                                   [J-79-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

           CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.


IN THE INTEREST OF: D.C.D., MINOR              :   No. 56 MAP 2014
                                               :
                                               :   Appeal from the order of the Superior
APPEAL OF: CLINTON COUNTY                      :   Court dated April 23, 2014 at No. 1484
CHILDREN AND YOUTH SERVICES                    :   MDA 2013 which reversed the Decree of
                                               :   the Clinton County Court of Common
                                               :   Pleas, Orphans Division, dated July 23,
                                               :   2013 at No. 12-2012.
                                               :
                                               :   SUBMITTED: July 29, 2014


                                          OPINION


MR. JUSTICE BAER                                           DECIDED: December 15, 2014
       In this children’s fast-track appeal, we consider the decision of the Superior Court

holding that a termination of parental rights petition filed by a children and youth

services agency must be denied if the agency failed to employ “reasonable efforts” to

reunify a child with her parent. As discussed below, while there are remedies available

to a court faced with an agency which is not providing reasonable efforts, refusing a

properly proven termination of parental rights petition, and thus harming an innocent

child, is not among them. Accordingly, we reverse the order of the Superior Court and

reinstate the trial court’s decision terminating father’s parental rights.

       D.C.D. (“Child”) was born on March 31, 2011, to C.Y.D. (“Mother”) and J.T.W.

(“Father”). Clinton County Children and Youth Services (“CYS”) took custody of Child

the following day because she suffered medical problems as a result of Mother’s drug
use, presumably during her pregnancy. Although she was placed briefly with maternal

relatives and another foster family, Child has lived most of her life with her current foster

family. The trial court found that she has bonded with this family, who is willing to adopt

her.

       At the time of Child’s initial placement, the identity of the Child’s father was

uncertain, but it was later confirmed following paternity testing in May 2011.

Continuously since Child’s birth, Father has been incarcerated, serving an aggregate

sentence of 93 to 192 months (7 3/4 to 16 years) of imprisonment, with a minimum

release date of July 15, 2018, and a maximum date of October 15, 2026.1 Although

originally incarcerated at the Lycoming County Correctional Facility, Father was placed

briefly through the Pennsylvania Department of Corrections in a correctional facility in

Virginia for several months, before being transferred to the State Correctional Institution

(“SCI”) at Graterford in March 2012.

       In May 2012, CYS filed its first petition to terminate Mother and Father’s parental

rights. Although ultimately denying termination as to both Mother and Father’s parental

rights, the trial court found that grounds existed upon which Mother’s rights could be

terminated because she had minimal contact with Child and had refused to perform

parental duties. In regard to Father, the trial court observed that he had attempted to

establish a relationship with Child by seeking video and in-person visits, sending gifts

and cards, and corresponding with the caseworkers regularly.




1
       Father’s aggregate sentence is based upon three consecutive sentences for
convictions for possession of a firearm, delivery of controlled substances, and flight to
avoid apprehension.




                                       [J-79-2014] - 2
       The court, however, found that CYS “failed to assist Father” with his efforts to

establish a relationship with Child. Tr. Ct. Op., June 21, 2012, at 10. After chiding CYS

for essentially pursuing only adoption despite the court-ordered goal of reunification or

placement with relatives, the court made the following observational warning: “If the

Agency does not work toward these goals, this Court may find the Agency did not use

reasonable efforts to finalize the child’s permanency plan. This finding would result in

the loss of thousands of dollars of funding payable to the Agency for this child.”2 Id. at

11.   The court then determined that CYS had not established any grounds for

termination of Father’s parental rights as of June 2012. Despite finding that a basis to

terminate Mother’s rights existed, the court concluded that it would be “inappropriate” to

terminate Mother’s parental rights when grounds did not also exist to terminate Father’s

rights. Id. at 12. Accordingly, the court denied CYS’s petitions to terminate Mother and

Father’s parental rights.



2
       The court, nonetheless, checked the box on the June 21, 2012 Permanency
Review Order indicating that CYS had provided “reasonable efforts.” We recognize and
even commend the trial court for its measured response. As noted in the Pennsylvania
Dependency Benchbook, trial courts “are encouraged to communicate clear
expectations to the agency” given that a finding that reasonable efforts are lacking will
have a “significant impact on the financial resources available to assist children and
their families.” Pennsylvania Court's Office of Children and Families in the Courts,
Pennsylvania Dependency Benchbook, § 15.8.1 at 182 (2010).

         Subsequently, the court changed the permanency goal from reunification to
adoption in May 2013. Notes of Testimony (“N.T.”), July 10, 2013, at 4. We remind all
involved with this genre of cases that federal and state law allows for and, under the
circumstances here presented, arguably calls for concurrent planning. See In re
Adoption of S.E.G., 901 A.2d 1017, 1018 (Pa. 2006). If CYS had followed this dual
track, it would have previously satisfied the presiding trial judge and avoided the
difficulties and delays leading to this appeal.




                                     [J-79-2014] - 3
       CYS appealed the denial of termination of Mother and Father’s parental rights to

the Superior Court, which affirmed the denial of termination as to Father’s rights, but

reversed the trial court’s decision regarding Mother’s rights and remanded this issue to

the trial court with instructions.   Upon remand, the trial court terminated Mother’s

parental rights on April 23, 2013.

