J-S28001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPT. OF: L.M.H.                                 IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA




APPEAL OF: M.H.

                            Appellant                          No. 228 MDA 2015


                 Appeal from the Order Entered January 5, 2015
                  In the Court of Common Pleas of York County
                       Orphans' Court at No(s): 2014-0092


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                                        FILED JUNE 15, 2015

       M.H. (“Father”) appeals from the order entered on January 5, 2015,

wherein the orphans’ court involuntarily terminated his parental rights to his

four-year-old son, L.M.H.1 We affirm.

       The first contact between York County Office of Children and Youth

Services (“CYS”) and this family occurred on April 2, 2013, in relation to a

referral   alleging    a    lack    of    supervision     by    paternal   grandmother

(“Grandmother”),       V.H.,   with      whom   L.M.H.    has    resided   since   C.M.L.

(“Mother”) abandoned the then-two-year-old boy.                  The child has speech

delays and mild behavioral issues. Although the referral was determined to

____________________________________________


1
 On the same date, the trial court terminated the parental rights of L.M.H.’s
mother, C.M.L., who did not appeal that order.
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be unfounded, CYF stayed involved with the family and advocated for the

juvenile court to grant a shelter care order awarding Grandmother physical

custody. The order was awarded, and on June 11, 2013, the juvenile court

adjudicated L.M.H. dependent.      CYS was awarded legal custody and

Grandmother retained physical custody.      Mother and Father were both

granted weekly two-hour periods of supervised visitation. The initial court-

ordered permanency goal was reunification with parents and the concurrent

goal was placement in kinship foster care. During April 2014, that goal was

changed to adoption.

     As it relates to Father, the family service plan (“FSP”) established

several goals and objectives.   Father was required to cooperate with CYS

and support agencies, avoid substance abuse, demonstrate mental health,

exhibit an understanding of L.M.H.’s developmental needs, and learn

effective parenting techniques. Additionally, Father was required to provide

for his son’s basic needs.      Over the next sixteen months, Father’s

compliance with the permanency plan and his efforts to alleviate the

circumstances that necessitated placement were minimal. Father submitted

to a mental health evaluation during August 2013, wherein he was

diagnosed with, inter alia, sustained remission for alcohol/cannabis use

disorder. Father also completed a drug and alcohol evaluation January 29,

2014, which revealed a substance abuse/dependency issue. Outpatient care


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was recommended but Father failed to comply. Additionally, he failed six of

the twenty-five drug screens that he submitted between June 2013 and July

2014.     On nineteen other occasions, the agency that administered the

screens either could not locate Father or Father simply refused to provide a

urine sample.      In total, Father passed thirteen of forty-four attempted

screens. By July 2014, that agency closed Father’s case due to its inability

to maintain consistent contact with him.

        Father also initiated an in-home parenting program through Justice

Works; however, he was discharged from that course on May 30, 2014,

having only completed approximately one-third of the curriculum.                  By

October    8,   2014,   the   trial   court   had   determined   that   Father   was

noncompliant with the permanency plan and observed that he had made no

efforts toward alleviating the underlying circumstances.

        Father’s visitation was also inconsistent.     He attended five to seven

visitations with L.M.H. between June and October 2013; however, he failed

to attend any visitations between November 2013 and January 2014, and he

attended one visitation each during February and March 2014. Father’s last

visit with L.M.H. occurred on March 4, 2014, approximately nine months

before the evidentiary hearing.

        On June 13, 2014, CYS filed a petition for the involuntary termination

of Father’s parental rights to L.M.H.         Following a hearing on December 9,


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2014, the orphans’ court terminated Father’s parental rights to L.M.H.

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).2 This timely appeal ensued.

Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of

errors complained of on appeal simultaneously with his notice of appeal.

       Father raises one issue for our review:

       Did the Lower Court err as a matter of law and abuse its
       discretion by granting the request of Children, Youth and
       Families to terminate the parental rights of Father when CYF
       presented insufficient evidence to satisfy its burden under 23
       Pa.C.S.A. Section 2511(a) and (b) as CYF failed to present
       sufficient evidence that Father demonstrated a settled purpose
       of relinquishing his parental claim or that he failed to perform
       parental rights and further that CYF failed to present sufficient
       evidence that termination would be in the best interests of the
       child which is required under each subsection requested by CYF?

Father’s brief at 5.

