In the Adoption of: Z.J.C.-Z., Appeal of: D.M.L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: Z.J.C.-.Z. : PENNSYLVANIA
:
:
APPEAL OF: D.M.L., MOTHER :
:
:
:
: No. 823 WDA 2022
Appeal from the Decree Entered June 20, 2022,
in the Court of Common Pleas of Erie County,
Orphans' Court at No(s): 22 in Adoption 2022.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 8, 2023
In this matter, D.M.L. (Mother) appeals the decree terminating her
parental rights to her six-year-old daughter Z.J.C.-Z., pursuant to the
Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
Additionally, Mother’s counsel has filed an application to withdraw and a brief,
pursuant to Anders v. California, 386 U.S. 738 (1967). After review, we
affirm, and grant counsel leave to withdraw.1
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the orphans’ court set
forth the relevant factual and procedural history:
Child was adjudicated dependent on April 9, 2021 after a
hearing conducted on April 6, 2021. Mother was not
present. Father was present and represented by counsel.
Mother has a history of unstable housing, [homelessness],
drug use and poor employment history. She left the Child
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1 The trial court also terminated the rights of I. C.-Z. (Father).
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in care of her maternal uncle for lengthy periods of time and
did not provide necessary care items. She was on probation
and had not had recent contract with her probation officer.
Critically, Mother had not attended to the Child’s medical
and dental needs. Child had extensive tooth decay that
caused her pain, a vaginal rash and complained of pain upon
urination. Once in placement, Child was treated for urinary
tract infection(s).
In additional to being on probation, Mother had pending
criminal charges. Notably, she pleaded guilty to one charge
of 26 Pa.C.S.A. s. 780-113(a)(30) on January 10, 2022 and
was sentenced to 18-36 months incarceration with 2 years
consecutive probation. She is currently confined to SCI
Cambridge Springs, PA.
From the beginning of this case, Mother was required to take
necessary steps to effectuate reunification with Child. She
was to: (1) participate in random urinalysis screens; (2)
obtain and maintain safe and stable housing; (3) participate
in drug and alcohol assessment and follow
recommendations; (4) participate in a mental health
assessment and follow recommendations; (5) participate in
an approved parenting program and demonstrate an
understanding of Child’s medical, dental, educational,
physical and emotional needs; (6) attend Child’s medical
and dental appointments and follow all recommendations,
as well as participate in any therapy services recommended
for Child; and (7) follow requirements of her probation.
[The termination trial] was conducted on June 16, 2022,
(Father did not appear). Mother, represented by counsel,
participated by “zoom” call from her penal institution.
Various exhibits were proffered by counsel for the Erie
County Office of Children and Youth (“OCY”) and admitted
by the court.
Ms. Haley Schaef, an OCY caseworker, testified that she
received the case on April 7, 2021. As noted above,
concerns were Mother’s homelessness, substance abuse,
Child’s tooth decay and urological ailments. Furthermore,
Child was living with maternal relatives “for weeks on end”
without any form of consent or authorizations for the
relatives to obtain medical or dental care for Child. Child
was also exhibiting behavioral problems. After a shelter
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care hearing, Child went into kinship care. At that time
Mother was on probation and had not been in contact with
her probation officer.
[Following the Child’s dependency adjudication in March
2021,] the goal was reunification and a plan with
recommended services was implement[ed]. At the time,
OCY had difficulty assessing Mother’s situation due to her
unavailability. Furthermore, although the Child was 6 years
old, she had not started school. OCY initiated dental and
medical care for the Child.
On April 16, 2021, OCY became aware that Mother was
incarcerated. She had been arrested after police found a
half pound of cocaine in her possession. (She was released
from jail).
FN 4: Mother remained at liberty until January 10, 2022
when she was sentenced on the drug charge.
During this period, Child was exhibiting behavioral
difficulties and was hospitalized for mental health
treatment. Her kinship caretakers at that time were unable
to care for her so she was placed with a maternal second
cousin, [S.L.] (now adoptive resource).
