J-S49015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.K.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.S., NATURAL MOTHER

No. 442 WDA 2017

Appeal from the Decree entered January 31, 2017

in the Court of Common Pleas of Jefferson County,

Orphans' Court, at No(s): 57A-2016 O.C.

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.: FILED AUGUST 31, 2017

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

terminating her parental rights to J.K.S. (“Child”) pursuant to the Adoption 

Act, 23 Pa.C.S. § 2511(a) and (b). We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

Mother and K.S. (“Father”) were both minors when the Child was born 

in September 2013. They were never married. The next month the Child 

became the subject of a custody action in which C.S. (“Maternal 

Grandmother”) and L.S. (“Paternal Grandfather”) were also named as 

parties due to the ages of Mother and Father. Following a pretrial 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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conference, the court entered a Stipulation and Order giving Mother and 

Father shared legal and physical custody of the Child.

One year later, on October 23, 2014, Mother’s sister, T.M. (“Maternal 

Aunt”), received a call from Paternal Grandfather informing her that Mother 

had been arrested and asking Maternal Aunt to take the Child. Maternal 

Aunt and her husband took the Child into their home the next day. Two 

weeks later, Maternal Aunt filed a Petition to Intervene and a Petition for 

emergency custody at the existing custody docket. The court granted both 

Petitions, and awarded Maternal Aunt sole physical custody of the Child on 

November 7, 2014. According to the Order, visitation would be upon 

agreement of the parties. Because no party has ever filed any subsequent 

Petition, this custody Order remains in effect.

On December 21, 2016, Maternal Aunt filed a Petition to Involuntarily 

Terminate the Parental Rights (“TPR”) of both Mother and Father pursuant to 

23 Pa.C.S. §2511(a)(1),(2),(5),(8), and (b). The Orphans’ Court held an 

evidentiary hearing on January 19, 2017. 

Both Mother and Father knowingly waived their right to counsel and 

appeared pro se. See N.T., 1/19/17, at 3-4.1 Maternal Aunt and her 

____________________________________________

1 The following colloquy occurred between the Orphans’ Court and Mother:

Court: [D]o you understand you have a right to an 

attorney?

Mother: Yes, sir.

(Footnote Continued Next Page)
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husband,2 with whom the Child has lived since she was 13 months old, 

testified in support of the Petition. 

Maternal Aunt testified that she brought the Child to visit Mother in 

prison, and that after Mother was released, Mother saw the Child about once 

(Footnote Continued) _______________________

Court: Do you understand if you can’t afford an attorney 

and qualify for court-appointed counsel, one would be appointed 

for you?

Mother: Yes, sir.

Court: Do you understand that when you do that, you’re 

held to have the same standard of knowledge that attorney 

would have. So if you make a mistake, you can’t later say you 

didn’t know what you were doing. The mistake would count 

against you the same as if you had or were an attorney. Do you 

understand that?

Mother: Yes, sir.

Court: And knowing all those risks – because the ultimate 

risk in this is that your rights are terminated and you have no 

further claim to the child. Do you understand that?

Mother: Yes, sir.

Court: Knowing those risks, do you wish to proceed on your 

own?

Mother: Yes, sir.

N.T., 1/19/17, at 3-4.

2 Maternal Aunt and her husband (“Uncle”) are the prospective adoptive 

parents.
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a month for a couple of hours each visit. She also testified that Mother 

spoke to the Child on the phone “once in a while.” Id. at 17.

Mother testified on her own behalf and informed the court that she had 

graduated from boot camp, and had secured a job and home in Dauphin 

County. She testified that before the date of the hearing, she was not ready 

to take care of the Child, but she is now. See id. at 44. She also said she 

“text[s] at least once a day to talk” to the Child, but her sister tells her 

frequently that the Child does not want to talk. Id. at 45. Mother also 

acknowledged that Maternal Aunt has done a “very good job” of raising the 

Child. Id. 

Maternal Grandmother testified that Mother saw the Child once a 

month and there was only one time when Maternal Aunt denied a visit. She 

also stated that Maternal Aunt was doing a good job of raising the Child. 

See id. at 51-2. 

Father testified on his own behalf, opining that it would be in the 

Child’s best interest to remain in the custody of Maternal Aunt and her 

husband. See id. at 57-8. 

