J-S11002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: C.J.B.                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: K.L.E., MOTHER                      No. 1797 MDA 2014


            Appeal from the Order entered September 25, 2014
               in the Court of Common Pleas of York County
                   Orphans’ Court, at No(s): 2014-0056a

IN THE INTEREST OF: C.J.B., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: K.L.E., MOTHER                      No. 1875 MDA 2014


            Appeal from the Order entered September 25, 2014
               in the Court of Common Pleas of York County
             Juvenile Court, at No(s): CP-67-DP-0000047-2013

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 24, 2015

      K.L.E. (“Mother”) appeals from the order changing the permanency

goal for her female child, C.J.B. (“Child”), who was ten and a half years old,

from reunification to adoption pursuant to Section 6351 of the Juvenile Act,

42 Pa.C.S.A. §§ 6301-6364, and from the order terminating her parental

rights to Child pursuant to Sections 2511(a)(1), (5), and (b) of the Adoption

Act, 23 Pa.C.S.A. §§ 2101-2910. We affirm.1

      Mother of Child resides in York County; Father resides in Ogden, Utah.

See Trial Court Opinion, 11/6/14, at 1.


1
  C.B. (“Father”) consented to the termination of his parental rights and the
change of goal to adoption of Child, and is not a party to this appeal.
J-S11002-15


      The York County Office of Children, Youth, and Families (“CYF”)

received the most recent referral for the family on January 26, 2013. CYF

filed a Dependency Petition on February 21, 2013, based on the allegation

that Mother physically abused Child.     See id. at 1-2.   Child denied that

Mother caused the bruising, and the referral was deemed unfounded.

Mother had also been involuntary committed for allegedly making homicidal

statements against her paramour who then recanted the accusation, and

Mother was released from the hospital.      Allegations were also made that

Mother was pregnant with her seventh child and using drugs.             The

whereabouts of Father were unknown at the time. See id. at 2.

      On March 12, 2013, the trial court entered an order adjudicating Child

dependent and awarding legal custody of Child to CYF and physical custody

of Child to foster parents, and the goal of return to the parent or guardian

was established.    On April 25, 2013, CYF filed a Motion for Finding of

Aggravated circumstances against Mother. In an order dated May 16, 2013,

the trial court found that clear and convincing evidence existed as to the

basis of the aggravated circumstances, which were found as a consequence

of prior involuntary termination of other children. No efforts were made to

preserve the family and reunify Child with Mother.    See id.   On May 16,

2013, the trial court entered an order affirming the prior adjudication of

dependency, and awarding legal custody of Child to CYF, and awarding

physical custody of Child to the foster parents.


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         CYF filed a Petition for Involuntary Termination of Parental Rights of

Mother and a Petition to Change the Goal to Adoption on April 12, 2014.

The trial court held a hearing on September 25, 2014.          Mother did not

appear at the hearing.

         By the time of the termination hearing, four Family Service Plans

(“FSPs”) had been prepared for the family. The dates of the FSP’s were as

follows: April 11, 2013, October 11, 2013, March 28, 2014, and August 26,

2014. The FSPs were forwarded to Mother in a timely manner. See N.T.,

9/25/15, at 19-20. Mother never objected to any of the goals established

for her in any of the plans. See id. at 20. The goals for Mother were very

limited because the trial court had previously directed that no services were

required to be sent for the benefit of Mother due to the finding of aggravated

circumstances.     Mother’s FSP’s were evaluated on a consistent and timely

basis.

         Evidence presented at the hearing revealed that Mother had been

incarcerated from May 2, 2013, until September 13, 2013, due to

outstanding bench warrants from unresolved criminal charges in 2010. See

id. at 20-21. Mother is currently under the supervision of the York County

Probation and Parole Office and appears to be in compliance with the terms

and conditions of her probation or parole since no additional bench warrants

have been issued. Mother’s supervision is due to charges of possession of a

controlled substance, possession of drug paraphernalia, and driving under


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the influence.   See id. 20-22.       Evidence also revealed that Mother

completed the White Deer Run Program, a drug and alcohol inpatient

program.   Mother, however, continued to use drugs after completing the

program.