       Three days later, on April 26, 2013, CYS filed a second petition to terminate

Father’s parental rights based upon 23 Pa.C.S. § 2511(a)(2):

              (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:

                                          ****

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


Id.   CYS also asserted that termination of parental rights would be in Child’s best

interest pursuant to Section 2511(b), see infra at 17.

       At a hearing on the termination petition, Father executed a consent to adopt, only

to revoke it two weeks later.    At a second hearing on the petition, CYS presented

evidence that Father’s only contacts with Child had been a video visit in January 2012,

two brief in-person visits after court proceedings in November 2012 and February 2013,

and an in-person visit of Child to SCI Graterford in April 2013. The trial court observed




                                      [J-79-2014] - 4
that the dearth of visits between Father and Child was inconsistent with the trial court’s

prior instructions to CYS to permit visitation at the prison.3

       Indeed, the court found that the April in-person visit was “arranged for litigation

purposes” to enable CYS to demonstrate Child’s lack of a bond with Father for purposes

of the termination petition, which CYS filed days after the visit. Tr. Ct. Op., July 23,

2013, at 5. Apparently, the visit was flawed from the beginning given that the CYS

caseworkers accompanying Child to the visitation arrived late within the prison visitation

timeframe and the caseworker that knew Child best was not able to accompany her to

the visitation area due to inappropriate clothing. Id. at 6. Moreover, Child, who was

then two years old, was tired after the three-hour drive to the correction facility.

       The trial court recognized that notwithstanding these impediments and CYS’s

seeming disinterest in following the trial court’s directives regarding establishment of a

Father-Child relationship, Father had inquired regarding Child, corresponded with and

received photos from Child’s foster parents, and generally tried to be a part of Child’s

life.4 Given the trial court’s view of the agency’s conduct, it had “little difficulty restating

what it said in its June 21, 2012 Opinion that ‘the Agency has simply failed to assist

Father.[’]” Id. at 7.

       Nevertheless, the court held that “Father and [C]hild have no bond.” Id. at 8.

Moreover, the court observed that Father has never been able to provide essential


3
       Although the trial court had ordered video visits, Father was only able to have
one such visit. After the Virginia facility arranged one video visit, Father was placed in
“segregation” in the facility, which resulted in the cessation of video visits. Tr. Ct. Op.,
June 21, 2012, at 6. Additionally, Father was unable to have additional video visits
because SCI Graterford did not have the capability.
4
       The trial court indicated that Father has not had his rights terminated in regard to
any of his other five children.




                                       [J-79-2014] - 5
parental care, control or subsistence necessary for Child’s well-being due to his

incarceration. It recognized that Father’s incapacity would continue until at least his

minimum sentence date of July 2018, when Child would be seven years old and have

lived virtually all of her life with her foster family, and could be delayed until his

maximum release date of October 2026, when Child would be fifteen.

       Acknowledging this Court’s recent decision in In re Adoption of S.P., 47 A.3d 817

(Pa. 2012), holding that incarceration can be relevant to determining a parent’s

incapacity to care for a child, the trial court opined that Father was “incapable at the

present time of providing essential parental care, control or subsistence necessary for

the child’s physical or mental well-being” and that Father will be unable to remedy his

incapacity until Child is at least seven years old. Tr. Ct. Op., July 23, 2013, at 9.

Turning to the best interests of Child, the court recognized that she had bonded with the

foster parents and not with Father. Accordingly, the court concluded that clear and

convincing evidence demonstrated that termination of Father’s parental rights was in

“the best interest of the developmental, physical and emotional needs” of Child. Id. at 9,

11. Although finding CYS’s conduct relevant, the court opined that CYS’s “unclean

hands” did not excuse Father’s incapacity to parent child.          Accordingly, the court

ordered the termination. Id. at 10.

       Father appealed to the Superior Court, which reversed the termination of

Father’s parental rights. The Superior Court opined “that the orphans' court erred as a

matter of law by terminating Father's parental rights in spite of its finding that CYS failed

to provide him with reasonable efforts to promote reunification prior to filing its

termination petition.” In re D.C.D., 91 A.3d 173, 174 (Pa. Super. 2014). The Superior

Court based this holding on a statutory analysis and a constitutional review.




                                      [J-79-2014] - 6
      Engaging in statutory interpretation, the Superior Court looked first to the

provision in the Juvenile Act and the corresponding section of the federal Adoption and

Safe Families Act (“ASFA”) addressing disposition of a dependent child, rather than the

directly applicable statutory section in the Adoption Act providing for termination of

parental rights.   Initially, the court reasoned that the corresponding dependency

provisions of ASFA and the Juvenile Act require agencies to file a petition to terminate

parental rights to a child who has been in foster care for fifteen of the last twenty-two

months, with three exceptions, including if the agency has not provided the parent

reasonable services to reunite with his or her children. Id. at 179 (citing 42 U.S.C.