Following the conclusion of this testimony, the Orphans’ Court took the 

matter under advisement. By Opinion and Decree entered on January 31, 

2017, the Orphans’ Court terminated both Mother and Father’s parental 

rights pursuant to 23 Pa.C.S. §2511(a)(1) and (b). 
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Mother filed this timely appeal.3 

ISSUES ON APPEAL

Mother raises the following issues for our review:

1. Whether the [Orphans’] Court erred in terminating 

Mother’s parental rights under 23 [Pa.C.S.] 

§2511(a)(1)?

2. Whether the [Orphans’] Court committed an error 

and/or abuse of discretion in finding that the 

termination of Mother’s parental rights was in [Child’s] 

best interest in accordance with 23 [Pa.C.S.] §2511(b)?

Mother’s Brief at 4.

LEGAL ANALYSIS

The standard of review in termination of parental rights cases requires 

appellate courts “to accept the findings of fact and credibility determinations 

of the trial court if they are supported by the record.” In re Adoption of 

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported, 

appellate courts review to determine if the trial court made an error of law 

or abused its discretion.” Id. We may reverse a decision based on an abuse 

of discretion only upon demonstration of “manifest unreasonableness, 

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

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

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

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

____________________________________________

3

Father did not file an appeal. 
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A.3d 251, 267 (Pa. 2013). The Orphans’ Court is free to believe all, part, or 

none of the evidence presented and is likewise free to make all credibility 

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

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination 

of parental rights, this Court need only agree with any one subsection under 

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) 

(en banc).

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

evidence that the asserted grounds for seeking the termination of parental 

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

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

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

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

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

Termination Pursuant to 2511(a)(1)

Section 2511(a)(1) provides that the trial court may terminate 

parental rights if the Petitioner establishes that for six months, the parent 

demonstrated a settled intent to relinquish a parental claim or a refusal or 

failure to perform parental duties:

a) 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 
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the petition has evidenced a settled purpose of 

relinquishing parental claim to a child or has 

refused or failed to perform parental duties.

23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as 

requiring the Petitioner to demonstrate a settled intent to relinquish a 

parental claim to a child or a refusal or failure to parent:

To satisfy the requirements of section 2511(a)(1), the moving 

party must produce clear and convincing evidence of conduct, 

sustained for at least the six months prior to the filing of the 

termination petition, which reveals a settled intent to 

relinquish parental claim to a child or a refusal or failure to 

perform parental duties.

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation omitted). 

This Court has defined “parental duties” in general as the obligation to 

affirmatively and consistently provide safety, security and stability for the 

child:

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 ... 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. 

In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation and paragraph 

divisions omitted).
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Moreover, a parent must exercise reasonable firmness in resisting 

obstacles placed in the path of maintaining the parent child relationship: 

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 or her 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. 

Id. (internal citations omitted).

And most importantly, “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 her physical and 

emotional needs.” Id.

In the instant case, the Orphans’ Court properly concluded that 

Maternal Aunt met the requirements of Section 2511(a)(1). The Orphan’s 

Court found that, in the relevant period prior to Maternal Aunt’s TPR petition, 

indeed for the majority of the Child’s young life, Mother’s actions toward 

reuniting with the Child and building a parent-child relationship with her 

have been minimal. The court explained:

Mother, too, has failed to perform her parental duties. 

Certainly, her efforts have exceeded Father’s. The Court’s 

job, though, is to evaluate her conduct based on the 

objective standards articulated above, not to determine 

whether her deficiencies are less than some other parent 

who meets the statutory criteria for termination, and that 

evaluation ends with the conclusion that termination is 

appropriate. 
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For at least a year-and-a-half now, Mother has not seen 

[Child] more than once a month. While she was 

incarcerated, visits occurred within the confines of the jail, 

prison, or boot camp facility where she was then housed. 

Once she was able to travel, the [visits] took place at 

[Maternal Aunt’s] residence and, with the exception of her 

visit this past November, lasted only a couple of hours. 

Mother did not ask for more than that. She thus had little 

opportunity to develop a nurturing, parent-child 

relationship with [Child] while they were together. Indeed, 

[Child’s] subdued demeanor in Mother’s presence indicated 

that the child was not entirely comfortable being in her 

company. She may have been familiar with Mother and 

willing, on occasion, to permit physical contact. [Child] 

clearly did not identify [Mother] as a source of love and 

comfort, though.

