J-A31039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: K.M.P., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

APPEAL OF: T.M.P., MOTHER                         No. 883 MDA 2014


                 Appeal from the Decree Entered April 21, 2014,
              in the Court of Common Pleas of Huntingdon County
                     Orphans’Court at No: CP-31-OC-2-2014

BEFORE:       BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 12, 2015

        T.M.P. (Mother) appeals from the decree entered April 21, 2014, in the

Court    of   Common    Pleas   of   Huntingdon   County,   which   involuntarily

terminated her parental rights to her minor daughter, K.M.P. (Child), born in

October of 2011.1 We affirm.

        At the time Child was born, Mother was incarcerated in a state

correctional institution. Two days after birth, Child was placed in the care of

her paternal Great-Aunt, R.L.L. (Great-Aunt).        Great-Aunt later married

R.D.S. (Great-Uncle), who assists her in raising Child.        Great-Aunt and

Great-Uncle filed petitions to involuntarily terminate the parental rights of

Mother and Father to Child on February 12, 2014. Great-Aunt and Great-

Uncle filed a report of intention to adopt Child that same day. A hearing was


1
  The orphans’ court issued a separate decree, also entered April 21, 2014,
which terminated the parental rights of Child’s father, D.E.L. (Father).
During the termination hearing in this matter, Father agreed to relinquish his
parental rights voluntarily. N.T., 4/16/14, at 6-8. On appeal, Father has
submitted a brief as an appellee, in which he argues in support of the
termination of Mother’s parental rights.
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held on April 16, 2014, during which the orphans’ court heard the testimony

of Father; Great-Aunt; Great-Uncle; Mother; and Great-Aunt’s Sister-in-Law,

L.M.L. (Sister-in-Law).   The court also heard a statement from Child’s

guardian ad litem.

      Following the   hearing, on    April 21, 2014, the       orphans’ court

involuntarily terminated the parental rights of Mother to Child. On May 20,

2014, Mother filed a notice of appeal. Mother failed to concomitantly file a

concise statement of errors complained of on appeal, as required by

Pa.R.A.P. 1925(a)(2)(i). By order dated May 21, 2014, the orphans’ court

instructed Mother to file a concise statement. Mother complied on June 3,

2014.2

      Mother now raises the following issue for our review.

            The question before this Court is whether [Great-Aunt and
      Great-Uncle] overcame the evidence indicating that they and
      their family members actively prevented [Mother] from
      contacting [Child], and proved by clear and convincing evidence
      that, for a period of at least six months immediately preceding
      the filing of the petition, [Mother] either evidenced a settled
      purposes of relinquished parental claim to her daughter [Child],
      or refused or failed to perform parental duties.


2
  As Great-Aunt and Great-Uncle have not claimed any prejudice as a result
of this late filing, we have accepted Mother’s concise statement in reliance
on our decision in In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009)
(holding that an appellant’s failure to strictly comply with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of the appellant’s claims, as there was
no prejudice to any party). Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super.
2010) (stating that, where the appellant not only failed to simultaneously file
a concise statement with her notice of appeal but also failed to comply with
the trial court’s order to file concise statement within 21 days, she waived
her issues on appeal).
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Mother’s Brief at 3.

      We consider Mother’s claim 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).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory
      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child 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.


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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Sections 2511(a)(1) and (b), which provide 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
      described therein which are first initiated subsequent to the
      giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (b).

      We first address whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(1).           To

meet the requirements of this section, “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


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duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re

Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must

then consider “the parent’s explanation for his or her conduct” and “the

post-abandonment contact between parent and child” before analyzing

Section 2511(b).    Id.    (quoting In re Adoption of Charles E.D.M., 708

A.2d 88, 91 (Pa. 1998)).

