In re J.W.

IN RE: J.W. APPEAL OF: BUCKS COUNTY CHILDREN ND YOUTH SOCIAL SERVICES AGENCY

J-A10039-13

No. 3031 EDA 2012

SUPERIOR COURT OF PENNSYLVANIA

FILED JULY 11, 2013

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered October 3,

2012 in the Court of Common Pleas of Bucks

County Orphans' Court at No(s): 2012-9111.

BEFORE: PANELLA, OLSON, and STRASSBURGER,^* JJ.

MEMORANDUM BY STRASSBURGER, J.:

Bucks County Children and Youth Social Services Agency ("the Agency") appeals from the October 3, 2012 order denying its petition to terminate the parental rights of J.P. ("Father") with regard to his child, J.W. ("Child"). After careful review, we reverse the trial court's order and remand with instructions to enter an order terminating Father's parental rights.

Father was arrested in March of 2011 after committing two robberies. He pled guilty on both counts and was sentenced to an aggregate term of three and one-half to eight years' imprisonment. Father will be released, at the earliest, in September of 2014. At the latest, assuming he commits no additional crimes in prison, Father will be released in March of 2019. Child was born after Father's incarceration in April of 2011, and Father has never had custody of Child. Child is presently in a kinship placement with his maternal aunt and uncle.

On July 18, 2012, the Agency filed a petition to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8).¹ A hearing was held on October 1, 2012, at which the Agency indicated that it was seeking termination under section 2511(a)(2) only. N.T., 10/1/2012, at 107-08. The Agency argued that Father was incapable of parenting Child because of his incarceration, and because of the uncertainty of Father's ability to care for Child once he is paroled. Id. at 107-13.

Following the hearing, the trial court entered an order on October 3, 2012, denying the Agency's petition to terminate Father's parental rights. The Agency filed a timely notice of appeal, along with a concise statement of matters complained of on appeal.

On appeal, the Agency contends that the trial court improperly denied its petition to terminate Father's parental rights. The Agency argues, inter alia, that the trial court erred by failing to consider adequately the length of Father's incarceration and his lack of a previous relationship with Child. Agency's Brief at 15.

Appellate review of cases involving termination of parental rights are subject to the following principles:

[O]ur scope of review is broad and comprehensive, but our standard of review is narrow. We consider all the evidence, along with the legal conclusions and factual findings of the trial court. We reverse only if we find an abuse of discretion, an error of law, or insufficient evidentiary support. With respect to evidentiary support, we determine only whether the trial court's findings are supported by competent evidence. We accord the hearing judge's decision the same deference that we would give to a jury verdict.

In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (citing In re C.M.S., 884 A.2d 1284, 1286 (Pa. Super. 2005), appeal denied, 587 Pa. 705, 897 A.2d 1183 (2006)). Further,

[i]n a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so. The standard of "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 hesitance, of the truth of the precise facts in issue.

In re A.L.D., supra at 336 (quoting In re Adoption of Atencio, 539 Pa. 161, 166, 650 A.2d 1064, 1066 (1994)).

In re R.M.G., 997 A.2d 339, 347 (Pa. Super. 2010).

Here, the Agency appeals the order which denied its petition to terminate Father's parental rights under subsection (a)(2), which provides 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:

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(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the childto 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). This Court applies a two-part test for termination of parental rights.

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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007).

Instantly, the trial court concluded that the Agency had failed to meet its burden of providing clear and convincing evidence that Father's parental rights should be terminated. Trial Court Opinion, 12/14/2012, at 12-13. We disagree.

Our Supreme Court recently addressed the importance of incarceration in the context of a termination of parental rights case in In re R.I.S., 36 A.3d 567 (Pa. 2011) (plurality), and In re Adoption of S.P., 47 A.3d 817 (Pa. 2012). The father in R.I.S. received a sentence of four to eight² years'imprisonment. 36 A.3d at 569. At the time of his incarceration, the father was the primary caretaker of the child A.I.S. See id. at 571. A younger sibling, R.I.S., was born after the father was incarcerated. Id. at 569 n.1. The trial court denied the petition of York County Children and Youth Services to terminate the father's parental rights. Id. at 571. On appeal, a panel of this Court reversed the order denying termination. See In re R.I.S., 23 A.3d 591 (Pa. Super. filed Dec. 22, 2010) (unpublished memorandum). However, our Supreme Court reversed this Court, and determined that the trial court was within its discretion in denying the petition to terminate. The lead opinion in R.I.S. placed heavy emphasis on the "principle that when a parent uses the opportunities that are available in prison to make sincere efforts to maintain a place of importance in the lives of his or her children, incarceration alone will not serve as grounds for the involuntary termination of his or her parental rights." 36 A.3d at 574. (footnote omitted). While six out of seven Justices joined the lead opinion in concluding that this Court erred by reversing the trial court, five of the Justices distanced themselves from this "principle." See, e.g., id. at 576-81 (Baer, J., concurring).

The following year, in S.P., our Supreme Court clarified its stance on whether incarceration alone was sufficient to terminate parental rights. In that case, the father pled guilty to third degree murder, and was sentenced to five to 10 years' imprisonment. 47 A.3d at 819. Washington CountyChildren and Youth Services petitioned to have the father's parental rights terminated, and the trial court granted the petition. Id. at 821. This Court then reversed the trial court, primarily on the basis that "incarceration alone is not a sufficient basis for termination of parental rights." In re Adoption of S.P., 32 A.3d 723, 730 (Pa. Super. 2011) (en banc). Our Supreme Court disagreed with the conclusion of this Court, and expressly adopted the view "that incarceration is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2)." 47 A.3d at 828. In doing so, our Supreme Court specifically addressed R.I.S., but concluded that it was distinguishable.³ Id. at 828-29.

Applying these cases to the instant matter, we conclude that the trial court abused its discretion in failing to terminate Father's parental rights. At the outset, it is clear that Father's incarceration has caused Child to be without essential parental care, control, and subsistence necessary for his physical and mental well-being. Father does not provide, nor has he ever provided, care for Child. Moreover, Father's incapacity cannot be remedied until, at the very earliest, September of 2014, when Child will be nearly three and one-half years old. Even assuming that Father is paroled at ornear his minimum release date, Father's ability to parent Child after that point is speculative.

Moreover, while factually similar, we find R.I.S. to be distinguishable from the instant matter. The father in R.I.S. had previous experience as a parent and, indeed, was the primary caretaker of A.I.S. at the time of his incarceration. See 36 A.3d at 571. In contrast, Father has no established parenting ability whatsoever. Admittedly, testimony was presented at the termination hearing that Father was behaving well in prison, and that he consistently sent letters to Child and sought visitation. Id. at 27-30, 54. Additionally, Father's friend, Charles Benner, claimed that Father could stay with him upon his release from prison, and that he could secure employment for Father. Id. at 98-99. Nonetheless, Father's conduct in prison fails to counterbalance his admitted history of relapsing into drug use. See id. at 34-35. This factor also differentiates Father from his counterpart in R.I.S.

Indeed, Father explained at the termination hearing that he committed his two robberies as a means of obtaining money to support his drug habit. Id. at 35. Father testified at his termination hearing that he became clean and relapsed repeatedly, even when enrolled in a narcotics anonymous program. See id. As observed by the Agency, see Agency's Brief at 11, Father committed his crimes after Mother became pregnant with Child. N.T., 10/1/2012, at...