In re Interest of D.C.D.

105 A.3d 662

In the Interest of D.C.D., Minor.

Appeal of Clinton County Children and Youth Services.

No. 56 MAP 2014

Supreme Court of Pennsylvania.

Submitted July 29, 2014.

Decided Dec. 15, 2014.

Kathleen Marie Creamer, Esq., for Community Legal Services, Amicus Curiae.

Randy Paul Brungard, Esq., Rosamilia & Brungard, Lock Haven, for C.D.

Michael Dean Angelelli, Esq., Clinton County Domestic Relations Department, for Clinton County Children and Youth Services.

David Isaac Lindsay, Esq., Hall & Lindsay, P.C., for Guardian Ad Litem.

David Andrew Strouse, Esq., for Strouse Law Firm (The), for JW.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

OPINION

Justice BAER.

In this children's fast-track appeal, we consider the decision of the Superior Court holding that a termination of parental rights petition filed by a children and youth services agency must be denied if the agency failed to employ “reasonable efforts” to reunify a child with her parent. As discussed below, while there are remedies available to a court faced with an agency which is not providing reasonable efforts, refusing a properly proven termination of parental rights petition, and thus harming an innocent child, is not among them. Accordingly, we reverse the order of the Superior Court and reinstate the trial court's decision terminating father's parental rights.

D.C.D. (“Child”) was born on March 31, 2011, to C.Y.D. (“Mother”) and J.T.W. (“Father”). Clinton County Children and Youth Services (“CYS”) took custody of Child the following day because she suffered medical problems as a result of Mother's drug use, presumably during her pregnancy. Although she was placed briefly with maternal relatives and another foster family, Child has lived most of her life with her current foster family. The trial court found that she has bonded with this family, who is willing to adopt her.

At the time of Child's initial placement, the identity of the Child's father was uncertain, but it was later confirmed following paternity testing in May 2011. Continuously since Child's birth, Father has been incarcerated, serving an aggregate sentence of 93 to 192 months (7 3/4 to 16 years) of imprisonment, with a minimum release date of July 15, 2018, and a maximum date of October 15, 2026.¹ Although originally incarcerated at the Lycoming County Correctional Facility, Father was placed briefly through the Pennsylvania Department of Corrections in a correctional facility in Virginia for several months, before being transferred to the State Correctional Institution (“SCI”) at Graterford in March 2012.

In May 2012, CYS filed its first petition to terminate Mother and Father's parental rights. Although ultimately denying termination as to both Mother and Father's parental rights, the trial court found that grounds existed upon which Mother's rights could be terminated because she had minimal contact with Child and had refused to perform parental duties. In regard to Father, the trial court observed that he had attempted to establish a relationship with Child by seeking video and in-person visits, sending gifts and cards, and corresponding with the caseworkers regularly.

The court, however, found that CYS “failed to assist Father” with his efforts to establish a relationship with Child. Tr. Ct. Op., June 21, 2012, at 10. After chiding CYS for essentially pursuing only adoption despite the court-ordered goal of reunification or placement with relatives, the court made the following observational warning: “If the Agency does not work toward these goals, this Court may find the Agency did not use reasonable efforts to finalize the child's permanency plan. This finding would result in the loss of thousands of dollars of funding payable to the Agency for this child.”² Id. at 11. The court then determined that CYS had not established any grounds for termination of Father's parental rights as of June 2012. Despite finding that a basis to terminate Mother's rights existed, the court concluded that it would be “inappropriate” to terminate Mother's parental rights when grounds did not also exist to terminate Father's rights. Id. at 12. Accordingly, the court denied CYS's petitions to terminate Mother and Father's parental rights.

CYS appealed the denial of termination of Mother and Father's parental rights to the Superior Court, which affirmed the denial of termination as to Father's rights, but reversed the trial court's decision regarding Mother's rights and remanded this issue to the trial court with instructions. Upon remand, the trial court terminated Mother's parental rights on April 23, 2013.

