J-S17045-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

___________________________ 

*Former Justice specially assigned to the Superior Court. 

IN RE: ADOPTION OF P.J., MINOR CHILD : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

 : 

 : 

APPEAL OF: D.A., FATHER : No. 1949 WDA 2014

Appeal from the Order October 29, 2014 

In the Court of Common Pleas of Washington County 

Orphans’ Court at No(s): 63-14-226 

BEFORE: GANTMAN, P. J., SHOGAN, J., AND FITZGERALD, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 1, 2015 

 Appellant, D.A. (“Father”), appeals from the order entered in the 

Washington County Court of Common Pleas, which involuntarily terminated 

his parental rights to his minor child, P.J. (“Child”). We affirm. 

 In its opinion, the trial court fully set forth the relevant facts of this 

case. Therefore, we have no reason to restate them. Procedurally, Child 

was adjudicated dependent on June 19, 2012. On February 21, 2014, 

Washington County Children and Youth Services (“CYS”) filed a petition for 

involuntary termination of Father’s parental rights to Child.1 The court held 

a hearing on the petition on September 5, 2014. On October 29, 2014, the 

court entered an order involuntarily terminating Father’s parental rights to 

Child. Father filed a timely notice of appeal on November 26, 2014, along 

 

1

 The petition also sought to terminate the parental rights of M.R. 

(“Mother”), who is not a party to this appeal. Following a hearing, the court 

terminated Mother’s parental rights by a separate order filed on July 22, 

2014. 
J-S17045-15 

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with a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i). 

 Father raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED IN TERMINATING 

[FATHER’S] PARENTAL RIGHTS PURSUANT TO SECTIONS 

2511(a)(1) and (2) OF THE ADOPTION ACT. 

WHETHER THE TRIAL COURT ERRED IN FINDING THAT 

THE TERMINATION OF [FATHER’S] PARENTAL RIGHTS 

SERVED THE CHILD’S NEEDS AND WELFARE UNDER 

SECTION 2511(b) OF THE ADOPTION ACT. 

(Father’s Brief at 5). 

 The standard and scope of review applicable in termination of parental 

rights cases are as follows: 

When reviewing an appeal from a decree terminating 

parental rights, we are limited to determining whether the 

decision of the trial court is supported by competent 

evidence. Absent an abuse of discretion, an error of law, 

or insufficient evidentiary support for the trial court’s 

decision, the decree must stand. Where a trial court has 

granted a petition to involuntarily terminate parental 

rights, this Court must accord the hearing judge’s decision 

the same deference that it would give to a jury verdict. 

We must employ a broad, comprehensive review of the

record in order to determine whether the trial court’s 

decision is supported by competent evidence. 

Furthermore, we note that the trial court, as the finder of 

fact, is the sole determiner of the credibility of witnesses 

and all conflicts in testimony are to be resolved by [the] 

finder of fact. The burden of proof is on the party seeking 

termination to establish by clear and convincing evidence 

the existence of grounds for doing so. 

The standard of clear and convincing evidence means

testimony that is so clear, direct, weighty, and convincing 

as to enable the trier of fact to come to a clear conviction, 
J-S17045-15 

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without hesitation, of the truth of the precise facts in issue. 

We may uphold a termination decision if any proper basis 

exists for the result reached. If the trial court’s findings 

are supported by competent evidence, we must affirm the 

court’s decision, even though the record could support an 

opposite result. 

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal 

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted). 

 CYS sought the involuntary termination of Father’s parental rights on 

the following grounds: 

§ 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: 

(1) The parent by conduct continuing for a 

period of at least six months immediately 

preceding the filing of the petition either has 

evidenced a settled purpose of relinquishing 

parental claim to a child or has refused or 

failed to perform parental duties. 

(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 
J-S17045-15 

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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)(1)-(2), (b). “Parental rights may be involuntarily 

terminated where any one subsection of Section 2511(a) is satisfied, along 

with consideration of the subsection 2511(b) provisions.” In re Z.P., 994 

A.2d 1108, 1117 (Pa.Super. 2010). 

 Under Section 2511(b), the court must consider whether termination 

will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516 

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability 

are involved when inquiring about the needs and welfare of the child.” Id.

at 520. “In this context, the court must take into account whether a bond 

exists between child and parent, and whether termination would destroy an 

existing, necessary and beneficial relationship.” In re Z.P., supra at 1121. 

