J-S17029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: I.M.E.R., A MINOR,                        IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: J.R., NATURAL MOTHER,

                            Appellant                No. 1891 WDA 2014


                Appeal from the Decree Entered October 9, 2014
                 In the Court of Common Pleas of Blair County
                      Civil Division at No(s): 2014 AD 44


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 23, 2015

       J.R. (“Mother”) appeals from the decree dated October 7, 2014, and

entered on October 9, 2014, that granted the petition filed by Blair County

Children Youth and Families (“BCCYF” or “the Agency”), seeking to

involuntarily terminate Mother’s parental rights to I.M.E.R. (“Child”), who

was born in November of 2013, pursuant to 23 Pa.C.S. § 2511(a)(1), (2),

(5), and (b), and changed Child’s permanency goal to adoption with respect

to Mother, pursuant to 42 Pa.C.S. § 6351(f).1 We affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
     On October 9, 2014, the trial court entered a decree voluntarily
terminating M.P.’s (Father) parental rights to Child, confirming his voluntary
relinquishment of his parental rights at the hearing on September 30, 2014.
(Footnote Continued Next Page)
J-S17029-15


      The trial court summarized the relevant factual and procedural history

of this case as follows:

            The subject child, I.M.E.R., was born [in November of
      2013]. His mother is the Appellant, J.R., while his father is M.P.
      This matter involves dependency proceedings filed to Blair
      County Docket No. CP-7-DP-121-2013.          Those dependency
      proceedings were incorporated into the record at the time of our
      combined 6th/12th Month Review/TPR hearing held September
      30, 2014.

             Blair County Children, Youth & Families (hereinafter
      BCCYF) first became involved with this child and [his] parents [in
      November of 2013,] when the Agency received a call from UPMC
      Altoona stating [Mother] had just delivered a baby, and the staff
      was concerned due to [Mother’s] extremely limited cognitive
      abilities and mental health history. The hospital staff expressed
      additional concerns, including [Mother’s] self-report of being a
      victim of domestic abuse at the hands of the father.

             BCCYF acquired emergency custody of the child on
      November 8, 2013. [Child] was initially placed in the emergency
      kinship care of [Child’s] maternal great[-]aunt [“E.M.”;]
      however, she could not be approved for kinship care due to a
      prior criminal conviction in 2004 for possession of non-prescribed
      pills.

            The adjudicatory hearing was originally scheduled for
      November 22, 2013[;] however, it was continued and ultimately
      held January 8, 2014. On that date, [Child] was adjudicated
      dependent and remained in foster care placement.             No
      appropriate family resources were identified by the parents.

            [Mother] was directed to undergo a psychological
      evaluation for the purpose of a global assessment to determine
      her parenting ability. The father was recommended to partake
      in Family Drug Court and to undergo a drug and alcohol
      assessment.     Both parents were ordered to cooperate with
                       _______________________
(Footnote Continued)

Father did not file a notice of appeal from the decree terminating his
parental rights, nor is he a party to the instant appeal.



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     reunification services.   [Order of Adjudication and Disposition,
     1/8/14].

           The 6th Month Permanency Review hearing was scheduled
     for April 30, 2014[;] however, the Agency opted to move the
     matter to court due to its concerns regarding the lack of
     progress made by either parent. The matter was rescheduled
     for June 17, 2014. BCCYF advised the parties it would be
     seeking a goal change to adoption.

           Permanency Review Hearings were held on June 17, 2014
     (6 Month Review) and September 30, 2014 (combined 6 th
        th

     Month/12th Month Review).     BCCYF’s Petition to Terminate
     Parental Rights was combined with the CYF Permanency Review
     Hearing held September 30, 2014.

Trial Court Opinion, 11/19/14, at 1-2.

     At the six-month permanency review hearing on June 17, 2014, BCCYF

presented the testimony of Nicole Weyant, a parent-educator with Family in

Crisis Services (“FICS”) in Blair County, Pennsylvania. N.T., 6/17/14, at 4.

