Opinion
No. 1217 EDA 2021 No. 1218 EDA 2021
12-30-2021
In the INTEREST OF: H.W., a Minor Appeal of: M.W., Father In the Interest of: H.W., a Minor Appeal of: M.W., Father
MEMORANDUM BY McCAFFERY, J.:
M.W. (Father) appeals from the orders entered in the Philadelphia County Court of Common Pleas, terminating his parental rights to his four-year old son, H.W. (Child) and changing the dependency goal to adoption. Father argues the Department of Human Services (DHS) agency improperly focused solely on the fact of his incarceration, and failed to meet its burden of proof. After careful review, we agree and conclude the trial court erred in finding DHS established grounds for termination under 23 Pa.C.S. § 2511(a)(1), (2), (5), or (8). Accordingly, we reverse both orders.
This Court consolidated Father's two appeals. We further note that the parental rights of H.W.'s mother, A.B. (Mother), were also terminated that same day, June 1, 2021. Mother's appeals are currently pending before this same panel at 1281 EDA 2021 et seq .
H.W. has two half-siblings, J.B. and M.J. The parental rights of their father, G.J., were likewise terminated. His appeals are pending before this Court at 1344 EDA 2021, 1345 EDA 2021, 1346 EDA 2021, and 1347 EDA 2021.
I. Facts & Procedural History
Child was born in March of 2017, and Father has been incarcerated for the duration of Child's life. N.T., 4/28/21, at 59. We note DHS also filed termination and goal changes petitions for Child's older half-sibling, J.B., born in 2013, and younger half-sibling, M.J., born in 2018. Throughout this case, the trial court has reviewed the dependency matters for all three children together.
No father was listed on Child's birth certificate. Trial Ct. Op., 7/27/21, at 2.
The evidence and procedural history concerning Mother, as well as her care of Child, J.B., and the third sibling, M.J. has been set forth in detail in the trial court's opinion. As the parties and trial court are well familiar with that history, we do not reproduce the entirety of it here. See Trial Ct. Op. at 2-13. Instead, we summarize the following.
In August of 2018, DHS received a general protective services (GPS) report, that another older half-sibling, J.T., was receiving trauma therapy for post-traumatic stress disorder, "stemmed from severe physical and psychological abuse by his Mother[.]" Trial Ct. Op. at 2. The report also alleged
Mother was physically abusive to J.B. and J.T.[,] there was an active Protection from Abuse (PFA) Order against Mother on behalf of the Children; that Mother had been arrested for violating the PFA Order by stalking J.T.'s Father and trying to contact him in retaliation for losing custody of J.T.; that Mother had a criminal history of assault in the past; that Mother had a history of severely abusing the Children; and that Mother was diagnosed with substance abuse and depression. This Report was determined to be valid.
On October 11. 2018, DHS implemented In-Home Services ... through Community Umbrella Agency (CUA) Turning Points for Children (TP4C).
Id. at 3 (record citations omitted).
On January 24, 2019, DHS received a child protective services (CPS) report
that Mother was not adequately supervising her Children; that [Child] had a burn on his back that he sustained from hot grease two weeks prior to the Report; that it was unknown how [Child] had sustained the burn; that [Child's] burn appeared severe; that Mother did not seek medical care for [Child]; and that Mother was not present in the home at the time of the incident.
The Report alleged that Mother did not have a good relationship with her Children; that Mother yelled a lot at the Children and hit the Children to control their behavior; and that [J.B.] resided with his Father[.] The Report further alleged ... that Mother displayed behaviors which possibly suggested that she suffered from mental health issues; and that Mother used phencyclidine (PCP). This Report was determined to be indicated.
Trial Ct. Op. at 4-5 (paragraph break added and record citations omitted). A second report, issued the following day, stated "H.W. was diagnosed with a 2nd degree burn with a surface area wound measuring ten centimeters by seven centimeters on his upper back region[.]" Id. at 7.
