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

Citation:47 A.3d 817
Opinion Judge:BAER, Justice.
Party Name:In re ADOPTION OF S.P. Appeal of Washington County Children and Youth Services.
Attorney:Joyce A. Hatfield-Wise, for Washington County Children And Youth Services. Erin Whiteley Dickerson, for S.P. Mari Ann Hathaway, for G.P. Kathleen Marie Creamer, Community Legal Services, for Community Legal Services, Inc.
Case Date:May 17, 2012
Court:Supreme Court of Pennsylvania

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47 A.3d 817 (Pa. 2012)


Appeal of Washington County Children and Youth Services.

Supreme Court of Pennsylvania.

May 17, 2012

Argued April 10, 2012.

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Joyce A. Hatfield-Wise, for Washington County Children And Youth Services.

Erin Whiteley Dickerson, for S.P.

Mari Ann Hathaway, for G.P.

Kathleen Marie Creamer, Community Legal Services, for Community Legal Services, Inc.



BAER, Justice.

We granted allocatur in the above-captioned case to consider the Superior Court's application of the standard of review and to evaluate the relevance of a parent's incarceration to a trial court's decision to terminate a father's parental rights under 23 Pa.C.S. § 2511(a)(2). For

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the reasons set forth below, we reverse the Superior Court and reinstate the trial court's order terminating parental rights.

G.P. (" Father" ), then nineteen, and B.D. (" Mother" ), then approximately seventeen, were involved in an intimate relationship prior to Father's incarceration in December 2004 for the shooting death of his stepfather. While Father was incarcerated, S.P. (" Child" ) was born in May 2005. According to documents in the record, at the time of Child's birth Mother was living with a foster family and had been involved with the Washington County Children and Youth Services (" CYS" ) for several years. After Child's birth, Mother took her to visit Father several times while he was incarcerated at the county prison awaiting trial. In December 2005, Child was declared dependent, when Mother tested positive for THC, a chemical found in marijuana, and was involved in a domestic assault in the presence of Child. Following the declaration of Child's dependency, Mother and Child apparently moved between several foster homes and Child's grandmother's home.

In January 2006, Father pled guilty to third degree murder and was sentenced to five to ten years of incarceration to be served at a state correctional facility. Father petitioned and the trial court granted one contact visit with Child before Father was transferred to the state facility. After Father was transferred, the trial court denied Father's February 2006 request for a contact visit due to concerns over the exposure of the young child to the state facility and the absence of an existing relationship or bond with Father. Father filed an appeal of the trial court's order, which the Superior Court quashed as a result of Father's untimely Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal. While in prison, Father participated in classes including anger management and vocational training and sent cards and gifts to Child. However, he did not provide any financial support from his prison wages.

In July 2007, CYS filed an Emergency Shelter Petition after CYS employees were unable to contact Mother to ensure the safety of Child, who continued to live with her. After the hearing on the petition, the trial court placed Child in the care of her maternal great-aunt. In October 2007, Mother gave birth to N.D., Child's half-sister, who was soon thereafter adjudicated dependent and placed in foster care. In November 2007, Child was placed with her half-sister's foster care family. In September 2008, Mother voluntarily relinquished her parental rights to Child. In December 2008, the trial court changed Child's goal to adoption and placed Child and N.D. in the care of a maternal great-aunt and uncle. At the goal change hearing, testimony was presented that Child suffered developmental delays and had a possible diagnosis of autism, all of which required approximately six appointments each week with various professionals.

In March 2009, the trial court held a hearing on a petition filed by CYS to terminate Father's parental rights. CYS asserted that Father's rights should be terminated under 23 Pa.C.S. § 2511(a)(2), which provides: 1

§ 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:

* * *

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(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.

In considering CYS's petition for termination, the trial court recognized that to establish grounds for termination under § 2511(a)(2), CYS must prove by clear and convincing evidence that the parent's " repeated and continued incapacity ... has caused the child to be without essential parental care, control or subsistence ... and that the conditions and causes of the incapacity ... cannot or will not be remedied by the parent." The court noted that " grounds for termination under subsection (a)(2) are not limited to affirmative misconduct; those grounds may include acts of incapacity to perform parental duties." Tr. Ct. Op. at 5. The court further opined, " Although incarceration will certainly impact a parent's capability of performing parental duties, and may render a parent incapable of performing parental duties under subsection (a)(2), incarceration alone is not sufficient to support termination under any subsection." Id. (emphasis in original).

The trial court emphasized that Father had been incarcerated since prior to Child's birth and that he did not have a relationship with Child due to his incarceration. The court stressed that Father had never been able to provide for Child and had not sent Child any of his prison earnings. Additionally, the court noted that, at the time of his incarceration, Father did not have his own housing, employment, or transportation, and had previously been adjudicated delinquent. Accordingly, the court concluded that Father had been incapable of providing for Child since her birth, and was unable to " maintain" a relationship with Child because one never existed. Noting that Child's special needs required a " caregiver who can provide almost constant attention to her needs," the court found that " Father does not currently have the ability to be such a caregiver, nor is it clear when in the future, if ever, he will be capable of doing so." Tr. Ct. Op. at 7.

The trial court concluded that Father's parental rights should be terminated under 23 Pa.C.S. § 2511(a)(2). Specifically, the court observed that, even though there was no affirmative act of Father that resulted in Child being forced into foster care, Father admitted that his incarceration resulted in Child's placement because his absence caused her to be without essential parental care and control. The court further held that the incapacity would not be remedied by Father because even if he would be released on parole at the first possible date in August 2009, he would enter a halfway house, and still need to obtain housing and employment. Again, considering Child's special needs, the court concluded " it is not likely that Father will be capable of providing the care and parenting that [Child] needs in a reasonable amount of time." Tr. Ct. Op. at 8. Recognizing that Father could not provide a date certain when he would be able to parent Child, the court held that Child's " need for permanence and stability will not be subordinated to a parent's claims of progress or hope for the future." Tr. Ct. Op. at 8.

Having concluded that grounds for termination existed under § 2511(a)(2), the trial court turned to the considerations of § 2511(b), regarding the best interests of the Child:

(b) Other considerations.— The court in terminating the rights of a parent shall give primary consideration to the

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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(b).

In addressing these considerations, the court again emphasized that Child does not have a relationship with Father, that Father will not be able to provide for Child's special needs in any reasonable period of time because even if he is released, " it is unlikely that Father will be able to obtain housing, employment, transportation, fulfill his responsibilities while on parole and provide the care [Child] needs, including transporting her to almost daily therapy appointments and caring for her special needs on a daily basis." Tr. Ct. Op. at 9. The court also recognized Child's strong bond with her half-sister, with whom she has lived since her half-sister was born in October 2007, and observed that placing Child with Father would result in separating her from her half-sister. Given these considerations, the court granted the petition to terminate Father's parental rights concluding that termination would best serve the needs and welfare of Child pursuant to § 2511(b).

Father appealed to the Superior Court, which vacated the trial court's June 2009 decision in October 2010. The Superior Court then granted CYS's application for reargument, withdrew its prior decision, and heard the case en banc. In August 2011, the Superior Court again vacated the trial court's decision to terminate Father's parental rights...

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