BCCYF also presented the testimony, via telephone, of Marolyn Morford,

Ph.D., a licensed psychologist who conducted a psychological evaluation of

Mother, and who testified as an expert witness. Id. at 13-15.

     At the permanency review hearing and termination hearing on

September 30, 2014, BCCYF presented the testimony of Dr. Morford via

telephone.   N.T., 9/30/14, at 8.   BCCYF also presented the testimony of

Shannon Cameron, a reunification worker with Kids First, in Altoona,

Pennsylvania, who was Mother’s reunification worker.     Id. at 40.      Next,

BCCYF presented the testimony of Julie Nardozza, an employee of the Home

Nursing Agency in Altoona, Pennsylvania, who has provided Children’s


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Blended Case Management Services for Mother since July of 2012.                  Id. at

90.     BCCYF then presented the testimony of Jodie Feath, the Support

Coordinator     Supervisor      for   North    Star   Services,   Inc.,   in   Altoona,

Pennsylvania, who serves as Mother’s Support Coordinator. Id. at 108-109.

Finally, BCCYF presented the testimony of Ashley Gehrdes, BCCYF Casework

Supervisor assigned to Mother’s case since December of 2013. Id. at 119.

Mother testified on her own behalf, and presented the testimony of her aunt,

E.M., with whom Mother resides. Id. at 140-141, 173-174.

        On October 9, 2014, the trial court entered the decree involuntarily

terminating Mother’s parental rights. On November 6, 2014, Mother timely

filed a notice of appeal along with a concise statement pursuant to Pa.R.A.P.

1925.

        Mother raises the following issue for our review:

        A. Whether or not the trial court erred in terminating Mother’s
           parental rights to her child?

Mother’s Brief at 6.2

        Mother argues that the trial court erred in terminating her parental

rights because Child had not been in placement for fifteen out of twenty-two
____________________________________________


2
    In her concise statement of errors complained of on appeal and her
statement of questions involved in her brief, Mother has not raised the issue
of the change of Child’s permanency goal to adoption. Therefore, Mother
waived any challenge to the goal change. See Krebs v. United Refining
Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating
that any issue not set forth in or suggested by an appellate brief’s statement
of questions involved and concise statement is deemed waived).



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months, the Agency failed to provide services at the frequency or duration

that the Agency’s own expert, Dr. Morford, opined would be necessary to

accomplish reunification with Mother, and Mother had her aunt, E.M., as an

appropriate support system. Mother’s Brief at 8. Mother requests this Court

to reverse the trial court’s determination and remand the matter directing

reunification between Mother and Child.

     We review an appeal from the termination of parental rights in

accordance with the following standard set forth by our Supreme Court:

     [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. If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. As has been often
     stated, an abuse of discretion does not result merely because
     the reviewing court might have reached a different conclusion.
     Instead, a decision may be reversed for an abuse of discretion
     only upon demonstration of manifest unreasonableness,
     partiality, prejudice, bias, or ill-will.

           As we discussed in [In re: R.J.T., 9 A.3d 1179 (Pa.
     2010)], 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., 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


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      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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some citations

omitted).

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

evidence that the asserted grounds for seeking the termination of parental

rights are valid.     In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we have explained:

      [t]he standard of 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
      hesitance, of the truth of the precise facts in issue.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).     In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

Here, the trial court terminated Mother’s parental rights under 23 Pa.C.S. §

2511(a)(1), (2), (5), and (b). We will focus upon sections 2511(a)(2) and

(b), which provide as follows:

      § 2511. Grounds for involuntary termination

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

                                      ***

            (2) The repeated and continued incapacity, abuse,
            neglect or refusal of the parent has caused the child to be

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J-S17029-15


         without essential parental care, control or subsistence
         necessary for his physical or mental well-being and the
         conditions and causes of the incapacity, abuse, neglect or
         refusal cannot or will not be remedied by the parent.

                                    ***

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b).