§ 675(5)(E) and 42 Pa.C.S. § 6351(f)(9)).5 The court recognized that it had previously



5
      The relevant portion of Section 6351 of the Juvenile Act provides:

             (f) Matters to be determined at permanency hearing. - At
             each permanency hearing, a court shall determine all of the
             following:

                                          ****

             (9) If the child has been in placement for at least 15 of the
             last 22 months or the court has determined that aggravated
             circumstances exist and that reasonable efforts to prevent or
             eliminate the need to remove the child from the child's
             parent, guardian or custodian or to preserve and reunify the
             family need not be made or continue to be made, whether
             the county agency has filed or sought to join a petition to
             terminate parental rights and to identify, recruit, process and
             approve a qualified family to adopt the child unless:

             (i) the child is being cared for by a relative best suited to the
             physical, mental and moral welfare of the child;

(continuedM)



                                     [J-79-2014] - 7
interpreted this provision to require the agency to "make reasonable efforts to reunify a

parent with his child prior to filing a petition to terminate that parent’s rights.” Id. The

court then opined that “[t]here is no exception to the requirement that CYS provide

reasonable efforts to a parent prior to filing a petition to terminate simply because the

parent is incarcerated.” Id.

       The Superior Court, next, considered the constitutional implications of not

providing reasonable services to a parent prior to termination of parental rights.

Recognizing that this Court and the United States Supreme Court have held that the

right to the care, custody, and control of one’s children is a fundamental constitutional

right, the Superior Court observed that any infringement of that right is subject to strict

scrutiny requiring that the infringement be narrowly tailored to support a compelling

state interest. Id. at 179-80 (citing Hiller v. Fausey, 904 A.2d 875, 885 (Pa. 2006)). The

court found the termination proceedings to be narrowly tailored.        It opined that the

legislature balanced the compelling state interest of protecting the welfare of children

with parents’ fundamental right to raise their children in part by requiring agencies to

provide reasonable efforts to promote reunification prior to petitioning for the termination


(Mcontinued)
            (ii) the county agency has documented a compelling reason
            for determining that filing a petition to terminate parental
            rights would not serve the needs and welfare of the child; or

              (iii) the child's family has not been provided with necessary
              services to achieve the safe return to the child's parent,
              guardian or custodian within the time frames set forth in the
              permanency plan.

42 Pa.C.S. § 6351(f)(9). Federal Section 675 includes very similar language as
discussed infra at note 11.




                                      [J-79-2014] - 8
of parental rights. After detailing CYS’s failure in this case to provide reasonable efforts

to assist Father, the court held that “the orphans' court erred as a matter of law by

granting CYS's petition to terminate Father's parental rights.” Id. at 181.

       The Superior Court rejected CYS’s argument that termination was proper under

S.P., where this Court opined that incarceration may be relevant to a grant of

termination based upon a parent’s incapacity.           The Superior Court attempted to

distinguish S.P. by observing that the trial court in S.P. concluded that continued visits

with the incarcerated father were not in the best interests of the child, in contrast to this

case where the trial court had ordered CYS to provide such visits prior to the filing of the

termination petition. Accordingly, the court noted that it was not reaching the question

of whether incapacity had been demonstrated, instead confining its decision to holding

that termination was impermissible absent the provision of reasonable efforts to Father.

       The Superior Court acknowledged that its actions would delay permanency for

Child who had been in care all her life, but opined that “CYS has left us no choice.” Id.

at 182. It held that CYS “violated Father's due process rights and prematurely filed its

petition to terminate his parental rights.” Id. at 182-83. Accordingly, the court held that

the failure of CYS to provide reasonable efforts to reunify Father with Child required the

denial of the termination petition, without considering the best interests of Child. Id.

       CYS sought review of the Superior Court’s decision, which we granted and

submitted on briefs.6 It contends that the Superior Court improperly added an element


6
       This Court granted review of the following two questions,

              (1) Whether the Superior Court erred in not following In re
              Adoption of S.P., [616 Pa. 309] 47 A.3d 817 (Pa. 2012).

(continuedM)



                                      [J-79-2014] - 9
to the plain language of Section 2511’s statutory requirements for termination of

parental rights by imposing an obligation on CYS to demonstrate that it had made

reasonable efforts to assist Father in reunifying with Child prior to filing a petition for

termination. CYS argues that the Superior Court mistakenly focused on the elements of

Section 6351(f)(9) of the Juvenile Act, which governs determination of the proper

standards for a court’s consideration when deciding a child’s need for permanency,

rather than Section 2511 of the Adoption Act, which sets forth the requirements for

termination of parental rights. CYS further notes that Section 2511 “is silent regarding

efforts by the Agency to assist the parent.” CYS Brief at 26. Instead, the relevant

subsection 2511(a)(2) is focused on the incapacity of the parent to care for his child,

without mention of the agency’s efforts.

       Moreover, CYS argues that even if Section 6351(f)(9) was relevant to the

question of termination under Section 2511, there is no language in that section

precluding the filing of a termination petition in the absence of reasonable efforts; rather,

the agency observes that the purpose of Section 6351(f)(9) is to require the filing of a

termination petition absent the specified exceptions in subsections (f)(9)(i)-(iii), see


(Mcontinued)
            (2) Whether the Superior Court erred in requiring an
            additional element for the termination of parental rights
            under 23 Pa.C.S.A. § 2511(a)(2); namely, that reasonable
            efforts must be made to assist a parent despite the court
            finding that the parent is incapable of parenting and cannot
            remedy the incapacity.

In the Interest of D.C.D., 93 A.3d 802 (Pa. 2014) (alteration in original). We address
these issues in reverse order, given that the Superior Court concluded that it could not
reach the issue presented by S.P. absent the provision of reasonable efforts prior to the
filing of the termination petition.




