J-S22009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF BABY L., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

APPEAL OF: B.E., BIOLOGICAL FATHER

No. 1827 MDA 2016

Appeal from the Decree October 7, 2016

In the Court of Common Pleas of Dauphin County

Orphans’ Court at No(s): 108-AD-2015

BEFORE: SHOGAN, MOULTON, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017

B.E. (“Father”) appeals from the decree entered on October 7, 2016, 

in the Court of Common Pleas of Dauphin County, involuntarily terminating 

his parental rights to his son, Baby L. (“Child”), born in May of 2015.1 After 

careful consideration, we affirm.

The record reveals the following relevant procedural history. On 

December 22, 2015, J.L.H. (“Prospective Adoptive Father”) and his wife, 

S.E.H. (“Prospective Adoptive Mother”) (collectively “Prospective Adoptive 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1 By separate decree entered on October 7, 2016, the orphans’ court 

granted the petition to confirm consent to terminate the parental rights of 

T.M.B. (“Mother”). Mother filed a notice of appeal, which this Court quashed

sua sponte as untimely. Mother did not file a brief in Father’s appeal.
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Parents”), filed a petition for the involuntary termination of Father’s parental 

rights to Child pursuant to 23 Pa.C.S. §§ 2511(a)(1) and (2). In addition, 

on December 22, 2015, Prospective Adoptive Parents filed a report of intent 

to adopt, a petition for adoption, and a petition to confirm consent to the 

voluntary termination of Mother’s parental rights. 

On April 20, 2016, Prospective Adoptive Parents filed an amended 

petition for the involuntary termination of Father’s parental rights pursuant 

to 23 Pa.C.S. §§ 2511(a)(1), (2), (6), and (b).2 The orphans’ court held 

hearings on September 19, 2016, and October 5, 2016. The court set forth 

the following factual findings, in relevant part, which the testimonial 

evidence supports.3 

____________________________________________

2

In his brief, Father states that he was served with the amended involuntary 

termination petition but not the petition filed in December of 2015. Father’s 

Brief at 16. The orphans’ court found that Father was served with the 

amended petition only. N.T., 10/5/16, at 98; Trial Court Opinion, 12/20/16, 

at 9.

3

Prospective Adoptive Parents presented the testimony of Morgan C. Davis, 

Esquire, the former associate attorney at the law firm representing 

Prospective Adoptive Parents; Renee Dreisbach, the legal secretary at the 

law firm representing Prospective Adoptive Parents; Kasey Shienvold, 

Psy.D., a clinical and forensic psychologist who performed a psychological 

assessment of Prospective Adoptive Parents and observed their relationship 

with Child in August of 2016; Prospective Adoptive Father; Prospective 

Adoptive Mother; and L.F., Prospective Adoptive Maternal Grandmother. 

Father testified on his own behalf, and he presented the testimony of A.E., 

his sister; and Elizabeth Ruby, Esquire, an assistant public defender at the 

Dauphin County Public Defender’s Office. Mother, who contested the 

petition to confirm consent of the termination of parental rights, testified on 

her own behalf. N.T., 9/19/16, 1-183; N.T., 10/5/16, at 1-102. 
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4. Father was told immediately by Mother when she discovered 

she was pregnant.

5. Neither Father nor his extended, large family[,] gave Mother 

any emotional or financial support during the pregnancy.

6. Mother did not tell Father when she went into labor and gave 

birth to [Child in] May [of] 2015.

7. [Two days after Child’s birth,] Mother told Father and the 

public through postings on Facebook that [Child] was stillborn.

8. Father was enraged and subjected Mother to angry and 

threatening verbal attacks for which she filed a Petition for 

Protection from Abuse [“PFA”] in May of 2015.

9. Father’s bail was revoked after the [PFA] Order was entered 

and he was incarcerated in late May 2015.[4]

10. Father plead [sic] guilty to simple assault and aggravated 

assault of two women for which he was sentenced to five to 

fifteen years in a state correctional facility.[5]

11. In late December, 2015, Father learned from Mother that 

[Child] was alive and had been placed with a couple who were 

caring for [Child].