       We review the orphans’ court’s order to grant or deny a petition to

involuntarily terminate parental rights for an abuse of discretion.    In re

C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining

whether the decision of the trial court is supported by competent evidence.”

In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,

761 A.2d 1197, 1199 (Pa.Super. 2000)).           However, “[w]e must employ a


____________________________________________


2
  The six-month delay between the date CYS filed its petition for termination
of parental rights and the evidentiary hearing was due to the agency’s
inability to locate Mother and Father and perfect service of the petition.



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broad, comprehensive review of the record in order to determine whether

the trial court's decision is supported by competent evidence.”          In re

C.W.U., Jr., supra at 4.     As the ultimate trier of fact, the trial court is

empowered to make all determinations of credibility, resolve conflicts in the

evidence, and believe all, part, or none of the evidence presented.       In re

A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports

the trial court's findings, we will affirm even if the record could also support

the opposite result.” Id.

      The party petitioning for termination of parental rights “must prove the

statutory criteria for that termination by at least clear and convincing

evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). Clear and convincing

evidence is defined as “testimony that is so clear, direct, weighty, and

convincing as to enable the trier of fact to come to a clear conviction,

without hesitancy, of the truth of the precise facts in issue.”      Matter of

Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).

      Requests to involuntarily terminate a biological parent’s parental rights

are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as

follows:

      (a) General rule.--The rights of a parent in regard to a child
      may be terminated after a petition filed on any of the following
      grounds:

           (1) The parent by conduct continuing for a period of at
           least six months immediately preceding the filing of the

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        petition either has evidenced a settled purpose of
        relinquishing parental claim to a child or has refused or
        failed to perform parental duties.

               ....

     (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.

     The test for terminating parental rights consists of two parts. In In re

L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

     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 under the
     standard of best interests of the child. One major aspect of the
     needs and welfare analysis concerns the nature and status of the
     emotional bond between parent and child, with close attention
     paid to the effect on the child of permanently severing any such
     bond.

     Herein,   the    certified   record   supports   the   orphans’    court’s

determination that CYS established the statutory grounds to terminate


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Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As it

relates to §2511(a)(1), the pertinent inquiry for our review follows:

      To satisfy Section 2511(a)(1), the moving party must produce
      clear and convincing evidence of conduct sustained for at least
      the six months prior to the filing of the termination petition,
      which reveals a settled intent to relinquish parental claim to a
      child or a refusal or failure to perform parental duties. . . .
      Section 2511 does not require that the parent demonstrate both
      a settled purpose of relinquishing parental claim to a child and
      refusal or failure to perform parental duties.      Accordingly,
      parental rights may be terminated pursuant to Section
      2511(a)(1) if the parent either demonstrates a settled purpose
      of relinquishing parental claim to a child or fails to perform
      parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal

citations omitted). Although it is the six months immediately preceding the

filing of the petition that is the most critical to the analysis, the orphans’

court must consider the whole history of a given case and not mechanically

apply the six-month statutory provision.      In re B.,N.M., 856 A.2d 847

(Pa.Super. 2004). Additionally, to the extent that the orphans’ court based

its decision to terminate parental rights pursuant to subsection (a)(1), “the

court shall not consider any efforts by the parent to remedy the conditions

described therein which are first initiated subsequent to the giving of notice

of the filing of the petition.” In In re C.M.S., 832 A.2d 457, 462 (Pa.Super.

2003), we explained, “A parent is required to exert a sincere and genuine

effort to maintain a parent-child relationship; the parent must use all

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available resources to preserve the parental relationship and must exercise

‘reasonable firmness’ in resisting obstacles placed in the path of maintaining

the parent-child relationship.”

       The crux of Father’s complaint is that he initiated concerted efforts,

prior to the date CYS filed the underlying petition, to maintain contact with

H.M.L. and to address his parental deficiencies.              Father highlights that

between June and October 2013, he consistently participated in the

supervised visitations.       Father adds that he communicated with his son

informally through Grandmother.                The latter interactions occurred by

telephone and unofficial meetings in the community.              Father also stresses

that he complied with the requirements to submit to mental health and

substance     abuse     evaluations     but    could   not   afford   to   initiate   the

recommended treatment programs.                  In sum, Father argues that the

foregoing efforts are sufficient to endure CYS’s contentions that he

demonstrated a settled purpose of relinquishing parental rights or failed to

perform parental duties.3 For the following reasons we disagree.


