Opinion
751 WDA 2023 J-A25021-23
01-12-2024
IN THE INTEREST OF B.Z., A MINOR APPEAL OF: D.A., ADOPTIVE MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered June 9, 2023 In the Court of Common Pleas of Indiana County Orphans' Court at No(s): No. 32-22-0730
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J. [*]
MEMORANDUM
KUNSELMAN, J.
D.A. ("Mother") appeals from the decree involuntary terminating her parental rights to her fourteen-year-old son, B.Z. pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(8) and (b). After careful review, we affirm.
B.Z's adoptive father is L.Z. ("Father"). Although the orphans' court also terminated his parental rights, he is not a party to this appeal.
Indiana County Children and Youth Services ("the Agency") first became involved with the family in September 2019. At that time, the family consisted of Mother, Father, and five adopted children. The children in the household, and their respective ages at that time, were as follows: A.Z., a sixteen-year- old girl, B.Z., then ten years of age, L.Z., a seven-year-old girl, J.Z., a six-year-old boy, and C.Z., a five-year-old boy.
A.Z. was the first child removed from the household. Mother and Father's parental rights to the three remaining children were terminated in December 2022. Mother appealed and this Court affirmed the decrees entered by the orphans' court on September 15, 2023. See In the Interest of L.Z., 2023 WL5995526 (Pa. Super. 2023) (non-precedential decision).
The orphans' court summarized the pertinent facts of the initial report, as well as the remaining facts and procedural history as follows:
The main allegation in the report was that [B.Z.] was inserting his fingers in J.Z.'s anus. The matter was investigated, and a referral for mental health counseling was made.
Shortly thereafter, another report was received by the Agency regarding [the] family; the report contained allegations of abuse by Mother, including an allegation that Mother was withholding food from the children. Then, on or about December 13, 2019, the Agency received a Child Protective Services report indicating that that oldest child, A.Z., was being sexually abused by Father. It was reported that the abuse came to light when A.Z. was concerned that she might be pregnant.
The sexual abuse allegations were investigated by the Agency and by the Pennsylvania State Police. The investigation included a forensic interview with A.Z. Father was criminally charged with ten (10) counts of sexually related offenses[.] According to the Agency, during and after the investigation, Mother minimized Father's behaviors, took a "victim's stance," blamed A.Z. for the abuse, and viewed Father's sexual abuse of A.Z. as a "two-sided" relationship.
In support of its position vis-à-vis Mother's handling of the sexual abuse of A.Z., the Agency set forth the following behaviors: Mother refused a pelvic exam and testing for sexually transmitted diseases for A.Z.; Mother gathered the other children in a "prayer circle" and led them in prayer for Father; Mother stated that she intended to reunite with Father when he was released from incarceration and that she "forgave" A.Z.; although present for
the preliminary hearing held to address the criminal charges filed against Father, Mother refused to testify, refused to allow A.Z. to testify, and refused to talk to the victim advocate.
While the sexual abuse matter was being investigated, there was another disclosure in January of 2020. This disclosure involved sexual contact between the other children in [the] home. A Safety Plan was put into place; the plan allowed the remaining children to stay in the home, however, Mother refused to allow the Agency caseworker or any service provider in the home in March, April, May, and June of 2020. Mother cited COVID-19 concerns for this refusal, but despite this explanation, Mother traveled to Lancaster County during this time period.
The Agency then received a report that Mother placed a bed in her room for [B.Z] and J.Z. This was a violation of the plan, and, therefore, a meeting was held with Mother and the Agency. Then in July of 2020, another Child Protections Services Report was received; this report involved an allegation that Mother knew that Father's sexual abuse of A.Z. was taking place, and failed to report the abuse. Mother admitted that she knew about the abuse two weeks prior to the date it was reported. It was also reported that Mother was instructing the children to keep secrets.
The Agency made the decision to request protective custody of the children in July of 2020. A Shelter Care hearing was held on July 22, 2020, and the Shelter Care Application was granted. An Adjudication and Disposition hearing was held on August 6, 2020. The children were adjudicated as dependent children, and [B.Z] was ordered to remain in the LifeSpan Family Services foster home that he was placed in at the time of removal from [the] home.Orphans' Court Opinion, 6/9/23, at 1-4.
Multiple permanency review hearings were held over the next two years. On April 14, 2022, the Agency filed a petition to terminate Mother's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)(2)(5)(8) and (b). Hearings regarding B.Z. and the three younger children were held on August 30, 2022 and on October 13, 2022. The court heard expert testimony from Carolyn J. Menta, a clinical psychologist, who performed a psychological evaluation of Mother, a parental capacity evaluation of Mother, and a bonding assessment of Mother and B.Z. The court also received expert testimony from Jonathan M. Gransee, a forensic psychologist, who authored both a parenting capacity assessment and reassessment of Mother.
