Mother and a bond with siblings.

2. Whether the [Orphans’] court abused its discretion in 

changing the court ordered goal in that the change of 

goal is not in [Child’s] best interest due to his bond with 

Mother and his potential for loss of contact with siblings 

and the trial court erred in finding that Mother has 

provided no parental duties in that Mother was 

incarcerated and performed parental duties to the best 
J-S82018-16

- 5 -

of her ability given her incarceration including contact 

visits, telephone contact, and sending cards and letters 

to [Child].

Mother’s Brief at 4 (excess capitalization omitted).

Because evidence regarding the permanency plan goal change and 

TPR petitions substantially overlap, and the legal standards to be applied are 

the same, we will first address Mother’s termination issues. See In the

Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (noting that courts should 

combine hearings on these two petitions since the evidence substantially 

overlaps and allows for faster permanency for the child).

LEGAL ANALYSIS

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. We may reverse a decision based on an abuse 

of discretion only upon demonstration of “manifest unreasonableness, 

partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however, 

merely because the record would support a different result.” Id. at 827. 

We give great deference to trial courts that often have first-hand 

observations of the parties spanning multiple hearings. In re T.S.M., 71 

A.3d 251, 267 (Pa. 2013). The Orphans’ Court is free to believe all, part, or 

none of the evidence presented and is likewise free to make all credibility 
J-S82018-16

- 6 -

determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d 

68, 73-74 (Pa. Super. 2004). 

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

evidence that the asserted grounds for seeking the termination of parental 

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

have explained that “[t]he standard of clear and convincing evidence is 

defined as testimony that is so clear, direct, weighty and convincing as to 

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

the truth of the precise facts in issue.” Id. (citations omitted).

It is well-settled that “a parent’s basic constitutional right to the 

custody and rearing of his or her child is converted, upon the failure to fulfill 

his or her parental duties, to the child’s right to have proper parenting and 

fulfillment of his or her potential in a permanent, health, safe environment.” 

In re. B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004). “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.” Id. at 855 (citation omitted).

Section 2511 of the Adoption Act provides grounds for the involuntary 

termination of parental rights. See 23 Pa.C.S. §§ 2511(a). In order to 

affirm the termination of parental rights, this Court need only agree with the 

trial court’s conclusion pertaining to any one subsection under Section 

2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). 
J-S82018-16

- 7 -

Termination Pursuant to Section 2511(a)(2), (5), and (b)

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

2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s decision 

to terminate Mother’s parental rights under Section 2511(a)(2), (5), and (b), 

which provide:

(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.

* * *

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

the court ... 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.

* * *

(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
J-S82018-16

- 8 -

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

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

consider any efforts by the parent to remedy the conditions 

described therein which are first initiated subsequent to the 

giving of notice of the filing of the petition.

23 Pa.C.S. § 2511.

This Court has stated:

In order to terminate parental rights pursuant to 23 Pa.C.S. § 

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) 

(internal citations omitted).

Our Supreme Court has observed that the Section 2511(a)(2) grounds 

for termination must be demonstrated by clear and convincing evidence. In 

addition, the Court noted:

A decision to terminate parental rights, never to be made lightly 

or without a sense of compassion for the parent, can seldom be 

more difficult than when termination is based upon parental 

incapacity. The legislature, however, in enacting the 1970 

Adoption Act, concluded that a parent who is incapable of 

performing parental duties is just as parentally unfit as one who 

refuses to perform the duties.

In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (internal citations and 

some internal quotation marks omitted). 

With respect to incarceration, our Supreme Court has held:
J-S82018-16

- 9 -

[I]ncarceration, while not a litmus test for termination, can be 

determinative of the question of whether a parent is incapable of 

providing “essential parental care, control or subsistence” and 

the length of the remaining confinement can be considered as 

highly relevant to whether “the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will not be 

remedied by the parent,” sufficient to provide grounds for 

termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g. 

Adoption of J.J., 515 A.2d [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 incarceration 

will factor into an assessment of the child's best interest.

Id. at 830-31.

In the instant case, the Orphans’ Court observed that Mother has been 

incarcerated since July 2014 when the Child was adjudicated dependent, and 

recently received a sentence for thirty to sixty months’ incarceration. 

Mother has provided no parental duties for the minor child for 

the past two (2) years and will not be able to so until she is 

released from prison.

* * *

Overall, Mother has made no progress ... towards alleviating the 

circumstances which caused the minor child to be placed and 

[has] not assumed any major parental duties for minor child. 

* * *

Neither parent is in a position to obtain custody of the minor 

child at this time. The minor child is currently residing with a 
J-S82018-16

- 10 -

foster family and testimony established that the child is 

comfortable in their home. Minor child has a bond with the 

foster family and looks to them for comfort and security.

The [c]ourt finds that the conditions which led the minor child to 

placement outside the care and custody of Mother ... continue to 

exist. Mother has been incarcerated since the adjudication of 

dependency and has made no progress towards alleviating the 

circumstances which initially led to minor child’s placement. 

...[T]he [c]ourt finds that the Agency clearly and convincingly 

established that termination of parental rights is justified 

pursuant to Sections 2511(a)(2), (5), and (8) of the Adoption 

Act.

Adjudication, dated 6/14/16, at 9-13. 

Mother argues that the Orphans’ Court erred in terminating her 

parental rights pursuant to Section 2511(a)(2) and (5) because “mother was 

the primary care giver prior to her incarceration,” and “has time served and 

will not be incarcerated in state prison long before she is released.” 

