In Re: T.L.H., Jr., a Minor

2025 Pa. Super. 102

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2025
• Docket: 1474 MDA 2024
• Status: Published

Opinion

J-S01002-25 2025 PA Super 102

IN RE: T.L.H., JR., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: T.L.H., SR., FATHER : : : : : : No. 1474 MDA 2024

Appeal from the Decree Entered September 6, 2024 In the Court of Common Pleas of Berks County Orphans' Court at No(s): 88919

BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

OPINION BY NICHOLS, J.: FILED MAY 13, 2025

Appellant T.L.H., Sr. (Father), appeals from a decree involuntarily

terminating his parental rights to T.L.H., Jr. (Child), a minor, claiming that the

trial court failed to credit Father for his efforts to maintain a relationship with

Child during his incarceration and his commitment to reunification with Child

upon his release, to consider alternative remedies to termination of parental

rights, and in concluding that termination was in Child’s best interests. Child

was two years, ten months old at the date of the termination hearing. We

reverse.

Facts

Child was born prematurely at thirty-five weeks in October 2021, tested

positive for amphetamines, and was placed in the NICU. N.T., 9/6/24, at 44.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S01002-25

Father acknowledged paternity of Child shortly after birth, and DNA testing

later confirmed that Father was the biological father of Child. Id. at 48. From

birth until Child was approximately nine months old, Father and Child lived

together “every single day.” Id. at 22. Father acknowledged that he used

methamphetamines from 2013 until 2017, at which time he became sober

upon being sentenced to prison and enrolled in a boot camp program. Id. at

35. When asked about his “choice” to raise Child with Child’s biological

mother, N.L.S. (Mother), even though Mother was using methamphetamines,

Father testified that, “I didn’t know she was using. [T]he first time I didn’t

know. I didn’t know. People can hide things pretty well[,]” and further

explained that his current support network consisted of individuals who do not

use drugs at all. Id. at 35-36.

In December 2021, Berks County Children and Youth Services (Agency)

opened an in-home services case to support Mother and Child, and on

February 25, 2022 Agency held a family group decision making (FGDM)

conference, at which Father was present, “to develop a plan of support for

Mother and Child if Mother would relapse.” R.R. at 114a (Ex. 6, hearing

officer’s May 9, 2023 findings of fact, adopted by the trial court on May 13,

2023);1 see also N.T., 9/6/24, at 44-45.2 “[T]he case was closed on July 8, ____________________________________________

1 We may cite to the reproduced record for the parties’ convenience.

2 Specifically, Lauren Howard, an Agency caseworker, testified that during the

FGDM conference Mother and Father “identified supports who would help with caregiving and supervision of [Child.]” N.T., 9/6/24, at 44.

-2- J-S01002-25

2022, because they were complying with services in the family group plan.”

N.T., 9/6/24, at 44.

On July 19, 2022, however, Agency received a report indicating that

Mother had been recently hospitalized for drug use. See N.T., 9/6/24, at 45.

Upon Agency’s investigation after this report, Mother admitted to her

continued use of methamphetamines. Id. Subsequently, on July 22, 2022,

Agency filed a petition for emergency custody of Child because of Mother’s

drug use and because Mother had left Child with individuals not listed on the

FGDM plan. Id. On that same date, Father was taken into custody for a

parole violation. Id. at 22, 45. The trial court granted Agency emergency

custody of Child and Agency placed Child in foster care with C.H. (Foster

Mother) and J.W. (collectively, Foster Parents); Child has remained in the care

of Foster Parents for the entirety of this dependency matter. Id. at 54-55,

63.

On August 10, 2022, the trial court adjudicated Child dependent and

directed Father to, among other things, participate in parenting education,

obtain a mental health evaluation and a drug and alcohol evaluation, and

establish and maintain stable and appropriate housing and income, in order

to reunify with Child. Id. at 45-46; see also R.R. at 96a-98a (Ex. 4, Order

of Adjudication, CP-06-DP-122-2022, 8/10/22). The trial court ordered that

“[v]isitation between Father and Child shall begin after Father’s release from

incarceration, which is expected to occur in the near future, and shall occur

two [] times per week for a two [] hour duration[].” See, e.g., R.R. at 97a.

-3- J-S01002-25

Further, Susan Quirits, Esq., appeared on behalf of Father at the adjudication

hearing.3 See R.R. at 96a.

The trial court entered orders after permanency review hearings for

Child’s dependency case on December 13, 2022, May 9, 2023, October 17,

2023, and March 5, 2024. See R.R. at 99a-149a (Ex. 5-8, dependency orders,

12/15/22, 5/10/23, 10/23/23, and 3/6/24 (collectively, Dependency Orders)).

Father, who was incarcerated at the time, did not appear at these hearings.

However, Attorney Quirits, Father’s court-appointed counsel, appeared

telephonically on behalf of Father at the first three dependency hearings and

in person at the last hearing on March 5, 2024.4 R.R. at 99a, 109a, 123a,

140a. On March 5, 2024, the trial court vacated Attorney Quirits’s

appointment as Father’s counsel; the record does not reflect the reason for

the trial court’s decision to vacate this appointment or why the trial court did

3 In letters dated November 7, 2022; March 16, 2023; and August 14, 2023,

Agency informed Father that if he wished to have an attorney represent him at upcoming permanency hearings that he should complete an affidavit of destitution and submit this to Child’s caseworker. See R.R. at 150a (Ex. 9, correspondence from Agency to Father), 158a (Ex. 11, correspondence between Father and Agency), and 163a (Ex. 12, correspondence between Father and Agency).

4 The record does not indicate that Attorney Quirits ever requested nor if the

trial court ever ordered the Dauphin County Prison, the Department of Corrections, or the relevant prison warden or superintendent to arrange for Father to participate in these hearings while incarcerated, either in person, telephonically, or by videoconferencing.

-4- J-S01002-25

not appoint new counsel to represent Father.5 See R.R. at 142a. Father

subsequently testified that he never received a copy of the March 5, 2024

dependency order. See N.T., 9/6/24, at 24. Father also testified that

Attorney Quirits only communicated with him twice: the first time “when [he]

first got incarcerated[]” in July of 2022; the second time after Father learned

that Agency would move to terminate his parental rights and wrote a letter to

the trial court which was forwarded to Attorney Quirits, to which Attorney

Quirits responded by writing to Father that “the only thing getting [Child] back

will do is traumatize him, and there’s nothing we can do about it.” Id. at 19-

20.

Additionally, the Dependency Orders note that, due to Father’s

incarceration, he “has not had access to services.” See, e.g., R.R. at 100a

(Ex. 5, Dependency Order, 12/15/22). The Dependency Orders also provide

that “[u]pon Father’s release from incarceration, visitation between Father

and Child shall be fully and professionally supervised and occur two [] times

per week for a two [] hour duration[;]” and that, “[u]pon Father’s release from

incarceration, he shall immediately contact [Agency] to develop a plan of

services and visitation.” Id. at 101a (some formatting altered).

5 See 42 Pa.C.S. § 6337 (providing that “a party is entitled to representation

by legal counsel at all stages of any proceeding under this chapter and if he is without financial resources or otherwise unable to employ counsel to have the court provide counsel for him”).

