J-S25025-20 & J-S25026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: D.K.B., JR., A MINOR         :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: D.W., MOTHER             :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 14 MDA 2020

           Appeal from the Decree Entered December 11, 2019
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                          No(s): 2165 of 2019

 IN RE: S.K.W., A MINOR              :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: D.W., MOTHER             :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 15 MDA 2020

           Appeal from the Decree Entered December 11, 2019
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                          No(s): 2019-02166


 IN RE: D.K.B., JR., A MINOR         :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: D.B., SR., FATHER        :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 52 MDA 2020

           Appeal from the Decree Entered December 11, 2019
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                          No(s): 2019-02165
J-S25025-20 & J-S25026-20



    IN RE: S.K.W., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.B., SR., FATHER               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 53 MDA 2020

             Appeal from the Decree Entered December 11, 2019
     In the Court of Common Pleas of Lancaster County Orphans' Court at
                            No(s): 2019-02166


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.:                                  FILED JULY 01, 2020

       In these appeals, D.B., Sr., (“Father”) and D.W. (“Mother”) appeal from

the Decrees entered by the Court of Common Pleas of Lancaster County

Orphans’ Court, dated December 4, 2019, and entered on December 11, 2019,

involuntarily terminating their parental rights with respect to their two sons,

D.K.B., Jr., born in January of 2009, and S.K.W., born in May of 2011

(collectively, “Children”).      Because the record supports the findings and

conclusions of the orphans’ court, we affirm the Decrees.1

SUMMARY OF FACTS AND PROCEDURAL HISTORY

       We glean the following factual and procedural history from the orphans’

court’s opinion, which is supported by the certified record. Mother has been

known to Lancaster County Children and Youth Services (“CYS”) since 2008.
____________________________________________


1 On February 13, 2020, and March 9, 2020, respectively, this Court, sua
sponte, consolidated Father’s and Mother’s separate Notices of Appeal as to
Children. We address both consolidated appeals in a single Memorandum for
ease of disposition.

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J-S25025-20 & J-S25026-20



Pertinent to this appeal, in January of 2018, the Manheim Township Police

were called to Mother’s home because Mother traveled to Philadelphia and left

Children, then ages 9 and 6 years old, unattended for several days. Orphans’

Court Opinion, 1/30/20, at 1-2. At that time, Father was incarcerated and

had only limited contact with Children. Id. Accordingly, CYS obtained Orders

for Protective Custody of Children. Id.

      Thereafter, CYS filed Dependency Petitions. On January 30, 2018, the

orphans’ court adjudicated Children dependent.      Id.   The orphans’ court

developed a Child Permanency Plan (“Plan”) for Mother and Father with a goal

of reunification. Objectives of the Plan required that Mother: undergo mental

health treatment; undergo drug and alcohol treatment; remain crime-free;

attend parenting and domestic violence classes; and obtain financial and

housing stability.

      With respect to Father, the Plan required that he: remain free from

drugs and alcohol; remain crime free; remain free of domestic violence; attend

parenting classes; obtain financial and housing stability; and demonstrate an

ongoing commitment to Children.

      On September 4, 2019, CYS filed Petitions to involuntarily terminate

Mother’s and Father’s parental rights to Children.        The orphans’ court

conducted hearings on the Termination Petitions on October 8, 2019,




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J-S25025-20 & J-S25026-20



November 5, 2019, and December 3, 2019.2 CYS presented the testimony of

Dominik Berthold, an adoption caseworker at Pressley Ridge; Kara Davis, a

CYS caseworker; Carrie Dolphin, case management supervisor at Family

Alternatives; Mark Rettew, Mother’s parole officer; and Catherine Bonser, the

Court-Appointed Special Advocate (“CASA”) assigned to Children.       Mother

appeared at both hearings and testified on her own behalf.      Mother also

presented the testimony of two of her friends. Father, who participated via

telephone during the first hearing, testified on his own behalf. The orphans’

court also conducted an in camera interview with Children.

