In the Int. of: C.L.Z., a Minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: M.Z., FATHER :
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: No. 678 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: M.J.Z., SR., FATHER :
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: No. 679 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: DECEMBER 23, 2021
M.J.Z., Sr. (“Father”), appeals from the decree entered on May 3, 2021,
which terminated his parental rights involuntarily to his children, C.L.Z., a
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female born in September 2013, and M.J.Z., Jr., a male born in November
2015. We affirm.1
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 interceded
because Father sexually abused an older daughter of S.A.S. (“Mother”), who
denied that the abuse occurred. 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 Mother and Father were using marijuana, and the Agency was
concerned that Mother had untreated mental health needs. 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.
Father pled guilty to criminal charges relating to his sexual abuse of
Mother’s older daughter. The trial court imposed fifteen to thirty-six months
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1The orphans’ court also terminated the parental rights of S.A.S. (“Mother),
whose appeal is listed at Superior Court docket numbers 650 and 651 MDA
2021. We address her appeal in a separate memorandum.
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of incarceration with a maximum sentence that expiries in January 2022.2
N.T., 4/12/21, at 11, 22, 35. Father’s sentencing conditions prohibited him
from contact with C.L.Z. and M.J.Z., Jr., unless approved by a court, and the
certified record indicates that no court ever granted its approval. Id. at 15,
26-27. Meanwhile, the juvenile court found aggravated circumstances and
directed that the Agency make no further efforts to reunify Father with C.L.Z.
and M.J.Z., Jr. Id. at 13, 35-36.
On October 2, 2020, the Agency filed a petition to terminate Father’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). The orphans’ court held a hearing on the petition on
April 12, 2021, at which the court heard testimony from the Agency’s
caseworker, Zionne West, S.C., the foster father of C.L.Z. and M.J.Z., Jr.,
Father, and Mother.3 Following the hearing, on May 3, 2021, the orphans’
court entered the above-referenced decree terminating Father’s rights to
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2 It appears that Father was originally alleged to have sexually abused two of
Mother’s older daughters. N.T., 5/26/18, at 5-8. Later testimony suggests
that 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 referring
to Father as “a man that already victimized one of [Mother’s] children.”).
3 A single attorney, identified 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 Father’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.
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C.L.Z. and M.J.Z., Jr. Father timely filed separate notices of appeal on May
28, 2021, along with concise statements of errors complained of on appeal.4
Father now raises the following claims for our review:
I. Did the [orphans’] court err and abuse its discretion in
concluding that Father evidenced a settled purpose of
relinquishing his parental claim to his children or refused or failed
to perform his parental duties for a period of six (6) months
immediately preceding the filing of the Petition where Father at all
times desired to exercise his parental claim to his children but his
efforts were hindered due to his incarceration and where the
release of Father from incarceration was imminent?
II. Did the [orphans’] court err and abuse its discretion in
concluding that Father’s incarceration caused [C.L.Z. and M.J.Z.,
Jr.,] to be without essential parental care, control or subsistence
and that the cause of the alleged failure could not or would not be
remedied by Father within a reasonable period of time?
III. Did the [orphans’] court err and abuse its discretion in
concluding that Father would not be in a position to care for
[C.L.Z. and M.J.Z., Jr.,] upon his imminent release from prison?
IV. Did the [orphans’] court err and abuse its discretion in
concluding that the termination of Father’s parental rights would
best serve the needs and welfare of [C.L.Z. and M.J.Z., Jr.,] where
Father was due to be released from incarceration as early as May
2021 and was committed to resuming his parental duties?
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4 Prior to the hearing, on March 15, 2021, 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. Because the juvenile court records did not appear in the certified record
this Court received on appeal, 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. Therefore, we address the merits of Father’s claims.
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Father’s brief at 3. Both the Agency and the GAL filed briefs in support of the
termination of Father’s parental rights.
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) (citing In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012)). 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. (citing In re Adoption of
S.P., supra at 827). We may find an abuse of discretion “‘only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.’” Id. (quoting In re Adoption of S.P., supra at 826).