Child was adjudicated dependent on June 6, 2019, when he was two years old. On February 16, 2021, DHS filed petitions to involuntarily terminate both Father's and Mother's parental rights, and on March 2nd, petitions to change Child's permanency goal to adoption. The trial court conducted a hearing on April 28, 2021; we note that at this time, Child had recently turned four years old. Father was incarcerated at SCI-Somerset and appeared by telephone. He was represented by counsel. We note the testimony given by and about Father was not disputed.
"In 2015, [Father pleaded] guilty to the unlawful possession of controlled substance." Trial Ct. Op. at 8. In 2017 — the year of Child's birth — Father pleaded guilty to endangering the welfare of a child, aggravated assault, simple assault, and recklessly endangering another person. N.T., 4/28/21, at 18. In December of 2017, he received a sentence of three to six years' imprisonment. Id. Father's minimum release date was May of 2022. Id. at 62, 102. No further information about his criminal offenses was presented. See id. at 18. As stated above, Father was incarcerated at the time of Child's birth, and has remained incarcerated throughout Child's life. Id. at 59.
Jasmine Jackson, the case manager with Turning Points for Children, testified to the following. Father was not "any indicator for perpetrator of [the CPS] reports." N.T., 4/28/21, at 126. He initially had one "single case plan objective[ ]:" "to maintain contact with [her] for case planning. Id. at 103, 127. Case Manager Jackson did have communication with Father, by letter and telephone. Id. at 61. When Father informed her he was taking parenting and GED classes at the prison, both were added to his single case plan objectives. Id. at 103. These were his only case plan goals. Id. at 127.
Furthermore, Case Manager Jackson observed telephone conversations between Child and Father, when Mother called Father during her visits with Child. N.T., 4/28/21, at 104. Based on these telephone calls, Case Manager Jackson believed there was no parent-child bond between Father and Child. Id. However, she also testified "everything [was] appropriate during those phone conversations." Id. at 126. Father requested virtual visits with Child and provided the name of a contact person, but when Case Manager Jackson contacted that person, she did not receive a reply. Id. at 126-27. Additionally, Father has not had telephone contact with Child through the foster parents. Id. at 126.
Father testified to the following. Due to the COVID-19 pandemic, all prison programs, "except for school[,]" were "stopped." N.T., 4/28/21, at 108. However, prior to the pandemic, he was participating in both GED and parenting classes, and he was to begin violence prevention class in the fall of 2021. Id. at 109. Mother previously brought Child to visit him weekly at county jail, and Child was excited to see him, and would smile and laugh. Id. at 109-10. He wished for Child to return to Mother, testifying, "[T]he children would have food. ... And they had clothes that still had tags on them. So I never really had nothing bad to say about her or show she treated the children." Id. at 110. Father wished that he were at home, so that his relationship with Child "would be better than what it is now." Id. at 111. However, he acknowledged, "[D]ue to the fact that I've been gone for so long, he probably wouldn't even remember me." Id. Father likewise testified that he discussed having virtual visits with Case Manager Jackson, who "wrote an e-mail to the deputy that work[s] in visitation that can help with these kinds of visits[.]" Id. Father "check[s] in" about the visits "here and there," but has not received any further information. Id.
When asked why reunification between Father and Child has "been ruled out," Case Manager Jackson responded: "Due to his incarceration and his continued incarceration. He's not available to be a resource for the child." N.T., 4/28/21, at 103. She also testified she did not believe termination of Father's rights would cause irreparable harm to Child. Id.
The trial court held a second hearing on June 1, 2021, at which the court heard testimony from J.B. and M.J.'s father. At this juncture, we note the children were removed from their foster home in February of 2021 "due to a valid report of inappropriate discipline." N.T., 4/28/21, at 105, 125. The three children — Child, J.B., and M.J. — were living in different foster homes. N.T., 6/1/21, at 79.
At the end of that hearing, the trial court terminated Father's parental rights to Child, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). The court also terminated Mother's rights to her three children, and changed all three children's goals to adoption. Father timely filed a notice of appeal and Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on appeal.
II. Statement of Questions Involved
Father presents the following issues for our review:
1. Did the Trial judge rule in error that [DHS met] its burden of proof that Father's parental rights to his child be terminated[?]
