In the Interest of: B.A.D.. a Minor
In the Interest of: B.A.D.. a Minor No. 1887 EDA 2016
| Pa. Super. Ct. | Apr 12, 2017Background
- Child (born June 2011) was placed with DHS at birth after testing positive for controlled substances; adjudicated dependent in 2011. Father received custody with DHS supervision in March 2012 and custody was returned to him in May 2012.
- Father was arrested February 2014 on drug-related charges, pleaded guilty October 2014, and was incarcerated (24–72 months). DHS removed Child in February 2015 after reports Child lived in a deplorable basement apartment; Child was adjudicated dependent July 2015.
- Father was released from prison in February 2016. DHS filed a petition to involuntarily terminate Father’s parental rights on March 1, 2016 under 23 Pa.C.S. § 2511(a)(1),(2),(5),(8) and (b).
- At the May 19, 2016 hearing DHS and the Child Advocate sought termination. The CUA social worker testified Father failed to engage post-release: did not permit home assessment, missed CEU drug screenings, had minimal contact, and completed only one visitation (the day before the hearing). Father disputed some facts; trial court credited the social worker.
- Trial court terminated Father’s parental rights (decree dated May 19, 2016). On appeal, this Court affirmed termination under § 2511(a)(1) and (b), concluding Father failed to perform parental duties and termination served the child’s needs and welfare.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether termination satisfied 23 Pa.C.S. § 2511(a)(1) (failure to perform duties/abandonment) | Father failed for a period exceeding six months to perform parental duties (limited contact while incarcerated, no use of prison resources to maintain bond, failed post-release to comply with case planning, home assessment, CEU) | Father had been released shortly before petition, obtained housing with his mother, began working on FSP objectives, had at least one successful visit, and needed more time to complete objectives | Affirmed: § 2511(a)(1) satisfied (court credited social worker; Father did not utilize resources in prison nor sufficiently engage after release) |
| Whether termination satisfied 23 Pa.C.S. § 2511(b) (child’s needs and welfare/bond) | Termination is in Child’s best interest: Child has adjustment disorder, is in a pre-adoptive foster home with improved behavior, needs permanency; bonding evidence was minimal and termination would not irreparably harm Child | Father argued visits and relationship militate against termination; loss of Father would remove love/comfort Child has known | Affirmed: § 2511(b) satisfied (no beneficial parent–child bond shown; permanency in foster home favored) |
| Whether termination could be based on § 2511(a)(5) or (8) (statutory grounds relating to parental incapacity) | DHS advanced these grounds in the petition | Father was incarcerated at time of Child’s placement, which precludes use of (a)(5) and (a)(8) as grounds | Court noted (a)(5) and (a)(8) not proper because Father was incarcerated when Child was removed; disposition based on (a)(1) and (b) |
| Appeal of goal change to adoption | DHS/Child Advocate supported freeing Child for adoption | Father argued goal change was improper | Not reached on appeal: Father did not timely appeal the dependency/goal-change order; appellate record limited to termination decree |
Key Cases Cited
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (deference to trial court factfinding; "ticking clock of childhood" principle)
- In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) (incarceration does not automatically toll parental responsibilities; parents must use available resources to maintain relationship)
- McCray v. Department of Public Welfare, 331 A.2d 652 (Pa. 1975) (parental duty to maintain communication and association; incarceration makes performance harder but does not excuse total inaction)
- In re Z.S.W., 946 A.2d 726 (Pa. Super. 2008) (§ 2511(a)(1) requires clear and convincing evidence of failure to perform duties over six months; whole-case review required)
- In re N.M.B., 856 A.2d 847 (Pa. Super. 2004) (court must consider whole history and not mechanically apply six‑month rule)
- In re B.L.W., 843 A.2d 380 (Pa. Super. 2004) (appellate court need only agree with any one subsection of § 2511(a) and § 2511(b) to affirm)
- In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005) (best-interest inquiry includes intangibles: love, comfort, security, stability)
- In re Adoption of T.B.B., 835 A.2d 387 (Pa. Super. 2003) (termination only precluded where severing would destroy an existing necessary and beneficial relationship)
- In re Z.P., 994 A.2d 1108 (Pa. Super. 2010) (caseworker testimony sufficient for bond and best‑interest analysis)