-5- J-S01002-25

With regard to Agency’s plan to reunify Father with Child, in letters dated

November 7, 2022, through to November 30, 2023, Agency advised Father

that it is your responsibility to establish/maintain a relationship with your child. This could be through letters, cards, audiotapes, or gifts to your child regularly and on special occasions. If possible make contact with your child’s caseworker to obtain updates on your child’s progress in placement. Additionally, you can also take steps to better prepare yourself for the challenges of raising a child once you are released. Enroll in parenting or other classes to address some of the problems associated with your incarceration. Most correctional facilities offer anger management, parenting, and drug/alcohol classes, among others, to help you overcome obstacles that prevent you from being a better parent to your child.

Id. at 151a (Nov. 14, 2022 correspondence from Agency to Father); see also

R.R. at 156a-57a, 159a (Ex. 11, correspondence between Father and Agency);

161a-62a, 164a-65a (Ex. 12, correspondence between Father and Agency).

Father kept Agency informed of his sentence of incarceration. See id.

at 166a (Ex. 12). While incarcerated at SCI Phoenix, Father corresponded by

letter with Agency caseworkers on April 10, 2024; May 7, 2024; May 8, 2024;

and May 13, 2024. Specifically, Father explained in his May 7, 2024 letter

that he had already requested parenting classes but was informed that this

service was not available to him. See id. at 170a (Ex. 16, Father’s May 7,

2024 correspondence to Agency).

With regard to visitation between Father and Child, Lauren Howard, the

Agency’s adoption caseworker, testified that the Dependency Orders directed

that supervised visits were to start after Father’s release from incarceration

-6- J-S01002-25

and did not provide for telephone contact between Father and Child. See

N.T., 9/6/24, at 52.6 Ms. Howard was not aware of whether the institutions

where Father had been incarcerated offered any of the services that Father

was required to complete in the Dependency Orders. Id. at 50. Father

testified that he had weekly video calls with Child on Sundays during Mother’s

supervised visits with Child, and this was “pretty much all I could do.” Id. at

17, 21; see also id. at 27-28; R.R. at 310a-12a (Ex. 18, Father’s inmate call

log).7 Father explained that Child had not been permitted to come in person

to the prison to see him. See N.T., 9/6/24, at 21. Father testified that his

last contact with Child occurred at the end of February of 2024, which was

shortly before Mother consented to relinquish her parental rights to Child. See

id. at 30.

6 Specifically, Ms. Howard testified as follows:

Q: Was there ever mention in any of the court orders of phone contact [between Father and Child]? A: No. Q: So, to your knowledge, do you know anyone at the Agency that would have permitted that contact? A: No.

N.T., 9/6/24, at 52 (some formatting altered).

7 We note that the three pages of Father’s inmate call log included in Exhibit

18 are numbered 1, 3, and 5, indicating that there may have been additional pages 2 and 4 that were not included in the certified record. Father’s counsel at the TPR hearing described this document as “a five-page exhibit.” See N.T., 9/6/24, at 27.

-7- J-S01002-25

After Father’s last video visit with Child, as facilitated by Mother, at the

end of February 2024, Father wrote a letter to Foster Mother about Child and

they spoke by telephone on May 28, 2024. During that call, Foster Mother

informed Father that he could no longer have video visits or calls with Child

due to a court order, and explained that Ms. Howard had informed her that

the only contact that Father could have with Child was pictures from Foster

Parents. Id. at 23-24, 26; see also R.R. at 309a (Ex. 18, Father’s

correspondence to his new counsel, Joseph T. Bambrick, Esq.). Father sent

Child a card with a monster truck on it in January of 2024, and he sent another

card with a picture of a monster truck and Captain America to Child on June

24, 2024. See id. Father testified that he did not send pictures to Child

previously because he did not have money to buy pictures. See N.T., 9/6/24,

at 20.

With regard to the services Father was required to complete in the

Dependency Orders, on May 9, 2023, Father wrote to Katherine Rosario, an

Agency caseworker, asking her to meet him “to talk about [Child] and what I

got to do to start the process of getting him back once I am released from

prison.” See R.R. at 160a (Ex. 11). In response, Ms. Rosario met with Father,

and Father testified that at this meeting she informed him that, “as long as

[you do] what the Court Order said, when you are released from prison, you

. . . get your evaluations for drug and alcohol, and get into parenting class,

and everything will just slowly – you’ll get your visits back, and it will come

back, back, back.” N.T., 9/6/24, at 14. Father testified that he understood

-8- J-S01002-25

from the Dependency Orders that his psychological evaluation could be

completed following his release from prison, that is, “everything in the Court

Order said, when you get released from prison, to do it when I got released

from prison. It didn’t say, do it while you’re in prison[,]” and that “[i]t says

in the Court Order, specifically, when Father’s released from incarceration. It

don’t say, get it done while you are in there. It says, when I’m released.” Id.

at 31-32.

Father testified that because he was not classified as a parent in the

prison’s computer system, he was informed by prison staff that he could not

participate in parenting classes. See id. at 7-9. Specifically, even after Father

explained to a staff member that he had a DNA test confirming that he is

Child’s father, the staff member was not able to enroll Father in the parenting

education program in the prison’s computer system. See id. at 8-9. Further,

Father was not able to obtain a drug and alcohol evaluation while he was

incarcerated, nor a psychological evaluation which he requested on July 29,

2024. See id. at 9, 24-25, 31; R.R. at 306a (Ex. 18, inmates’ request to staff

member form). He explained that he was unable to receive these services

because he had been recommitted as a parole-violator and because there was

a long waiting list for the programs and services. See id.8

8 We note that Father requested his psychological evaluation on July 29, 2024,

after Agency filed the TPR petition on May 7, 2024, and received a written response from prison staff that the prison system does “not provide psych evaluations for this purpose.” R.R. at 306a (Ex. 18, inmate’s request form); (Footnote Continued Next Page)

-9- J-S01002-25

On February 27, 2024, Father wrote to Ms. Rosario informing her about

the sentence he received on that same date in his criminal matter and stating

that, “I just can’t wait to get home and do everything in my power to be with

[Child] and resolve all this.” R.R. at 166a (Ex. 13, Father’s correspondence

to the Agency).

On April 10, 2024, after receiving an introduction letter from Ms.

Howard, Father wrote back that he had not received the most recent

dependency order and requested a copy of the same. See id. at 168a (Ex.

15, correspondence between Father and the Agency). Father also asked Ms.

Howard why Child’s case was now considered an adoption case as “my last

caseworker told me as long as I did as I’m supposed to according to the court

order I didn’t have to worry about adoption. My goals are to come home in

December and start the process of getting [Child] back.” Id.

Ms. Howard wrote to Father on April 24, 2024, explaining that since

“[t]here has been no progress with the case” and Child had been in foster care

over fifteen months that Agency was required to petition to terminate Father’s

parental rights and would file this petition in May of 2024. Id. at 169a.