2. Did the trial judge rule in error that the termination of Father's parental rights would best serve the needs and welfare of [Child?]
3. Did the Trial judge rule in error that [DHS met] its burden of proof that the goal be changed to adoption[?]
4. Did the judge rule in error that it was in the child's best interest to change the goal to adoption[?]
Father's Brief at 5.
III. Standard of Review for Termination & Section 2511
We note the general standard of review for the termination of parental rights:
[W]e are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
Interest of C.S. , 761 A.2d 1197, 1199 (Pa. Super. 2000) (en banc ) (citations omitted).
We further note the standard of review of a goal change order:
Appellate review of goal change determinations is equally deferential. In a change of goal proceeding, the best interests of the child and not the interests of the parent must guide the trial court, and the burden is on the child welfare agency involved to prove that a change in goal would be in the child's best interest.
In re R.I.S. , 36 A.3d 567, 573 (Pa. 2011) (citations omitted).
Section 2511 of the Adoption Act governs involuntary termination of parental rights. See 23 Pa.C.S. § 2511. Here, the trial court found grounds for termination under the following subsections:
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(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.
* * *
(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 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.
See 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), (b).
Section 2511 requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b) : determination of the needs and welfare of the child under the standard of best interests of the child. 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 L.M. , 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Our Supreme Court has stated:
The party seeking the termination of parental rights bears the burden of proving that grounds for termination exist by clear and convincing evidence. 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 hesitation, of the truth of the precise facts in issue. Although this court has stated that the standard of review for an appellate court in these matters is limited to the determination of whether the trial court's decree is supported by competent evidence, we have also explained that the factual findings of the trial court should not be sustained where the court has abused its discretion or committed an error of law.
In re R.I.S. , 36 A.3d at 572 (citations omitted).
Our Supreme Court has addressed the termination of an incarcerated parent's parental rights:
This Court has long held that a parent's absence or failure to support his or her child due to incarceration is not, in itself, conclusively determinative of the issue of parental abandonment. Indeed, incarceration alone is not an explicit basis upon which an involuntary termination may be ordered pursuant to Section 2511 [. Interest of C.S. , 761 A.2d at 1201.] Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison to continue and pursue a close relationship with the child or children. An incarcerated parent desiring to retain parental rights must exert him- or herself to take and maintain a place of importance in the child's life.
In re R.I.S. , 36 A.3d at 572-73 (some citations omitted).
IV. Termination of Father's Parental Rights Under Section 2511(a)
In his first issue, Father challenges the sufficiency of the evidence supporting the trial court's termination of his parental rights pursuant to Subsections (1), (2), (5), and (8). We first consider his argument that Subsections (5) and (8) are not implicated when a child is not removed from the care of the parent. See Father's brief at 22-23. We agree.
Both Subsections (5) and (8) require that "[t]he child has been removed from the care of the parent." 23 Pa.C.S. § 2511(a)(5), (8). An en banc panel of this Court has held that termination under these two subsections is not appropriate where the record shows the child was never in the parent's care, and therefore could not have been "removed" from their care. Interest of C.S. , 761 A.2d at 1200 & n.5.
Here, Case Manager Jackson's undisputed testimony is that Father was incarcerated at the time Child was born, and has been incarcerated throughout Child's life. We conclude that because Child was never in Father's care, termination under Subsections (a)(5) and (8) was improper. See Interest of C.S. , 761 A.2d at 1200 & n.5.
With respect to Subsections (a)(1) and (2), Father presents largely the same supporting discussion. He maintains he was engaged in all his plan goals — maintaining contact with the CUA case manager and attending parenting and GED classes at the prison, until they were suspended during the COVID-19 pandemic. Father requested virtual visits with Child, but Case Manager Jackson's attempts to contact the appropriate person were unsuccessful. Father avers DHS's sole argument for termination was the fact of his incarceration; however, Father contends, incarceration alone is not proper grounds for termination. After careful review, we agree that the trial court erred in finding DHS met its burden of proof under Subsections (a)(1) and (2).
