Case Notes: Incarceration and termination of parental rights

People often confuse the terms custody and parental rights. Put simplistically, physical custody is the right to spend time wth a child and legal custody is the right to make important decisions on the child's behalf. Though rare, the court may suspend a parents physical and/or legal custody, if it is in the child's best interests.

Parental rights give each parent the ability to seek custody and to modify custody. Parental rights are innate to every parent and cannot be taken away (no matter the child's interests) unless the parent does certain extreme things like abandon the child. Also, there is no such thing as primary or partial parental rights. One either has parental rights or not.


In the case of In Re: Adoption of S.P. (Pa. Super 2011), the Pennylvania Superior Court ruled on whether a particular incarecerated parent could have his parental rights terminated. In a narrow 5-4 decision, the Superior Court ruled that Father should have his parental rights reinstated.

The father in this case had been incarcerated since before the child's birth on third degree (reckless - not intentional) murder charges, but was eligible for parole in a few months. Mother had voluntariliy terminated her parental rights and Mother's cousin sought to adopt the child, S.P. Father, however, sought to maintain his parental rights from prison. CYS sought to terminate Father's parental rights and have the cousin and her husband adopt the child. S.P. is a special needs child.

The trial court in Washington County, PA granted a CYS petition and terminated Father's parental rights. Father than appealed to Superior Court. The Superior Court analyzed the case. First, the Court pointed out that, under PA law, mere incarceration will not generally terminate parental rights. However, the incarcerated parent must use his available resources to maintain his relationship with the child. Here, Father had only seen the child 6 times and had not called the Child. But Father had the child visit when permitted and had sent cards, letters and artwork to the child. So, Father had not "abandoned" the child (one of the potential reasons for termating parental rights).

But the Court still needed to determine whether termination of Father's parental rights was appropriate under 23 Pa.CSA 2511 (a)(2), which provides grounds for termination when: 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 incapacity.. cannot or will not be remedied by the parent.

Under this provision, Courts have previously terminated the parental rights of people facing lengthy incarcerations that wil likeliy extend beyond the child's minor years. In this case, Father was eligible for parole in months.Also under this provision, Court have also terminated parental rights of parents for repeated incarcerations and relapses. However, that did not apply to this case.

The Court determined that terminating rights based upon incarceration requires a 2-part test. First, the Court must have "clear and convincing" evidence that the statutory grounds for termination have been met. Only then may the court consider the child's needs, welcare and best interests. The Superior Court found that, in this case, that there was not "clear and convincing" evidence that Father's actions met the statuory criteria for termination. The Superior Court was troubled by the fact that S.P. had special needs and also had a special need for a stable home. But the Court concluded that, under the 2-part test, the child's needs, welfare and best interests could not be considered. Accordingly, the Superior Court overturned the trial court decision and issued an opinion that reinstated Father's parental rights.

The four judge dissent rejected the 2-part test and was convinced that Father's failure to call the child, the speculative nature of Father's potential parole and the child's special needs all meant that Father fell under 2511(a)(2) and should have his rights terminated.

As always, speak to your attorney before applying this case to your circumstances. In the interest of clarity, I did not address several aspects of this opinion. Also, almost all rules have exceptions and the exceptions often have exceptions.