     Since the adjudication of dependency, Mother reported being at four

different locations, including York County Prison and the White Deer Run

Program.   See id. at 23.    Mother has not been employed and has not

actively looked for a job. Mother’s paramour supports her. See id. at 24.

     Evidence presented at the hearing revealed that Mother has been fairly

consistent in visiting Child; however, Mother’s visits with Child have never

progressed to the point of being unsupervised.      See id. at 24-27.       In

addition, Child never requested an increase in visits with Mother. Child did

request to have fewer visits, and Child never contacted Mother outside of the

regularly scheduled visits. See id. at 27. Child also becomes upset when

she suspects that Mother is using drugs. See id. at 28.

     Evidence also revealed that Child has resided with her foster parents

for over seven years and is well bonded to them.          In fact, the original

placement with the foster family occurred when Mother indicated that she

wanted the foster parents to have custody of Child. See id. at 28-29. Child

is comfortable with her foster family, and she looks to them to satisfy her

needs and for guidance in her life. See id. at 28-30. The bond that Child

has with Mother is more of an acquaintance bond. See id. at 30. The bond


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between Child and her foster parents is much stronger than the bond

between Mother and Child. See id. at 30-31.

      The trial court also reviewed evidence at the hearing which showed

that Mother completed a drug and alcohol evaluation in December 2013, in

which it was determined that she met the criteria for substance abuse

disorder, and Mother was recommended for outpatient drug and alcohol

treatment. Mother participated in treatment. Her progress was determined

to be slow, and she remained categorized as in the early stages of

treatment.    Moreover, in spite of Mother’s extensive mental health issues,

CYF never received any mental health evaluations despite numerous

requests.

     Evidence presented at the hearing revealed that Mother had been drug

tested by Families United Network since September 2013. Mother was drug

tested on thirty occasions and tested for nonprescription drugs on four

occasions as of August 5, 2014. Mother was unavailable and could not be

tested for drugs on twenty-nine occasions. See id. at 35.

      Child is doing well in her current placement, and she has no special

needs or concerns. A pre-adoptive resource has been identified for Child.

     On September 25, 2014, the trial court issued orders involuntarily

terminating   Mother’s   parental   rights   to   Child   and   changing   Child’s

permanency goals to adoption.       These timely appeals followed, which we

consolidated sua sponte.


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     Initially, we review the termination decree according to the following

standard.

     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
     A.3d 1179, 1190 (Pa. 2010).           If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. Id.; R.I.S., 614
     Pa. 275, 284, 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
     As has been often stated, an abuse of discretion does not result
     merely because the reviewing court might have reached a
     different conclusion. Id.; see also Samuel Bassett v. Kia
     Motors America, Inc., 613 Pa. 371, 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630,
     634 (Pa. 2003). Instead, a decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents.    R.J.T., [608 Pa. at
     28-30], 9 A.3d at 1190. Therefore, even where the facts could
     support an opposite result, as is often the case in dependency
     and termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion. In re Adoption of
     Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).




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     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

     Our case law has made clear that under Section 2511, the court
     must engage in a bifurcated process prior to terminating
     parental rights. 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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. §

2511). The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

     Applying this process to the case at bar, we first will look at the

termination of Mother’s rights to Child under Section 2511(a).      The trial

court terminated Mother’s rights pursuant to (a)(1) and (5).      This Court

need only agree with the trial court’s decision as to any one subsection of

Section 2511(a) in order to affirm the termination. See In re B.L.W., 843

A.2d 380, 384 (Pa. Super. 2004) (en banc). We will therefore examine the

facts under Section 2511(a)(5), which provides:


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      (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:

                                       …

            (5) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency for a period of at least six months, the
            conditions which led to the removal or placement of the
            child continue to exist, the parent cannot or will not
            remedy those conditions within a reasonable period of
            time, the services or assistance reasonably available to
            the parent are not likely to remedy the conditions which
            led to the removal or placement of the child within a
            reasonable period of time and termination of the
            parental rights would best serve the needs and welfare
            of the child.