When conducting a bonding analysis, the court is not 

required to use expert testimony. Social workers and 

caseworkers can offer evaluations as well. Additionally, 

Section 2511(b) does not require a formal bonding 

evaluation. 

Id. (internal citations omitted). 

 “The statute permitting the termination of parental rights outlines 

certain irreducible minimum requirements of care that parents must provide 
J-S17045-15 

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for their children, and a parent who cannot or will not meet the requirements 

within a reasonable time following intervention by the state, may properly be 

considered unfit and may properly have his...rights terminated.” In re 

B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). 

There is no simple or easy definition of parental 

duties. Parental duty is best understood in relation 

to the needs of a child. A child needs love, 

protection, guidance, and support. These needs, 

physical and emotional, cannot be met by a merely 

passive interest in the development of the child. 

Thus, this court has held that the parental obligation 

is a positive duty which requires affirmative 

performance. 

This affirmative duty encompasses more than a 

financial obligation; it requires continuing interest in 

the child and a genuine 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 to 

take and maintain a place of importance in the 

child’s life. 

Parental duty requires that the parent act affirmatively 

with good faith interest and effort, and not yield to every 

problem, in order to maintain the parent-child relationship 

to the best of his...ability, even in difficult circumstances. 

A parent must utilize all available resources to preserve 

the parental relationship, and must exercise reasonable 

firmness in resisting obstacles placed in the path of 

maintaining the parent-child relationship. 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 [the child’s] physical 

and emotional needs. 

Where a parent is incarcerated, the fact of incarceration 

does not, in itself, provide grounds for the termination of 

parental rights. However, a parent’s responsibilities are 
J-S17045-15 

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not tolled during incarceration. The focus is on whether 

the parent utilized resources available while in prison to 

maintain a relationship with his...child. An incarcerated 

parent is expected to utilize all available resources to 

foster a continuing close relationship with his...children. 

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted). 

“[A] parent’s basic constitutional right to the custody and rearing of 

his...child is converted, upon the failure to fulfill his...parental duties, to the 

child’s right to have proper parenting and fulfillment of his...potential in a 

permanent, healthy, safe environment.” Id. at 856. 

 After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Katherine B. 

Emery, we conclude Father’s issues merit no relief. The trial court opinion 

comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion, filed 12/17/14, at 5-8) (finding: Father 

never provided primary or even occasional parental care to Child; Father has 

been incarcerated for most of Child’s life; Father was briefly out of jail in 

August 2013, and visit was arranged, but Father did not appear; Father 

sporadically participated in juvenile dependency hearings via telephone or 

video conferencing; Father routinely violated his parole, resulting in 

numerous penalties; Father failed to make significant efforts to treat his 

drug and alcohol addictions; Father completed one parenting course and 

several drug treatment programs but did not complete mental health 
J-S17045-15 

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treatment and evaluation or anger management programs; while 

incarcerated, Father saw Child only once, after petition for termination of 

parental rights had already been filed; Father was released from jail in 

August 2014; Father testified he is not ready to assume custody of Child but 

instead would like Child to live with Father’s parents for initial period of six 

months; Child’s foster family is attentive to needs of Child, and Child has 

progressed significantly in foster home; Child is very close with sister, who 

also resides in foster home; Child demonstrates no particular attachment to 

Father outside of their visits; Child would experience little to no negative 

effect from severance of parental relationship; since his release from prison, 

Father has had no steady source of legitimate income; Father failed to make 

significant efforts to achieve financial and personal stability; CYS proved by 

clear and convincing evidence that Father’s instability and continued 

involvement in use and/or sale of illegal drugs has caused Child to be 

without essential parental care, control, and subsistence necessary for 

Child’s physical or mental well-being; evidence is clear and convincing that 

Father cannot or will not remedy conditions that led to termination of his 

parental rights, and termination will best serve Child’s needs and welfare). 

Accordingly, we affirm on the basis of the trial court opinion. 

 Order affirmed. 
J-S17045-15 

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/1/2015 
2014. The child was first adjudicated dependent on November 13, 2007; she was placed in foster 

The biological mother is · M. J2.. , whose parental rights were terminated on July 22, 

Feith.ft' is the biological father of P.J., who was born on January 11, 2006, age 8. 