                                      [J-79-2014] - 10
supra note 5. It asserts that the punishment for failure to provide reasonable efforts is

the withholding of federal funds not the denial of termination.         Accordingly, CYS

maintains that the Superior Court improperly added an element to Section 2511.

       Further, CYS contends that the Superior Court erred in not affirming the trial

court’s order terminating parental rights, based on our recent decision in S.P., holding

that incarceration may be relevant to a parent’s incapacity. Applying S.P. to this case,

CYS emphasizes that Father will be not be released until 2018 at the earliest. Noting

that Father’s incapacity to parent Child is based on his incarceration, CYS asserts that

no amount of reasonable efforts by CYS will alter the fact that Father will be unable to

parent Child until she is at least seven. It also observes that it cannot remedy the

difficulty of visitation caused by the absence of video visitation in SCI Graterford and the

distance from Child's home. Accordingly, CYS maintains that the Superior Court erred

in denying termination of parental rights and delaying permanency for Child.

       Child's Guardian Ad Litem (GAL) additionally files a brief criticizing the Superior

Court's failure to place sufficient emphasis on Child's need for permanency, and instead

focusing on CYS's conduct.        The GAL recognizes that courts may consider the

relevance of any obstructive conduct of CYS in terms of determining a parent’s

incapacity and the best interests of the child. Nonetheless, GAL argues, courts must

primarily attend to children's need for permanency in considering termination. The GAL

highlights that Father will be unable to care physically for Child until she is at least

seven and notes the difficulty of creating a bond, which currently does not exist,

between Child and Father through prison visitation when Father is incarcerated hours

from Child's home. In contrast, the GAL emphasizes Child's current bond with her

foster parents with whom she has lived nearly all her life and who intend to adopt her.




                                     [J-79-2014] - 11
With these considerations, GAL maintains that the trial court properly concluded that

Father could not remedy his incapacity for purposes of Section 2511(a)(2) and that

termination of parental rights was in the best interests of Child pursuant to Section

2511(b).

       In response, Father echoes the Superior Court decision and urges this Court to

read Section 6351 of the Juvenile Act in pari materia with Section 2511 of the Adoption

Act regarding termination of parental rights.      He contends that we should read the

reasonable efforts requirement that he finds in Section 6351(f)(9), supra note 5, into

Section 2511, infra note 7, to ensure that termination of parental rights is narrowly

tailored to protect a parent’s fundamental right to raise his child.

       Turning to the language of Chapter 63 on the Juvenile Act, Father interprets the

relevant sections to require that reasonable efforts be provided to a parent unless an

aggravated circumstance, such as a parent's murder of another child, applies to exempt

the agency from pursuing such efforts toward reunification. Father emphasizes that

incarceration was not included in the list of aggravated circumstances, which he claims

present the only situations when an agency is exempted from providing a parent

reasonable efforts.

       Like the Superior Court, Father looks to Section 6531(f)(9)(iii), requiring a court to

inquire whether an agency has filed a termination petition if child has been in care for

fifteen of the last twenty-two months unless, inter alia, reasonable efforts toward family

reunification have not been provided. Despite the fact that the termination provision of

Section 2511 does not reference Section 6351(f)(9) and that Section 6351(f)(9) exempts

agencies from filing termination petitions, under specified circumstances, rather than

forbidding the filing of such petitions, Father contends that “[i]n providing the language




                                      [J-79-2014] - 12
of Section 6351(f)(9) of the Juvenile Act, the legislature has narrowly tailored the

infringement that is the termination of parental rights so that it may only be pursued by a

child protective services agency if the agency has provided reasonable efforts to

promote the reunification of the family.” Father’s Brief at 10.

          As did the Superior Court, Father attempts to distinguish S.P. based on the fact

that CYS in this case contravened the trial court’s order to provide visitation whereas

the court in S.P. denied visitation to the parent. Additionally, Father observes that the

child in S.P. had special needs which made it more likely that the Father would not have

the parenting skills to care for child after being released from prison and intermediate

housing. Father additionally argues that S.P. does not stand for the proposition that

incarceration necessarily constitutes incapacity for purposes of proving termination

under subsection 2511(a)(2), instead arguing that a court must consider other relevant

factors regarding whether a parent has the capacity to parent a child and whether

termination is in a child’s best interests under subsection (b). Father raises the specter

that under CYS’s proposal an agency would be able to refuse reasonable efforts to

incarcerated parents and then point to the lack of a parental bond created by their own

refusal to provide services as justification for termination of parental rights. To prevent

such result, Father urges this Court to affirm the Superior Court decision requiring the

provision of reasonable efforts at reunifying parents prior to termination of parental

rights.

          Community Legal Services filed a brief as amicus curiae in support of Father.