      This Court has emphasized that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).                  Rather,

“[p]arental 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.”    Id.    (citation omitted).    Critically, incarceration does not

relieve a parent of the obligation to perform parental duties.                      An

incarcerated   parent     must   “utilize   available   resources   to   continue    a

relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

      Instantly, Mother contends that the evidence presented at her

termination hearing “indicated that [she] intended to maintain a parent-child


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relationship with her daughter, and consistently expressed that intention” by

writing to Child, visiting with Child on Easter of 2012, calling Great-Aunt and

Great-Uncle, and expressing to Great-Aunt and Great-Uncle her desire to

continue visiting with Child.     Mother’s Brief at 11.    In so doing, Mother

ultimately sought to obtain custody of Child. Id. Mother further claims that

she “worked to overcome” the obstacles she faced that prevented her from

maintaining a relationship with Child. Id. Specifically, Mother indicates that

she attempted to call Child, but that Great-Aunt and Great-Uncle refused to

accept her calls.     Id.   Mother also states she lost Great-Aunt and Great-

Uncle’s mailing address, and that this “not only prevented [Mother] from

writing to them, but also from calling them, due to restrictions imposed by

the prison.”   Id.    Mother claims that she sought to retrieve the mailing

address, and that she also attempted to send mail to Child through Sister-in-

Law. Id.

      Mother   also    argues   that   Great-Aunt   and   Great-Uncle   “actively

interfered” with her attempts to maintain a relationship with Child.      Id. at

12. Mother states, for example, that Great-Aunt failed to provide Mother’s

mother with her mailing address when requested, refused to accept

messages that Mother attempted to pass through her mother, and that

Great-Aunt and Great-Uncle’s family “assisted them in preventing [Mother]

from having contact with [Child].” Id. at 12-13. Mother asserts that “[t]his

Court cannot condone or allow [Mother’s] rights to be terminated on the


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basis of [Great-Aunt and Great-Uncle’s] interference,” and that the orphans’

court “failed to give proper consideration” to this interference.   Id. at 13,

19.3

       In contrast, the orphans’ court concluded that Mother “made no effort

whatsoever to maintain a place of importance in [Child’s] life” during the six

months prior to the filing of Great-Aunt and Great-Uncle’s petition to

terminate. Orphans’ Court Opinion, 6/16/14, at 4 (unpaginated). The court

reasoned that Mother’s parental responsibilities were not tolled while she

was imprisoned, and that, while she “gave many excuses for her failures in

maintaining a relationship with [Child],” Mother has “failed to succeed in any

of her parental responsibilities.”   Id. at 4-5.   The court explained that

Mother’s “claims of attempting to write the [C]hild but not having [Great-

Aunt and Great-Uncle’s] address just cannot be believed.” Id.

       Our review of the record supports the orphans’ court’s conclusions. At

Mother’s termination hearing, Great-Aunt testified that Mother has seen

3
   In her reply brief, Mother states that Great-Aunt and Great-Uncle’s
appellee brief contains various factual misstatements, and that the factual
history presented in the brief should be disregarded. Mother’s Reply Brief at
1-3. Mother also contends that Great-Aunt and Great-Uncle’s brief does not
include citations to the record in support of these misstatements, and that
the brief therefore violates our Rules of Appellate Procedure. Id. at 3-4.
Mother suggests that, “[g]iven [Great-Aunt and Great-Uncle’s] failure to
comply with these rules, their arguments should be deemed waived and
ignored.” Id. at 4 (citations omitted). We note that our decision to affirm
the decree of the orphans’ court is based upon our own thorough review of
the record in this matter, and that we do not rely on the factual history or
the arguments contained within Great-Aunt and Great-Uncle’s brief in
reaching our conclusions.

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Child only once since her birth, on Easter of 2012. N.T., 4/16/14, at 10, 39.

Great-Aunt acknowledged that she has received letters from Mother for

Child, including one dated November 7, 2011, another from Easter 2012,

and a Christmas card.4 Id. at 26-29, 32-33. Great-Aunt stated that she last

received a text message from Mother on April 15, 2013. Id. at 21. Great-

Aunt indicated that Mother last attempted to call her on March 21, 2013.

Id. at 33-34.   However, Great-Aunt testified that she had not heard from

Mother in the six months prior to the filing of the petition to involuntarily

terminate Mother’s rights on February 12, 2014. Id. at 10. Mother did not

call, send a letter, or have someone else contact Great-Aunt on Mother’s

behalf during this period. Id. Great-Aunt and Great-Uncle were responsible

for supporting Child financially during that time period, and did not receive

any assistance from Mother. Id. at 40.