____________________________________________

4

Father was incarcerated on May 19, 2015, the same date that he appeared 

in court on a miscellaneous listing regarding separate criminal charges for 

simple and aggravated assault, for which he was then on bail. The assault 

charges were lodged against him before Child’s birth, and neither charge 

involved Mother as the victim. Rather, the charges alleged two different 

women as victims. On approximately May 19, 2015, Father was charged 

with a crime involving terroristic threats, which arose from the same incident 

that was the basis of the PFA order issued against him on behalf of Mother. 

As a result of the new criminal charge, Father’s bail was revoked, and he 

was incarcerated. N.T., 9/19/16, at 115-119, 121-122.

5 On February 9, 2016, Father pleaded guilty to the assault charges. N.T., 

9/19/16, at 116. 
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12. Knowing the child was alive, Father did not provide any 

financial assistance for the child, nor did he send gifts, cards, 

diapers, or letters to [Child].

* * *

14. Father will be incarcerated for a minimum of three and onehalf to five years, but possibly longer. 

15. Father has an extensive criminal record.

16. Dr. Kasey Shienvold testified on behalf of [Prospective 

Adoptive Parents] to the fact that [Child] was strongly bonded to 

[Prospective Adoptive Parents].

17. [Child] has lived with [Prospective Adoptive Parents] since 

May 16, 2015.

18. The Guardian Ad Litem recommended termination of Father’s 

parental rights, coupled with confirmation of Mother’s consent to 

terminate her parental rights as in the best interest of [Child], 

based on incapacity of Father to care for [Child] for at least three 

and one-half years and possibly much longer, and the fact he 

had made no attempt to provide [Child] with any necessities of 

life or gifts since learning the child was alive.

Trial Court Opinion, 12/20/16, at 7-9. In addition, the orphans’ court found 

that Father “learned in early January of 2016 that [Child] was being cared 

for by a pre-adoptive couple.” Id. at 9 (citation to record omitted). 

Further, the record reveals that Father mailed a handwritten letter to 

Mother dated January 21, 2016, which she forwarded to counsel who 

represented her during the subject proceedings in her contest of the confirm 
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consent petition, postmarked February 4, 2016.6 N.T., 9/19/16, at 178-179; 

Respondent’s Exhibit C. Mother requested that counsel, in turn, forward the 

letter to counsel for Prospective Adoptive Parents. N.T., 9/19/16, at 179-

181. In the letter, Father stated as follows, in pertinent part.

I was told on the first week of this year that [Child] is alive and 

well.

I was also made aware that he was given to a family in a 

temporary arrangement.

I fully dispute any and all terms of this agreement and request 

that [Child] be given back to his mother. . . .

I’m aware that no adoption is legal without [b]oth parents[‘] 

consent. I am totally against everything that has transpired 

without my knowledge!

I want [Child] back with his mother. . . .

Respondent’s Exhibit C. 

Prospective Adoptive Mother testified that in August of 2015, Mother 

told her “she did know who the father was of the child. . . . [Mother] said 

she had a PFA [order] against him. She . . . told me that [Father] knew that 

she was pregnant and that the baby was born but that she hadn’t told 

[Father] that she had placed [Child] for adoption.” N.T., 9/19/16, at 146. 

Prospective Adoptive Mother testified that she first learned Mother had lied 

____________________________________________

6 Mother acknowledged during direct examination that at the time she 

forwarded Father’s letter, she was “awaiting to retain [counsel] until [she] 

got the funds. . . .” N.T., 9/19/16, at 181.
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to Father by telling him Child was stillborn when she received his January 

21, 2016 letter. N.T., 9/19/16, at 146-147. 

By decree entered on October 7, 2016, the orphans’ court involuntarily 

terminated Father’s parental rights. Father timely filed a notice of appeal on 

November 3, 2016.7 The orphans’ court filed its opinion pursuant to 

Pa.R.A.P. 1925(a) on December 21, 2016.

