In re I.G.

939 A.2d 950

In re I.G. Appeal of J.G., Sr., Biological Father In re J.G Appeal of J.G., Sr., Biological Father.

No. 3477 EDA 2006.

No. 3478 EDA 2006.

Superior Court of Pennsylvania.

Submitted May 14, 2007.

Filed December 21, 2007.

Reginald C. Allen, Philadelphia, for appellant.

Cynthia N. Keller, Philadelphia, for appellee.

BEFORE: KLEIN, KELLY, JJ. and McEWEN, P.J.E.

OPINION BY KLEIN, J.:

¶ 1 J.G., Sr. (Father) appeals from the order entered in the Court of Common Pleas of Philadelphia County terminating his parental rights to J.G., Jr. and I.G. Upon review, we conclude that: (1) the Philadelphia Department of Human Services (DHS) did not meet its burden of proving by clear and convincing evidence the statutory requirements for termination under 23 Pa.C.S.A. § 2511(a); (2) the record does not support the court's finding that no bond existed between Father and his children, see 23 Pa.C.S.A. § 2511(b), and (3) where the record is devoid of evidence of the effect of termination on the children, and the record does not support a finding of no bond between Father and children, termination of Father's parental rights is contrary to law. See id. We, therefore, reverse the order terminating Father's parental rights.

¶ 2 We take this opportunity to once again clarify the distinct steps the trial court must take in the two-part involuntary termination analysis and emphasize that the subsection (b) evaluation must be given more than mere lip service. What is most troubling here is that the trial court states in its opinion that "the record is devoid of testimony regarding the impact termination would have on the children[,]" and then simply concludes that the lack of evidence is inconsequential. In a case such as this, where an incarcerated parent faces termination of parental rights, it is critical that the fact of incarceration and the practical limits it imposes on the parent/child relationship not obscure the focus of the statutory inquiry.

Facts

¶ 3 The family became known to the DHS on October, 15, 2003, when DHS received a General Protective Services (GPS) report alleging that Mother had left the children with caretakers and did not retrieve them for approximately eight days. The report also alleged a history of domestic violence. DHS substantiated the report and, after the report was filed, Father took the children to live with him at his mother's apartment. Mother has since voluntarily relinquished her parental rights and is not a party to this appeal.

¶ 4 Father recognized that his mother's two-bedroom apartment was inadequate for him and the children because there were already four other children living there. Father therefore agreed to voluntarily place the children with the maternal grandparents, stating in a written agreement that his housing situation and job were unstable and that he "would like time to make it work out." (Voluntary Placement Agreement, 10/18/03, DHS Ex. 2, p. 1).

¶ 5 On October 25, 2003, the maternal grandparents informed DHS that they were no longer able to care for the children and on November 3, 2003 DHS placed them in foster care. It was Father who then suggested kinship care with the paternal aunt and uncle, who reside in Warminster, Bucks County. The children were then placed with paternal aunt and uncle, where they remain at this time.

¶ 6 In May 2004, Father was incarcerated in Montgomery County. While he was serving one of two separate prison terms there, he failed to return while on furlough. As a result he faced additional incarceration as a fugitive from justice. During the six months immediately prior to the termination hearing, which was held on August 29, 2006, Father was incarcerated in Philadelphia County on charges of conspiracy, possession of drugs and possession of firearms.¹ At the time of the termination hearing, Father remained incarcerated, but he participated by telephone.

¶ 7 On November 8, 2006, the court terminated Father's parental rights. Father filed this timely appeal.

Issues

¶ 8 Father argues that the court erred in terminating his parental rights because: (1) the evidence established that he "reasonably complied" with the FSP objectives; (2) the evidence of record did not establish his settled purpose to relinquish his parental rights since he maintained a "substantial relationship with his children" after and while he was incarcerated; (3) the court "ignored the fact that the Father and children maintained a parent-children bond" which was in the children's best interests not to sever; and (4) it was not in the children's best interests to sever the parent-children bond where relative placement was an alternative goal, and Father had requested the court to order relative placement. We agree with each of these claims.

