In re Adoption of S.P. , 32 A.3d 723 ( 2011 )

OPINION BY

DONOHUE, J.:

G.P. (“Father”) appeals from the trial court decree entered on June 24, 2009, which granted the petition of Washington County Children & Youth Social Services (“CYS” or the “Agency”) for the involuntary termination of Father’s parental rights to S.P. who was born in May, 2005. Father is incarcerated and has been since prior to S.P.’s birth. The record is unclear as to how much prison time, if any, Father has yet to face, although he was eligible for parole in August 2009 and had a clean prison record at the time of the termination hearing in March 2009.

The issue presented is whether reasons other than the fact of Father’s incarceration provide the basis for the termination of Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). After a careful review of the record, including uncontroverted evidence of Father’s efforts to establish and maintain a relationship with the child since her birth and his unassisted efforts to prepare himself to assume parental responsibilities and to enter the work force, we reverse.

The relevant facts and procedural history of this case are as follows. Father is the natural father of S.P., who was born in May of 2005. Father was 19 years old at the time of S.P.’s birth. B.D., biological mother (“Mother”), was 17 years old at the time of S.P.’s birth. S.P. is Father’s only child. Father has been incarcerated since December of 2004 based on his arrest for, and then a plea of guilty to, a third degree murder charge. On January 10, 2006, Father entered his guilty plea and was sentenced to five to 10 years of imprisonment for the unintentional but reckless shooting of his adoptive-father when Father was fiddling with a gun.

The family became involved with CYS in 2005, when CYS filed a merit petition alleging that Mother tested positive for THC and was involved in a domestic assault where S.P. was present. Following a hearing, S.P. was adjudicated dependent on December 19, 2005. S.P. was placed with Mother, who at the time was herself a dependent child in foster care. Trial Court Opinion, 6/24/09, at 1-2.

During the first seven months of S.P.’s life, S.P.’s mother brought S.P. to visit Father on six occasions while he was incarcerated in the Washington County Prison. N.T., 3/25/09, at 15-16. On January 13, 2006, Father filed a petition for a contact visit in anticipation of his transfer to a state correctional facility. The trial court granted Father’s request. Id. at 2. On February 27, 2006, after Father was transferred to the state correctional facility, Father again petitioned for a contact visit, and a hearing was held on March 27, 2006. The trial court denied Father’s petition, citing safety concerns and the exposure of such a young child to the prison environment. Id. At that time, the trial court also noted that Father had no preexisting bond with nine-month-old S.P. and observed that the Father was seeking to “establish a relationship with [S.P.] rather than continue an existing relationship.” Id. Father appealed the order. The appeal was quashed, upon a motion from the Agency, as Father’s Concise Statement of Matters Complained of on Appeal was not filed in a timely manner.¹ Id.

S.P. remained in foster care with Mother until Mother reached the age of majority. On July 12, 2007, CYS filed an Emergency Shelter Petition, alleging that the Agency was unable to make contact with the family. At that time, Mother indicated that she would like to sign her rights to S.P. over to her mother. Id. Following a hearing, the trial court ordered S.P. to remain in kinship care placement with Maternal Greab-Aunt, and ordered Mother to participate in a variety of services. Id.

In 2007, N.D., S.P.’s half-sister, was born and placed immediately in foster care. On November 7, 2007, N.D. was adjudicated dependent, and N.D. and S.P. have remained in placement together since the adjudication.

On September 9, 2008, Mother voluntarily relinquished her parental rights to both of her daughters. S.P.’s permanency placement goal remained reunification with Father,² notwithstanding his incarceration. In December of 2008, CYS filed a petition recommending that S.P.’s goal be changed to adoption. On December 12, 2008, the trial court granted CYS’s petition and changed S.P.’s goal to adoption. This Court affirmed the goal change order on September 15, 2009. In re S.P., 986 A.2d 1292 (Pa.Super.2009) (unpublished memorandum).

On January 13, 2009, CYS filed a petition to terminate Father’s parental rights to S.P. The termination hearing took place on March 25, 2009. At that hearing, Father testified that he makes $20.00 per month in prison, and he uses that money to pay off fines and save money in preparation for his eventual release. N.T., 3/25/09, at 30. He has therefore not provided financial support for S.P. since he has been in prison. Id. Father sends presents, makes birthday cards for S.P., and sends letters to her from prison. Id. at 31-32. The record includes various handwritten letters from Father to S.P. as well as hand-made birthday cards and drawings. Id. at Father’s Exhibit B. S.P. sent Father a page with her handprints on it and other artwork. Id. 70-71, Father’s Exhibit C. S.P. enjoyed the presents she received from Father. Id. at 180.

Father’s minimum sentence was to end in August of 2009, six months after the termination hearing, and he was eligible for parole at that point.³ Id. at 34. While in prison, Father voluntarily took anger management, violence prevention, victim awareness, and parenting classes. Id. at 37. Father took pre-vocational training to qualify himself for HVAC repair work upon his release. Id. Father also learned basic computer skills while in prison. Id. at 37, 73. Father has become a tutor for other inmates in the HVAC training program. Id. at 71. Father has maintained a clean prison record at SCI Somerset, with the exception of some warnings for minor violations such as sleeping in too late. Id. at 38. As a juvenile, Father was adjudicated delinquent on a burglary charge. Id. at 19. Father smoked marijuana as a teenager, but does not have a history of drug or alcohol abuse. Id. at 86.