      On cross-examination, Great-Aunt was asked about a letter she

received from Mother, dated February 7, 2013.      Id. at 22.   In the letter,

Mother indicated, inter alia, that she wanted to “start getting [Child] at the

end of May. . . .” Id. at 24. Mother stated that she was “upset” and “mad”

that she didn’t know what Child looked like and didn’t have a picture of Child

until recently, and that “I can’t wait until she can call me and know me as

mommy.” Id. Mother thanked Great-Aunt for her assistance, and cautioned


4
  Great-Aunt did not testify as to when she received the Christmas card, but
Mother contends in her brief that the card was sent in 2012. Mother’s Brief
at 5.
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that Great-Aunt would still get to see Child, and that “[s]he will always be

part of you and [Great-Uncle] as long as you all don’t try to take her from

me in any way.” Id. Mother asked how Child was doing, and what Child

was like, and expressed her desire to call Child more often and, “as I can

make more than two phone calls a week I’ll be able to call more.” Id. at 25.

Mother noted that, “the last few times I called you never answered.” Id.

     Great-Aunt conceded that she disagreed with Mother’s attempt to

assert her status as Child’s mother, and that this letter made her “furious.”

Id. at 19, 23. Great-Aunt testified that the letter upset her because, inter

alia, Child was 17 months old at the time, and did not know Mother. Id. at

17. She stated, “I am not just gonna let her go with her[.] That would be

like her going with a stranger.” Id. Great-Aunt admitted that she “had no

clue as to how to deal with” Mother gaining custody of Child.      Id.     She

explained that she did not encourage Child to view Mother as her mother

because Child was too young to understand the situation. Id. at 17, 35.

     Great-Aunt was also asked about a series of text messages that were

sent between her and Mother during March and April of 2013. In one text

message, Great-Aunt complained to Mother about her letter, stating “[w]ell

your letter really upset me. Seriously, [Mother]. She don’t even know you.

So at this point the only thing I know to do is when you get out, we go back

in front of the judge.” Id. at 15. In another text message, Mother stated

that she had tried to call Great-Aunt, and that she wanted to talk about the


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situation with Child. Id. at 18. Mother expressed concern that Great-Aunt

was attempting to “get custody” of Child, and requested that Great-Aunt

answer her phone. Id. Great-Aunt responded by saying, “[Mother], I have

had custody since January 2012. You got the same paper I’m sure. I have

no clue how to introduce her to you.”        Id. at 19.     In a text message

concerning Mother’s desire to see Child on Easter of 2013, Great-Aunt

stated, “Do you realize I do have custody? I’ve had [it] since January 2012.

And [Mother], I can’t even put you on speaker phone and you’re saying

Mommy loves you. I let it slide when she was too young to understand now

she’s older and thinks I am mommy.”         Id. at 20.    Great-Aunt expressed

concern that introducing Child to Mother “would just confuse her at this

point.” Id.

     Additionally, Great-Aunt testified that she communicated regularly with

Mother’s mother. Id. at 34. Great-Aunt indicated that Mother’s mother had

inquired about her address “about a year ago,” because “[Mother] was

gonna write but she didn’t have the address.” Id. at 34-45. Great-Aunt did

not provide an address because she “assumed [Mother] knew it” because

“she had letters from me.” Id. at 35. Great-Aunt explained that she had

not moved or changed her address in 12 years, and that she had the same

phone number for 23 years.     Id. at 42.     Great-Aunt stated that the text

messages she received from Mother were sent to a phone number that she

continues to possess, and that the mail she received from Mother was sent


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to the same address at which she continues to reside.          Id.   Great-Aunt

denied that Mother attempted to call her and was ignored. Id. at 34.

