J-S79042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.S.D., Jr., A MINOR

APPEAL OF: J.S.D., FATHER

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1378 MDA 2018

Appeal from the Order Entered July 19, 2018

in the Court of Common Pleas of York County 

Orphans' Court at No(s): 2018-0012a

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019

J.S.D. (“Father”) appeals from the Order granting the Petition filed by 

J.F. and C.F. (“Petitioners”), a married couple, seeking to involuntarily 

terminate Father’s parental rights to his minor child, J.S.D., Jr. (“Child”), a 

male born in January 2017, pursuant to the Adoption Act, 23 Pa.C.S.A.

§ 2511(a)(1), (5), and (b), so that Petitioners may adopt Child. We affirm.

On April 12, 2018, Petitioners filed a Petition for Adoption and a Petition 

for the involuntary termination of Father’s parental rights to Child (“ITPR 
J-S79042-18

- 2 -

Petition”).

1

 On July 16, 2018, the Orphans’ Court conducted a hearing2 on the 

ITPR Petition, at which Petitioners were present with their counsel. Child’s 

legal counsel, Jennifer Galloway, Esquire (“Attorney Galloway”), was present

on Child’s behalf.

3

 Father, who was incarcerated at Dauphin County prison,

was present with his court-appointed counsel. 

____________________________________________

1 The Petition also sought to terminate M.L.’s (“Mother”) parental rights to 

Child. On July 19, 2018, Mother filed a Consent to Adoption, and Petitioners 

filed a Petition to Confirm Consent to Adoption. Mother is not a party to the 

instant appeal.

2 At a previously-scheduled hearing on June 25, 2018, Mother indicated that 

she would consent to Child’s adoption. The Orphans’ Court thereafter 

continued the hearing.

3 Although Attorney Galloway identifies herself as Child’s court-appointed 

Guardian ad litem (“GAL”) in her appellate brief, from the record, it appears 

that Attorney Galloway served as Child’s legal counsel during the hearing. 

See generally In re Adoption of L.B.M., 161 A.3d 172, 179-80 (Pa. 2017) 

(plurality) (requiring the appointment of separate legal counsel, in addition to 

a GAL in contested involuntary termination proceedings). However, a majority 

of the L.B.M. Court concluded that counsel may serve both as the GAL, 

representing the child’s best interests, and as the child’s counsel, representing 

the child’s legal interests, as long as there is no conflict between the child’s 

legal and best interests. Id. at 183-93; see also In re D.L.B., 166 A.3d 322, 

329 (Pa. Super. 2017) (stating that “separate representation would be 

required only if the child’s best interest and legal interests were somehow in 

conflict.”). Here, Child was only one-and-a-half years old at the time of the 

hearing, and therefore unable to express his preferred outcome. See In re 

T.S., 192 A.3d 1030, 1092 (Pa. 2018) (concluding that “if the preferred 

outcome of a child is incapable of ascertainment because the child is very 

young and pre-verbal, there can be no conflict between the child’s legal 

interests and his or her best interests.”). Accordingly, we conclude that there 

is no conflict between Child’s legal interests and best interests, and the 

dictates of L.B.M. are satisfied.
J-S79042-18

- 3 -

In its Findings of Fact, the Orphans’ Court set forth the factual 

background and procedural history of this appeal as follows:

1. [] Child was born in January 2017, and is one[-]and[-]a[-]half 

(11⁄2) years old.

2. []Father has been incarcerated during [] Child’s lifetime as 

follows:[FN1]

a. Sometime prior to January 1, 2017 to January 19, 2017. 

...

b. Sometime in July 2017 to September 11, 2017. ...

c. April 12, 2018 to current. ...

[FN1] The [c]ourt takes judicial notice of [] [F]ather’s 

criminal record from the Common Pleas Courts Docket

Sheets on the Unified Judicial System website.

3. On August 9, 2017, the Court of Common Pleas of the 41st

Judicial District of Pennsylvania, Perry County Branch, the 

Honorable Kenneth A. Mummah presiding, entered an Order 

[granting L.D. (“Paternal Grandmother”) sole legal and physical 

custody of Child.]

