In the Int. of: H.W., Appeal of: M.W.

J-A26041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: M.W., FATHER : No. 1217 EDA 2021

Appeal from the Order Entered June 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002042-2018

IN THE INTEREST OF: H.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: M.W., FATHER : No. 1218 EDA 2021

Appeal from the Order Entered June 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000083-2021

BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 30, 2021

M.W. (Father) appeals from the orders entered in the Philadelphia

County Court of Common Pleas, terminating his parental rights to his four-

year old son, H.W. (Child) and changing the dependency goal to adoption. 1

____________________________________________

1 This Court consolidated Father’s two appeals. We further note that the
parental rights of H.W.’s mother, A.B. (Mother), were also terminated that
same day, June 1, 2021. Mother’s appeals are currently pending before this
same panel at 1281 EDA 2021 et seq.

(Footnote Continued Next Page)
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Father argues the Department of Human Services (DHS) agency improperly

focused solely on the fact of his incarceration, and failed to meet its burden of

proof. After careful review, we agree and conclude the trial court erred in

finding DHS established grounds for termination under 23 Pa.C.S. §

2511(a)(1), (2), (5), or (8). Accordingly, we reverse both orders.

I. Facts & Procedural History

Child was born in March of 2017,2 and Father has been incarcerated for

the duration of Child’s life. N.T., 4/28/21, at 59. We note DHS also filed

termination and goal changes petitions for Child’s older half-sibling, J.B., born

in 2013, and younger half-sibling, M.J., born in 2018. Throughout this case,

the trial court has reviewed the dependency matters for all three children

together.

The evidence and procedural history concerning Mother, as well as her

care of Child, J.B., and the third sibling, M.J. has been set forth in detail in the

trial court’s opinion. As the parties and trial court are well familiar with that

history, we do not reproduce the entirety of it here. See Trial Ct. Op. at 2-

13. Instead, we summarize the following.

____________________________________________

H.W. has two half-siblings, J.B. and M.J. The parental rights of their
father, G.J., were likewise terminated. His appeals are pending before this
Court at 1344 EDA 2021, 1345 EDA 2021, 1346 EDA 2021, and 1347 EDA
2021.

2 No father was listed on Child’s birth certificate. Trial Ct. Op., 7/27/21, at 2.

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In August of 2018, DHS received a general protective services (GPS)

report, that another older half-sibling, J.T., was receiving trauma therapy for

post-traumatic stress disorder, “stemmed from severe physical and

psychological abuse by his Mother[.]” Trial Ct. Op. at 2. The report also

alleged

Mother was physically abusive to J.B. and J.T.[,] there was an
active Protection from Abuse (PFA) Order against Mother on behalf
of the Children; that Mother had been arrested for violating the
PFA Order by stalking J.T.’s Father and trying to contact him in
retaliation for losing custody of J.T.; that Mother had a criminal
history of assault in the past; that Mother had a history of severely
abusing the Children; and that Mother was diagnosed with
substance abuse and depression. This Report was determined to
be valid.

On October 11. 2018, DHS implemented In-Home
Services . . . through Community Umbrella Agency (CUA) Turning
Points for Children (TP4C).

Id. at 3 (record citations omitted).

On January 24, 2019, DHS received a child protective services (CPS)

report

that Mother was not adequately supervising her Children; that
[Child] had a burn on his back that he sustained from hot grease
two weeks prior to the Report; that it was unknown how [Child]
had sustained the burn; that [Child’s] burn appeared severe; that
Mother did not seek medical care for [Child]; and that Mother was
not present in the home at the time of the incident.

The Report alleged that Mother did not have a good
relationship with her Children; that Mother yelled a lot at the
Children and hit the Children to control their behavior; and that
[J.B.] resided with his Father[.] The Report further alleged . . .
that Mother displayed behaviors which possibly suggested that
she suffered from mental health issues; and that Mother used
phencyclidine (PCP). This Report was determined to be indicated.

