J-A29026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.P.G.                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: K.M.H.                               No. 85 WDA 2015


             Appeal from the Order Entered December 12, 2014,
       in the Court of Common Pleas of Blair County, Orphans’ Court,
                         at No(s): No. 2014 AD 42

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 23, 2015

      K.M.H. (“Mother”) appeals from the orphans’ court order entered on

December 12, 2014, which denied her petition to involuntarily terminate the

parental rights of J.R.C., Jr. (“Father”) to her minor son, A.P.G. After careful

review, We reverse.

      A.P.G. was born during March of 2011, as a result of Mother’s brief

relationship with Father. N.T., 10/27/14, at 7, 14. Over the next several

years, Mother and Father rarely spoke to one another, and Father remained

absent from A.P.G.’s life.   Father never visited with A.P.G., sent gifts, or

provided Mother with financial assistance to care for him.          Id. at 15.

Meanwhile, Mother began dating J.C.H. (“Stepfather”).              Mother and

Stepfather began living together in August of 2011.           They married in

November of 2012. Id. at 12, 18.

      On July 14, 2014, Father sent Mother a message via Facebook asking

to see A.P.G. Mother responded by requesting that Father allow A.P.G. to be
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adopted by Stepfather, and Father refused. On July 24, 2014, Father filed a

pro se complaint for custody of A.P.G.      Approximately one month later,

Mother filed a petition to terminate Father’s parental rights pursuant to 23

Pa.C.S. § 2511(a)(1), regarding a parent’s failure or refusal to perform

parental duties. On the same date, Mother and Stepfather filed a petition for

adoption that identified Stepfather as the prospective adoptive parent.

     A termination hearing was held on October 27 and 29, 2014. Mother

testified in support of the petition for termination and proffered two

witnesses: her husband and Lynn E. Kagarise, an expert in the field of

forensic child psychology.     Father testified and called two witnesses.

Following the close of evidence, the court-appointed guardian ad litem filed a

memorandum in support of terminating Father’s parental rights pursuant to

§ 2511(a)(1).

     On December 12, 2014, the orphans’ court denied Mother’s petition to

terminate parental rights.     Essentially, the trial court concluded that,

although Mother established that Father had neglected to perform his

parental duties to their son, Father’s inaction was the direct result of

obstacles Mother erected.       Furthermore, the court credited Father’s

explanation that he attempted to rekindle a relationship with Mother,

because it provided him a mechanism to establish contact with A.P.G.

Mother timely filed a notice of appeal along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).



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      She raises the following issues for our review.

      1. Whether the trial court erred when it denied and dismissed
      [Mother’s] Petition for Involuntary Termination of Parental Rights
      based upon an analysis and conclusion that [Father] did not
      evidence a settled purpose of relinquishing a parental claim to
      the child, rather than upon the evidence and testimony clearly
      indicating that [Father] failed to perform parental duties for a
      period in excess of six months immediately preceding the filing
      of the Petition[?]

      2. Whether the trial court erred in determining that [Mother]
      created such significant obstacles so as to thwart [Father’s]
      ability to have contact with the child and perform his parental
      duties[?]

      3. Whether the trial court failed to give adequate consideration
      to the testimony of the expert witness when it denied and
      dismissed [Mother’s] Petition for Involuntary Termination of
      Parental Rights[?]

Mother’s brief at 3.

      We consider Mother’s claims mindful of our well-settled standard of

review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because 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).


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      Involuntary termination of parental rights is governed by § 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938.           As the party petitioning for

termination of parental rights, Mother “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).

      As noted, Mother sought to terminate Father’s parental rights pursuant

to § 2511(a)(1) and (b), 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:

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



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

23 Pa.C.S. § 2511(a)(1), (b).

     With respect to § 2511(a)(1), this Court has explained,

           A court may terminate parental rights under Section
     2511(a)(1) where the parent demonstrates a settled purpose to
     relinquish parental claim to a child or fails to perform parental
     duties for at least the six months prior to the filing of the
     termination petition.    The court should consider the entire
     background of the case and not simply:

           . . . mechanically apply the six-month statutory
           provision. The court must examine the individual
           circumstances of each case and consider all
           explanations offered by the parent facing termination
           of his . . . parental rights, to determine if the
           evidence, in light of the totality of the circumstances,
           clearly warrants the involuntary termination.

