J-S12022-19 & J-S12023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M.H., 

A MINOR

APPEAL OF: M.H., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 308 MDA 2018

Appeal from the Decree Entered January 8, 2018

In the Court of Common Pleas of Luzerne County Orphans' Court at 

No(s): A-8472

IN THE INTEREST OF: J.J.H., A 

MINOR

APPEAL OF: M.T.H., NATURAL 

FATHER

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1723 MDA 2018

Appeal from the Decree Entered January 8, 2018

In the Court of Common Pleas of Luzerne County Orphans' Court at 

No(s): A-8473

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 15, 2019

M.H. (“Father”) appeals the January 8, 2018 Decrees involuntarily 

terminating his parental rights to his minor son, J.J.H. (born January 2010), 
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and minor daughter, J.M.H. (born February 2014) (“Children”).1 Because the 

record supports the decision of the trial court, we affirm the Decrees.2

We glean the following factual and procedural history from the certified 

record. In February of 2015, Luzerne County Children and Youth Services 

(“CYS”) obtained emergency shelter care orders for Children placing them in 

CYS’s care due to domestic violence, substance abuse, and mental health

issues. Prior to Children’s removal, Father had repeatedly physically 

disciplined J.J.H., at one point breaking J.J.H.’s femur. Father served a period 

of incarceration for that abuse.

While incarcerated, Father participated in parenting classes, mental 

health treatment, and drug and alcohol evaluation and treatment. Upon 

Father’s discharge from prison, the court ordered him to undergo a 

psychological evaluation so the court could determine whether visitation was

appropriate. Father failed to appear at his initial evaluation appointment 

scheduled for May 2016. He did appear for his rescheduled psychological 

evaluation in September 2016, but failed to appear for subsequent treatment 

appointments with mental health professionals. Father took no action to 

____________________________________________

1 The court also involuntarily terminated the parental rights of Children’s 

Mother, K.L.R (“Mother”). Mother appealed those Decrees at Docket Nos. 256 

MDA 2018 and 257 MDA 2018, which we address in a separate Memorandum.

2 The Decrees themselves misstate the year as 2017, which we conclude was 

a ministerial error. As noted infra, we affirm the involuntary termination of 

Father’s parental rights but remand for the court to correct the year on the 

Decrees.
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pursue visitation with Children following the completion of the psychological 

evaluation in September 2016. 

Although Father participated in four parent-training sessions in Luzerne 

County in November 2015, he moved to Dauphin County and told CYS he 

would obtain parenting services there. However, Father took no action to 

continue parenting services in that County. 

On August 30, 2016, CYS filed Petitions to involuntarily terminate 

Father’s parental rights to Children. The court appointed Attorney Matthew 

Carmody to represent Father.3 The court conducted six hearings over seven 

months, beginning on March 30, 2017.4 CYS presented testimony from, inter 

alia, Lisa Ross, a parent educator with Concern Incorporated; Sherri Harman, 

____________________________________________

3 The court appointed both a Guardian Ad Litem and a Child Advocate to 

represent Children at the termination proceedings. Although the trial court 

appointed a Child Advocate, this was unnecessary because there was not a 

conflict between the children’s best and legal interests: J.M.H., who was three 

years old at the time of the hearings, was too young to express a preference; 

J.H.H. was seven years old and expressed his preference to numerous 

individuals, including his therapist, his caseworker, and his guardian ad litem, 

to remain in his pre-adoptive home and not to see Father, whom he 

feared. Accordingly, the failure of the Child Advocate to appear at the 

termination hearings is immaterial because the children’s legal interests were 

the same as their best interests, and the Guardian Ad Litem actively 

participated in each hearing.

4 The hearings on October 16, 2017, and October 19, 2017, also included 

proceedings in the related dependency cases pertaining to changing Children’s 

permanency goals to adoption. Father did not appeal the dependency 

dispositions.
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CYS caseworker; Sandra Turinski, J.J.H’s trauma therapist; and Alicia Singer, 

a senior clinician at Community Counseling Service. Each testified about 

J.J.H.’s fear of Father, Father’s failure to complete mental health treatment 

and parent education classes, and Children’s thriving in their foster home 

where they have lived since February 2015 and which is a pre-adoptive 

resource.