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Trial Ct. Op. at 4-5 (paragraph break added and record citations omitted). A

second report, issued the following day, stated “H.W. was diagnosed with a

2nd degree burn with a surface area wound measuring ten centimeters by

seven centimeters on his upper back region[.]” Id. at 7.

Child was adjudicated dependent on June 6, 2019, when he was two

years old. On February 16, 2021, DHS filed petitions to involuntarily terminate

both Father’s and Mother’s parental rights, and on March 2nd, petitions to

change Child’s permanency goal to adoption. The trial court conducted a

hearing on April 28, 2021; we note that at this time, Child had recently turned

four years old. Father was incarcerated at SCI-Somerset and appeared by

telephone. He was represented by counsel. We note the testimony given by

and about Father was not disputed.

“In 2015, [Father pleaded] guilty to the unlawful possession of

controlled substance.” Trial Ct. Op. at 8. In 2017 — the year of Child’s birth —

Father pleaded guilty to endangering the welfare of a child, aggravated

assault, simple assault, and recklessly endangering another person. N.T.,

4/28/21, at 18. In December of 2017, he received a sentence of three to six

years’ imprisonment. Id. Father’s minimum release date was May of 2022.

Id. at 62, 102. No further information about his criminal offenses was

presented. See id. at 18. As stated above, Father was incarcerated at the

time of Child’s birth, and has remained incarcerated throughout Child’s life.

Id. at 59.

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Jasmine Jackson, the case manager with Turning Points for Children,

testified to the following. Father was not “any indicator for perpetrator of [the

CPS] reports.” N.T., 4/28/21, at 126. He initially had one “single case plan

objective[ ]:” “to maintain contact with [her] for case planning. Id. at 103,

127. Case Manager Jackson did have communication with Father, by letter

and telephone. Id. at 61. When Father informed her he was taking parenting

and GED classes at the prison, both were added to his single case plan

objectives. Id. at 103. These were his only case plan goals. Id. at 127.

Furthermore, Case Manager Jackson observed telephone conversations

between Child and Father, when Mother called Father during her visits with

Child. N.T., 4/28/21, at 104. Based on these telephone calls, Case Manager

Jackson believed there was no parent-child bond between Father and Child.

Id. However, she also testified “everything [was] appropriate during those

phone conversations.” Id. at 126. Father requested virtual visits with Child

and provided the name of a contact person, but when Case Manager Jackson

contacted that person, she did not receive a reply. Id. at 126-27.

Additionally, Father has not had telephone contact with Child through the

foster parents. Id. at 126.

Father testified to the following. Due to the COVID-19 pandemic, all

prison programs, “except for school[,]” were “stopped.” N.T., 4/28/21, at

108. However, prior to the pandemic, he was participating in both GED and

parenting classes, and he was to begin violence prevention class in the fall of

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2021. Id. at 109. Mother previously brought Child to visit him weekly at

county jail, and Child was excited to see him, and would smile and laugh. Id.

at 109-10. He wished for Child to return to Mother, testifying, “[T]he children

would have food. . . . And they had clothes that still had tags on them. So I

never really had nothing bad to say about her or show she treated the

children.” Id. at 110. Father wished that he were at home, so that his

relationship with Child “would be better than what it is now.” Id. at 111.

However, he acknowledged, “[D]ue to the fact that I’ve been gone for so long,

he probably wouldn’t even remember me.” Id. Father likewise testified that

he discussed having virtual visits with Case Manager Jackson, who “wrote an

e-mail to the deputy that work[s] in visitation that can help with these kinds

of visits[.]” Id. Father “check[s] in” about the visits “here and there,” but

has not received any further information. Id.

When asked why reunification between Father and Child has “been ruled

out,” Case Manager Jackson responded: “Due to his incarceration and his

continued incarceration. He’s not available to be a resource for the child.”

N.T., 4/28/21, at 103. She also testified she did not believe termination of

Father’s rights would cause irreparable harm to Child. Id.