Preliminarily, we observe that the vast majority of the evidence presented at the April 28 and June 1, 2021, hearings pertained to Mother. The evidence concerning Father was limited to a copy of his criminal history and Case Manager Jackson's testimony, the entirety of which we summarized above. See N.T., 4/28/21, at 18, 59, 61-62, 102-04, 126-28. Furthermore, while the trial court issued a separate, 45-page opinion pertaining to Mother, a significant portion of its opinion, addressing Father's appeal, relates to factual and procedural history involving Mother only. See Trial Ct. Op. at 2-8, 16-17.
As stated above, Father was not found to be the perpetrator of any abuse in this case. See N.T., 4/28/21, at 126. Father initially only had one goal — to maintain contact with CUA Case Manager Jackson — and he was compliant with that goal. When Father informed her that he was participating in parenting and GED classes in prison, those classes were added to his plan. Case Manager Jackson confirmed these were his only goals, and DHS made no allegation that he was failed to comply. See N.T., 4/28/21, at 127. The only goal that Father was ostensibly not actively pursuing was the parenting class, but he explained this class was suspended due to the COVID-19 pandemic. Significantly, Case Manager Jackson acknowledged Father's request for virtual visits with Child, but the person she attempted to contact, in order to arrange such visits, did not reply to her. See id. at 126-27.
Finally, we consider that, with respect to Subsections 2511(a)(1) and (2), the sole reason given by Case Manager Jackson for Father's termination was the mere fact of his incarceration. Case Manager Jackson testified as follows:
[Attorney for DHS]: And as far as the Father of [Child], did you establish single case plan objectives for him while he's incarcerated to work towards being able to be in a position to parent his child?
[Case Manager Jackson]: Yes. His single case plan objective ... he had explained to me that he was engaged in parenting as well as a GED program.
Q: Okay.
A: He [sic] added those to the single case plan.
Q: Okay. And despite those participation in those types of programs while incarcerated , do you believe reunification is a possible goal for [Child] and Father at this time ...?
A: No.
Q: And why has reunification between [Child] and [Father] been ruled out?
A: Due to his incarceration and his continued incarceration. He's not available to be a resource for the child.
Q: And do you believe that would cause [Child] irreparable harm if the Court were to terminate his rights?
A: No, I don't.
N.T., 4/28/21, at 103 (emphases added).
In its opinion, the trial court sets forth the undisputed evidence pertaining to Father, as we have summarized above. Trial Ct. Op. at 17-20. The court then sets forth its analysis, in sum, as follows:
This Court found that Father's continued incapacity caused the Child to be without essential parental care, control or subsistence, and the causes of the incapacity could not or would not be remedied by him, establishing grounds for termination of his parental rights.
Id. at 20.
While the trial court did not cite any portion of Subsection 2511(a) here, we note it paraphrased the language of Subsection (2). See 23 Pa.C.S. § 2511(a)(2) ("The repeated and continued incapacity ... 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 ... cannot or will not be remedied by the parent."). The court acknowledged Father met all three of his plan objectives, and the fact that he requested virtual visits, but Case Manager Jackson did not receive any reply from the person she contacted to arrange such visits. However, absent from the trial court's analysis was any discussion of Father's status as an incarcerated parent, or whether he "has utilized those resources at his ... command while in prison to continue and pursue a close relationship with" Child. See In re R.I.S. , 36 A.3d at 573.
Relatedly, we note the trial court's voiced appreciation to the prison official who facilitated Father's appearance by telephone at the April 28, 2021. See N.T., 4/28/21, at 116 (trial court advising the prison official: "I wanted to specifically thank you and the prison authorities for providing him [sic]. I do a lot of these, and we normally don't get that kind of cooperation from prison authorities. ... ").