In re A.S., 11 A.3d 473, 482 (Pa. Super. 2010) (citations omitted).

     Regarding the definition of “parental duties,” we have stated,

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A
     child needs love, protection, guidance, and support. These
     needs, physical and emotional, cannot be met by a merely
     passive interest in the development of the child. Thus, this court
     has held that the parental obligation is a positive duty which
     requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.




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      Parental duty requires that the parent act affirmatively with good
      faith interest and effort, and not yield to every problem, in order
      to maintain the parent-child relationship to the best of his or her
      ability, even in difficult circumstances. A parent must utilize all
      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. Parental
      rights are not preserved by waiting for a more suitable or
      convenient time to perform one’s parental responsibilities while
      others provide the child with . . . her physical and emotional
      needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004).

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the court must then engage

in three additional lines of inquiry: (1) the parent's explanation for his or her

conduct; (2) the post-abandonment contact between parent and child; and

(3) consideration of the effect of termination of parental rights on the child

pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.

2008).

      Mother’s second issue is dispositive.     In explaining its rationale for

denying Mother’s petition to terminate Father’s parental rights, the orphans’

court acknowledged that Father failed to perform parental duties for A.P.G.;

however, it determined that Father’s failure to perform parental duties was a

result of obstacles created by Mother.      The court emphasized, inter alia,

Father’s interest in attending his son’s birth, his attempts to contact Mother

at work, and his conversations with Mother on Facebook. The court further

highlighted Father’s request to see then-three-year-old A.P.G. during July of



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2014, and the ensuing complaint for custody he filed in response to Mother’s

refusal.

      Mother argues that the trial court erred in concluding that the hurdles

that Father faced were so insurmountable as to excuse his failure to perform

parental duties.1   After a thorough review of the record in this matter, we

agree with Mother’s contention that the orphans’ court erred in denying

Mother’s petition to terminate Father’s parental rights pursuant to §

2511(a)(1) and (b).

      Plainly, Father failed to perform “parental duties” as we defined the

phrase in In re A.S., supra.       During the termination hearing, Mother

testified that she and Father remained in contact for only “a few weeks”

after Mother discovered that she was pregnant in July of 2010.          N.T.,

10/27/20, at 7-8.     Mother resided at the residence of A.P.G.’s maternal

grandmother at that time, and remained there until June of 2011. Id. at 9-

10.   After Mother moved, she did not provide her new address or phone

number to Father, because Father “was not in contact with [her].” Id. As

noted supra, Mother has lived with Stepfather since August of 2011, and

married him in November of 2012. Id. at 12, 18. Father has never seen


1
  Father asserts that this argument is waived because the question Mother
raised in her statement of questions presented challenged only the court’s
finding that Mother erected barriers to Father’s contact. We disagree. As
noted on page three of our memorandum, Mother assailed the orphans’
court’s determination that the barriers thwarted Father’s ability to contact
A.P.G. or perform his parental duties. That assertion necessarily brings into
question Father’s efforts to overcome the alleged barriers.

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A.P.G., never provided gifts or financial assistance for A.P.G., and never

attended any of A.P.G.’s medical appointments. Id. at 15-16.

      Additionally, Father admitted during the evidentiary hearing that he

neglected to purchase A.P.G. clothing or diapers, provide child support, or

attend his doctor’s appointments.       N.T., 10/29/14, at 68.        He also

acknowledged that he failed to send his son any letters, cards, or presents

prior to the date that Mother filed the petition for termination. Id. Hence, it

is beyond peradventure that, since his son’s birth, Father either failed or

refused to perform parental duties.