The trial court held a second hearing on June 1, 2021, at which the court

heard testimony from J.B. and M.J.’s father. At this juncture, we note the

children were removed from their foster home in February of 2021 “due to a

valid report of inappropriate discipline.” N.T., 4/28/21, at 105, 125. The three

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children — Child, J.B., and M.J. — were living in different foster homes. N.T.,

6/1/21, at 79.

At the end of that hearing, the trial court terminated Father’s parental

rights to Child, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).

The court also terminated Mother’s rights to her three children, and changed

all three children’s goals to adoption. Father timely filed a notice of appeal

and Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on

appeal.

II. Statement of Questions Involved

Father presents the following issues for our review:

1. Did the Trial judge rule in error that [DHS met] its burden of
proof that Father’s parental rights to his child be terminated[?]

2. Did the trial judge rule in error that the termination of Father’s
parental rights would best serve the needs and welfare of [Child?]

3. Did the Trial judge rule in error that [DHS met] its burden of
proof that the goal be changed to adoption[?]

4. Did the judge rule in error that it was in the child’s best interest
to change the goal to adoption[?]

Father’s Brief at 5.

III. Standard of Review for Termination & Section 2511

We note the general standard of review for the termination of parental

rights:

[W]e are limited to determining whether the decision of the trial
court is supported by competent evidence. Absent an abuse of
discretion, an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand. Where a trial

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court has granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision the
same deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in order to
determine whether the trial court’s decision is supported by
competent evidence.

Interest of C.S., 761 A.2d 1197, 1199 (Pa. Super. 2000) (en banc) (citations

omitted).

We further note the standard of review of a goal change order:

Appellate review of goal change determinations is equally
deferential. In a change of goal proceeding, the best interests of
the child and not the interests of the parent must guide the trial
court, and the burden is on the child welfare agency involved to
prove that a change in goal would be in the child’s best interest.

In re R.I.S., 36 A.3d 567, 573 (Pa. 2011) (citations omitted).

Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S. § 2511. Here, the trial court found grounds

for termination under the following subsections:

(a) General rule. — The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or failed
to perform parental duties.

(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.

* * *

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(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with an
agency for a period of at least six months, the conditions
which led to the removal or placement of the child continue
to exist, the parent cannot or will not remedy those conditions
within a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare of
the child.

* * *

(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs and
welfare of the child.

* * *

(b) Other considerations. — The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on the
basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition filed
pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the giving
of notice of the filing of the petition.

See 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), (b).

Section 2511 requires a bifurcated analysis:

Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for

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termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

Our Supreme Court has stated:

The party seeking the termination of parental rights bears the
burden of proving that grounds for termination exist by clear and
convincing evidence. Clear and convincing evidence is defined as
testimony that is so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. Although this
court has stated that the standard of review for an appellate court
in these matters is limited to the determination of whether the
trial court’s decree is supported by competent evidence, we have
also explained that the factual findings of the trial court should not
be sustained where the court has abused its discretion or
committed an error of law.

In re R.I.S., 36 A.3d at 572 (citations omitted).

Our Supreme Court has addressed the termination of an incarcerated

parent’s parental rights:

This Court has long held that a parent’s absence or failure to
support his or her child due to incarceration is not, in itself,
conclusively determinative of the issue of parental abandonment.
Indeed, incarceration alone is not an explicit basis upon which an
involuntary termination may be ordered pursuant to Section
2511[. Interest of C.S., 761 A.2d at 1201.] Rather, we must
inquire whether the parent has utilized those resources at his or
her command while in prison to continue and pursue a close
relationship with the child or children. An incarcerated parent
desiring to retain parental rights must exert him- or herself to take
and maintain a place of importance in the child’s life.

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In re R.I.S., 36 A.3d at 572-73 (some citations omitted).

IV. Termination of Father’s Parental Rights Under Section 2511(a)

In his first issue, Father challenges the sufficiency of the evidence

supporting the trial court’s termination of his parental rights pursuant to

Subsections (1), (2), (5), and (8). We first consider his argument that

Subsections (5) and (8) are not implicated when a child is not removed from

the care of the parent. See Father’s brief at 22-23. We agree.

