J-S38017-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: C.D.J.H., A MINOR

APPEAL OF: R.S., FATHER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1629 EDA 2023

Appeal from the Decree Entered May 23, 2023

In the Court of Common Pleas of Bucks County Orphans' Court at No(s): 

2023-A9038

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 5, 2023

R.S. (Father) appeals the decree issued by the Bucks County Orphans’ 

Court, which granted the petition of Bucks County Children and Youth Services 

(the Agency) to involuntarily terminate Father’s rights to his 21-month-old 

son, C.D.J.H. (the Child), pursuant to the Adoption Act. See 23 Pa.C.S.A. § 

2511(a)(1), (b).1 On appeal, Father argues the Agency did not prove, by clear 

and convincing evidence, that he demonstrated a settled purpose of 

relinquishing his parental claim, or that he refused or failed to perform his 

parental duties. After careful review, we affirm.

The record discloses the following factual and procedural history: The 

Child was born in August 2021. At his birth, the Child tested positive for 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The orphans’ court also terminated the rights of C.H. (Mother), who did not 

appear at the termination proceeding and did not appeal.
J-S38017-23

- 2 -

fentanyl and cocaine. Both parents were homeless and struggled with 

addiction. However, Father was unaware of the Child’s existence, and the 

Agency was unaware of Father’s whereabouts. In September 2021, the 

Agency filed a dependency petition, which the juvenile court granted. The 

Child was subsequently removed from Mother’s care.2

In May 2022, when the Child was approximately 8 months old, Father 

happened to run into Mother, and she informed him that she had given birth,

and the Child was his. Allegedly, Father asked to meet the Child and Mother 

told him that she would arrange a visit; Mother did not tell him that the Child 

was in the custody of the Agency or was the subject of dependency 

proceedings. Despite seeing Mother on a couple more occasions, there was 

never a meeting between Father and the Child.

Meanwhile, the Agency claimed that it was trying to locate Father but

was unsuccessful despite its diligent efforts. Mother had informed the Agency 

that Father was homeless, so a caseworker drove around the Kensington area 

of Philadelphia seeking to locate him. The Agency requested assistance from 

the outreach program, Grace Project, to aid in the search. The Agency also

asked local law enforcement and conducted a Department of Public Welfare 

(DPW) search. For his part, Father claimed that the Agency did not make any 

effort to locate him. However, the Agency suggested that Father was aware 

____________________________________________

2 Child resides with his foster parents, who also care for Child’s half-sister, 

C.S. That sibling is not subject to these proceedings.
J-S38017-23

- 3 -

that the Child was in foster care, but avoided contacting the Agency, because 

there was a warrant for his arrest.

October 1, 2022 – approximately four months after learning of the 

Child’s birth – Father became incarcerated due to the warrant. In midDecember 2022, the Agency finally learned of Father’s whereabouts after he 

sent a letter from prison. He told the Agency that he did not want his son to 

visit him, because he did not want the young Child subjected to the 

environment of a state prison. However, he desired to contact the foster 

family. Father wrote several letters to the foster family, complete with 

pictures drawn specifically for the Child. He also participated in sobriety 

programs in the prison and stated his intention to find work and housing upon 

his release.3

On March 16, 2023, the Agency petitioned to terminate Father’s rights, 

pursuant to Section 2511(a)(1) and (b) of the Adoption Act. The orphans’ 

court held a hearing on May 23, 2023, which Father attended by video. On 

the same day, the orphans’ court granted the Agency’s petition and 

terminated Father’s rights.

____________________________________________

3 Father told a caseworker that he would be released no later than November 

2023, but the Agency subsequently learned from the prison that Father’s 

earliest release date was May 2024. The orphans’ court noted in its Pa.R.A.P. 

1925(a) opinion, dated July 7, 2023, Father had yet to be released. For our 

purposes, the date of Father’s release is insignificant. 
J-S38017-23

- 4 -

Father timely filed this appeal and presents the following issue for our 

review:

1. Whether the trial court abused its discretion and erred 

as a matter of law by involuntarily terminating 

Father’s parent[al] rights pursuant to 23 Pa.C.S.A. §

2511(a)(1) and (b) in the absence of clear and 

convincing evidence that termination would best serve 

the needs and welfare of the Child.