      Moreover, the certified record will not sustain the trial court’s finding

that the restrictions that Mother imposed on Father’s contact with his son

were overwhelming. In this regard, Mother testified that she began working

as a cashier at the local Wal-Mart in September of 2011. N.T., 10/27/14, at

at 11. Mother occasionally would see Father while working, but Father never

approached her to discuss A.P.G. Id. Mother stated that, on one occasion,

“[w]hen I wasn’t working, he checked out directly behind me and never said

a word to me.” Id. Mother acknowledged that she spoke with Father at a

bar in November of 2012, and that Father had her new cellular telephone

number at the time.     Id. at 12-13.       Mother later engaged in Facebook

conversations with Father, and spoke with Father at Wal-Mart.       Id. at 21,

25, 32-33.    Mother insisted that her communications with Father were




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always “about us,” and that Father “never specifically asked about [A.P.G.].”

Id. at 33.

      While Mother acknowledged that Father continued to contact her after

November of 2012, she testified that this contact also was not about A.P.G.

Id. at 14.    Rather, “[i]t was always about trying to get me back.”      Id.

According to Mother, Father continued to send text messages attempting to

rekindle a relationship with her, despite the fact that Father was dating

someone, and Mother was married. Id. As a result, Mother changed her

phone number again in the “summer or fall of 2013.”         Id.   Mother also

blocked Father on Facebook.      Id.     Mother insisted that Father did not

express any interest in A.P.G. until he sent her a message using a new

Facebook account in July of 2014. Id. at 14, 21, 29.

      Stepfather testified consistently with Mother.   He stated that Mother

has not hidden A.P.G. from Father or attempted to create any barriers

between Father and A.P.G.     Id. at 74.     He also stated that he has seen

Father at Wal-Mart over a dozen times since he began his relationship with

Mother, and while Father as approached him to inquire about Mother, he

never asked about A.P.G. Id. at 60-62.

      As it relates to the trial court’s finding that Father employed

reasonable firmness to overcome the barriers that Mother allegedly erected,

we summarize Father’s description of his efforts as follows. Father testified

that he spoke with Mother on the telephone about a week prior to A.P.G.’s



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birth during March of 2011, and Mother informed him that she was

scheduled to have labor be induced. N.T., 10/29/14, at 19. She provided

Father with the date of the procedure, but she did not provide him with the

name of the hospital where the birth would take place. Id. at 20. Father

claimed that Mother originally agreed to meet with him a few days prior to

A.P.G.’s birth in order to discuss how he was going to be involved A.P.G.’s

life. Id. at 19. That meeting never took place, as Mother would not return

Father’s calls and text messages. Id. at 20. On the day A.P.G. was born,

Father traveled to two local hospitals, and called a third hospital, in an

unsuccessful effort to locate Mother and A.P.G. Id. at 21.

      Father further testified that he encountered Mother and A.P.G. at Wal-

Mart about two months after the child’s birth; however, “[a]s soon as

[Mother] turned around and saw me, she immediately took off outside of the

store[.]” A month or two later, Father received a text message from a friend

alerting him to the fact that Mother and A.P.G. were again shopping at Wal-

Mart. Id. at 24. Father explained that he left work and rushed to Wal-Mart.

Id. Once there, Father located Mother, but as he put it, “[A]s soon as she

saw me, she had darted off, zig-zagging through aisles to get to the back of

the electronics department where [Stepfather] was at the time.” Id. at 24-

25.

      Father continued that he was not aware that Mother had moved out of

the maternal grandmother’s residence in June of 2011, and that he visited



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the home of the maternal grandmother twice approximately six or seven

months after A.P.G. was born. Id. at 25-26. On the first occasion, no one

was home. Id. The second time, a woman Father did not recognize came

to the door and told him that Mother no longer lived there.       Id.   Father

testified that he conducted searches on the internet in an effort to determine

where Mother had moved.      Id. at 26-27.    Father could not find Mother’s

address, and was unable to reach her on the telephone.         Id. at 29-30.

Father recounted that he sent Mother a message using Facebook during

Thanksgiving of 2011. Id. at 28. He wished Mother a happy Thanksgiving

and asked to see A.P.G. Id. She did not respond to this message. Id. at

29.

      Father stated that Mother did not communicate with him again until

she initiated contact with him using a friend’s Facebook account in

November of 2012.     Id. at 29.   He spoke with Mother for approximately

sixty to ninety minutes. Id. at 31. Father asked about A.P.G., but he did

not request to see him. Id. at 33. After that meeting, Father had follow-up

conversations with Mother where they discussed their son.         Id. at 33.