      Mother testified that she was incarcerated at SCI Cambridge Springs at

the time Child was born. Id. at 48. At the time of the hearing, Mother was

residing at SCI Muncy. Id. Mother was also incarcerated in Blair County for

a period of time in 2013. Id. at 53. Mother anticipated that she would be

paroled soon after the termination hearing “[b]ecause I did everything I had

to do,” and stated that, upon her release, she intended to “get [Child] back.”

Id. at 52-53. Mother conceded that Great-Aunt had been caring for Child

since birth, and that she did not send Great-Aunt and Great-Uncle money or

gifts for Child. Id. at 54, 56. Mother admitted that the last time she saw

Child was Easter of 2012, at her father’s residence.        Id. at 50.   Mother

agreed that she had no contact with Child, or contact with Great-Aunt about

Child, since April 15, 2013. Id. at 48. Mother testified, however, that she

had attempted to make contact with Great-Aunt since that date. Id. at 49.

      Specifically, Mother explained that she “tried to get [Great-Aunt’s]

address off three different people.     And I tried to call her three times in

July,” but no one answered her calls.      Id. at 49, 51.    Mother stated she

intended to send Child “cards and letters and stuff,” but could not do so

without Great-Aunt’s address. Id. at 49-50. Mother admitted that she had

Great-Aunt’s address previously, but explained that she lost it because

“[w]hen I got sent back up state, I didn’t have any of my stuff.” Id. at 49.


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Mother indicated that her “stuff” with the address was at her mother’s home,

but that her mother claimed not to have the address. Id. at 55-56. Mother

testified that, since she could not send anything to Great-Aunt, she began

sending mail for Child to Sister-in-Law, who had adopted two of Mother’s

other children.    Id. at 55, 59-60.    Mother indicated that she wrote a

separate letter or card for Child every time she wrote to her other children

who live with Sister-in-Law, but that Sister-in-Law “blocked my address like

a month ago.” Id. at 58. Mother stated that she did not know if Child ever

received any of her letters or cards. Id. at 57.

      Mother also claimed that she could not call Great-Aunt from SCI Muncy

because she needed Great-Aunt’s “address or birth date to add it to my

phone list.” Id. at 55. She explained that she was able to call in July of

2013 because she was incarcerated in Blair County at the time, and that in

“Blair County you don’t have to have an address or a birth date. You can

just call the number.”   Id. at 54. Mother testified that she speaks to her

mother on the phone “[e]very other week.”          Id. at 51.   However, Mother

claimed that she no longer tries to pass messages along to Child by way of

her mother because she knew that Great-Aunt would not allow them to

reach Child. Id.

      Sister-in-Law was called to testify as a rebuttal witness. Sister-in-Law

noted that Mother sent cards for Child in 2012.            Id. at 60-61.   She

elaborated that the cards were received on “Christmas maybe or Easter. It


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was a colored paper, like three of them. But I haven’t had anything since.”

Id. at 60. Sister-in-Law admitted that she blocked mail from Mother from

coming to her house in 2012, “when she went back to jail.” Id. at 61.

      In sum, the record confirms that Mother had no contact with Child

during the six months prior to the filing of the petition to terminate her

parental rights. While Mother was incarcerated during this time, that does

not excuse Mother’s failure to perform parental duties.       S.P., 47 A.3d at

828. While Mother claims that she could not call or write to Child directly

because she lacked Great-Aunt’s address, and that she attempted to send

letters to Child by way of Sister-in-Law, the orphans’ court was free to reject

this testimony as incredible and conclude, as it did, that Mother made no

effort to maintain a relationship with Child.     Finally, while it is true that

Great-Aunt was resistant to Mother’s attempt during the spring of 2013 to

assert her rights as to Child, Mother’s efforts occurred prior to the critical

six-month window.       The record reveals that, after facing this initial

resistance, Mother simply gave up and abandoned Child.           We therefore

conclude that the orphans’ court did not abuse its discretion by terminating

Mother’s parental rights pursuant to Section 2511(a)(1).

      Next, we consider whether termination was proper under Section

2511(b).5 The requisite analysis is as follows.


5
  Mother makes no specific argument in her brief with respect to Section
2511(b). However, in light of the requisite bifurcated analysis, we consider
whether the orphans’ court abused its discretion. See In re C.L.G., 956
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      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. 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.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

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

citations omitted).