Both Subsections (5) and (8) require that “[t]he child has been removed

from the care of the parent.” 23 Pa.C.S. § 2511(a)(5), (8). An en banc panel

of this Court has held that termination under these two subsections is not

appropriate where the record shows the child was never in the parent’s care,

and therefore could not have been “removed” from their care. Interest of

C.S., 761 A.2d at 1200 & n.5.

Here, Case Manager Jackson’s undisputed testimony is that Father was

incarcerated at the time Child was born, and has been incarcerated throughout

Child’s life. We conclude that because Child was never in Father’s care,

termination under Subsections (a)(5) and (8) was improper. See Interest

of C.S., 761 A.2d at 1200 & n.5.

With respect to Subsections (a)(1) and (2), Father presents largely the

same supporting discussion. He maintains he was engaged in all his plan

goals — maintaining contact with the CUA case manager and attending

parenting and GED classes at the prison, until they were suspended during

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the COVID-19 pandemic. Father requested virtual visits with Child, but Case

Manager Jackson’s attempts to contact the appropriate person were

unsuccessful. Father avers DHS’s sole argument for termination was the fact

of his incarceration; however, Father contends, incarceration alone is not

proper grounds for termination. After careful review, we agree that the trial

court erred in finding DHS met its burden of proof under Subsections (a)(1)

and (2).

Preliminarily, we observe that the vast majority of the evidence

presented at the April 28 and June 1, 2021, hearings pertained to Mother.

The evidence concerning Father was limited to a copy of his criminal history

and Case Manager Jackson’s testimony, the entirety of which we summarized

above. See N.T., 4/28/21, at 18, 59, 61-62, 102-04, 126-28. Furthermore,

while the trial court issued a separate, 45-page opinion pertaining to Mother,

a significant portion of its opinion, addressing Father’s appeal, relates to

factual and procedural history involving Mother only. See Trial Ct. Op. at 2-

8, 16-17.

As stated above, Father was not found to be the perpetrator of any

abuse in this case. See N.T., 4/28/21, at 126. Father initially only had one

goal — to maintain contact with CUA Case Manager Jackson — and he was

compliant with that goal. When Father informed her that he was participating

in parenting and GED classes in prison, those classes were added to his plan.

Case Manager Jackson confirmed these were his only goals, and DHS made

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no allegation that he was failed to comply. See N.T., 4/28/21, at 127. The

only goal that Father was ostensibly not actively pursuing was the parenting

class, but he explained this class was suspended due to the COVID-19

pandemic. Significantly, Case Manager Jackson acknowledged Father’s

request for virtual visits with Child, but the person she attempted to contact,

in order to arrange such visits, did not reply to her. See id. at 126-27.

Finally, we consider that, with respect to Subsections 2511(a)(1) and

(2), the sole reason given by Case Manager Jackson for Father’s termination

was the mere fact of his incarceration. Case Manager Jackson testified as

follows:

[Attorney for DHS]: And as far as the Father of [Child], did you
establish single case plan objectives for him while he’s
incarcerated to work towards being able to be in a position to
parent his child?

[Case Manager Jackson]: Yes. His single case plan objective . . .
he had explained to me that he was engaged in parenting as well
as a GED program.

Q: Okay.

A: He [sic] added those to the single case plan.

Q: Okay. And despite those participation in those types of
programs while incarcerated, do you believe reunification is a
possible goal for [Child] and Father at this time . . . ?

A: No.

Q: And why has reunification between [Child] and [Father] been
ruled out?

A: Due to his incarceration and his continued incarceration.
He’s not available to be a resource for the child.

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Q: And do you believe that would cause [Child] irreparable harm
if the Court were to terminate his rights?

A: No, I don’t.

N.T., 4/28/21, at 103 (emphases added).

In its opinion, the trial court sets forth the undisputed evidence

pertaining to Father, as we have summarized above. Trial Ct. Op. at 17-20.

