In re Adoption of S.P., 32 A.3d 723

Father incarcerated since 2004 for third-degree murder; S.P. born 2005 and placed in foster care with Mother, then with kin and later in foster care with half-sister; CYS petitioned to terminate Father’s rights; trial court granted termination on 6/24/2009; Father appealed and argued incarceration alone cannot support §2511(a)(2); appellate panel vacated the decree, finding insufficient clear and convincing evidence under §2511(a)(2); Agency failed to provide a service plan and Father showed substantial efforts to maintain contact from prison.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does §2511(a)(2) permit termination based on incarceration alone?	Father argues incarceration alone cannot prove incapacity to parent.	CYS argues incarceration creates incapacity and may satisfy §2511(a)(2).	Decree vacated; incarceration alone not sufficient under §2511(a)(2).

In re Z.P., 994 A.2d 1108 (Pa. Super. 2010) (reversal when incarceration ongoing and bond not shown; focus on remedy of incapacity not just contact)
In re E.A.P., 944 A.2d 79 (Pa. Super. 2008) (incarceration over years; child needs stable permanency; termination upheld when incapacity unlikely to be remedied)
In re M.J.H., 501 A.2d 648 (Pa. Super. 1985) (incapacity cannot be remedied; termination appropriate when parent cannot provide care)
In re I.G., 939 A.2d 950 (Pa. Super. 2007) (incarceration not automatically fatal; requires weighing prospects of remedying incapacity)
In re C.L.G., 956 A.2d 999 (Pa. Super. 2008) (en banc; distinguishes §2511(a)(8) vs §2511(a)(2); context of incarceration-related grounds)
McCray, 460 Pa. 210, 331 A.2d 652 (1975) (incarceration alone not conclusive; assess ability to maintain relationship)
Santosky v. Kramer, 455 U.S. 745 (1982) (due process requires clear and convincing evidence for termination of parental rights)