In the Interest of D.C.D.
91 A.3d 173
Pa. Super. Ct.2014Background
- Child (D.C.D.) placed in foster care shortly after birth (Mar 2011) due to mother's drug use; paternity established May 2011. Father has been incarcerated since before the child’s birth with a minimum release date in 2018.
- CYS initially set concurrent permanency goals of reunification and placement with a fit and willing relative; Father consistently requested visitation, sent cards/gifts, and proposed his niece (S.R.) as a kinship placement.
- Juvenile court ordered monthly virtual visitation beginning Jan 2012; only one virtual visit occurred (Jan 2012). Father later requested in-person visits after transfer to a facility without video capability; CYS largely failed to arrange visits and refused to place the child with S.R. as temporary kinship care.
- CYS filed a first petition (May 2012) to change goal to adoption and terminate parental rights; the orphans’ court denied termination as to Father, finding CYS provided effectively no assistance and ordering CYS to assist Father in reunification efforts. This Court affirmed the denial as to Father (Feb 2013).
- CYS filed a second termination petition under 23 Pa.C.S. § 2511(a)(2) and (b) about 10 weeks later; the orphans’ court granted termination despite again finding CYS had failed to assist Father. The Superior Court reversed, concluding CYS’s failure to provide reasonable reunification efforts before filing required denial of the termination petition.
Issues
| Issue | CYS's Argument | Father's Argument | Held |
|---|---|---|---|
| Whether §2511(a)(2) supports termination based on Father’s incarceration (incapacity) | Incarceration can be determinative; Father’s confinement prevents providing essential parental care | Father argued he actively sought contact and offered kinship placement; CYS failed to provide court-ordered reunification efforts | Court did not decide merits under §2511(a)(2); reversed termination because CYS failed to make reasonable efforts before filing the petition |
| Whether termination under §2511(b) (child’s best interests) is satisfied | Termination serves child’s needs and welfare given lack of parental bond and Father’s incarceration | Father argued lack of bond resulted from CYS’s refusal to facilitate visits and kinship placement; termination not in child’s best interest absent agency efforts | Court declined to resolve §2511(b) because procedural/legal error (failure to provide reunification services) required reversal |
| Whether CYS’s failure to provide reasonable reunification efforts precludes filing a termination petition under ASFA/Juvenile Act exceptions | CYS relied on S.P. (incarceration may justify termination) to proceed despite limited services | Father argued statutory and constitutional protections require reasonable agency efforts before filing; ASFA/Juvenile Act permit an exception when agency itself fails to provide services | Held for Father: agency must make reasonable reunification efforts before filing; CYS’s failure (and violation of juvenile/orphans’ court orders) barred termination petition filing here |
| Whether In re Adoption of S.P. bars relief where agency failures exist | S.P. allows incarceration to be determinative of incapacity in some cases, permitting termination despite incarceration | Father argued S.P. is distinguishable because here the court expressly found CYS failed to provide required reunification services | Court distinguished S.P.: where the record shows CYS failed to make reunification efforts (as here), S.P. does not justify terminating parental rights |
Key Cases Cited
- In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) (incarceration can be determinative of parental incapacity under §2511(a)(2))
- In re N.W., 859 A.2d 501 (Pa. Super. 2004) (ASFA/Juvenile Act require filing when child in care 15 of last 22 months; explains statutory framework)
- In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006) (Commonwealth must make reasonable efforts to promote reunification before filing termination petition)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standards for appellate review of orphans’ court factfindings and credibility determinations)