Adopton of: K.C.W., Appeal of: K.W., 1285 WDA 2021

Background

Child born February 2020; CYS removed the infant at birth after mother tested positive for marijuana and the home was unsafe. Father had prior involuntary terminations to other children, substance abuse history, criminal charges, and domestic violence allegations.
Court-ordered reunification plan (Mar. 2, 2020) required psychological evaluation, parenting classes, drug/alcohol assessment and screens, anger management, safe housing, and cooperation with providers; visits were supervised and initially adjusted for COVID-19.
Over the next year parents were only minimally compliant: Father had multiple positive drug screens, was discharged from anger-management for disruptive behavior, made threatening social-media posts, and threatened a CYS caseworker, pleading guilty to terroristic threats and becoming incarcerated.
Child remained in foster placement (adoptive resource) from birth, bonded with foster family, and developmentally on target; goal changed to adoption in Feb. 2021 after CYS concluded parents failed to remedy conditions.
CYS petitioned to involuntarily terminate parental rights (filed Mar. 4, 2021) under 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). The orphans’ court terminated Father’s rights under § 2511(a)(2) and (b); Father appealed arguing COVID-19 and his incarceration prevented reunification.
Superior Court affirmed, finding clear and convincing evidence of unremedied parental incapacity and that termination served Child’s developmental, physical and emotional needs.

Issues

Issue	Plaintiff's Argument (CYS)	Defendant's Argument (Father)	Held
Whether §2511(a)(2) grounds exist (repeated/incapacity causing child to lack essential parental care and not remediable)	Father’s repeated drug use, refusal/noncompliance with services, domestic violence, threats, and incarceration show incapacity that won’t be remedied	COVID-19 visitation limits and incarceration prevented him from demonstrating progress or bonding; he asked for more time	Held: §2511(a)(2) satisfied — clear and convincing evidence of repeated incapacity, ongoing conditions, and unlikelihood of remedy despite offered services; father’s incarceration resulted from his own criminal conduct and did not excuse failure to remedy issues
Whether COVID-19 and incarceration should excuse lack of progress/bonding	CYS: parents were given extensive services and many visits were in-person; father’s misconduct, noncompliance, and positive drug screens caused failure to progress	Father: virtual visits and later incarceration deprived him of meaningful reunification opportunities	Held: Excuses rejected — record shows most visits were in-person, services were offered, and incarceration stemmed from father’s criminal threats; father did not avail himself of services or otherwise act to maintain relationship
Whether termination meets §2511(b) (child’s best interests)	Child is bonded to foster family; termination would promote stability, security, and developmental needs	Father claims desire to parent and need for more time	Held: §2511(b) satisfied — credible caseworker and supervisor testimony showed little/no parent–child bond and strong foster-family bond; severance would not harm child and adoption serves child’s needs

Key Cases Cited

In re G.M.S., 193 A.3d 395 (Pa. Super. 2018) (standard of appellate review and deference to trial court in TPR cases)
In re Interest of D.F., 165 A.3d 960 (Pa. Super. 2017) (deference to trial court credibility findings)
In re S.H., 879 A.2d 802 (Pa. Super. 2005) (broad review of record in TPR appeals)
In re A.S., 11 A.3d 473 (Pa. Super. 2010) (trial court’s credibility determinations are controlling)
In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003) (elements required to prove §2511(a)(2))
In re J.R.E., 218 A.3d 920 (Pa. Super. 2019) (parental duty to make diligent efforts toward assuming responsibilities)
In re S.C., 247 A.3d 1097 (Pa. Super. 2021) (parental incapacity may include refusal and failure to perform duties)
In re Z.P., 994 A.2d 1108 (Pa. Super. 2010) (incarceration does not toll parental responsibilities; parent must use available resources to maintain relationship)
In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006) (child’s need for permanency limits indefinite delay for parental improvement)