197 A.3d 777
Pa. Super. Ct.2018Background
- Mother filed a petition to involuntarily terminate Father’s parental rights to their daughter N.N.H. (born 2005); the Orphans’ Court denied the petition and Mother appealed.
- Father was incarcerated from ~2011 until May 25, 2016; while imprisoned he sent letters, crafts, and called the child; Mother initially facilitated visits but later curtailed contact.
- In late 2015 Mother changed her phone number(s) and prevented further phone and mail contact after an incident in which Father allegedly threatened Mother during a call involving the child.
- Two weeks after release Father filed for partial custody (petition filed June 14, 2016); Mother later filed for DNA testing and then filed the termination petition on December 14, 2016.
- The Orphans’ Court applied the statutory two-step analysis under 23 Pa.C.S. § 2511, found Mother failed to prove grounds under § 2511(a)(1) (six‑month look‑back), and denied termination; court also ensured the child had legal‑interests counsel after the initial hearing.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether § 2511(a)(1) grounds were met (failure to perform parental duties / settled purpose to relinquish) | Mother: Father failed to perform duties during six months before petition and should be terminated; Mother also impeded contact for child’s safety but termination serves child’s welfare | Father: After release he immediately sought custody (filed June 14, 2016) and actively tried to restore contact; Mother blocked efforts | Court: Denied—Mother did not prove by clear and convincing evidence that Father failed to perform parental duties in the six‑month period prior to filing; Father made efforts and was thwarted by Mother/court processes |
| Whether child was denied statutory right to counsel under 23 Pa.C.S. § 2313(a) | Mother: (argued procedural issues on appeal) | Court/Other parties: Child’s legal interests were not initially represented by counsel; GAL represented child’s best interests but not legal preference | Court: Child’s legal‑interests counsel was appointed before ruling and record was reopened; no deprivation of counsel in violation of § 2313(a) |
| Relevance of child’s expressed fear and best interests under § 2511(b) | Mother: Child is afraid of Father and bonded to stepfather; termination is in child’s best interests | Father: Merits under (a) control outcome; child’s preference considered but substantive (a)(1) not met | Court: Did not reach § 2511(b) because (a)(1) not satisfied; child’s expressed preference considered but insufficient to overcome (a)(1) finding |
| Effect of incarceration on abandonment analysis | Mother: Father’s incarceration and limited contact support termination | Father: Incarceration made contact difficult but he used available resources (letters, calls) and, upon release, promptly sought custody | Court: Followed precedent—incarceration does not automatically equate to abandonment; must assess efforts during incarceration and after release; here Father’s efforts defeated claim of abandonment |
Key Cases Cited
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (child’s right to legal‑interests counsel and distinction between legal and best‑interest advocacy)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (appellate standard of review in termination cases and deference to trial court credibility findings)
- In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) (incarceration does not automatically excuse parental duties; courts must assess use of available resources to maintain relationship)
- In re Adoption of McCray, 331 A.2d 652 (Pa. 1975) (historical discussion that incarceration makes performance more difficult but does not eliminate duty to maintain communication)
- In re B.,N.M., 856 A.2d 847 (Pa. Super. 2004) (parental duties defined as affirmative obligations—love, guidance, communication—beyond mere financial support)
- In re L.M., 923 A.2d 505 (Pa. Super. 2007) (statutory bifurcated analysis under § 2511: first (a) conduct, then (b) child’s needs and welfare)
- In re Adoption of Charles E.D.M., 708 A.2d 88 (Pa. 1998) (once failure to perform parental duties is shown, court must examine parent’s explanation, post‑abandonment contact, and effect of termination on child)