On January 8, 2018, the court issued Decrees terminating Father’s 

parental rights to Children pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and 

(b). Thereafter, Father filed Notices of Appeal and concise statements of 

errors complained of on appeal.5

ISSUES ON APPEAL

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5 On February 9, 2018, new counsel for Father, Attorney Keith Hunter, filed a 

Notice of Appeal and concise statement of errors complained of on appeal with 

respect to the Decree involuntarily terminating Father’s parental rights only 

as to J.M.H. Attorney Hunter then filed a Motion to file notice of appeal nunc 

pro tunc, asserting that the appeal with respect to J.M.H. was untimely, and 

requesting permission to appeal nunc pro tunc. The trial court never acted on 

this Motion. Subsequently, the court appointed substitute counsel for Father, 

Attorney Thomas Sharkey, who filed a Motion to proceed nunc pro tunc

regarding the Decree involuntarily terminating Father’s parental rights to 

J.J.H. By order dated October 15, 2018, the trial court granted the Motion as 

to J.J.H. only. On October 18, 2018, Father filed a Notice of Appeal and 

concise statement of errors complained of on appeal with respect to the 

Decree terminating his parental rights to J.J.H.

We observe that the trial court’s docket entries do not comply with the rules 

regarding entry of orders. See Pa.R.A.P. 301(a)(1); Pa.R.A.P. 108(b); 

Pa.R.C.P. 236(b). Due to this breakdown in the court’s operations, the appeal 

period was technically not triggered. Accordingly, in the interests of judicial 

economy, we will deem that which should have been done as done, and 

address both appeals as timely. 
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Father raises the following issues on appeal:

1. Did the trial court abuse its discretion, commit an error of law 

and/or was there insufficient evidentiary support in terminating 

the parental rights of natural father with respect to [Children]

pursuant to 23 Pa.C.S.A. § 2511 (a)(2), (5)[, and] (8)?

2. Did the trial court abuse its discretion, commit an error of law 

and/or was there insufficient evidentiary support in 

determining that the best interests of [Children] would be 

served by terminating Father’s parental rights?

Father’s Brief at 3 (unnecessary capitalization and suggested answers 

omitted).

LEGAL ANALYSIS

In reviewing cases involuntarily terminating parental rights, appellate 

courts must accept the findings of fact and credibility determinations of the 

trial court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 

2013). “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. 

(citations omitted). Where the hearing court's findings are supported by 

competent evidence of record, we must affirm the hearing court even though 

the record could support an opposite result. In re Adoption of Atencio, 650 

A.2d 1064, 1066 (Pa. 1994).

We are bound by the findings of the trial court which have 

adequate support in the record so long as the findings do 

not evidence capricious disregard for competent and 

credible evidence. The trial 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. Though we are not bound by the trial court's 
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inferences and deductions, we may reject its conclusions 

only if they involve errors of law or are clearly unreasonable 

in light of the trial court's sustainable findings.

In re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citations omitted). 

We defer to the trial court that often has “first-hand observations of the 

parties spanning multiple hearings.” In re T.S.M., supra at 267 (citations 

and quotation marks omitted). Importantly, “[t]he court cannot and will not 

subordinate indefinitely a child's need for permanence and stability to a 

parent's claims of progress and hope for the future. Indeed, we work under 

statutory and case law that contemplates only a short period of time . . . in 

which to complete the process of either reunification or adoption for a child 

who has been placed in foster care.” In re Adoption of R.J.S., 901 A.2d 

502, 513 (Pa. Super. 2006) (emphasis in original; citations omitted). 

In addressing Petitions to Involuntarily Terminate Parental Rights, the 

Adoption Act6requires courts to conduct a bifurcated analysis. Pursuant to 

Section 2511, the court first focuses on the conduct of the parent. If the party 

seeking termination presents clear and convincing evidence that the parent’s 

conduct meets one of the grounds for termination set forth in Section 2511(a), 

then the court will analyze whether termination of parental rights will meet 

the needs and welfare of the child, i.e., the best interests of the child, as 

provided in Section 2511(b). 23 Pa.C.S. § 2511(a) and (b); In re L.M., 923 

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6 23 Pa.C.S. §§ 2101-2938.
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A.2d 505, 511 (Pa. Super. 2007). “One major aspect of the needs and welfare 

analysis concerns the nature and status of the emotional bond between parent 

and child, with close attention paid to the effect on the child of permanently 

severing any such bond.” Id. at 511 (citations omitted). 

While the trial court here found that CYS met its burden of proof under 

23 Pa.C.S. § 2511(a)(2), (5), and (8), as well as (b), we need only agree with 

its decision as to any one subsection of Section 2511(a), as well as 

Section 2511(b), in order to affirm the termination of parental rights. See In 

re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we will 

focus our analysis on Section 2511(a)(2) and (b), which provides 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:

* * *

(2) The repeated and continued incapacity, abuse, neglect or 

refusal of the parent has caused the child to be without 

essential parental care, control or subsistence necessary for 

his physical or mental well-being and the conditions and 

causes of the incapacity, abuse, neglect or refusal cannot or 

will not be remedied by the parent.

