J-S69015-17

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: T.R.C., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: I.T., NATURAL FATHER

No. 947 WDA 2017

Appeal from the Order May 31, 2017

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): CP-02-AP-0000189-2016

BEFORE: BOWES, RANSOM, JJ. and STEVENS P.J.E.*

MEMORANDUM BY BOWES, J.: FILED JANUARY 05, 2018

I.T. (“Father”) appeals the orphans’ court order terminating his 

parental rights to his daughter, T.R.C.1 We affirm.

T.R.C. was born on October 21, 2014, while K.D.V. (“Mother”) was 

married to K.T.M. No father is identified on the birth certificate, and K.T.M. 

denied paternity. Allegheny County Office of Children, Youth and Families 

(“CYF”) became aware of the family five months later, when Mother, who

has an extensive criminal record, was involved in a series of incidents in 

downtown Pittsburgh. Specifically, on March 15, 2015, T.R.C. fell out of her 

baby carriage and became lodged in a revolving door. Mother was 

____________________________________________

1

 The child’s mother, K.D.V., died on May 1, 2017, two days prior to the 

evidentiary hearing.
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intoxicated, and after T.R.C. was extricated from the door, Mother returned 

the infant to the stroller without securing her. Shortly thereafter, T.R.C. was 

thrown from the stroller a second time while Mother was crossing a busy 

street.2 T.R.C. sustained a bruise on the left side of her face and abrasions

on her forehead, and she was admitted to Children’s Hospital of Pittsburgh 

for observation. CYF obtained emergency custody the following day, and 

placed T.R.C. in foster care upon her discharge from the hospital. She has 

remained in the agency’s custody since that date. CYF initially placed T.R.C 

in kinship care with her maternal grandmother, but during August 2016, she 

was transferred to her current pre-adoptive foster home. 

The juvenile court adjudicated T.R.C. dependent on April 17, 2015. 

Approximately two days earlier, the agency discovered that Father, who has

been incarcerated since August 2014 and ineligible for parole until 2024,

claimed to have previously executed an acknowledgment of paternity and 

mailed it to the location on the self-addressed envelope enclosed in a 

package he received while in jail. However, since CYF had no record of the 

document, it requested that Father submit to genetic testing to confirm 

____________________________________________

2 As a result of this episode, Mother was charged with aggravated assault, 

endangering the welfare of children, simple assault, neglect of a caredependent person, recklessly endangering another person, disorderly 

conduct, and public drunkenness. 
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paternity. Father routinely rejected their entreaties,3and to add to the

confusion, while Father’s paternity was subsequently confirmed for the 

purposes of his child-support obligations, the juvenile court vacated the 

domestic-relations order because Mother’s husband had not yet been 

genetically excluded from being a potential father. The upshot of the 

uncertainty surrounding T.R.C.’s paternity was that CYF effectively

disqualified Father from participating in the dependency proceedings. 

During April 2017, Father executed and filed the required acknowledgment 

of paternity. Id. at 7. 

Meanwhile, on October 27, 2016, CYF filed a petition to terminate 

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

(8), and § 2511(b). CYF provided Father notice of the involuntary 

termination proceedings and the orphans’ court appointed counsel for 

____________________________________________

3 CYF advised Father that it was required to confirm paternity before it could 

forward him information about the dependency proceedings, permit him to 

exchange photographs, or schedule visitations between T.R.C. and him or 

the paternal grandmother. N.T., 5/3/17, at 24. It sent representatives to 

the jail in order to perform genetic testing, but Father refused to participate. 

Id. at 80. Father purported to rebuff genetic testing for “religious reasons” 

but he was not able to articulate the precise bases of his objections. Id. at 

83. During the hearing on the petition to terminate his parental rights, he 

proffered the vague explanation, “it's prohibited, like, for a person that's 

Muslim to, in so many words, go against the decree of what God gave you.” 

Id. Despite the orphans’ court’s prodding inquiry, Father was unable to 

explain how his ambiguous statement applied in this scenario. Id. at 84. 
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Father.4 During the ensuing hearing, CYF presented the testimony of the 

current and former case workers assigned to the family. As it relates to 

Father’s instant complaint, both case workers testified about their 

interactions with Father during the dependency proceedings and his 

persistent refusal to acquiesce to genetic testing. The parties stipulated to 

the admission of two psychological reports prepared by the court-appointed 

psychologist, Neil D. Rosenblum, Ph.D., who opined, “it is my clinical opinion 

that . . . adoption is not only consistent with T.R.C.'s needs and welfare, but 

in my clinical opinion vital to her continued developmental growth and the 

only way to ensure sustained emotional security for T.R.C.” See CYF Exhibit 

2b, Psychological Report, 8/23/16, at 3. 