Amicus expands upon the statutory argument provided by Father which interprets

Section 6351 in conjunction with Section 2511 (along with the relevant federal ASFA

sections) to create a need to consider the reasonable efforts of CYS in order to protect




                                      [J-79-2014] - 13
a parent's fundamental rights. In addition, Amicus observes that numerous other states

have explicitly included reasonable efforts as an element or a factor in their relevant

termination of parental rights statutes. Moreover, it emphasizes that reasonable efforts

to assist incarcerated parents are beneficial to children as they allow for reunification

upon a parent's release and support other connections to the birth families, including the

potential of kinship care. It cites to the 2013 report of the Pennsylvania Children's

Roundtable which opined, "Incarcerated parents have the same rights[,] as [parents]

who are not incarcerated[,] to fully participate in the court process, to fully participate in

case planning, to require the agency to make reasonable efforts toward reunification,

and to have visitation and contact with their children.” Amicus Brief at 34 (quoting 2013

Report of the Pennsylvania State Roundtable "Dependent Children of Incarcerated

Parents," available at http://www.ocfcpacourts.us/childrens-roundtable-initiative/state-

roundtable-workgroups/dependent-children-of-incarcerated-parents).              Accordingly,

Amicus argues that CYS cannot subvert the requirement to provide reasonable efforts

to assist incarcerated parents to reunify with their children and avoid termination of

parental rights.

       When reviewing a trial court's decision to grant or deny a termination of parental

rights petition, an appellate court should apply an abuse of discretion standard,

accepting the findings of fact and credibility determinations if they are supported by the

record, and reversing only if the trial court made an error of law or abused its discretion.

S.P., 47 A.3d at 826. As we have noted, “a decision may be reversed for an abuse of

discretion only upon demonstration of manifest unreasonableness, partiality, prejudice,

bias, or ill-will.” Id. We employ a de novo standard of review, however, when faced with

questions of law, such as in this case, regarding whether an agency must provide




                                      [J-79-2014] - 14
reasonable services to a parent before a court may grant a petition seeking termination

of parental rights. See In re Adoption of S.E.G., 901 A.2d 1017, 1018 n.1 (Pa. 2006).

       Before addressing the trial court’s decision to grant termination of Father’s

parental rights, we will review the Superior Court’s holding that termination cannot be

granted, as a matter of law, absent the provision of reasonable services to the parent,

initially considering the statutory analysis prior to the constitutional implications. As set

forth above, the Superior Court and Father contend that Section 2511 of the Adoption

Act, when read in conjunction with Section 6531 of the Juvenile Act, requires that an

agency must provide a parent with reasonable efforts aimed at reunifying the parent

with his or her children prior to petitioning for termination of parental rights and that

termination cannot be granted absent the provision of reasonable efforts. Respectfully,

we reject this holding as inconsistent with the language of both statutes.

       As Father and the Superior Court acknowledge, Section 2511 entitled "Grounds

for termination" does not mention reasonable efforts. Instead, the subsection applicable

to this case sets forth the following ground for termination of parental rights:

              (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:
                                           ****
              (2) The repeated and continued incapacity, abuse, neglect or
              refusal of the parent has caused the child to be without
              essential parental care, control or subsistence necessary for
              his physical or mental well-being and the conditions and
              causes of the incapacity, abuse, neglect or refusal cannot or
              will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2).7


7
       In full, Section 2511(a) provides the following grounds for termination:
(continuedM)



                                      [J-79-2014] - 15
(Mcontinued)

             (a) General rule. - The rights of a parent in regard to a child
             may be terminated after a petition filed on any of the
             following grounds:

             (1) The parent by conduct continuing for a period of at least
             six months immediately preceding the filing of the petition
             either has evidenced a settled purpose of relinquishing
             parental claim to a child or has refused or failed to perform
             parental duties.

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

             (3) The parent is the presumptive but not the natural father
             of the child.

             (4) The child is in the custody of an agency, having been
             found under such circumstances that the identity or
             whereabouts of the parent is unknown and cannot be
             ascertained by diligent search and the parent does not claim
             the child within three months after the child is found.

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



                                    [J-79-2014] - 16
(Mcontinued)

                 (6) In the case of a newborn child, the parent knows or has
                 reason to know of the child's birth, does not reside with the
                 child, has not married the child's other parent, has failed for
                 a period of four months immediately preceding the filing of
                 the petition to make reasonable efforts to maintain
                 substantial and continuing contact with the child and has
                 failed during the same four-month period to provide
                 substantial financial support for the child.

                 (7) The parent is the father of a child conceived as a result of
                 a rape or incest.

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

                 (9) The parent has been convicted of one of the following in
                 which the victim was a child of the parent:

                 (i) an offense under 18 Pa.C.S. Ch. 25 (relating to criminal
                 homicide);

                 (ii) a felony under 18 Pa.C.S. § 2702 (relating to aggravated
                 assault);

                 (iii) an offense in another jurisdiction equivalent to an offense
                 in subparagraph (i) or (ii); or

                 (iv) an attempt, solicitation or conspiracy to commit an
                 offense in subparagraph (i), (ii) or (iii).

Id. § 2511(a).




                                        [J-79-2014] - 17
       If a ground for termination is demonstrated by clear and convincing evidence

under subsection (a), a trial court next considers whether termination is in the best

interests of the child under subsection (b):


                 (b) Other considerations. - The court in terminating the rights
                 of a parent shall give primary consideration to the
                 developmental, physical and emotional needs and welfare of
                 the child. The rights of a parent shall not be terminated
                 solely on the basis of environmental factors such as
                 inadequate housing, furnishings, income, clothing and
                 medical care if found to be beyond the control of the parent.
                 With respect to any petition filed pursuant to subsection
                 (a)(1), (6) or (8), the court shall not consider any efforts by
                 the parent to remedy the conditions described therein which
                 are first initiated subsequent to the giving of notice of the
                 filing of the petition.
Id. § 2511(b).

