In Re: B.E.Z., a minor, Appeal of: A.M.L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.E.Z., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: A.M.L.,
Appellant No. 56 WDA 2015
Appeal from the Order December 8, 2014
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2014 AD 3A
IN RE: A.M.Z., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: A.M.L.,
Appellant No. 57 WDA 2015
Appeal from the Order December 8, 2014
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2014 AD 3
BEFORE: BOWES, OLSON, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 25, 2015
A.M.L. (“Mother”) appeals from the December 8, 2014 orders
terminating her parental rights to her twin daughters, B.E.Z. and A.M.Z. We
affirm.
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A.M.Z. and B.E.Z. were born during January 2009, as a result of
Mother’s relationship with M.Z. (“Father”). Mother has struggled with
substance abuse for most of her adult life. At the times relevant to this
appeal she has alternated between county jail, state incarceration, and
inpatient rehabilitative facilities. Immediately prior to the termination
hearing, she resided at a half-way house located in Pittsburgh; however, the
guardian ad litem indicates in her brief that Mother subsequently was re-
incarcerated for violating the terms of her pre-release. Guardian Ad Litem’s
brief at 6. The twins, who were born with traces of cocaine and marijuana in
their systems, have always resided with Father in Blair County,
Pennsylvania. Mother resided with Father and the children for the first two
years of their lives. However, the romantic relationship between Mother and
Father dissolved as a consequence of Mother’s continued drug abuse. Since
May 2011, Mother resided outside of the household when she was not
incarcerated or engaged in inpatient rehabilitation. For the year and one-
half prior to these proceedings, the household has included Father’s current
wife, J.Z., and her daughter M.L. The twins have formed close bonds with
J.Z. and M.L. and they view them both as members of their immediate
family.
Father is an attorney, and J.Z. is employed by the Commonwealth of
Pennsylvania as an occupational therapist. As a result of her struggle with
drug addiction, Mother has been incarcerated several times since the twins
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were born.1 In addition, her parental rights to an older child were
terminated due to her inability to care for him.
On January 24, 2014, Father filed in the Blair County Orphans’ Court
petitions to involuntarily terminate Mother’s parental rights to A.M.Z. and
B.E.Z.2 On the same date, Father and J.Z. filed petitions for adoption that
outlined J.Z.’s intention to adopt the children following termination. Mother
retained private counsel, and the orphans’ court appointed a guardian ad
litem to represent the children. The orphans’ court initially scheduled the
hearing for the termination of parental rights on February 28, 2014, and the
adoption hearing on April 15, 2014. However, following Mother’s request for
a continuance, the orphans’ court rescheduled the termination hearing to
March 31, 2014, and stayed the adoption proceedings pending the result of
that hearing. Thereafter, on March 20, 2014, the orphans’ court granted
Father’s request for a continuance and rescheduled the termination
proceedings to 9:00 a.m. on April 28, 2014, at the Blair County Courthouse.
The back of the order granting Father’s request included a stamped
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1
When the children were two years old, Mother was arrested and charged
with shoplifting while her daughters were in her care. Police discovered
drugs and paraphernalia in Mother’s purse. She pled guilty to theft, drug-
related offenses, and child endangerment.
2
As Father practices law in Blair County, Centre County Senior Judge
Charles C. Brown Jr., was appointed specially to hear the case.
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certification that notice of the order was sent to the parties’ representatives,
including Mother’s counsel, on March 25, 2014.3
Father, J.Z., and the guardian ad litem appeared for the termination
hearing scheduled for Monday, April 28, 2014; however, neither Mother nor
her counsel was present. Mother called the court administrator to notify it
that she was en route from Pittsburgh to Blair County. She stated that she
expected to arrive at the hearing at approximately 10:00 a.m. A paralegal
from the law office that Mother retained contacted the orphans’ court by
telephone to inform it that the attorney was confused as to the date of the
hearing and, therefore, was unavailable to participate at the scheduled time.