____________________________________________

4 The guardian ad litem, Cynthia Moore, Esquire, represented T.R.C. during 

the contested termination proceedings. While Father does not challenge 

Attorney Moore’s role in the termination proceedings, we are cognizant of 

our Supreme Court’s recent decision in In Re Adoption of L.B.M., 161 A.3d 

172 (Pa. 2017), wherein the majority of the justices held that 23 Pa.C.S. § 

2313(a) required that counsel be appointed to represent the legal interests 

of any child involved in a contested involuntary termination proceeding. The 

High Court recognized, however, that Part II–B of the opinion was not 

precedential and did not overrule our holding in In re K.M., 53 A.3d 781 

(Pa.Super. 2012). That decision held that a guardian ad litem who is an 

attorney may act as counsel so long as the dual roles do not create a conflict 

between the child’s best interest, as determined by the trial court, and the 

child’s legal interest, which the High Court defined as synonymous with his 

or her preferred outcome.

Instantly, Attorney Moore supported the termination of Father’s parental 

rights as serving T.R.C.’s best interests. Our review of the record does not 

reveal any conflict between this position and the legal interests of the nonverbal two-and-one-half-year-old.
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Father testified on his own behalf and presented the testimony of his 

mother, L.P. (“Paternal Grandmother”). He maintained that he contacted 

CYF at the outset of the dependency proceedings but the agency failed to 

exercise reasonable efforts to assist him in reunifying with his daughter. 

Stated plainly, Father asserts that he should not be penalized for the CYF’s

inaction. 

After considering the evidence, the orphans’ court entered the abovereferenced order terminating Father’s parental rights pursuant to § 

2511(a)(2) and (8). The orphans’ court chastised CYF for what it 

characterized as the agency’s inexcusable treatment of Father during the 

dependency proceedings. It determined that, by denying Father services 

and barring his participation in the juvenile court proceedings, CYF undercut 

its claim for the involuntary termination of parental rights under § 

2511(a)(1) and (a)(5). Tellingly, both of those provisions implicate the 

agency’s services, whether directly or indirectly. Thus, as the orphans’ court 

accurately highlighted, CYF’s petition failed as to those sections. 

However, the orphans’ court noted that CYF’s conduct was irrelevant 

under at least one of the grounds for termination the agency asserted under 

§ 2511. The court reasoned that, while CYF should have permitted Father

limited access to the dependency proceedings so that he could request the 

juvenile court to accept his purported acknowledgement of paternity,

Father’s extensive record of incarceration and the fact that he will not be 
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eligible for release for at least seven more years, constitute a repeated 

parental incapacity that cannot be remedied as outlined in § 2511(a)(2).

Thus, notwithstanding the fact that CYF neglected to provide Father any 

reunification services during the dependency proceedings, the orphans’ court 

concluded that the agency established valid grounds to terminate Father’s 

parental rights under the Adoption Act.

This timely appeal followed. Father complied with Pa.R.A.P. 1925

(a)(2)(i) by filing a concise statement of errors complained of on appeal 

wherein he asserted a single issue, which he reiterates on appeal as follows: 

“Whether the trial court erred in determining that CYF has established 

grounds to terminate [F]ather’s parental rights pursuant to 23 Pa.C.S. [§] 

(a)(2) and (8).” Appellant’s brief at 4. 

The crux of Father’s contention is that, by neglecting to invite him to 

participate in the juvenile court proceedings, CYF tainted the termination 

proceedings before the orphans’ court. Father reasons that the orphans’ 

court’s acknowledgment of CYF’s inaction was inadequate to dissuade the 

agency from erecting similar obstacles in the future that will impede the 

participation of similarly situated parents. He opines, “If we have recognized 

that parents’ rights are fundamental, as we have, we must also recognize 

that these rights must be diligently and scrupulously safeguarded.” Father’s 

brief at 12. No relief is due.
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The pertinent scope and standard of review of an order terminating 

parental rights is as follows:

Appellate courts are required to accept the findings of fact 

and credibility determinations of the trial court if they are 

supported by the record. If the factual findings are 

supported, appellate courts review to determine if the 

trial court made an error of law or abused its discretion. A 

decision may be reversed for an abuse of discretion only 

upon demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will. The trial court's 

decision, however, should not be reversed merely 

because the record would support a different result. We 

have previously emphasized our 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) (cleaned up). It is equally wellestablished that, “in termination cases, the burden is upon the petitioner to 

prove by clear and convincing evidence that its asserted grounds for seeking 

the termination of parental rights are valid.” In re S.H., 879 A.2d 802, 806 

(Pa.Super. 2005). 