Ms. Schaef testified concerning Child’s progress. Since her
placement, her behavior has greatly improved and she
continues in therapy. [S.L.] can see the Child’s needs are
met. Child is excited about being adopted and has the
stability she has never had. Ms. Schaef noted that Child has
been ”grasping” for a “consistent, stable home” and she has
found it in [S.L.’s] home. Responses to this Court’s
additional inquiry confirmed the suitability of Child’s current
placement.
Mother’s compliance with the treatment plan was “minimal
at best.” Her drug dependency continued to be an issue. A
review of her urinalysis disclosed 21 negatives and 122 no-
show positives. She was positive 7 times for both
methamphetamines and THC (marijuana). She admitted
that she continued to use drugs while she was in counseling
and did not comply with urinalysis testing requirements.
As to visitation, Mother’s last visit with the Child was June
28, 2021. She did, however, attend some medical visits for
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Child and there was some correspondence. At time of [the
termination hearing], she had not visited Child in a year.
Mother testified at trial. In addition to expressing her desire
to reunify with Child, she discussed her residential plans
upon parole and attendance at prison counseling programs.
However, these efforts are post-petition or hoped-for
arrangements.
Trial Court Opinion, 8/3/22, (T.C.O.) at 1-3 (citations to the record and some
footnotes omitted).
The orphans’ court granted the petition of the Agency and terminated
Mother’s rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother
appealed. Before we address her appeal, we note that Mother’s counsel has
filed a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).2 To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2)
furnish a copy of the [Anders] brief to the [appellant]; and
3) advise the [appellant] that he or she has the right to
retain private counsel or raise additional arguments that the
[appellant] deems worthy of the court's attention.
With respect to the third requirement of Anders, that
counsel inform the appellant of his or her rights in light of
counsel's withdrawal, this Court has held that counsel must
“attach to their petition to withdraw a copy of the letter sent
to their client advising him or her of their rights.”
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2 This Court extended the Anders principles to appeals involving the
termination of parental rights. In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014)
(citation omitted).
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In re J.D.H., 171 A.3d at 903, 907 (Pa. Super. 2017) (citations omitted).
Additionally, counsel must file a brief that meets the following
requirements established by the Pennsylvania Supreme Court in Santiago:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
In re Adoption of M.C.F., 230 A.3d 1217, 1219 (Pa. Super. 2020) (citation
omitted).
Preliminarily, we find that Counsel has substantially complied with the
technical requirements to withdraw. See Commonwealth v. Reid, 117 A.3d
777, 781 (Pa. Super. 2015) (observing that substantial compliance with the
Anders requirements is sufficient).
In addition to verifying that Counsel substantially complied with Anders
and Santiago, this Court also must “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (footnote omitted). Flowers does not require us “to act as counsel or
otherwise advocate on behalf of a party.” Commonwealth v. Dempster, 187
A.3d 266, 272 (Pa. Super. 2018) (en banc). “Rather, it requires us only to
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conduct a simple review of the record to ascertain if there appear on its face
to be arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Id. Traditionally, we would start our review by giving “a most
generous reading and review of ‘the case’ as presented in the entire record
with consideration first of issues raised by counsel.” See id. (citing Anders,
386 U.S. at 744).
Before we conduct our independent review, however, we first address
the issues counsel presented in the Anders brief that arguably support
Mother’s appeal. See M.C.F., 230 A.3d at 1219. The two issues presented
are as follows:
1. Whether the orphans’ court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8)?
2. Whether the orphans’ court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(b)?
Anders Brief at 3 (cleaned up).
We review these issues mindful of our well-settled standard of review.
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court's
decision, however, should not be reversed merely because
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the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in section 2511(a). Only
if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to section
2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Here, the orphans’ court terminated Mother’s parental rights pursuant
to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Moreover, we may uphold a termination decision if any
proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201(Pa.
