Adoption of: L.S.P., Appeal of: Westmoreland CCB

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ADOPTION OF: L.S.P. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: WESTMORELAND :

COUNTY CHILDREN'S BUREAU :

:

:

:

: No. 514 WDA 2019

Appeal from the Order Entered March 20, 2019

In the Court of Common Pleas of Westmoreland County Orphans' Court

at No(s): No. 135 of 2018

BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 15, 2019

The Westmoreland County Children’s Bureau (the “Agency”) appeals

from the order dated March 19, 2019, and entered March 20, 2019, denying

the Agency’s petition seeking to involuntarily terminate the parental rights of

A.M.K (“Mother”) and G.L.P. (“Father”), the biological parents of their son,

L.S.P., born in October of 2016, (“Child”), pursuant to the Adoption Act, 23

Pa.C.S. § 2511(a)(5), (8), and (b). We affirm.

On September 19, 2017, the Agency assumed emergency custody of

Child upon receiving reports that Mother was homeless and using illegal drugs

in Child’s presence. N.T., 2/14/19, at 19. Father was incarcerated at the

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time.1 Id. Child was adjudicated dependent on October 10, 2017 and was

placed in the kinship foster home of his maternal grandmother. Id.

On September 25, 2018, the Agency filed the petitions to involuntarily

terminate the parental rights of Child’s parents.2 On February 14, 2019, the

trial court held an evidentiary hearing on the petitions. Mother was not

present at the hearing, but her counsel, Attorney Andrew Snyder, was

present. Father participated, via video conference, from the State

Correctional Institution (“SCI”) Quehanna Boot Camp, where he was

incarcerated. Father’s counsel, Attorney Eric Dee, was present at the hearing.

The guardian ad litem (“GAL”) for Child, Attorney Diane Murphy, was present

at the hearing and participated.

The Agency first proffered the testimony of Cody Johns, a supervisor of

Justice Works Youth Center, the agency that provided supervised visits

between the parents and Child until Father was incarcerated in June of 2018

and Mother stopped visiting in July of 2018. N.T., 2/14/19, at 4–5. Mr. Johns

was qualified as an expert in parent-child relationships. Id. at 12–13.

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1 Although Father was incarcerated at the time Child was removed from

Mother’s custody, Father was released on September 22, 2017, at which point

he entered inpatient treatment. N.T., 2/14/18 at 24. Following treatment,

Father transitioned to a halfway house and then a three-quarter house. Id.

In June of 2018, however, Father reoffended, was again incarcerated, and

remained incarcerated for the pendency of the petitions to terminate.

2 The trial court assigned the same trial court docket number to the petitions.

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Next, Tara Lorenzo, a caseworker for the Agency assigned to Child,

testified as an Agency witness. N.T., 2/14/19, at 18. Ms. Lorenzo testified

that the trial court placed Child in Agency custody on September 19, 2017,

and adjudicated him dependent on October 10, 2017. Id. at 19. At the time

of the termination hearing, Child had been in Agency custody for seventeen

months. Id. Ms. Lorenzo testified that Father had three visits with Child,

each of which were initiated by Father, since Father’s incarceration in June of

2018: on August 24, 2018, at the Washington County Prison; on September

21, 2018, at SCI Greene; and on February 2, 2019, at SCI Quehanna Boot

Camp. Id. at 26–27, 48. Child’s paternal grandmother transported Child to

the three visits with Father. Id. at 27.

On cross-examination by Father’s counsel, Ms. Lorenzo testified that

Father sent three letters to Child’s maternal grandmother concerning Child.

N.T., 2/14/19, at 43. On re-direct examination for the Agency, Ms. Lorenzo

testified that, in the three letters, Father asked how Child was doing. Id. at

47. In the letter that Father sent in late December of 2018, Father requested

that maternal grandmother give Child a hug and a kiss, and tell Child that his

daddy loves him. Id. On cross-examination by Attorney Murphy, Ms. Lorenzo

testified that Child was immediately placed in kinship foster care with his

maternal grandmother and step-maternal grandfather, who wish to adopt

him, where he has remained. Id. at 35–36, 46. Ms. Lorenzo testified that

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Child views his maternal grandmother and step-grandfather as his mother and

father. Id. at 36.

