In the Int. of: C.L.Z., a Minor ( 2022 )

J-A22007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.L.Z, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.A.S., MOTHER :
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: No. 650 MDA 2021
Appeal from the Decree Entered May 3, 2021
In the Court of Common Pleas of Lancaster County Orphans’ Court at
No(s): 1888 of 2020
IN THE INTEREST OF: M.J.Z., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.A.S., MOTHER :
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: No. 651 MDA 2021
Appeal from the Decree Entered May 3, 2021
In the Court of Common Pleas of Lancaster County Orphans’ Court at
No(s): 1889 of 2020
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: JANUARY 3, 2022
S.A.S. (“Mother”) appeals from the decree entered on May 3, 2021,
which terminated her parental rights to her children, C.L.Z., a female born in
September 2013, and M.J.Z., Jr., a male born in November 2015. We affirm.1
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1 The orphans’ court also terminated the parental rights of the birth father,
M.J.Z., Sr., whose appeal is docketed at 678 and 679 MDA 2021. We address
that appeal in a separate memorandum.
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We glean the facts and procedural history of this case from the certified
record. In October 2018, the Lancaster County Children and Youth Social
Service Agency (“the Agency”) obtained custody of C.L.Z. and M.J.Z., Jr., and
placed them in foster care. N.T., 4/12/21, at 18. The Agency obtained
custody because M.J.Z., Sr. (“Father”), sexually abused Mother’s older
daughter, who is not involved in this appeal, and Mother denied the abuse
occurred.2 Id. at 11, 51-52. In addition, there was an incident of domestic
violence in August 2018, during which both Mother and Father were
intoxicated. N.T., 10/26/18, at 15-16. Subsequent drug screens revealed
that Mother and Father used marijuana, and the Agency was concerned that
Mother had untreated mental health problems. Id. at 9-11; N.T., 4/12/21, at
18, 29.
On November 29, 2018, the juvenile court adjudicated C.L.Z. and
M.J.Z., Jr., dependent. The primary permanency goal for the children was to
return to the parents, with a concurrent permanency goal of adoption. The
Agency prepared goals to assist Mother in achieving reunification with the
children. Those goals included addressing her mental health, substance
abuse, and domestic violence problems, as well as understanding sexual
victimization. N.T., 4/12/21, at 5-6. The record demonstrates that Mother
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2It appears that Father was originally alleged to have sexually abused two of
Mother’s older daughters. N.T., 5/26/2018, at 5-8. Later testimony suggests
he pled guilty to charges relating to sexual abuse of one daughter and not the
other. See N.T., 4/12/21, at 11, 22 (the Agency caseworker describing Father
as “a man that already victimized one of [Mother’s] children.”).
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failed to attain her goals. Id. at 5-6, 10-11, 17. Moreover, she lacked stable
housing and relied on her sister and ex-husband for a place to stay. Id. at
13, 43-44.
On October 2, 2020, the Agency filed a petition to terminate Mother’s
parental rights to C.L.Z. and M.J.Z., Jr., pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). During the ensuing evidentiary hearing, the orphans’
court heard testimony from Zionne West, the Agency’s caseworker, S.C., the
foster father of C.L.Z. and M.J.Z., Jr., Father, and Mother.3 On May 3, 2021,
the orphans’ court entered a decree terminating Mother’s parental rights to
C.L.Z. and M.J.Z., Jr. Mother timely filed separate notices of appeal along
with concise statements of errors complained of on appeal.4
Mother raises the following claims for our review:
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3 Kathleen E. Holmes, Esquire, identified in the record as the guardian ad litem
(“GAL”), represented the legal interest and best interests of both children
during the termination hearing. The GAL expressed support for the
termination of Mother’s parental rights as that result was consistent with the
children’s “desire . . . to continue to live at their resource home forever.” N.T.,
4/12/21, at 68-69. The orphans’ court did not find a conflict between the
children’s legal interest and best interests.
4 The orphans’ court incorporated the juvenile court records from the
dependency proceedings of C.L.Z. and M.J.Z., Jr., into the termination
proceedings. N.T., 3/15/21, at 2-3; N.T., 4/12/21, at 4. As the juvenile court
records did not appear in the certified record transmitted to this Court, we
entered per curiam orders on November 15, 2021, directing the clerk of courts
to transmit the juvenile court records for our review. We received a
supplemental record on November 18, 2021. While the supplemental record
we received is incomplete, we are confident that the certified record on appeal
is sufficient to conduct appellate review, and we do not wish to further delay
resolution of this Children’s Fast Track appeal.