On May 7, 2024, Father wrote to Ms. Howard requesting that she come

visit him “as soon as possible so I can ask questions and get the answers right ____________________________________________

see also id.; N.T., 9/6/24, at 24-25, 31. We note that in deciding whether a petitioner has established grounds of termination of parental rights under 23 Pa.C.S. §§ 2511(a)(1), (6), or (8), the trial court “shall not consider any efforts by the parent to remedy the conditions described [in the petition to terminate parental rights] which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S. § 2511(b).

- 10 - J-S01002-25

away not a month later.” Id. at 170a (Ex. 16, correspondence between Father

and Agency). Further, Father responded to Agency’s conclusion that he had

made no progress with Child’s case by explaining that “no services are

available for me here to do that. I wrote requests for parenting classes and

they don’t have anything like that here. I’m in a back on track program that’s

the only recommended program they will give me.” Id.

On May 8, 2024, Father again wrote to Ms. Howard, stating that he

“would like to be present for the hearing involving [Child]” and “I don’t

understand why this has to happen now when every court order I have

received says nothing about adoption it all says once Father is released from

prison I got to do a number of things to get my son back and that’s it.” R.R.

at 171a-72a (Ex. 16, Father’s correspondence to Agency).

On May 9, 2024, Agency served Father with its petition to terminate his

parental rights to Child (TPR petition). See Proof of Service, 5/9/24. Further,

on May 7, 2024, Agency filed a petition to confirm Mother’s consent to

adoption, along with Mother’s affidavit of consent to the adoption of Child,

which Mother executed on March 5, 2024. See Pet. to Confirm Consent to

Adoption, 5/7/24.

On May 13, 2024, Father wrote to Ms. Howard to ask for a meeting and

informed her that he had requested “an Appointed Attorney.” Id. at 173a. In

this letter Father also reiterated that he had not been able to access any

education programs or classes in prison and that he did not wish to give up

his rights to Child. Id.

- 11 - J-S01002-25

Ms. Howard met with Father on May 22, 2024 and reviewed Agency’s

TPR petition with him, and testified that Father responded to this information

by “look[ing] at the paperwork and, um, used some curse words towards me,

and got up, and left the room.” See N.T., 9/6/24, at 51.

On September 6, 2024, the trial court held a hearing on Agency’s TPR

petition.9 At the time of this hearing, as previously noted, Child was two years

and ten months old. Child was represented by Ashley Esposito, Esq., serving

both as Child’s Guardian ad Litem (GAL) and legal counsel,10 and Father was

represented Attorney Bambrick, who entered his appearance on June 3, 2024.

See N.T., 9/6/24, at 5.11

Father and Ms. Howard were the only witnesses who testified at the TPR

petition hearing. Father testified that he had been incarcerated since July of

9 The Honorable Tina M. Boyd presided over Child’s dependency case, including the emergency shelter care petition and adjudication of dependency, as well as all permanency review hearings and dependency orders. The Honorable Jill M. Scheidt presided over the TPR hearing.

10 On May 13, 2024, the trial court appointed Attorney Esposito, who was already serving as Child’s GAL, as Child’s legal counsel for Father’s TPR proceedings, noting that Attorney Esposito “has no conflict serving as both Legal Counsel and Guardian ad Litem.” See Trial Ct. Order, 5/13/24 (some formatting altered).

11 The record does not contain an order appointing Attorney Bambrick as Father’s counsel. In reference to Attorney Bambrick, the trial court opinion states that “Father obtained new counsel, Joseph T. Bambrick, Esquire[,]” and the trial court docket reflects that Attorney Bambrick entered his appearance on behalf of Father on June 3, 2024. We gather from these references that Father independently retained Attorney Bambrick after the trial court vacated the appointment of Attorney Quirits.

- 12 - J-S01002-25

2022 and that his minimum term of sentence ended in December 2024 and

the maximum term ended in November 2025. See N.T., 9/6/24, at 6-7,12 22,

37. Father testified that he was currently serving a sentence for committing

“criminal mischief” in March of 2022, a violation of the terms of his parole

from a sentence for possession of a firearm and receiving stolen property. Id.

at 21-22, 34. Father testified that he been incarcerated four times prior to

Child’s birth, for periods of forty-five days, ninety days, thirteen months, and

eighteen months, and that his first sentence in 2013 had been for possession

of methamphetamine. Id. at 34-35. Father had been incarcerated in Dauphin

County Prison on July 22, 2022, transferred to SCI Smithfield on March 1,

2024 after his sentencing date, and was transferred to SCI Phoenix on April

7, 2024. See R.R. at 186a (Ex. 17, Father’s criminal docket sheets); N.T.,

9/6/24, at 33.

Father testified that, based on information from his parole officer, he

expected to be released in December of 2024 and intended to reside with his

brother, M.A., in an apartment in Morgantown, Pennsylvania; that he was a

certified welder and had a job prospect at a company that processed titanium;

and that Child could live with Father at M.A.’s apartment. See N.T., 9/6/24,

at 7, 28-29. Father testified that M.A. had committed to help him get back

on his feet and, with regard to “rent and expenses[,]” that his brother ____________________________________________

12 Father testified that, “I seen parole two weeks ago, and he said, you will be

out in – [December] . . . I’d be out in my minimum. I got nine months as of March 3rd [when Father was sentenced]. I got nine months in [as of December 2024].” N.T., 9/6/24, at 6-7.

- 13 - J-S01002-25

“wouldn’t expect me to pay anything until I was able to pay something.” Id.

at 38.

On September 6, 2024, the trial court issued a decree terminating

Father’s parental rights to Child pursuant to 23 Pa.C.S. §§ 2511(a)(1), (a)(2),

and (b).13 See Decree, 9/6/24, at 1-2 (unpaginated). Father filed a timely

notice of appeal, and both Father and the trial court complied with Pa.R.A.P.

1925.

On appeal, Father raises the following issues:

1. Did the trial court err and abuse its discretion in granting [the Agency’s TPR] petition under 23 Pa.C.S. § 2511, when [] Father made efforts to maintain a relationship with [] Child during his incarceration and demonstrated a commitment to reunification upon his release?

2. Did the trial court fail to adequately consider alternative remedies to the termination of parental rights, such as a transitional reunification plan, thereby contravening Pennsylvania’s preference for preserving family bonds whenever feasible?

3. Did the trial court err and abuse its discretion in determining that the termination of [] Father's parental rights was in [] Child’s best interests under 23 Pa.C.S. § 2511(b), when [] Father maintained contact with [] Child to the extent permitted by his circumstances, and the kinship family's interference further limited his ability to strengthen the parent-child bond?

13 We note that although the trial court terminated Father’s rights only under

Sections 2511(a)(1) and (2), the trial court also referenced Sections 2511(a)(5) and (a)(8) in its opinion. See Trial Ct. Op., at 17-18. Because the instant decree did not reference either Section 2511(a)(5) and (a)(8) as grounds for termination, we do not address these grounds.