Father then testified on his own behalf from the SCI Quehanna Boot

Camp Facility via video conference. N.T., 2/14/19, at 49. Father testified that

he would be eligible for release from boot camp on July 2, 2019, and he

planned to live with his mother and grandmother in Washington County. Id.

at 52. He had last seen Child on February 2, 2019, when Child had a two-

hour visit, at which he was permitted to have physical contact with Child. Id.

at 52–53. Father testified to his desire to overcome his substance abuse

issues, to raise Child, and to his love for Child. Id. at 57–59, 67–80.

On March 20, 2019, the trial court denied the Agency’s petitions. On

April 2, 2019, the Agency filed a notice of appeal challenging the March 20,

2019 order, along with a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3

In its brief on appeal, the Agency raises the following issues:

1. Did the trial court err as a matter of law and/or abuse its

discretion in denying the Agency’s petitions to involuntarily

terminate Birth Parents’ rights pursuant to 23 Pa.C.S. §2511(a)(5)

when the Agency proved by clear and convincing evidence that

grounds for termination exist?

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3 The Agency also filed a second notice of appeal from the March 19, 2019

order, which was assigned our docket number 492 WDA 2019. This Court

discontinued the appeal on April 17, 2019, after the Agency’s filed a praecipe

for a discontinuance because the appeals were duplicative. Notice of

Discontinuance of Action, 4/17/19.

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2. Did the trial court err as a matter of law and/or abuse its

discretion in denying the Agency’s petitions to involuntarily

terminate Birth Parents’ rights pursuant to 23 Pa.C.S. §2511(a)(8)

when the Agency proved by clear and convincing evidence that

grounds for termination exist?

3. Did the trial court err as a matter of law and/or abuse its

discretion in denying the Agency’s petitions to involuntarily

terminate Birth Parents’ rights pursuant to 23 Pa.C.S. §2511(b)

when the Agency proved by clear and convincing evidence that

termination would best serve the needs and welfare of Child?

4. Are the findings of fact and credibility determinations set forth

in the [trial court’s] Opinions, dated March 19, 2019 and April 16,

2019, supported by the record?

Agency’s Brief, at 4.

In reviewing an appeal from the denial of a petition to terminate 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., 608 Pa. 9,

[26,] 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., [614

Pa. 275, 284,] 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.

2011); Christianson v. Ely, [575 Pa. 647, 654-655], 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.

As we discussed in R.J.T., there are clear reasons for

applying an abuse of discretion standard of review in these cases.

We observed that, unlike trial courts, appellate courts are not

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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., [608 Pa. at 28-

30], 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., 47 A.3d 817, 826–827 (Pa. 2012).

The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we have explained, “[t]he standard of clear and convincing

evidence is defined as testimony that is so ‘clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear conviction, without

hesitance, of the truth of the precise facts in issue.’” Id. (quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003)). “Satisfaction of the requirements

in only one subsection of Section 2511(a), along with consideration of the

provisions in Section 2511(b), is sufficient for termination.” Z.S.W., 946 A.2d

726, 729 (Pa. Super. 2008) (brackets omitted, emphasis in original).

We will consider the Agency’s issues together, as its arguments are

interrelated. In its brief on appeal, the Agency argues that it satisfied all of

the statutory requirements to support the termination of both parents’

parental rights under Section 2511(a)(5), (8), and (b) of the Adoption Act,

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and that case law required the Agency to satisfy only one subsection of Section

2511(a) in order to support termination. Agency’s Brief, at 12–13. The

Agency complains that the trial court did not discuss its reasoning for denying

the petitions with regard to Section 2511(a)(8) in its opinion dated March 19,

2019, that accompanied its order, and only discussed that section in its Rule

1925(a) opinion dated April 16, 2019. Id. at 12–13.4 The Agency argues that

the trial court’s failure to set forth support for its denial of the termination of

parental rights to Child under Section 2511(a)(8) is reversible error. Id. at

12–14.