Jerdean Beatty (“Beatty”), a caseworker for the Agency, testified that the Agency did not ask Father to comply with any service plan. Id. at 131. The Agency did not create a service plan for Father because of the length of Father’s incarceration. Id. at 132. Beatty acknowledged that it is possible for a parent to build a bond with a child while the parent is incarcerated if they have regular visits. Id. at 140. Beatty further acknowledged that Father did not have the opportunity to form a bond with S.P. through visits because court orders prevented visits. Id. Beatty was aware that Father had voluntarily taken part in the various prison programs, and that he had no record of getting into trouble while in prison. Id. at 144-45. Beatty acknowledged that Father made more of an effort to maintain a relationship with S.P. from prison than Beatty had observed in any of her other cases. Id. at 147. Likewise, Beatty acknowledged at the goal change hearing⁴ that she believed Father would be capable of parenting S.P. if he had the opportunity. N.T., 12/5/08/at 39.

With regard to S.P., the record reflects that she is doing reasonably well with her foster parents and that she enjoys living with her half-sister. N.T., 3/25/09, at 126. S.P. is a special needs child who suffers from some behavioral issues, including pulling out her own hair. Id. at 126-27. Also, S.P. occasionally becomes aggressive toward her half-sister. Id. at 135. S.P. exhibits some symptoms consistent with autism, though it is unclear whether she actually is autistic. Id. at 136, 160-61. In any event, Father, were he eventually to assume custody of S.P., would need to take responsibility for getting S.P. to numerous appointments. Id. at 158. Father, who has had no in person contact with S.P. for three years, is reluctant to accept the fact that S.P. is a special needs child. Id. at 151.

Regarding the circumstances of Father’s incarceration, Father testified that he was playing with a gun and accidentally shot and killed his adoptive father. Id. at 42. The Washington County ADA who prosecuted the case stated:

[I]t appeared that [Father] had been fiddling with that gun throughout the weekend, he probably fiddled with that gun in that room and killed his father as a result of that. Do I believe he specifically intended to kill his father? No. But did he commit an extremely reckless act? Absolutely.

Id. at 54. Father’s five to 10 year sentence was in the mitigated guideline range. Id. at 52.

Following the March 25, 2009 termination hearing, the trial court granted CYS’s petition for involuntary termination of Father’s parental rights to S.P. on June 24, 2009. On July 23, 2009, Father filed both a timely notice of appeal and a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

Father raises fourteen issues⁵ on appeal which, in essence, raise two substantive challenges to the termination decree:

I. The Trial Court erred in granting the Petition to Involuntarily Terminate the Parental Rights of the Natural Father under 23 Pa.C.S.A. Section 2511(a)(2) where CYS failed to prove by clear and convincing evidence that anything other than his incarceration prevents him from fulfilling his parental obligations.

II. The Trial Court erred in granting the Petition to Involuntarily Terminate the Parental Rights of the Natural Father in that CYS failed to prove by clear and convincing evidence that the statutory grounds for termination best serves the needs and welfare of S.P. under 23 Pa.C.S.A. Section 2511(b).

Father’s brief at 4-7.

The standard and scope of review applicable in termination of parental rights eases are as follows:

When reviewing an appeal from a decree terminating parental rights, we 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 court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that it 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.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super.2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.2002) (internal citations omitted).

The standard of clear and convincing evidence means 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. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super.2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super.2000) (en banc). If the trial court’s findings are supported by competent evidence, we must affirm the court’s decision, even though the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super.2004). The termination of parental rights is controlled by statute. In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa.Super.2006).

Mindful of the above principles, we address Father’s appeal from the trial court’s order granting CYS’s petition to terminate Father’s parental rights. The trial court found that CYS had met its burden of proof as to 23 Pa.C.S.A. § 2511(a)(2).⁶ Section 2511(a)(2) provides:

§ 2511. Grounds for involuntary termination

(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:

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(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 and neglect or refusal cannot or will not be remedied by the parent.

23 Pa.C.S.A. § 2511(a)(2).

To satisfy the requirements of section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super.2003). The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa.Super.2002). Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. Id. at 340.

The instant case requires us to analyze the impact of Father’s incarceration on his parental rights. We therefore begin with a review of the law pertaining to the effect of incarceration in a proceeding to terminate parental rights. The Pennsylvania Supreme Court held more than thirty years ago that incarceration alone is not a sufficient basis for termination of parental rights. In re McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). The McCray Court wrote as follows:

However, a parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.