     To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d

1266, 1272 (Pa. Super. 2003). In addition, the grounds for termination of

parental rights under section 2511(a)(2), due to parental incapacity that

cannot be remedied, are not limited to affirmative misconduct; to the

contrary those grounds may include acts of refusal as well as incapacity to




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perform parental duties.     In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002).

      Our Supreme Court set forth our inquiry under section 2511(a)(2) as

follows:

      As stated above, § 2511(a)(2) provides statutory grounds for
      termination of parental rights where it is demonstrated by clear
      and convincing evidence that “[t]he repeated and continued
      incapacity, abuse, neglect or refusal of the parent has caused
      the child to be without essential parental care, control or
      subsistence necessary for his physical or mental well-being and
      the conditions and causes of the incapacity, abuse, neglect or
      refusal cannot or will not be remedied by the parent.” If and
      only if grounds for termination are established under subsection
      (a), does a court consider “the developmental, physical and
      emotional needs and welfare of the child” under § 2511(b).

            This Court has addressed          incapacity   sufficient   for
      termination under § 2511(a)(2):

           A decision to terminate parental rights, never to be made
           lightly or without a sense of compassion for the parent,
           can seldom be more difficult than when termination is
           based upon parental incapacity.           The legislature,
           however, in enacting the 1970 Adoption Act, concluded
           that a parent who is incapable of performing parental
           duties is just as parentally unfit as one who refuses to
           perform the duties.

      In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa.
      1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228,
      1239 (Pa. 1978)).

Adoption of S.P., 47 A.3d at 827.

      This Court has stated that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

In re A.L.D., 797 A.2d at 337. A parent’s vow to cooperate, after a long


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J-S17029-15


period of uncooperativeness regarding the necessity or availability of

services, may properly be rejected as untimely or disingenuous. Id. at 340.

     After a careful review of the certified record, we conclude that the trial

court aptly discussed the evidence pertaining to the requirements of section

2511(a)(2).   The trial court explained its decision to terminate Mother’s

parental rights and change Child’s permanency goal to adoption as follows:

          We found that there had been minimal compliance with the
     permanency plan, in that:

             The mother has not invested in services and has not
         demonstrated any ability to safely parent this very young,
         11-month old, child. Because of her cognitive limitations,
         and her refusal/inability to implement the safety
         techniques she has been taught, the child would be at
         serious risk if placed in her custody. The mother has no
         other appropriate resources who could constantly be with
         her to help her care for the child, which is what would be
         necessary. The mother has not demonstrated any ability
         to remedy the circumstances which led to placement, nor
         is there any indication that she could remedy such
         circumstances in the foreseeable future even with
         continued services in place.

             BCCYF has attempted reunification services on two
         separate occasions, first with FICS, and then after the
         mother complained about the FICS representatives, with
         New Steps. Both FICS (Nicole Weyant) and New Steps
         (Shannon Cameron) were consistent in their testimony
         that the mother would become very frustrated and angry
         when the representatives tried to teach her basic
         parenting skills such as changing a diaper, feeding the
         baby, dressing the baby, holding the baby, transferring
         the child in and out of a car seat, etc. The mother made
         very little, if any, progress in demonstrating she could
         provide these basic parenting skills. The representatives
         of both agencies testified that there was a lack of eye
         connection and interaction from [Child] toward his
         mother, and that there did not appear to be any apparent

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J-S17029-15


        bond between the two.         The visits always remained
        supervised, and in fact, New Steps decreased the visits
        from 2 hours to 1 hour because of the obvious distress
        the child often demonstrated when with his mother.
        There was a delay in implementation of services by New
        Steps because of the difficulty in making contact with the
        mother.    Because of her frustration with the service
        providers, the mother didn’t attend any scheduled visits
        with the child since 8/28/14, nor [sic] any practice
        sessions where parenting skills were being taught since
        9/6/14. Shannon Cameron of New Steps testified that
        they tried to implement the recommendations of Dr.
        Marilyn [sic] Morford, who performed a psychological
        evaluation on the mother (her report being BCCYF Exhibit
        1, 6/17/14). The mother was consistently unable to
        retain basic parenting skills. Ms. Cameron testified that
        she could not assure that the child would be safe in the
        mother’s care for any length of time, even for one
        minute.