____________________________________________


3
  Father was imprisoned in York County Prison for two days each during
February 2014 and July 2014 and for fifteen days between November 30,
and December 14, 2014. Additionally, he was incarcerated in Texas for
unspecified periods between April and August 2014. Father does not allege
that his periodic incarcerations impeded his ability to maintain a relationship
with his son.     Nevertheless, to the extent that Father did invoke his
(Footnote Continued Next Page)


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      Instantly, the certified record belies Father’s assertion that he made a

sincere and genuine effort to perform parental duties or preserve his

parental relationship with L.M.H.           During the evidentiary hearing, LaShon

Smith, the CYS worker assigned to the family, testified that, during the

relevant six-month period, Father did not perform any parental duties or

provide L.M.H. any gifts or cards. See N.T., 12/9/14, at 51. Moreover, for

the length of CYS’s involvement with the family, Father failed to attend or

participate in any medical appointments, and he never inquired about his

son’s physical, emotional, or developmental wellbeing.              Id. at 51-52.

Tellingly, Father did not participate in any of the assessments and

evaluations that L.M.H. underwent in order to qualify for specialized

education and early intervention services to address his speech and

behavioral needs. Id. at 53-54. Indeed, despite the agencies’ services, Ms.

Smith does not believe that Father is in a position to provide for the care,

protection, safety, or development of his son. Id. at 52.




                       _______________________
(Footnote Continued)

incarceration as an excuse for his inaction, we observe that the certified
record confirms that Father failed to exercise reasonable firmness in
declining to yield to the obstacles created by imprisonment. See In re
Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (“pursuant to an
abandonment analysis [an incarcerated parent has] a duty to utilize
available resources to continue a relationship with his or her child.”).



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         Ms. Smith stated that Father lacks a legal source of income. Id. at 40.

She explained that having a verifiable source of stable income was important

so that CYS could assess Father’s ability to care for L.M.H. if he ever

retained custody of the child.     Id. at 41. Additionally, Father’s housing is

unquestionably unstable.      Id. at. 38.   Father resided at approximately six

different locations since the juvenile court proceedings commenced. Id. at

38-39. He failed to inform CYS of his residences, and during one six-month

period the agency designated him as “missing in action.” Id. at 40. In sum,

Ms. Smith opined that terminating Father’s parental rights would achieve

L.M.H.’s best interests because Father failed to remain involved in his son’s

life and was still unable to provide for the child’s basic parenting needs. Id.

at 54.

         In relation to the FSP goals, Ms. Smith indicated that Father

participated in a mental health evaluation but did not initiate the

recommended counseling.        Id. at 48.   Similarly, Father completed a drug

and alcohol evaluation and met the criteria for substance abuse. However,

he neglected to document that he engaged in the recommended drug and

alcohol counseling. Id. at 49. In fact, since Father declined to execute the

release of his personal information, CYS was unable to monitor his

compliance with any of the recommended treatment regimens. Id. at 48-




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49. Nevertheless, despite Father’s obstructions, CYS never denied him any

services that he requested. Id. at 57.

      Concerning visitation, Ms. Smith testified that Father’s attendance at

the two-hour weekly visitation was fairly consistent following the June 2013

adjudication of dependency; however, by Spring 2014, Father’s compliance

with the visitation schedule was abysmal. Id. at 42. He only visited with his

son twice since October 2013 and the last visit occurred on March 4, 2014.

Id. at 41-42. The only other visitation that he attended during that period

was on February 28, a visit that he cut short.

      Tara Deane, a family resource specialist with Justice Works, also

testified about Father’s inconsistent visitation.    While Ms. Deane was

scheduled to supervise several two-hour visitations scheduled during

February and May 2014, she ultimately supervised only one visitation

between Father and L.M.H. The remaining visitations were either canceled

by Father or he simply failed to attend. Id. at 84-86. Ms. Deane explained

that after Father’s demonstrated non-compliance, the agency suspended its

supervisory services for approximately six weeks with the hope of resuming

visitation when Father recommitted to the process. Id. at 85. Father called

the agency on four occasions during March and April of 2014 to schedule

visitations, but three of those visits were canceled after Father failed to

confirm his attendance at least twenty-four hours beforehand. Id. at 87-88.


