J-E01004-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: A.K., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.K., FATHER : : : : : : No. 87 EDA 2025
Appeal from the Decree Entered December 10, 2024 In the Court of Common Pleas of Wayne County Civil Division at No(s): 2024-00024
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., SULLIVAN, J., and LANE, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 5, 2026
Appellant, J.K. (“Father”), appeals from the December 10, 2024 decree
entered in the Wayne County Court of Common Pleas that terminated his
parental rights to then-12-year-old A.K. (“Child”). Father avers that Wayne
County Children and Youth Services (the “Agency”) failed to present clear and
convincing evidence to terminate his parental rights pursuant to 23 Pa.C.S.
§§ 2511(a) and (b). Because the record supports the trial court’s finding that
Father has only had intermittent involvement throughout the twelve years of
Child’s life, we affirm.
We glean the relevant factual and procedural history from the trial court
opinion and the certified record. Father and K.Y. (“Mother”) are parents to J-E01004-26
Child, who was born in June 2012.1 Child and his family have a long history
of Agency involvement. The trial court first adjudicated Child dependent in
2016, after he was physically abused by Mother’s paramour. The Agency
eventually returned Child to Mother’s care. In November 2022, the Agency
placed Child in foster care after Mother signed a voluntary placement
agreement in response to concerns that Mother’s mental health was
deteriorating, Child was potentially unsupervised and unsafe in the home, and
Child was begging for food. At the time, Father was not an appropriate
placement resource because Father had never had custody of Child, had not
been consistent in Child’s life, had a history of alcohol abuse and domestic
violence, and had not seen Child in over one year.
In December 2022, the court adjudicated Child dependent and ordered
Child to remain in the custody of the Agency. On December 27, 2022, the
Agency developed a permanency plan for Father with a goal of reunification.
Father’s objectives included: remain crime-free; support Child in treatment;
become a safe and supportive parent; and cooperate with the Agency. N.T.
Hr’g, 12/6/24, at 9-10. Between December 2022 and April 2023, Father
attended 44 out of 55 visits with Child but did little else to demonstrate that
he could safely care for Child on a full-time basis and, thus, reunify with Child.
____________________________________________
1 On December 10, 2024, the trial court terminated Mother’s parental rights
to Child. Mother is not a party to this appeal and did not appeal the December 10, 2024 order.
-2- J-E01004-26
In April 2023, police arrested Father for Simple Assault. In June 2023,
Father began serving a sentence at SCI-Waymart, with a minimum release
date of October 2024 and a maximum release date of April 2027. While
incarcerated, Father consistently attended virtual visits with Child. Following
a goal change hearing in May 2024, Father and Child had a final visit together
on June 14, 2024.
On August 27, 2024, the Agency filed a petition to terminate Father’s
parental rights. The court appointed a guardian ad litem (“GAL”) as well as
legal counsel for Child. The termination petition alleged that Father only had
“limited involvement” with Child prior to dependency, had no court-ordered
custody or visitation rights, and had not seen Child for “over a year” prior to
the Agency’s involvement. TPR Petition, 8/27/24, at ¶10. The petition also
cited his incarceration, his moderate compliance with the permanency plan
throughout the dependency period, his minimal “progress towards alleviating
the circumstances of placement[,]” and the fact that Child had been in care
for 15 months with no prospect of safely returning to Father’s care. Id. At
the time of the petition’s filing, Child lived with a foster family.
The parties proceeded to a hearing on December 6, 2024. The Agency
presented testimony from Stephanie Bryant, Assistant Director of the Agency.
Father, who appeared remotely due to incarceration, testified on his own
behalf. The court also took judicial notice of the underlying dependency
proceedings.
-3- J-E01004-26
Ms. Bryant testified consistently with the above facts. She stated that
Father’s compliance with the permanency plan was “moderate” between
March 2023 and May 2024, but that he did not comply after May 2024. N.T.
Hr’g at 9. Regarding Father’s progress towards reunification with Child, she
testified that Father made “minimal” progress between October 2023 and May
2024, and no further progress after May 2024. Id.