Id. McCray affirmed an order terminating parental rights pursuant to the predecessor to current § 2511(a)(1). Id. at 218, 331 A.2d at 656. The above-quoted language is still used today in analyzing the effect of a parent’s incarceration under both § 2511(a)(1) and (2). See, e.g., In re Z.P., 994 A.2d 1108, 1119 (Pa.Super.2010) (quoting In re B., N.M., 856 A.2d 847, 855-56 (Pa.Super.2004)); In re I.G., 939 A.2d 950, 953 (Pa.Super.2007) (“[WJith respect to failure to perform parental duties under subsection (a)(1), as well as incapability under subsection (a)(2), the fact of incarceration alone cannot support termination. A parent’s absence and failure to support a child due to incarceration is not conclusive on the issue of whether the parent has abandoned the child.”).

The rationale for the rule that incarceration alone is not a sufficient basis for termination of parental rights was set forth in Welker’s Adaption, 50 Pa. D. & C. 573 (Clinton County 1944), a case cited favorably in McCray. McCray, 460 Pa. at 216 n. 8, 331 A.2d at 655 n. 8. At the time of the trial court’s decision in Welker, the law provided that “the consent of the parents to an adoption is necessary, but the consent of a parent ... who has abandoned the child, is unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact.” Welker, 50 Pa. D. & C. at 576. Abandonment at that time was defined as “any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claim to the child.” Id. at 577-78 (quoting Weinbach’s Appeal, 316 Pa. 333, 339, 175 A. 500, 502 (1934)).⁷ The Welker court reasoned that the commission of a crime that leads to incarceration (in that case, for a minimum of ten years) does not by itself demonstrate a parent’s settled purpose to forego parental rights. Id. at 578-80.⁸

In between Welker and McCray, our legislature enacted the Adoption Act of 1970, which expanded the grounds for termination of parental rights. See Jones Appeal, 449 Pa. 548, 547, 297 A.2d 117, 119 (1972). Prior to the 1970 Act, abandonment, as described in Welker, was the only-basis — other than consent — upon which parental rights could be terminated. Section 311 of the Adoption Act of 1970 was the predecessor of current § 2511 and contained substantially similar language, and thus set forth a much broader set of circumstances that could lead to termination of parental rights. Id. Section 311(2) of the 1970 Act contained language identical to that of current § 2511(a)(2).⁹ See id. at 546, 297 A.2d at 119.

Thus, the rule that incarceration alone is not a sufficient basis for terminating parental rights, as stated in McCray, has been in effect with no substantial change for nearly 40 years. The same can be said for the statutory language set forth in § 2511(a)(2). Nonetheless, application of the McCray rule, particularly in cases involving § 2511(a)(2), has proven difficult, inasmuch as a parent’s incarceration is obviously an “incapacity” that precludes day-to-day interactions and activities normally attendant to a parent-child relationship.

As noted, the Pennsylvania statute does not specifically address the effect of incarceration on the termination of an incarcerated person’s parental rights.¹⁰ However, the Adoption Act was amended, effective May 2007, to provide that grounds for termination of parental rights exist where the parent has been convicted of the murder (18 Pa.C.S.A. Chapter 25), aggravated assault (18 Pa.C.S.A. § 2702) of one of his or her own children, or attempt, solicitation, or conspiracy to murder or assault one of his or her own children. 23 Pa. C.S.A. § 2511(a)(9)(i)-(iii). Grounds for termination also exist where the parent has committed an equivalent offense in another jurisdiction. 23 Pa.C.S.A. § 2511(a)(9)(iv). Absent a conviction of one of these specified crimes, we are left to reconcile the § 2511(a)(2) factors with the proposition that incarceration, alone, cannot serve as the basis for terminating a parent’s rights.¹¹

The difficulty of this reconciliation is evident from the fact-intensive analysis set forth in our case law dealing with terminating the parental rights of an incarcerated parent. In Bartasavich v. Mitchell, 324 Pa.Super. 270, 471 A.2d 833, 834 (1984), the father killed the child’s mother during a domestic dispute and then stabbed himself. The father eventually received five to 10 years of incarceration for voluntary manslaughter. Id. We reversed the trial court’s order terminating the father’s parental rights pursuant to 311(2)¹² of the 1970 Act, noting that the father’s murder of the mother was a single act rather than a repeated course of conduct, and that the father had been paroled and was making efforts to maintain a relationship with the daughter. Id. at 836-37. In support of the holding we wrote as follows: “We note most emphatically that it is not [the father’s] burden to show his capability, but rather, it is the burden of the petitioner who seeks the termination of his parental rights to show his incapacity.” Id. at 836.

More recently, in In re I.G., 939 A.2d 950 (Pa.Super.2007), this Court concluded that termination of an incarcerated father’s parental rights was not warranted under § 2511(a)(2). In that case, the father agreed to place his two children with their maternal grandparents, and when the maternal grandparents were no longer able to care for the children, the father sought kinship care for them. Id. at 951-52. Subsequently, the father was incarcerated in Montgomery County and Philadelphia County for various offenses, including drug and firearm offenses. Id. at 952. We recognized that parental duties are not tolled while the parent is incarcerated, and that a parent must use any resources available while in prison to maintain a relationship with his children. Id. at 954. Nonetheless, “[w]e cannot simply assume that [the parent’s] current incapacity cannot or will not be remedied.” Id. at 954.