4. [] Father had only one possible contact with [] [C]hild within 

the six months prior to the filing of the [ITPR Petition], that being[]

a several[-]hour visit with [] [C]hild at the home of Paternal 

Grandmother.[FN2]

[FN2] Throughout [] [F]ather’s testimony, he was 

unable to provide dates credibly. For instance, he 

initially claimed he had custody of [] Child until midOctober 2017 and had last seen [] Child in 2018, the 

latter testimony being at complete variance with the 

testimony of the [P]etitioner, whose testimony the 

[c]ourt finds to be credible. After being confronted 

with the conflict during cross-examination, [] [F]ather 

modified his testimony that such contact was 

sometime after his release from incarceration, which 

would have been on September 11, 2017, but prior to 
J-S79042-18

- 4 -

Thanksgiving, November 23, 2017, without further 

specificity.

5. Paternal Grandmother had sole custody of [] Child from July 

2017[,] to January 12, 201[8]. On December 27, 2017, Paternal 

Grandmother and Petitioners initiated the process of transferring 

custody of [] Child to the Petitioners, finalizing such transfer on 

January 12, 2018, by Paternal Grandmother executing 

guardianship papers.

6. [] Father claims that[,] upon his incarceration in July 2017, he 

provided Paternal Grandmother with access to his bank account, 

containing approximately $16,000.00, for her use to support []

Child, which funds [] Father claims were misused by Paternal

Grandmother.

7. [] Father has no current income or any appreciable assets.

8. [] Father claims that he was unaware that Paternal 

Grandmother transferred custody of [] Child until being served 

with a copy of the [ITPR Petition].

9. At all times relevant, [] Father was able to contact Paternal 

Grandmother; [sic] knowing her address and telephone number.

10. [] Father claims Paternal Grandmother was unwilling to allow 

him to have contact with [] Child after the entry of Judge 

Mummah’s Order dated August 9, 2017.[FN3]

[FN3] Apparently, other than the several[-]hour visit.

11. []Father considered contesting Judge Mummah’s Order dated 

August 9, 2017, but ultimately concluded that he could not afford 

to do so.

12. [] Father contends his recent criminal record is the product of 

a substance abuse problem[;] he has participated in prison 

treatment programs in an effort to cure this problem[;] and he 

has been clean for 7-8 months.

13. In contrast, [Father pled guilty to Use/Possession of Drug 

Paraphernalia on June 11, 2018]. 
J-S79042-18

- 5 -

14. The [c]ourt finds that [] Father continues to suffer from his 

substance abuse problem and has not been able to reach a state 

of true recovery from its ill effects at this time.

15. [] Father contends that he will be released from incarceration 

sometime in September 2018.

16. In contrast, [] Father’s criminal record reflects that:

a) As noted above, he pled guilty to the Use/Possession of 

Drug Paraphernalia with a penalty being assessed. ... The 

penalty assessed is unknown, but was filed of record on 

the same day as the hearing, July 16, 2018.

b) On August 20, 2018, a Revocation Hearing [wa]s 

scheduled to be conducted by the Court of Common Pleas 

of Dauphin County, the Honorable William T. Tully 

presiding; presumably to determine whether [] Father 

[would admit] to violating his probation. ...

Orphans’ Court Order, 7/19/18, at 1-5 (footnotes in original).

The Orphans’ Court granted the [ITPR Petition] on July 19, 2018. Father 

timely filed a Notice of Appeal and Concise Statement of errors complained of 

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

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

I. Whether the [Orphans’ C]ourt erred as a matter of law and 

abused its discretion by granting the request of Petitioners to 

terminate [Father’s] parental rights when Petitioners failed to 

present clear and convincing evidence under 23 Pa.C.S.A. [§]

2511(a)(1) and (5)?
J-S79042-18

- 6 -

Father’s Brief at 5.

4

Father argues that there was insufficient evidence presented at the 

termination hearing to show that the requirements of section 2511(a)(1) and 

(5) were met by clear and convincing evidence. See id. at 12-19. Father 

argues that he provided Paternal Grandmother almost $16,000.00 for Child’s 

care. Id. at 15. Father acknowledges that “he was unable to stay in contact 

with [Child,]” but asserts that Paternal Grandmother prevented him from 

having any contact with Child, including telephone calls. Id. at 16. Father 

urges that the trial court failed to give sufficient weight to Child’s best interests 

and the bond that may have existed between Child and Father. Id. at 18-19. 

In reviewing an appeal from an order terminating parental rights, we 

adhere to the following standard: 

[A]ppellate courts must apply an abuse of discretion standard 

when considering a trial court’s determination of a petition for 

termination of parental rights. As in dependency cases, our 

standard of review requires an appellate court to accept the 

findings of fact and credibility determinations of the trial court if 

____________________________________________

4 While Father stated his issue somewhat differently in his Concise Statement, 

we find it sufficiently preserved for this Court’s review. We additionally note 

that Father waived any challenge to the sufficiency of the evidence to support 

the termination of his parental rights under section 2511(b), as he did not 

challenge section 2511(b) in either his Concise Statement or the Statement 

of Questions Involved portion of his brief. See Krebs v. United Ref. Co. of 

Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives 

issues that are not raised in both his concise statement of errors complained 

of on appeal and the statement of questions involved in his brief on appeal). 