See Amended Concise Statement of Errors Complained of on Appeal, 

9/12/2023; see also Father’s Brief at 4.4

We begin with our well-settled standard of review:

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. If the factual findings are 

supported, appellate courts review to determine if the trial 

court made an error of law or abused its discretion. A 

decision may be reversed for an abuse of discretion only 

upon demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will. The trial court's 

decision, however, should not be reversed merely because 

the record would support a different result. We have 

previously emphasized our deference to trial courts that 

____________________________________________

4

In an apparent typographical error, Father mistakenly alleged that the 

orphans’ court terminated his rights under Section 2511(a)(2), (5), (8) and 

(b). However, the court only terminated Father’s rights under Section 

2511(a)(1) and (b); the Agency did not petition for termination under these 

other Section 2511(a) grounds. 

The Agency filed with this Court an application to quash Father’s appeal. We 

denied the application but directed Father to amend his concise statement. 

Father complied. We note further that his Brief contains the same 

typographical error. However, our review was not impeded, because the 

argument section of the brief pertains only to Section 2511(a)(1), and not the 

other grounds under Section 2511(a). 
J-S38017-23

- 5 -

often have first-hand observations of the parties spanning 

multiple hearings.

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

omitted).

Our Supreme Court has repeatedly stated that in termination cases, 

deference to the trial court is particularly crucial. In re Adoption of L.A.K., 

265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108, 

1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive 

case involving...the termination of parental rights, the appellate court should 

review the record for an abuse of discretion and for whether evidence supports 

that trial court’s conclusions; the appellate court should not search the record 

for contrary conclusions or substitute its judgment for that of the trial court.”). 

The abuse-of-discretion standard in termination cases “is a highly deferential 

standard and, to the extent that record supports the court’s decision, we must 

affirm even though evidence exists that would also support a contrary 

determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation 

omitted).

Termination of parental rights is governed by Section 2511 of the 

Adoption Act, which requires a bifurcated analysis.

Initially, the focus is on the conduct of the parent. The party 

seeking termination must prove by clear and convincing 

evidence that the parent's conduct satisfies the statutory 

grounds for termination delineated in section 2511(a). Only 

if the court determines that the parent's conduct warrants 

termination of his or her parental rights does the court 

engage in the second part of the analysis pursuant to section 
J-S38017-23

- 6 -

2511(b): determination of the needs and welfare of the 

child[.]

In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).

Clear and convincing evidence is evidence 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.” In re 

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of 

Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). 

Our discussion begins with the orphan’s court’s decision to terminate 

Father’s rights under Section 2511(a)(1), which provides:

(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.

23 Pa.C.S.A. § 2511(a)(1).

To analyze the orphans’ court decision under this subsection, we must 

first address the statutory timeframe and its bearing on the facts of this case. 

The Child was born in August 2021, but the court believed Father’s testimony 

that he did not become aware of the birth until May 2022. Thus, the relevant 

inquiry into Father’s conduct begins only after he learned of the Child’s 

existence. See In re Adoption of B.G.S., 245 A.3d 700, 707 (Pa. Super. 

2021) (holding that a parent cannot be held responsible for failing to perform 
J-S38017-23

- 7 -

his parental duties during a time when he did not know, and had no reason to 

know, that he was a parent).

However, Father argues that the orphans’ court may only consider an 

even narrower portion of the case history. He alleges the orphan’s court erred 

because it focused too heavily on Father’s conduct before his incarceration –

i.e., May 2022 through October 1, 2022. According to Father, the court should 

have focused solely on his conduct that falls squarely in the statutory 

timeframe – i.e., September 2022 through March 2023, at which point the 

Agency filed the termination petition. See Father’s Brief at 12.

Father is mistaken. The six-month period prior to the filing of the 

petition is not the only history the court may consider. We have held that 

“[a]lthough the six-month period immediately preceding the filing is most 

critical to the analysis, the court must consider the whole history of the case 

and not mechanically apply the six-month provision.” In re I.J., 972 A.2d 5, 

10 (Pa. Super. 2009) (citation omitted); see also In re B.,N.M., 856 A.2d 

847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (holding 

that the trial court must examine the individual circumstances of each case 

and consider all the explanations of the parent to decide if the evidence, under 

the totality of the circumstances, requires involuntary termination). We 

conclude that the orphans’ court properly applied the temporal aspect of 

Section 2511(a)(1).

Having clarified the application of the statutory timeframe, we turn to 

Father’s substantive challenge – namely, that he did not evince a settled 
J-S38017-23

- 8 -

purpose of relinquishing his parental claim, nor did he refuse or fail to perform 

his parental duties. Father argues that his efforts must be viewed in context, 

that there are limits to what he could do while incarcerated. 