In I.G., Father made weekly telephone calls to the children while incarcerated, as per a family service plan created by the local agency. Id. at 953-54. The father did not, however, provide the agency with documentation that he took anger management and parenting classes. Id. at 954. We concluded that the agency failed to carry its burden because, among other things:

Father has, through requests for visits, letters, and weekly phone calls, made a sincere effort to maintain a place of importance in his children’s lives; and [...] there is no clear indication in the record of the remaining jail time Father faces, if any at this point.

Id.

In other cases, we have terminated parental rights pursuant to § 2511(a)(2) when the parent is serving an especially lengthy sentence. In In re M.J.H., 348 Pa.Super. 65, 501 A.2d 648, 656 (1985), appeal denied, 514 Pa. 636, 522 A.2d 1105 (1987), we noted that § 2511(a)(2) “requires us to examine, not the fact of a parent’s incarceration, but its effects on the child.” (emphasis in original). The father in M.J.H. murdered the child’s mother and received a sentence of life imprisonment. Id. We concluded that the father’s criminal act essentially left the child with no parents, inasmuch as the mother was deceased and father’s incarceration left him permanently unable to provide for the child’s needs. Id. Accordingly, we concluded that termination of the father’s parental rights was appropriate pursuant to § 2511(a)(2) inasmuch as life imprisonment is a form of incapacitation that cannot be remedied. Id.¹³ See also In re C.A.W. and A.A.W., 453 Pa.Super. 277, 683 A.2d 911 (1996) (affirming termination of parental rights where father was serving a prison term of 32 to 72 years for kidnapping and rape and had failed to demonstrate a commitment to the children even during periods when he was not incarcerated), appeal denied, 548 Pa. 631, 694 A.2d 619 (1996); In re V.E. and J.E., 417 Pa.Super. 68, 611 A.2d 1267 (1992) (affirming the termination of a father’s rights under § 2511(a)(2) where the father was serving a 12 to 25 year sentence and made no effort to use the resources available to him in prison).

This Court has also determined that repeated incarcerations can form the basis for termination under § 2511(a)(2), even where those incarcerations do not result in especially lengthy sentences. In In re E.A.P., 944 A.2d 79 (Pa.Super.2008), we affirmed the termination of the mother’s parental rights pursuant to § 2511(a)(2) where the mother was incarcerated four times over the first ten years of the child’s life. We noted in E.A.P. that consistent with McCray, an incarcerated parent is expected to “utilize whatever resources are available to him while in prison in order to foster a continuing close relationship with his children.” Id. at 83. We observed that “[§ 2511(a)(2) ] does not emphasize a parent’s refusal or failure to perform parental duties, but instead emphasizes the child’s present and future need for ‘essential parental care, control, or subsistence necessary for his physical or mental well-being.’ ” Id. at 82 (quoting § 2511(a)(2)). We further stated:

[T]he language in [§ 2511(a)(2) ] should not be read to compel courts to ignore a child’s need for stable home and strong, continuous parental ties, which the policy of restraint in state intervention is intended to protect. This is particularly so where ‘disruption of the family has already occurred and there is no reasonable prospect for reuniting it[.]’

Id. (emphasis in original) (quoting In re William L., 477 Pa. 322, 348, 383 A.2d 1228, 1241 (1978)).

The mother in E.A.P. completed parenting classes and two of seven phases of sex offender treatment. Id. at 83. On the other hand, the child had special needs and needed a caregiver who could be present. Id. The record revealed that the mother failed to care for the child even during the time periods when she was not incarcerated. Id. In addition, the mother’s sex offender status would preclude her from having contact with the child for a period of time even if mother was released on parole. Id. We concluded that the trial court did not err in terminating the mother’s parental rights, reasoning as follows:

Each case of an incarcerated parent facing termination must be analyzed on its own facts, keeping in mind, with respect to subsection (a)(2), that the child’s need for consistent parental care and stability cannot be put aside or put on hold simply because the parent is doing what she is supposed to do in prison. We acknowledge Mother’s argument that she is doing everything that she is supposed to be doing. Under different facts, this might be determinative or given greater weight. Here, however, Mother has been in prison for most of the child’s life. There is no relationship to speak of, and in fact the record supports the court’s finding that the child does not even know Mother. Obviously this is due to the length and frequency of Mother’s incarcerations, and more recently, her sex offender status. Mother’s participation in prison programs has not altered that fact.