       On December 4, 2019, the orphans’ court entered Decrees involuntarily

terminating Mother’s and Father’s parental rights to Children pursuant to 23

Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Thereafter, Mother and Father

filed timely Notices of Appeal and Concise Statements of Errors Complained of

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

ISSUES ON APPEAL

       Mother now raises the following issues for our review:

       1. Whether the [orphans’ c]ourt erred when it terminated
          Mother’s rights?

       2. Whether the [orphans’ c]ourt erred in concluding that [CYS]
          had met its burden in proving that Mother’s parental rights
          should be terminated when there was evidence that she had
          been actively working on and completing the goals [of] her
          [Plan]?


____________________________________________


2Cynthia Garman, Esq., served as guardian ad litem and Robert S. Cronin,
Esq., represented Children’s legal interests.


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J-S25025-20 & J-S25026-20



      3. Whether the [orphans’ c]ourt erred in finding [sic] that
         terminating Mother’s parental rights would best serve the
         needs and welfare of the children?

Mother’s Brief at 8.

      Father raises the following claims:

      1. Whether the [orphans’] court erred in terminating Father’s
         parental rights to the children[?]

      2. Whether the [orphans’] court erred in concluding [that CYS]
         met its burden in proving that Father’s rights should be
         terminated[?]

      3. Whether the [orphans’] court erred in determining that
         terminating Father’s rights when he would be getting out of jail
         in the near future would best serve the children’s needs and
         welfare[?]
Father’s Brief at 10.

LEGAL ANALYSIS

    In reviewing cases in which the orphans’ court involuntarily terminated

parental rights, appellate courts must accept the findings of fact and credibility

determinations of the orphans’ court if the record supports them.           In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013).        If the record supports the factual

findings, appellate courts then determine if the orphans’ court made an error

of law or abused its discretion. Id. Where the competent record evidence

supports the court’s findings, we must affirm the orphans’ court decree even

though the record could support an opposite result.         In re Adoption of

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

    “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.” In re M.G., 855 A.2d 68, 73–74 (Pa. Super.


                                      -5-
J-S25025-20 & J-S25026-20



2004) (citations omitted). Appellate courts defer to the orphans’ 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 terminate parental rights involuntarily, the

Adoption Act requires the court to conduct a bifurcated analysis. See 23

Pa.C.S. § 2511(a) and (b). The court first focuses on the conduct of the

parent, and, 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).          The courts must

examine the existence of the child’s bond with the parent, if any, and the

potential effect on the child of severing such bond. In re L.M., 923 A.2d 505,

511 (Pa. Super. 2007). A parent’s basic constitutional right to the custody

and rearing of his child is converted, upon the failure to fulfill his 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).


                                      -6-
J-S25025-20 & J-S25026-20



    While the orphans’ court here found that CYS met its burden of proof

under 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b) with regard to Mother

and Father, 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
      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).



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J-S25025-20 & J-S25026-20



Termination Pursuant to Section 2511(a)(2)

    We first conclude that the court properly exercised its discretion by

terminating Mother’s and Father’s parental rights pursuant to Section

2511(a)(2). Section 2511(a)(2) provides for termination of parental rights

where the petitioner demonstrates 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.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P.,

47 A.3d 817, 827 (Pa. 2012) (citations omitted). The grounds for termination

of parental rights under Section 2511(a)(2) due to parental incapacity 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.   At a termination hearing, the orphans’ court may

properly reject as untimely or disingenuous a parent’s vow to follow through

on necessary services when the parent failed to co-operate with the agency

or take advantage of available services during dependency proceedings. Id.

at 340.

      With respect to incarcerated parents, our Supreme Court has held that

“incarceration, while not a litmus test for termination, can be determinative of

the question of whether a parent is incapable of providing essential parental


                                       -8-
J-S25025-20 & J-S25026-20



care, control, or subsistence.” In re Adoption of S.P., 47 A.3d 817, 830 (Pa.

2012) (citation and internal quotation marks omitted). Notably, “the length

of the remaining confinement can be considered as highly relevant to whether

the conditions and causes of the incapacity ... cannot or will not be remedied

by the parent, sufficient to provide grounds for termination pursuant to 23

Pa.C.S. § 2511(a)(2).” Id. (internal quotation marks omitted).

      Also relevant are the efforts the parent made to care for a child before

the parent was incarcerated as an indication of the efforts the parent will make

when no longer incarcerated.     See In re Z.P., 994 A.2d 1108, 1126 (Pa.