In addition to this expert testimony, the Agency presented various employees of the Agency and service providers. Mother testified on her own behalf and presented the testimony of her current husband and other extended family members. Testimony concerning the three younger children was closed at the conclusion of the October 13, 2022 hearing.
On November 28, 2022, the court heard additional evidence regarding B.Z. At the hearing, the Agency presented the testimony of B.Z.'s therapist at Harborcreek Youth Services. The court also received rebuttal testimony from Dr. Menta. The court held a final hearing regarding B.Z. on June 7, 2023. By this time, B.Z. had left Harbor Services and was living at another foster home. At this hearing, the court received testimony from B.Z in chambers, which all counsel attended. The Agency then presented the testimony of B.Z.'s current caseworker. Mother also testified. Following the close of evidence, counsel provided closing arguments. B.Z.'s guardian ad litem opined that termination of Mother's parental rights would be in B.Z.'s best interests, while B.Z's legal counsel informed the court of B.Z.'s desire to reunite with Mother and her current husband.
As noted by the orphans' court, during the thirty-five months that B.Z. has been in the Agency's care, he was in three different foster homes, Keystone Adolescent Center, and George Junior Republic, prior to being placed at Harborcreek Youth Services. See Orphans' Court Opinion, 6/9/23, at 5.
Separate attorneys represented B.Z. as his guardian ad litem and his legal counsel. B.Z.'s testimony was not transcribed.
By order entered June 9, 2023, the orphans' court terminated Mother's parental rights pursuant to Sections 2511(a)(8) and (b). Mother appealed. Both Mother and the orphans' court have complied with Pa.R.A.P. 1925.
Mother raises the following issue:
1. Whether the [orphans' court] erred in terminating [Mother's] parental rights to [B.Z.], because the Agency failed to meet its burden by clear and convincing evidence.
By letter dated September 11, 2023, the Agency informed this Court that it would not be filing a brief. The letter further stated that the Agency, as well as B.Z.'s guardian ad litem and legal counsel, agree that the orphans' court properly terminated Mother's parental rights.
We begin with 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 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).
Our Supreme Court has stated that in termination cases, deference to the trial court is particularly crucial. In re Adoption of L.A.K., 265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108, 1124 (Pa. 2021) ("When a trial court makes a 'close call' in a fact-intensive case involving…the termination of parental rights, the appellate court should review the record for an abuse of discretion and for whether evidence supports that trial court's conclusions; the appellate could should not search the record for contrary conclusions or substitute its judgment for that of the trial court."). The abuse-of-discretion standard in termination cases "is a highly deferential standard and, to the extent that record supports the court's decision, we must affirm even though evidence exists that would also support a contrary determination." In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation 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).
Clear and convincing evidence is evidence that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
Here, the orphans' court terminated Mother's parental rights pursuant to Section 2511(a)(8) which provides 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:
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.23 Pa.C.S.A. § 2511(a)(8).
To prove this subsection, the Agency must establish the following three elements: "(1) that the child has been removed from the care of the parent for at least twelve months; (2) that the conditions which led to removal or placement of the child still exist; and (3) that termination of parental rights would best serve the needs and welfare of the child." Interest of M.E., 283 A.3d 820, 832 (Pa. Super. 2022) (citation omitted). Unlike other Section 2511(a) subsections, subsection (a)(8) "does not require the court to evaluate a parent's willingness or ability to remedy the conditions that led to the placement" of the child. Id. Instead, the relevant inquiry "is whether the conditions that led to removal have been remedied and thus whether reunification of parent and child is imminent at the time of the hearing." Id. Importantly, under this subsection, the court "shall not consider any efforts by the parent to remedy the conditions described [in the termination petition] which are first initiated subsequent to the giving of notice of the filing of the petition." 23 Pa.C.S.A. § 2511(b). This provision may seem harsh as it prohibits the court from considering the parent's recent progress. However, as this court has explained:
[B]y allowing for termination when the conditions that led to removal of a child continue to exist after a year, the statute implicitly recognizes that 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. Indeed, we work under statutory and case law that contemplates only a short period of time, to wit [eighteen] months, in which to complete the process of either reunification or adoption for a child who has been placed in foster care.M.E., 283 A.3d at 832 (citation omitted).
Finally, although Section 2511(a) focuses generally on the parent's behavior, the third of element of subsection (a)(8) centers on the child's needs, thereby encompassing the needs and welfare analysis typically reserved until the court's Section 2511(b) analysis.
Here, the orphans' court concluded that the Agency had proven, by clear and convincing evidence, the statutory grounds for termination under Section 2511(a)(8). The court explained:
First, it is clear that it has been 12 months or more since [B.Z's] removal from Mother's home. [B.Z.] was removed in July of 2020, therefore, approximately 35 months have elapsed from the date of removal until the present time.
