J-S01002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

In the Interest of: K.N.H. a/k/a K.H., 

a Minor,

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

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APPEAL OF: S.K.D. a/k/a S.G. a/k/a 

S.K.G. a/k/a S.D., a Mother,

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: No. 1724 EDA 2015

Appeal from the Order May 11, 2015

in the Court of Common Pleas of Philadelphia County,

Family Court Division, No(s): CP-51-AP-0000712-2014; 

CP-51-DP-0001129-2013; FID: 51-FN-002207-2013

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 28, 2016

S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D. (“Mother”) appeals from the 

Order granting the Petition filed by the Department of Human Services 

(“DHS”) to involuntarily terminate her parental rights to her minor child, 

K.N.H. a/k/a K.H. (“Child”), a daughter born in August 2011, pursuant to 23 

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1 We affirm.

The trial court aptly summarized the factual and procedural history of

this case, which we adopt for the purposes of this appeal. See Trial Court 

Opinion, 9/9/15, at 1-5.

Relevantly, in May 2013, DHS received a report from General 

Protective Services that Mother was found passed out in a shopping mall 

 

1 DHS also included M.H. (“Father”) in its Petition for involuntary termination 

of parental rights. In May 2015, Father signed voluntary relinquishment 

petitions.
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bathroom while with Child, who was two years old at the time. Mother was 

transported to the hospital, and it was determined that she had overdosed 

on heroin. Mother left the hospital that day against medical advice. DHS 

obtained an Order of Protective Custody, and Child was temporarily placed 

at Baring House before being placed with her paternal grandparents. On 

June 10, 2013, the Child was adjudicated dependent.

In the approximately 2 years that followed, Mother was incarcerated 

on three separate occasions. Mother refused to participate in visitations with 

Child while she was in prison. While Child was in the custody of DHS, 

Mother did not complete her Family Service Plan (“FSP”) objectives and only 

visited Child 7 times.

In December 2014, DHS filed an Involuntary Termination of Parental 

Rights (“ITPR”) Petition under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and 

(b).

The trial court conducted a hearing on the Petition on May 11, 2015. 

As Mother was in prison awaiting trial, she participated via telephone. 

After hearing the evidence, the trial court terminated Mother’s parental 

rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother filed a 

timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 

1925(b) Concise Statement.

On appeal, Mother raises the following questions for our review:

I. Whether the trial court committed reversible error when it 

involuntarily terminated Mother’s parental rights where such 
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determination was not supported by clear and convincing 

evidence under [] 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8)?

II. Whether the trial court committed reversible error when it 

involuntarily terminated Mother’s parental rights without giving 

primary consideration to the effect that the termination would 

have on the developmental, physical and emotional needs of 

[C]hild as required by [] 23 Pa.C.S.A. § 2511(b)?

Mother’s Brief at 4.

We review an appeal from the termination of parental rights in 

accordance with the following standard:

In an appeal from an order terminating parental rights, our 

scope of review is comprehensive: we consider all the evidence 

presented as well as the trial court’s factual findings and legal 

conclusions. However, our standard of review is narrow: we will 

reverse the trial court’s order only if we conclude that the trial 

court abused its discretion, made an error of law, or lacked 

competent evidence to support its findings. The trial judge’s 

decision is entitled to the same deference as a jury verdict.

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

Termination of parental rights is controlled by section 2511 of the 

Adoption Act. See 23 Pa.C.S.A. § 2511. 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 R.N.J., 985 A.2d 

273, 276 (Pa. Super. 2009). “[C]lear 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. (citation and quotation marks omitted). 

Further, the “trial court is free to believe all, part, or none of the evidence 
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presented and is likewise free to make all credibility determinations and 

resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. 

Super. 2004). If the competent evidence supports the trial court’s findings, 

“we will affirm even if the record could also support the opposite result.” In 

re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

Satisfaction of any one subsection of Section 2511(a), along with 

consideration of Section 2511(b), is sufficient for the involuntary termination 

of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en 

banc). In this case, we will review the trial court’s decision to terminate 

Mother’s parental rights based upon Section 2511(a)(1) and (b), which state 

the following: 

§ 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.

* * *

(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 
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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.