            Both Julie Nardozza, the Blended Case Manager from
        Home Nursing Agency, and Jodie Feath, of North Star
        Services, testified as to their respective agency’s
        involvement with the mother. Ms. Nardozza assists the
        mother in areas such as medication management,
        housing, employment and education. The mother suffers
        from a diagnoses of mood disorder, adjustment disorder
        with anxiety, and depression.           She is prescribed
        medications. As the service providers from FICS and New
        Steps testified, it was difficult to assist the mother [as]
        she refused to acknowledge the need and/or refused to
        accept such services.          Ms. Nardozza consistently
        recommended the mother to seek individual counseling
        for her mental health needs. The mother has scheduled a
        session with an individual therapist on 10/17/14.
        Because of missed appointments, the mother has not
        been able to obtain a primary care physician. Without a
        PCP [Primary Care Provider], the mother was unable to
        get a referral for the neuropsychological evaluation and
        occupational      therapy      assessment      that   were
        recommended by Dr. Morford. The mother did complete
        her community service hours, she receives social security
        disability benefits in the approximate amount of $700 per
        month, she currently is residing with her aunt, E.M., who

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        is a source of support for her, and she has separated
        from the child’s father, M.P., which all service providers
        indicate is a “positive” in her life. There remains a worry
        as to whom she may involve herself in a relationship, as
        her judgment in the past has been an area of concern.
        See ¶ 3(a) of Permanency Review Order of 10/7/14.

           Dr. Morford testified that the mother suffered from two
     separate areas that hinder her ability to parent. First, her
     cognitive developmental deficit impairs her ability to understand
     proper and safe parenting; and the second is an obvious
     neurological impairment, which impedes her physical ability to
     safely [c]are for the child.

             It is important to note that during the June 17, [2]014
     hearing, Dr. Morford testified that even in the “best case”
     scenario, where the mother would cooperate with service
     providers and have a stable support system, that [sic] it would
     still take years before she would have the ability to provide a
     safe, stable and secure environment for this young child on her
     own. More specifically, the child would have to be at least school
     age if this were to ever occur. The fact remains, however, that
     the mother has been uncooperative with services and does not
     have a positive and stable support system.

          We also made the following specific findings in our
     Permanency Review Order of October 7, 2014:

           • Appropriate services were recommended consistent with
     the goal of reunification with the parents. Unfortunately, due to
     a lack of cooperation and investment in such services by the
     parents, and the mother’s limitations relative to her intellectual
     functioning, reunification is not a viable and safe option. Thus,
     the goal is changed herein to adoption. ¶ 4(a), p. 2.

           • The child is doing very well in his foster placement. He is
     beginning to bond with his foster parents, which is a concern for
     the Agency since they are not an adoptive resource. The Agency
     has identified a potential adoptive resource and visits have
     recently commenced. ¶ 23(c), p. 7.

           • Since the child’s placement shortly after birth, the
     Agency has offered a multitude of services to the parents,
     including FICS Reunification Services, New Steps Reunification

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      Services, Home Nursing Agency, North Star Services and a
      psychological evaluation by Dr. Morford.          Despite these
      multitude of services, neither parent made any progress nor
      demonstrated any ability to safely parent the child. The Agency
      has made reasonable efforts to reunify the child with his parents.
      ¶ 23(d), p. 7.

             • Neither parent will be able to remedy the circumstances
      that led to placement, nor would either parent be able to remedy
      such circumstances if additional services were put into place. A
      termination of their parental rights would best serve the needs
      and welfare of the child. ¶ 23(d), p. 7.

            Based upon the above findings, we found that the mother
      had made “minimal” progress toward alleviating the
      circumstances which necessitated the original placement. ¶ 6(a)
      of Permanency Review Order of 10/7/14.

            Based upon the evidence adduced during the Review
      Hearings, we changed the goal to adoption. At the time of our
      Order, the child had been in placement for 11 months, since
      November 8, 2013[;] however, the child has now been in
      placement for a period in excess of 1 year.