Ms. Bryant further testified that Father and Child have a bond, but that
it would be in Child’s best interest to “sever that bond.” Trial Ct. Op., 1/17/25,
at 4. On cross-examination, she explained that she does not think Father is
capable of performing parental duties for Child because he “has had eleven
years to remedy the situation that led [Child] to care. He has never been
successful in being a full-time parent to [Child]. He has always been in and
out of incarceration[,] always dealing with substance abuse[,] and he has not
shown any stability in his own life[.]” Id. at 14. Finally, she explained that
Child’s current placement was in a diagnostic treatment program, but that the
Agency has identified a family that would be a “likely candidate to adopt”
Child. Id. at 14-16.
Father testified on his own behalf, explaining that his minimum parole
date had passed, and he was waiting to hear the results of his latest parole
hearing. He further testified that he planned to live with his parents in
Honesdale, Pennsylvania, following his release, but noted that the separate
apartment at their home needed repairs in order to be livable, and that there
-4- J-E01004-26
was not a separate bedroom for Child. He also stated that he would be
employed after his release.
Father also testified that he has had an informal custody arrangement
with Mother since Child was 5 years old, but he had never sought custody
through the courts, fearing that Mother would prevent him from seeing Child
if he indicated that he wanted a formal custody arrangement. He further
testified that he did not want the court to terminate his parental rights and
that he would be willing to do what was necessary for Child, including going
to therapy with him.
On December 10, 2024, the court issued an order terminating Father’s
parental rights pursuant to Sections 2511(a)(2), (5), (8) and (b).
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
Father raises the following issues for our review:
1. Whether the trial court erred as a matter of law in determining that [the Agency] had met its burden of proof in this involuntary termination of parental rights in this matter?
2. Whether the trial court erred as a matter of law in determining that termination of parental rights of [Father] was warranted?
3. Whether the trial court erred as a matter of law in determining that termination of parental rights of [Father] was in the best interests of [Child]?
-5- J-E01004-26
Father’s Br. at 8 (reordered for ease of disposition). 2
***
In cases involving the involuntary termination of parental rights, our
review is limited to determining whether the trial court’s conclusion is
supported by competent evidence. In re Adoption of L.A.K., 265 A.3d 580,
591 (Pa. 2021). When we review a trial court’s decision to grant or deny a
petition to involuntarily terminate parental rights, we must accept the findings
of fact and credibility determinations of the trial court if the record supports
them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings
are supported, appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. (citation omitted). “Absent an abuse
of discretion, an error of law, or insufficient evidentiary support for the trial
court’s decision, the decree must stand.” In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009) (citation omitted). We may not reverse “merely because
the record would support a different result.” T.S.M., 71 A.3d at 267. We give ____________________________________________
2 Father’s attorney, Steven Burlein, Esq., originally filed a petition to withdraw
as counsel as well as an Anders brief indicating that, upon review, Father’s appeal was wholly frivolous. See Anders v. California, 386 U.S. 738 (1967). Father did not respond. Two judges of a three-judge panel of this Court reversed the trial court’s decision to terminate Father’s parental rights and granted Attorney Burlein’s request to withdraw. The author of this Memorandum issued a dissent, finding the evidence sufficient to terminate Father’s parental rights. The Agency and the GAL both filed timely petitions for reargument, which this Court granted and withdrew its previous decisions. Attorney Burlein has now filed an advocate’s brief for review by this en banc panel. Accordingly, Attorney Burlein’s request to withdraw as counsel is now moot.
-6- J-E01004-26
great deference to the “trial courts that often have first-hand observations of
the parties spanning multiple hearings.” Id. “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. 2004) (citation omitted).
It is axiomatic that “[p]arents enjoy a fundamental right to make
decisions regarding the care, custody and control of their children. It cannot
be denied that significant and permanent consequences for both the parent
and child can follow the termination of parental rights, as there is an
undeniable importance in a child’s relationship with a biological parent.”