Id. at 84 (emphasis added).¹⁴

Similarly, in Z.P., this Court reversed the trial court and directed the trial court to enter an order terminating an incarcerated father’s parental rights where the father had been repeatedly incarcerated. We noted that the father had been doing as much as he could do to meet the agency’s family service plan from prison, including participation in various programs. Z.P., 994 A.2d at 1122. The father did not have a record of misconduct while in prison. Id. at 1113. On the other hand, the father had no employment prospects upon his parole, and had a long history of drug and alcohol abuse that led to several psychotic episodes. Id. at 1122. The father had failed to parent several other children, even during the times he was not incarcerated. Id. at 1125. Moreover, the father made no effort to provide financial support while he was in prison, despite his receipt of social security disability payments. Id. at 1124. This Court concluded that, “while Father has been somewhat proactive during his incarceration, competent evidence of record supports [the Agency’s] concerns Father would not be able to maintain his sobriety or properly care for [the child] upon release.” Id. at 1125. Thus, termination of the father’s rights was appropriate under § 2511(a)(2). Id. at 1126.

This case presents us again with a difficult question. We are mindful of the circumstances leading to Father’s incarceration, and we are cognizant of S.P.’s special needs and her need for a permanent and stable home life. See In Re Adoption of C.L.G., 956 A.2d 999, 1007 (Pa.Super.2008) (en banc) (noting that this Court will not toll a child’s need for permanency indefinitely).¹⁵ Nonetheless, our standard of review requires us to determine whether the evidence before the trial court was so clear, direct and weighty as to meet the substantial burden of clear and convincing evidence required of CYS to prevail in terminating Father’s parental rights.

We also recognize that S.P. went through a goal change to adoption proceeding that was affirmed by this Court. But we must conduct our review in light of the legal distinctions between and the different consequences of goal change proceedings under the Juvenile Act and termination of parental rights proceedings under the Adoption Act.

This Court’s memorandum affirming S.P.’s goal change from reunification to adoption under the Juvenile Act correctly focused on the needs and welfare of S.P. “In a goal change proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent’s rights are secondary. The burden is on the Agency to prove the change of goal would be in the child’s best interest.” In the Interest of D.P., D.M., A.M., 972 A.2d 1221, 1227 (Pa.Super.2009), appeal denied, 601 Pa. 703, 973 A.2d 1007 (2009) (citations omitted) (emphasis added); see In re S.P., 986 A.2d 1292 (unpublished memorandum) at 6. This Court, in its goal change affir-mance, likewise specifically noted that Father’s efforts are not the central factor at a change of goal hearing emphasizing again that the focus at such hearing is on the well-being of the child. In re S.P., 986 A.2d 1292 (unpublished memorandum) at 10-11.

In contrast, the matter before us involves the termination of Father’s parental rights under the Adoption Act and specifically under § 2511(a)(2). We emphasize that it is well established that under § 2511 of the Adoption Act, the court must engage in a bifurcated process prior to termination of a parent’s rights. See In re D.W., 856 A.2d 1231, 1234 (Pa.Super.2004). 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). In re B.L.L., 787 A.2d 1007, 1013-14 (Pa.Super.2001). Only after determining that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interest of the child. In re C.M.S., 884 A.2d 1284, 1286-87 (Pa.Super.2005); A.C.H., 803 A.2d at 229; B.L.L., 787 A.2d at 1013-14. Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent’s conduct justifies termination of parental rights under the statute. R.J.S., 901 A.2d at 508 (relied upon in C.L.G., 956 A.2d at 1004).

Thus, our first focus is on Father’s conduct and his efforts to rehabilitate himself and to maintain contact with S.P. during his incarceration, all of which are fully developed in the record.

Father was 19 years old and already incarcerated as a result of a third degree murder charge when the child was born. We are mindful that Father’s ultimate conviction was of a crime requiring a showing of malice. However, the prosecuting attorney testified that Father’s crime was one of extreme recklessness, not intent. Between the date of the child’s birth in May 2005 until Father was transferred to a state correctional facility in February 2006, Father had six visits with S.P. Father did not have continued visits with S.P. because the trial court denied his request for visitation. Father did not complacently accept this determination. Instead, he attempted to file an appeal which was dismissed for failure to file a timely 1925(b) statement. Although we cannot determine from the record whether Father’s appeal was counseled, nonetheless Father’s attempt to reverse the order barring visitation evinces his “reasonable firmness in declining to yield to obstacles” put before him. McCray, 460 Pa. at 216, 331 A.2d at 655.

Even though Father could not have in person contact with S.P., he made birthday cards for her and sent her presents, letters and handmade drawings. S.P. reciprocated with artwork and a page with her hand-print on it. The record reflects that Father did as much as he could possibly have done from prison, despite the lack of intervention or a family service plan from the Agency.¹⁶ Beatty acknowledged that a bond between Father and S.P. might have been built but for the court orders precluding contact visits. Those court orders came about as a result of the trial court’s policy against allowing children to visit correctional facilities. N.T., 12/5/08, at 77-78. This Court cannot weigh the limited contact between Father and S.P. against Father where the limitations on contact have been imposed on him despite his efforts. I.G., 939 A.2d at 954; see also In re M.T.T., 467 Pa. 88, 97, 354 A.2d 564, 568-69 (1976) (reversing termination of a father’s parental rights under former § 311(1) where the agency frustrated father’s attempts to have any contact with the child).

