J-A30024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.P., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.S., MOTHER

No. 1334 MDA 2016

Appeal from the Decree of July 3, 2016

In the Court of Common Pleas of Huntingdon County

Orphans' Court at No(s): CP-31-OC-12-2016

BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 19, 2016

Appellant, A.S., appeals from the decree that was entered on June 23, 

2016 and made final on July 3, 2016, which involuntarily terminated 

Appellant’s parental rights to her minor child, A.P. (born in October 2013) 

(hereinafter “Child”). We affirm.

On March 18, 2016, Huntingdon County Children and Youth Services 

Agency (hereinafter “the Agency”), filed a petition for the involuntary 

termination of Appellant’s parental rights (hereinafter “TPR Petition”).1 As 

the Agency averred, on August 15, 2014, the trial court entered an order 

____________________________________________

1 On that same date, the Agency filed a petition to involuntarily terminate 

the parental rights of Child’s natural father, Z.P. (hereinafter “Father”). 

Father was served with the termination petition and the trial court appointed 

counsel to represent Father; however, Father did not appear at the 

termination hearing. The trial court terminated Father’s parental rights to 

Child by decree entered on June 23, 2016 and made final on July 3, 2016. 

Father has not filed a notice of appeal from the trial court’s termination 

order and Father is not a party to the current appeal.
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finding that Child was dependent and awarding the Agency legal and 

physical custody of Child. The Agency averred:

At the time [Child] was originally placed, [Appellant] had 

overdosed on heroin and was subsequently arrested for 

burglary and placed in jail. Since that time, [Appellant] has 

either remained in jail or in a halfway house in compliance 

with sentences she received through the criminal justice 

system. [Appellant] absconded from the halfway house on 

February 10, 2016. At the time of this petition, a warrant 

for her arrest has been issued. . . . [H]er present 

whereabouts are unknown.

TPR Petition, 3/18/16, at ¶¶ 3 and 8 (some internal capitalization omitted).

Within the TPR Petition, the Agency claimed that: Appellant was 

incapable or unwilling to care for Child; Child “has been in placement in 

excess of [12] months;” Appellant has “made little, if any progress in 

remedying the issues and concerns which led to [Child’s] placement on 

August 15, 2014;” and, “[t]he conditions which led to the removal or 

placement of [Child] continue to exist and termination of [Appellant’s] 

parental rights would best serve the needs and welfare of [Child].” Id. at 

¶¶ 10-26. The Agency sought termination of Appellant’s parental rights 

under 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8). Id. at ¶¶ 13-26.

The trial court appointed counsel to represent Appellant and then 

scheduled a termination of parental rights hearing for June 23, 2016. 

However, although Appellant’s counsel appeared for the June 23, 2016 

hearing, Appellant did not personally appear at the hearing. 
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During the hearing, the Agency presented the testimony of Agency 

caseworker Rose Sanders, who was assigned Child’s case. As Ms. Sanders 

testified:

The case came into us on intake on June 2, 2014[,] . . . that 

there were concerns that [Appellant] was hiding from the 

caseworkers and didn’t want to do drug screens. There 

were concerns that she was using heroin. She was 

neglecting [Child]. There [were] reports that [Child] was 

crying all the time and had diaper rash and that there were 

concerns with home conditions.

. . .

On July 21st of 2014[, Appellant] overdosed . . . on heroin.

N.T., TPR Hearing, 6/23/16, at 4.

Ms. Sanders testified that, after Appellant’s overdose, “[Appellant] was 

arrested for theft[; s]he was caught in the act and [the police] notified [the 

Agency] that they were arresting her.” Id. at 5. As a result, on August 15, 

2014, the trial court declared Child dependent and placed Child in a foster 

home. Id. at 4-5. 

On August 27, 2014, Child was transferred from the foster home to 

the care of Father. Ms. Sanders testified:

After [Child] was placed with [Father], there were continued 

concerns of him testing positive for drugs but he was living 

with his parents at the time, so there were other caregivers. 

. . .

[O]n December 18[,] 2014, [Father] got kicked out of his 

parents’ home and he was homeless. So on December 19, 

2014, the Agency filed an EPC and we had to chase [Father] 

all over town for about eight hours until we found him and 

[Child] in the middle of the night in the cold.
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. . .

[Father] was caught by the Mount Union Police and the 

State Police [were] involved. They found him walking down 

the street carrying [Child] in freezing weather at like 12:30 

at night. . . . [Child] was dressed but he was dirty. He was 

hungry, he was thirsty and he was freezing. His face was 

red, beet red, from the cold.