L.A.K., 265 A.3d at 591 (internal citations omitted). Accordingly, “[i]n
recognition of the gravity attendant to the termination of parental rights, the
moving party must establish the statutory grounds by clear and convincing
evidence; that is, evidence that is so clear, direct, weighty and convincing as
to enable a trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts [at] issue.” Id. at 592 (citations and internal
quotation marks omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, which governs
termination of parental rights, requires a bifurcated analysis. “Initially, the
focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). As discussed above, “[t]he
party seeking termination must prove by clear and convincing evidence that
the parent’s conduct satisfies the statutory grounds for termination delineated
-7- J-E01004-26
in Section 2511(a).” Id. (citation omitted). “[I]f the court determines that
the parent’s conduct warrants termination” of his parental rights, the court
then engages in “the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the standard of best
interests of the child.” Id. (citation omitted). Notably, we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S.,
946 A.2d 753, 758 (Pa. Super. 2008). In its opinion, the court concluded that
termination was warranted pursuant to Sections 2511(a)(2), (5), and (8). We
concentrate our analysis in this case on 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); see also In re Adoption of S.P., 47
A.3d 817, 827 (Pa. 2012). The grounds for termination of parental rights
under Section 2511(a)(2) due to parental incapacity are not limited to
affirmative misconduct; “those grounds may [also] include acts of refusal as
well as incapacity to perform parental duties.” In re Adoption of C.D.R.,
111 A.3d 1212, 1216 (Pa. Super. 2015) (citation omitted), abrogated on other
-8- J-E01004-26
grounds by In re K.T., 296 A.3d 1085 (Pa. 2023). “Parents are required to
make diligent efforts toward the reasonably prompt assumption of full parental
duties.” In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019). Notably, 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.” In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (citation
omitted).
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
care, control, or subsistence.” S.P., 47 A.3d at 830 (citation and internal
quotation marks omitted).
Finally, “sincere efforts to perform parental duties” may still be
insufficient to remedy an incapacity. Z.P., 994 A.2d at 1117 (citation
omitted). This is because subsection (a)(2) “emphasizes the child’s present
and future need for essential parental care, control or subsistence necessary
for his physical or mental well-being[,]” especially “where disruption of the
family has already occurred and there is no reasonable prospect for reuniting
it.” Id. (citation omitted).
The trial court emphasized that Father had failed to perform parental
duties for Child throughout Child’s entire life and that Father was unlikely to
be able to perform parental duties any time soon. The trial court opined:
-9- J-E01004-26
the parenting deficits that led to the removal of [Child] from the care of [] Father still existed and were not likely to be remedied within a reasonable period of time. It is evident that Father had not been able to maintain custody and control of [Child] and is not able to progress toward alleviating the circumstances that led to [Child’s] placement with [the Agency], such as being a law[- ]abiding citizen, supporting [Child,] and being a safe, responsive parent. [Child], who was 12 years old at the date of the hearing, deserves permanency.
Trial Ct. Op. at 3.
Based on our review, we conclude that the trial court properly exercised
its discretion in terminating Father’s parental rights pursuant to Section
2511(a)(2). Ms. Bryant’s unrebutted testimony established that Father had a
history of domestic violence, substance abuse, and incarceration. Id.; N.T.
Hr’g at 8, 11. Additionally, although Father attended visits with Child following
the commencement of the dependency proceeding in December 2022, he had
not had contact with Child in the year prior to that proceeding and has never
been a full-time parent to Child. N.T. Hr’g at 8, 17. Most importantly, Father’s
intermittent contact with Child throughout Child’s life and lack of effort to care
for Child on a regular basis demonstrated that he could not provide safety,
security, and stability for Child on a full-time basis and, thus, be reunified with
Child. Father’s supervised visits do not overcome the evidence in the record
that Father lacked the capacity to parent Child on a regular basis. Accordingly,
the record supports the court’s finding that Father has not made reasonably
prompt progress towards being a safe, supportive, and responsive parent.
Trial Ct. Op. at 3.
- 10 - J-E01004-26
Father argues that the Agency failed to present clear and convincing
evidence to terminate under Section 2511(a) because it relied exclusively on
the testimony of Ms. Bryant, who is the Assistant Director of the Agency,
rather than a social worker who had regular contact with Child. Appellant’s
Br. at 22. We remain unpersuaded. Ms. Bryant explained that even though
she was promoted to Assistant Director, that she was previously “the
supervisor that oversaw [Child]’s case through the dependency and [had]
prior knowledge of his family since [she] started at the [A]gency thirteen years
ago.” N.T. Hr’g at 5. It was within the trial court’s discretion to place weight
on Ms. Bryant’s uncontradicted testimony, and her testimony serves as
support for the trial court’s findings.