Orphan’s Court Opinion, 1/31/17, at 6.

Moreover, the Orphan’s Court further explained that despite the 

physical distance from the Child, Mother did not avail herself adequately of 

her ability to communicate with the Child:

Given the opportunity to further foster a relationship 

through telephone contact, moreover, Mother allowed 

[Child] to dictate the parameters of their communication. 

Mother surely recognized that her absence had put a 

distance between them and, if she did not, should have 

realized that she, not [Child], was the one who would have 

to pursue a more intimate connection. Instead of insisting 

that [Maternal Aunt] summon [Child] so that she could at 

least learn to recognize [Mother’s] voice, though, Mother 

simply accepted that [Child] did not want to talk most of 

the time and, as a result, forfeited a ready and convenient 

avenue for fostering a parent-child relationship with 

[Child]. As stated in In re Adoption of Faith M., 501 

A.2d 1105 (Pa. 1985), though, “‘communication and 

association are essential to the performance of parental 

duties,’” and because the absent parent and the child are 

at a disadvantage, the parent “‘must make special effort to 

bridge the gulf of geographic separation and to take 

affirmative steps to maintain communication and 
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association with [her] child[.]’” Id. at 1108-09 (quoting 

In re Adoption of J.R.F., 27 Somerset L.J. 298, 304 

(Pa.C.P. 1972)). See also In re G.P.-R., 851 A.2d 967, 

976 (Pa. Super. 2004) (“it is incumbent on a parent when 

separated from [her] child to maintain communication and 

association with the child. This requires an affirmative 

demonstration of parental devotion, imposing upon a 

parent to exert [her]self, to take and maintain a place of 

importance in the child’s life”). Mother made little effort in 

this case.

Orphan’s Court Opinion, 1/31/17, at 7.

Finally, the Orphan’s Court assigned little weight to Mother’s testimony 

about her future intentions and her desire to demonstrate an ability to 

parent:

As for Mother’s future intentions, our courts have long 

maintained that a parent may not preserve her parental rights 

by waiting for a more convenient time to perform her parental 

duties and responsibilities. [See, e.g.,] In re D.J.S., 737 A.2d 

283, 287 (Pa. Super. 1999). Whereas Mother has failed to take 

advantage of the opportunities that were available to her earlier, 

therefore, her purported intention to file a petition to modify 

custody in January of 2017 does not affect the Court’s 

assessment; the excuse that she knew she was not in a position 

to assume custody of [Child] carries no weight when she failed 

to avail herself of the other resources that have been available 

to her.

Although [Maternal Aunt] has had physical custody of

[Child] since October 24, 2014, moreover, Mother retained 

shared legal custody and, even if she felt that [Maternal Aunt] 

was excluding her from playing a more active role in [Child’s] 

life, [she] could have petitioned the Court to request increased 

or unsupervised visitation, more frequent telephone contact, 

medical updates, etc. As the record plainly shows, however, she 

was not that invested, and that has been the case well in excess 

of six months. Accordingly, the evidence clearly supports 

termination of Mother’s parental rights under subsection (a)(1).

Orphan’s Court Opinion, 1/31/17, at 7-8.
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Mother argues that “[t]he record does not reflect clear and convincing 

evidence of [her] settled purpose of relinquishing her parental rights or 

failure to perform parental duties[.]” Mother’s Brief at 6. According to 

Mother, despite the physical distance between her and the Child she would 

speak to the Child and “every chance [she] had she would drive to see [the 

Child].” Id. at 9. She then cites to her own testimony and asserts that 

Maternal Aunt stymied her efforts to see the Child. Mother avers that the 

contact between herself and the Child was “substantial but was hindered by 

Maternal Aunt.” Id. at 11. 

Mother further argues that her case is similar to the facts of In re 

S.S.W., 125 A.3d 413 (Pa. Super. 2015), wherein this Court excused a 

father’s failure to enforce his custodial rights through the legal system. 

Mother asserts that “she had every intention to file for custody of [the Child] 

but that ultimately Maternal Aunt beat her to the courthouse.” Mother’s 

Brief at 9-10. 