- 14 - J-S01002-25

Father’s Brief at 4 (some formatting altered).14

Standard of Review

In reviewing Father’s appeal, we are mindful that “the grounds of

termination must be demonstrated by clear and convincing evidence[]” by the

party seeking termination, in order to protect both “a parent’s substantive due

process rights” and fundamental parental rights, “while also ensuring the

safety and permanency needs of dependent children.” See In re D.C.D., 105

A.3d 662, 676-77 (Pa. 2014) (citation omitted); see also, In re T.J.J.M., 190

A.3d 618, 626 (Pa. Super. 2018) (the party seeking termination bears the

burden of proof) (citation omitted); In re R.I.S. 36 A.3d 567, 572 (Pa. 2011)

(plurality) (same).

The right to “raise one’s children has long been recognized as one of our

basic civil rights[, and] the complete and irrevocable termination of parental

rights is one of the most serious and severe steps a court can take.” Id.

(citations omitted). “Because of this serious impact attending the termination

of parental rights, it is important that a judicial decree extinguishing such

rights be based solely on competent evidence.” In re Adoption of C.M., 255

14 While Father identified three issues in his statement of questions presented,

the argument section of his brief is not divided into three sections. We note that Pa.R.A.P. 2119(a) requires that the argument section of the brief be divided into as many parts as there are questions to be argued and that failure to do so may result in waiver. Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1042 (Pa. Super. 2015). As the defect in Appellant’s brief does not impede our ability to render meaningful appellate review, we decline to find waiver on this basis. Id.

- 15 - J-S01002-25

A.3d 343, 358 (Pa. 2021) (citations omitted). In reviewing a termination

decree, we “accept the findings of fact and credibility determinations of the

trial court if they are supported by the record, but [are] not require[d] to

accept the lower court’s inferences or conclusions of law.” Id. “[A]bsent an

abuse of discretion or error of law, where the trial court’s findings are

supported by competent evidence, an appellate court must affirm the trial

court even though the record could support the opposite result.” R.I.S. 36

A.3d at 572. “To the extent an issue raises purely a question of law or

statutory interpretation, our standard of review is de novo and our scope of

review is plenary.” In re K.T., 296 A.3d 1085, 1104 (Pa. 2023) (citations

omitted).

Termination of parental rights is governed by Section 2511 of the

Adoption Act,15 which 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 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.

T.J.J.M., 190 A.3d at 626-27 (citations omitted). We need only agree with

the trial court as to any one subsection of Section 2511(a), as well as Section

2511(b), to affirm an order terminating parental rights. Id. ____________________________________________

15 23 Pa.C.S. §§ 2101-2938.

- 16 - J-S01002-25

Section 2511(a)(1)

Father first contends that the trial court erred in finding grounds to

terminate his parental rights under 23 Pa.C.S. § 2511(a)(1) because, despite

his incarceration, he maintained a relationship with Child through video

communications and mailed pictures or cards to Child. Father’s Brief at 13.

Father notes that his attempts to maintain a bond with Child were thwarted

after February 2024, when Foster Mother informed him that, upon Agency

instruction, he could no longer contact Child by video calls, as describes this

as an arbitrary termination of his contact with Child. Id. at 13, 17-20. Father

argues that he could not have in-person contact with Child unless Agency

“agreed and the custodian of the child brought the child to the prison to see

him.” See id. at 16. Father notes that he testified that he expected to be

released in December 2024 and had made arrangements to be with Child upon

his release, and that upon release he would be ready, willing, and able to care

for Child. Id. at 17-19.16

16 Father’s brief states that Father was released from SCI Phoenix on November 5, 2024. Father’s Brief at 8. Further, Father’s reproduced record includes certifications of programs, including for parenting education, that Father completed after the TPR petition hearing. See R.R. at 313a-20a. We note that Father’s release date and these program completion certifications were not before the trial court at the TPR petition hearing and therefore are not part of the record for our review and, accordingly, our disposition does not rely on these items. See Pa.R.A.P. 1921 (the certified record “shall constitute the record on appeal in all cases”); see also Eichman v. McKeon, 824 A.2d 305, 316 (Pa. Super. 2003) (“an appellate court cannot consider anything which is not part of the record” (citation omitted)).

- 17 - J-S01002-25

Agency responds that “Father did not complete any of the services

ordered at the time of adjudication of Child.” See Agency’s Brief at 14, 18-

19. While acknowledging Father’s position that “he was unable to access

services while incarcerated[,]” and not disputing that caseworkers “told him

‘not to worry’ about completing services,” Agency characterizes Father’s

testimony as “filled with contradictions” and “attempt[s] to place blame

anywhere else[].” Id. at 14-15.17 Agency notes that Father did not attend

Child’s permanency review hearings and described him as “wholly

noncompliant” with Child’s permanency plan and that he demonstrated a “lack

of engagement with [Agency] despite the efforts each caseworker made to

involve Father in [Child’s d]ependency case[.]” Id. at 19-20.

Section 2511(a)(1) of the Adoption Act provides as follows:

(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.

17 Agency did not provide any citations to the record to support its argument

that Father’s evidence or testimony was contradictory or untrue.

We note that Father’s position accords with the Dependency Orders, which state that “Father’s incarceration has limited Father’s access to assessments and any consequential services[,]” Father “has not had access to services[,]” and “[u]pon Father’s release from incarceration, he shall immediately contact [Agency] to develop a plan of services and visitation.” See, e.g., R.R. at 99a- 102a (Ex. 5, Dependency Order, 12/13/22).

- 18 - J-S01002-25

23 Pa.C.S. § 2511(a)(1).

With regard to the grounds for termination in Section 2511(a)(1), “[t]he

law does not require a settled purpose of relinquishing a parental claim and a

refusal or failure to perform parental duties, but one or the other.” Adoption

of C.M., 255 A.3d at 364 n.12 (citation omitted and emphasis in original).

“Parental duty” is “a positive duty requiring affirmative performance” and a

parent must “exercise reasonable firmness in resisting obstacles placed in the

path of maintaining the parent-child relationship, or his rights may be

forfeited.” Id. at 364 (some formatting altered and citations omitted).

However, even where the evidence clearly establishes a parent has failed to perform affirmative parental duties for a period in excess of six months, the court must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination of parental rights. We have consistently emphasized the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved. In this vein, a wealth of Superior Court jurisprudence instructs trial courts deciding Subsection 2511(a)(1) cases to consider the whole history of a given case and “not mechanically apply the six-month statutory provision[,]” although “it is the six months immediately preceding the filing of the petition that is most critical to the analysis.”

In further consideration of the totality of circumstances, if competent evidence establishes the statutory criteria under Subsection 2511(a)(1), we then require three lines of inquiry: (1) the parent’s explanation for his or her absence; (2) the post- abandonment contact between parent and child, including a parent’s efforts to re-establish contact; and (3) consideration of the effect of termination of parental rights on the child pursuant to Subsection 2511(b).

- 19 - J-S01002-25

Id. at 364-65 (citations omitted and some formatting altered).

For incarcerated parents,

a parent’s absence or failure to support his or her child due to incarceration is not, in itself, conclusively determinative of the question of parental abandonment. Indeed, incarceration alone is not an explicit basis upon which an involuntary termination may be ordered pursuant to Section 2511 of the [] Adoption Code. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison to continue to pursue a close relationship with the child[.] 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.