Our Supreme Court has long held that “incarceration neither compels 

nor precludes termination.” In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 

2012).

Th[e Pennsylvania Supreme] Court has long held that a 

parent's absence or failure to support his or her child due to 

incarceration is not, in itself, conclusively determinative of 

the issue of parental abandonment. In re Adoption of 

McCray, 331 A.2d 652, 655 (Pa. 1975). Indeed, 

incarceration alone is not an explicit basis upon which an 

involuntary termination may be ordered pursuant to Section 

2511 of the Pennsylvania Adoption Code. In re C.S., 761 

A.2d 1197, 1201 [] (Pa. Super. 2000) (en banc). Rather, 

we must inquire whether the parent has utilized those 

resources at his or her command while in prison to continue 

and pursue a close relationship with the child or 

children. McCray, supra at 655. An incarcerated parent 

desiring to retain parental rights must exert him or herself 

to take and maintain a place of importance in the child's life. 

Adoption of Baby Boy A., 517 A.2d 1244, 1246 (Pa. 

1986).

In re: R.I.S., 36 A.3d 567, 573-74 (Pa. 2011) (plurality opinion); cf. S.P., 

47 A.3d at 828.

Instantly, Father argues that there was no evidence that he 

demonstrated a settled purpose of relinquishing his parental claim. Father 

cites, for example, the letters that he sent to the Child and the foster parents, 

as well has his refusal to sign a voluntary consent to termination. Father 

argues further that he did not refuse to perform his parental duties, because
J-S38017-23

- 9 -

the Agency never “gave him the opportunity to do so.” See Father’s Brief at 

13. He reasons that the Agency is responsible, because it did not make 

diligent efforts to locate him after the Child was adjudicated dependent. 

Finally, Father argues that the Agency did not prove that he failed to perform 

his parental duties. For support, Father cites the efforts he made during his

incarceration:

Father has availed himself to every self-improvement 

program available to him while [in prison] to prepare himself 

for fatherhood upon release. Father has sent multiple 

letters to the Child’s foster family and to the Agency. His 

lengthy letters to the foster parents included personal 

anecdotes in hopes that he and the Child’s foster family 

could become friends, as well as requests that they expose 

the Child to music and animals. He draws colorful pictures 

for his son and sends them with the letters. In addition, 

Father testified that he has plans to procure stable 

employment immediately upon his release from prison. He 

plans to find stable living arrangements within three weeks 

of his release. He also is committed to maintaining sobriety, 

obtaining a valid driver's license, and more importantly, 

work on forming a relationship with his son. Father 

expressed gratitude for the Child’s foster family for taking 

such good care of his son and expressed that he wants the 

family to remain in the Child’s life.

Father’s Brief at 16-17

The orphans’ court acknowledged that Father was unaware of the Child’s 

birth until May 2022, and it did not hold him responsible for his failure to 

parent prior to that date. Still, the court emphasized that Father has never 

met the Child. The court did not find credible Father’s claim that he tried to 

meet the Child but was thwarted by Mother. See Orphans’ Court Opinion at 
J-S38017-23

- 10 -

6; 7. Instead, the court concluded that Father made no genuine effort, and it 

did not believe Father’s claim that he was unaware of the dependency 

proceedings.

The record supports this finding. According to the caseworker, Father 

did not pursue visitation before he was incarcerated, because he knew there 

was a warrant out for his arrest:

The caseworker: [Father] at that time had stated he had 

known about [the Child] since 

approximately February 2022, but he 

did not reach out [to the Agency] until 

[after he was incarcerated, in 

December 2022], because he was on 

the run from state parole. 

At that time, he stated that he was not 

interested in fighting an adoption or 

pursuing custody, but had hoped to 

meet him once he was out of prison.

N.T. at 29.

The orphans’ court also concluded that Father made no genuine effort 

at having a relationship with the Child, even after Father was incarcerated. 

Father explained that he did not want the Child to visit him at the prison, 

because it would be a “potentially traumatic situation” for the Child. See 

Father’s Brief at 18; see also N.T. (5/23/23) at 43-44. In his view, Father’s 

choice to forgo visitation was a “selfless decision to shield the Child.” See 

Father’s Brief at 18. But the orphans’ court did not find Father’s justification 

believable. See Orphans’ Court Opinion at 7.
J-S38017-23

- 11 -

After review of Father’s appellate arguments and the orphans’ court’s 

findings, we find this matter analogous to McCray and In re B.,N.M., supra. 