Parental rights may be terminated pursuant to Section 

2511(a)(1) if the parent either demonstrates a settled purpose 

of relinquishing parental claim to a child or fails to perform 

parental duties. ... [P]arental duty is best understood in relation 

to the needs of a child. ... [T]his court has held that the parental 

obligation is a positive duty which requires affirmative 

performance. This affirmative duty ... requires a continuing 

interest in the child and a genuine effort to maintain 

communication and association with the child.

In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal 

quotations and citations omitted). 

In regard to incarceration and the preservation of parental rights, we 

have stated the following: 

[I]ncarceration of a parent does not, in itself, provide sufficient 

grounds for termination of parental rights; however, an 

incarcerated parent’s responsibilities are not tolled during [her] 

incarceration. ... [P]arental duty requires that the parent not 

yield to every problem, but must act affirmatively, with good 

faith interest and effort, to maintain the parent-child relationship 

to the best of [her] ability, even in difficult circumstances.

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations 

omitted); see also In re S.P., 47 A.3d 817, 828 (Pa. 2012). Further,

[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 parentchild 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 his or her 

physical and emotional needs.
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In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).

In her first claim, Mother asserts that the trial court erred in granting 

the ITPR Petition because DHS did not satisfy by clear and convincing 

evidence that her parental rights should be terminated under Section 

2511(a). Mother’s Brief at 9. As to the requirements of subsection (a)(1), 

Mother argues that she completed her FSP objectives by participating in 

parenting classes, anger management classes, and an in-patient drug and 

alcohol program while she was in prison. Id. at 12. Mother claims that she 

declined visitation with Child while she was in prison because she did not 

think it was in Child’s best interests. Id. Mother also claims that she 

maintained communication with Child by sending letters and cards, and by 

asking Child’s paternal grandparents and DHS about Child’s welfare. Id. at 

12-13.

The trial court appropriately applied Section 2511(a)(1) to this case, 

and we adopt its Opinion as to that subsection for the purposes of this 

appeal.2 See Trial Court Opinion, 9/9/15, at 7-8; see also In re B., N.M., 

856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a 

settled purpose of relinquishing his parental rights where he sat idle for most 

of child’s life while mother performed all parental duties, and that father’s 

wish to not have his “parental rights terminated was insufficient to protect 

 

2 Additionally, we note that Mother’s only explanation for her conduct was 

that she “had a few bad years.” N.T., 5/11/15, at 38.
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those rights without acting affirmatively to foster a parental relationship with 

[c]hild during his incarceration.”). 

In her second claim, Mother argues that the trial court failed to give 

proper consideration of the effect of termination of her rights on Child’s 

needs and welfare according to Section 2511(b). Mother’s Brief at 14. 

Mother asserts that DHS social worker Molly McNeill’s (“McNeill”) testimony 

that Child had no bond with Mother was inappropriate because McNeill only 

supervised one visit. Id. at 15.

The trial court set forth the relevant law regarding Section 2511(b), 

and determined that it was in Child’s best interest to terminate Mother’s 

parental rights. See Trial Court Opinion, 9/9/15, at 12-13; see also In re 

T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that “courts considering 

termination must also consider whether the children are in a pre-adoptive 

home and whether they have a bond with their foster parents.”). Upon our 

review, the trial court appropriately applied Section 2511(b) to this case, 

and we adopt its Opinion for the purposes of this appeal. See Trial Court 

Opinion, 9/9/15, at 12-13.

Based upon the foregoing, the trial court did not err in granting the 

ITPR Petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2016
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Father's parental rights were also subsequently terminated pursuant to his signing voluntary 

relinquishments . 

maintain a relationship with the Child during the brief time periods when she was not in 

objectives, made little effort to be involved with her Child while incarcerated nor did she 

Child was in the custody of DHS, did not complete her Family Service Plan ("FSP") 

terminated Mother's parental rights because Mother, during nearly two (2) years that the 

the parental rights of Mother.1 As discussed in greater detail below, the trial court 

merits, this Court found that clear and convincing evidence was presented to terminate . 

parental rights to her minor female child, K.H. ("Child"). After a full Hearing on the 

Philadelphia Department of Human Services ('DHS") involuntarily terminating her 

and Order entered by this Court on May 11, 2015, granting the Petition filed by the 