Accordingly, the court properly concluded that Father had failed to
provide essential parental care, control, and subsistence to Child, and that
Father could not remedy his parenting deficits within a reasonable period of
time. Thus, we discern no abuse of discretion in the court’s decision to
terminate Father’s parental rights under Section 2511(a)(2).
***
Regarding Section 2511(b), our analysis focuses on the effect that
terminating parental rights will have on the child. We review the court’s
conclusion as to “whether termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of the child.” In
re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled
that “[i]ntangibles such as love, comfort, security, and stability are involved
- 11 - J-E01004-26
in the inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005). “The court must consider whether the children
are in a pre-adoptive home and whether they have a bond with their foster
parents.” Interest of K.T., 296 A.3d 1085, 1106 (Pa. 2023) (citation
omitted).
“One major aspect of the needs and welfare analysis concerns the
nature and status of the emotional bond between parent and child, with close
attention paid to the effect on the child of permanently severing any such
bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa. Super. 2018)
(citation omitted). If a bond exists, the court must consider whether
terminating parental rights would destroy an “existing, necessary, and
beneficial relationship.” K.T., 296 A.3d 1109 (Pa. 2023) (citation omitted).
Our Supreme Court has explained:
Obviously, attention must be paid to the pain that inevitably results from breaking a child’s bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be necessary for the child’s needs and welfare in cases where the child’s parental bond is impeding the search and placement with a permanent adoptive home.
T.S.M., 71 A.3d at 269. Moreover, “[i]n weighing the difficult factors
discussed above, courts must keep the ticking clock of childhood ever in mind.
Children are young for a scant number of years, and we have an obligation to
- 12 - J-E01004-26
see to their healthy development quickly.” Id. Ultimately, the concern is the
needs and welfare of the child. Z.P., 994 A.2d at 1121.
The trial court concluded that termination was in Child’s best interests
pursuant to Section 2511(b) “because it would best serve [Child’s]
developmental, physical, and emotional needs and welfare.” Trial Ct. Op. at
4. The court found credible Ms. Bryant’s testimony that although Father and
Child had a bond, she “believed it would be in [Child’s] best interest for the
[c]ourt to sever that bond.” Id. at 3. The court opined that, “[a]lthough
Father and [Child] have had remote visits via Zoom during Father’s
incarceration, Father has not been able to effectively and appropriately
provide [Child] with his parental needs[,]” that Father confirmed that he had
never sought custody of Child prior to Child’s placement with the Agency, and
that Child would not be able to live with Father immediately upon parole
because his housing needed renovations and did not have a separate bedroom
for Child. Id. at 4. Finally, the court noted Ms. Bryant’s testimony that the
Agency “had identified a family as a likely candidate to adopt [Child], which
would bring security and stability to [Child’s] life.” Id.
The record supports the trial court’s findings. Although Ms. Bryant
testified that Father and Child have a bond, she also opined that severing the
bond would be in Child’s best interest. N.T. Hr’g at 11-12. The record
demonstrates that Child’s relationship with Father has lacked stability and
consistency due to Father’s intermittent presence in Child’s life. In fact, Father
- 13 - J-E01004-26
did not visit with Child for over a year prior to the Agency’s involvement.
Father has never been a full-time parent to Child and is unlikely to be able to
perform the necessary parental duties anytime soon. Just because Child and
Father have a bond, does not mean that it is a necessary and beneficial bond.
On the contrary, the record shows that for over a decade Father has failed to
consistently provide love, comfort, security, and stability to Child. The court
also observed that the potential adoptive resource could provide that
permanency and stability to Child. We discern no abuse of discretion. 3
Father argues that the trial court erred when it relied solely on Ms.
Bryant’s testimony regarding parent-child bond without the benefit of any
additional supporting testimony or evidence. Father’s Br. at 23. Father
further argues that the record is devoid of any testimony or evidence
regarding then-twelve-year-old Child’s position or feelings regarding adoption.