Discussion

¶ 9 Termination of parental rights is controlled by statute and requires a two-step analysis.² First, under 23 Pa.C.S.A. § 2511 the party seeking termination must prove by clear and convincing evidence one of the statutory requirements for termination listed under section 2511(a). Only if the court determines the parent's conduct warrants termination of his or her parental rights under section 2511(a) does the court engage in the second part of the analysis under section 2511(b).³

¶ 10 Here, DHS petitioned for termination under sections 2511(a)(1), (2), (5), and (8).⁴ The trial court found clear and convincing evidence to support termination under each subsection. Based on our review, we find these conclusions are not supported by the record.

Section 2511(a)(1) & (a)(2)

¶ 11 Incarceration alone is not sufficient to support termination under any subsection. In re C.S., 761 A.2d 1197, 1201 (Pa.Super.2000) (en banc). The fact that Father is incarcerated does not support a finding that he has evidenced a settled purpose to relinquish his parental rights or has failed or refused to perform parental duties under (a)(1), or that Father's current incapability of performing parental duties cannot or will not be remedied by Father under (a)(2). The trial court acknowledged the fact that Father was incarcerated and that he made weekly telephone calls to the children. The court noted, however, that "parental responsibilities are not tolled during incarceration." In re: D.J.S., 737 A.2d 283, 286 (Pa.Super.1999). "A parent desiring to retain parental rights must exert himself to take and maintain a place of importance in his child's life." Adoption of Baby Boy A., 512 Pa. 517, 517 A.2d 1244, 1246 (1986). Our review of the record indicates that Father has in fact made efforts to maintain a place of importance in his children's lives.

¶ 12 Further, with respect to failure to perform parental duties under subsection (a)(1), as well as incapability under subsection (a)(2), the fact of incarceration alone cannot support termination. A parent's absence and failure to support a child due to incarceration is not conclusive on the issue of whether the parent has abandoned the child. This Court and the Pennsylvania Supreme Court have repeatedly held as much. See, e.g., Adoption of Baby Boy A. v. Catholic Social Services of Diocese of Harrisburg, PA, Inc., 512 Pa. 517, 517 A.2d 1244 (1986); In re D.J.S., 737 A.2d 283 (Pa.Super.1999); Matter of Adoption of C.A.W., 453 Pa.Super. 277, 683 A.2d 911 (1996); In Interest of J.E.S., 365 Pa.Super. 291, 529 A.2d 514 (1987); In re Adoption of M.J.H., 348 Pa.Super. 65, 501 A.2d 648 (1985). Nonetheless, as the trial court noted, a parent's responsibilities are not tolled during incarceration, and therefore we must inquire whether the parent utilized those resources available while he or she was in prison to continue a close relationship with the child. Adoption of Baby Boy A., supra; In re D.J.S., supra; In Interest of J.E.S., supra. We cannot simply assume that Father's current incapacity cannot or will not be remedied.

¶ 13 Dorcus Laney, the DHS social worker, testified, although vaguely, that the December 16, 2003 family service plan provided Father with several objectives:

A: Amongst other things, parenting, the anger management, maintaining contact with the Department, and in so doing maintaining contact with his children.

Q: And to date, has father achieved any of these objectives?

A: He has maintained limited contact with his children via telephone calls and prior to that he was visiting. But inasmuch now that he is incarcerated and has been since I've known the family, it has been very limited.

(N.T. Hearing, 9/29/06, at 32). Laney also testified that there was no documentation as to anger management or parenting classes. Id. at 33-34. Notably, Laney had not been assigned to the case until January 2005, so it is unclear what occurred during the prior year. Id. at 14. Laney also acknowledged that she had never met Father prior to the day of the hearing, (id. at 47), which was nineteen months after her assignment to the case. It is also telling that Laney stated at the hearing that during the nineteen months that she was the assigned social worker for the case, she had not spoken with Father. (Id. at 47-48).

¶ 14 Laney also testified that while Father was incarcerated, Father was granted permission to contact his children at paternal aunt's home on the weekends. Id. at 35. Though DHS emphasizes that Father's contact with the children was "limited," from the record it appears that this limitation was imposed by DHS, or possibly paternal aunt.

¶ 15 A searching inquiry, which was lacking here, is particularly critical in a case such as this, where: (1) Father was brought into this process as a result of both Mother's abandonment and his own agreement to voluntary place the children; (2) Father sought out and recommended kinship care when DHS placed the children in foster care; (3) the children are currently placed and are doing well with the paternal aunt and uncle; (4) Father has, through requests for visits,⁵ letters, and weekly phone calls, made a sincere effort to...