One of the more nettlesome public policy questions courts are forced to address is when and under what circumstances are the rights of a child’s parent to be terminated.  The right to procreate and to enjoy the comfort of one’s off spring has long been considered fundamental as a matter of constitutional law.  But how is this right meaningful in a world where a parent has been or will be incarcerated for a substantial portion of the child’s minority?  This is the question a unanimous Supreme Court sought to answer In Re: Adoption of S.P.    

As with so many cases involving termination the facts are sad.  S.P. was conceived by a 17 year old mother and a 19 year old father in the Summer, 2004. Mother was herself a part of a foster placement under the aegis of a county Children & Youth Office.  Soon after the child was conceived and five to six months before S.P. was born, his father was incarcerated on charges of attempted murder.  He was still in custody when S.P, was born in May, 2005 and he remained in prison until January, 2006 when a guilt plea yielded a sentence of five to ten years at a state correctional facility.  Mother did take the child to visit Father while he was awaiting trial but Mother had her own problems to address; she tested positive for marijuana and was involved in a domestic assault of her own where S.P. was present.  Like his mother S.P. was declared dependent even before his Father’s criminal charges were resolved by plea.


Mother’s situation did not improve, S.P was placed in the custody of a maternal great aunt in mid-2007.  By September, 2008 Mother had voluntarily terminated her rights to S.P. and the great aunt and her husband began to pursue adoption of S.P. and a second child mother had given birth to in October, 2007.


In March, 2009 the Office of Children and Youth sought to terminate Father’s rights under Section 2511(a)(2) of the Adoption Law.  This allows terminate of a parent’s rights based upon “continued incapacity, abuse, neglect or refusal [such that the child is] without parental care, control of subsistence.”  The statute also requires a finding by the Court that this condition cannot or will not be remedied.  The trial court in Washington County found that these conditions had been met and entered an order terminating Father’s rights in June, 2009; two months before the first possible date upon which Father would be eligible for release to a half-way house.


In evaluating the matter the trial court noted that the child had disabilities related to autism and required special daily treatment outside the home. They noted that Father’s release, even if it did occur would be to a facility where he could not assume physical custody.  Once released from the halfway house Father would need both employment and housing before he could seriously consider taking part in physical custody. They also noted that S.P. had formed a relationship with her half-sister with whom she had lived for almost two years.


Father appealed and the Superior Court reversed the termination order in October, 2010. It relied upon a 1975 Supreme Court case holding that incarceration alone was an insufficient basis to terminate parental rights. In re Adoption of McCray 331 A.2d 652 (1975).  Because Father had attempted to maintain contact with the child despite the disability that imprisonment imposed, the appellate court found that the real limitation was not Father’s interest but his ability to provide parental support in a meaningful way.  Based upon McCray, the Superior Court found that it could not terminate parental rights based upon continued incapacity borne of Father’s conduct, even though it had resulted in his incarceration.


The Supreme Court assumed jurisdiction of the case in October, 2011.  The order granting review focused on to what degree courts could evaluate “the effect of Father’s incapacity on the child’s need for essential parental care, control or subsistence.” 31 A.2d 287.


In a decision issued on May 17, 2012 the Supreme Court unanimously held that while incarceration standing alone is not a basis for termination of parental rights, where the incarceration renders the parent unable to perform parental duties on a continuing basis, this may form the basis of termination notwithstanding good faith efforts on the parent of the child to maintain some semblance of a relationship. The key difference appears to be the length of the confinement and its impact on the child’s need for parental care and comfort from some adult figure.  Summing up, Justice Baer writes: “…we now definitively hold that incarceration, while not a litmus test for termination, can be determinative of the question of whether a parent in capable of providing ‘ essential parental care, control or subsistence’ and the length of the remaining confinement can be considered as highly relevant to whether the ‘conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.’ sufficient to provide grounds for termination pursuant to 23 Pa.C.S. 2511 (a)(2).


The Court noted that in each case, the needs of the child must be evaluated with an eye toward the parents ability to provide. Although not explicitly discussed the decision affirming termination appears to be grounded heavily upon the sophisticated needs of the child for daily therapy.  The sense one gets from the opinion is that the trial court and the Supreme Court took little solace in the fact that the Father was shortly eligible for release and appeared to have been a cooperative prisoner while incarcerated.  He would need to secure more than simply release but he needed an unspecified amount of time to establish himself and become self-sustaining.

In re Adoption of S.P. 40 WAP 2011 (5/17/12) 24 pages