In the Interest of: B.H. Appeal of C.L., Father, 788 MDA 2017

Child (born 2008) entered foster care June 2015 after mother said she could not care for him; Child was adjudicated dependent.
Father (appellant) and Child never met in person; Father has had almost continuous incarcerations since 2004 and multiple recent convictions, including possession with intent to deliver.
Father had brief periods of release in 2015 but was repeatedly reincarcerated, placed in restrictive housing, and classified as unable to participate in services, visits, or phone calls.
Agency filed a petition to involuntarily terminate Father’s parental rights on September 27, 2016; termination hearing held December 12, 2016; orphans’ court entered termination order April 3, 2017.
Orphans’ court terminated under 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b); appellate court found (a)(5) and (a)(8) inapplicable because Child was never in Father’s care but affirmed termination under (a)(2).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clear and convincing evidence supports termination under 23 Pa.C.S. § 2511(a)(2) (repeated and continued incapacity causing child to be without essential parental care and not remediable)	Father: court improperly relied solely on incarceration; he made available efforts (calls, letters) and used limited resources while incarcerated	Agency/Orphans’ Ct: Father’s long, repeated incarcerations, criminal history, inability to parent or participate in services, and classification preventing contact show incapacity that cannot be remedied in foreseeable future	Affirmed: substantial record supports termination under §2511(a)(2); incarceration and associated conduct dispositive here
Whether termination could be grounded on §2511(a)(5) and (a)(8)	Father: (implicit) challenges to bases for termination	Agency: court cited (a)(5) and (a)(8) among grounds	Appellate court: noted error to apply (a)(5)/(a)(8) because Child was never in Father’s care, but affirmed overall judgment based on (a)(2)

In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard of review and deference to trial court credibility findings in termination cases)
In re L.M., 923 A.2d 505 (Pa. Super. 2007) (bifurcated §2511 analysis: conduct first, then child’s best interests)
In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003) (elements required to terminate under §2511(a)(2))
In re A.L.D., 797 A.2d 326 (Pa. Super. 2002) (parental incapacity may include refusal as well as inability to perform parental duties)
In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006) (child’s need for permanence outweighs indefinite delay for parent’s rehabilitation)
In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) (parental incarceration is relevant to §2511(a)(2) and can be dispositive depending on circumstances)
In re A.D., 93 A.3d 888 (Pa. Super. 2014) (discussing relevance of incarceration to parental capabilities)
In re Adoption of W.J.R., 952 A.2d 680 (Pa. Super. 2008) (pattern of criminal activity and failure to comply with goals can satisfy §2511(a)(2))