S.K.D. a/k/a S.G. a/k/a, S.K.G. a/k/a S.D. ("Mother") appeals from the Decree , 

INTRODUCTION 

OPINION 

APPEAL OF: 

S.K.D. a/kla, S.G. a/k/a, S.K.G. a/k/a, S.D., Mother 

FAMILY COURT DIVISION 

JUVENILE BRANCH-DEPENDENCY 

CP-51-DP-0001129-2013 

FN-002207-2013 

Superior Court# 1724 EDA2015 

IN RE: K.H., a Minor 

IN THE COURT OF COMMON PLEAS 

THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, PHILADELPHIA COUNTY 

Circulated 01/08/2016 03:00 PM
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June 10, 2013, Mother tested positive for marijuana. Mother was incarcerated in Berks 

assessment with three random screens before the next court date. (DRO 6/10/2013). On 

Exhibit 2). On that date, Mother was ordered to take a forthwith drug screen and 

On June 10, 2013, the Child was adjudicated Dependent. (DRO 6/10/2013, DHS 

5/11/2015, p. 12). 

was placed temporarily at the Baring House and then with her grandparents. (N.T. 

the hospital that same day against medical advice. (N.T. 5/11/2015, p. 22). The Child 

determined that Mother's condition was a result of a heroin overdose, however she left 

she was dead due to her being unresponsive. (N.T. 5/11/2015, p. 11). It was 

was transported to Thomas Jefferson Hospital by paramedics who initially feared that 

bathroom at the Gallery Shopping Mall in Philadelphia. (N.T. 5/11/2015, p. 11). Mother 

report that Mother, while with her two year old daughter, was found passed out in a 

testified that on May 30, 2013 DHS received a General Protective Services ("GPS") 

Molly McNeill who was found to be a credible witness by this Court. Ms. McNeill 

The City Solicitor first presented the testimony from D.H.S. social worker 

Terminate Mother's Parental Rights. 

Parental Rights. On May 11, 2015, this Court heard testimony on DHS's Petition to 

On December 30, 2014, DHS filed a Petition to Involuntarily Terminate Mother's 

TERMINATION HEARING 

doing well in the pre-adoptive home of her paternal grandparents. 

custody. Furthermore, the Child, who was 4 years old at the time of the hearing, was 
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I I any visitation with her Child. (N.T. 5/11/2015, pp.15-16). After being released from 

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i incarceration, Mother was admitted into an inpatient drug and alcohol detox program I l which she completed. Mother was then admitted to a rehabilitation program on October 

\ 2 9, 2015, butleft against staff advice on November 6, 2014. (N .T. 5/1 1/2015, p. l 7. 

\ Ms. McNeill also testified that upon her release from Lebanon County Jail in 

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5/11/2015, p. 23). On September 12, 2014, Mother was released from Lebanon County 

Mother by phone about her FSP objectives and mailed her a copy of her objectives. (N.T. 

participated in by phone. (N.T. 5/11/2015, p. 23). At that time Ms. McNeill spoke with 

(N.T. 5/11/2015, p. 15). In June 2014, an FSP meeting was held in which Mother 

On February 5, 2014, Mother was again incarcerated in Lebanon County Jail. 

Jail. (N.T. 5/11/2015, p.15). During her incarceration, Mother chose not to participate in 

Ordered drug screens since testing positive for marijuana in June 2013. 

Additionally, Ms. McNeill testified that Mother did not avail herself of any of the CourtMother did not visit her Child again until December 2, 2013. (N.T. 5/11/2015, pp.13-14). 

arranged for Mother and took place on August 10, 2013. (N.T. 5/11/2015, pp.13-14). 

opportunity to visit with her Child. (N.T. 5/11/2015, p.29). A supervised visit was 

supervised bi-weekly visits. (N.T. 5/11/2015, p.13). Mother failed to avail herself of the 

July 26, 2013, following her release from prison at which time Mother was offered 

(N.T. 5/11/2015, p. 12). Ms. McNeill testified that she got in contact with Mother on 

alcohol treatment, maintain recovery and follow all recommendations for her recovery. 