As noted, supra, the grounds for termination of a parent’s parental 

rights are governed by 23 Pa.C.S. § 2511 (a) and (b), which provides in 

pertinent part 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 
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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.

. . . . 

(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. § 2511.

We need only agree with the orphans’ court’s decision as to one 

subsection of 23 Pa.C.S. § 2511(a) and subsection (b) in order to affirm the 

termination of parental rights.5 In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 

____________________________________________

5 As Father does not challenge the orphans’ court’s needs-and-welfare 

analysis pursuant to § 2511(b), we do not address it. See In re 

M.Z.T.M.W., 163 A.3d 462, 466 n.3 (Pa.Super. 2017) (explaining that this 

Court need not review orphans’ court’s § 2511(b) analysis sua sponte).
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2004) (en banc). Instantly, the record supports terminating Father’s 

parental rights under § 2511(a)(2).6 

To terminate parental rights pursuant to § 2511(a)(2), the moving 

party must produce clear and convincing evidence regarding the following 

elements: (1) repeated and continued incapacity, abuse, neglect or refusal; 

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825 

A.2d 1266, 1272 (Pa.Super. 2003). Parents are required to make diligent 

efforts towards the reasonably prompt assumption of full parental 

responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). 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. Id. 

As it relates to Father’s chronic incarceration throughout his daughter’s

life, in In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court 

clarified the case law addressing the effects of incarceration upon a parent’s 

____________________________________________

6 Although the orphans’ court also determined that CYF’s inaction did not 

preclude it from finding that the agency established the statutory grounds 

outlined in § 2511(a)(8), we need not address the propriety of that 

conclusion in light of our reliance on § 2511 (a)(2). 
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ability to provide essential care and control pursuant to § 2511(a)(2). After 

providing a scholarly review of the relevant case law, the High Court 

reasoned,

[W]e hold that incarceration is a factor, and indeed can be a 

determinative factor, in a court's conclusion that grounds for 

termination exist under § 2511(a)(2) where the repeated and 

continued incapacity of a parent due to incarceration has caused 

the child to be without essential parental care, control or 

subsistence and that the causes of the incapacity cannot or will 

not be remedied.

Id. at 828. The Court expounded, 

In line with the expressed opinion of a majority of justices

in [In re R.I.S., 36 A.3d 567 (Pa. 2011)], our prior holdings 

regarding incapacity, and numerous Superior Court decisions, we 

now definitively hold that incarceration, while not a litmus test 

for termination, can be determinative of the question of whether 

a parent is incapable of providing “essential parental care, 

control or subsistence” and the length of the remaining 

confinement can be considered as highly relevant to whether 

“the conditions and causes of the incapacity, abuse, neglect or 

refusal cannot or will not be remedied by the parent,” sufficient 

to provide grounds for termination pursuant to 23 Pa.C.S. 

§ 2511(a)(2).

Id. at 830. Hence, it is now beyond cavil that a parent’s incarceration is 

relevant to the section (a)(2) analysis and, depending on the circumstances 

of the case, it may be dispositive of a parent’s ability to provide the 

“essential parental care, control or subsistence” that the section 

contemplates. See 23 Pa.C.S. § 2511(a)(2). This case presents one such 

scenario. 
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Father was incarcerated during June 2014, he will not serve his 

minimum sentence until 2024., and his actual release could be delayed until 

2034, his maximum sentence.

7

 It is clear from the testimony during the 

evidentiary hearing that Father’s incarceration is tantamount to a continued 

incapacity that precludes him from providing T.R.C. the essential parental 

care, control and subsistence that she requires. Moreover, the incapacity 

will continue for at least ten years and could extend until she is a twentyyear-old woman. Thus, the record sustains the orphans’ court’s finding that 

Father’s prolonged imprisonment is the determinative factor under § 

2511(a)(2). Plainly, Father’s continued incapacity due to incarceration has 

caused T.R.C. to be without essential parental care, control or subsistence 

and regardless of any services CYF failed to provide, he cannot remedy the 

causes of the incapacity any sooner than 2024.