The court then sets forth its analysis, in sum, as follows:

This Court found that Father’s continued incapacity caused the
Child to be without essential parental care, control or subsistence,
and the causes of the incapacity could not or would not be
remedied by him, establishing grounds for termination of his
parental rights.

Id. at 20.

While the trial court did not cite any portion of Subsection 2511(a) here,

we note it paraphrased the language of Subsection (2). See 23 Pa.C.S. §

2511(a)(2) (“The repeated and continued incapacity . . . of the parent has

caused the child to be without essential parental care, control or subsistence

necessary for his physical or mental well-being and the conditions and causes

of the incapacity . . . cannot or will not be remedied by the parent.”). The

court acknowledged Father met all three of his plan objectives, and the fact

that he requested virtual visits, but Case Manager Jackson did not receive any

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reply from the person she contacted to arrange such visits.3 However, absent

from the trial court’s analysis was any discussion of Father’s status as an

incarcerated parent, or whether he “has utilized those resources at his . . .

command while in prison to continue and pursue a close relationship with”

Child. See In re R.I.S., 36 A.3d at 573.

Mindful of our deferential standard of review, we conclude the trial court

erred in finding DHS presented clear and convincing evidence establishing

grounds for termination. See 23 Pa.C.S. § 2511(a)(2); In re R.I.S., 36 A.3d

at 572. When asked specifically why reunification would not be possible, Case

Manager Jackson’s sole reason was Father’s incarceration and consequent

inability “to be a resource for the child.” N.T., 4/28/21, at 103. As discussed

above, “a parent's incarceration, standing alone, cannot constitute proper

grounds for the termination of his or her parental rights.” See In re R.I.S.,

36 A.3d at 569. Father was compliant with all three of his goals

(notwithstanding the suspension of parenting classes due to the COVID-19

pandemic), and attempted to use the resources available to him — the

assistance of Case Manager Jackson — to have virtual visits with Child. See

____________________________________________

3 Relatedly, we note the trial court’s voiced appreciation to the prison official
who facilitated Father’s appearance by telephone at the April 28, 2021. See
N.T., 4/28/21, at 116 (trial court advising the prison official: “I wanted to
specifically thank you and the prison authorities for providing him [sic]. I do
a lot of these, and we normally don’t get that kind of cooperation from prison
authorities. . . . ”).

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id. at 573. Case Manager Jackson also testified that Father has not had

telephone calls with Child through the foster parent, but provided no

explanation why that option has not been pursued or was not advisable. See

N.T., 4/28/21, at 126. As stated above, Case Manager Jackson testified that

Father’s previous telephone calls with Child were appropriate. See id. Finally,

we note the court did not address the relevance of the fact that Father’s

minimum release date (May of 2022) was within one year of the termination

hearing.

For the foregoing reasons, we conclude the trial court erred in finding

DHS presented clear and convincing evidence under Subsection 2511(a)(1)

and (2) for termination.

We acknowledge the trial court also found grounds for termination under

Subsection (b), which relates to the parent/child bond and best interests of

Child. Father’s second issue on appeal is a challenge to this finding. However,

without grounds for termination under Subsection (a), we do not reach the

analysis under Subsection (b). See In re L.M., 923 A.2d at 511 (“Only if the

court determines that the parent’s conduct warrants termination of his or her

parental rights does the court engage in the second part of the analysis

pursuant to Section 2511(b): determination of the needs and welfare of the

child under the standard of best interests of the child.”).

Accordingly, we reverse the order terminating Father’s parental rights.

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V. Goal Change

Father’s remaining two issues on appeal pertain to: (1) the sufficiency

of the evidence for the goal change; and (2) the effect of the goal change on

Child. In light of our disposition of his first issue, we reverse the order

changing Child’s goal to adoption.

VI. Conclusion

For the foregoing reasons, we reverse the orders terminating Father’s

parental rights and changing Child’s goal to adoption. Jurisdiction

relinquished.

Judge Stabile joins the Memorandum.

Judge Bowes files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2021

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