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I. Did the [orphans’ c]ourt err and abuse its discretion in
terminating the rights of . . . Mother, as termination of Mother’s
rights is not in the best interests of the child and will not promote
the physical, mental, or emotional well-being of the child, as the
interaction between Mother and the child during visits
demonstrated that a bond exists between the Appellant Mother
and the child, and the reasons for the termination of Mother’s
parental rights were due to environmental factors?
II. Did the [orphans’ c]ourt err in finding that the Agency proved
by a clear and convincing standard that Mother demonstrated a
settled purpose to relinquish her parental rights to the child or
refused or failed to perform parental duties for the six . . . month
period prior to filing of the petition for termination of parental
rights?
III. Did the [orphans’ c]ourt err in finding that the Agency proved
by a clear and convincing standard that the conditions and causes
of the incapacity, abuse, neglect or refusal cannot or will not be
remedied by Mother and that Mother’s parental rights should be
terminated under [§] 2511(a)(2)? . . .
IV. Did the [orphans’ c]ourt err in finding that the Agency proved
by a clear and convincing standard that the conditions and causes
of the placement of the child cannot or will not be remedied by
Mother, that termination would serve the best needs and welfare
of the child, and that Mother’s parental rights should be
terminated under [§] 2511(a)(5)?
V. Did the [orphans’ c]ourt err in finding that the Agency proved
by a clear and convincing standard that the conditions and causes
of the placement of the child still exist, that termination would
serve the best needs and welfare of the child, and that Mother’s
parental rights should be terminated under [§] 2511(a)(8)?
Mother’s brief at 8-9.5
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5 Mother listed six issues in her statement of questions involved. We omitted
the final issue because Mother’s brief states her intention to withdraw it. See
Mother’s brief at 9, 33.
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Our standard of review requires us to accept the findings of fact and
credibility determinations of the orphans’ court if the record supports them.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). If the record supports the court’s
findings, we must determine whether the court committed an error of law or
abused its discretion. Id. An abuse of discretion does not occur merely
because the record could support a different result. Id. We may find an
abuse of discretion “‘only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.’” Id.Pennsylvania’s Adoption Act governs involuntary termination of parental
rights proceedings. See 23 Pa.C.S. § 2101-2938. It provides for a bifurcated
analysis, in which the orphans’ court focuses initially on the parent’s conduct
pursuant to § 2511(a). In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). If
the court finds that the party seeking termination has established statutory
grounds pursuant to § 2511(a), it must then turn its attention to § 2511(b),
which focuses on the child’s needs and welfare. Id. A critical aspect of §
2511(b) is discerning whether the child has an emotional bond with his or her
parent and what effect severing that bond may have on the child. Id. The
party seeking termination bears the burden of proof under both § 2511(a) and
(b) by clear and convincing evidence. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006)).
As noted, the orphans’ court terminated Mother’s parental rights to
C.L.Z. and M.J.Z., Jr., pursuant to § 2511(a)(1), (2), (5), (8), and (b). We
need only agree with the court as to any one subsection of § 2511(a), in
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addition to § 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). We analyze the
court’s decision pursuant to § 2511(a)(2) and (b), which provide 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:
....
(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.
23 Pa.C.S. § 2511(a)(2), (b).
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We begin by considering whether the orphans’ court erred or abused its
discretion in terminating Mother’s parental rights pursuant to § 2511(a)(2).6
To satisfy the requirements of § 2511(a)(2), the party requesting termination
must prove that (1) the parent has exhibited repeated and continued
incapacity, abuse, neglect, or refusal, (2) the incapacity, abuse, neglect, or
refusal has caused the child to be without essential parental care, control, or
subsistence, and (3) the parent cannot or will not remedy the causes of the
incapacity, abuse, neglect, or refusal. In the Interest of D.R.-W., 227 A.3d
905, 912 (Pa.Super. 2020) (quoting In re Adoption of M.E.P., 825 A.2d
1266, 1272 (Pa.Super. 2003)). Importantly, § 2511(a)(2) does not apply
solely to affirmative misconduct but also permits termination based on a
parent’s incapacity. In re S.C., 247 A.3d 1097, 1104 (Pa.Super. 2021).