During these talks, Mother indicated that she did not want Father to be

involved in A.P.G.’s life until the child was older. Father acquiesced to the

request and did not insist upon meeting his son. In written response to a

Facebook post, Father wrote, “[I] understand your reasoning for things and I

completely agree . . . it would kinda [sic] mess [Father’s other son] up in



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ways as well . . [.] he wouldn[’]t understand.” See Respondent’s Exhibit 2

at 24.


         During a subsequent meeting, Father also acquiesced to Mother’s

insistence that he forego buying his son a Christmas present.                 N.T.,

10/29/14, at 38.     By Easter of 2013, Mother had terminated contact with

Father and blocked him on Facebook. Id. at 37, 39-40. More than one year

later, during the summer of 2014, Father reestablished contact and for the

first time demanded to see A.P.G. Id. at 37, 53.

         Father’s primary excuse for failing to bypass Mother in order to

establish a relationship with his son was that he only recently discovered

that he had parental rights and his ability to pursue those rights through the

court system. Id. at 70-71. Father also asserted that he wanted to avoid

the courts for economic reasons, was afraid of inciting an altercation with

Mother and Stepfather, and eschewed police involvement. Id. at 73. Father

admitted that his discussions with Mother in November of 2012 focused

primarily on his relationship with her, but claimed that, “[A.P.G.] factor[ed]

into all of it . . . It was an ultimate end goal being in [A.P.G.’s] life[.]” Id. at

77.

         Father’s girlfriend, B.F., testified that she has known Father since

January of 2013, and reported that Father has attempted to see A.P.G. by

sending Mother text messages.         N.T., 10/29/14, at 9.       She specifically

referenced text messages Father sent Mother during the summer of 2013, in




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which he asked about his son.           Id. at 15.    She also referenced text

messages Mother and Father exchanged during Easter of 2013, but she did

not recall whether the parties discussed A.P.G. Id.

      Our review of the certified record confirms that Mother established by

clear and convincing evidence that Father failed to utilize available resources

to establish a parental relationship or exercise reasonable firmness to resist

the obstacles that he claims Mother erected. For the first nineteen months

of A.P.G.’s life, Father made only five attempts to contact him. Specifically,

Father tried to visit A.P.G. at the hospital, attempted to speak with Mother at

Wal-Mart, visited the home of the maternal grandmother twice, and sent

Mother a Facebook message.            Later, during November of 2012, Father

engaged in extended discussions with Mother, both in person and online,

and discovered the approximate location of Mother’s home; however, he did

not seek custody of his son and did not insist on visiting the child. Instead,

Father agreed with Mother’s perspective that it would be best not to meet

his son until the child matured. Thereafter, Father made almost no effort to

contact A.P.G.        At best, Father sent Mother text messages asking about

A.P.G.     in   the   summer    of   2013.     When   Mother   terminated   that

communication and blocked Father on Facebook, he simply gave up and

made no further attempts until he sent Mother another message during July

of 2014.




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      While it is true that Father made an isolated request to see A.P.G.

during July 2014, and ultimately filed a complaint for custody when the July

2014 request was denied, it is well-settled that courts must consider the

whole history of the case and not “mechanically apply the six-month

statutory provision.”   A.S., 11 A.3d at 482. Here, our examination of the

entire history of this case reveals that Father failed to exercise reasonable

firmness in order to overcome the obstacles that he alleges that Mother

created and he abdicated all parental responsibility with respect to A.P.G.

until July of 2014.

      As the record establishes that Father’s efforts were insufficient, the

trial court erred in rejecting Mother’s petition to terminate on that basis. In

re B.,N.M., supra at 855 (“A parent must utilize all 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.”); see also In re C.M.S., supra at 464 (rejecting trial court's

reasoning that mother's behavior excused father's failure to maintain contact

with his daughter because father failed to exercise reasonable firmness in

attempting to overcome those obstacles). Accordingly, we reverse the order

of the orphans’ court denying the petition to terminate Father’s parental

rights with respect to § 2511(a)(1).