Objectives were established for Mother in July 2013. Mother was to engage in drug and 

County Prison from June 21, 2013 until July 5, 2013. (N.T. 5/11/2015, p. 13). Initial FSP 

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Mother also testified via phone at which time she admitted that she never 

21-22). 

concluded that it would be in the Child's best interest to be adopted. (N.T. 5/11/2015, pp. 

nearly two (2) years. (N.T. 5/11/2015, pp.21-24). Based upon these facts, Ms. McNeill 

contrary, the Child had no bond with Mother who had only seen the Child seven times in 

her grandparents who were meeting all of her needs. (N.T. 5/11/2015, pp.21-23). To the 

p.21 ). Ms. McNeill based her opinion upon the fact that the Child was well bonded with 

irreparable harm if Mother's rights were to be involuntarily terminated. (N.T. 5/11/2015, 

Finally, Ms. McNeill testified that, in her opinion, the Child would not suffer any 

and related offenses. (N.T. 5/11/2015, p.20). 

Assault, Theft by Receiving Stolen Property, Driving Under the Influence, Fleeing Police 

On January 12, 2015, Mother was again arrested and incarcerated for Aggravated 

different addresses and did not have stable housing. (N.T. 5/11/2015, p.18). 

5/11/2015, pp.17-18, 20). Additionally, Ms. McNeill testified that Mother had several 

documentation that Mother had completed any drug and alcohol programs. (N.T. 

of probation. (N.T. 5/11/2015, p.18). Ms. McNeill stated that she never received any 

included parenting, housing, visitation and to comply with Court Orders and conditions 

Ms. McNeill testified that additional FSP objectives were added for Mother which 

January 2015. (N.T. 5/11/2015, p. 17). 

two (2) times in November 2014, two (2) times in December 2014 and one (1) time in 

5/11/2015, p.16). Despite being offered this opportunity, Mother only visited her Child 

September 2014, Mother was offered supervised visits with the Child at the agency. (N.T. 
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4. The trial court abused its discretion and committed legal error in terminating 

mother's parental rights under 23 Pa.C.S.§251 l(a)(8) because the Department 

of Human Services to prove by clear and convincing evidence that the 

conditions which led to the child's placement continued to exist. 

3. The trial court abused its discretion and committed legal error in terminating 

mother's parental rights under 23 Pa.C.S.§251 l(a)(5) because the Department 

of Human Services to prove by clear and convincing evidence the present and 

continued incapacity of mother to provide essential care necessary for her 

child's physical and mental well-being. 

2. The trial court abused its discretion and committed legal error in terminating 

mother's parental rights since the Department of Human Services did not meet: 

its burden by clear and convincing evidence of establishing sufficient grourids · under 23 Pa.C.S.§2511 (a)(2). 

1. The trial court abused its discretion and committed legal error in terminating 

mother's parental rights since the Department of Human Services did not meet 

its burden by clear and convincing evidence of establishing sufficient grounds 

that mother had evidenced a settled purpose of relinquishing a claim to her 

child or had refused or failed to perform parental duties under 23 Pa.C.S. 

§2511 (a)(l). 

following: 

In her Statement of Matters Complained of on Appeal, Mother avers the 

APPELLANT'S ARGUMENTS 

this Court granted D HS' s Petition to Terminate Parental Rights of Mother. 

stability with her grandparents. (N.T. 5/11/2015, pp. 38-39). At the end of the Hearing, 

that she recognized that her daughter was where she needed to be and that her Child had 

5/11/2015, p.37). Furthermore, in reference to her Child's placement, Mother testified 

in an inpatient program for about 3 weeks but left because she was angry. (N.T. 

completed a drug and alcohol program. (N.T. 5/11/2015, p.36). She testified that she was 
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Mother's failure for two (2) years to meet her FSP objectives, her decision not to be 

terminate Mother's parental rights under §251 l(a)(l),(2), (5), and (8). In light of 

A.3d 601, (Pa. Super. 2012). In the instant case, DHS's Petition asked the Court to 

grounds for seeking termination of parental rights are valid. In the Interest ofB.C. ,36. 

cases, the burden is upon DHS to prove by clear and convincing evidence that its asserted •· 

Termination of parental rights is governed by 23 Pa.C.S.A. §2511. In termination 

A. The Trial Court Properly Found that the Department of Human Services 

Met Its Burden by Clear and Convincing Evidence To Terminate Mother's 

Parental Rights Pursuant to 23 Pa.C.S.A. §2511(a)(l), (2), (5) and (8). 

affirm a termination of parental rights. In re D.A.T., 91 A.3d 197 (Pa. Super. 2014). 