23 Pa.C.S.A. § 2511(a)(5).

                                       …

      (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).

      Thus, pursuant to subsection (a)(5), CYF has the burden to prove (1)

Child was removed from the care of the parent by the trial court for at least

six months, (2) the conditions which led to Child’s removal continue to exist,

(3) the parent cannot or will not remedy those conditions within a

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reasonable period of time, (4) the services or assistance reasonably

available are not likely to remedy the conditions which led to the removal or

placement within a reasonable period of time, and (5) termination of the

parent’s rights would best serve the needs and welfare of Child. See In re

Adoption of M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003).

      Examining the first element, it is uncontested that Child has been

removed from Mother’s care since January 26, 2013. Child has no contact

with Mother. As such, the first requirement for termination under subsection

(a)(5) is met.

      With respect to the second prong, the trial court determined that

Mother was dependent on drugs, and that her primary drug choice was

heroin.   Families United Network was engaged for the purpose of drug

testing Mother. Mother was incarcerated from May to September 2013 for

drug possession and her second DUI, and Mother was in drug rehabilitation

from October to November 2013. Mother was tested for drugs thirty times

and tested positive for nonprescription drugs on October 3, 2013, March 18,

2014, March 28, 2014, and August 6, 2014.         Similarly, on twenty-nine

occasions, Mother was not available for testing and did not call the testing

agency in order to reschedule.

      Mother had a job for a short period of time, but was unable to

maintain the position.   Mother has no income, and her paramour provides

her with transportation, food and housing, but not in his home. Paramour


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has indicated that he will not be continuing to do so.    In addition, Mother

delivered a new child in January 2013, who is also the subject of a

dependency action.

      Child has been with the foster parents for a period in excess of

eighteen months as a result of the current dependency action. Child is ten

years old, and the foster parents have been Child’s caregivers on and off for

most of her life. She attends a private Mennonite school, and has no special

needs. Child is doing well in the foster parents’ home, and calls her foster

parents “mother” and “father.”    Child is bonded with her foster parents.

     Evidence presented at the hearing revealed that Mother has exercised

supervised visitation of Child thirteen times between the adjudication in

March 2013 and the end of the year.         In addition, Mother has exercised

supervised visitation of Child twenty-four times between January and

September 2014. Mother’s visitation of Child was never suspended, always

supervised, and never progressed beyond the point of being supervised

during the entire period of adjudication. Child has asked for less visitation

with Mother, and has never contacted Mother. Evidence revealed that Child

would become upset when she would notice Mother’s drug use or instability.

Child did not have a healthy bond with Mother.

     After a review of all of the evidence, the trial court correctly

determined that it does not appear that Mother is likely to remedy the

conditions which necessitated the dependency, as Mother has not done so


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during   the   eighteen   months   that   Child   has   been   in   foster   care.

Approximately one month before the change of goal hearing, Mother had

used drugs again.    Mother still had no employment, and her housing was

dependent upon her paramour, whose patience was at an end. When given

the opportunity to present her views in the matter, Mother chose not to

appear at the hearing.

      Finally, the trial court reasonably found that the termination of

parental rights of Mother will serve the needs and welfare of Child.         Child

needs structure and finality to her relationships.      As the bond between

Mother and Child is not significant, termination of Mother’s parental rights

would serve the needs and welfare of Child.

      Thus, there is sufficient, competent, clear and convincing evidence in

the record to support the trial court’s conclusions with regard to section

2511 (a)(5).

      Mother also challenges the sufficiency of the evidence to support the

termination of her parental rights under Section 2511(b). A Section 2511(b)

analysis includes the consideration of love, comfort, security and stability, as

well as the effect on the child of permanently severing the bond with the

parent. See In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006). See also In

the Matter of the Adoption of A.M.B., 812 A.2d 659, 675 (Pa. Super.