The Agency claims that termination of both parents’ rights was

warranted due to Father’s continued substance abuse and incarceration,

Mother’s substance abuse and discontinuation of services, the length of Child’s

placement in Agency custody, and the promotion of Child’s welfare in Child’s

kinship foster home with his pre-adoptive maternal grandmother. Agency’s

Brief at 15. The Agency contends that reunification of Child with either parent

is not an appropriate or safe option for Child now or within the foreseeable

future. Id. Finally, the Agency asks us to reverse the trial court’s findings of

fact and credibility determinations set forth in the trial court’s opinions, dated

March 19, 2019, and April 16, 2019, arguing that the findings are not

supported by the record. Id. at 4, 15. Accordingly, the Agency argues that

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4 Moreover, the Agency asserts that in its denial order, the trial court

erroneously cited Section 2311 of the Adoption Act rather than Section 2511.

Agency’s Brief at 13. As this was clearly a clerical error, we do not find it to

be a basis for vacating the order of the trial court.

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the trial court should have terminated the parental rights of both parents

under Pa.C.S. § 2511(a)(5), (8), and (b).

Section 2511 of the Adoption Act provides, in relevant part, 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:

***

(5) The child has been removed from the care of the

parent by the court or under a voluntary agreement with

an agency for a period of at least six months, the conditions

which led to the removal or placement of the child continue

to exist, the parent cannot or will not remedy those

conditions within a reasonable period of time, the services

or assistance reasonably available to the parent are not

likely to remedy the conditions which led to the removal or

placement of the child within a reasonable period of time

and termination of the parental rights would best serve the

needs and welfare of the child.

***

(8) The child has been removed from the care of the parent

by the court or under a voluntary agreement with an

agency, 12 months or more have elapsed from the date of

removal or placement, the conditions which led to the

removal or placement of the child continue to exist and

termination of parental rights would best serve the needs

and welfare of the child.

***

(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

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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)(5), (8), (b).

To satisfy the requirements of Section 2511(a)(5), the moving party

must produce clear and convincing evidence regarding the following elements:

(1) the child has been removed from parental care for at least six months; (2)

the conditions which led to the child’s removal or placement continue to exist;

(3) the parents cannot or will not remedy the conditions which led to removal

or placement within a reasonable period time; (4) the services reasonably

available to the parents are unlikely to remedy the conditions which led to

removal or placement within a reasonable period of time; and (5) termination

of parental rights would best serve the needs and welfare of the child. In re

Adoption of M.E.P., 825 A.2d 1266, 1273–1274 (Pa. Super. 2003).

When addressing Section 2511(a)(8), we apply the following standard:

To terminate parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(8), the following factors must be demonstrated: (1) the

child has been removed from parental care for 12 months or more

from the date of removal; (2) the conditions which led to the

removal or placement of the child continue to exist; and (3)

termination of parental rights would best serve the needs and

welfare of the child. Section (a)(8) sets a 12-month time frame

for a parent to remedy the conditions that led to the children’s

removal by the court. Once the 12-month period has been

established, the court must next determine whether the conditions

that led to the child's removal continue to exist, despite the

reasonable good faith efforts of [the agency] supplied over a

realistic time period. Termination under Section 2511(a)(8) does

not require the court to evaluate a parent’s current willingness or

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ability to remedy the conditions that initially caused placement or

the availability or efficacy of [agency] services.

In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).

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

efforts toward the reasonably prompt assumption of full parental

responsibilities. In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002). 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. Regarding incarcerated parents, our Supreme Court

has instructed:

incarceration is a factor, and indeed can be a determinative

factor, in a court’s conclusion that grounds for termination exist

under § 2511(a)(2) where the repeated and continued

incapacity of a parent due to incarceration has caused the child

to be without essential parental care, control or subsistence and

[] the causes of the incapacity cannot or will not be remedied.