Mindful of our deferential standard of review, we conclude the trial court erred in finding DHS presented clear and convincing evidence establishing grounds for termination. See 23 Pa.C.S. § 2511(a)(2) ; In re R.I.S. , 36 A.3d at 572. When asked specifically why reunification would not be possible, Case Manager Jackson's sole reason was Father's incarceration and consequent inability "to be a resource for the child." N.T., 4/28/21, at 103. As discussed above, "a parent's incarceration, standing alone, cannot constitute proper grounds for the termination of his or her parental rights." See In re R.I.S. , 36 A.3d at 569. Father was compliant with all three of his goals (notwithstanding the suspension of parenting classes due to the COVID-19 pandemic), and attempted to use the resources available to him — the assistance of Case Manager Jackson — to have virtual visits with Child. See id. at 573. Case Manager Jackson also testified that Father has not had telephone calls with Child through the foster parent, but provided no explanation why that option has not been pursued or was not advisable. See N.T., 4/28/21, at 126. As stated above, Case Manager Jackson testified that Father's previous telephone calls with Child were appropriate. See id. Finally, we note the court did not address the relevance of the fact that Father's minimum release date (May of 2022) was within one year of the termination hearing.
For the foregoing reasons, we conclude the trial court erred in finding DHS presented clear and convincing evidence under Subsection 2511(a)(1) and (2) for termination.
We acknowledge the trial court also found grounds for termination under Subsection (b), which relates to the parent/child bond and best interests of Child. Father's second issue on appeal is a challenge to this finding. However, without grounds for termination under Subsection (a), we do not reach the analysis under Subsection (b). See In re L.M. , 923 A.2d at 511 ("Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b) : determination of the needs and welfare of the child under the standard of best interests of the child.").
Accordingly, we reverse the order terminating Father's parental rights.
V. Goal Change
Father's remaining two issues on appeal pertain to: (1) the sufficiency of the evidence for the goal change; and (2) the effect of the goal change on Child. In light of our disposition of his first issue, we reverse the order changing Child's goal to adoption.
VI. Conclusion
For the foregoing reasons, we reverse the orders terminating Father's parental rights and changing Child's goal to adoption. Jurisdiction relinquished.
Judge Stabile joins the Memorandum.
Judge Bowes files a Dissenting Memorandum.
DISSENTING MEMORANDUM BY BOWES, J.:
As I believe the certified record sustains the trial court's decision to terminate the parental rights of M.W. ("Father") to his son, H.W., I respectfully dissent. In contrast to the learned majority, I can find no basis to disturb the trial court's conclusion that the Philadelphia Department of Human Services ("DHS") presented clear and convincing evidence to establish the statutory grounds to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1). Thus, I would address Father's remaining three claims and, as discussed infra , affirm the orders.
Instantly, the trial court found grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8). These subsections provide as follows:
(a) General rule.-- The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(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.
....
(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.
23 Pa.C.S. § 2511(a)(1), (2), (5), (8). We need only agree with the court as to any one subsection of § 2511(a), in addition to § 2511(b), to affirm the order terminating involuntarily Father's parental rights. In re B.L.W. , 843 A.2d 380, 384 (Pa.Super. 2004) (en banc ).
Appellate review in cases involving involuntary termination of parental rights is limited to determining whether the trial court's determination is supported by competent evidence. When applying this standard of review, an appellate court must accept the findings of fact and credibility determinations of the trial court if they are supported by evidence of record. Where the trial court's factual findings are supported by the evidence, an appellate court may not disturb the trial court's ruling unless it has discerned an error of law or abuse of discretion. An abuse of discretion is found where there is a demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will. It matters not that an appellate court might have reached a different conclusion, as it is well-established that 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 Adoption of L.A.K. , No. 14 WAP 2021, 2021 WL 6071745 at *7 (Pa. Dec. 23, 2021) (cleaned up).
Initially, I agree with the learned majority that § 2511(a)(5) and (8) are inapplicable because H.W. was not removed from the care of Father. See Majority at 12. In fact, Father was already incarcerated at the time of H.W.'s removal. Nonetheless, I cannot agree with the majority's conclusion that the trial court erred in finding DHS presented clear and convincing evidence establishing grounds for termination under § 2511(a)(1). Contrary to our Supreme Court's recent admonishment, it appears that, "[r]ather than determine whether the trial court's findings of fact were supported by evidence of record, the [majority instead] reviewed the record de novo , making its own credibility determinations and findings of fact." L.A.K. , supra at *10. Our Supreme "Court has repeatedly stated that in termination cases involving close calls, deference to the trial court's determination is particularly crucial." Id. at *11.