2002) (reaffirming that child’s life, happiness, and vitality cannot be put on

hold until parent finds it convenient to perform parental duties). “The court


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must consider whether a natural parental bond exists between child and

parent, and whether termination would destroy an existing, necessary and

beneficial relationship.” In re K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008)

(citation omitted). This Court has observed that, where the child has been

in foster care for most of the child’s life, and the resulting bond is

attenuated, no bond worth preserving is formed between a child and a

natural parent. See id. at 764. This Court has also held that the trial court

is not required by statute or precedent to order that a formal bonding

evaluation be performed by an expert. See In re K.K.R.-S., 958 A.2d 529,

533 (Pa. Super. 2008).

      Beyond that stated above, the panel in the decision in In re K.Z.S.

emphasized that, in addition to a bonding examination, the court can equally

emphasize the safety needs of the child, and should also consider the

intangibles, such as the love, comfort, security and stability the child might

have with the foster parents.    Moreover, we have stated that the court

should consider the importance of continuity of relationships and whether

any existing parent-child bond can be severed without detrimental effects on

the child. See id. at 763.

      Mother does not have a strong bond with the Child.        On the other

hand, the evidence reveals that the Child has a strong emotional bond with

her foster parents, who take care of all of her needs.        The trial court




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determined that there is no evidence that Child would be adversely affected

if her relationship with Mother is severed.

      The competent evidence in the record shows Mother failed to “exhibit

[the] bilateral relationship which emanates from the parent[’s] willingness to

learn appropriate parenting . . . .” In re K.K.R.S., 958 A.2d at 534. She

did not put herself in a position to assume daily parenting responsibilities so

that she could develop a real bond with Child. See In re J.L.C., 837 A.2d

1247, 1249 (Pa. Super. 2003).

      Although Mother may love Child and desire an opportunity to serve as

her mother, a parent’s own feelings of love and affection for a child, alone,

will not preclude termination of parental rights. See In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010); N.T., 7/12/13, at 59. A child’s life “simply

cannot be put on hold in the hope that [a parent] will summon the ability to

handle the responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732

(Pa. Super. 2008).        Rather, “a parent’s basic constitutional right to the

custody and rearing of his child is converted, upon the failure to fulfill his or

her parental duties, to the child’s right to have proper parenting and

fulfillment   of   his   or   her   potential     in   a   permanent,   healthy,   safe

environment.”      In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004)

(citation omitted).

      Mother also challenges the trial court’s change of goal for the Child to

adoption under Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351, and


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55 Pa.Code § 3130.74. Mother argues that CYF failed to make reasonable

efforts to reunite her with Child.

      Section 6351(e) of the Juvenile Act provides in pertinent part:

      (e) Permanency hearings.—

          (1) [t]he court shall conduct a permanency hearing for
          the purpose of determining or reviewing the permanency
          plan of the child, the date by which the goal of
          permanency for the child might be achieved and whether
          placement continues to be best suited to the safety,
          protection and physical, mental and moral welfare of the
          child. In any permanency hearing held with respect to
          the child, the court shall consult with the child regarding
          the child’s permanency plan in a manner appropriate to
          the child’s age and maturity. . . .

                                     …

42 Pa.C.S.A. § 6351(e).

      Regarding permanency, Section 6351(f) and (f.1), and (g) provide:

      (f) Matters to be determined at permanency hearing.— At
      each permanency hearing, a court shall determine all of the
      following:

          (1) The continuing necessity for and appropriateness of
          the placement.

          (2) The appropriateness, feasibility and extent of
          compliance with the permanency plan developed for the
          child.

          (3) The extent of progress made toward alleviating the
          circumstances which necessitated the original placement.

          (4) The appropriateness and feasibility of the current
          placement goal for the child.

          (5) The likely date by which the placement goal for the
          child might be achieved.

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        (5.1) Whether reasonable efforts were made to
        finalize the permanency plan in effect.

        (6) Whether the child is safe.