       Neither subsection (a) nor (b) requires a court to consider the reasonable efforts

provided to a parent prior to termination of parental rights. Nevertheless, this Court has

observed that the provision or absence of reasonable efforts may be relevant to a

court's consideration of both the grounds for termination and the best interests of the

child. S.E.G., 901 A.2d at 1029. For example, as applicable to subsection (a)(2), a

court may find an agency’s lack of assistance to a parent relevant to whether a parent's

incapacity "cannot or will not be remedied by the parent.” 23 Pa.C.S § 2511(a)(2).

Indeed, we agree with Father, at least in a situation involving a strong bond between

parent and child prior to incarceration and a short term of incarceration, that 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,




                                        [J-79-2014] - 18
however, does not transform the provision of reasonable efforts to reunite parents and

children into a requirement for termination. Nothing in the law goes so far, and the

Superior Court erred in so holding.

      Further, while we acknowledge that other states have included reasonable efforts

as either an element or merely a factor in their termination provisions, the Pennsylvania

legislature has not incorporated reasonable efforts into the language of 23 Pa.C.S.

§ 2511(a)(2), and it would be improper and, indeed, unwise for this Court to add such

an element to the statute by judicial fiat. In contrast, we recognize that the legislature

included consideration of the reasonable services available to the parent in regard to

another ground for termination, subsection 2511(a)(5) (providing for consideration of

whether “the services or assistance reasonably available to the parent are not likely to

remedy the conditions which led to the removal or placement of the child within a

reasonable period of time”).

      We also do not find reasonable efforts are required prior to termination when

Section 2511 of the Adoption Act, entitled “Grounds for termination,” is read in

conjunction with Section 6351 of the Juvenile Act, entitled "Disposition of dependent

child." Rather, we conclude that the Superior Court and Father conjured a requirement

in Section 6351(f)(9), when none exists. Instead of a requirement to provide reasonable

efforts prior to the filing of a termination petition, Section 6351 actually creates an

exception that excuses the filing of an otherwise required termination petition, as

explained below.

      A careful analysis of Section 6351 reveals the error in the Superior Court’s

analysis. Section 6351 details the required findings and determinations that a Juvenile

Court must make in regard to dependent children, including who should have custody of




                                      [J-79-2014] - 19
the child and what the permanency goals should be. 42 Pa.C.S. § 6531. Subsection (f)

speaks to the “matters to be determined at [a] permanency hearing,” including

“[w]hether reasonable efforts were made to finalize the permanency plan in effect.” Id.

§ 6351(f)(5.1).8 As emphasized by the Superior Court and Father, subsection (f)(9)

requires a court to determine:

8
      In full, subsection (f) of Section 6351 provides:

             (f) Matters to be determined at permanency hearing.-- At
             each permanency hearing, a court shall determine all of the
             following:

             (1) The continuing necessity for and appropriateness of the
             placement.

             (2) The appropriateness, feasibility and extent of compliance
             with the permanency plan developed for the child.

             (3) The extent of progress made toward alleviating the
             circumstances which necessitated the original placement.

             (4) The appropriateness and feasibility of the current
             placement goal for the child.

             (5) The likely date by which the placement goal for the child
             might be achieved.

             (5.1) Whether reasonable efforts were made to finalize the
             permanency plan in effect.

             (6) Whether the child is safe.

             (7) If the child has been placed outside the Commonwealth,
             whether the placement continues to be best suited to the
             safety, protection and physical, mental and moral welfare of
             the child.

(continuedM)



                                    [J-79-2014] - 20
(Mcontinued)
            (8) The services needed to assist a child who is 16 years of
            age or older to make the transition to independent living.

             (8.1) Whether the child continues to meet the definition of
             “child” and has requested that the court continue jurisdiction
             pursuant to section 6302 if the child is between 18 and 21
             years of age.

             (8.2) That a transition plan has been presented in
             accordance with section 475 of the Social Security Act (49
             Stat. 620, 42 U.S.C. § 675(5)(H)).

             (9) If the child has been in placement for at least 15 of the
             last 22 months or the court has determined that aggravated
             circumstances exist and that reasonable efforts to prevent or
             eliminate the need to remove the child from the child's
             parent, guardian or custodian or to preserve and reunify the
             family need not be made or continue to be made, whether
             the county agency has filed or sought to join a petition to
             terminate parental rights and to identify, recruit, process and
             approve a qualified family to adopt the child unless:
             (i) the child is being cared for by a relative best suited to the
             physical, mental and moral welfare of the child;

             (ii) the county agency has documented a compelling reason
             for determining that filing a petition to terminate parental
             rights would not serve the needs and welfare of the child; or

             (iii) the child's family has not been provided with necessary
             services to achieve the safe return to the child's parent,
             guardian or custodian within the time frames set forth in the
             permanency plan.