In re Adoption of S.P., 47 A.3d at 828. Our Supreme Court further

reiterated the standard of review pursuant to Section 2511(a)(1) for

abandonment and added as follows:

Applying [In re: Adoption of McCray,] the provision for

termination of parental rights based upon abandonment, now

codified as § 2511(a)(1), we noted that a parent “has an

affirmative duty to love, protect and support his child and to make

an effort to maintain communication and association with that

child.” [460 Pa. 210, 217, 331 A.2d 652, 655]. We observed that

the father’s incarceration made his performance of this duty “more

difficult.” Id.

***

[A] parent’s absence and/or failure to support due to incarceration

is not conclusive on the issue of abandonment. Nevertheless, we

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are not willing to completely toll a parent’s responsibilities during

his or her incarceration. Rather, we must inquire whether the

parent has utilized those resources at his or her command while

in prison in continuing a close relationship with the child. Where

the parent does not exercise reasonable firmness in declining to

yield to obstacles, his other rights may be forfeited.

In re Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of McCray,

331 A.2d 652, 655 (Pa. 1975)) (footnotes and internal quotation marks

omitted). Ultimately, the Court 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 care, control or subsistence.’” In

re Adoption of S.P., 47 A.3d at 830. The Court also noted that the length

of the remaining confinement can be considered as highly relevant regarding

whether termination is proper under 23 Pa.C.S. § 2511(a)(2). In re Adoption

of S.P., 47 A.3d at 830.

Regarding Section 2511(b), the court inquires whether the termination

of the parental rights would best serve the developmental, physical and

emotional needs and welfare of Child. See In re C.M.S., 884 A.2d 1284,

1286–87 (Pa. Super. 2005). “Intangibles such as love, comfort, security, and

stability are involved in the inquiry into the needs and welfare of the child.”

Id. at 1287 (citation omitted). The court must also discern the nature and

status of the parent-child bond, with utmost attention to the effect on the child

of permanently severing that bond. Id. This Court has stated:

Once the statutory requirement for involuntary termination of

parental rights has been established under subsection (a), the

court must consider whether the child’s needs and welfare will be

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met by termination pursuant to subsection (b). In re D.W., 856

A.2d 1231, 1234 (Pa. Super. 2004). 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. In re C.S., [761 A.2d 1197,

1202 (Pa. Super. 2000)].

In re Z.P., 994 A.2d at 1121. We have explained 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). In re Adoption of C.L.G., 956 A.2d 999, 1008

(Pa. Super. 2008) (en banc).

In its April 16, 2019 Rule 1925(a) opinion, the trial court stated as

follows:

In order to reach a conclusion under 23 Pa.C.S. §2511(a)(5)

that a Petition to Terminate Parental Rights should be granted and

parental rights terminated, we must find by clear and convincing

evidence the following:

The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency for a period of at least six months, the

conditions which led to the removal or placement of

the child continue to exist, the parent cannot or will

not remedy those conditions within a reasonable

period of time, the services or assistance reasonably

available to the parent are not likely to remedy the

conditions which led to the removal or placement of

the child within a reasonable period of time and

termination of the parental rights would best serve the

needs and welfare of the child.

Furthermore, it is well-settled that the fact of incarceration alone

is not sufficient to justify the termination of parental rights. In re

Adoption of S.P., 47 A.3d 817 (2012).

Based upon our careful consideration of the evidence

presented, we cannot find that Father cannot or will not remedy

the conditions within a reasonable period of time, given the

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services and assistance now available to him and his realization of

the gravity of his potential loss. Although he has been in and out

of jail for many years, and in and out of periods of sobriety for

many years, recovery from the disease of addiction is rarely

achieved after one attempt. He sincerely expresses a desire to

make a change and has taken steps to do so with his participation

in boot camp. The structure and discipline of boot camp afford

him the treatment resources and the opportunity to develop life

skills that will lead to a steady income, stability, and the ability to

parent.

In addition, we recognize that a parent’s responsibilities are

not tolled during incarceration. A parent must utilize available

resources to maintain a close relationship with the child while he

is in prison. In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.