Id. at 5-6 and 22.

Moreover, Ms. Sanders testified that the authorities had to “chase[] 

[Father] all over town” even though Father knew that the Agency was 

looking for him. Id. at 6. According to Ms. Sanders: “[Father] was in 

communication with us on and off on cell phone and refused to meet with us 

and refused to talk to us and meet with us face-to-face to discuss what we 

were doing.” Id.

On December 19, 2014, the Agency placed Child in E.H.’s foster home. 

Ms. Sanders testified that: Child has remained in E.H.’s home continuously 

since placement; E.H.’s home is pre-adoptive; Child is doing very well in 

E.H.’s home and is “part of their family;” Child refers to E.H. as “mom” and 

“looks at them as his family;” and, “an adoption and a permanent home for 

[Child would] be in [Child’s] best interests.” Id. at 6, 10, and 29.

Ms. Sanders testified that Appellant was incarcerated at the time Child 

was placed in E.H.’s home. Id. at 7. However, on August 12, 2015, 

Appellant was released to a Harrisburg halfway house and “the Agency 
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beg[a]n working with her to have visits [with Child] at the halfway house.” 

Id. at 8. 

Ms. Sanders testified that, from August 12, 2015 until October 2015, 

Appellant had two failed tests for alcohol at the halfway house and, as a 

result, Appellant was not permitted to leave the halfway house to visit Child. 

Id. at 11. Therefore, Ms. Sanders testified, the Agency twice traveled from 

Huntingdon to Harrisburg, with Child, so that Appellant could visit with Child. 

Id. However, Ms. Sanders testified:

[the last visit] didn’t go too well. It ended sooner than 

expected because [Appellant] had a breakdown of sorts 

when she was requested to change [Child’s] diaper and she 

couldn’t bring herself to do it and cried and asked for the 

foster mom to come back in and do it.

Id. at 17.

Ms. Sanders testified that she last heard from Appellant in October 

2015. Id. Further, Ms. Sanders testified, Appellant absconded from the 

halfway house on November 10, 2015 and, after a warrant was issued for 

her arrest, Appellant was arrested and incarcerated at SCI-Muncy. Id. at 8-

9 and 11. Ms. Sanders testified that Appellant was paroled “approximately a 

week or two” prior to the TPR hearing. Id. at 9. Nevertheless, Ms. Sanders 

testified that Appellant did not communicate with the Agency or with Child 

after her arrest. Id. at 9. 

Ms. Sanders also testified that Appellant: does not have the insight or 

ability to care for Child; has not been successful in obtaining and 
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maintaining a stable home for Child; and, has not remedied the situation 

that led to Child being placed and remaining in placement. Id. at 10-11. 

At the conclusion of the hearing, the trial court entered the following 

decree:

DECREE NISI

NOW, this 23rd day of June, 2016, the [trial] court makes 

the following findings of fact, conclusions of law[,] and 

decree nisi:

FINDINGS OF FACT

1. [Appellant] . . . is the natural mother of [Child].

2. [Appellant] was duly served by [the] Deputy Sheriff of 

Lycoming County, Pennsylvania, with [] service . . . relative 

to a Petition to Involuntarily Terminate Parental Rights 

regarding [Child].

3. [Appellant] failed to appear at the termination of parental 

rights hearing held June 23, 2016.

4. [Appellant] has been represented by counsel since 

[Child] was declared dependent on August 15, 2014. 

Similarly, she was represented by counsel in the 

termination proceeding.

5. At the time of the hearing, [Appellant] failed to attend; 

however, her counsel was in the courtroom and available to 

represent her.

6. Testimony elicited at the termination hearing indicates 

that [Appellant] was recently paroled from SCI-Muncy.

CONCLUSIONS OF LAW

1. The [trial] court was presented with sufficient factual 

evidence/information to support the involuntary termination 

of [Appellant’s] parental rights.
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2. Termination of the parental rights of [Appellant] is in the 

best interests of [Child].

3. The petitions, hearings[,] and procedures followed by the 

Agency are in compliance with the Pennsylvania Adoption 

Act.

DECREE NISI

The parental rights of [Appellant] regarding [Child] . . . are 

hereby terminated nisi. Huntingdon County Children’s 

Services is directed to obtain [Appellant’s] current address 

from either SCI-Muncy or the Pennsylvania Board of 

Probation and Parole. Thereafter, a copy of these findings 

of fact, conclusions of law[,] and decree nisi shall be served 

on [Appellant] at her address by both certified mail and first 

class mail.