      We next consider whether the termination of parental rights would

best serve A.P.G.’s developmental, physical, and emotional needs and



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welfare pursuant to § 2511(b).    We have discussed our analysis under §

2511(b) as follows.

     Subsection 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and
     emotional needs and welfare of the child. In In re C.M.S., 884
     A.2d 1284, 1287 (Pa.Super. 2005), this Court stated,
     “Intangibles such as love, comfort, security, and stability are
     involved in the inquiry into the needs and welfare of the child.”
     In addition, we instructed that the trial court must also discern
     the nature and status of the parent-child bond, with utmost
     attention to the effect on the child of permanently severing that
     bond. Id. However, in cases where there is no evidence of a
     bond between a parent and child, it is reasonable to infer that no
     bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
     2008).    Accordingly, the extent of the bond-effect analysis
     necessarily depends on the circumstances of the particular case.
     Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

     Herein, child psychologist Lynn E. Kagarise was qualified as an expert

in the area of child psychology addressing the impact of termination of

parental rights upon children of A.P.G.’s age and maturity. N.T., 10/27/14,

at 39-40. Mr. Kagarise has practiced clinical and forensic child psychology

since 1987.   Id. at 38.   He proffered expert opinion testimony in several

hundred cases involving custody and termination of parental rights in

various jurisdictions in the Commonwealth. Id.

     While Mr. Kagarise never examined A.P.G., he was familiar with the

essentials of the case, i.e., a three-and-one-half year old child who has

never had contact with his biological parent.    Id. at 44.   In essence, Mr.

Kagarise opined within a degree of psychological certainty that terminating



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an absentee parent’s parental rights does not result in any psychological

harm to a child because the absence creates “a vacuum, an emptiness, [or]

a nothingness” in the relationship that would not be missed. Id. at 44, 48-

49. He explained, “developmentally[,] attachment does not begin to occur

until approximately the age of six months and then continues most actively--

and the real critical time developmentally is between the ages of six months

and approximately eighteen to twenty-four months.”           Id. at 45.    He

continued, “in the absence of that, to terminate, to end in this case and a

case such as this, the relationship between a parent and child which never

existed is essentially nothingness.     It has nothing within the experiential

basis of that child.”    Id. at 48.   Thereafter, Mr. Kagarise surmised, “The

short answer is [that] this is what the research in child development

indicates.” Id. at 49.

      Our review of the orphans’ court’s opinion reveals that it did not

directly address the needs and welfare of A.P.G. pursuant to § 2511(b) prior

to denying Mother’s petition under § 2511(a)(1).       Although the orphans’

court found Mr. Kagarise to be credible and agreed with the expert’s ultimate

opinion regarding the effect of severing a nonexistent bond, the orphans’

court reasoned that the lack of a parent-child bond did not override the

determination pursuant to § 2511(a)(1) that Father used reasonable

firmness to attempt to establish contact with his child.      Thus, it did not

engage in a formal needs and welfare analysis.



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      Normally, we would remand the matter to the orphans’ court for its

specific needs-and-welfare analysis.        “Where, however, the record is

sufficiently developed (as is the case here), we may substitute our judgment

for that of the trial court and decide the case on the merits.”    M.A.T. v.

G.S.T., 989 A.2d 11, 21 (Pa.Super, 2010) (en banc) (collecting child custody

cases).   Thus, mindful that the instant case is designated Children’s Fast

Track and in light of the profound fact that no parent-child bond exists

between Father and his now four-year-old son, whom he has never met, and

the evidence in the certified record concerning A.P.G.’s needs and welfare,

including the unrebutted expert opinion that terminating an absentee

parent’s rights would not harm a child of A.P.G.’s age and maturity, it is not

necessary to remand this case for the orphans’ court’s restatement of the

obvious: “a child who has no bond with a biological parent would not be

psychologically harmed if that bond is severed.”        Trial Court Opinion,

12/12/14, at 20.

      Accordingly, we reverse the orphans’ court order denying the petition

to terminate Father’s parental rights and we remand for the entry of an

order terminating Father’s parental rights to A.P.G. pursuant to § 2511(a)(1)

and (b) of the Adoption Act.

      Order reversed.    Case remanded for entry of an order terminating

Father’s parent rights. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2015




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