Nevertheless, we will consider the sufficiency of the evidence supporting 

termination under section 2511(b), as Father discussed section 2511(b) in the 

Argument section of his brief, and the Orphans’ Court considered Child’s best 

interest in its Order.
J-S79042-18

- 7 -

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. As has been often 

stated, an abuse of discretion does not result merely because the 

reviewing court might have reached a different conclusion. 

Instead, a decision may be reversed for an abuse of discretion 

only upon demonstration of manifest unreasonableness, partiality, 

prejudice, bias, or ill-will. 

[U]nlike trial courts, appellate courts are not equipped to make 

the fact-specific determinations on a cold record, where the trial 

judges are observing the parties during the relevant hearing and 

often presiding over numerous other hearings regarding the child 

and parents. Therefore, even where the facts could support an 

opposite result, as is often the case in dependency and 

termination cases, an appellate court must resist the urge to 

second guess the trial court and impose its own credibility 

determinations and judgment; instead we must defer to the trial 

judges so long as the factual findings are supported by the record 

and the court’s legal conclusions are not the result of an error of 

law or an abuse of discretion. 

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations 

omitted).

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). “The 

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. (citation omitted).

This Court may affirm the trial court’s decision regarding the termination 

of parental rights with regard to any one subsection of section 2511(a), along 

with consideration of subsection 2511(b). See In re B.L.W., 843 A.2d 380, 
J-S79042-18

- 8 -

384 (Pa. Super. 2004) (en banc). Here, we will consider subsections

2511(a)(1) and (b), which provide as follows:

§ 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 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), (b).

To terminate parental rights pursuant to Section 2511(a)(1), the person 

or agency seeking termination must demonstrate through clear and 

convincing evidence that, for a period of at least six months prior to the filing 

of the petition, the parent’s conduct demonstrates a settled purpose to 

relinquish parental rights or that the parent has refused or failed to perform 
J-S79042-18

- 9 -

parental duties. In Re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 

2003).

Once the evidence establishes a failure to perform parental duties 

or a settled purpose of relinquishing parental rights, the court 

must engage in three lines of inquiry: (1) the parent’s explanation 

for his or her conduct; (2) the post-abandonment contact between 

parent and child; and (3) consideration of the effect of termination 

of parental rights on the child pursuant to Section 2511(b). 

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

Additionally, in regard to incarceration and 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 his

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 his ability, even in difficult circumstances.

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

omitted). “Parental rights are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental duties while others provide the child 

with his or her physical and emotional needs.” In re K.Z.S., 946 A.2d 753, 

759 (Pa. Super. 2008) (citations omitted).

The focus in terminating parental rights under section 2511(a) is on the 

parent, but it is on the child pursuant to section 2511(b). See In re Adoption 

of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the 

evidence in support of termination under section 2511(b), our Supreme Court 

has stated as follows:
J-S79042-18

- 10 -

[I]f the grounds for termination under subsection (a) are met, a

court “shall give primary consideration to the developmental, 

physical and emotional needs and welfare of the child.” 23 

Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the 

child have been properly interpreted to include “[i]ntangibles such 

as love, comfort, security, and stability.” In re K.M., 53 A.3d 

781, 791 (Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121, 

620 A.2d 481, 485 (Pa. 1993)], this Court held that the 

determination of the child’s “needs and welfare” requires 

consideration of the emotional bonds between the parent and 

child. The “utmost attention” should be paid to discerning the 

effect on the child of permanently severing the parental bond. In 

re K.M., 53 A.3d at 791.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

When evaluating a parental bond, “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.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal 

citations omitted). Although it is often wise to have a bonding evaluation and 

make it part of the certified record, “[t]here are some instances ... where direct 

observation of the interaction between the parent and the child is not 

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d 

753, 762 (Pa. Super. 2008).