The paralegal relayed to the orphan’s court that the attorney “got it
backwards,” i.e., “[she] believed that this hearing today on the termination
was to be held after another proceeding, apparently the adoption
proceeding, but in any event, . . . she got it backwards because that’s not
what’s happening.” N.T., 4/28/14, at 2.
After discussing the matter with Father’s counsel and the guardian ad
litem, the court considered their respective positions and placed on the
record its reasons for proceeding without Mother or her attorney. The
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3
The original order is included in the certified record transmitted in the case
at action number 2014 AD 3A. The order transmitted with the companion
case is a photocopy that does not include the portion of the document that
contained the relevant certification.
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orphans’ court began the hearing at approximately 10:06 a.m. Father
testified for approximately twenty minutes before Mother arrived at 10:27
a.m. Mother explained that she contacted her attorney on the previous
Friday and was informed that the matter had been continued. She stated
that she had been en route to Blair County that morning for unrelated
matters and decided to contact the court administrator in order to confirm
that the hearing date had been changed. The administrator advised her that
it had not. At that point, she informed the court personnel that she was on
her way to the courthouse.
After proffering the foregoing explanation and noting her attorney’s
absence, Mother requested a continuance. She entreated, “I feel that due to
the nature of it being termination of my rights to my twins, I want to have
some type of legal representation for myself.” Id. at 35. The orphans’ court
denied the request, ruling that all of the parties had received notice of the
hearing and that there was no breakdown in the court’s machinery. Hence,
the orphans’ court proceeded with the hearing notwithstanding Mother’s lack
of representation.
In addition to his own testimony, Father presented J.W. as a witness
and introduced eight exhibits into evidence. Mother cross-examined both of
these witnesses, confronted the admissibility of the exhibits, examined three
witnesses of her own, and testified in narrative form. Mother’s attorney
appeared at 3:25 p.m. while Mother was presenting her narrative. The
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attorney did not provide any further explanation for her absence nor did
counsel submit a request for a continuance. Following a brief recess to
determine whether the attorney should conduct Mother’s direct examination,
Mother finished her narrative without counsel’s aid. The entirety of counsel’s
participation was assisting Mother with offering an exhibit into evidence.
At the conclusion of the hearing, the orphans’ court set a briefing
schedule to commence following the receipt of the transcript. Father and
Mother submitted their respective briefs on June 23 and June 26, 2014.
With leave of court, the guardian ad litem filed her brief on July 24, 2014.
All of the briefs addressed the merits of the substantive issue regarding
whether Father satisfied his statutory burden of proof to terminate Mother’s
parental rights to B.E.Z. and A.M.Z. Significantly, Mother neglected to
assert either that the trial denied her right to counsel at the termination
proceedings or that it committed an abuse of discretion by denying her oral
request for a continuance. Moreover, counsel still did not proffer any
additional explanation for missing the hearing nor did she assert a lack of
notice of the court’s March 20, 2014 scheduling order. On December 8,
2014, the orphans’ court entered final decrees granting Father’s petition to
terminate Mother’s parental rights to A.M.Z. and B.E.Z., and it entered
identical opinions in support of its determination. Since the matter was not
raised in the briefs, the orphans’ court did not address its decision to
proceed with the hearing in counsel’s absence.
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Mother retained new counsel, who filed these timely appeals.4
However, in contravention of Pa.R.A.P. 1925(a)(2)(i), Mother neglected to
file her concise statement of errors complained of on appeal until January
30, 2015, three days after this Court entered an order directing her to file
and serve the Rule 1925(b) statement by February 6, 2015. Mother’s Rule
1925(b) statement leveled for the first time her complaint that the trial court
erred in conducting the termination hearing without Mother’s counsel and
that it abused its discretion in denying Mother’s motion for a continuance.
Unfortunately, the trial court was not served with the Rule 1925(b)
statement until one month after it was filed, and it did not issue its Rule
1925(a) opinion until May 6, 2015.5 We received the certified record two
days later. The matter was argued before this Court on September 17,
2015.
