J-S25036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.E.L.C., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: T.C., FATHER                    :       No. 101 MDA 2020

              Appeal from the Decree Entered December 16, 2019
               In the Court of Common Pleas of Luzerne County
                       Orphans' Court at No(s): A-8889


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                   FILED JULY 01, 2020

       Appellant, T.C. (“Father”), appeals from the decree entered in the

Luzerne County Court of Common Pleas, Orphans’ Court, which granted the

petition of Children and Youth Services (“CYS”) for involuntary termination of

Father’s parental rights to his minor child, A.E.L.C. (“Child”).1 We affirm.

       The relevant facts and procedural history of this case are as follows.

Child was born in May 2018. At the time of Child’s birth, Mother and Child

tested positive for cocaine. CYS became involved, and reached out to Father

on three separate occasions to assess his prospects as a placement resource.

Father, however, repeatedly denied CYS access to his home.           The court

subsequently granted CYS’s request for an emergency shelter care order,


____________________________________________


1The court also terminated the parental rights of E.E (“Mother”) who is not a
party to the current appeal.
J-S25036-20


adjudicated Child dependent, and placed her in foster care.          CYS also

developed a family service plan that ordered Father to complete a drug and

alcohol evaluation and follow any resulting recommendations; complete a

mental health assessment and follow any resulting recommendations;

complete a parenting education course; participate in the color call-in system;

and maintain safe and stable housing.

      Father visited Child for a few months after her placement. In October

2018, Father started a new job in New York and ended his visitation with Child

shortly thereafter.   Father’s last recorded visit with Child occurred on

November 2, 2018. Father lived in New York until April 2019. During that

time, Father failed to provide CYS with a New York mailing address or updated

phone number.

      On January 7, 2019, the court found aggravated circumstances existed

in Father’s case, and relieved CYS of its obligation to make reasonable efforts

to reunify Child with Father. Specifically, the court found Father’s parental

rights to another child had previously been involuntarily terminated.

      On February 5, 2019, Father attended his last permanency review

hearing. CYS did not have contact with Father again until April 2019, when

Father called CYS caseworker, Gabrielle Stelmak, to inquire about his options

to participate in the court-ordered mental health evaluation, drug and alcohol

evaluation, and parenting course. Although no longer required to assist with

Father’s reunification efforts, Ms. Stelmak gave Father the contact information


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for various service providers.

      On May 14, 2019, CYS filed a petition for involuntary termination of

Father’s parental rights.   As of CYS’s filing, Father had not completed the

court-ordered services. The court conducted termination hearings on August

22, 2019 and September 10, 2019. Ms. Stelmak and Father testified during

both hearings. Significantly, Ms. Stelmak described Father’s noncompliance

with the family service plan and his absence from Child’s life. Ms. Stelmak

also stated that Child had assimilated with her foster family and would not

suffer any detrimental effects should Father’s rights be severed. In contrast,

Father testified that CYS was uncooperative and impeded his ability to reunify

with Child.   Furthermore, Father stated that neither his drug and alcohol

evaluation    nor   his   mental   health   evaluation    presented   additional

recommendations that required Father to follow through with treatment.

      On December 16, 2019, the court determined that Child had been out

of Father’s care for at least twelve (12) months, Father had not remedied the

conditions which had led to removal, and termination would be in Child’s best

interests. Consequently, the court terminated Father’s parental rights. On

January 15, 2020, Father timely filed his notice of appeal and concise

statement of errors complained on appeal.

      Father raises the following issue for our review:

         Whether the court erred in finding that [CYS] proved the
         elements of 23 Pa.C.S.A. § 2511(a)(8) and 23 Pa.C.S.A. [§]
         2511(b) through clear and convincing evidence?


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(Father’s Brief at 4).

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent evidence,
         and whether the trial court gave adequate consideration to
         the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand. … We must employ
            a broad, comprehensive review of the record in order
            to determine whether the trial court’s decision is
            supported by competent evidence.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            Furthermore, we note that the trial court, as the finder
            of fact, is the sole determiner of the credibility of
            witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by
            clear and convincing evidence the existence of
            grounds for doing so.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
         2002) (internal citations and quotation marks omitted). The
         standard of clear and convincing evidence means testimony
         that is so clear, direct, weighty, and convincing as to enable
         the trier of fact to come to a clear conviction, without
         hesitation, of the truth of the precise facts in issue. In re
         J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
         uphold a termination decision if any proper basis exists for
         the result reached. In re C.S., 761 A.2d 1197, 1201

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           (Pa.Super. 2000) (en banc). If the court’s findings are
           supported by competent evidence, we must affirm the
           court’s decision, even if the record could support an opposite
           result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
           2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

      CYS filed a petition for the involuntary termination of Father’s parental

rights to Child on the following grounds:

           § 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:

                                    *    *    *

              (8) The child has been removed from the care of the
              parent by the court or under a voluntary agreement
              with an agency, 12 months or more have elapsed from
              the date of removal or placement, the conditions
              which led to the removal or placement of the child
              continue to exist and termination of parental rights
              would best serve the needs and welfare of the child.