Next, we address Father’s primary complaint that the agency failed to 

exercise reasonable efforts to promote his reunification with T.R.C. due to 

his prolonged incarceration. Our High Court addressed this precise issue in 

In re D.C.D., 105 A.2d 662 (Pa. 2014), and held that it was improper to 

deny a petition for the termination of parental rights solely due to an 

agency’s failure to provide a parent reasonable efforts toward reunification. 

____________________________________________

7 At criminal action number CP-02-CR-0011051-2014, Father was sentenced 

to a term of ten to twenty years imprisonment for criminal conspiracy to 

commit robbery with serious bodily injury. 
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Id. Specifically, the Court ruled, “No Pennsylvania or federal provision 

requires delaying permanency for a child due to failure of an agency to 

provide reasonable services, when a court has otherwise held that grounds 

for termination is in the best interests of the child by clear and convincing 

evidence.” Id. at 666. It reasoned that such sanction was contrary to the 

child’s best interest. 

The salient facts of In re D.C.D. are as follows. The agency sought to 

terminate the parental rights of an incarcerated father who was not 

identified as a birth parent when his daughter was born during 2011. The 

father was serving an aggregate term of 7 3⁄4 to sixteen years imprisonment, 

and he was not eligible for parole until 2018. During the ensuing 

dependency proceedings, the agency provided the father few services and 

offered only one video visitation and one in-person visitation. Recognizing 

that the father's parenting incapacity would continue at least until his 

daughter would be seven years old and could persist until his maximum 

release date, the trial court granted the agency’s petition for involuntary 

termination of parental rights pursuant to § 2511(a)(2). The father 

appealed and we reversed, finding that the trial court erred in terminating 

the father's parental rights when the agency failed to provide him with 

reasonable efforts to promote reunification. Our Supreme Court granted 

review, reversed our decision, and reinstated the trial court's order 

terminating the father's parental rights.
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In reversing our decision, the Supreme Court concluded that the 

agency’s “reasonable efforts” were not elements of the statutory grounds to 

terminate parental right pursuant to § 2511(a)(2). The High Court 

reasoned, 

[A] child welfare agency cannot refuse reasonable efforts to an 

incarcerated parent and then point to the resulting erosion in the 

parental bond created by the agency as justification for 

termination of parental rights. The fact that such a scenario can 

be articulated, however, does not transform the provision of 

reasonable efforts to reunite parents and children into a 

requirement for termination. Nothing in the law goes so far, and 

the Superior Court erred in so holding.

Further, while we acknowledge that other states have 

included reasonable efforts as either an element or merely a 

factor in their termination provisions, the Pennsylvania 

legislature has not incorporated reasonable efforts into the 

language of 23 Pa.C.S. § 2511(a)(2), and it would be improper 

and, indeed, unwise for this Court to add such an element to the 

statute by judicial fiat. In contrast, we recognize that the 

legislature included consideration of the reasonable services 

available to the parent in regard to another ground for 

termination, subsection 2511(a)(5) (providing for consideration 

of whether “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”).

Id. at 672-73. Hence, the Supreme Court concluded that this Court erred in 

imposing the additional element of reasonable efforts under 23 Pa.C.S. § 

2511 (a)(2), and in vacating the termination of parental rights despite the 

trial court’s finding that the father was not capable of parenting and could 

not remedy the incapacity.
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For identical reasons, we reject Father’s complaint herein. Although 

CYF failed to exercise reasonable efforts, a fact that the orphans’ court 

highlighted in chastising the agency for its derogation, the lack of 

reunification services does not negate the fact that Father’s prolonged 

incarceration will continue to prevent him from providing essential parental 

care of T.R.C. until 2024 at the earliest. Thus, consistent with our Supreme 

Court’s holding in In re D.C.D., supra, we conclude that the orphans’ court 

did not err in terminating Father’s parental rights pursuant to § 2511(a)(2) 

under the facts of this case. 

For all of the foregoing reasons, we affirm the orphans' court's order 

terminating Father's parental rights to T.R.C. pursuant to 23 Pa.C.S. § 

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

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/5/2018