Trial Court's decision as to any one subsection under 23 Pa.C.S.A. §251 l(a) in order to 

would give to a jury verdict. The Pennsylvania Superior Court need only agree with a· 

Appellate Court must accord the hearing judge's decision the same deference that it 

Where a Trial Court has granted a Petition to Involuntarily Terminate Parental Rights, an 

insufficient evidentiary support for the Trial Court's decision, the Decree must stand. 

supported by competent evidence. Absent an abuse of discretion, an error of law, or 

Appellate Court is limited to determining whether the decision of the Trial Court is 

When reviewing an Appeal from a Decree terminating parental rights, an 

STANDARD OF REVIEW 

5. The trial court did err in terminating mother's parental rights since the 

Department of Human Services did not meet its burden by clear and 

convincing evidence of showing that the best interest of the child was served 

by terminating mother's parental rights pursuant to Section 2511 (b) of the 

Adoption Act. 

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above, Mother failed to participate in visitation with her Child. These minimal objectives 

an inpatient rehabilitation program after 3 weeks because she was angry. Also, as stated 

completing drug and alcohol treatment. Mother completed a detox program but then left 

Most importantly, Mother, by her own admission, never completed her major goal of 

comply with her FSP objectives. Mother failed to obtain suitable housing for her Child. 

Mother's refusal to parent was also demonstrated by the fact that Mother failed to 

agency, Mother only visited her Child seven (7) times. 

her Child when she was not incarcerated. Despite being offered supervised visits at the 

she chose not to be involved in her Child's life. Mother was offered supervised visits with 

parental duties. Mother was incarcerated for half of the Child's life during which times 

settled purpose of relinquishing parental claim to the Child and failed to perform any 

The Trial Court found clear and convincing evidence that Mother demonstrated a 

A.2d 771 (Pa. Super. 2009). 

parental claim to a child or fails to perform parental duties." In the Interest of J.T., 983 

at least six months, a parent either demonstrates a settled purpose of relinquishing 

Section 2511 (a)(l) provides that "parental rights may be terminated, if, for a period of 

1. The Trial Court properly granted the Petition pursuant to 23 Pa.C.S.A 

§2511(a)(l). 

incarcerated, the Trial Court properly granted DHS's Petition to Terminate. 

and maintain a relationship with the Child during the brief period time that she was not 

involved in the life of the Child while incarcerated, and her minimal efforts to establish 
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these reasons, the trial court found that DHS met its burden under 23 Pa.C.S.A. §2511 (a) 

relinquishing parental claim to the Child and failed to perform her parental duties. For 

Consequently, this Court concluded that Mother demonstrated a settled purpose of 

decision to terminate parental rights of incarcerated father). 

2008 PA Super 131, 952 A.2d 680, 682-683 (Pa. Super. 2008)(affirming trial court's 

caused the Child to be without essential parental care. See In re: Adoption of W.J.R., 

relationship with the Child demonstrated incapacity, abuse, neglect, or refusal which 

her Child. Mother's refusal to comply with her minimal FSP objectives and to maintain a 

Mother did not utilize any resource available to her to maintain a relationship with 

a close relationship with the child. Id. 

incarcerated, utilized those resources available while he or she was in prison to maintain 

incapability under subsection (a)(2), the Court must inquire whether the parent, while 

With respect to failure to perform parental duties under subsection (a)(l), as well as 

child's life." Adoption of Baby Boy A., 512 Pa 517, 517 A.2d 1244, 1246 (Pa. 1986). 

parental rights must exert himself to take and maintain a place of importance in his 

Super 214, 737 A.2d 283, 286 (Pa. Super. 1999). Further, "[a] parent desiring to retain 

incarceration alone is not sufficient to support termination under any subsection, 

Mother was incarcerated during half of the lifetime of the Child. While 

"parental responsibilities are not tolled during incarceration." In re: D.J.S., 1999 PA 

made little if any effort to fulfill these objectives. 

would have demonstrated Mother's interest in caring for her Child. However, Mother 
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being. In re Z.P ., 994 A.2d 1108 (Pa. Super. 2010). 

essential parental care, control or subsistence necessary for his physical or mental wellperform parental duties, but instead emphasizes the child's present and future need for 

Unlike §2511 ( a)(l ), §2511 ( a)(2) does not emphasize a parent's refusal or failure to 

parental incapacity that cannot be remedied, are "not limited to affirmative misconduct." 