Further, 

concluding a child has a beneficial bond with a parent simply 

because the child harbors affection for the parent is not only 

dangerous, it is logically unsound. If a child’s feelings were the 

dispositive factor in the bonding analysis, the analysis would be 

reduced to an exercise in semantics as it is the rare child who, 

after being subject to neglect and abuse, is able to sift through 

the emotional wreckage and completely disavow a parent .... Nor 
J-S79042-18

- 11 -

are we of the opinion that the biological connection between [the 

parent] and the children is sufficient in of itself, or when 

considered in connection with a child’s feeling toward a parent, to 

establish a de facto beneficial bond exists. The psychological 

aspect of parenthood is more important in terms of the 

development of the child and [his or her] mental and emotional 

health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and 

quotation marks omitted). Thus, the court may emphasize the safety needs 

of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary 

termination of parental rights, despite existence of some bond, where 

placement with mother would be contrary to child’s best interests). “[A] 

parent’s basic constitutional right to the custody and rearing of his or her 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 [the child’s] potential in a 

permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d at 856 

(internal citations omitted).

In its Order, the Orphans’ Court set forth the following Conclusions of 

Law regarding its decision to terminate Father’s parental rights pursuant to 

subsection 2511(a)(1):

1. Other than a single visit, [] Father has had no contact with []

Child; both during and for periods he was released from 

incarceration[,] for a period in excess of six (6) months.

2. [] Father did not exercise reasonable firmness in resisting 

obstacles created by his incarceration and Judge Mummah’s Order 

dated August 9, 2017, nor did he employ available resources to 

preserve the parental relationship with [] Child.
J-S79042-18

- 12 -

3. [] Father took no steps to use the funds in his bank account to 

retain legal counsel to contest [the Order granting Paternal 

Grandmother sole physical and legal custody of Child].

4. Since at least July 2017, [] Father has not communicated with 

[] Child directly via telephone, mail, or any other means.

5. There is no evidence that [] Father sent [] [C]hild any presents 

or cards for Christmas 2017, or in celebration of [] [C]hild’s first 

birthday in January 2018.

6. [] Father’s single visit with [] Child is not sufficient to stop the 

six-month period from running under section 2511(a). Since []

Father otherwise refused or failed to perform his parental duties 

for six months, the requirements of [section] 2511(a)(1) are met.

...

8. For approximately ten months, [] Father failed to fulfill his 

parental obligations to [] Child, and this lack of concern for [] Child 

is not negated by a singular visit. ... [] Father has clearly not used 

the resources available to him to maintain a place of importance 

in [] Child’s life. Since August 2017, [] Father consistently has 

not maintained contact with [] Child, nor has he used the means 

available to him to attempt to overcome any obstacles impeding 

his relationship [] [Child].

...

11. With respect to Section 2511(a)(1), the [c]ourt, therefore, 

concludes that [] Father, by clear and convincing evidence of 

conduct continuing for a period of at least six months immediately 

proceedings the filing of the petition[,] evidenced a settled 

purpose of relinquishing his parental claim to [] Child and refused 

and failed to perform his parental duties.

Orphans’ Court Order, 7/9/18, at 6-8; see also 1925(a) Opinion, 8/22/18, at 

3-4 (emphasizing that Father only visited Child once within six months prior 

to the filing of the ITPR Petition; Father had no contact with Child during the 
J-S79042-18

- 13 -

period of time he was not in jail; and Father did not otherwise attempt to 

contact Child). 

Additionally, the Orphans’ Court considered the best interest of Child 

pursuant to subsection 2511(b), in relevant part, as follows:

27. The [c]ourt concludes that no bond exists between [] Father 

and Child; such bond may have begun formulating during the first 

six (6) months of [] Child’s life, but it has been severed within the 

last year.

28. The [c]ourt specifically considered whether [] Child has 

developed a meaningful bond with [] Petitioners.

29. The [c]ourt concludes that, at this point, [] Child has 

established an emotional parent-child bond with Petitioners[,] 

who have provided stability, safety, and security, regularly and 

consistently, to [] Child over an extended period of time; that is, 

since early January 2018.

30. Based upon ... the foregoing, the [c]ourt concludes that it is in 

the best interest of [] Child to terminate the parental rights of []

Father.

Orphans’ Court Order, 7/19/18, at 13.

Our review discloses that the Orphans’ Court’s decision to terminate 

Father’s parental rights under section 2511(a)(1) and (b) is supported by 

competent, clear and convincing evidence. See In re Adoption of S.P., 47 

A.3d at 826-27. We discern no abuse of discretion by the Orphans’ Court in 

finding that no bond between Father and Child exists, and that Child has 

instead established a bond with Petitioners. 
J-S79042-18

- 14 -

Based upon the foregoing, we affirm the Orphans’ Court’s termination 

of Father’s parental rights to Child pursuant to subsections 2511(a)(1) and 

(b).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/16/2019