Next, the court must determine whether the conditions necessitating placement still exist. With regard to Mother, the court need only look to the expert testimony of [Drs. Menta and Gransee] to make this determination. It is clear that the children [(including B.Z.)] were removed due to Mother's lack of insight and empathy regarding the children, and that due to these deficiencies, Mother was unable to support and protect the children.
In Dr. Menta's Parental Capacity Evaluation dated April 25, 2021, Dr. Menta concluded as follows: "[O]f concern is her lack of insight and empathy when it comes to her children. She minimized concerns about potential sexual abuse and the impact it had on them. [Mother] stated repeatedly in interview[s], 'they are doing well.' However, she could not offer any specific information in terms of how they are doing well." Finally, Dr. Menta concluded that given Mother's "lack of insight and awareness, significant concern remains regarding her ability to act in a protective capacity for her children in the future." [T]he court notes that during her testimony, Dr. Menta stressed that Mother's lack of acknowledgement and empathy re-traumatizes the children and invalidates the children's experiences.
With regard to Dr. Gransee, the court will restate his conclusions from his Parental Capacity Reassessment dated July 11, 2022. Dr. Gransee opined that he still has questions as to whether Mother could successfully protect the [children]. Dr. Gransee believes that the ability is there, but the will is not. Dr. Gransee concluded that he is not sure that Mother is using therapy in a constructive manner, as there is not a sign of growth and progress. He believes that there is "lip service progress," but not "deep progress." Mother is checking off the boxes that are required of her, but she needs to change attitudes, behaviors
thoughts, and awareness. Her beliefs have not changed. On cross-examination, Dr. Gransee stated that because Mother cannot see what she is doing is wrong, she does not have protective capacity. And in answer to the question "What can Mother do?," Dr. Gransee stated that Mother needs to have "a Eureka moment." She needs to resolve issues through treatment; she need[s] to talk to her counselor and be honest.Orphans' Court's Opinion, 6/9/23, at 30-31 (citation and excess capitalization omitted).
The orphans' court concluded that, despite the reasonable, good faith efforts that the Agency provided over a "realistic time period," the conditions necessitating placement "persist." Id. at 32. The court further noted that there was no requirement that it evaluate Mother's "willingness or ability to remedy these conditions prospectively." Id. Finally, the court found that termination under Section 2511(a)(8) would best serve B.Z's needs and welfare.
The orphans' court opined that this inquiry under Section 2511(a)(8) was "identical to the inquiry required pursuant to 23 Pa.C.S.A. Section 2511(b)." Orphans' Court Opinion, 6/9/23, at 32.
After review, we conclude that the trial court did not err or abuse its discretion when it concluded that the conditions that led to B.Z's removal continue to exist, and that termination of Mother's parental rights was in B.Z's best interest. We first note that Mother contacted Dr. Gransee to reassess her parenting capacity. See N.T., 8/30/22, at 55-56. Moreover, although incidents of misconduct occurred after B.Z. was placed in his current foster home, in her testimony Mother sought to cast blame on the Agency for not updating his medications. See 6/7/23, at 32-36. She also continued to make excuses for B.Z's misconduct, stating that a school bus incident occurred primarily because B.Z. was used to riding to school in a van. Id. at 29-31.
In arguing to the contrary, Mother generally alleges that the Agency did not meet its burden of proof to warrant termination of her parental rights to B.Z. and "respectively refer[s] this Court to the evidence and testimony presented at the various hearings on this matter." Mother's Brief at 10. According to Mother, "said testimony and evidence demonstrates that [she] did not fail in her parental duties to [B.Z.], and, in fact, was compliant with the many requests and recommendations made to her by the Agency." Id.
Our review of the record refutes these claims. As detailed by the experts in this case, Mother's parenting capacity evaluations indicated that she could not keep B.Z. safe. Moreover, while it is undisputed that Mother complied with the Agency's recommendations, the experts agreed she was not making progress. See, e.g., N.T., 8/30/22, at 74-75 (Dr. Gransee agrees with the Agency's counsel that Mother is "just going through the motions;" her "basic beliefs haven't changed"). In sum, there is ample support for the orphans' court's conclusions that the Agency properly established grounds warranting termination under Section 2511(a)(8).
Next, we consider whether termination was proper under Section 2511(b). That section 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 are first initiated subsequent to the giving of notice of the filing of the petition.23 Pa.C.S.A. § 2511(b). With regard to this section, our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include [i]ntangibles such as love, comfort, security, and stability.... [T]his Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. However, as discussed below, evaluation of a child's bonds is not always an easy task.In re T.S.M., 71 A.3d at 267 (internal case citations omitted).