On appeal, Father presents the following issue for our review:

1. Whether the [t]rial [c]ourt committed prejudicial error and/or 

abused its discretion in terminating [Father’s] parental rights 

under 23 Pa.C.S.A. § 2511 when:

(a) [Prospective] Adoptive Mother, who is an attorney, and 

her counsel failed to notify [F]ather in a timely manner 

about the adoption[;] and/or

(b) Father and Father’s family previously have been 

informed the child was stillborn; and/or

____________________________________________

7

Father did not concurrently file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). By order dated 

November 7, 2016, the orphans’ court directed Father to file the concise 

statement by November 30, 2016. On November 30, 2016, Father filed a 

motion for an extension of time to file the concise statement. The court 

granted Father’s motion on December 1, 2016, and directed that he file the 

concise statement within twelve days. Father timely complied. Because no 

party claims prejudice as a result of Father’s procedural violation, we will not 

quash or dismiss his appeal. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. 

Super. 2009) (holding that the appellant’s failure to concurrently file the 

Rule 1925(b) statement with the notice of appeal did not warrant quashing 

or dismissing the appeal, as no court order had been violated, and there was 

no prejudice to any party); Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 

2010) (stating that, where the appellant not only failed to concurrently file a 

Rule 1925(b) statement with her notice of appeal but also failed to comply 

with the trial court’s order to file the Rule 1925(b) statement within twentyone days, she waived her issues on appeal).
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(c) Father was never informed [that] Mother had already 

allegedly agreed to said adoption proceedings and was 

never permitted to exercise his parental duties. 

Father’s Brief at 5 (emphasis in original).

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. 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) (citations and quotation marks 

omitted). 

Termination of parental rights is governed by Section 2511 of the 

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

analysis. 

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 
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paid to the effect on the child of permanently severing any such 

bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). 

In this case, we conclude that the certified record supports the decree 

pursuant to Sections 2511(a)(2) and (b), which provide as follows.8

(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.

* * *

(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.

____________________________________________

8 Based on this disposition, we need not review the decree pursuant to

Sections 2511(a)(1) and (6). See In re B.L.W., 843 A.2d 380, 384 (Pa. 

Super. 2004) (en banc) (stating that this Court need only agree with the 

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

Section 2511(b), in order to affirm).
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23 Pa.C.S. §§ 2511(a)(2), (b).

This Court has stated as follows: 

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)). Further, “[t]he 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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 

2002) (citations omitted). 

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

Court addressed the relevance of incarceration in termination decisions 

under Section 2511(a)(2). The Court held 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. With respect to the third factor, whether the parent can remedy 

the incapacity, the S.P. Court cited with approval the concurring opinion in 

In re R.I.S., 36 A.3d 567 (Pa. 2011) (plurality), as follows:
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The fact of incarceration during an ongoing dependency action 

will not disqualify a parent from resuming parental responsibility 

so long as the parent will be released quickly enough to permit 

the court to provide the child with timely permanency upon 

reunification. If, however, the length of parent’s incarceration 

will preclude the court from unifying the (former) prisoner and 

the child on a timely basis in order to provide the child with a 

permanent home to which he or she is entitled, then the length 

of sentence, standing alone, should and does meet the legal 

criteria for involuntary termination of the incarcerated parent’s 

parental rights under 23 Pa.C.S. § 2511(a).

In re Adoption of S.P., 47 A.3d at 829-830 (citing In re R.I.S., 36 A.3d at 

576)(Baer, J., concurring)). 

With respect to 23 Pa.C.S. § 2511(b), this Court has stated that, 

“[i]ntangibles such as love, comfort, security, and stability are involved in 

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d 

1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial 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). However, “[i]n 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). 

Instantly, turning to Section 2511(a)(2), the orphans’ court found In 

re Adoption of S.P. controlling in terminating Father’s parental rights. The 

court concluded that the length of Father’s incarceration is a determinative 
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factor warranting termination of his parental rights.9 N.T., 10/5/16, at 99-

100; Trial Court Opinion, 12/20/16, at 7.