Super. 2000) (en banc).
Mother’s first issue of arguable merit involves the initial prong of the
termination analysis under Section 2511(a). As we need only agree with the
orphans’ court as to one subsection of Section 2511(a), we analyze whether
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the Agency properly established grounds for termination under Section
2511(a)(2). That section provides in relevant part:
(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.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted). Parents
are required to make diligent efforts toward the reasonably prompt
assumption of full parental duties. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010).
In determining that the Agency met its burden under Section
2511(a)(2), the orphans’ court stated:
The evidence of record demonstrated that by a clear and
convincing nature that Mother was either incapable, refused
– or both – to comply with the [reunification] plan. First,
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she failed to comply with urinalysis requirements and
continued to use substances illegally. Second, she did not
demonstrate that she could provide Child with safe and
stable housing. Third, she failed to obtain and maintain
gainful employment or demonstrate her ability to provide
financial support for the Child. Fourth, she did not
adequately participate in drug and alcohol services. Fifth,
she did not adequately take advantage of family
reunification services. Sixth, she did not show that she
could attend the Child’s medical, dental, or mental health
needs. Seventh, her visitation record was spotty. Eighth,
it is relevant that her incarceration will impair her ability to
parent.
T.C.O. at 6.
Upon our review, the orphans’ court properly determined that the
Agency established grounds under Section 2511(a)(2) by clear and convincing
evidence. The abuse caused the Child to go without parental care. The
Agency provided services to no avail. Mother cannot or will not remedy the
conditions which caused the Child to be removed from her care. Mother’s first
issue is without merit.
In her second issue of arguable merit, Mother argues the trial court
abused its discretion when it found that termination best served the Child's
needs and welfare. Section 2511(b) provides:
(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
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are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(b).
This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id.However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular
case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). Moreover, the court is not required to use expert
testimony to resolve the bond analysis. In re Z.P., 994 A.2d 1108, 1121
(citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)).
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“Common sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” T.S.M., 71 A.3d at 268. Finally, we
emphasize that “[w]hile a parent’s emotional bond with her and/or her child
is a major aspect of the Section 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
Here, the orphans’ court noted that there may be a bond between
Mother and the Child, it is not a strong one worth preserving. See T.C.O. at
6.
Furthermore, considering the fundamental needs of Child
and her welfare, it is clear that Mother has not consistently
met those needs as evidenced by the fact that she often left
Child in the care of others and failed to address Child’s
health and dental conditions. […] Child wants to remain with
[S.L.] where her needs are being met. Therefore, Child’s
interests are best served by terminating Mother’s parental
rights [pursuant to] 23 Pa.C.S.A. § 2511(b).
Id. at 6.
Upon review, discern no error or abuse of discretion regarding the
court’s findings under Section 2511(b). Thus, we agree with counsel that this
issue also lacks merit.
Finally, we must conduct our independent review to discern whether
there are any additional, non-frivolous issues overlooked by counsel, pursuant
to Flowers, 113 A.2d at 1250. In doing so we briefly address Mother’s
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incarceration. 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’ 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.A. §
2511(a)(2).” In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012).
In this case, the earliest Mother could be released is July 2023. The
orphans’ court found Mother’s incarceration to be relevant, but it was clear
from its findings that the court did not terminate Mother’s rights solely
because of Mother’s conviction. Indeed, Mother had demonstrated her
noncompliance with the reunification plan prior to her incarceration. We
conclude that the orphans’ court properly understood the legal effects of
Mother’s incarceration in this termination matter. Upon a “generous” review
of the record, we discover no other issues of arguable merit. See Dempster,
187 A.3d at 272.
In sum, after review, we agree with counsel’s assessment that Mother’s
issues on appeal are frivolous and that the Agency presented clear and
convincing evidence to support the termination of Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(2) and (b). We therefore grant counsel’s
petition to withdraw and affirm the orphans’ court order terminating Mother’s
parental rights.
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Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2023
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