We observe also that the incident leading to Father’s incarceration was not directly related to events that led to S.P.’s placement in foster care. Cf. Z.P., 994 A.2d at 1120 (“The cause of incarceration may be particularly relevant to the Section 2511(a) analysis, where imprisonment arises as a direct result of the parent’s actions which were part of the original reasons for the removal of the child.”). In C.L.G., for example, the mother was incarcerated on drug related charges, and her drug dependency issues were a reason for the child’s placement. C.L.G., 956 A.2d at 1006-07. Moreover, the mother was not incarcerated at the time of the child’s birth, and therefore her incarceration was not the “genesis” of her incapacity to parent the child. Id. at 1007.

With regard to the first prong of the § 2511(a)(2) analysis — the parent’s repeated incapacity, neglect or refusal to discharge parental duties — the record reveals that Beatty, the Agency’s caseworker, acknowledged that Father put forth a substantial amount of effort into establishing a relationship with S.P. and did everything he could have done from prison, and, given the opportunity, she believed he would be capable of parenting S.P.¹⁷ Father’s inability to develop more of a bond with S.P. than he did while incarcerated is attributable to limited opportunities for visitation. Father’s voluntary enrollment in parenting and anger management classes and vocational training evidences an effort on his part to utilize all resources available to him. Thus, the record does not reflect that Father is neglecting or refusing to do all that he can do from prison. His incarceration leaves him incapacitated to perform many parental functions, but incarceration alone is not a sufficient reason to terminate parental rights.

We recognize that the mother in E.A.P. was, like Father, doing as much as she could have done from prison. E.A.P., 944 A.2d at 84. The record in that case, however, established that the mother had been incarcerated on four separate occasions during the child’s life, that she did not take responsibility for the child even when she was out of prison, and that her sex offender status would preclude any relationship with the child for the foreseeable future. Id. at 83-84. Over a period of ten years, the mother had failed to establish any relationship with the child. Id. The mother’s repeated failures and repeated incarcerations over the course of a decade distinguish E.A.P. from the instant matter.

The facts of this case are also distinguishable from those of Z.P., in that Father, unlike the father in Z.P., does not have a history of drug and alcohol abuse and psychotic episodes, and does not have a history of failing to parent other children. See Z.P., 994 A.2d at 1122, 1125. Furthermore, Father has undergone vocational training to enable him to obtain employment upon his release, whereas the father in Z.P. had no specific plan for how he might support himself and a child upon his release. See id. at 1123.

The instant facts are more akin to those of I.G., in that Father has made efforts to maintain contact with S.P., and the record is not clear as to how much prison time, if any, Father has yet to face. As we noted above, Father was eligible for parole as early as August of 2009, six months after the termination hearing took place. The uncontroverted evidence was that prisoners convicted of third degree murder generally serve 65-70% of their maximum sentence.¹⁸ The record, as described above, reveals that Father has a clean record while in prison and that the sentence he received was in the mitigated guideline range. These facts, combined with Father’s vocational training in an effort to make himself employable upon release, do not support a conclusion that the inherent limitations on Father’s ability to parent S.P. from prison cannot or will not be remedied.¹⁹

The learned trial court recognizes the settled law that incarceration alone cannot serve as the basis for the termination of a parent’s right to his child. Trial Court Opinion, 6/24/09 at 5. But the trial court does not point to any action or inaction by Father establishing refusal or neglect, other than his incarceration. His efforts at establishing a relationship with S.P. are uncontroverted. His completion of self-initiated parenting and vocational training programs are likewise uncontroverted. As to both factors, CYS confirms Father’s testimony.

As discussed, an analysis under § 2511(a)(2) of the Adoption Act is a two part analysis. First, it must be determined that grounds for termination under § 2511(a)(2) have been established by clear and convincing evidence. For the reasons stated, the record before us simply does not provide evidence that is so clear, direct and weighty, as needed under the clear and convincing evidence standard, to support the termination of Father’s parental rights.

Only if the grounds for termination have been established under § 2511(a)(2) does a court reach the needs and welfare of the child considerations embodied in § 2511(b). See R.J.S., 901 A.2d at 508; C.L.G., 956 A.2d at 1004. The trial court focuses on the second prong to the exclusion of the first. As the Adoption Act currently exists, we do not engage in a needs and welfare analysis under § 2511(a)(2) unless grounds for termination of a parent’s rights have been established by clear and convincing evidence of the parent’s action or inaction. Where, as here, pursuant to that standard, the evidence does not establish that Father has refused or neglected to undertake parental responsibilities to the extent possible while incarcerated, grounds for termination of his parental rights do not exist. The Pennsylvania Legislature may have the ability to establish that some specified period of incarceration, without more, is grounds for termination of a parent’s rights. To date, the legislature has not done so. We are thus bound by 40 years of unbroken precedent from the Supreme Court and this Court.

The agency’s failure to carry its burden under the first prong of the § 2511(a)(2) analysis requires reversal of the decree terminating Father’s parental rights. For the reasons stated, the record does not contain clear and convincing evidence that Father has refused or neglected to undertake his parental responsibilities to the extent possible while incarcerated, nor does the record support a conclusion that Father’s incapacity cannot or will not be remedied. Accordingly, we vacate the decree terminating Father’s parental rights.