Three days later, on April 26, 2013, CYS filed a second petition to terminate Father's parental rights based upon 23 Pa.C.S. § 2511(a)(2) :

(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:

* * *

(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.

Id. CYS also asserted that termination of parental rights would be in Child's best interest pursuant to Section 2511(b), see infra at 672.

At a hearing on the termination petition, Father executed a consent to adopt, only to revoke it two weeks later. At a second hearing on the petition, CYS presented evidence that Father's only contacts with Child had been a video visit in January 2012, two brief in-person visits after court proceedings in November 2012 and February 2013, and an in-person visit of Child to SCI Graterford in April 2013. The trial court observed that the dearth of visits between Father and Child was inconsistent with the trial court's prior instructions to CYS to permit visitation at the prison.³

Indeed, the court found that the April in-person visit was “arranged for litigation purposes” to enable CYS to demonstrate Child's lack of a bond with Father for purposes of the termination petition, which CYS filed days after the visit. Tr. Ct. Op., July 23, 2013, at 5. Apparently, the visit was flawed from the beginning given that the CYS caseworkers accompanying Child to the visitation arrived late within the prison visitation timeframe and the caseworker that knew Child best was not able to accompany her to the visitation area due to inappropriate clothing. Id. at 6. Moreover, Child, who was then two years old, was tired after the three-hour drive to the correction facility.

The trial court recognized that notwithstanding these impediments and CYS's seeming disinterest in following the trial court's directives regarding establishment of a Father–Child relationship, Father had inquired regarding Child, corresponded with and received photos from Child's foster parents, and generally tried to be a part of Child's life.⁴ Given the trial court's view of the agency's conduct, it had “little difficulty restating what it said in its June 21, 2012 Opinion that ‘the Agency has simply failed to assist Father.[’]” Id. at 7.

Nevertheless, the court held that “Father and [C]hild have no bond.” Id. at 8. Moreover, the court observed that Father has never been able to provide essential parental care, control or subsistence necessary for Child's well-being due to his incarceration. It recognized that Father's incapacity would continue until at least his minimum sentence date of July 2018, when Child would be seven years old and have lived virtually all of her life with her foster family, and could be delayed until his maximum release date of October 2026, when Child would be fifteen.

Acknowledging this Court's recent decision in In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817 (2012), holding that incarceration can be relevant to determining a parent's incapacity to care for a child, the trial court opined that Father was “incapable at the present time of providing essential parental care, control or subsistence necessary for the child's physical or mental well-being” and that Father will be unable to remedy his incapacity until Child is at least seven years old. Tr. Ct. Op., July 23, 2013, at 9. Turning to the best interests of Child, the court recognized that she had bonded with the foster parents and not with Father. Accordingly, the court concluded that clear and convincing evidence demonstrated that termination of Father's parental rights was in “the best interest of the developmental, physical and emotional needs” of Child. Id. at 9, 11. Although finding CYS's conduct relevant, the court opined that CYS's “unclean hands” did not excuse Father's incapacity to parent child. Accordingly, the court ordered the termination. Id. at 10.

Father appealed to the Superior Court, which reversed the termination of Father's parental rights. The Superior Court opined “that the orphans' court erred as a matter of law by terminating Father's parental rights in spite of its finding that CYS failed to provide him with reasonable efforts to promote reunification prior to filing its termination petition.” In re D.C.D., 91 A.3d 173, 174 (Pa.Super.2014). The Superior Court based this holding on a statutory analysis and a constitutional review.

Engaging in statutory interpretation, the Superior Court looked first to the provision in the Juvenile Act and the corresponding section of the federal Adoption and Safe Families Act (“ASFA”) addressing disposition of a dependent child, rather than the directly applicable statutory section in the Adoption Act providing for termination of parental rights. Initially, the court reasoned that the corresponding dependency provisions of ASFA and the Juvenile Act require agencies to file a petition to terminate parental rights to a child who has been in foster care for fifteen of the last twenty-two months, with three exceptions, including if the agency has not provided the parent...