Mother raises three issues for review:
1. The court erred by conducting the hearing to involuntary
terminate [Mother’s] parental rights without . . . counsel being
present to represent her thereby denying and violating [her]
rights to due process of law.
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4
We consolidated the appeals sua sponte.
5
The Rule 1925(b) statement included a certification that Mother served the
document at the Blair County Court House, 423 Allegheny Street,
Hollidaysburg, PA 16648. It is uncertain whether the assigned judge’s status
as a visiting judge from Center County exacerbated the delay associated
with the service of the Rule 1925(b) statement.
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2. The court erred by conducting the hearing to terminate
[Mother’s] parental rights without making a determination that
[Mother] waived her right to be represented by counsel thereby
denying and violating her rights to due process of law.
3. The court abused its discretion by denying [Mother’s] oral
motion for continuance when counsel of record failed to appear
at the hearing to terminate appellant’s parental rights requiring
[Mother] to proceed without counsel of record being present.
Mother’s brief at 3.
We address Mother’s first two issues collectively. In sum, Mother’s
assertions invoke legal authority that addresses an indigent parent’s right to
counsel in proceedings initiated by child care agencies. See, e.g., In re
Adoption of R.I., 312 A.2d 601 (Pa. 1973); 23 Pa.C.S.§ 2313. The crux of
her complaints are that, since she possessed a right to counsel during the
involuntary termination proceedings, the orphans’ court erred in forcing her
to represent herself after her counsel failed to appear. One inference of this
argument is that her attorney’s absence was per se ineffectiveness that
warrants a new termination hearing.
Mother also suggests that the orphans’ court should not have ignored
her lack of representation where she did not knowingly, voluntarily, and
intelligently waive the right to counsel. She asserts that she not only
declined to waive her right to counsel in the instant case, but she also
specifically invoked that right and requested a continuance so that she could
exercise it. Accordingly, Mother posits that the orphans’ court was required
to confront the lack of counsel sua sponte in order to ensure that she was
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not punished for her attorney’s absence. For the following reasons, no relief
is due.
Our standard of review regarding orders terminating parental rights is
well ensconced. Above all, we review the orphans’ court’s determination for
an abuse of discretion or an error of law. In re A.R., 2015 WL 5712204, *2;
2015 PA Super 207 (“Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court's decision, the decree must
stand.”). While we pay great deference to the orphans’ court’s findings of
fact and matters of weight and credibility, to the extent that the issue
regarding Mother’s right to counsel raises a question of law, we exercise
plenary review. See In re Adoption of G.K.T., 75 A.3d 521, 525
(Pa.Super. 2013) (“to the extent Father's issues on appeal [regarding the
appointment of counsel for Child] raise pure questions of law, our standard
of review is de novo and our scope of review is plenary.”).
Pennsylvania jurisprudence establishes that an indigent parent who is
a respondent in an involuntary termination proceeding is entitled to be
advised of the right to counsel and to the appointment of counsel in order to
exercise that right. In re Adoption of R.I., 312 A.2d 601 (Pa. 1973).
Moreover, the right to counsel cannot be waived unless the waiver is
knowing, voluntary, and intelligent. Id. at 603. The Adoption Act accounts
for an indigent parent’s right to counsel during proceedings for the
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involuntary termination of parental rights. Section 2313 provides in
pertinent part as follows:
(a.1) Parent.--The court shall appoint counsel for a parent whose
rights are subject to termination in an involuntary termination
proceeding if, upon petition of the parent, the court determines
that the parent is unable to pay for counsel or if payment would
result in substantial financial hardship.