Super. 2010) (terminating parental rights of incarcerated father after

examining his parenting history before incarceration and finding “Father’s

overall parenting history revealed no genuine capacity to undertake his

parental responsibilities”). Another factor to consider is the parent’s effort to

maintain a relationship with a child while incarcerated. In re E.A.P., 944 A.2d

79, 83 (Pa. Super. 2008). However, this factor is not determinative because

the orphans’ court may place weight on other factors even when the parent is

doing what he is supposed to do while incarcerated:

      Each case of an incarcerated parent facing termination must be
      analyzed on its own facts, keeping in mind, with respect to
      subsection (a)(2), that the child’s need for consistent parental
      care and stability cannot be put aside or put on hold simply
      because the parent is doing what [he] is supposed to do in prison.
Id. at 84. In other words, the orphans’ court must consider “[t]he complete

circumstances” of the case. Z.P., 994 A.2d at 1125.

Mother’s Appeal

      Mother contends that her testimony established that she was making

progress on the goals set forth in the Plan. Mother’s Brief at 13-19. Mother

                                      -9-
J-S25025-20 & J-S25026-20



concedes that she did not complete her Plan objectives, but argues that it was

error for the orphans’ court not to give her additional time to complete the

Plan. Mother’s Brief at 9, 11 and 20.

      In its Opinion, the orphans’ court concluded that Children lacked

essential parental care for twenty-two months at the time of the termination

hearing, and that Mother failed to complete her objectives as set forth in the

Plan. Orphans’ Court Opinion, 1/30/20, at 4. The orphans’ court explained

that Mother was unsuccessfully discharged for noncompliance with attendance

policies for trauma therapy, medication management, drug and alcohol

therapy, and parenting classes. Id. The orphans’ court noted that Mother

reengaged in drug and alcohol counseling at another provider in July of 2019;

however, at the time of the termination hearing, Mother “was in danger of

being unsuccessfully discharged again for poor attendance, declining drug

screenings, and positive drug screenings.”       Id.   Further, Mother was

discharged in January 2019 from a visitation program due to her inconsistent

visitation with Children. Id.

      The orphans’ court concluded that Children lacked essential parental

care, and that Mother’s inability to consistently participate and comply with

the Plan was the source of her repeated and continued parental incapacity.

The orphans’ court further determined that Mother could not remedy her

incapacity. Id. at 6.

      Having reviewed the record, we conclude that it supports the findings of

the orphans’ court that Mother has not provided Children with the essential

parental care, control and subsistence necessary for their mental and physical

well-being, and that Mother is unable to remedy the causes of her parental


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J-S25025-20 & J-S25026-20



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

is not entitled to relief.

Father’s Appeal

      Father contends that the orphans’ court erred when it determined that

CYS met its burden and terminated his parental rights to Children because he

was working on his objectives set forth in the Plan despite his incarceration.

Father’s Brief at 13, 17-18. More specifically, Father avers that there were no

additional steps he could have taken to fulfill his Plan requirements. Id. at

17.

      The orphans’ court analyzed Father’s compliance with the Plan and

determined that he “has failed to timely address his objectives of remaining

free from drugs and alcohol, to remain crime free, to remain free of domestic

violence, to learn and use good parenting, to be financially stable, and to

obtain and maintain housing and an ongoing commitment to his children.”

Orphans’ Court Opinion, 1/30/20, at 7. The orphans’ court concluded Father

will not or cannot remedy the causes of his parental incapacity, and that

termination was appropriate pursuant to Section 2511(a)(2).

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

failed to make any material progress towards reunification following Children’s

removal in January of 2018.          Although Father completed an anger

management program, two parenting programs, and a vocational training

program while incarcerated, Father failed to provide documentation of

progress on his objectives related to being financially stable, obtaining

appropriate housing, addressing domestic violence, and remaining free from

misuse of drugs and alcohol. CYS Exhibit 2, Business Testimony, at 7. In the


                                    - 11 -
J-S25025-20 & J-S25026-20



intervening years, Father has not had any visitation with Children, but has

sent letters and had minimal telephonic communication with Children. We

defer to the factual findings of the orphans’ court and conclude that Father,

while incarcerated, “failed to utilize given resources and to take an affirmative

approach to fulfill his parental duties.” In re D.J.S., 737 A.2d 283, 286 (Pa.