* * *

[T]his Court has never adopted or countenanced a view that incarceration alone . . . represents appropriate and sufficient grounds for the involuntary termination of parental rights. . . . [W]hen a parent uses the opportunities that are available in prison to make sincere efforts to maintain a place of importance in the lives of his or her children, incarceration alone will not serve as grounds for the involuntary termination of his or her parental rights [under Section 2511(a)(1)].

R.I.S., 36 A.3d at 572-74 (citations and footnotes omitted).18 ____________________________________________

18 We note that R.I.S. is a plurality opinion in which six members of our Supreme Court reversed this Court and sustained the trial court’s denial of a petition to terminate parental rights. Former Justice McCaffery authored the lead opinion, joined by then-Chief Justice Castille and then-Justice Eakin. Then-Justices Saylor, Baer, and Todd each authored concurring opinions, while then-Justice Orie Melvin authored a dissenting opinion. R.I.S., 36 A.3d at 575.

Instructive to our review here, then-Justice Baer in his concurrence, joined by then-Chief Justice Castille and then-Justices Todd and Saylor, stated that

[t]here is no question that the fact of incarceration, regardless of why, is not in and of itself determinative of parental incapacity. (Footnote Continued Next Page)

- 20 - J-S01002-25

The incarcerated parent in R.I.S. had an approximate future release

date in two years and three months at minimum, and six years and three

months at maximum, at the time of the termination hearing, and had been

the primary caregiver for the children before his incarceration. Id. at 569,

571. The R.I.S. petitioner conceded that “there was nothing that [the parent]

didn’t do or that there wasn’t some satisfactory reason for his not being able

to do it.” Id. at 571. The trial court in R.I.S. “determined that the length of

[] sentence was not so great as to foreclose the possibility of the successful

maintenance of the parent-child relationship” and, relying in part on this

finding, denied the termination petition. Id. at 571, 574. A divided three-

member panel of this Court reversed the trial court’s order; on appeal, our

Moreover, the fact of incarceration during an ongoing dependency action will not disqualify a parent from resuming parental responsibility so long as the parent will be released quickly enough to permit the court to provide the child with timely permanency upon reunification. If however, the length of parent’s incarceration will preclude the court from unifying the (former) prisoner with the child on a timely basis in order to provide the child with the permanent home to which he or she is entitled, then the length of sentence, standing alone, should and does meet the legal criteria for involuntary termination . . . under 23 Pa.C.S. § 2511(a)[.]

Id. at 576 (Baer, J., concurring); see also In re Adoption of S.P. 47 A.3d 817, 829 (Pa. 2012) (reviewing this concurring opinion in R.I.S. and adopting this approach). Stated another way, “[w]hile the mere fact that the parent was incarcerated . . . during . . . a dependency case does not serve as grounds for termination, the length of a parent’s incarceration, standing alone, can satisfy the statutory grounds for termination under 23 Pa.C.S. § 2511[.]” R.I.S., 36 A.3d at 576 (Baer, J., concurring).

- 21 - J-S01002-25

Supreme Court reinstated the trial court’s denial of the termination petition.

Id. at 574.

After R.I.S., our Supreme Court again reviewed how a parent’s

incarceration should be treated in the context of termination of parental rights

in In re Adoption of S.P. In S.P., the parent began serving a five to ten-

year sentence prior to the birth of the child. Adoption of S.P., 47 A.3d 817,

819 (Pa. 2012). During his incarceration, the parent had six visits with the

child, sent cards and letters to the child and requested the child’s artwork;

and a social worker opined that the parent “had put substantial efforts into

establishing a relationship with [the child], did everything he could do from

prison[.]” Id. at 823. The termination hearing was held three years into the

parent’s sentence, when the child, who had special needs, was three years

and ten months old. Id. at 819. The S.P. trial court noted that, “at the time

of his incarceration, [the parent] did not have his own housing, employment,

or transportation, and had previously been adjudicated delinquent[;]” and

further found that

the parent “had been incapable of providing for [the child] since her birth, and was unable to ‘maintain’ a relationship with [the child] because one never existed[,]” and concluded that the parent did “not currently have the ability to be such a caregiver, nor is it clear when in the future, if ever, he will be capable of doing so.”

Id. at 820. The trial court found that the parent “could not provide a date

certain when he would be able to parent [the child],” and “that [the child’s]

- 22 - J-S01002-25

‘need for permanence and stability will not be subordinated to a parent’s

claims of progress or hope for the future.’” Id.

In S.P., our Supreme Court reiterated that in considering the effect of a

parent’s incarceration on the question of abandonment contained in Section

2511(a)(1), the relevant query is “whether the parent has utilized those

resources at his or her command while in prison in continuing a close

relationship with the child[,]” that is, whether the parent has exercised

“reasonable firmness in declining to yield to obstacles[.]” Id. at 822 (citing

In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975)).

Here, the trial court acknowledged that “Father’s incarceration had

limited his access to assessments and any consequential recommended

services[,]” and that the Dependency Orders directed that “visitation between

Father and Child” shall occur “upon Father’s release from incarceration[.]”

Trial Ct. Op., 11/6/24, at 8. However, the trial court did not consider the

effect of the Dependency Orders on Father’s conduct in prison, concluding only

that “Father hesitated to complete services or participate meaningfully saying

that [the dependency] orders told him he could wait until his release.” Id. at

19-20. The trial court disparaged Father for “waiting until his release to get

a psychological evaluation[]” without identifying why this was unreasonable

given that the Dependency Orders contemplated just such a timeline for

Father. Id. at 24. The trial court found that Father’s relationship with Child

consisted of Father sending one picture to Child over the course of his

incarceration and that Father had video calls with Child “for a few minutes

- 23 - J-S01002-25

every week until February 2024.” Id. at 20. The trial court characterized

Father’s conduct under the circumstances as “minimal efforts to communicate

with [] Child” and concluded that Father’s weekly video calls were “insufficient

to establish a bond with [] Child.” Id. The trial court further noted that Father

for the most part did not follow Agency’s recommendations “that Father

maintain a relationship with [] Child through letters, cards, audiotapes or gifts

on special occasions[,]” and concluded that Father “could have done more to

maintain a relationship with Child [while incarcerated,] such as reaching out

to the foster family sooner than three [] months prior to the [TPR] hearing,

after the [TPR] petition was filed.” Id.

The trial court acknowledged that Father corresponded with Agency

caseworkers and informed Agency of his efforts to obtain his required

assessments and services. Id. at 20-21. The trial court found, however, that

Father’s testimony about his residence and employment prospects upon his

expected release from prison in December 2024 lacked corroboration, was

“self-serving,” and “little more than hope” because Father could not provide

“a date certain when he would be able to parent [] Child[.]” Id. at 21. The

trial court concluded that “Father’s expectation [] to start services upon his

release[,]” for example, “waiting until his release to get a psychological

evaluation[,]” coupled with Father’s past criminal conduct which had caused

his unavailability to parent Child, was not “sufficient reason to continue to

delay [] Child’s permanency.” Id. at 21, 24.