[APPELLANT] SHALL HAVE TEN [] DAYS FROM THE DATE 

THIS DECREE NISI IS MAILED TO FILE OBJECTIONS OR 

EXCEPTIONS IN THE OFFICE OF THE CLERK OF THE 

ORPHANS’ COURT FOR HUNTINGDON COUNTY.

IF NO WRITTEN OBJECTIONS OR EXCEPTIONS ARE FILED 

WITHIN THE TIME ALLOWED, THIS DECREE NISI SHALL

BECOME FINAL WITHOUT THE NEED FOR ANY FURTHER 

ACTION BY THE COURT.

Trial Court Decree, 6/23/16, at 1-3 (some internal capitalization omitted).

Appellant did not file exceptions to the decree2and, on July 3, 2016, 

the decree became final by its own terms. Id. at 3. 

On July 18, 2016, Appellant (through counsel) filed a timely notice of 

appeal from the termination decree. Following a remand from this Court, 

____________________________________________

2 Appellant did not need to file exceptions to preserve her claim on appeal. 

See Pa.O.C.R. 7.1 (effective until October 31, 2016) (providing that the 

filing of exceptions is optional). 
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the trial court issued a Pennsylvania Rule of Appellate Procedure 1925(a) 

opinion in support of its decree. Within the trial court’s opinion, the trial 

court declared that it terminated Appellant’s parental rights to Child under 

23 Pa.C.S.A. §§ 2511(a)(2), (5), (8) and (b). Further, the trial court recited 

the relevant facts that, it held, the Agency had proven by clear and 

convincing evidence and which supported its decision in this matter. See

Trial Court Opinion, 11/29/16, at 1-8.

Appellant now raises the following claim to this Court:

Did the [trial court] err when it terminated [Appellant’s] 

parental rights to [Child], given that the evidence presented 

was insufficient as a matter of law to support a termination 

of [Appellant’s] parental rights, and that [Appellant] had 

made efforts and progress towards alleviating the conditions 

that led to the placement of [] Child?

Appellant’s Brief at 4.3

____________________________________________

3 We note that Appellant did not file her statement of errors complained of 

on appeal contemporaneously with her July 18, 2016 notice of appeal, as 

required by Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). 

Pa.R.A.P. 1925(a)(2)(i) (“[t]he concise statement of errors complained of on 

appeal shall be filed and served with the notice of appeal”). Nevertheless, 

Appellant later filed her concise statement on September 1, 2016 and, within 

this concise statement, Appellant listed the issue she currently raises on 

appeal. In accordance with our binding precedent in In re J.T., 983 A.2d 

771 (Pa. Super. 2009), we conclude that Appellant’s late filing of her concise 

statement does not result in the waiver of her claim on appeal. In re J.T., 

983 A.2d at 774-775 (“[i]f late filing of the 1925 statement waived [the 

m]other's appeal rights in this case, there has been per se ineffectiveness of 

counsel just as there was for the appellant in [Commonwealth v. Burton, 

971 A.2d 428 (Pa. Super. 2009) (en banc)]. We conclude that, as in 

Burton, in parental termination cases a late filing of a required 1925 

statement does not mandate a finding of waiver”).
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On appeal, Appellant claims that the evidence was insufficient to 

support the termination of her parental rights. We have explained:

In a proceeding to terminate parental rights involuntarily, 

the burden of proof is on the party seeking termination to 

establish by clear and convincing evidence the existence of 

grounds for doing so. The standard of clear and convincing 

evidence 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. It is well established that a court 

must examine the individual circumstances of each and 

every case and consider all explanations offered by the 

parent to determine if the evidence in light of the totality of 

the circumstances clearly warrants termination. 

In re Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (internal 

quotation marks and citations omitted).

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 they are supported by the 

record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S., [36 A.3d 567, 572 (Pa. 2011) 

(plurality opinion)]. As has been often stated, an abuse of 

discretion does not result merely because the reviewing 

court might have reached a different conclusion. Id.; see 

also Samuel Bassett v. Kia Motors America, Inc., 34 

A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 

634 (Pa. 2003). Instead, a decision may be reversed for an 

abuse of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. Id.
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As [the Pennsylvania Supreme Court] discussed in R.J.T., 

there are clear reasons for applying an abuse of discretion 

standard of review in these cases. [The Supreme Court] 

observed that, unlike 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. 

R.J.T., 9 A.3d at 1190. 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 Atencio, [539 Pa. 161, 

165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

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

banc). The trial court terminated Appellant’s parental rights under section 

2511(a)(2), (5), (8), and (b). We will focus on section 2511(a)(2) 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:

. . .