Mother challenges the decision of the orphans’ court as to § 2511(a)(2)
only briefly, asserting that her life became “uprooted” when this case began,
and that she faced obstacles as she worked to achieve reunification. Mother’s
brief at 27. She requests additional time to restart mental health treatment,
obtain housing, and maintain employment. She contends that her request is
“reasonable and doable and will eliminate any concerns as to the conditions
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6 Mother’s counsel seemingly conceded that the Agency met its burden under
§ 2511(a) in his closing argument and asserted that the bond Mother shared
with her children should preclude termination of her parental rights pursuant
to § 2511(b). N.T., 4/12/21, at 70-71. However, since Mother challenges
§ 2511(a) in her concise statements and brief, we address the merits of the
current contention.
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that led to the placement of her children.” Id. Relatedly, Mother maintains
as part of her § 2511(b) argument that the court violated the Adoption Act by
terminating her rights based on environmental factors, such as “marginal
income, difficulty in obtaining housing, and expensive health care coverage.”
Id. at 22. She relies on the portion of § 2511(b) providing that courts shall
not terminate “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.” Id.; 23 Pa.C.S. § 2511(b).
The orphans’ court concluded that Mother was incapable of parenting
C.L.Z. and M.J.Z., Jr., because she lacked income and appropriate housing, in
addition to necessary parenting education. Orphans’ Court Opinion, 6/9/21,
at 15. The court noted that it did “not bode well” that, after C.L.Z. and M.J.Z.,
Jr., had remained in foster care for an extended period, “Mother quit her job,
is living with her ex-husband in Philadelphia, and is not addressing her severe
mental health issues.” Id. The court rejected Mother’s request for additional
time, expressing skepticism that she would do anything other than “continue
to make excuses” for her failure to comply with her goals. Id.
As explained supra, C.L.Z. and M.J.Z., Jr., entered foster care in October
2018 because of Father’s sexual abuse of Mother’s older daughter, Mother’s
need for mental health treatment, substance abuse, and problems with
domestic violence. N.T., 5/26/2018, at 9-11, 15-16; N.T., 4/12/21, at 11,
18, 29, 51-52. The Agency prepared goals to assist Mother in reunifying with
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C.L.Z. and M.J.Z., Jr., but Mother failed to achieve those goals or make
satisfactory progress toward reunification. N.T., 4/12/21, at 5-6. By the time
of the termination hearing on April 12, 2021, C.L.Z. and M.J.Z., Jr., had
remained in foster care for approximately thirty months.
Zionne West, who has been assigned to the family since August 2020,
testified that Mother was not engaged in mental health or substance abuse
treatment at the time of the hearing and had not addressed the Agency’s
mental health or substance abuse concerns. Id. at 5-6. Further, Mother had
not completed services for domestic violence. Id. at 17. Ms. West reported
that Mother alternated between living in Lancaster County and Philadelphia
“several times” during this case before finally residing in Philadelphia. Id. at
10. While Mother participated in a mental health evaluation and treatment in
Lancaster County, she stopped participating in those services after settling in
Philadelphia. Id. at 5-6, 10, 13, 17-18.
Similarly, although Mother also joined a non-offending parent program
in Lancaster County, she was dismissed from the program and asked to
address her mental health needs before returning. Id. at 10-11. The program
was concerned with Mother’s “mental health stability,” as she was “incredibly
emotional and just wasn’t able to focus and receive the information as it was
being delivered.” Id. at 11. As to why the Agency believed a non-offending
parent program was necessary, Ms. West explained that Mother did not
initially believe that Father abused her older daughter and appeared to
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maintain contact with Father after his incarceration. Id. at 11, 21-22. While
Ms. West was not aware of Mother having any further contact with Father at
the time of the hearing, she expressed concern over Mother’s continued doubt
about the sexual abuse, noting that Mother still did not “fully seem to
acknowledge and accept the allegations and how they occurred[.]” Id. at 11-
13.
In addition to discussing Mother’s noncompliance with services, Ms.
West testified that Mother lacked stable housing and employment. Although
Mother ultimately settled in Philadelphia, Ms. West explained that Mother did
not have her own residence and was “back and forth between her ex-
husband’s mother’s home as well as her sister’s home[.]” Id. at 10, 13.