I. FACTS 

the Father's rights to P.J. This timely appeal ensued. 

written position statement. The Court granted the Petition on October 29, 2014 and terminated 

were submitted to the Court on behalf of CYS and the Father; the Guardian ad Litem submitted a 

Guardian ad Litem appointed by the Court. Suggested Findings of Fact and Conclusions of Law 

2014. The Father was present and represented by counsel. The child was represented by a 

natural father to the child, P.J. After several continuances, the hearing was held on September 5, 

Rights filed by Washington County Children and Youth Social Services Agency (CYS). The 

petition, filed on February 21, 2014, sought to terminate the parental rights of D. It. (~f~th,e,;··), 

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This case came before the Court on a Petition for the Involuntary Termination of Parental 

OPINION PURSUANT TO PA. R.A.P. 1925 (a} 

Emery, J. December 17, 2014 

(minor child) 

P.J., 

ADOPTION OF: 

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Copies: Joyce Hatfield-Wise, Esq.; Tamora Reese, Esq.; MariAnn Hathaway, Esq. 

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2 

care from September 9, 2007 until March 3, 2009, when she was returned to the home of her 

mother. (Exhibit 1 Orders of November 13, 2007 and March 3, 2009; T.T. p. 7) The Father was 

incarcerated during the eighteen month period of placement. (Exhibit 1; Order of March 3, 2009; 

T.T. p. 8) The case was subsequently closed. CYS again became involved with the family in 

2012. The child was placed in emergency shelter care on May 7, 2012 when the Pennsylvania 

State of Police took protective custody of the child after the police arrested the Mother and her 

husband for domestic violence and Mother tested positive for cocaine. (Exhibit 1 - Court Order 

May 7, 2012). The child was adjudicated dependent on June 19, 2012 and has remained in foster 

care since. At the time of the shelter hearing, the Father was incarcerated. (Exhibit 1 - Court 

Order May 7, 2012). Since the child's placement in May of 2012, Father has been out of jail 

only for a few months. 

Father's criminal history centers on drugs; the Father has multiple convictions for 

misdemeanor drug charges and one felony for the sale of cocaine and a felony escape conviction 

for failure to returnto a halfway house. (T.T. pp. 32-41; Exhibit 3) Father has lacked 

compliance with his parole, resulting in numerous parole violation penalties. Father did not visit 

with the child from the date of placement in May of2012 until July 27, 2014, when a visit 

occurred at the Allegheny County Jail. (T.T. p. 27) He was briefly out of jail in August of 2013 

and a visit was arranged but he did not appear. (T.T. pp. 9, 49) The Father sporadically 

participated in the juvenile dependency hearings via telephone or video conferencing. (Exhibit 1) 

The Father was ordered by Juvenile Court, upon his release, to complete a drug and alcohol 

evaluation and follow through with treatment, to begin visits with his daughter and to obtain 

appropriate housing. (Exhibit 1; Court Orders June 19, 2012; October 15, 2013). Father was 

also ordered to complete parenting classes and anger management. The Father did complete a 

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3 

parenting program entitled Inside Out Dad Parenting Program while in the Allegheny County 

Jail. (Exhibit A; T.T. p. 58) Father has participated in numerous drug treatment programs; he has 

not completed mental health treatment and evaluation and anger management. (T.T. pp. 15, 58) 

The Father was released from jail in August of 2014. He has had supervised visitation with the 

child since then. 

The child is in the third grade. She has exhibited significant behavioral problems and 

mental health issues in the past. She currently is receiving mental health treatment including 

mobile therapy, case management and counseling and school support, including wrap around 

services of a TSS Worker. (T.T. pp. 14, 110) She was placed in her current home in February 

2014; it was the sixth placement since she was removed from her mother's care in May of 2012. 

(T.T. p. 96) Her behaviors have improved while in this home. Her sister A.K., age seven, is also 

placed in this home. P.J. and her sister have a positive and close relationship. (T.T. p. 13) The 

foster parents desire to adopt both P.J. and A.K. (T.T. p. 14) 

II. STANDARD OF REVIEW 

In order to grant the Petition for Involuntary Termination of Parental Rights, the Court 

must find that the moving party provides a clear and convincing evidence of one of the grounds 

enumerated in the petition. In re: J.D.W.M., 810 A.2d 688 (Pa. Super. 2002). The clear and 

convincing evidence standard means testimony that is so clear, direct, weighty and convincing as 

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

precise facts in issue. Id.; In Re: Julissa 0., 746 A.2d 1137 (Pa. Super. 2002). The petition 

alleged that the Father's rights should be terminated pursuant to sections 1 and 2 of §2511 of the 

Adoption Act enumerated as follows: 

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23 Pa. C.S.A. 2511 (a) (1) and (2) 

The Court's examination is a two part test. The Court must determine if CYS has 

established by clear and convincing evidence if the Father's conduct satisfies any of the grounds 

delineated in §2511 (a) (1) and (2). If so, then the Court must determine, pursuant to §2511 (b) 

that the termination of the parental rights will best serve the needs and welfare of the child. 

