Friday, October 22, 2010

involuntary termination - incarcerated parent

Adoption of S.P. - Superior Court - October 21, 2010 (2-1 decision, with long dissent)

Father appeals from the trial court decree which granted the petition of county CYS petition for involuntary termination of his parental rights to a child who was born in May, 2005. Father is incarcerated and has been since prior to child'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 agency failed to prove its case by the standard of clear and convincing evidence, which means 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. In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).

The Pennsylvania Supreme Court held more than thirty years ago that incarceration alone is not a sufficient basis for termination of parental rights. In re McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). Nonetheless, application of the McCray rule, particularly in cases involving § 2511(a)(2), has proven difficult, inasmuch as a parent’s incarceration is obviously an “incapacity” that precludes day-to-day interactions and activities normally attendant to a parent-child relationship. The difficulty of this reconciliation is evident from the fact-intensive analysis set forth in our case law dealing with terminating the parental rights of an incarcerated parent. Bartasavich v. Mitchell, 471 A.2d 833, 834 (Pa. Super. 1983) and In re I.G., 939 A.2d 950, 953 (Pa. Super. 2007).