While § 2313 relates specifically to the appointment of counsel for indigent
respondents, this Court has implicitly recognized that the right to counsel
extends to all parents whose parental rights are subject to termination
regardless of means. See, e.g., In the Interest of X.J., 105 A.3d 1(Pa.Super. 2014) (“the orphans' court shall advise Mother of her counsel
rights, appoint counsel for Mother, or affirmatively determine that Mother
does not qualify for [appointed] counsel.”). Likewise, § 2313 does not
restrict the right to counsel to instances where the state agency is the
petitioning party, and while conceptually defensible, our independent search
did not disclose any case law that precludes the respondent to a private
petition from exercising his or her right to counsel.
In In the Interest of X.J., supra, we vacated the orphans’ court
decree terminating a mother’s parental rights in absentia because, inter alia,
the orphans’ court failed to provide the mother proper notice of either the
termination proceedings or her right to counsel pursuant to § 2313. The
trial court in that case mistakenly believed that the mother was represented
by the attorney who represented the mother during the related dependency
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proceeding. However, that attorney had been permitted to withdraw and
the orphans’ court did not appoint new counsel in the termination
proceedings. We observed, “Mother was neither advised of her right to
counsel in the termination proceedings, nor afforded legal representation at
any time in the termination proceedings in orphans' court.” Id. at 5.
Moreover, “The orphans’ court conducted its termination hearing on March
17, 2014[, and] Mother was not present or represented by an attorney at
this hearing.” Id.
In reaching our decision in that case, we adopted the rationale
espoused in Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.Super.
2011), where we stated in relation to the denial of counsel in PCRA
proceedings, if a party “was denied [her] right to counsel—or failed to
properly waive that right—this Court is required to raise this error sua
sponte and remand for the PCRA court to correct that mistake.” We stated
in In the Interest of X.J., “In light of the statutory and constitutional right
at stake, we conclude the principle enunciated in Stossel is appropriate in
termination of parental rights cases.” In the Interest of X.J., supra at 4.
In light of the foregoing principle, and mindful of the orphans’ court’s failure
in that case to serve notice of the termination proceeding, advise the mother
of her right to counsel, or investigate whether counsel should be appointed,
we vacated the termination decree. We ordered a new termination hearing
and directed the orphans’ court to advise the mother of her right to counsel
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and either appoint counsel to represent her or determine that she does not
qualify for appointed counsel.
Conversely, in In re A.R., supra, we recently confronted a similar
issue and determined that reversal was not warranted under the facts
therein. Significantly, the father whose parental rights were terminated in
that case arrived at the involuntary termination hearing without
representation and requested a continuance so that he could obtain counsel
for the involuntary termination proceedings. The orphans’ court denied the
request, proceeded with the hearing, and ultimately terminated the father’s
parental rights. On appeal, the father argued that the orphans’ court erred
in failing to advise him of his right to counsel and by proceeding with the
termination hearing despite his request for a continuance to allow him time
to obtain counsel.
In rejecting the father’s argument, we concluded that he had been
served with notice of the hearing on the petition to involuntarily terminate
his parental rights, which advised him of his right to be represented by an
attorney and informed him how to obtain an attorney if he could not afford
one. Moreover, the orphans’ court observed that the father, in fact, had
been previously assigned counsel, who withdrew from representation after
the father made it clear that he did not intend to work with counsel or
participate in the prior juvenile court proceedings. Thus, we reasoned that,
since the father had proper notice of the hearing and had been informed of
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both the right to counsel and how to obtain representation prior to the
hearing, the orphans’ court’s decision to deny the motion for a continuance
and its decision to require Father to participate in the hearing pro se was not
tantamount to an abuse of discretion. Accordingly, we affirmed the decree
terminating the father’s parental rights.