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Once    it   became   clear   to   Justice   Works   that   Father   would   remain

noncompliant, the agency closed Father’s case permanently during May of

2014. Id. at 85-86.

       Jared Daughton, the Justice Works parenting educator who provided

in-home services to Father, testified about Father’s efforts to confront his

deficient parenting skills. Mr. Daughton stated that Father completed only

about one-third of the program before being discharged.              Id. at 74.   He

cited inconsistent attendance and several missed appointments as reasons

for the discharge.      Id.    Father missed twelve appointments with Mr.

Daughton and canceled on five other occasions. Id. at 75. Mr. Daughton

explained, “eventually, we missed enough that he would have had to restart

the program in order to successfully complete it[.]” Id. at 74. He observed

that Father’s year-long participation was unusual because the program

normally takes significantly less time to complete. Id. at 77. He added that

the lessons that Father actually covered before the discharge were largely

introductory and that the lessons geared toward implementing an actual

parenting strategy would have come later had Father shown greater

participation. Id at 76-77.

       As demonstrated by the foregoing testimony, CYS provided clear and

convincing evidence that Father failed to cultivate a relationship with his son

or perform his parental duties. After a reasonably strong start, during the


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duration of this case, including the six months that are most critical to the

§2511(a)(1)    analysis,   Father   was   content   to   delegate   his   parental

responsibilities to Grandmother.      Despite CYS’s encouragement to avail

himself of all of the services and opportunities that it and Justice Works

provided to him, Father refused to persevere and eventually lost interest in

achieving his FSP goals or maintaining contact with his son.              He was

discharged from the parenting program for non-participation, he failed to

follow through with the recommended mental health and substance abuse

counseling, and most importantly, he squandered his visitations with his

young son.    Thus, the record sustains the orphans’ court’s conclusion that

CYS proved by clear and convincing evidence the statutory grounds to

terminate Father’s parental rights pursuant to § 2511(a)(1). Stated simply,

Father failed to exercise reasonable firmness in attempting to establish a

parental relationship with L.M.H. or in performing his parental obligations.

      Having concluded that the orphans’ court did not err in finding that

CYS satisfied its burden pursuant to 23 Pa.C.S. § 2511(a)(1), we next

review the orphans’ court’s needs and welfare analysis under § 2511(b).

While the Adoption Act does not mandate that the orphans’ court consider

the effect of permanently severing parental bonds, our case law requires it

where a bond exists to some extent. See In re E.M., 620 A.2d 481, 485

(Pa. 1993).


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      The extent of the orphans’ court’s bond-effect analysis depends upon

the circumstances of a particular case.      In re K.Z.S., 946 A.2d 753, 763

(Pa.Super. 2008).    We have emphasized that while a parent’s emotional

bond with his child is a major aspect of the § 2511(b) best-interest analysis,

it is nonetheless only one of many factors to be considered by the orphans’

court when determining what is in the best interest of the child.           In re

K.K.R.-S., 958 A.2d 529, 535-536 (Pa.Super. 2008).          Indeed, the mere

existence of an emotional bond does not preclude the termination of

parental rights.   See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial

court’s decision to terminate parental rights was affirmed where court

balanced strong emotional bond against parents’ inability to serve needs of

child).

      As we explained in In re K.Z.S., supra at 763 (emphasis omitted),

            In addition to a bond examination, the court may equally
      emphasize the safety needs of the child under subsection (b),
      particularly in cases involving physical or sexual abuse, severe
      child neglect or abandonment, or children with special needs.
      The trial court should also examine the intangibles such as the
      love, comfort, security and stability the child might have with the
      foster parent.     Another consideration is the importance of
      continuity of relationships to the child and whether the parent
      child bond, if it exists, can be severed without detrimental
      effects on the child. All of these factors can contribute to the
      inquiry about the needs and welfare of the child.

See also In re A.S., supra at 483 (orphans’ court can emphasize safety

needs, consider intangibles, such as love, comfort, security, and stability


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child might have with the foster parent, and importance of continuity of

existing relationships).

      Herein, the orphans’ court concluded that terminating Father’s

parental rights and freeing L.M.H. for adoption was in the child’s best

interest.   The orphans’ court proffered the following needs and welfare

analysis.