Further, while Ms. West noted Mother had been employed periodically
throughout the case, Mother testified that she quit her most recent job “last
month.” Id. at 9, 44-45. Mother stated that she initially provided two-week
notice, but abruptly quit due to a dispute with her manager. Id. at 44-45.
Thus, while Mother proposes that she would be able to comply with her
reunification goals if given additional time, the record demonstrates that she
has had ample time to comply already and failed to do so. After approximately
thirty months of making little, if any, progress, it was well within the discretion
of the orphans’ court to reject Mother’s request as disingenuous. See In re
S.C., supra at 1105 (quoting In re Z.P., 994 A.2d 1108, 1118 (Pa.Super.
2010) (“A parent’s vow to cooperate, after a long period of uncooperativeness
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regarding the necessity or availability of services, may properly be rejected as
untimely or disingenuous.”).
The record also belies Mother’s claim that the orphans’ court terminated
her parental rights based upon impermissible environmental factors. As
quoted above, § 2511(b) directs that courts may not terminate parental rights
“solely on the basis of environmental factors . . . if found to be beyond the
control of the parent.” 23 Pa.C.S. § 2511(b) (emphasis added). Mother
suggests the court terminated her parental rights based solely on
environmental factors because it emphasized her lack of housing and
employment, and because other factors present in the case that were not
overtly “environmental,” such as her failure to obtain mental health treatment,
resulted from her lack of health insurance, which was “environmental.” See
Mother’s brief at 22. Accepting Mother’s characterization of the proposed
environmental factors as true, it remains evident from the certified record that
the court did not believe Mother’s limitations were beyond her control.
Instead, the court determined that Mother was merely “mak[ing] excuses” for
her noncompliance. Orphans’ Court Opinion, 6/9/21, at 15.
Significantly, Ms. West testified the Agency made repeated attempts to
assist Mother in obtaining health insurance and provided her a list of service
providers that offered “sliding scale fees[.]” Id. at 7-8. Mother failed to utilize
these opportunities and stated to Ms. West that she “just doesn’t have the
time . . . or she just hasn’t remembered to submit the application.” Id. at 9.
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Mother testified that she had been receiving insurance through a public
assistance program but then lost the insurance because “they found out that
I was working[.]” Id. at 46-47. Mother also testified, notably, that she could
have obtained insurance through one or more of her previous employers if she
had stayed on the job more than a year. Id. at 49. She apparently never
achieved that benchmark. Even more telling, Mother acknowledged that she
received information regarding service providers offering sliding scale fees but
conceded, “with all the chaos I was overwhelmed with everything that was
going on, and honestly, I just didn’t get it done. I mean, I have no excuse for
that.” Id. at 48.
Based on the forgoing evidence, we conclude that the record supports
the determination that Mother’s incapacity, abuse, neglect, or refusal has
deprived C.L.Z. and M.J.Z., Jr., of essential parental care, control or
subsistence, and that Mother cannot or will not remedy the conditions and
causes of her incapacity, abuse, neglect, or refusal. Thus, we discern no abuse
of discretion or error of law in the orphans’ court’s decision to terminate
Mother’s parental rights to C.L.Z. and M.J.Z., Jr., pursuant to § 2511(a)(2).
We next consider whether the orphans’ court committed an error of law
or abuse of its discretion pursuant to § 2511(b), which Mother raises in her
first claim. As explained above, § 2511(b) focuses on the needs and welfare
of the child, which includes an analysis of any emotional bond the child may
have with his or her parent and the effect severing the bond may have on the
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child. L.M., supra at 511. The fundamental questions when conducting this
analysis are whether the bond is necessary and beneficial and whether
severing it will cause the child extreme emotional consequences. In re
Adoption of J.N.M., 177 A.3d 937, 944 (Pa.Super. 2018), appeal denied,
183 A.3d 979 (Pa. 2018) (quoting In re E.M., 620 A.2d 481, 484–85 (Pa.
1993)). It is important to recognize that the existence of a bond, while
significant, is only one of many factors that courts should consider when
addressing § 2511(b). In re Adoption of C.D.R., 111 A.3d 1212, 1219
(Pa.Super. 2015) (quoting In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)).