      With respect to the bond analysis pursuant to section 2511(b), our

Supreme     Court     has   stated,   “[c]ommon   sense   dictates   that   courts

considering termination must also consider whether the children are in a

pre-adoptive home and whether they have a bond with their foster parents.”

T.S.M., 71 A.3d at 268 (citation omitted).        Moreover, the court directed

that, in weighing the bond considerations pursuant to section 2511(b),

“courts must keep the ticking clock of childhood ever in mind.” Id. at 269.

The T.S.M. court observed, “[c]hildren are young for a scant number of

years, and we have an obligation to see to their healthy development

quickly.   When courts fail . . . the result, all too often, is catastrophically

maladjusted children.” Id.




A.2d 999, 1010 (Pa. Super. 2008) (en banc) (considering Section 2511(b)
despite the appellant’s failure to challenge the trial court’s analysis).
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      Here, the orphans’ court concluded that it would be in Child’s best

interests for Mother’s parental rights to be terminated.           The court

emphasized that Child has seen Mother only once since her birth, and that

Child was “thriving” in the care of Great-Aunt and Great-Uncle.     Orphans’

Court Opinion, 6/16/14, at 6 (unpaginated). The court reasoned that “[a]ny

decision other than to terminate parental rights would clearly be detrimental

to the developmental, physical and emotional needs of [Child].” Id.

      Again, our review of the record supports the orphans’ court’s decision.

During the termination hearing, Great-Aunt testified that that Child “thinks

I’m her Mother,” and that she thinks of Child “like she is my daughter.”

N.T., 4/16/14, at 10-11. Great-Aunt noted that Child calls her “mom,” and

that they are “bonded.” Id. at 17, 35. Great-Aunt indicated that Child has a

similar relationship with Great-Uncle. Specifically, she testified that Great-

Uncle treats Child “[l]ike his daughter,” and that Child thinks of Great-Uncle

like “[h]e is God.” Id. at 11. Great-Aunt stated that she wished to adopt

Child. Id.   Great-Aunt testified that she no longer works, but that Great-

Uncle is employed, and that they are able to continue providing for Child.

Id. at 44.

      Great-Uncle also testified, and agreed with Great-Aunt’s testimony

fully. Id. at 45. Great-Uncle explained that Great-Aunt is Child’s primary

caretaker, and that Great-Aunt treats Child as though she is Child’s mother.

Id. at 45-46.   When asked about his own relationship with Child, Great-


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Uncle stated, “I feel like she is my daughter.”      Id. at 45.   Great-Uncle

agreed that he and Child have a “father and child” relationship, and that

Child is a “daddy’s girl.”   Id. at 47.   He expressed his intention to adopt

Child should Mother’s parental rights be terminated. Id. at 46.

      Finally, Child’s guardian ad litem offered his assessment.          The

guardian ad litem confirmed that Child is bonded with Great-Aunt and

“hangs most especially on [Great-Uncle].      Wherever he goes she follows.”

Id. at 62. The guardian ad litem noted that Great-Aunt and Great-Uncle’s

home was “quite adequate,” and expressed his support for the involuntary

termination of Mother’s parental rights. Id. at 62-63.

      Thus, the testimony presented during Mother’s termination hearing

confirms that it would be in Child’s best interest if Mother’s parental rights

were terminated.     Given that Mother has only seen Child once since her

birth, it is clear that Mother and Child have no bond. See In re K.Z.S., 946

A.2d 753, 762-63 (Pa. Super. 2008) (“In cases where there is no evidence of

any bond between the parent and child, it is reasonable to infer that no bond

exists.”).   Instead, Child is bonded with Great-Aunt and Great-Uncle, who

act as her parents and who have provided for her for nearly her entire life.

We agree with the orphans’ court that any decision other than termination

would be detrimental to Child, as it would deny her a place in the only family

she has ever known.




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     Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by terminating the parental rights of Mother pursuant to

Sections 2511(a)(1) and (b), we affirm the decree of the orphans’ court.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2015




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