            (10) If a sibling of a child has been removed from his home
            and is in a different placement setting than the child, whether
            reasonable efforts have been made to place the child and
            the sibling of the child together or whether such joint
(continuedM)



                                    [J-79-2014] - 21
                 If the child has been in placement for at least 15 of the last
                 22 months or the court has determined that aggravated
                 circumstances exist and that reasonable efforts to prevent or
                 eliminate the need to remove the child from the child's
                 parent, guardian or custodian or to preserve and reunify the
                 family need not be made or continue to be made, whether
                 the county agency has filed or sought to join a petition to
                 terminate parental rights and to identify, recruit, process and
                 approve a qualified family to adopt the child unless:

                 (i) the child is being cared for by a relative best suited to the
                 physical, mental and moral welfare of the child;

                 (ii) the county agency has documented a compelling reason
                 for determining that filing a petition to terminate parental
                 rights would not serve the needs and welfare of the child; or

                 (iii) the child's family has not been provided with necessary
                 services to achieve the safe return to the child's parent,
                 guardian or custodian within the time frames set forth in the
                 permanency plan.

(Mcontinued)
            placement is contrary to the safety or well-being of the child
            or sibling.

                 (11) If the child has a sibling, whether visitation of the child
                 with that sibling is occurring no less than twice a month,
                 unless a finding is made that visitation is contrary to the
                 safety or well-being of the child or sibling.

                 For children placed in foster care on or before November 19,
                 1997, the county agency shall file or join a petition for
                 termination of parental rights under this subsection in
                 accordance with section 103(c)(2) of the Adoption and Safe
                 Families Act of 1997 (Public Law 105-89, 111 Stat. 2119).

Id. § 6351(f).




                                        [J-79-2014] - 22
42 Pa.C.S. § 6351(f)(9).9

       While the Superior Court seemingly read subsection 6351(f)(9)(iii) to forbid an

agency from filing a termination petition when parents have not been provided

reasonable services to achieve reunification, the language does not support such

reading. Instead, the statutory language ensures that termination petitions are timely

filed. Specifically, if a child has been in custody for 15 of the last 22 months, the court

must inquire as to whether a termination petition has been filed, absent the listed

exceptions of subsections (i)-(iii), including whether the parents have been provided

necessary services.    Requiring a court to inquire whether an agency has filed for

termination promotes timely permanency for children rather than subjecting them to

foster care drift. See In re R.J.T., 9 A.3d 1179, 1186 (Pa. 2010) (observing that the

revisions following the 1997 federal enactment of ASFA were to address the problem of

foster care drift by allowing agencies to pursue concurrent planning to ensure that

children “move more quickly through the dependency system and into the permanent

placement best suited to their individual situation through simultaneous pursuit of




9
       The corresponding federal statute similarly provides that when a child has been
in foster care for 15 of the last 22 months, the agency “shall file a petition to terminate
the parental rights” unless the state has not provided the family services the state
deems necessary for returning the child to the home. 42 U.S.C. § 675(5)(E). Moreover,
the relevant federal regulations provide that an “agency may elect not to file a petition to
terminate the parental rights of a parent” when a child has been in care 15 of the last 22
months if the agency has not provided services to parent that it deems necessary. 45
C.F.R. § 1356.21(i)(2)(iii). Thus, as under the Pennsylvania statutes, the emphasis is
upon ensuring that termination petitions are filed if a child has been in care for an
extended time, absent specified exceptions.




                                     [J-79-2014] - 23
reunification and alternative permanent placement”);10 S.E.G., 901 A.2d at 1018-19

(detailing the history of the adoption of concurrent planning in Pennsylvania).

Accordingly, while reasonable efforts should be considered and indeed, in the

appropriate case, a trial court could insist upon their provision, we hold that nothing in

the language or the purpose of Section 6351(f)(9) forbids the granting of a petition to

terminate parental rights, under Section 2511, as a consequence of the agency’s failure

to provide reasonable efforts to a parent.

       Here Father was incarcerated prior to Child’s birth, and will remain incarcerated

at a minimum until Child is 7 years of age, and likely older. In accord with the trial

court’s findings of fact, Child has been with a foster family since shortly after her birth,

and has bonded with that family. Under these facts, family reunification is not a realistic

goal, and thus, while the trial court initially ordered reunification efforts to proceed, the

court was within its discretion to terminate parental rights notwithstanding the agency’s

failure to follow that directive, as discussed in the next issue.

       We additionally recognize, however, that agencies must provide reasonable

efforts to enable parents to work toward reunification with their dependent children when

ordered to do so by a trial court regardless of the legal correctness of that order.

However, the remedy for an agency's failure to provide services is not to punish an

innocent child, by delaying her permanency through denying termination, but instead to

conclude on the record that the agency has failed to make reasonable efforts, which

imposes a financial penalty on the agency of thousands if not tens of thousands of


10
      “Foster care drift” refers to the inadvertent movement of children through multiple
placements within the child welfare system without a permanent home and has been
shown to be detrimental to the children. See, e.g., S.E.G., 901 A.2d at 1019.




                                      [J-79-2014] - 24
dollars under federal law. See, e.g., Tr. Ct. Op., June 21, 2012, at 11; Pennsylvania

Court's Office of Children and Families in the Courts, Pennsylvania Dependency

Benchbook, § 15.8.1 at 182 (2010).

       As noted, the federal government enacted ASFA and related statutes to address

the problems of foster care drift and ensure that dependent children are provided

permanent homes either through reunification or adoption. To accomplish this goal, the

federal government tied federal funding of foster care and adoption assistance to each

state’s adoption of a plan regarding its foster care system. 42 U.S.C. § 671 (setting

forth the requirements of a state plan “[i]n order for a State to be eligible for payments”

for foster care and adoption assistance). The federal government required state plans

to provide that “reasonable efforts shall be made to preserve and reunify families,”

absent certain exceptions.11 Id. § 671(a)(15)(B). Section 672 in turn provides, inter alia,

that a state should “make foster care maintenance payments on behalf of each child” if

“reasonable efforts of the type described in section 671(a)(15) of this title for a child

have been made.” Id. § 672(a)(1), (2)(A)(ii). The federal payments to the states are

likewise based upon the Section 672 payments.            Id. § 674; see also 45 C.F.R.