The grounds for termination of parental rights under 23 Pa.C.S.A. 2511 (a) (2), due to 

re: Adoption of K.J., 938 Pa. Super at 1133. 

of the incapacity, abuse, neglect or refusal cannot or will not be remedied." See also In 

abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the 

251 l(a)(2) as requiring the Petitioner to prove "(l ) repeated and continued incapacity, 

enunciated the fundamental test in termination of parental rights under what is now 

child to be without essential parental care, control or subsistence; and (3) that the causes 

The Supreme Court, in In re Geiger, 459 Pa. 636, 331 A.2d 172, 174 (1975), 

incapacity to perform parental duties." In Re: N.A.M., 33 A.3d 95 (Pa. Super. 2011). 

misconduct; "to the contrary those grounds may include acts of refusal as well as 

parent." 23 Pa.C.S.A. §251 l(a) (2). These grounds are not limited to affirmative 

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

or subsistence necessary for his physical or mental well-being and the conditions and 

or refusal of the parent has caused the child to be without essential parental care, control 

Section 251 l(a) (2) requires that "repeated and continued incapacity, abuse, neglect 

pursuant to 23 Pa.C.S.A. § 251l(a) (2). 

2. The Trial Court properly granted the Petition to Terminate Parental Rights 
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1266 (Pa.Super. 2003). Mother has shown a "repeated and continued incapacity and 

ability to handle the responsibilities of parenting. In re: Adoption of M.E.P ., 825 A.2d 

A child's life may not be put on hold in the hope that the parent will summon the 

related offenses. 

Theft by Receiving Stolen Property, Driving Under the Influence, Fleeing Police and 

Hearing, Mother was back in prison awaiting Trial on charges of Aggravated Assault, 

she was able to provide proper parental care for her Child. At the time of the Termination 

receiving necessary drug and alcohol treatment. Further, Mother never demonstrated that 

in the near future. Mother had never obtained suitable housing for the Child and was not 

Finally, the Court was not persuaded that Mother could resolve her dependency issues 

physical or mental well-being. 

demonstrated that Mother left her young Child without parental care necessary for her 

addition, there is no question that Mother's failure to maintain contact with the Child 

when the Child was in foster care demonstrated her incapacity and refusal to parent. In 

and refusal to parent. The Mother's failure to maintain a relationship with the Child 

As discussed above, the Trial Court found that Mother evidenced both an incapacity 

S.C.B., 990 A.2d 762 (Pa. Super. 2010). 

affirmative misconduct, acts of refusal to parent as well as an incapacity to parent. In re: 

(Pa. Super. 2006). In other words, a trial court can find an incapacity to parent by finding 

the best of his or her ability, even in difficult circumstances. In re E.M., 908 A.2d 297 

effort, and not yield to every problem, in order to maintain the parent-child relationship to 

Parental duty requires that the parent act affirmatively with a good faith interest and 
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was bonded with her grandparents who were meeting all her needs. 

rights because the Child was residing in a pre-adoptive home for nearly two (2) years and 

In addition, the Court found it was in the Child's best interests to terminate Mother's 

rights pursuant to Sections 251 l(a)(5) and (a)(8) for the same reasons discussed above. 

The Court found clear and convincing evidence to terminate Mother's parental 

needs and welfare of the child." In re: K.T.E.L., 983 A.2d 745 (Pa. Super. 2009). 

of the child continue to exist; and (3) termination of parental rights would best serve the 

more from the date of removal; (2) the conditions which led to the removal or placement 

be demonstrated: ( 1) the child has been removed from parental care for 12 months or 

terminate parental rights pursuant to 23 Pa.C.S.A. §251 l(a)(8), the following factors must 

The requirements to terminate pursuant to section 251 l(a)(8) are similar. "[T]o 

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

rights would best serve the needs and welfare of the child. 23 Pa.C.S.A. §251 l(a)(5). 

has been removed from parental care for at least six months; (2) the conditions which led 

Termination of Parental Rights under Section 2511 (a)(5) requires that: (1) the child 

Court terminated Mother's parental rights pursuant to §251 l(a) (2). 