Finally, Mother asserts that the Orphan’s Court erred in failing to 

consider the “totality of the circumstances” and “instead evaluated her 

conduct based on the objective standards[.]” Id. at 10 (citing S.S.W., 

supra, and Orphan’s Court Opinion, 1/31/17, at 6). 

Our review of the record refutes Mother’s claims. We find that her 

arguments focus on the credibility of the witnesses. The record supports the 

Orphans’ Courts findings of fact and credibility determinations. We, thus, 
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accept the court’s crediting the testimony of Maternal Aunt over Mother’s 

testimony and that of her witness. In re M.G., supra. 

Moreover, her reliance on S.S.W., is inapposite. In that case, the 

father did not proceed through the legal system because of the existence of 

a protection from abuse order against him, which he genuinely believed 

prevented contact with his children. No such impediment exists in Mother’s 

case. 

Finally, we read the Orphan’s Court’s reference to “objective standards 

above” to be no more than its recognition of case law that requires each 

parent’s relationship with the Child to be considered individually to 

determine whether they are fulfilling their duties with respect to the Child’s 

physical and emotional needs for love, protection, guidance, and support.

In light of the foregoing, we conclude that the court did not abuse its 

discretion in terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 

2511(a)(1).

Termination Pursuant to Section 2511(b)

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

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

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

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

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

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

termination of parental rights would best serve the developmental, physical, 
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and emotional needs and welfare of the child.” In re: Adoption of J.M., 

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

In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court 

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

involved in the inquiry into the needs and welfare of the child.” In addition, 

the Orphans’ Court must also discern the nature and status of the parentchild bond, with utmost attention to the effect on the child of permanently 

severing that bond. Id. 

In cases where there is no evidence of a bond between a parent and a 

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

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis 

necessarily depends on the circumstances of the particular case. Id. at 763.

In this case, given the Orphan’s Court’s above comments regarding 

Mother’s minimal efforts to build a parent-child relationship, the court found 

that Mother does not share a close bond with the Child. Rather, a beneficial 

bond exists between the Child and Maternal Aunt, as well has her husband, 

who have provided for the Child’s daily needs for the majority of her life. 

The court explained:

[Maternal Aunt and her husband] have consistently 

demonstrated not only the ability, but also the willingness 

and desire to meet [the Child’s] needs, providing her with 

a loving and stable home and affording her the physical, 

emotional, and psychological support every child needs. 

As a result, [the Child] has thrived and continues to thrive 

in their care, and it is [Maternal Aunt and her husband] 

whom [the Child] recognizes as her parents-in-fact. 

Mother and Father are merely peripheral figures in [the 
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Child’s] life. They are familiar to her, and she is willing to 

let them into her circle, albeit with some reservations. 

[the Child] does not share a close bond with either, 

however, and certainly not a parent-child bond the 

severance of which would be detrimental to [the Child]. At 

the same time, the Court can, by terminating Mother and 

Father’s rights, guarantee [the Child] a future with the 

couple she has come to know as “Mom” and “Dad” and the 

continuing security of being their legal daughter for the 

rest of her life.

Orphan’s Court Opinion, 1/31/17, at 8 (footnote omitted). 

Crediting Maternal Aunt’s testimony, the Orphan’s Court further opined 

that the Child’s bond with Mother will continue to grow since Maternal Aunt 

“intends to allow both parents to be part of [the Child’s] life[.]” Id. at 8 n.3. 

Nevertheless, the court found it “worth noting, however, that [the Child] 

would not suffer either way, as the Court’s findings make clear.” Id.

Mother argues that termination of her parental rights would have a 

negative effect on the Child. She supports this assertion by citing select 

portions of Maternal Aunt’s testimony wherein she stated that the Child calls 

her “Auntie” and that Child was “clingy” to her (Mother) when they visited. 

See Mother’s Brief at 11-12. Once again, the credibility of Maternal Aunt’s 

testimony, and the weight to be given it, are matters exclusively within the 

province of the Orphans’ Court as fact finder. In re M.G., supra. As noted 

above, the Orphan’s Court credited Maternal Aunt’s testimony that the Child 

has recently referred to her and her husband as “Mom” and “Dad.” See 

Orphan’s Court Opinion at 8. We cannot disturb this determination. Thus, 

Mother’s claim fails.
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CONCLUSION

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

determination that Maternal Aunt met her statutory burden of proving by 

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

terminated pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, 

we affirm.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2017