- 24 - J-S01002-25

Here, with regard to Section 2511(a)(1), we consider Father’s conduct

in the six months prior to Agency’s service of the TPR petition, that is,

December 9, 2023 to May 9, 2024, and whether this conduct demonstrates “a

settled purpose to relinquish a parental claim to Child or a refusal or failure to

perform parental duties.” See 23 Pa.C.S. § 2511(a)(1); C.M. 255 A.3d at 364

n.12. To avert termination on this ground, Father must have exercised

reasonable firmness in resisting obstacles placed in the path of maintaining

the parent-child relationship. See Adoption of S.P., 47 A.3d at 822. We

also review, due to Father’s incarcerated status, whether the trial court

evaluated how Father “utilized those resources at his [] command while in

prison to continue to pursue a close relationship with [Child,]” that is, whether

Father made “sincere efforts” and exerted himself “to take and maintain a

place of importance in [Child’s] life.” R.I.S., 36 A.3d at 573 (citations

On this record, we are constrained to disagree with the trial court’s

conclusion that Agency met its burden with regard to Section 2511(a)(1). See

C.M., 255 A.3d at 358. The record reflects that Father cared for Child from

birth to age nine months. See N.T., 9/6/24, at 22. During his incarceration

Father wrote six letters to Agency caseworkers repeatedly asking what he

needed to do to resume parental duties to Child and reporting on his efforts

to comply with his reunification requirements. See R.R. at 160a, 166a, 168a,

170a-73a. Agency’s plan for Father’s reunification with Child – as set forth in

the Dependency Orders, communicated to Father in Agency correspondence,

- 25 - J-S01002-25

and confirmed by Agency’s witness – recognized that Father could not access

services in prison, and the orders provided that Father’s progress on these

services shall commence upon his release from incarceration. See, e.g., id.

at 101a (Dependency Order, 12/15/22). Despite this grace period for Father’s

progress toward reunification as set forth in the orders, Father did attempt,

albeit unsuccessfully, to access services while in prison. See N.T., 9/6/24, at

7-9; see also R.R. at 170a, 173a. Therefore, the trial court’s conclusion that

Father was passive with respect to completing services necessary to resume

parental duties is not supported by the record.

Agency recommended that Father maintain a relationship with Child by

sending items such as cards or pictures to Child and writing letters to Foster

Parents to stay apprised of Child’s status. See, e.g., R.R. at 151a. Father

instead maintained contact with Child directly through weekly video visits until

the end of February 2024.19 See N.T., 9/6/24, at 17, 21, 27-28, 30. Foster

Mother informed Father that Agency had instructed her to terminate these

video visits because the trial court had not authorized them, and that the only

authorized contact Father was to have with Child were pictures from Foster

Parents, Father sending cards or pictures to Child, or writing letters to Foster

Parents. See id. at 23-24, 26; see also R.R. at 309a (Ex. 18). The

Dependency Orders provided for supervised visitation with Child upon Father’s

19 As stated above, Mother voluntarily consented to terminate her parental rights to Child on March 5, 2024, and therefore no longer had visitation with Child after this date.

- 26 - J-S01002-25

release from incarceration, but neither expressly permitted nor prohibited

video visits or calls while Father was incarcerated. See, e.g., R.R. at 101a

(Ex. 5, Dependency Order, 12/13/22). Agency’s interpretation of these orders

– that video visits were prohibited while Father remained incarcerated – and

Agency’s action pursuant to this interpretation limited Father’s contact with

Child to the exchange of cards and pictures between Father and Foster

Parents. See Agency’s Brief at 19. We note that Child was aged nine months

to two years and seven months during the relevant period.

Agency did not introduce any evidence that cards and pictures are more

effective than weekly video visits for Father to maintain a meaningful

relationship with Child, where Father’s maintenance of such a relationship was

a prerequisite to reunification and where reunification was the primary

permanency goal in all the dependency orders. See, e.g., R.R. at 141a-42a.

As stated above, it is undisputed that Father communicated with Child on a

regular basis until Agency cut off this contact. Following our review, we

conclude that the trial court’s conclusion that Father barely communicated

with Child on a regular basis lacks support in the record.

Finally, with regard to the length of Father’s sentence and his residence

and potential employment opportunities upon release, the trial court did not

specifically discredit Father’s testimony that he expected to be released in

December 2024 but did, however, describe it as “self-serving.” See Trial Ct.

Op. at 21. The trial court characterized Father’s post-incarceration plans – to

live in an apartment with his brother until he earned his own income; to seek

- 27 - J-S01002-25

work based on his certification as a welder, for which he had identified a

potential employer; and to gradually re-establish in-person contacts with Child

with the goal of having Child come live with him full-time, none of which

Agency disputed – as “supported by little more than hope[.]” Id.

The conditions that led to Child’s placement were Mother’s relapse into

drug use and Father’s incarceration. See N.T., 9/6/24, at 45. Since Child’s

placement, Mother voluntarily consented to terminate her parental rights and,

accordingly, Child is no longer in danger of being abandoned by Mother due

to a drug addiction. See Pet. to Confirm Consent to Adoption, 5/7/24, Ex. A.

The record therefore reflects that upon Father’s release from incarceration

both conditions that led to Child’s placement would no longer exist.

It is Agency’s burden to prove that Father evidenced a settled purpose

of relinquishing his parental claim or refused or failed to perform his parental

duty by failing to utilize resources or opportunities available to Father in

prison. See 23 Pa.C.S. § 2511(a)(1); R.I.S., 36 A.3d at 574; Adoption of

S.P., 47 A.3d at 822; see also, T.J.J.M., 190 A.3d at 626; D.C.D., 105 A.3d

at 676-77. Agency does not dispute and the trial court does not discredit

Father’s testimony and evidence that he attempted to obtain his drug and

alcohol evaluation and parenting education during the six months preceding

service of the TPR petition, even though the Dependency Orders permitted

Father to commence progress on these tasks upon his release. Agency also

does not dispute and the trial court did not discredit that Father attempted to

maintain contact with Child, even though the Dependency Orders did not

- 28 - J-S01002-25

provide for visitation with Child and Agency did not make efforts to assist

Father to have meaningful contact with Child but instead hindered Father’s

contact with Child. The record reflects that Father utilized the resources at

his command while in prison to continue to pursue a meaningful and age-

appropriate relationship with Child. See Adoption of C.M., 255 A.3d at 364.

As this Court cannot identify the facts in the record relied on by the trial court

to find that Agency met its burden of clear and convincing evidence, we

therefore conclude that the trial court abused its discretion and, accordingly,

reverse termination of Father’s parental rights under Section 2511(a)(1). See

id. at 358.

Section 2511(a)(2)

Father argues with respect to Section 2511(a)(2) that during his

incarceration he worked to fulfill his parental duties toward Child, but “could

not visit with [Child] unless [Agency] agreed and the custodian of [Child]

brought [Child] to the prison to see him, which . . . did not happen[;]” and

that he did attempt to “keep contact with [Child]” but “was denied his right to

exercise his parental duty while incarcerated by [Agency preventing] video

visitation by the custodial family.” See Father’s Brief at 16-17. Therefore,

Father argues, “any lack of contact with [Child] was the result of the [trial

court and/or Agency] denials and not any conscious actions by [] Father.” Id.

at 16. Further, Father has “no history of abuse” and is “ready, willing and

able to care for [Child].” Id. at 18.