Here, the learned majority focuses on § 2511(a)(2), concluding that clear and convincing evidence was not presented where the caseworker's "sole reason" for "why reunification would not be possible ... was Father's incarceration and consequent inability to be a resource for the child." Majority at 16 (citation and quotation marks omitted). While the majority relies on In re R.I.S. , 36 A.3d 567, 569 (Pa. 2011), for the proposition that "a parent's incarceration, standing alone, cannot constitute proper grounds for the termination of his or her parental rights," it neglected the trial court's finding that Father failed to use reasonable efforts to overcome the obstacle of his incarceration. Id. Hence, for the reasons I explain below, I reject my learned colleagues' preoccupation with § 2511(a)(2) and, instead, would find that the certified record supports the trial court's analysis pursuant to § 2511(a)(1).
In In Re Adoption of S.P. , 47 A.3d 817 (Pa. 2012), our Supreme Court addressed the effects of incarceration on a court's termination analysis under § 2511(a)(1) and (2). As to § 2511(a)(2), "[i]ncarceration neither compels nor precludes termination[,]" but rather "is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) [.]" Id. at 828 (cleaned up). As to subsection 2511(a)(1), the S.P. Court observed as follows:
Applying in [ In re McCray's Adoption , 331 A.2d 652 (Pa.1975) ] 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." Id. at 655. We observed that the father's incarceration made his performance of this duty "more difficult." Id.
....
[The McCray's Court] stated:
[A] parent's absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we 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.
Id. at 655 (footnotes and internal quotation marks omitted). Notably, we did not decree that incarceration could never be a factor in a court's determination that grounds for termination had been met in a particular case. Instead, the emphasis of this passage was to impose on the incarcerated parent, pursuant to an abandonment analysis, a duty to utilize available resources to continue a relationship with his or her child.
Id. at 828 (emphasis added). Thus, as established in In re McCray's Adoption , the primary focus of the § 2511(a)(1) analysis is whether an incarcerated parent exercised reasonable firmness in declining to yield to obstacles created by imprisonment and employed available resources to maintain a relationship with his or her child. See In re Adoption of Dale A., II , 683 A.2d 297, 302 (Pa.Super. 1996) (noting "a parent's responsibilities are not tolled during his incarceration. Instead, a reviewing court must analyze whether the parent utilized those resources available while in prison to maintain a relationship with his child.").
Instantly, at the time of the hearing on April 28, 2021, H.W. was four years old. Father had been incarcerated H.W.'s entire life, and his earliest potential release date would be May of 2022. Jasmine Jackson, the case manager for the Community Umbrella Agency, testified that Father was aware of H.W.'s placement. She noted that although Father was engaged in a parenting program and GED course as part of his single case plan, due to his continued incarceration, he was not available as a resource for H.W. N.T., 4/28/21, at 103. Father did not have telephone contact with H.W. through the foster parent. Id. at 126. Father inquired about virtual visits with H.W., but Ms. Jackson did not hear back from the contact person with whom she had been put in contact with by Father for arranging such visits. Id. at 111, 127. According to Father, he "check[ed] in here and there" about the virtual visits but had not heard anything. Id. at 111. Prior to H.W.'s placement, Mother would bring H.W. to visit Father in the county jail on a weekly basis. However, since H.W.'s placement in 2019, the only contact Father has had with H.W. was an undisclosed number of telephone calls, which only occurred during Mother's visits with H.W. Id. at 104.