Super. 2008). A parent is expected to be steadfast in overcoming

obstacles to maintaining the parent-child relationship. In re

Burns, 379 A.2d 535 (Pa. 1977). In this case, Father has

continued to nurture his relationship with his son despite the

constraints of incarceration. He made arrangements to see

[Child] while he was in prison. He writes letters to [Child’s]

caretaker, inquiring of the welfare of [Child]. He has a plan for

housing when he is released. He has employment options and

aspires to further his education. He enrolled in a military-style

correctional facility that provides parenting classes, self-help

groups, and drug and alcohol treatment in a therapeutic

community. (Transcript, pp. 50-51). He continues to

communicate with his caseworker at the [Agency].

Father will be released from incarceration in only three

months, at the beginning of July 2019. See In re Adoption of

S.P., 47 A.3d 817, 830 (Pa. 2012) (the length of the remaining

confinement can be considered highly relevant to whether the

conditions and causes of the incapacity or neglect cannot or will

not be remedied by the parent). In addition to the services

available to Father while in boot camp, upon his release[,] the

Agency can assess him for services to assist him in reunification

with his son. If Father fails to benefit from the resources currently

available to him, fails to follow recommended treatment for his

disease, or fails to pursue job skills, employment, and housing

after his release; if he fails to remain sober, and fails to comply

with the recommendations of the Agency, this [c]ourt will consider

all those factors if a subsequent petition for termination of

parental rights is presented.

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With respect to Mother, she has demonstrated that she

cannot or will not remedy those conditions, and is not availing

herself of the services or assistance that are likely to remedy the

conditions which led to the removal or placement of the [Child]

within a reasonable period of time. However, the purpose of the

involuntary termination provisions of the Adoption Act is not to

punish an ineffective or negligent parent. In re B.E., 377 A.2d

153, 156 (Pa. 1977). The purpose of the involuntary termination

of parental rights process is to dispense with the need for parental

consent to an adoption when, by choice or neglect, a parent has

failed to meet the continuing needs of the child. In this case,

having decided that Father’s rights should not be terminated

pursuant to section 2511(a)(5), we will not terminate Mother’s

rights under this section[,] either.

In order to reach a conclusion under 23 Pa.C.S.

§ 2511(a)(8) that a Petition to Terminate Parental Rights should

be granted and parental rights terminated, we must find by clear

and convincing evidence the following:

“The child has been removed from the care of the parent by

the court or under a voluntary agreement with an agency, 12

months or more have elapsed from the date of removal or

placement, the conditions which led to the removal or placement

of the child continue to exist and termination of parental rights

would best serve the needs and welfare of the child.”

Although more than 12 months have elapsed since the date

of [Child]’s removal from the home, one of the conditions which

led to the removal of the child does not continue to exist. Most

significantly, a condition that no longer exists is Father’s inability

to see himself as an addict with a disease in need of treatment.

Since June of 2018, Father has awakened to an understanding of

the role that addiction has played in his life since he was 20 years

old. With this insight, he has made a commitment to

rehabilitation, sobriety and self-betterment for the first time in ten

years. In other words, a condition which previously existed – that

of a parent in active addiction – no longer exists; and with that

one change, and Father’s impending release from incarceration,

other conditions such as housing and employment are likely to

follow.

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Finally, we must take into account the impact of severing

close parental ties and the resulting pain this may cause the child

when considering “the best interests of the child” standard. In re

Adoption of K.J., 936 A.2d 1128 (Pa. Super. 2007). Because

[Child] is only 2½ years old, he cannot articulate his feelings or

desires; and because we do not have the benefit of expert opinion

or a bonding assessment, we could only speculate as to the impact

the loss of [Father] in his life may have on him. However, we do

know that Father emphatically states he desires to maintain a

relationship with his child, and he is doing so, to the extent he is

able within the constraints of his incarceration. What little

evidence we have indicates that a paternal bond exists between

[Father] and son; [Child] runs to [Father] with a smile on his face

and calls him “Dada.” Under the current circumstances, we do

not find that the developmental, physical and emotional needs and

welfare of [Child] would be served by severing his relationship

with [Father].