* * *

(b) Other considerations.--The court in terminating the rights 

of a parent shall give primary consideration to the developmental, 

physical and emotional needs and welfare of the child. The rights 

of a parent shall not be terminated solely on the basis of 

environmental factors such as inadequate housing, furnishings, 

income, clothing and medical care if found to be beyond the 

control of the parent. With respect to any petition filed pursuant 
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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. § 2511(a)(2) and (b).

Termination Pursuant to Section 2511(a)(2)

We first conclude that the trial court properly exercised its discretion by 

terminating Father’s parental rights pursuant to Section 2511(a)(2).

Our Supreme Court set forth our inquiry under Section 2511(a)(2) as 

follows:

As stated above, § 2511(a)(2) provides statutory grounds 

for termination of parental rights where it is demonstrated 

by clear and convincing evidence that “[t]he 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.” . . . 

 This Court has addressed incapacity sufficient for 

termination under § 2511(a)(2): 

 A decision to terminate parental rights, never to be 

made lightly or without a sense of compassion for the 

parent, can seldom be more difficult than when termination 

is based upon parental incapacity. The legislature, however, 

in enacting the 1970 Adoption Act, concluded that a parent 

who is incapable of performing parental duties is just as 

parentally unfit as one who refuses to perform the duties. 

In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).

To satisfy the requirements of Section 2511(a)(2), the moving party 

must produce clear and convincing evidence regarding the following elements: 
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(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such 

incapacity, abuse, neglect or refusal caused the child to be without essential 

parental care, control or subsistence necessary for his physical or mental wellbeing; and (3) the causes of the incapacity, abuse, neglect or refusal cannot 

or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 

(Pa. Super. 2003). The grounds for termination of parental rights under 

Section 2511(a)(2), due to parental incapacity that cannot be remedied, are 

not limited to affirmative misconduct; to the contrary, those grounds may 

include acts of refusal as well as incapacity to perform parental duties. In re 

A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

This Court has long recognized that a parent is required to make diligent 

efforts towards the reasonably prompt assumption of full parental 

responsibilities. Id. A parent’s vow to cooperate, after a long period of 

uncooperativeness regarding the necessity or availability of services, may 

properly be rejected as untimely or disingenuous. Id. at 340.

Father contends that there was insufficient evidence to support 

termination of his parental rights pursuant to Section 2511(a)(2) because the 

testimony regarding his mental health was limited, and he actively 

participated in a parenting program until it was cancelled due to his move to 

Dauphin County. Father’s Brief, at 7-8. Father asserts he was willing to 

continue the parenting program, and a “review of the record reveals [CYS] did 

not present any substantive evidence regarding [Father]’s parenting abilities 
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beyond the testimony of Ms. Ross who was only able to work with [Father] for 

four (4) sessions.”

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 Id. at 8. Father’s argument misses the point.

The trial court addressed the sufficiency of the evidence supporting 

termination pursuant to Section 2511(a)(2) as follows:

It is clear from the testimony of witnesses and evidence 

presented that Father has been unable to resolve his mental 

health issues and parenting issues. Although Father 

completed a mental health evaluation and although Father 

was initially compliant with the parenting services, this 

[c]ourt finds that being partially compliant is not sufficient 

in this case. This is a case where Father broke his child’s 

leg and further imposed harsh discipline upon the child, 

J.J.H., causing the child to suffer significant trauma as a 

result of his injury. Although Father was incarcerated as a 

result of his actions, Father, nevertheless, is required to 

complete the court ordered services in order to insure that 

Father remedied the conditions that gave rise to the 

placement of the children. The [c]ourt finds that Father has 

not been able to remedy the conditions that gave rise to the 

placement of the children.

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7 Father also argues the court erroneously relied on transcripts from the goal 

change hearings. Father’s Brief at 7-8. Although Father raises this argument 

twice, the essence of his argument is that he “contends that the court 

erroneously relied on that testimony as it was part of the Dependency Docket 

and was not incorporated into the Termination of Parental Rights Docket.” Id.

at 7. This argument is incorrect because the hearings at issue occurred after 

CYS filed the termination petitions. Moreover, Father includes no legal 

authority for his assertion that the trial court could not review transcripts from 

the goal change hearings on October 16, 2017 and October 19, 2017 that are 

included in the record. Because Father fails to develop this argument, it is 

waived. See In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010) (reiterating 

that “where an appellate brief fails to provide any discussion of a claim with 

citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived.” (citation 

omitted)).
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Given the overwhelming evidence and testimony, it is clear that 

Father has received and/or has been offered extensive services 

over the years and he failed to complete the services. . . . At this 

juncture, the children’s right to have proper parenting in 

fulfillment of their potential in a permanent, healthy, safe 

environment outweighs Father’s interest. 