On appeal, Father argues that the orphans’ court erred in terminating 

his parental rights “by focusing primarily on his criminal charges (which did 

not involve children) [and] his length of incarceration. . . .” Father’s Brief at 

15. Father’s argument is based on the undisputed facts that (1) Mother had 

lied by telling him that Child was stillborn; and (2) Prospective Adoptive 

Parents and their counsel learned of Father’s name and his incarceration in 

August of 2015, but they failed to contact him or inform him about the 

prospective adoption. Id. at 16. 

It is undisputed that Father did not learn that Child was alive until 

Mother told him in late December of 2015. In addition, Father did not learn 

of the prospective adoption until Mother told him in early January of 2016. 

Father argues “[t]his delay substantially impaired [his] ability to be a 

father. . . .” Father’s brief at 18. He asserts “had Mother never lied, he 

would not have threatened her (a charge which was later dismissed) and his 

____________________________________________

9

It is important to note that, at the conclusion of the testimonial evidence, 

the Guardian ad Litem (“GAL”), on the record and in open court, 

recommended the involuntary termination of Father’s parental rights 

pursuant to Section 2511(a)(2) based on his sentence of a term of 

incarceration of five to fifteen years. N.T., 10/5/16, at 90-91. The GAL 

emphasized that, if the court did not terminate Father’s parental rights, “we 

might be creating a dependent child. . . . We would essentially be creating a 

child that has only one parent who is incarcerated. . . .” Id. at 90. The GAL 

further stated, “the reality is that . . . [C]hild’s life would be put on hold 

during that [time during which he was adjudicated dependent].” Id. at 91.
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bail would not have been revoked which would have allowed him to 

physically, financially and emotionally bond and care for [Child].” Id. at 24. 

We are unpersuaded by Father’s arguments. 

We do not condone Mother’s bad conduct wherein, for approximately 

the first seven and one-half months of Child’s life, she led Father to believe 

that [Child] was stillborn. However, Mother’s conduct does not preserve 

Father’s parental rights under Section 2511(a)(2). Indeed, Father’s own 

conduct warrants termination. 

As noted, on February 9, 2016, Father pleaded guilty to crimes 

involving assault of two separate women, which he committed before Child’s 

birth, and for which he was sentenced to a total term of incarceration of five 

to fifteen years. It is important to note that Father’s criminal charge in May 

of 2015, for terroristic threats against Mother upon being told Child was 

stillborn, was dismissed.10 N.T., 9/19/16, at 116. As such, Mother’s bad 

conduct, and Father’s response, did not result in any criminal penalty to 

Father. Although Father’s bail was revoked due to the new criminal charge, 

he was credited for the time he served until his sentencing on February 9, 

2016. Id. at 120-121. When the termination hearing concluded, three and 

____________________________________________

10 Elizabeth Ruby, Esquire, the assistant public defender in the Dauphin 

County Public Defender’s Office, testified that the charge was dismissed 

upon the District Attorney learning of Mother’s aforementioned bad conduct. 

N.T., 9/19/16, at 120. The record does not specify the date that the charge 

was dismissed. To the best that we can discern, it was dismissed in January 

of 2016. Id. at 119-120.
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one-half years remained on Father’s minimum sentence, at which time Child 

will be nearly five years old. If Father serves his maximum sentence, Child 

will be approximately fifteen years old when Father is released from prison.

We discern no abuse of discretion by the orphans’ court in concluding 

that Father’s repeated and continued incapacity due to his incarceration has 

caused Child to be without essential parental care, control, or subsistence, 

and that the causes of Father’s incapacity cannot or will not be remedied in 

light of the length of his incarceration. See In re Adoption of S.P., 47 

A.3d at 829-830 (citing In re R.I.S., 36 A.3d at 576) (Baer, J., concurring)) 

(“If . . . the length of parent’s incarceration will preclude the court from 

unifying the (former) prisoner and the child on a timely basis in order to 

provide the child with a permanent home to which he or she is entitled, then 

the length of sentence, standing alone, should and does meet the legal 

criteria for involuntary termination of the incarcerated parent’s parental 

rights under 23 Pa.C.S. § 2511(a).”).