While not identical to either case, the facts of the instant matter align
closer to the facts of In re A.R., supra, than the confusion confronting the
court in In the Interest of X.J., supra. Consistent with the father in In re
A.R., supra, and in contrast to the mother in In the Interest of X.J.,
whose parental rights were terminated in absentia following the court’s
faulty service of the notice of the involuntary termination hearing and the
trial court’s confusion as to her representation, Mother in the case at bar
received notice of the rescheduled hearing, had been informed of her right to
counsel, and actually participated in the hearing. In addition, the orphans’
court never demonstrated any confusion as to the status of Mother’s legal
representation in the involuntary termination proceedings. The orphans’
court was aware that Mother had retained private counsel to represent her
and that counsel filed multiple pleadings and documents on her behalf,
including a prior written request for a continuance, which the trial court
granted. Thus, congruent with our reasoning in In re A.R., supra, we find
that the certified record supports the orphans’ court’s decision to allow the
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proceeding to progress in the absence of Mother’s privately retained counsel
even though she never waived her right to counsel.6
Mother’s third contention is that the trial court abused its discretion in
failing to grant Mother’s request for a continuance. She argues that the
orphans’ court’s reasons for denying the request, i.e., that there was no
breakdown in the machinery of the court and that Mother did not make a
timely request for a continuance, were insufficient to support the court’s
determination. She further posits that, consistent with our reasoning in
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6
In her brief, Mother makes the passing complaint that “the failure of
mother’s counsel to appear at the hearing without proper notification is per
se ineffective assistance of counsel. The law is clear that the right to
assistance of counsel is the right to effective assistance of counsel.”
Mother’s brief at 15. However, since Mother failed to either develop her
argument that counsel’s absence was tantamount to ineffectiveness per se
or cite to relevant legal authority that would support her bare assertion of
intrinsic ineffectiveness, we do not address it. In re W.H., 25 A.3d 330,
339 n.3 (Pa.Super. 2011) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).
Additionally, we observe that Mother’s assertion is inaccurate.
Generally, the appropriate standard for reviewing an ineffective assistance of
counsel claim in the context of an involuntary termination case is
“fundamental fairness,” i.e., whether the affected party received a fair
hearing in light of the totality of the circumstances. See In re Adoption of
T.M.F., 573 A.2d 1035, 1044 (Pa.Super. 1990) (en banc) (plurality). Stated
another way, “the appellant must show by clear and convincing evidence
that it is more likely than not that the result would have been different,
absent the ineffectiveness.” In the Interest of K.D, 871 A.2d 823, 829
(Pa.Super. 2005). For the reasons we discuss in the body of this
memorandum, Mother failed to satisfy the appropriate burden of proof.
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Stossel, supra, the orphans’ court should have continued the proceedings
sua sponte so that Mother could exercise her right to counsel. For the
following reasons, we disagree.
This Court reviews a trial court’s decision to grant or deny a
continuance for an abuse of discretion. Baysmore v. Brownstein, 771
A.2d 54, 57 (Pa.Super. 2001). “An abuse of discretion is more than just an
error in judgment and, on appeal, the trial court will not be found to have
abused its discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the results of partiality, prejudice, bias or
ill-will.” Id. Matters of a continuance are not specifically addressed in the
Orphans’ Court Rules. Thus, we review Mother’s claim in light of the rule
delineated in Pa.R.C.P. 216, which provides as follows:
Rule 216. Grounds for Continuance
(A) The following are grounds for a continuance:
(1) Agreement of all parties or their attorneys, if approved by
the Court;
(2) Illness of counsel of record, a material witness, or a
party. If requested a certificate of a physician shall be
furnished, stating that such illness will probably be of
sufficient duration to prevent the ill person from participating
in the trial;
(3) Inability to subpoena or to take testimony by deposition,
commission, or letters rogatory, of any material witness,
shown by affidavit which shall state:
(a) The facts to which the witness would testify if present
or if deposed;
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(b) The grounds for believing that the absent witness
would so testify;
(c) The efforts made to procure the attendance or
deposition of such absent witness; and
(d) The reasons for believing that the witness will attend
the trial at a subsequent date, or that the deposition of the
witness can and will be obtained;
(4) Such special ground as may be allowed in the discretion
of the court;
(5) The scheduling of counsel to appear at any proceeding
under the Pennsylvania Rules of Disciplinary Enforcement,
whether:
(a) as counsel for a respondent-attorney before a hearing
committee, special master, the Disciplinary Board or the
Supreme Court;
(b) as a special master or member of a hearing
committee; or
(c) as a member of the Disciplinary Board;
(6) The scheduling of counsel to appear at any proceeding
involving the discipline of a justice, judge or magisterial
district judge under Section 18 of Article V of the Constitution
of Pennsylvania, whether:
(a) as counsel for a justice, judge, or magisterial district
judge before the special tribunal provided for in 42 Pa.C.S.