Decree vacated. Jurisdiction relinquished.

ALLEN, J. files a Dissenting Opinion in which STEVENS, P.J., FORD ELLIOTT, P.J.E. and GANTMAN, J. join.

1 . The record in this case, which does not contain the docket of proceedings in juvenile court, does not reflect whether Father was represented by counsel in connection with the appeal.

2 . See 42 Pa.C.S.A. § 6351.

3 . A Washington County Assistant District Attorney testified that prisoners convicted of third degree murder generally serve 65-70% of their maximum sentence. Id. at 52.

4 . The transcript of the goal change hearing was received as an exhibit at the termination hearing. N.T., 3/25/09, at 5-6.

5 . We observe that Father's Statement of Questions Involved does not comply with Pa.R.A.P. 2116. Under Rule 2116(a), the statement shall be no more than two pages, and each question must be followed by the trial court’s answer. Father’s statement is four pages and the questions are not followed by an answer. Father’s statement does, however, encompass all of the considerations required for an analysis under 23 Pa.C.S.A. § 2511(a)(2) and (b). Since Father’s failure to adhere to the Rules of Appellate Procedure has not substantially hampered our review, we will not find waiver.

6 . CYS petitioned for termination pursuant to § 2511(a)(1) and (2). Trial Court Opinion, 6/24/09, at 3.

7 . See also, Act of April 4, 1925, P.L. 127 (repealed).

8 . The rationale set forth in McCray and Welker is in accord with the United States Supreme Court’s subsequent opinion holding that, because parental rights are protected by the Due Process Clause of the 14th Amendment, the party seeking termination of parental rights must prove by clear and convincing evidence that termination is appropriate. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In Santosky, the Supreme Court wrote:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Id. at 753-754, 102 S.Ct. 1388. See also Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (cautioning against the use of presumptions in parental rights cases); see generally, Steven Fleischer, Note, Termination of Parental Rights: An Additional Sentence for Incarcerated Parents, 29 Seton Hall L.Rev. 312 (1998).

9 . Section 311(2) was reenacted as § 2511(a)(2) in the Adoption Act of 1980.

10 . Other states have taken varying approaches to deal with the effect of a parent’s incarceration in a termination of parental rights case. Some state statutes simply list incarceration as a relevant factor. See Ala. Code § 12-15-319(4); Ga.Code Ann. § 15-11 — 94(b)(4)(B)(iii); Kan. Stat. Ann. § 38-2269(b)(5); Okla. Stat. Ann. tit. 10A, § 1-4-904(B)( 12); Or.Rev.Stat. § 419.504(B)(6). Other states provide that a lengthy period of incarceration can be a sufficient reason to terminate parental rights. See Ariz.Rev.Stat. Ann. § 8-533(B)(4); Ark.Code Ann. § 9-27-341 (b)(3)(B)(viii); Idaho Code Ann. § 16-2005(l)(e); Iowa Code Ann. § 600A.8(9); R.I. Gen. Laws 15 — 7—7(2)(i); Tenn.Code Ann. 36-1-113(g)(6); Tex. Family Code Ann. § 161.001(1)(Q); Wyo. Stat. Ann. 14-2-309(a)(iv). Montana provides that no service plan is necessary where the parent will be incarcerated for more than one year. Mont. Code Ann. 41-3-609(4)(c).

11 . In 1998, our legislature amended the Juvenile Act, 42 Pa.C.S.A. §§ 6301-57, to conform to requirements of the federal Adoption and Safe Families Act, 42 U.S.C. §§ 671, et seq. ("ASFA”). When reasonable efforts to reunite a foster child with biological parents have failed, the child welfare Agency must work toward terminating parental rights and placing the child with adoptive parents. This Court has noted that under the ASFA protocol, the process of reunification or adoption should be completed within eighteen (18) months. In re N.W., 859 A.2d 501, 508 (Pa.Super.2004). However, "a placement goal change to adoption [under § 6351(f) of the Juvenile Act] does not terminate the parent’s rights; however, it is a step in that direction.” In re A.L.D., 797 A.2d at 339. The next step in the direction of termination is the filing of a Petition for Termination of Parental Rights which is controlled by the Adoption Act, at issue in this case, and not the Juvenile Act. The focus in change of goal to adoption proceedings is the needs and welfare of the child and it is the needs and welfare of the child that is the reason for the eighteen (18) month timeframe for reunification or adoption. The timeframe "... is based on the policy that 'a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.' '' In re Adoption of R.J.S., 901 A.2d at 507 (internal citations omitted).