Appellant’s Brief at 14-15.4 She also avers that “Mother believes that since 

she has been sentenced, she now has a good idea of how long she will be 

incarcerated and feels it is reasonable to wait to save the mother[/]son 

bond.” Id. at 15. 

Since the dependency adjudication hearing in July 2014, when child 

was just two years old, up to the day of the involuntary termination hearing 

in May 2016, Mother has been incarcerated. Her ability to see Child twice a 

____________________________________________

4 Mother does not provide any details to support her averment that she will 

not be “in state prison long.” The record is devoid of any indication as to 

Mother’s potential release date in consideration of credit for time served.
J-S82018-16

- 11 -

month does not provide Mother with the capability of providing essential 

parental care, control or subsistence. Without evidence of when Mother will 

be released, it is speculative for her to assert that the trial court erred in 

involuntarily terminating her rights because her prison sentence will not be 

long. She received her sentence of thirty to sixty months’ incarceration just 

weeks before the parental rights termination hearing, after Child had already 

lived half his life away from Mother. Unfortunately, the “conditions which led 

to the removal . . . of the child continue to exist,” Mother “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 [Mother’s] parental rights 

would best serve the needs and welfare of the child.” 23 Pa.C.S. § 

2511(a)(2) and (5). 

Most importantly, as noted above, “parental rights are not preserved 

by waiting for a more suitable . . . time to perform one’s parental 

responsibilities while others provide the child with her physical and 

emotional needs.” In re. B., N.M., 856 A.2d at 855.

Accordingly, the court did not abuse its discretion in terminating 

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (5).
J-S82018-16

- 12 -

Termination Pursuant to Section 2511(b)

We also agree with the Orphans’ Court’s determination that the 

Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating 

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

With respect to Section 2511(b), our analysis shifts focus from 

parental actions in fulfilling parental duties to the effect that terminating the 

parental bond will have on the child. Section 2511(b) “focuses on whether 

termination of parental rights would best serve the developmental, physical, 

and emotional needs and welfare of the child.” In re: Adoption of J.M., 

991 A.2d 321, 324 (Pa. Super. 2010). 

In In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005), this Court found 

that “intangibles such as love, comfort, security, and stability are involved in 

the inquiry into the needs and welfare of the child.” Id. at 1287 (citation 

omitted). In addition, the Orphans’ Court “must also discern the nature and 

status of the parent-child bond, with utmost attention to the effect on the 

child of permanently severing that bond.” Id. (citation omitted).

In the instant case, the Orphans’ Court found that Mother’s bond with 

Child has diminished due to her incarceration and, accordingly, the court 

found that termination of her parental rights would not have a negative 

impact on Child. The court further found that a healthy bond existed 

between Child and the foster parents:

The Court has thoroughly evaluated [Child’s] relationships 

in this matter. . . . The Court finds that [Child] had a 

bond with Mother but that bond has diminished since 
J-S82018-16

- 13 -

Mother’s incarceration. It is the foster parents who 

provide for [Child]’s daily needs and act as [his] parental 

figures. [Child] looks to the foster family for security and 

is upset when he has to leave their care. At this point, the 

Court believes that termination of Mother’s . . . parental 

rights will have no negative impact of [Child]. The Court 

also finds that the bond between the foster parents is 

strong and healthy. Testimony established that [Child] is 

happy in their care. The bond that [Child] has with the 

foster parents can provide safety, security and 

permanency for [Child]. Termination of parental rights will 

best meet the needs of [Child] and permit [him] to achieve 

the stability that he deserves.

Adjudication, at 14-15.

Mother argues that the Orphans’ Court erred in concluding that 

termination of her parental rights would best serve the needs and welfare of 

Child because “[Child] has a bond with [Mother] and a bond with siblings.” 

Mother’s Brief at 10. According to Mother, she still possesses her parental 

rights to Child’s older sister and, by severing her parental rights to Child, the 

Orphans’ Court “has also effectively terminated rights to the older siblings, 

which [Mother] feels is an abuse of discretion and does not serve the needs 

and welfare of [Child].” Id. at 18.

Based on the testimony of the Agency’s witnesses, the Orphans’ Court 

acknowledged a bond between Mother and Child, but found that the bond 

had “diminished over time due to her incarceration preventing frequent 

visitation.” Trial Court Opinion, dated 8/3/16, at 1. The Orphans’ Court also 

reiterated its conclusion that Child “has a closer bond with the foster parents 

and would go to [them] over Mother when seeking comfort and care.” Id. 

Finally, our review of the record supports the court’s further conclusion that 
J-S82018-16

- 14 -

testimony at the TPR hearing “established that [Child] has regular contact 

with his siblings and extended family members and that the foster parents 

intend to continue said contact.” Id. Thus, Mother’s claim regarding Child’s 

potential loss of a bond with his siblings fails.

Finally, with respect to the trial court’s decision to change Child 

permanency goal to adoption, we note that when considering a goal change 

Motion the court looks to the best interests of the child rather than those of 

the child’s parents. See R.J.T., 9 A.3d at 1183-84. The Agency must 

establish that the requested goal change option is best suited to the child’s 

safety, protection, and physical, mental, and emotional welfare. Id.

In light of our above analysis, we conclude that the Orphans’ Court did 

not err in changing Child’s permanency goal to adoption. 

CONCLUSION

In sum, our review of the record supports the Orphans’ Court’s 

determination that the Agency met its statutory burden of proving by clear 

and convincing evidence that Mother’s parental rights should be terminated 

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b), and did not err in 

changing the permanency goal to adoption. 
J-S82018-16

- 15 -

Decree affirmed. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2016