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)
(citing In re R.J.S., 901 A.2d 502, 508 (Pa.Super. 2006)). 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
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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 supra, the orphans’ court terminated Father’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
addition to § 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc). We analyze the orphans’ 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.
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23 Pa.C.S. § 2511(a)(2), (b).
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)). This subsection 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). Further, “a
parent’s incarceration is relevant to the [§ 2511](a)(2) analysis and,
depending on the circumstances of the case, it may be dispositive of a parent’s
ability to provide the ‘essential parental care, control or subsistence’ that the
section contemplates.” In re A.D., 93 A.3d 888, 897 (Pa.Super. 2014)
(quoting 23 Pa.C.S. § 2511(a)(2)).
Father argues that C.L.Z. and M.J.Z., Jr., entered foster care because of
the sexual abuse allegations against him and substance abuse concerns
involving both him and Mother. Father’s brief at 12. He emphasizes that
there were no concerns that he lacked housing, income, or a relationship with
his children. Id. Father insists that the absence of these latter concerns
contradicts the assertion that he is incapable of parenting C.L.Z. and M.J.Z.,
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Jr. Id. In addition, he maintains that he would be released from incarceration
“as early as one month following the termination hearing[,]” and would be
able to work toward reunification upon his release. Id.
The orphans’ court concluded that the Agency had produced clear and
convincing evidence in support of its termination petition. Orphans’ Court
Opinion, 6/9/21, at 13. The court found that Father’s incarceration and the
sentencing conditions prohibiting contact with the children rendered him
incapable of providing proper parental care. Id. Further, the court found no
credible evidence that Father would be able to regain the ability to provide
parental care due to his criminal history. Id.
Father’s claim reveals a myopic view of parental incapacity. As quoted
above, our law does not restrict parental incapacity to cases of homelessness,
indigence, or abandonment as Father suggests but provides that incarceration
may serve as a dispositive factor when assessing a parent’s ability to provide
for a child’s needs. In re A.D., supra at 897 (holding, incarceration “may be
dispositive of a parent’s ability to provide the ‘essential parental care, control
or subsistence’ that [§2511(a)(2)] contemplates”). Here, Father has been
unable to provide parental care since October 2018, following his sexual abuse
of Mother’s older daughter and his subsequent incarceration. N.T., 4/12/21,
at 51-52. Father pled guilty to criminal charges related to this abuse and
received a sentence of fifteen to thirty-six months of incarceration. Id. at 11,
22, 35. At the time of the hearing on April 12, 2021, C.L.Z. and M.J.Z., Jr.,
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had been without parental care for approximately thirty months because of
Father’s conduct.
While Father testified that he would go before the parole board in May
2021, he acknowledged that there was no guarantee that it would grant
parole, and that his maximum sentence would not expire until January 2022.
Id. at 35. Accordingly, it was possible C.L.Z. and M.J.Z., Jr., would remain in
foster care for a total of approximately thirty-nine months until Father’s
release. Even after Father’s release, it is unclear when, if ever, he would be
able to demonstrate the maturity and stability needed to parent his children.
As this Court has often emphasized, “a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re R.J.S., supra at 513.
Notably, Agency caseworker, Zionne West, testified she was assigned to
this matter in August 2020, and that Father sent her only one letter inquiring
about C.L.Z. and M.J.Z., Jr., which she received in November 2020. N.T.
4/12/21, at 14-15. She testified that Father also sent a letter to the previous
caseworker. Id. at 15. Father presented a somewhat more positive
assessment of his efforts, testifying that he sent a total of “[f]our or five”
letters to caseworkers inquiring about the children. Id. at 39-40. Regardless
of whether Father sent two or five missives to the Agency since his
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incarceration, the testimony established the limits of Father’s tepid interest in
his children and belied his assertion that he will remedy his parental incapacity
in a timely manner upon his eventual release.
Our review of the record supports the finding that Father’s incapacity,
abuse, neglect, or refusal deprived C.L.Z. and M.J.Z., Jr., of essential parental
care, control or subsistence, and that Father cannot or will not remedy the
conditions and causes of his incapacity, abuse, neglect, or refusal. We discern
no abuse of discretion or error of law by the orphans’ court, and we affirm the
termination decree pursuant to § 2511(a)(2).