As our Supreme Court has recently noted, "courts should consider the matter from the child's perspective, placing [their] developmental, physical, and emotional needs and welfare above concerns for the parent." In the Interest of K.T., 296 A.3d 1085, 1105 (Pa. 2023). Moreover, in K.T., the Court reaffirmed that "the parental bond is but one part of the overall subsection (b) analysis." Id. at 1113. Courts must consider multiple other factors including: (1) the child's need for permanency and length of time in foster care; (2) whether the child is in a pre-adoptive home and bond with the foster parents; and (3) whether the foster home meets the child's needs. Id. Here, the orphans' court first summarized the Agency's evidence relevant to Section 2511(b) as follows:
The Agency presented the testimony from Dr. Menta regarding the parent-child bond. Dr. Menta conducted a parent-child evaluation in this matter, and Dr. Menta's written bonding assessment regarding Mother was admitted as Agency Exhibit 3. The court will restate the following conclusions reached by Dr. Menta:
"[B.Z.] expresses love and affection for [Mother]. He clearly has a bond with her. He expresses a desire to continue seeing [Mother] and siblings. However, I have concerns about [Mother's] history of inappropriate behavior with the children, inappropriate boundaries, and not following the safety plan. She continues to blame [A.Z] for having destroyed the family, which she reported to [L.Z.'s] foster mother. [Mother] reports differently to the evaluator, claiming she sees things differently now. However, this is not consistent with what she reports elsewhere. She did not report sexual abuse in the past, ultimately sending the message to the children that this behavior was acceptable. She violated the safety plan and allowed the children to continue sleeping together, despite being aware they were sexually acting out. [B.Z.] has touched his siblings inappropriately. Mother continues to bring him up during visits, and in today's observation, quite frequently. She does so in a rather superficial way and assumes the siblings would feel as positive toward him as she does. This demonstrates a lack of empathy and respect for the idea that the children may feel differently about their brother than she does. Mother's interactions with the children largely seem superficial, and tend to involve teasing (at the time almost at every interaction). This was noted of her behavior at visits, as well. For these reasons, it is in [B.Z.'s] best interest that the bond with [Mother] be severed and he be afforded the opportunity for a stable, loving home." Agency Exhibit 3.
The court finds Dr. Menta's evaluations to be thorough; she conducted a records review, conducted interviews with [B.Z.] and Mother, and observed [B.Z.] and Mother interacting with each other.
In addition to the testimony of Dr. Menta, the court received testimony relevant to this analysis from April Bogdanski. Ms. Bogdanski testified that [B.Z.] is now residing in the Family Care for Children & Youth, Inc., foster home of [Foster Parents]. Ms. Bogdanski stated that [B.Z.'s] relationship with the [Foster Parents] is good, and is the nature of a healthy parent/child relationship. She stated that the [Foster Parents] enjoy having [B.Z.] in their home, and while they are not interested in adopting [B.Z.] at this time, they are committed to having [B.Z.] in their home. Ms. Bogdanski concluded by setting forth her opinion that it would be in [B.Z.'s] best interest to terminate the rights of Mother[.]
Orphans' Court Opinion, 6/9/23, at 33-35 (excess capitalization omitted).
Based on this evidence, the orphans' court concluded that, despite B.Z's preference to return to Mother's present home, it served B.Z.s best interests to terminate her parental rights:
Based on the credible and uncontradicted expert testimony of Dr. Menta, and the credible testimony from Tori Hanig and April Bogdanski, the court finds that termination of parental rights of Mother [] would best serve the developmental, physical and emotional needs and welfare of [B.Z].
Finally, the court is compelled to comment on the heartfelt and genuine testimony provided by [B.Z.] at the hearing held on June 7, 2023. [The orphans' court] has no doubt that [B.Z.] loves [Mother] and desires to be returned to her home. However, the court firmly believe that [B.Z.'s] stated desire, while sincere, is a product of [Mother's] long history of inappropriate behaviors, lack of boundaries, lack of insight, and lack of empathy.
Orphans' Court Opinion, 6/9/23,a at 36 (excess capitalization omitted).
Ms. Hanig was the Agency caseworker assigned to B.Z prior to Ms. Bogdanski.
Our review of the record supports the orphans' court's conclusion. At the June 7, 2023 hearing, Mother did not testify about her bond with B.Z. Additionally, in her brief, Mother provides no argument regarding her bond with B.Z. or how its severance would harm him. Thus, we conclude the court did not err or abuse its discretion when it determined that the termination of Mother's rights would best serve the needs and welfare of B.Z. under Section 2511(b).
In sum, we hold that the orphans' court did not abuse its discretion or commit an error of law in terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).
Decree affirmed.
[*] Retired Senior Judge assigned to the Superior Court.