In re  S.P.

2011 PA Super 189

32 A.3d 723

In re ADOPTION OF S.P.Appeal of G.P., Natural Father.

Superior Court of Pennsylvania.

Argued June 7, 2011.Filed Aug. 31, 2011.

Mari A. Hathaway, Washington, for appellant.

Erin W. Dickerson, McMurray, for appellee.

Joyce A. Hatfield–Wise, Washington, for participating party.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS and OLSON, JJ.

OPINION BY DONOHUE, J.:

G.P. (“Father”) appeals from the trial court decree entered on June 24, 2009, which granted the petition of Washington County Children & Youth Social Services (“CYS” or the “Agency”) for the involuntary termination of Father's parental rights to S.P. who was born in May, 2005. Father is incarcerated and has been since prior to S.P.'s birth. The record is unclear as to how much prison time, if any, Father has yet to face, although he was eligible for parole in August 2009 and had a clean prison record at the time of the termination hearing in March 2009.

The issue presented is whether reasons other than the fact of Father's incarceration provide the basis for the termination of Father's rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). After a careful review of the record, including uncontroverted evidence of Father's efforts to establish and maintain a relationship with the child since her birth and his unassisted efforts to prepare himself to assume parental responsibilities and to enter the work force, we reverse.

The relevant facts and procedural history of this case are as follows. Father is the natural father of S.P., who was born in May of 2005. Father was 19 years old at the time of S.P.'s birth. B.D., biological mother (“Mother”), was 17 years old at the time of S.P.'s birth. S.P. is Father's only child. Father has been incarcerated since December of 2004 based on his arrest for, and then a plea of guilty to, a third degree murder charge. On January 10, 2006, Father entered his guilty plea and was sentenced to five to 10 years of imprisonment for the unintentional but reckless shooting of his adoptive-father when Father was fiddling with a gun.

The family became involved with CYS in 2005, when CYS filed a merit petition alleging that Mother tested positive for THC and was involved in a domestic assault where S.P. was present. Following a hearing, S.P. was adjudicated dependent on December 19, 2005. S.P. was placed with Mother, who at the time was herself a dependent child in foster care. Trial Court Opinion, 6/24/09, at 1–2.

During the first seven months of S.P.'s life, S.P.'s mother brought S.P. to visit Father on six occasions while he was incarcerated in the Washington County Prison. N.T., 3/25/09, at 15–16. On January 13, 2006, Father filed a petition for a contact visit in anticipation of his transfer to a state correctional facility. The trial court granted Father's request. Id. at 2. On February 27, 2006, after Father was transferred to the state correctional facility, Father again petitioned for a contact visit, and a hearing was held on March 27, 2006. The trial court denied Father's petition, citing safety concerns and the exposure of such a young child to the prison environment. Id. At that time, the trial court also noted that Father had no preexisting bond with nine-month-old S.P. and observed that the Father was seeking to “establish a relationship with [S.P.] rather than continue an existing relationship.” Id. Father appealed the order. The appeal was quashed, upon a motion from the Agency, as Father's Concise Statement of Matters Complained of on Appeal was not filed in a timely manner.¹ Id.

S.P. remained in foster care with Mother until Mother reached the age of majority. On July 12, 2007, CYS filed an Emergency Shelter Petition, alleging that the Agency was unable to make contact with the family. At that time, Mother indicated that she would like to sign her rights to S.P. over to her mother. Id. Following a hearing, the trial court ordered S.P. to remain in kinship care placement with Maternal Great–Aunt, and ordered Mother to participate in a variety of services. Id.

In 2007, N.D., S.P.'s half-sister, was born and placed immediately in foster care. On November 7, 2007, N.D. was adjudicated dependent, and N.D. and S.P. have remained in placement together since the adjudication.

On September 9, 2008, Mother voluntarily relinquished her parental rights to both of her daughters. S.P.'s permanency placement goal remained reunification with Father,² notwithstanding his incarceration. In December of 2008, CYS filed a petition recommending that S.P.'s goal be changed to adoption. On December 12, 2008, the trial court granted CYS's petition and changed S.P.'s goal to adoption. This Court affirmed the goal change order on September 15, 2009. In re S.P., 986 A.2d 1292 (Pa.Super.2009) (unpublished memorandum).

