litmus test in Pennsylvania

2025With respect to incarcerated parents, our Supreme Court has 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.” S.P., 47 A.3d at 830 (citation and internal quotation marks omitted). “[I]ncarceration alone is not sufficient to support termination under any subsection[,]” but “incarceration will certainly impact a parent’s capability of performing parental duties, and may render a parent incapable of performing parental duties under subsection (a)(2

2025As noted by the trial court, incarceration, “while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing ‘essential parental care, control[,] or subsistence’ and the length of the remaining confinement can be considered as highly relevant to whether ‘the conditions and causes of the incapacity, abuse, neglect[,] or refusal cannot or will not be remedied by ____________________________________________ 5 Subsection 2511(a)(2) provides that parental rights may be terminated under the following circumstances: The repeated and continue

2025With respect to incarcerated parents, our Supreme Court has 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.” S.P., 47 A.3d at 830 (citation and internal quotation marks omitted). “[I]ncarceration alone is not sufficient to support termination under any subsection[,]” but “incarceration will certainly impact a parent’s capability of performing parental duties, and may render a parent incapable of performing parental duties under subsection (a)(2

2024However, incarceration is relevant to determine a parent’s continued incapacity: [I]ncarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing “essential parental care, control or subsistence” and the length of the remaining confinement can be considered as highly relevant to whether “the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,” sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2); [In re: E.A.P., 944 A.2d 79, 85 (P

2018In more expanded terms, the Supreme Court stated: In line with the expressed opinion of a majority of justices in In re R.I.S., 614 Pa. 275 , 36 A.3d 567 (2011), our prior holdings regarding incapacity, and numerous Superior Court decisions, we now definitively hold 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 the length of the remaining confinement can be 28 considered as highly relevant to whether "the conditions and causes of the incapacity

2018The Court expounded, In line with the expressed opinion of a majority of justices in [In re R.I.S., 36 A.3d 567 (Pa. 2011)], our prior holdings regarding incapacity, and numerous Superior Court decisions, we now definitively hold 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 the length of the remaining confinement can be considered as highly relevant to whether “the conditions and causes of the incapacity, abuse, neglect or refusal cannot or wi

2022Although the Juvenile Act “does not establish a litmus test that requires a juvenile court to alter the course of reunification due simply to the amount of time a child has been in placement[; i]t does, however, create a mechanism for keeping juvenile courts alert to the potential for foster care drift, i.e., where the children languish in the foster care system while their parents unsuccessfully attempt to regain custody.” P.Z., 113 A.3d at 846-47 (further citations and quotations omitted).

2022Although the Juvenile Act “does not establish a litmus test that requires a juvenile court to alter the course of reunification due simply to the amount of time a child has been in placement[; i]t does, however, create a mechanism for keeping juvenile courts alert to the potential for foster care drift, i.e., where the children languish in the foster care system while their parents unsuccessfully attempt to regain custody.” P.Z., 113 A.3d at 846-47 (further citations and quotations omitted).

2019Indeed, “Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous.” In re A.L.D., supra at 340 (internal quotation marks and citations omitted). -8- J-S48001-19 In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court definitively held that incarceration, while not a litmus test for termination, can be determinative of the question of wh

2018In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). - 13 - J-S18030-18 In In re Adoption of S.P., our Supreme Court revisited its decision in In re: R.I.S., regarding incarcerated parents, and stated the following: [W]e now definitively hold 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 the length of the remaining confinement can be considered as highly relevant to whether “the conditions and causes of the incapacity, abuse, neglect or refusal ca

2016In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). -4- J-S48044-16 treatment plan that “might assist her in overcoming her disability.” See Mother’s Brief at 8, 9-14.

2015See In re R.J.T., 608 Pa. 9 , 9 A.3d 1179, 1190 (2010).

2020See Robinson, 864 A.2d at 488 (quoting Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988)) (“[T]he purpose of the voir dire examination is not to provide a better basis upon which a defendant can exercise his peremptory challenges, but to determine whether any venire man has formed a fixed opinion as to the -8- J-S40007-20 accused’s guilt or innocence.”).

2020See Robinson, 864 A.2d at 488 (quoting Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988)) (“[T]he purpose of the voir dire examination is not to provide a better basis upon which a defendant can exercise his peremptory challenges, but to determine whether any venire man has formed a fixed opinion as to the -8- J-S40007-20 accused’s guilt or innocence.”).

2020See In re A.D., 93 A.3d at 897 (citing 23 Pa.C.S.A. § 2511(a)(2)).

2019In re D.C.D., 105 A.3d 662, 677 (Pa. 2014); In re Adoption of S.P., 47 A.3d 817, 828-30 (Pa. 2012). -9- J-S50044-19 [I]ncarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing “essential parental care, control or subsistence” and the length of the remaining confinement can be considered as highly relevant to whether “the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,” sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2).

2017If the police officer has probable cause to believe the Appellant was driving under the influence of alcohol, then “the [Appellant’s] consent to undergo chemical or blood tests was implied, and hospital personnel were required to withdraw blood from [Appellant] and release the test results.” Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa. Super. 2003). “[T]he officer is entitled to obtain the results of such tests, regardless of whether the test was performed for medical purposes or legal purposes.” Barton, 690 A.2d at 299-300 .

2015See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008). -6- J-S16001-15 In regard to incarcerated persons, our Supreme Court has stated: [I]ncarceration is a factor, and indeed can be a determinative factor, in a court’s conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that [sic] the causes of the incapacity cannot or will not be remedied. ... [W]e now definitively hold that incarceration, while not a litmus test f

2015See In re R.J.T., 608 Pa. 9 , 9 A.3d 1179, 1190 (2010).

2015In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted). -9- J-S62013-15 In regard to incarcerated persons, our Supreme Court has stated: [I]ncarceration is a factor, and indeed can be a determinative factor, in a court’s conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied. * * * [W]e now definitively hold that incarceration, whil

1982See Commonwealth v. Brown, 455 Pa. 274, 277 , 314 A.2d 506, 508 (1974) (where our Supreme Court said “More important for our resolution of the instant case, however, is our decision . . where we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind.”) (footnote omitted) (emphasis added).

1982See Commonwealth v. Brown, 455 Pa. 274, 277 , 314 A.2d 506, 508 (1974) (where our Supreme Court said “More important for our resolution of the instant case, however, is our decision . . where we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind.”) (footnote omitted) (emphasis added).

1973Quoting from Jackson v. Bishop, 404 F. 2d 571, 579 (8th Cir. 1968), it said in Bryant at 97-98, 280 A. 2d at 117 : “ ‘In summary . . . we have a flat recognition that the limits of the Eighth Amendment’s proscription are not easily or exactly defined, and we also have clear indications that the applicable standards are flexible, that disproportion both among punishments and between punishment and crime, is a factor to be considered, and that broad and idealistic concepts of dignity, civilized standards, humanity and decency are useful and usable.’ “Using the above as a litmus test. . . .” The