Other factors include “the safety needs of the child, and . . . the intangibles,
such as the love, comfort, security, and stability the child might have with the
foster parent.” Id.Mother contends that she shares a “vital” bond with C.L.Z. and M.J.Z.,
Jr., and directs this Court’s attention to her own testimony during the hearing,
as well as that of Ms. West. Mother’s brief at 20-21. Mother maintains that
the orphans’ court decided to terminate parental rights despite the existence
of this bond due in large part to its finding that she would not be able to bring
C.L.Z. and M.J.Z., Jr., to their various therapy appointments. Id. at 20-21.
She contends this finding lacks support in the record because “[n]owhere . . .
is there an account as to which of these services require transportation by
parents, resource or otherwise, and which services are directly supplied by
the school.” Id. at 21-22.
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The orphans’ court found Mother’s testimony credible and concluded
that she had a loving bond with C.L.Z. and M.J.Z., Jr. Orphans’ Court Opinion,
6/9/21, at 18. Nonetheless, the court reasoned that Mother was incapable of
providing C.L.Z. and M.J.Z., Jr., with the necessary permanence and stability
that the analysis also requires. Id. at 18-19. The court noted that C.L.Z. and
M.J.Z., Jr., receive therapy and expressed skepticism that Mother could attend
to her children’s needs if she could not address her own mental health. Id.
at 18. Specifically, the court observed that C.L.Z. and M.J.Z., Jr., “each
receive multiple types of therapy . . . [and] . . . Mother has not demonstrated
the responsibility or capability to personally maintain [their] various
appointments when she cannot care for her own mental health.” Id. The
court further found C.L.Z. and M.J.Z., Jr., had spent “nearly half of their lives”
in their foster home7 and shared a bond with the foster parents. Id. In
reaching this conclusion, it relied on the representations of Attorney Holmes,
the GAL, who expressed support for termination and reported the desires of
both C.L.Z. and M.J.Z., Jr., to live permanently with the foster parents, who
they call “Mommy Bec” and “Daddy Shawn.” Id.For the following reasons, we conclude that the orphans’ court did not
abuse its discretion or commit an error of law. First, although the record
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7At the time of the hearing on April 12, 2021, C.L.Z. was just over seven-
and-a-half years old, and M.J.Z., Jr., was just under five-and-a-half years old.
They had lived in their foster home since December 2018, for a total of two
years and four months. N.T., 4/12/21, at 16, 31.
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supports the court’s finding that Mother shares a loving bond with C.L.Z. and
M.J.Z., Jr., Ms. West reported that Mother missed two recent visitations and
appeared distracted during phone calls with C.L.Z. and M.J.Z., Jr., and prior
virtual visitations. N.T., 4/12/21, at 12, 19-20. Furthermore, as noted supra,
Mother’s affection for her daughters did not preclude the orphans’ court from
terminating her parental rights. It was within the court’s discretion to weigh
the existence of the parent-child bond against other factors, including
Mother’s inability to provide C.L.Z. and M.J.Z., Jr., the permanence and
stability they require, and the extensive time C.L.Z. and M.J.Z., Jr., have
remained in their foster home. See C.D.R., supra at 1220 (affirming
termination of the mother’s parental rights despite the existence of a bond
with her child and observing, “[c]learly, it would not be in [the c]hild’s best
interest for his life to remain on hold indefinitely in hopes that [the m]other
will one day be able to act as his parent.”).
Moreover, Mother misinterprets the concern that the orphans’ court
expressed regarding her inability to address the needs of C.L.Z. and M.J.Z.,
Jr., if they returned to her care. Contrary to Mother’s argument, the court did
not base its determination upon Mother’s lack of transportation to take the
children to therapy appointments, but rather, the Court was troubled by
Mother’s lack of motivation or capacity to ensure that the children received
the required care. Indeed, in the approximately thirty months since C.L.Z.
and M.J.Z., Jr. entered foster care, Mother had made little effort to address
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her own mental health problems. Given that Mother had neglected her own
needs for so long, it was reasonable for the court to infer that she would also
neglect the needs of C.L.Z. and M.J.Z., Jr. As the certified record supports
this inference, no basis exists to disturb the court’s finding that termination of
Mother’s parental rights would best serve the developmental, physical, and
emotional needs and welfare of C.L.Z. and M.J.Z., Jr.
For all the foregoing reasons, the orphans’ court did not abuse its
discretion or commit legal error by terminating Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/03/2022
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