3. The Trial Court properly granted the Petition to Terminate Parental Rights 

Pursuant to 23 Pa.C.S.A. §251l(a)(S) and (a)(8). 

dependency issues in the near future. Consequently, for all of the above reasons this 

refusal" to parent the Child. This Court finds that Mother will not be able to resolve the 
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went so far as to say that when she got out of prison it was not her intention to remove 

acknowledged that her child was in a stable environment with her grandparents. Mother 

it would be in the Child's best interest to be adopted. Additionally, Mother 

Child seven times in nearly two years. Based upon these facts, this Court concluded that 

contrary, the Child had no bond with Mother who was incarcerated and had only seen the 

was well bonded with her grandparents who were meeting all of her needs. To the 

be involuntarily terminated. Ms. McNeill based her opinion upon the fact that the Child 

her opinion, the Child would not suffer any irreparable harm if Mother's rights were to· 

adoptive home with her grandparents nearly her entire life. Ms. McNeill testified that, in 

The Child was two years old at the time of the hearing, and had resided in a pre- 

(Pa.Super. 2008). 

the emotional bond between parent and child. In re: C.T. and G.T.F., 944 A.2d 779 

"[ojne major aspect of the needs and welfare analysis concerns the nature and status of 

than the fault of the parent." In re K.Z.S., 946 A.2d 753 (Pa.Super. 2008). Further, 

§2511 (b ). "Section 2511 (b) centers judicial inquiry upon the welfare of the child rather 

developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. 

terminating the rights of a parent, the Court "shall give primary consideration to the 

C.A.W. and A.A.W .. 453 Pa. Super. 277, 683 A.2d 911, 917-18 (Pa. Super. 1996). In 

interests of the child pursuant to 23 Pa.C.S.A. §251 l(b). In the Matter of the Adoption of 

satisfied, it must then determine whether the termination of parental rights serves the best 

After the Trial Court finds that the statutory grounds for termination have been 

B. The Trial Court Properly Found That Termination of Mother's Parental 

Rights was in the Child's Best Interests and That OHS Met Its Burden 

Pursuant to 23 Pa.C.S.A. §251l(b). 
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DATE 

ALLANL~.~ 

BY THE COURT: 

CONCLUSION 

terminating Mother's parental rights. 

developmental physical and emotional needs and welfare of the Child are best served by 

never cared for the Child, and the Child is in a nurturing and loving foster home, the 

Since the Child has spent approximately two (2) years in foster care, Mother has 

Child from the grandparents care. 

This Court finds that DHS met its burden by clear and convincing evidence for 

terminating Mother's parental rights pursuant to 23 Pa.C.S.A. §25ll(a) and (b) and for I 

the foregoing reasons, this Court respectfully requests that the Decree and Order of I 

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May 11, 2015 terminating Mother's Parental Rights be Affirmed. I 

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DATE 

ALLAN L. TERESHKO, Sr. J. 

Regina Tuchinsky, Esq. 

Patricia A. Korey, Esq. 

Defenders Association 

Child Advocacy Unit 

1441 Sansom St 

Philadelphia, PA 

For Minor Child 

Cynthia Keller, Esq. 

Caitlin Dunston. Esq. 

Phila Solicitor's Office 

One Parkway, 1515 Arch St. 16111 flr. 

Philadelphia, PA 19102 

DHS Counsel 

Carlin Saafir. Esquire 

Beggin & Greshes 

1218 Chestnut si. Ste. 500 

Philadelphia. PA 19107 

Counsel for Father 

Neal Masciantonio, Esq. 

1 806 Callowhill Street 

Philadelphia, PA 19130 

Counsel for Mother, Appellant 

I hereby certify that a true and correct copy of the foregoing Opinion is served 

upon the following parties by the manner as designated: Family Court Delivery Mail 

Box. 

CERTIFCATE OF SERVICE