We next consider whether the orphans’ court erred or abused its
discretion as it relates to § 2511(b), which focuses on the needs and welfare
of the child and includes an analysis of any emotional bond the child may have
with his or her parent. The key questions when conducting the needs and
welfare 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). It is important to
recognize that the existence of a bond, while significant, is only one of many
factors 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.- 10 -
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Father contends that the orphans’ court failed to consider whether he
shares a bond with C.L.Z. and M.J.Z., Jr. Father’s brief at 14. He emphasizes
that the children lived with him prior to their adjudications of dependency, at
which time a bond would have formed. Id. Father argues he demonstrated
the existence of this bond through his “consistent attempts” at reunification
and protests that his inability to visit C.L.Z. and M.J.Z., Jr., does not mean his
bond with them no longer exists or that severing the bond would not harm
them. Id. He maintains that the orphans’ court heard little evidence about
his bond with C.L.Z. and M.J.Z., Jr., at the hearing. Id. at 14-15.
The orphans’ court found that terminating Father’s parental rights would
best serve the needs and welfare of C.L.Z. and M.J.Z., Jr. See Orphans’ Court
Opinion, 6/9/21, at 16. The court reasoned that it was not clear when Father
would be able to have contact with C.L.Z. and M.J.Z., Jr., because of his
incarceration and sentencing conditions, let alone unsupervised contact. Id.
The court further reasoned that C.L.Z. and M.J.Z., Jr., had spent “nearly half
of their lives” in their foster home5 and shared a bond with the foster parents.
Id. at 17. The court relied on the representations of the GAL, who supported
termination of Father’s parental rights and indicated C.L.Z. and M.J.Z., Jr.,
wanted to live with their foster parents forever. Id. The court concluded that
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5At 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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C.L.Z. and M.J.Z., Jr., “deserve to remain in a stable family that is ready,
willing, and able to provide them with needed permanency and stability-things
that Father cannot provide.” Id.
Contrary to Father’s claim that the orphans’ court failed to conduct an
adequate § 2511(b) bonding analysis, the court cited pertinent authority
describing the requisite considerations in its opinion. See Orphans’ Court
Opinion, 6/9/21, at 15-16. Although the court did not specifically state
whether Father shared a bond with C.L.Z. or M.J.Z., Jr., it was seemingly
undisputed at the hearing that no necessary or beneficial bond existed.
Father’s counsel acknowledged this reality in her closing argument, “I didn’t
really get into a bond with [Father] because the children are so young and he
hasn’t had any contact with them because of the aggravated circumstances of
his incarceration.” N.T., 4/12/21, at 72.
The lack of any beneficial bond in this case is most evident given the
details of Father’s incarceration. Once again, C.L.Z. and M.J.Z., Jr., entered
foster care in October 2018. Id. at 18. Father initially visited C.L.Z. and
M.J.Z., Jr., while in Lancaster County Prison, but his sentencing conditions
subsequently forbade him from contacting the children without court approval,
which never occurred. Id. at 15, 26-28. These sentencing conditions would
have been in effect by September 2019 at the latest, as that is when Father
arrived at a State Correctional Institution. Id. at 35. Thus, when the hearing
occurred, C.L.Z. and M.J.Z., Jr., had been out of Father’s care for
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approximately two-and-a-half years and had not had any contact with Father
at all in over a year and a half.
Father’s long absence from the lives of C.L.Z. and M.J.Z., Jr., shows that
any emotional attachment they might have to him would be limited. It was
within the discretion of the orphans’ court to weigh that partial attachment
against other factors, including Father’s inability to provide C.L.Z. and M.J.Z.,
Jr., with the necessary permanence and stability and the extensive time they
have remained in their foster home, and to conclude termination of Father’s
rights would best serve their needs and welfare pursuant to § 2511(b). See
C.D.R., supra at 1219-20.
For all the foregoing reasons, we conclude that the orphans’ court did
not commit an abuse of its discretion or error of law by terminating Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2021
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