1356.21(b) (detailing that agencies must make reasonable efforts “to effect safe

reunification” to be eligible to receive federal foster care maintenance payments).




11
       Reasonable efforts at reunification are not required if continuation “is determined
to be inconsistent with the permanency plan for the child,” in which case efforts must be
made to place the child in a permanent home. Id. § 671(a)(15)(C). Additionally,
reasonable efforts are not required to be provided by a state plan if aggravated
circumstances apply such as if the parent has subjected the child to “abandonment,
torture, chronic abuse, [or] sexual assault” or if the parent has committed specified
crimes. Id. § 671(a)(15)(D).




                                     [J-79-2014] - 25
       Thus, while the federal provisions require states to provide reasonable efforts to

reunify families if deemed appropriate by a court, the penalty for a state’s failure is

financial. Neither Father nor the Superior Court point to any Pennsylvania or federal

provision that requires delaying permanency for a child due to the failure of an agency

to provide reasonable services, when a court has otherwise held that grounds for

termination have been established and the court has determined that termination is in

the best interests of the child by clear and convincing evidence.          Accordingly, we

conclude that the Superior Court erred in reversing the trial court’s termination of

Father’s parental rights as a result of CYS’s failure to provide reasonable efforts to

enable Father to reunify with Child.

       Although not overtly raised, we acknowledge that the Superior Court and Father

suggest that reasonable efforts must be provided by the agency to guard a parent’s

fundamental right to the care, custody, and control of his children.12         As we have

previously held, “the right to make decisions concerning the care, custody, and control

of one's children is one of the oldest fundamental rights protected by the Due Process

Clause.” Hiller, 904 A.2d at 885. Accordingly, any infringement of that right by the state

must be reviewed by this Court pursuant to a strict scrutiny analysis, determining




12
       Specifically, the Superior Court opined, “The legislature's requirement that the
Agency provide reasonable efforts to promote reunification prior to filing a petition to
terminate the parent's rights is a clear effort to protect the parent's fundamental right
with respect to his child and to justify the state's great intrusion into that relationship.”
D.C.D., 91 A.3d at 180; see also Father’s Brief at 10-11. As discussed supra, however,
we conclude that the statutory provisions do not require the provision of reasonable
efforts prior to the filing of a termination petition, although reasonable efforts are
relevant to termination.




                                       [J-79-2014] - 26
whether the infringement is narrowly tailored to effectuate a compelling state interest.

Id.

       Obviously, termination of parental rights is the most extreme infringement of

parental rights. Additionally, it is beyond cavil that the protection of children, and in

particular the need to provide permanency for dependent children, is a compelling state

interest. In balancing these interests, the General Assembly has created a detailed

system setting forth the limited situations which would result in removal of children from

their parents and termination of parental rights.       Moreover, the statutory construct

requires specific determinations by the trial court regarding the proper placement and

permanency goals of the children at each step of the process. Ultimately, the grounds

of termination must be demonstrated by the state by clear and convincing evidence.

See Santosky v. Kramer, 455 U.S. 745, 770 (1982) (requiring clear and convincing

evidence of termination to protect parent’s substantive due process rights); Matter of

Adoption of G.T.M., 483 A.2d 1355, 1356 (Pa. 1984). We conclude that this system is

sufficiently narrowly tailored to protect a parent’s fundamental right while also ensuring

the safety and permanency needs of dependent children.

       Finally, we conclude that the trial court did not abuse its discretion in determining

that Father is incapable of providing care for Child and that that incapacity will exist at

least until Father’s minimum release date of 2018 when Child will be seven. In S.P., we

held that “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 observed that the length of a parent’s continued

incarceration may be “highly relevant to whether ‘the conditions and causes of the




                                     [J-79-2014] - 27
incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,’” for

purposes of termination pursuant to 23 Pa.C.S. § 2511(a)(2). S.P., 47 A.3d at 830.

       Applying this standard to the case at bar, the trial court did not abuse its

discretion in holding that CYS established grounds for termination of Father’s parental

rights by clear and convincing evidence based on Father’s continued incapacity to care

for child. Moreover, the trial court recognized for purposes of subsection 2511(b) that a

parent’s continued incarceration may factor into a determination of the child’s best

interests. Id. In this case, the court did not abuse its discretion in determining that

Child’s best interests will be served by terminating Father’s parental rights given the

absence of a bond with Father, Father’s expected incarceration until Child is at least

seven and likely longer, and her strong bond with her foster family with whom she has

lived nearly all her life and who has indicated a desire to adopt her.

       Accordingly, we reverse the decision of the Superior Court and reinstate the trial

court’s decision terminating Father’s parental rights.

       Mr. Chief Justice Castille, Mr. Justice Saylor and Madame Justice Todd join the

opinion.

       Mr. Justice Eakin files a concurring opinion in which Mr. Justice Stevens joins.




                                     [J-79-2014] - 28