- 29 - J-S01002-25

Agency responds that Father demonstrated a “patterned course of

conduct that displayed his lack of commitment to being an available caregiver

for Child.” See Agency’s Brief at 16. Agency does not address in its brief

Father’s testimony that he had weekly video visits with Child until February

2024, or how this regular recurring contact factors into the evaluation of

whether Father maintained a parental relationship with Child. Agency also

does not address that Agency itself treated Mother as having recovered from

her addiction to methamphetamines to the point of closing Mother’s case

based on Mother’s progress, the same position that Father established at the

TPR hearing.

The Adoption Act further provides for termination of parental rights on

the basis that:

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.

23 Pa.C.S. § 2511(a)(2).

Instead of a focus on parental abandonment as in Section 2511(a)(1),

in deciding whether a petitioner has established grounds under Section

2511(a)(2), a trial court must be mindful of “the child’s present and future

need for essential parental care, control or subsistence necessary for his

physical or mental well-being.” In re E.A.P., 944 A.2d 79, 82 (Pa. Super.

2008) (citation and quotation marks omitted).

- 30 - J-S01002-25

Thus, while “sincere efforts to perform parental duties,” can preserve parental rights under subsection (a)(1), those same efforts may be insufficient to remedy parental incapacity under subsection (a)(2). “Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities.”

In re Z.P., 994 A.2d 1108, 1117-18 (Pa. Super. 2010) (citations omitted and

formatting altered). Relevantly, while a trial court is not required to consider

a child welfare agency’s reasonable efforts to provide reunification services to

a parent prior to termination of rights,

the provision or absence of reasonable efforts [to provide reunification services] may be relevant to a court’s consideration of [] the grounds for termination [in Section 2511(a)(2)] and the best interests of the child. [In re Adoption of] S.E.G., 901 A.2d [1017, 1029 (Pa. 2006)]. . . . [A]n agency’s lack of assistance to a parent [may be] relevant to whether a parent’s incapacity cannot or will not be remedied by the parent. 23 Pa.C.S. § 2511(a)(2). . . . [A] child welfare agency cannot refuse reasonable efforts to an incarcerated parent and then point to the resulting erosion in the parental bond created by the agency as justification for termination of parental rights. The fact that such a scenario can be articulated, however, does not transform the provision of reasonable efforts to reunite parents and children into a requirement for termination.

D.C.D., 105 A.3d at 672 (emphasis added).

Perhaps most pertinently, in S.P. our Supreme Court, after analyzing

how incarceration impacts the question of parental abandonment under

Section 2511(a)(1), concluded that a different query should be employed to

determine parental incapacity under Section 2511(a)(2). Adoption of S.P.,

47 A.3d at 822, 827. Reversing a panel of this Court which held that

termination was improper for “an [incarcerated] parent who utilizes all prison

- 31 - J-S01002-25

resources but remains incapable of parenting a child[,]” the S.P. concluded

that

incarceration is a factor, and indeed can be a determinative factor, in a court’s conclusion that grounds for termination exist under [Section] 2511(a)(2)[,] where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied.

[Further,] incarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable 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 . . . cannot or will not be remedied by the parent, sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2).

Id. at 828-830 (citation omitted and some formatting altered). Applying this

query, our Supreme Court held that the S.P. trial court was within its

discretion – given that the parent had been incarcerated prior to the child’s

birth and accordingly never provided the child with “essential parental care[,]”

that the parent’s parole date was uncertain, and that upon parole the parent

would still need “to obtain housing, employment and transportation in addition

to parenting skills[]” – to conclude that the petitioner had established grounds

for termination pursuant to Section 2511(a)(2). Id. at 831.

Here, as stated above, the trial court concluded that Father had been

passive in making progress towards reunification with Child by waiting until

his release from incarceration to access services, that he had made minimal

- 32 - J-S01002-25

efforts to communicate with Child, and that Father’s plans for his post-release

work and living arrangements were aspirational rather than definite. See Trial

Ct. Op. at 14, 19-21.

Additionally, the trial court stated:

Father simply does not have the current ability to be a caregiver, even if released from prison.

Although Father gives lip service to his apparent care for [] Child, Father is not entitled to preserve his parental rights until he is released from prison. . . . Further, Father has not provided evidence of his guaranteed release [ ] in December [2024].

Id. at 17-18. Regarding the trial court’s conclusions as to Father’s conduct

with respect to obtaining services and maintaining contact with Child, we apply

the same analysis from our review of Section 2511(a)(1) to this analysis of

Section 2511(a)(2).

The trial court also discredited Father’s testimony that he was unaware

of Mother’s drug use when he “made the choice to parent with [Mother]”

because “Mother admitted to methamphetamine use while [] Child was in her

care.” Id. at 22. The trial court makes this credibility finding against Father

by concluding that “Father was present at the February 25, 2022 FGDM

conference where Mother admitted to her methamphetamine use. Father also

testified to his past criminal possession of methamphetamine and using

methamphetamine from 2013 to 2017.” Id. As noted above, Father testified

that he did not know that Mother continued to use methamphetamine after

- 33 - J-S01002-25

Child’s birth as Mother hid her drug use. See N.T., 9/6/24, at 35-36. The

record reflects that Mother used methamphetamine while pregnant, began

receiving in-home support services from Agency commencing in December

2021, and that the purpose of the FGDM conference in February 2022 was “to

develop a plan of support” for “if Mother would relapse.” See R.R. at 114a

(hearing officer’s May 9, 2023 findings of fact, adopted by the trial court on

May 13, 2023). Agency was satisfied with Mother’s progress to the extent

that it closed Mother’s case on July 8, 2022. See id. Shortly thereafter, on

July 19, 2022, Mother admitted to Agency that she had used

methamphetamine on July 15, 2022, prompting Agency to re-open Mother’s

case. See id. The record indicates that although Mother admitted to using

prior to Child’s birth and also on July 15, 2022; there was a period in between

these events, including at the FGDM conference, where Mother denied

continued drug use; and Agency acted consistent with a belief that Mother

was no longer using methamphetamine during this period. Id. Agency’s

evidence is wholly consistent with Father’s testimony regarding Mother’s drug

use.