§ 727, the Court of Judicial Discipline, the Judicial Conduct
Board or any hearing committee or other arm of the
Judicial Conduct Board; or
(b) as a member of the Court of Judicial Discipline, the
Judicial Conduct Board or any hearing committee or other
arm of the Judicial Conduct Board.
Pa.R.C.P. 216.
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Herein, there was no agreement between the parties, illness, discovery
issue, or applicable scheduling conflict. Thus, the only potential ground for
Mother’s request for a continuance in this case was under Rule 216(A)(4),
which provides “Such special ground as may be allowed in the discretion of
the court[.]” Instantly, our review of the record does not reveal that the
orphans’ court abused its discretion in denying Mother’s ill-timed, oral
motion for a continuance.
Stated simply, Mother failed to demonstrate the required special
ground for relief in light of the circumstances of this case. As we discussed
supra in addressing Mother’s ability to exercise her right to counsel, the facts
of this case correlate with our recent discussion in In re A.R., supra, rather
than Stossel, supra or In the Interest of X.J., supra. Mother had notice
of the rescheduled hearing, as demonstrated by her telephone contact with
counsel and the orphans’ court administrator, and counsel’s confusion was
not caused by a breakdown in the court’s machinery. In addition to those
considerations, the following circumstances also support the court’s decision:
(1) the orphans’ court had granted two prior continuances, which resulted in
a two-month delay in addressing the adoption petition, and there had been
no additional requests for a continuance prior to the scheduled date; (2) the
orphans’ court inquired as to the reasons for counsel’s absence and delayed
the proceeding for more than one hour in anticipation of Mother’s arrival; (3)
although Mother’s counsel had transmitted a message to the court that she,
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rather than the court, was at fault, she neglected to explain her error,
request a continuance, or advise the court if or when she expected to appear
for the hearing; (4) Mother had three witnesses who were present and ready
to testify on her behalf; and finally, (5) Father and the guardian ad litem
both leveled objections to the continuance on the bases that Mother had
notice of the hearing and did not proffer any reason to further delay the
termination proceedings other than her counsel’s unexplained absence. All
of these factors militate against a finding that the orphans’ court abused its
discretion in declining to apply the special grounds provision or that its
decision to deny Mother’s request for a continuance was the result of
partiality, prejudice, bias, or ill-will. Accordingly, we will not disturb that
decision.
Finally, although Mother does not specifically challenge the merits of
the orphans’ court’s decision to involuntarily terminate her parental rights
pursuant to 23 Pa.C.S. § 2511(a) and (b), to the extent that Mother’s
transient reference to counsel’s ineffectiveness implicates the fairness of the
termination proceedings, we address the orphans’ court’s determination
briefly and for the reasons that follow find that it does not violate the
fairness paradigm that we articulated in In re Adoption of T.M.F., 573
A.2d 1035, 1044 (Pa.Super. 1990) (en banc) (plurality); and In the
Interest of K.D, 871 A.2d 823, 829 (Pa.Super. 2005) (“The appellant must
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show by clear and convincing evidence that it is more likely than not that the
result would have been different, absent the ineffectiveness.”).
Requests to involuntarily terminate a biological parent’s parental rights
are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as
follows:
(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused to
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.
....
(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.
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23 Pa.C.S. § 2511.