In cases involving termination proceedings under the Adoption Act, this Court has frequently cited to the eighteen (18) month time-frame for reunification or adoption as contemplated by the ASFA. See e.g., R.J.S., 901 A.2d at 507; In re Adoption of C.L.G., 956 A.2d 999, 1005 (Pa.Super.2008) (en banc). The timeframe is relevant under the Adoption Act because in addition to finding by clear and convincing evidence that one of the statutory grounds for termination under § 2511(a) exists, there must also be a finding under § 2511(b) that termination of the parent’s rights is in the best interest of the child. Our legislature’s enactment of the amendments to the Juvenile Act expresses the public policy that permanency for the child within the eighteen (18) month timeframe is in the best interest of the child. We note again, however, that the Adoption Act has not been amended to provide that any specific time period of incapacity is per se grounds for termination of parental rights under § 2511(a).

12 . The trial court proceedings in Bartasavich took place prior to the enactment of the Adoption Act of 1980, when § 311(2) became § 2511(a)(2).

13 . The M.J.H. Court distinguished Bartasa-vich because the father in Bartasavich received only a five to 10 year sentence, as compared to life imprisonment, and the father was paroled as of the time of argument. M.J.H., 501 A.2d at 655. Likewise, M.J.H. distinguished Jones Appeal in that the mother's crime in Jones, the rape of her child, did not result in the death of the other parent and her sentence was of "short duration.” Id. at 655.

14 . As we discuss infra, the mother's repeated failures to parent while not incarcerated, combined with her repeated incarcerations, drug abuse, and sex offender status, create a critical distinction between E.A.P. and the instant case. We are cognizant that Father’s incarceration has severely restricted his ability to form a relationship with S.P. Nonetheless, if the absence of a normal parent-child relationship during the first few years of a child's life is to be dispositive in a termination of parental rights proceeding, then any parent of an infant or toddler who receives a term of incarceration of several years or more will have little or no chance of retaining parental rights.

15 . In C.L.G., this Court, in a 5-4 decision, affirmed an order terminating an incarcerated mother's parental rights pursuant to § 2511(a)(8). We observe that C.L.G. does not directly control the instant matter. First, the analysis to be conducted pursuant to § 2511(a)(8) differs from that of § 2511(a)(2). Under § 2511(a)(8), the needs and welfare of the child are an integral part of the determination as to whether grounds for termination exist. See C.L.G., 956 A.2d at 1005-06, 1008. In contrast, under a termination predicated on § 2511(a)(2), the court must first focus on the parent to determine whether grounds for termination have been established. Only if this first burden is met with clear and convincing evidence does the court move to an analysis of the needs and welfare of the child under § 2511(b). Second, § 2511(a)(8) only requires that the conditions leading to the child’s dependency continue to exist whereas under § 2511(a)(2) the Agency must establish with clear and convincing evidence that the parent cannot or will not remedy the situation. Id. at 1007. Finally, in C.L.G., Mother’s drug issues were the reason for the removal of child from her care and were also the reason for her incarceration. Id. at 1007. Here, the reason for Father's incarceration was not the reason for the child’s placement into foster care.

16 . We recognize that we are not to re-evaluate the adequacy of the Agency's services subsequent to the completion of a proceeding changing the goal to adoption. In re S.E.G., 587 Pa. 568, 583, 901 A.2d 1017, 1026-27 (2006). In this Court’s unpublished memorandum affirming S.P.’s goal change to adoption, we concluded that the Agency carried its burden to prove that adoption was in the child's best interests under the Juvenile Act, 42 Pa.C.S.A. §§ 6301, et. seq., and the federal Adoption and Safe Families Act, 42 U.S.C.A. §§ 671, et. seq. In re S.P., 986 A.2d 1292 (unpublished memorandum) at 6-14. We are not re-evaluating the Agency's services. Father’s initiative in taking parenting classes, anger management, and vocational training without being assisted, asked or ordered to do so is a significant factor to be considered in determining whether the record reflects clear and convincing evidence in support of termination of his parental rights pursuant to § 2511(a)(2). The result we reached in the goal change appeal does not relieve us of the obligation to adhere to the principle that incarceration alone is not a sufficient basis for termination of parental rights.

17 . As noted, Beatty’s testimony was given on December 5, 2008 at the goal change proceeding. N.T., 12/5/08, at 36. Four months later, at the March 25, 2009 termination proceeding, Beatty testified that Father would be incapable of parenting. N.T., 3/25/09, at 128, 151. Beatty gave no explanation for the about face on that issue. The trial court relied on Beatty’s later testimony, apparently ignoring the former. This flatly contradictory testimony from one CYS witness seriously undermines CYS' ability to carry its burden of proving by clear and convincing evidence that termination of Father's parental rights is appropriate.

18 . We cannot simply assume that Father will serve a longer portion of his sentence, even though the record does not foreclose that possibility. To do so would ignore the fact that CYS bears the burden of proving that Father’s incapacity cannot or will not be remedied.

19 . We are cognizant that the father in I.G. made pre-incarceration efforts to arrange suitable housing. I.G. 939 A.2d at 954. In the instant matter, however, Father had no chance to demonstrate his ability to parent prior to his incarceration, owing to the timing of his incarceration and S.P.'s birth.

In addition, the record reflects that CYS did not create a family service plan for Father, based on the length of his incarceration. N.T., 3/25/09, at 131-32. Thus, Father was given no opportunity to take an active role with CYS.