Id. Finally, Father asserts that adoption is not in Child’s best interest because,
at the time of the hearing, Child was no longer placed in a pre-adoptive home
____________________________________________
3 The dissent implies that Father had a meaningful and beneficial bond with
Child because Child is twelve years old rather than two years old. See Dissenting Memorandum at 21. We reject this proposition because even though Child is twelve years old, Father, through his lack of effort, never cared for Child on a consistent basis and, therefore, never had the opportunity to develop a meaningful and beneficial parent-child bond. At best, Father was a friend to Child for the past twelve years. Moreover, given Child’s age and the “ticking clock of childhood,” every moment of delay in achieving permanency poses a threat to Child’s best interest. See T.S.M., 71 A.3d at 269.
- 14 - J-E01004-26
but, rather, in a residential treatment facility. Id. Father’s arguments are
unavailing.
It is well-settled that “the [trial] court is free to rely upon the
assessments of social workers and caseworkers” with regards to bond. In re
Adoption of J.N.M., 177 A.3d 937, 945 (Pa. Super. 2018). We discern no
error in the trial court basing its findings on Ms. Bryant’s testimony.
Moreover, our Supreme Court has explained that there is no bright-line
rule requiring counsel and the courts to place Child’s preferred outcome on
the record:
Children for whatever reason may understandably resist stating whether their parents’ rights should be terminated and may be averse to declaring their preference between their natural and foster parents. While we recognize that it may be a best practice for a child's legal counsel to divulge the child's preferences in order to advocate for their client's preferred outcome, we find nothing in the language of the Adoption Act requiring that their preference be placed on the record, which instead only requires that the child be appointed counsel. Moreover, we observe that the child's legal counsel has a duty of confidentiality to their client, the child, such that they should not be compelled to disclose the child's preferences. We are thus wary to create a bright-line rule requiring counsel and the courts to place the children's preferred outcome on the record as we are concerned by both the potential violation of a child's attorney-client privilege and with the real specter of placing unconscionable stress on a child by mandating that her feelings regarding her parents and caretakers be made public and permanently enshrined in the record.
In re Adoption of K.M.G., 240 A.3d 1218, 1237–38 (Pa. 2020). Based on
the above, we conclude that the trial court did not abuse its discretion when
it made a finding regarding Child’s best interest without ascertaining Child’s
preference.
- 15 - J-E01004-26
Finally, this Court has clarified that the “termination statute does not
require children to be placed in a pre-adoptive home as a precondition to
termination of parental rights.” In re K.C.F., 928 A.2d 1046, 1054 (Pa.
Super. 2007) (citing 23 Pa.C.S. § 2511). Therefore, the trial court was within
its discretion to find that a termination of Father’s parental rights was in Child’s
best interest even though Child was not placed in a pre-adoptive home.
***
In sum, bearing in mind our required standard of review, we discern no
abuse of discretion in the court’s decision to terminate Father’s parental rights
under Sections 2511(a)(2) and (b). The record supports the trial court’s
findings and we decline to usurp the court’s credibility determinations or
reweigh the evidence.
Based on Ms. Bryant’s testimony, the trial court properly concluded that
Father had failed to provide essential parental care, control, and subsistence
to Child, and that Father could not remedy this and reunify with Child within
a reasonable period of time pursuant to Section 2511(a)(2). Unfortunately,
the record is clear that between the time that the trial court adjudicated the
Child dependent and the termination hearing, Father had not demonstrated
the ability to provide safety, security, and stability for Child on a full-time basis
and failed to demonstrate that he would be able to reunify with Child anytime
soon. In addition, the record supports the court’s finding that termination
would be in Child’s best interest because the evidence established that Child’s
- 16 - J-E01004-26
relationship with Father has lacked stability and consistency due to Father’s
intermittent presence in Child’s life.
On a final note, we recognize that the record in this case is decidedly
sparse. However, our standard of review compels this Court to focus on
whether the record supports the trial court’s findings rather than contemplate
what evidence could bolster the trial court’s findings. Moreover, especially in
cases that are close calls, we must show deference to the trial court’s findings.
We may not reverse “merely because the record would support a different
result,” and we decline to do so. See T.S.M., 71 A.3d at 267.
Decree affirmed. Petition to withdraw as counsel denied as moot.
President Judge Lazarus joins the Memorandum as well as President
Judge Emeritus Panella, and Judges Kunselman and McLaughlin.
Judge Sullivan files a Dissenting Memorandum which Judges Stabile,
King, and Lane join.
Date: 8/5/2026
- 17 -