Super. 1999). Thus, Father is not entitled to relief.

Termination Pursuant to 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 orphans’ 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



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J-S25025-20 & J-S25026-20



(Pa. Super. 2011). Ultimately, the concern is the needs and welfare of a child.

In re Z.P., supra at 1121.

      The orphans’ 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).

Mother’s Appeal

      Mother avers that the orphans’ court erred when it determined that CYS

met its burden under Section 2511(b). More specifically, Mother argues that,

while little testimony was provided on this issue, the testimony presented

indicated that there was a bond between Mother and Children. Mother’s Brief

at 19-20.

      The orphans’ court concluded that CYS met its burden of proof pursuant

to Section 2511(b), and observed:

      The best interests of [Children] are served by remaining in foster
      care and being adopted. The [C]hildren have been in custody for
      twenty-two (22) months and the [c]ourt is convinced Mother and
      Father will not resolve their significant issues in a reasonable
      amount of time. The [C]hildren remain in loving and healthy
      homes which are potentially permanent resources. Id. at 46, 50.
      The [C]hildren cannot wait for an indefinite period of time for the
      stability and care of a permanent family in the hope that their
      parents will drastically change their behavior and accomplish their
      goals. The Court Appointed Special Advocate and the Guardian
      ad litem support the termination of parental rights. N.T., 12/3/19,
      at 73, 83.



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Orphans’ Court Opinion, 1/30/20, at 7.

      Additionally, the orphans’ court agreed that there is a bond between

Mother and Children, but proffered “that bond does not trump the fact that

these children need stability. They need continuity. They need love, which I

don’t know that they’re getting from [M]other.” N.T., 12/3/19, at 91. The

orphans’ court found credible Ms. Davis’ testimony that she observed Mother

attempt to undermine D.K.B., Jr.’s placements in the past and acted in such

a way “that cause[d] him to feel concerned for her well-being rather than

focusing on. . . his emotional needs.” N.T., 11/5/19, at 52. Moreover, the

orphans’ court credited the testimony that Children are developing a more

secure attachment to their respective resource parents.

      Thus, the record confirms that the orphans’ court properly determined

that terminating Mother’s parental rights would best serve Children’s needs

and welfare. While Children have a relationship with Mother, their relationship

is not one that is necessary and beneficial. See In re Z.P., 994 A.2d 1108,

1121 (Pa. Super. 2010).

Father’s Appeal

      Father avers that he has maintained a bond with Children despite his

incarceration. More specifically, Father contends that he maintained contact

with Children via telephone and letters and “utilized every resource he had

while incarcerated.” Father’s Brief at 17.

      Father's argument is unpersuasive. The evidence demonstrated, and

Father admitted, that, at the time of the hearing, Father had not seen Children

since 2015. Orphans’ Court Opinion, 1/30/20, at 7. The orphans’ court found

credible the testimony that Children stated that they know who Father is and


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J-S25025-20 & J-S25026-20



would like to “meet him.” Id. In light of this evidence of a lack of meaningful

contact with Father since 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.

       Our review of the record supports the orphans’ court’s determination

and we discern no abuse of discretion or error of law. We, thus, affirm the

court’s determination that involuntary termination of Father’s parental rights

is in the best interests of Children.3

       Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion or commit an error of law by terminating the parental

rights of Mother and Father to Children involuntarily. Therefore, we affirm the

orphans’ court’s December 11, 2019 Decrees.

       Decrees affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/01/2020


____________________________________________


3 Legal counsel for Children agrees with Mother and Father that their rights
were improperly terminated because of the preferred outcomes expressed by
Children against termination, the bond between Children and Mother, and
Father’s contact with Children from prison. Legal Interests Counsel’s Brief, at
3, 5-6, 9-10. Because Children need stability and Mother cannot provide them
with stability, and Children do not have a meaningful bond with Father, we
reject legal counsel’s argument that the trial court failed to consider the best
interests of Children.

                                          - 15 -