III. ISSUES ON APPEAL 

The Appellant asserts in his Statements of Matters Complained of on Appeal that "the 

trial court committed an error of law and/or abuse of discretion ... in terminating Natural 

Father's rights to his minor child pursuant to Section 251 l(a)(l)(2)(5) and (8) of the Adoption 

and in finding the termination of the Natural Father's parental rights to his minor child best 

served the child's needs and welfare under Section 251 l(b) of the Adoption Act." (Record 

No. ) The Court will first note that the Petition seeks to terminate Appellant's rights pursuant 

to Section (1) and (2) and NOT (5) and (8) as claimed in the Concise Statement. As the issues 

on appeal asserted by the Appellant are general in nature, the Court sets forth its Rationale for 

(1) A parent, by conduct continued for a period of at least six months immediately 

preceding the filing of the petition, either has evidenced a settled purpose of 

relinquishing parental claim to a child or has refused or failed to perform parental 

duties. 

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has 

caused the child to be without essential parental care, control or subsistence 

necessary for his physical or mental well being, and the conditions and causes of 

the incapacity, abuse, neglect or refusal cannot or will not be remedied by the 

parent. 

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the decision as a full and complete response to the Appellant's Statement of Matters Complained 

of on Appeal. 

IV. RA TIO NALE 

The Father has been incarcerated throughout most of the child's life. It is well settled 

that incarceration, in of itself, is not grounds for termination; however, the duties and 

responsibilities of a parent are not tolled during incarceration. In re: J.I.R, 808 A.2d 934 (Pa. 

Super. 2002). An incarcerated father is expected to utilize all resources available to him to 

maintain a relationship with his child. In re: C.S., 761 A.2d 1197 (Pa. Super. 2000). Pursuant to 

§2511 (a) (2), the question before the Court is whether CYS has established by clear and 

convincing evidence that the repeated and continued incapacity, neglect or refusal of the Father 

has caused the child to be without essential parental care necessary for her well-being, and the 

conditions and causes of the neglect or refusal cannot or will not be remedied by the Father. The 

Father has never provided primary parental care to this child, nor has he provided even 

occasional parental care. The Father has been incarcerated for most of the child's life. Although 

he was out of prison at the time of the hearing, the Father stated that he is still not ready to 

assume custody of his daughter but rather wants her to be placed with his mother and he could 

have regular contact with her. (T.T. p. S 1) The Father is not currently in a drug and alcohol 

treatment program. He has been in both in-patient, out-patient and prison-based treatment 

programs in the past but is not in a program at this time. Father was previously receiving Social 

Security Disability and is seeking to have it reinstated since his release from prison. The 

Father's instability, not having a residence and employment, throughout the child's life and the 

Father's continued involvement in the use and/or sale of illegal drugs has caused this child to be 

without her Father's care. Those conditions and causes have not yet been remedied and they are 

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Pursuant to §2511 (a) (1), the question before the Court is whether CVS presented clear 

and convincing evidence that the Father, during the six month period prior to the filing of the 

petition on February 21, 2014, has failed to perform his parental duty or evidenced a settled 

purpose of relinquishing his parental rights. The Agency does not have to prove that Father has 

evidenced both failure to perform parental duties and evidence a settled purpose of relinquishing 

his rights; one of these grounds is sufficient. In Re: C.M.S., (1), 832 A.2d 457 (Pa. Super. 2003). 