While Father testified that his earliest release date could be in May of 2022, over one year from the date of the hearing, Father could not guarantee he would be released at that time. Accordingly, H.W. would remain in foster care for at least another twelve months until Father's possible release. Even after Father's release, it is unclear when, if ever, he would be able to demonstrate the maturity and stability needed to parent H.W. As this Court has often emphasized, "a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The 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." In re R.J.S. , 901 A.2d 502, 513 (Pa.Super. 2006). Moreover, the evidence presented did not establish an attempt by Father to use his available resources to overcome the obstacle of incarceration in providing parental care to H.W. Besides asking once to set up virtual visits and checking the status of that request "here and there[,]" Father did not otherwise attempt to set up virtual visits or call H.W. through the foster parent, and there was no evidence that Father sent H.W. letters, cards, or other correspondence in an attempt to maintain a place of importance in H.W.'s life.
Based on the foregoing, I agree with the trial court that "Father's continued incapacity caused [H.W.] to be without essential parental care, control or subsistence, and the causes of the incapacity could not or would not be remedied by him, [thereby] establishing grounds for termination of his parental rights." Trial Court Opinion, 7/27/21, at 20. Hence, the trial court did not abuse its discretion in concluding that DHS proved, by clear and convincing evidence, that termination of Father's parental rights was warranted pursuant to § 2511(a)(1).
Next, I address whether the involuntary termination of parental rights would best serve H.W.'s developmental, physical, and emotional needs and welfare pursuant to subsection 2511(b).
The Adoption Act outlines the pertinent considerations as follows:
(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(b).
This Court has explained the requisite analysis as follows:
Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S. , 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial 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. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S. , 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.
In re Adoption of J.M. , 991 A.2d 321, 324 (Pa.Super. 2010). As a general matter, Pennsylvania does not require the trial court to enlist a formal bonding evaluation, and the court's needs and welfare analysis need not hinge upon expert testimony. In re Z.P. , 994 A.2d 1108, 1121 (Pa.Super. 2011).
In relation to § 2511(b), the trial court "found that DHS provided clear and convincing evidence that termination of Father's parental rights met the developmental, physical and emotional needs and welfare of the Child, and the statutory requirements pursuant to 23 Pa.C.S. ... § 2511(b)." Trial Court Opinion, 7/27/21, at 20. For the following reasons, I agree.
Father argues that he was trying to work on the bond by setting up virtual visits, albeit unsuccessfully, and speaking to H.W. on the telephone during Mother's visits. Father's brief at 38-39. The record belies this assertion.
At the evidentiary hearing, Ms. Jackson acknowledged that Father had inquired about virtual visits, but his contact person did not respond to her. She further acknowledged that the content of the telephone calls she observed during Mother's visits was "appropriate." However, she did not observe any parent/child bond between Father and H.W., who never asked for Father, and Father conceded that H.W. probably would not remember him. N.T., 4//28/21, at 104, 111, 126-27. Accordingly, I would find that the trial court did not abuse its discretion in concluding that DHS had presented clear and convincing evidence in support of termination under § 2511(b).
Finally, I turn to Father's arguments challenging the goal change. This Court reviews a goal change order for an abuse of discretion. In re R.J.T. , 9 A.3d 1179, 1190 (Pa. 2010). When considering a goal change petition, "[t]he best interests of the child, and not the interests of the parent, must guide the trial court. As this Court has held, a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting." In re A.B. , 19 A.3d 1084, 1089 (Pa.Super. 2011) (citations and quotation marks omitted).
As with his first claim, Father posits that the trial court abused its discretion when it changed H.W.'s goal to adoption because Father was complying with his single case plan goals and attempting to maintain contact with H.W. Father's brief at 39-45. For the reasons already discussed throughout this dissenting memorandum, I believe Father's claim is meritless. In sum, Father has failed to meaningfully attempt to overcome the obstacle of his incarceration. He has shown himself unwilling or incapable of providing H.W. with permanence and stability. Moreover, the certified record confirms that H.W. does not share a parental bond with Father. Thus, the record supports the court's finding that it does not serve H.W.'s best interests to preserve the goal of reunification. Accordingly, I would not disturb the goal change order.
For all of the foregoing reasons, I do not discern an error of law or abuse of discretion in the trial court's decision to terminate Father's parental rights to H.W. and change H.W.'s permanent placement goal to adoption.
Accordingly, I would affirm the trial court's orders.