With respect to Section 2511(b), this Court has explained as follows:

While a parent’s emotional bond with his or her child is a 

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

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

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

In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The 

mere existence of an emotional bond does not preclude the 

termination of parental rights. See In re T.D., 949 A.2d 910 

(Pa. Super. 2008) (trial court’s decision to terminate parents’ 

parental rights was affirmed where court balanced strong 

emotional bond against parents’ inability to serve needs of 

child). Rather, the orphans’ court must examine the status of 

the bond to determine whether its termination “would destroy an 
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existing, necessary and beneficial relationship.” In re Adoption 

of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we 

explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

In addition to a bond examination, the trial court can 

equally emphasize the safety needs of the child, and 

should also consider the intangibles, such as the love, 

comfort, security, and stability the child might have with 

the foster parent. Additionally, this Court stated that the 

trial court should consider the importance of continuity of 

relationships and whether any existing parent-child bond 

can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). 

Instantly, Father argues, “little, if any, evidence and consideration was 

placed on the record that discerns the nature of the bond [between him and 

Child] or the effects on [Child] of severing such bond.” Father’s brief at 15. 

“In cases where there is no evidence of any bond between the parent and 

child, it is reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d 

at 762-763. Therefore, it was reasonable for the orphans’ court to infer that 

no bond exists between Father and Child. We will not disturb the decree on 

this basis when there is no record evidence of any bond between Child and 

Father. 

In the alternative, Father argues that a bond “would have been 

developed by way of a visitation schedule but Father was never afforded that 

opportunity” due to Mother’s bad conduct. Father’s Brief at 15. We, 

likewise, will not disturb the decree on this basis when the orphans’ court 

terminated Father’s parental rights under Section 2511(b) because Child “is 

bonded and flourishing physically and emotionally with [Prospective Adoptive 
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Parents].” Trial Court Opinion, 12/20/16, at 10. As such, the court 

determined “it is in the best interest of [Child], giving primary consideration 

to his developmental, physical and emotional needs, to terminate Father’s 

parental rights.” Id. 

The testimonial evidence supports the court’s findings. Prospective 

Adoptive Mother testified that Child has resided in the custody of the 

Prospective Adoptive Parents since May 16, 2015, shortly after his birth. 

N.T., 9/19/16, at 146. She testified that Child, then fourteen months old, is 

happy and healthy, and that he “is very bonded” to Prospective Adoptive 

Parents. Id. at 131-132, 136. 

Similarly, Dr. Schienvold testified that, based upon his observation in 

August of 2016, Child showed “no evidence of delays in his gross or fine 

motor [skills]. . . . He appeared to be [ ] fairly happy and healthy. . . .” Id.

at 46. Further, upon inquiry by the orphans’ court, Dr. Shienvold testified 

that the termination of Father’s and Mother’s parental rights would not have 

“a tremendous effect on the child assuming that the [Prospective Adoptive 

Parents] maintain their kind of healthy relationship with the child and 

maintain . . . their role as devoted and caring parents.” Id. at 68-69. Upon

inquiry by the court, Dr. Shienvold concluded that there would be no 

negative effect on Child if Father’s and Mother’s parental rights are 

terminated. Id. at 69. 
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Based on the foregoing and upon careful review of the totality of the 

record evidence, the applicable law, and our standard of review, we discern 

no abuse of discretion by the orphans’ court in concluding that termination 

of Father’s parental rights serves the “developmental, physical and 

emotional needs and welfare” of Child. 23 Pa.C.S. § 2511(b); see also In 

re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (stating that “a parent’s 

basic constitutional right to the custody and rearing of his 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, 

healthy, safe environment”). Accordingly, we affirm the decree pursuant to 

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

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2017