In McCray, the Supreme Court concluded that termination was warranted 

after noting that the incarcerated father did not take advantage of his 

visitation opportunities, nor did he make sincere or persistent efforts to locate 

or inquire about his daughter. McCray, 331 A.2d at 655. 

Our decision in B., N.M. is more on point. There, the incarcerated father 

drastically reduced his contact with the child, because he said he did not want 

to interfere with the child’s stable life. B., N.M., 856 A.2d at 852. The father 

said he thought it was inappropriate for him to play a role in the child’s life 

until he had a chance to be free when he became eligible for parole. Id. at 

853. 

This Court concluded that termination was warranted under 23 Pa.C.S.A. 

§ 2511(a)(1). We explained that parents have an affirmative duty to parent 

the child, which requires continuing interest in the child and a genuine effort 

to main communication and association with the child. Id. at 855 (citing In 

re Burns, 379 A.2d 535 (Pa. 1977)) (further citations omitted). We reiterated 

that 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. The 

obligation to utilize all available resources does not toll when the parent is 

incarcerated. Id.
J-S38017-23

- 12 -

Returning to the instant case, the orphans’ court found that Father did 

not fulfill this obligation to utilize all available resources. Importantly, the 

court did not believe that Father postponed his relationship with the Child, in 

order to shield the Child from exposure to the prison environment. Even if 

Father was sincere in his intentions, our decision in B.,N.M. casts doubt on 

whether Father would be excused from his obligation to utilize all available 

resources to maintain the parent-child relationship. B.,N.M., 856 A.2d at 855 

(“Parental rights are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental responsibilities while others provide 

the child with his or her physical and emotional needs.”).

Importantly, we note that the court did not find Father to be credible. 

Generally, we do not disturb such findings. See In re A.R., 125 A.3d 420, 

422 (Pa. Super. 2015). Moreover, the court’s finding that Father was not 

sincere explains the court’s emphasis on Father’s pre-incarceration conduct. 

Recall that Father argued that the orphans’ court focused too heavily on 

Father’s conduct prior to the six-month timeframe, instead of focusing on what 

Father did within that statutory window – i.e., what Father did while he was 

incarcerated. Although we explained that the court must consider the whole 

history of the case, we reiterated that the six months preceding the filing of 

the petition was “the most critical.” In re I.J., 972 A.2d at 10, supra. The

orphans’ court emphasized Father’s pre-incarceration conduct to explain its 

credibility finding. It found Father insincere when he said he wanted a 

relationship with the Child but did not want to subject the Child to prison visits. 
J-S38017-23

- 13 -

As the court noted, Father made no effort to have a relationship with the Child 

prior to his incarceration. 

We do not discount Father’s struggles with addiction, nor do we doubt 

his reported involvement with self-improvement programs, his post-conviction 

plans, and his interest and gratitude in the foster parents’ care of the Child. 

Notwithstanding, we agree with the orphans’ court that none of this excuses

his failure to perform his parental duties. Therefore, we conclude the court 

did not abuse its discretion when it found that termination was warranted 

under Section 2511(a)(1).

Having concluded that the trial court did not err or abuse its discretion 

under the first prong of the termination analysis under Section 2511(a), we 

would typically review the court’s conclusion that termination would best serve 

the Children’s needs and welfare under Section 2511(b).

5

 We need not 

conduct such a review in this case, however.

____________________________________________

5

 Section 2511(b) provides:

(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(b).
J-S38017-23

- 14 -

Although Father technically preserved his challenge to the court’s 

decision under Section 2511(b), Father does not dispute the court’s findings, 

per se. Rather, his argument is that the orphans’ court never should have 

reached the Section 2511(b) analysis, because the court should have denied 

the Agency’s petition under Section 2511(a)(1). See Father’s Brief at 18-19. 

Father is correct that the termination analysis is a two-step process. But he 

only challenged the first step. Because we concluded that the court did not 

err under the first prong of the termination analysis, the court was correct to 

proceed to the second prong, Section 2511(b). There, the court found that 

termination best served the needs and welfare of the Child. Again, given that 

Father does not challenge these findings, we need not review them.

In sum, we conclude the orphans’ court did not err or abuse its discretion 

when it determined that the Agency proved termination was warranted under 

Section 2511(a). The court appropriately applied the six-month statutory 

timeframe and its subsequent findings were supported by the record. Finally, 

the court did not err when it proceeded under Section 2511(b) and found that 

termination would best serve the Child’s needs and welfare.

Decree affirmed. Jurisdiction relinquished.
J-S38017-23

- 15 -

Date: 12/5/2023