             Finally, the Court must consider the effect that termination
      will have upon the [four-year-old] Child. The Court believes that
      termination of parental rights will have no significant effect upon
      the Child. . . . Regarding Father, [t]he Court believes that
      Child would recognize Father. The Court acknowledges that a
      strong bond once existed between Father and the Child,
      however, that bond became a playmate bond when Father failed
      to maintain consistency in his visitation and failed to maintain a
      place of importance in the Child's life. For the last fourteen
      months, there have been only two visits wherein Father visited
      the Child and had real interaction with the Child. The last of
      those visits was more than nine months ago. During this entire
      period, paternal grandmother has been caring for the Child daily
      and consistently. The Child looks to paternal grandmother for
      love, security, safety and basic needs. The bond between the
      Child and paternal grandmother is the kind of healthy bond that
      should exist between a parent and child.

           This Court believes that permanency will best be achieved
      by terminating parental rights, and permitting paternal
      grandmother to move forward with adoption.

Trial Court Adjudication and Opinion, 1/5/15, at 12-13. In sum, the court

opined,

      [N]o real parent-child bond exists in this case. Father has not
      been able to consistently provide the Child with the love,
      comfort, security or closeness that would normally be evident
      between a parent and child. . . . The Child looks to Father as a

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      playmate, but looks to paternal grandmother to provide comfort,
      safety, security and nurturance. . . . The Court finds that there
      would be no significant effect upon the child from the
      termination of . . . Father's parental rights. Termination of
      parental rights will best meet the needs of the Child and will
      permit him to move forward and achieve the permanency that
      he deserves.

Id. at 16.

      Father argues that CYF failed to demonstrate that terminating parental

rights would not have a detrimental impact upon L.M.H.        This contention

relies upon the recognized bond that he shares with his son.       In essence,

Father challenges the trial court’s determination that the once-strong

parental bond had diminished so significantly so as to alleviate the effects

that terminating Father's parental rights would have upon L.M.H.

      The certified record sustains the orphans’ court’s rationale. During the

hearing, Ms. Smith testified that while L.M.H. knew Father and shared a

strong bond with     him when     Father     had remained engaged in      the

reunification process, she has been unable to ascertain the current nature of

the relationship due to Father’s absences. See N.T., 12/9/14, at 46. She

observed, however, that sometimes when Father called on the telephone,

L.M.H. refused to speak with him. Id.

      Mr. Daughton supervised approximately four of Father’s visitations

with L.M.H. as part of the parenting program that he administered. Id. at

76. He testified that Father demonstrated a strong bond with the child, but


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sometimes lacked the instinct to determine his son’s needs. Id. at 76, 79.

Noting that the two frequently played together on the floor, he stated that

Father “seemed to be invested in his relationship with [L.M.H.] during those

early visits.”   (emphasis added).    Id.   Similarly, Ms. Deane described the

one interaction that she observed between Father and L.M.H. as playful and

noted that Father chased L.M.H. around the room. Id. at 83.

      In contrast to this playful bond, L.M.H. maintains a strong parental

bond with Grandmother, whom he perceives as his primary parental figure.

Id. 45, 46-47. Ms. Smith testified that Grandmother has been the primary

caretaker for the past two years, “He knows that she’s going to maintain his

safety.   She provides for him.        She shows him love.         He identifies

[Grandmother as] the person who protects him.”         Id. at 47.    Ms. Smith

opined that, of the adults in L.M.H.’s life, he has the strongest parental bond

with Grandmother, and that bond is the most important to cultivate. Id.

She   continued,    “[L.M.H.]   has   become    accustomed    to    living   with

[G]randmother. . . . He knows [G]randmother [is] his caregiver . . . , and

that’s who he’s been with. Terminating the rights of his parents, he’s not

going to feel an impact because he doesn’t see them at this time now.” Id.

at 56.    Overall, Ms. Smith concluded that terminating Father’s parental

rights would permit L.M.H. to continue to reside with Grandmother in a

stable home like a typical four-year old boy. Id. at 56.


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     Accordingly, in light of the evidence demonstrating the absence of a

parent-child bond between L.M.H. and Father and the favorable relationship

that L.M.H. shares with Grandmother, our review of the certified record

supports the orphans’ court’s determination that terminating Father’s

parental   rights   best   satisfied   L.M.H.’s   developmental,   physical,   and

emotional needs and welfare.

     For all of the foregoing reasons, we affirm the orphans’ court order

terminating Father’s parental rights to L.M.H. pursuant to § 2511(a) and (b).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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