                                       …

        (9) If the child has been in placement for at least 15 of
        the last 22 months or the court has determined that
        aggravated circumstances exist and that reasonable
        efforts to prevent or eliminate the need to remove the
        child from the child’s parent, guardian or custodian or to
        preserve and reunify the family need not be made or
        continue to be made, whether the county agency has filed
        or sought to join a petition to terminate parental rights
        and to identify, recruit, process and approve a qualified
        family to adopt the child unless:

              (i) the child is being cared for by a relative best
              suited to the physical, mental and moral welfare of
              the child;

              (ii) the county agency has documented a
              compelling reason for determining that filing a
              petition to terminate parental rights would not
              serve the needs and welfare of the child; or

              (iii) the child’s family has not been provided with
              necessary services to achieve the safe return to
              the child’s parent, guardian or custodian within the
              time frames set forth in the permanency plan.

                                       …

     (f.1) Additional determination. — Based upon the
     determinations made under subsection (f) and all relevant
     evidence presented at the hearing, the court shall determine one
     of the following:

        (1) If and when the child will be returned to the child’s
        parent, guardian or custodian in cases where the return
        of the child is best suited to the safety, protection and
        physical, mental and moral welfare of the child.

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        (2) If and when the child will be placed for adoption, and
        the county agency will file for termination of parental
        rights in cases where return to the child’s parent,
        guardian or custodian is not best suited to the safety,
        protection and physical, mental and moral welfare of the
        child.

        (3) If and when the child will be placed with a legal
        custodian in cases where return to the child’s parent,
        guardian or custodian or being placed for adoption is not
        best suited to the safety, protection and physical, mental
        and moral welfare of the child.

        (4) If and when the child will be placed with a fit and
        willing relative in cases where return to the child’s parent,
        guardian or custodian, being placed for adoption or being
        placed with a legal custodian is not best suited to the
        safety, protection and physical, mental and moral welfare
        of the child.

        (5) If and when the child will be placed in another living
        arrangement intended to be permanent in nature which is
        approved by the court in cases where the county agency
        has documented a compelling reason that it would not be
        best suited to the safety, protection and physical, mental
        and moral welfare of the child to be returned to the
        child’s parent, guardian or custodian, to be placed for
        adoption, to be placed with a legal custodian or to be
        placed with a fit and wiling relative.

     (f.2) Evidence. – Evidence of conduct by the parent that places
     the health, safety or welfare of the child at risk, including
     evidence of the use of alcohol or a controlled substance that
     places the health, safety or welfare of the child at risk, shall be
     presented to the court by the county agency or any other party
     at any disposition or permanency hearing whether or not the
     conduct was the basis for the determination of dependency.

     (g) Court order.— On the basis of the determination made
     under subsection (f.1), the court shall order the continuation,
     modification or termination of placement or other disposition
     which is best suited to the safety, protection and physical,
     mental and moral welfare of the child.

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                                        …

42 Pa.C.S.A. § 6351 (emphasis added).

      In a change of goal proceeding under the Juvenile Act, 42 Pa.C.S.A. §

6351, the best interests of the child, and not the interests of the parent,

must guide the trial court, and the parent’s rights are secondary. See In re

A.K., 936 A.2d 528, 532-534 (Pa. Super. 2007).

      Here, the trial court found, by clear and convincing evidence, that CYF

met its statutory burden, and that it was in the best interest of Child to

terminate Mother’s parental rights and change her permanency goal to

adoption.

      The trial court reasoned that the testimony established that the

change in goal would best serve the Child’s safety, protection, mental,

physical, and moral welfare, so that Child may be adopted, and Child may

become a permanent part of a family. Although Mother claims to wish to be

reunited with Child, her actions demonstrate otherwise.         Due to Mother’s

lack of employment or income, the insecurity regarding her housing, and her

inability to stop her drug use, the trial court concluded that it is unlikely that

Mother would be successfully reunified with Child.

      After a careful review of the record in this matter, we find that there is

competent, clear and convincing evidence in the record to support the trial

court’s finding that a change in the permanency goal to adoption is in the



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Child’s best interests. See R.J.T., 9 A.3d at 1185 n.7, 1190-91. See also

In re A.K., 936 A.2d at 532-534.

     Accordingly, we affirm the trial court’s order terminating Mother’s

parental rights to the Child, and the order changing the permanency goal to

adoption.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2015




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