On January 13, 2009, CYS filed a petition to terminate Father's parental rights to S.P. The termination hearing took place on March 25, 2009. At that hearing, Father testified that he makes $20.00 per month in prison, and he uses that money to pay off fines and save money in preparation for his eventual release. N.T., 3/25/09, at 30. He has therefore not provided financial support for S.P. since he has been in prison. Id. Father sends presents, makes birthday cards for S.P., and sends letters to her from prison. Id. at 31–32. The record includes various handwritten letters from Father to S.P. as well as hand-made birthday cards and drawings. Id. at Father's Exhibit B. S.P. sent Father a page with her handprints on it and other artwork. Id. 70–71, Father's Exhibit C. S.P. enjoyed the presents she received from Father. Id. at 180.

Father's minimum sentence was to end in August of 2009, six months after the termination hearing, and he was eligible for parole at that point.³ Id. at 34. While in prison, Father voluntarily took anger management, violence prevention, victim awareness, and parenting classes. Id. at 37. Father took pre-vocational training to qualify himself for HVAC repair work upon his release. Id. Father also learned basic computer skills while in prison. Id. at 37, 73. Father has become a tutor for other inmates in the HVAC training program. Id. at 71. Father has maintained a clean prison record at SCI Somerset, with the exception of some warnings for minor violations such as sleeping in too late. Id. at 38. As a juvenile, Father was adjudicated delinquent on a burglary charge. Id. at 19. Father smoked marijuana as a teenager, but does not have a history of drug or alcohol abuse. Id. at 86.

Jerdean Beatty (“Beatty”), a caseworker for the Agency, testified that the Agency did not ask Father to comply with any service plan. Id. at 131. The Agency did not create a service plan for Father because of the length of Father's incarceration. Id. at 132. Beatty acknowledged that it is possible for a parent to build a bond with a child while the parent is incarcerated if they have regular visits. Id. at 140. Beatty further acknowledged that Father did not have the opportunity to form a bond with S.P. through visits because court orders prevented visits. Id. Beatty was aware that Father had voluntarily taken part in the various prison programs, and that he had no record of getting into trouble while in prison. Id. at 144–45. Beatty acknowledged that Father made more of an effort to maintain a relationship with S.P. from prison than Beatty had observed in any of her other cases. Id. at 147. Likewise, Beatty acknowledged at the goal change hearing ⁴ that she believed Father would be capable of parenting S.P. if he had the opportunity. N.T., 12/5/08, at 39.

With regard to S.P., the record reflects that she is doing reasonably well with her foster parents and that she enjoys living with her half-sister. N.T., 3/25/09, at 126. S.P. is a special needs child who suffers from some behavioral issues, including pulling out her own hair. Id. at 126–27. Also, S.P. occasionally becomes aggressive toward her half-sister. Id. at 135. S.P. exhibits some symptoms consistent with autism, though it is unclear whether she actually is autistic. Id. at 136, 160–61. In any event, Father, were he eventually to assume custody of S.P., would need to take responsibility for getting S.P. to numerous appointments. Id. at 158. Father, who has had no in person contact with S.P. for three years, is reluctant to accept the fact that S.P. is a special needs child. Id. at 151.

Regarding the circumstances of Father's incarceration, Father testified that he was playing with a gun and accidentally shot and killed his adoptive father. Id. at 42. The Washington County ADA who prosecuted the case stated:

[I]t appeared that [Father] had been fiddling with that gun throughout the weekend, he probably fiddled with that gun in that room and killed his father as a result of that. Do I believe he specifically intended to kill his father? No. But did he commit an extremely reckless act? Absolutely.

Id. at 54. Father's five to 10 year sentence was in the mitigated guideline range. Id. at 52.

Following the March 25, 2009 termination hearing, the trial court granted CYS's petition for involuntary termination of Father's parental rights to S.P. on June 24, 2009. On July 23, 2009, Father filed both a timely notice of appeal and a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

Father raises fourteen issues ⁵ on appeal which, in essence, raise two substantive challenges to the termination decree:

I. The Trial Court erred in granting the Petition to Involuntarily Terminate the Parental Rights of the Natural Father under 23 Pa.C.S.A. Section 2511(a)(2) where CYS failed to prove by clear and convincing evidence that anything other than his incarceration prevents him from fulfilling his parental obligations.

II. The Trial Court erred in granting the Petition to Involuntarily Terminate the Parental Rights of the Natural Father in that CYS failed to prove by...