We acknowledge that the Juvenile Act emphasizes the need

for permanency in a child’s life, because a child’s development is

enhanced in stable, permanent families. However, we are also

keenly aware that termination of parental rights is darkly, yet

accurately, referred to as “the death penalty” of dependency

court. Because of the seriousness and finality of the termination

order, we will err on the side of denying a petition, rather than

granting it; and[,] in this case, we believe it is in [Child’s] best

interests to maintain the status quo, and to give Father a

reasonable period of time from the time he is released from

incarceration to establish that he will continue to remedy the

conditions which led to the original removal and placement.

Accordingly, we do not find that [the Agency] has met its

burden of proof under section 2511(a)(8), as the conditions have

changed and termination would not best serve the needs and

welfare of [Child].

Again, having decided that Father’s rights should not be

terminated pursuant to section 2511(a)(8), we will not terminate

Mother’s rights under this section[,] either.

Accordingly, based upon the foregoing, we respectfully

suggest that the decision to deny the [p]etition to terminate

parental rights be affirmed.

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Trial Court Opinion, 4/16/19, at 10–14.5 The trial court’s determinations

regarding Sections 2511(a)(5) and (8) are supported by ample, competent

evidence in the record.

Generally, this Court has stated that a parent’s own feelings of love and

affection for a child, alone, will not preclude termination of parental rights. In

re L.M., 923 A.2d 505, 512 (Pa. Super. 2007). We have stated 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.’” In re Z.P., 994 A.2d

1108, 1125 (Pa. Super. 2010). Our Supreme Court has instructed, however,

that this Court should defer to the trial court where a “close call” was made.

See 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).

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5 In this case, the orphan’s court concluded that the Agency’s petition failed

under Sections 2511(a)(5) and (8); thus the court did not need to engage in

the second prong of termination analysis under Section 2511(b). Because the

trial court’s finding that the Agency failed to satisfy its burden of proof

pursuant to Section 2511(a) is supported by the record, the Agency’s third

issue, relating to the trial court’s failure to engage in a proper Section 2511(b)

analysis, is without merit.

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In re Adoption of S.P., 47 A.3d at 826–827. Thus, the trial court did not

abuse its discretion in refusing to terminate the parental rights of Father and

Mother pursuant to Sections 2511(a)(5) and (8).6

After a careful review of the record, we find that there was competent,

clear and convincing evidence in the record to support the trial court’s denial

of the petitions to terminate Mother’s and Father’s parental rights to Child

under Sections 2511(a)(5) and (8). Accordingly, we affirm the trial court’s

order.7

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6 We note that the trial court declined to terminate Mother’s parental rights

without engaging in a full analysis under 23 Pa.C.S. § 2511. In denying the

petition to terminate Mother’s rights, the trial court looked to the fact that the

purpose of the “Adoption Act is not to punish an ineffective or negligent

parent” and noted that involuntary termination of parental rights is intended

to dispose of the need for the parent’s consent to adoption of the child. Trial

Court Opinion, 4/16/19, at 12. Because the trial court did not terminate

Father’s parental rights, it found that no adoption proceedings would be

initiated in the near future; thus, it declined to terminate Mother’s parental

rights as well. Following a thorough review of the record, we note that the

trial court has essentially preserved the status quo. After a review of the

record and given our deferential standard on review, we find that the trial

court did not abuse its discretion in preserving the status quo in the instant

case. See In re S.P., 47 A.3d at 826 (noting that this Court should not second

guess the trial court and impose its own judgment if the trial court’s

conclusions are not the result of an error of law or an abuse of discretion).

7 Notably, on September 19, 2017, when Child was removed from Mother’s

care and custody, and Child was placed in emergency custody, Father was

incarcerated in the Washington County Prison. See N.T., 2/14/19, at 19, 24,

33. As such, Child was not removed from Father’s care and custody, and

neither subsection (a)(5) nor (a)(8) was applicable to the termination of

Father’s parental rights. See In re Z.P., 994 A.2d at 1123 n.2 (providing that

subsections (a)(5) and (a)(8) do not apply when a natural father is

incarcerated and has had no custody of the child). We, nevertheless, have

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2019

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written to express our agreement with the trial court’s reasoning in this

matter.

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