Similar to the analysis set forth above, the Court finds that the Father has failed to perform his 

parental duties. During the six months prior to filing of the TPR Petition on February 21, 2014, 

the Father was incarcerated but did not request any visits at the jail. The Father did not request 

visitation until after the filing of the petition. While the Father attempted to send cards to the 

child, the letters were not received. The Father never petitioned the dependency court to insure 

that he could maintain contact. Father's explanation for his lack of involvement was that he 

not likely to be remedied in a reasonable period of time. The child has been in foster care for 

two and one-half years. As expressed by the Pennsylvania Supreme Court, there is no simple 

definition of parental duties. They have defined parental duty as follows: "Parenting duty is best 

understood in relation to the needs of a child. A child needs love, protection, guidance and 

support. These needs, physical and emotional, cannot be met by merely passive interest in the 

development of the child ... parental obligation is a positive duty which requires affirmative 

performance; ... parental duty requires that a parent "exert himself to take and maintain a place 

of importance in the child's life." In Re: Bums, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977); In 

Re: B .• N.M., supra. The Father has simply not performed any parental duty except that he loves 

the child. But she needs and deserves more. CYS has met its burden of proof in proving §2511 

(a) (2). 

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believed his mother was in contact with both CYS and the child's Mother and he was of the 

understanding that the child was going to be returned to her mother and that he did not need to 

do anything. In fact, his Mother was not visiting with the child. (T.T. p. 112) Being a parent 

requires affirmative action. "Parents are required to make diligent efforts toward the reasonably 

prompt assumption of full parental responsibilities." In the Interest of A.L.D., 797 A.2d 326 (Pa. 

Super. 2002). The Father has not made diligent efforts. The Court finds that CYS has met its 

burden and established §2511 (a) (1) that the Father's actions has caused the child to be without 

parental care and the conditions and causes will not be remedied. 

In addition to establishing the grounds for termination in§ (1) or (2) of §2511 (a), CYS 

must also establish that the child's needs and interests will be best served by termination of the 

Father's parental rights. In re: LG., 939 A.2d 950, 2007 Pa. Super. 394. The Court must "give 

primary consideration to the developmental, physical, and emotional needs and welfare of the 

child." 23 Pa. C.S.A. §2511 (b). The Court must consider the intangibles oflove, comfort, 

security and stability and must probe the nature of the parent-child bond and the effects of the 

severance of that bond. In re: C.M.S .• II, 84 A.2d 1284, 2005 Pa. Super. 340. The child resides 

with her sister A.K. in a pre-adoptive home. While A.K. is not Father's biological child, he 

considers her to be his child as well and recognizes that the two girls should remain together. (T. 

T. pp. 43,56) The Mother's rights have already been terminated. (T.T. p. 6) The child desires to 

remain in her current placement. (T.T. p. 98) The child enjoys seeing her Father but that alone is 

not evidence of a bond. The child has referred to at least three people as Daddy; those persons 

are her Father and two other men who had relationships with the Mother. (T.T. pp. 17, 100) The 

child doesn't ask about her Father nor has she expressed, outside of the visits, any interest in 

him. The Pennsylvania Superior Court has held "the mere existence of an emotional bond does 

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not preclude the termination of parental rights." In the Interest ofK.M., 53 A.3d 781, 791 (Pa. 

Super. 2012). The Court Appointed Special Advocate (GASA), Marilyn Montecalvo, opined 

that a bond exists between the Father and child but it is not a significant one. (T.T. p. 100) The 

CASA supported the termination of parental rights petition. (Exhibit 4) The child recognizes her 

Father and recognizes others as a Father, or as a father figure. She has had very limited contact 

with him throughout her life. The caseworker opined that there was no bond in existence 

between Father and child; the child merely enjoys a friendly relationship with him. (T.T. p. 17- 

18) Lastly and importantly, the Guardian Ad Litem supported the termination, informing the 

Court that the child has expressed a desire to remain in the current placement and that remaining 

there and being adopted is in her best interest. (Position of Guardian Ad Litem filed October 29, 

2014) The Court found that the bond between Father and child is not a strong or meaningful 

one for the child and she will experience little or no negative or detrimental effects by severing 

the parental relationship. 

In conclusion, the evidence established, by a clear and convincing standard, that the 

Father failed to perform parental duties for at least six months (§1), that the Father showed a 

repeated and continued incapacity or refusal which has caused the child to be without essential 

parental care, control, or subsistence necessary for her physical and mental well-being, and that 

those conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be 

remedied by the Father (§2). The evidence also established by a clear and convincing standard 

that the best interests of the child would be served by this termination. Therefore, the Court 

granted the Petition for the Involuntary Termination of the Parental Rights of the Father, D.A. 

, to the child, P .J. 

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BY THE COURT: 

IV. CONCLUSION 

The Court's Opinion and Final Decree of October 29, 2014 should be affirmed. 

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