While free to make credibility findings supported by the record, the trial

court’s disbelief that Father, with his direct personal experience with using

methamphetamine, could not tell that Mother continued her drug use after

Child was born, is contradicted by Agency’s action in closing Mother’s prior

case “due to Mother’s progress with services and cooperation with the FGDM

plan.” See, e.g., R.R. at 145a; N.T. 9/6/24, at 44 (Ms. Howard’s testimony

- 34 - J-S01002-25

that the case had been closed because Mother had been complying with

services and the family group plan).20 Agency itself determined that Mother

was no longer using methamphetamines when it closed Mother’s prior case on

July 8, 2022, but then learned on July 19, 2022 that Mother continued to use

methamphetamine, which is consistent with Father’s testimony. See R.R. at

114a (Ex. 6). The trial court found that Ms. Howard was credible. See Trial

Ct. Op. at 14. The trial court’s conclusion that Father knowingly chose to co-

parent with an individual who continued to use methamphetamines, a fact-

finding that impacts the assessment of Father’s judgment and ability to

provide a safe environment for Child in the future, is not supported by the

record and, accordingly, we need not defer to it. See Adoption of C.M., 255

A.3d at 358 (we “accept the findings of fact and credibility determinations of

20 The trial court also found that Father displayed “an unhealthy contempt towards [] Agency and [its] efforts to protect [] Child.” Trial Ct. Op. at 14.. The record reflects a single incident where Father expressed a negative attitude towards Agency, when Father cursed at Ms. Howard and left the room after she informed him that Agency would be moving to terminate his parental rights to Child. See N.T., 9/6/24, at 51. We do not condone Father’s reaction to that news; however, this is the only instance in the record where Father acted negatively towards Agency. All of Father’s letters to Agency are unfailingly polite and Father never insulted or disparaged Agency or its caseworkers during his testimony. Father’s complaints are about the effect of Agency action on his rights to Child and the discrepancy between the reunification plan set forth in the Dependency Orders and Agency actions. See N.T., 9/6/24, at 14, 17-18, 21, 23,-24, 26-28; see, generally, R.R. at 140a-43a. For these reasons, we conclude that the trial court’s conclusion that Father displayed an unhealthy contempt towards Agency is not supported by the record.

- 35 - J-S01002-25

the trial court if they are supported by the record, but [are] not require[d] to

accept the lower court’s inferences or conclusions of law” (citation omitted)).

In evaluating Father’s capacity to parent Child under Section

2511(a)(2), the length of Father’s remaining confinement and how

incarceration affects his ability to provide parental care, control or subsistence

to Child may be a determinative factor. See Adoption of S.P., 47 A.3d at

830. In S.P., our Supreme Court affirmed the termination of parental rights

of a parent who had two to seven years remaining in his term of incarceration,

who never provided parental care to his child, and who did not have prospects

for housing, employment, or transportation upon his release. Id. at 831.

Here, in evaluating Father’s capacity to provide for Child under Section

2511(a)(2), while Agency was not required to make reasonable efforts to

reunify Father with Child to establish grounds for termination, Agency “cannot

refuse reasonable efforts [to provide reunification services] to an incarcerated

parent and then point to the resulting erosion in the parental bond . . . as

justification for termination of parental rights.” See D.C.D., 105 A.3d at 672.

Here, Father had been incarcerated four times prior to Child’s birth and

had been incarcerated, for a fifth time, for twenty-five months at the time of

the TPR petition hearing. Father’s current incarceration was due to a parole

violation that occurred when Child was nine months old. As such, the record

does not support that Father’s conduct after Child’s birth, consisting of

Father’s parole violation, that is, a single incident of misconduct,

- 36 - J-S01002-25

demonstrates, as Agency argues, “a patterned course of conduct” indicating

lack of commitment to caring for Child.

With regard to the length of his incarceration, Father kept Agency

promptly informed of his term of sentence and his expected release in

December of 2024. Father had an offer of residence from his brother, who

had committed to support him in getting back on his feet, and Father has job

skills as a certified welder and a job prospect using these skills upon his

release. See N.T., 9/6/24, at 7, 28-29. Father had cared for Child for the

first nine months of Child’s life and maintained contact and attempted to

maintain a meaningful relationship with Child while incarcerated, despite

Agency’s hindrance of this goal. We note that, given Child’s young age, had

Father followed Agency’s direction, his contacts and relationship with Child

would be even more attenuated than they currently stand.

Pursuant to S.P., our review of the record does not support a conclusion

that the length of Father’s remaining incarceration, by itself, rendered Father

incapable of providing essential care, control or subsistence necessary for

Child’s physical or mental well-being. Adoption of S.P., 47 A.3d at 828-30.

Compared with the parent in S.P., Father had an established caregiving

relationship with Child for the first nine months of Child’s life and attempted

to maintain this relationship from prison and, therefore, has a foundation on

which to re-establish a parenting relationship with Child upon his release, and

his remaining term of sentence is considerably shorter. Moreover, Father’s

prospects for establishing a stable home and income upon release are more

- 37 - J-S01002-25

concrete than the incarcerated parent in S.P., as Father had identified a

residence and potential employment and had job skills.

“Because of the serious impact attending the termination of parental

rights, . . . [the trial court’s] decree extinguishing [Father’s] rights [must] be

based solely on competent evidence.” Adoption of C.M., 255 A.3d at 358

(citations omitted and formatting altered). The record reflects that Father’s

capacity to maintain a meaningful relationship with Child was hindered by

Agency’s own actions in restricting his contact with Child. The Dependency

Orders uniformly acknowledged that Father could not access services while

incarcerated and provided that Father’s progress toward reunification shall

commence upon his release. See, e.g., R.R. at 99a-101a (Ex. 5). Father’s

efforts to access services must be evaluated against these circumstances as

the Dependency Orders established a timeline for commencement of Father’s

progress. Father’s incapacity to parent Child while incarcerated is due in part

to Agency’s lack of reasonable efforts to provide reunification services. See

D.C.D., 105 A.3d at 672 (stating that “child welfare agency cannot refuse

reasonable efforts to an incarcerated parent and then point to the resulting

erosion in the parental bond created by the agency as justification for

termination of parental rights”). On this record, we conclude that the trial

court failed to consider the provisions in the Dependency Orders that

acknowledged Father’s lack of access to services while incarcerated, and the

effect of Agency’s conduct on Father’s understanding of when he needed to

commence progress on his services and on Father’s ability to maintain contact

- 38 - J-S01002-25

with Child. The trial court therefore abused its discretion when it gave no

practical effect to these key provisions in the Dependency Orders, which

directly impacted Father’s circumstances and were also communicated to

Father by Agency. See Adoption of C.M., 255 A.3d at 358. We therefore

conclude that Agency failed to carry its burden of establishing by clear and

convincing evidence that Father has a repeated and continued incapacity to

parent Child that cannot or will not be remedied. See 23 Pa.C.S. §

2511(a)(2); see also, Adoption of S.P., 47 A.3d at 828-30; see also,

T.J.J.M., 190 A.3d at 626; D.C.D., 105 A.3d at 676-77.21 Accordingly, we

reverse the trial court’s termination of Father’s parental rights pursuant to

Pa.C.S. § 2511(a)(2).

For these reasons, we vacate the decree terminating Father’s parental

rights to Child and remand for entry of an order denying the involuntary

termination petition.

Decree vacated. Remanded for further proceedings consistent with this

opinion. Jurisdiction relinquished.

Judge King joins the opinion.

PJE Stevens concurs in the result.

21 As we reverse the trial court’s finding of grounds for termination under 23

Pa.C.S. § 2511(a)(1) and (a)(2) we need not address Child’s best interests under Section 2511(b). See T.J.J.M., 190 A.3d at 631 (explaining that where this Court concluded that the trial court abused its discretion in terminating parental rights pursuant to Section 2511(a), this Court “need not consider the decree pursuant to Section 2511(b)” (citation omitted)).

- 39 - J-S01002-25

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 05/13/2025

- 40 -