We need only agree with the orphans’ court’s decision as to one
subsection of 23 Pa.C.S. § 2511(a) in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). Herein, we agree with the orphans’ court’s decision to terminate
Mother’s parental rights pursuant to subsections 2511(a)(1) and (b).
As it relates to § 2511(a)(1), the pertinent inquiry for our review
follows:
To satisfy Section 2511(a)(1), the moving party must produce
clear and convincing evidence of conduct sustained for at least
the six months prior to the filing of the termination petition,
which reveals a settled intent to relinquish parental claim to a
child or a refusal or failure to perform parental duties. . . .
Section 2511 does not require that the parent demonstrate both
a settled purpose of relinquishing parental claim to a child and
refusal or failure to perform parental duties. Accordingly,
parental rights may be terminated pursuant to Section
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal
citations omitted). Although the six months immediately preceding the filing
of the petition are the most critical to the analysis, the orphans’ court must
consider the whole history of a given case and not mechanically apply the
six-month statutory provision. In re B.,N.M., 856 A.2d 847 (Pa.Super.
2004). Additionally, to the extent that the orphans’ court based its decision
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to terminate parental rights pursuant to subsection (a)(1), “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.” In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003),
we explained, “A parent is required to exert a sincere and genuine effort to
maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise
‘reasonable firmness’ in resisting obstacles placed in the path of maintaining
the parent-child relationship.”
Presently, the evidence in the certified record sustains the orphans’
court’s decision to terminate Mother’s parental rights pursuant to §
2511(a)(1). Stated plainly, Mother’s extensive history of drug abuse and
incarceration for drug-related offenses and theft crimes has prevented her
from performing parental duties for her daughters since January 2011. She
had not had any physical contact with the children since October 2012, one
and one-half years prior to the evidentiary hearing, and no telephone
contact. Mother has missed all but the girls’ first birthday, and she failed to
send the children letters, card, or gifts.
Mother has been content to allow Father and J.W. to tend to her
daughters’ physical and emotional needs. Mother neglected to exert a
sincere and genuine effort to maintain a parent-child relationship with the
children while she was incarcerated or reasonable firmness to overcome the
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obstacles that she alleges that Father placed in her path. For example,
despite Mother’s complaints that Father would not let her interact with the
children, she failed to initiate any custody proceedings or seek any other
means to overcome the alleged barriers.
The record also demonstrates that Mother chose drug use and petty
crimes over her now six-year-old daughters’ wellbeing. She has spent the
majority of her daughters’ lives in jail and rehabilitation. Indeed, during the
three-year period between January 2011 and January 2014, Mother was
either incarcerated or in rehabilitation for twenty-nine months, and as noted,
when Mother was either paroled or on probation, she did not use sincere and
genuine effort to contact the children. Although she could maintain sobriety
during her periods of incarceration and intensive treatment, once she was
released from confinement or supervision, she would relapse and return to
her destructive drug use.
In sum, Mother neglected to demonstrate any interest in maintaining a
relationship with her daughters. She failed to provide any explanation for
her absence from their life during the periods that she was not incarcerated.
Moreover, B.E.Z. and A.M.Z. have absolutely no relationship with Mother.
Instead, the children enjoy all of the qualities of a healthy and beneficial
relationships with Father, J.Z., and M.L. The children identify J.Z. as their
mother and M.L. as their older sister. In contrast, since 2011, Mother has
had minimal contact with the children and failed to maintain any bond with
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them. They no longer recognize Mother as a nurturing parent. Hence, the
certified record sustains the orphans’ court’s determination under § 2511(a)
and its need-and-welfare analysis pursuant to 2511(b). In light of the
insurmountable evidence of Mother’s failure to perform her parental duties
for more than six months preceding the termination petition, her failure to
exert a sincere effort to maintain the parent-child relationships or use
reasonable firmness to overcome the real and imagined obstacles, and the
utter lack of any bond with her daughters, we find that Mother is unable to
prove by clear and convincing evidence that is more likely than not that the
results would have been different if counsel had been present for the entire
hearing.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
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