             In a change of goal proceeding, 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. In re A.K., 936
      A.2d 528, 532-533 (Pa. Super. 2007).

            As a result of the foregoing, we found that BCCYF met its
      burden, by clear and convincing evidence, of establishing
      grounds for termination under §2511(a)(1), (a)(2), (a)(5) and
      (b). We believe that a termination of parental rights is in the
      best interest of the subject child. We also submit that the record
      established by clear and convincing evidence, after taking into
      consideration the developmental, physical and emotional needs
      and welfare of the subject child, that the termination of the
      parental rights of J.R. would best serve the needs and welfare of
      the child.

Trial Court Opinion, 11/19/14, at 6-8 (emphasis in original).




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      Indeed, there is ample, competent, clear and convincing evidence in

the record to support the trial court’s determination that Mother has not

demonstrated any ability to remedy the circumstances which led to Child’s

placement, nor is there any indication that Mother could remedy such

circumstances in the foreseeable future, even with continued services in

place. Unlike section 2511(a)(1) and (5), section 2511(a)(2) does not have

a time limitation.

      In her appellate brief, Mother sets forth portions of the testimony from

the hearings on June 17, 2014 and September 30, 2014, which she believes

is beneficial to her case.   However, we will not impose our own credibility

determinations and re-weigh the evidence.       Rather, we must defer to the

trial judge’s determination, as the factual findings are supported by the

record, and the trial court’s legal conclusions are not the result of an error of

law or an abuse of discretion.      Adoption of S.P., 47 A.3d at 826-827.

Hence, we conclude that the requirements of section 2511(a) have been

satisfied.

      After we determine that the requirements of section 2511(a) are

satisfied, we next proceed to review whether the requirements of section

2511(b) are satisfied. In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated that the focus in terminating

parental rights under section 2511(a) is on the parent, but under section

2511(b), the focus is on the child. Id. at 1008.


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      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently stated the following:

             [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. § 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.” In
      re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
      [620 A.2d 481, 485 (Pa. 1993)], this 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.
      In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      We have stated that, in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social

workers and caseworkers.     In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010).   This Court has observed that no bond worth preserving is formed

between a child and a natural parent where the child has been in foster care

for most of the child’s life, and the resulting bond with the natural parent is

attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).

      There is ample, competent, clear and convincing evidence in the

certified record to support the trial court’s determination that Child’s foster

parents currently meet all of his needs and welfare, and that Child, who has

been in placement since his birth, lacks any bond with Mother. The record

supports the trial court’s determination that the termination of Mother’s


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parental rights would serve Child’s best interests, and that there is no bond

to sever between Child and Mother.

        Mother argues that BCCYF did not make reasonable efforts to reunify

Mother with Child because she did not receive the intensity or duration of

services recommended by Dr. Morford. Mother’s Brief at 21, 29. She also

contends that the termination of her parental rights was premature because

Child had not been in care for fifteen of the most recent twenty-two months,

and was less than one year old. Id. Our Supreme Court recently rejected

the argument that the provision of reasonable efforts by the county

children’s services agency is a factor in termination of the parental rights of

a parent to a child. See In the Interest of: D.C.D., a Minor, 105 A.3d

662, 673-674, 676 (Pa. 2014) (rejecting the suggestion that an agency must

provide reasonable efforts to enable a parent to reunify with a child prior to

the termination of parental rights and that section 2511 of the Adoption Act

should be read in conjunction with section 6351(f)(9)(iii) of the Juvenile

Act).    Thus, based upon our Supreme Court’s holding in Interest of:

D.C.D., a Minor, we discern no merit to Mother’s argument that Child had

not been in placement for fifteen of the preceding twenty-two months.

Accordingly, we affirm the trial court’s decree terminating Mother’s parental

rights to Child pursuant to 42 Pa.C.S. § 2511(a)(2) and (b), and changing

Child’s permanency goal to adoption pursuant to section 6351 of the

Juvenile Act.


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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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