Trial Court Opinion, 11/19/18, at 13-14.

Our review of the record supports the trial court’s findings. Father failed 

to make any material progress towards reunification following Children’s 

removal in February of 2015. CYS offered Father parenting services, mental 

health services, and drug and alcohol evaluation and treatment. Although 

Father completed drug and alcohol treatment, Father did not complete his 

mental health or parenting services. While Father briefly participated in 

parenting classes, he failed to complete them, and failed to pursue any mental 

health treatment. In the intervening years, Father has not had any visitation 

with Children, and there is no evidence he made any effort towards having 

visitation, or even contact, with Children. Children have now been in care for 

four years. 

As this Court has stated, “a child’s life cannot be held in abeyance while 

a parent attempts to attain the maturity necessary to assume parenting 

responsibilities. The court cannot and will not subordinate indefinitely a child’s 

need for permanence and stability to a parent’s claims of progress and hope 

for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 

2006). Having reviewed the record, we conclude that it supports the findings 

of the trial court that Father has not provided Children with the essential 
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parental care, control and subsistence necessary for their mental and physical 

well-being, and that Father is unable to remedy the causes of his parental

incapacity, neglect or refusal any time in the foreseeable future. Thus, Father 

is not entitled to relief.

Termination pursuant to Section 2511(b)

With respect to Section 2511(b), we consider whether termination of 

parental rights will best serve Children’s developmental, physical, and 

emotional needs and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa. 

super. 2010). “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.” Id. “[A] parent’s basic 

constitutional right to the custody and rearing of . . . her child is converted, 

upon the failure to fulfill . . . 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 847, 856 (Pa. Super. 

2004) (internal citations omitted).

It is sufficient for the trial court to rely on the opinions of social workers 

and caseworkers when evaluating the impact that termination of parental 

rights will have on a child. In re Z.P., supra at 1121. The trial court may 

consider intangibles, such as the love, comfort, security, and stability the child 

might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa. 
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Super. 2011). Ultimately, the concern is the needs and welfare of a child. In 

re Z.P., supra at 1121.

The trial court may equally emphasize the safety needs of the child and 

may consider intangibles, such as the love, comfort, security, and stability the 

child might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 

(Pa. Super. 2011). Where there is no evidence of a bond between the parent 

and child, it is reasonable to infer that no bond exists. See In re K.Z.S., 946 

A.2d 753, 763 (Pa. Super. 2008). 

Father argues the trial court erred in its analysis of Section 2511(b) 

because J.J.H.’s trauma therapist testified that J.J.H. was still in a course of 

treatment and that, in some cases, “there is eventual growth in the 

relationship between father and child.” Father’s Brief at 10. Further, Father 

asserts that the testimony of the CYS caseworker did not address the status 

and nature of the parent/child bond between Father and Children. Id. at 10-

11. We disagree.

The trial court observed that “[CYS] presented credible testimony 

regarding the needs, welfare and best interest of [Children] in relation to their 

Father[,]” and engaged in a lengthy analysis of the testimony presented by 

CYS. Trial Court Opinion, 11/19/18, at 15-16. The court found credible the 

testimony that J.J.H. is extremely fearful of Father, has not seen him since 

February 2015, and it would not be in J.J.H.’s best interest to have any contact 

with Father. Id. at 11-12. The court also noted that J.M.H. has been with 
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Foster Parents since she was one year old and has not seen Father since 

February 2015. In light of this evidence of a complete lack of contact with 

Father since February 2015, it was reasonable for the court to infer that there 

is no bond between Father and Children, the severance of which would cause 

detriment to Children’s well-being. Although J.J.H.’s trauma therapist

acknowledged there could be future growth in the relationship between J.J.H. 

and Father, at the time of the termination hearings, the evidence found 

credible by the trial court was that the relationship continued to be unhealthy 

and detrimental to J.J.H.

Finally, the court relied on Ms. Hartman’s testimony that terminating 

Father’s parental rights would be positive for Children, because it would allow 

them to achieve permanency through adoption into their loving and caring 

foster family. Id. at 16. 

Our review of the record supports the trial court’s determination and we 

discern no abuse of discretion or error law. Children have no relationship with 

Father due to Father’s failure to complete the mental health and parenting 

services offered to him starting in February 2015. We, thus, affirm the court’s 

determination that involuntary termination of Father’s parental rights is in the 

best interests of Children. See T.S.M., 71 A.3d at 269 (stressing the need to 

expedite the placement of dependent children “in permanent, safe, stable, and 

loving homes.”).
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Decrees affirmed. Cases remanded for the ministerial correction of the 

year on the Decrees from 2017 to 2018. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/2019