(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-
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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 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.

In her brief, Appellant contends that the Agency did not meet its 

burden of proof with regard to section 2511(a)(2). Specifically, Appellant 

claims that the Agency did not prove that “the conditions and causes of the 

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

parent.” See id. Appellant argues:

While it may be true that [Appellant] struggles with 

responsible and adult behavior, these allegations overlook 

the significant efforts that [Appellant] made in addressing 

those concerns. The [trial] court [] recognized those efforts 

on multiple occasions, noting that [Appellant] had 

completed a drug and alcohol education program, a victim 

awareness program, and the “Tools for Success” program 

while incarcerated. The [trial] court also noted that 

[Appellant] had participated in drug and alcohol counseling, 

obtained a high school diploma, and became certified as a 

fiber optics installer. Although she has had a long struggle 

with drug abuse, [Appellant] consistently tested negative 

for illegal drug use after she was paroled. Perhaps most 
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importantly, she began visits with her son, which she had 

sought and been denied while she was incarcerated.

Appellant’s Brief at 8 (internal citations omitted).

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

must produce clear and convincing evidence regarding the following 

elements: 

(1) repeated and continued incapacity, abuse, neglect or 

refusal; (2) such incapacity, abuse, neglect or refusal has 

caused the child to be without essential parental care, 

control or subsistence necessary for his physical or mental 

well-being; and (3) the causes of the incapacity, abuse, 

neglect or refusal cannot or will not be remedied. 

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).

The trial court concluded its analysis of section 2511(a)(2) as follows:

The Agency’s initial concerns with [Appellant] have not 

changed. She has had a drug problem for a majority of the 

dependency proceedings. [Child] was declared dependent 

due to [Appellant] overdosing on heroin. [Appellant] was 

not able to parent because she was incarcerated. When 

[Appellant] did go to a halfway house, not only did she test 

positive for alcohol, she then absconded. Subsequently, she 

was arrested and jailed until June 2016. [Appellant] has 

made a series of poor decisions that led to her serving time 

in prison and residing in a halfway house. Once paroled, 

she failed to communicate with the Agency in an effort to 

reestablish a bond with [Child].
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. . .

While incarceration alone is not a basis for involuntary 

termination of parental rights, the [trial court] may inquire 

about the parent utilizing resources at her command while 

in prison to continue and pursue a close relationship with 

the child. [Appellant] did petition [the trial court] for visits 

in prison, but that [was] the extent of her utilizing 

resources. She was not in contact with the Agency. Even 

when [Appellant] resided at the halfway house, she failed 

alcohol tests and her supervised visits were stopped. Her 

ongoing substance abuse issues make her a danger to 

[Child].

Trial Court Opinion, 11/29/16, at 7-8 (internal citations omitted).

After a careful review of the record in this matter, we find the trial 

court’s 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 at 826-27. We, therefore, affirm the 

termination of Appellant’s parental rights with regard to Child under section 

2511(a)(2).

Next, we review the termination of Appellant’s parental rights under 

section 2511(b). This Court has stated that 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 stated as follows.
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[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., [620 A.2d 481, 485 (Pa. 1993)], [the 

Pennsylvania Supreme] 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).

Appellant does not claim that the evidence was insufficient to support 

the termination of her parental rights under section 2511(b). Nevertheless, 

as the trial court stated, the evidence was indeed sufficient to support 

termination under that subsection:

[Appellant’s] last visit [with Child] was in October 2015, and 

the visit was cut short due to [Appellant] having a 

“breakdown.” . . . She has not had a visit or contact with 

[Child] since October 2015. [Child] has clearly bonded with 

his foster family [and the foster family has indicated that 

they wish to adopt Child]. Severing the parent-child bond is 

in [Child’s] best interest as [Appellant] will never be in a 

position to provide a stable environment for [Child]. 

Trial Court Opinion, 11/29/16, at 8.

After a careful review of the record in this matter, we find the trial 

court’s 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 at 826-27. In its opinion, the trial court 
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found that Child has been in placement in the same foster home for 

approximately two years – and ever since Child was one year old. 

Accordingly, it was proper to find that no bond exists and that Child would 

suffer no permanent emotional harm if Appellant’s parental rights were 

terminated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). It is wellsettled that “we will not toll the well-being and permanency of [a child] 

indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007, citing In re 

Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child’s life 

“simply cannot be put on hold in the hope that [a parent] will summon the 

ability to handle the responsibilities of parenting”). We, therefore, affirm the 

termination of Appellant’s parental rights with regard to Child under section 

2511(b).

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2016