                                    *    *    *

              (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

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

                                       *       *   *

23 Pa.C.S.A. § 2511(a)(8), (b).                “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117.2 When conducting a termination 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… 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.

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

       In his sole issue on appeal, Father submits the court failed to properly

consider his progress towards remedying the conditions that led to the

termination of his parental rights. Specifically, Father avers the court wrongly

favored the caseworker’s testimony regarding Father’s efforts and progress,

rather than Father’s own testimony. Father alleges he completed all feasible

requirements of the family service plan. Moreover, Father asserts that the

bond he had formed with Child through their early visitation would have


____________________________________________


2CYS also sought the involuntary termination of Father’s parental rights under
Section 2511(a)(1), but we need only analyze Section 2511(a)(8) for purposes
of this appeal.

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persisted had CYS not interfered and filed for termination. Father concludes

the trial court erred in terminating his parental rights under Section

2511(a)(8) and (b), and this Court must reverse. We disagree.

      “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for 12 months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to exist;

and (3) termination of parental rights would best serve the needs and welfare

of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super.

2003).   “Section 2511(a)(8) sets a 12-month time frame for a parent to

remedy the conditions that led to the children’s removal by the court.” In re

A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has

been established, the court must next determine whether the conditions that

led to the child’s removal continue to exist, despite the reasonable good faith

efforts CYS supplied over a realistic time.   Id.   Termination under Section

2511(a)(8) does not require the court to evaluate a parent’s current

willingness or ability to remedy the conditions that initially caused placement

or the availability or efficacy of CYS’s services. In re Adoption of T.B.B.,

835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.      In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability


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are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”

Id. Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.

         When conducting a bonding analysis, the court is not
         required to use expert testimony. Social workers and
         caseworkers can offer evaluations as well. Additionally,
         Section 2511(b) does not require a formal bonding
         evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

      “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his… rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

         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 [C]ourt 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

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         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.

         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… 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), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his… child is converted, upon

the failure to fulfill his… parental duties, to the child’s right to have proper

parenting and fulfillment of [the child’s] potential in a permanent, healthy,

safe environment.” Id. at 856.

      In the instant case, the court evaluated Father’s Section 2511(a)(8)

claim as follows:

         (1) TIME PERIOD OF REMOVAL OF CHILD

         It is undisputed that [Child] has been removed from the
         custody of…Father since May 14, 2018. Accordingly, this
         removal has persisted well in excess of the statutorily
         required twelve (12) months since the date of [Child’s]
         placement. Thus, the requisite minimum of at least 12


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       months from removal of minor [Child] from Father has
       elapsed so as to comply with this section of 2511(8).

       (2) CONDITIONS CONTINUING TO EXIST

       It is clear from the testimony of witnesses and evidence
       presented that Father has been unable to resolve his
       substance abuse, concerns with parenting skills, and his
       mental health issues.

       Ms. Stelmak testified that…[Child] was born [in] May []
       2018 and the date of placement for [Child] was May 14,
       2018. According to Ms. Stelmak, the reason for placement
       was that Mother tested positive for cocaine and marijuana
       at the time of [Child’s] birth. [Child], at the time of her
       birth, also tested positive for cocaine. Ms. Stelmak indicated
       that on three separate occasions, the agency attempted to
       reach out to Father in order to assess his residence;
       however, Father refused access to the agency on all these
       occasions. Ms. Stelmak indicated that [Child’s] sibling was
       deemed dependent and was in the custody of [CYS]. She
       stated that Father was not compliant with court ordered
       services for substance abuse, parenting, or mental health
       treatment.

       Ms. Stelmak testified that Father was ordered to comply
       with a family service plan which required a drug and alcohol
       evaluation, toxicology screens, maintenance of safe and
       stable housing, completion of a parenting education course,
       submission to a mental health assessment, and following all
       recommended services. Ms. Stelmak testified that the court
       entered an Order on January 7, 2019 finding aggravated
       circumstances in the dependency case. As a result, [CYS
       was] relieved of efforts to reunify [Child] with [her] parents.
       Ms. Stelmak explained that aggravated circumstances were
       found due to an involuntary termination of parental rights
       with respect to another child of the natural parents. …

       Ms. Stelmak testified that prior to the finding of aggravated
       circumstances, Father did not complete any of the required
       services in the family service plan in order to reunify with
       his daughter.

       Ms. Stelmak testified that she received a call from Father in

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       mid-April of 2019 regarding the services. Ms. Stelmak
       stated that even though reasonable efforts to reunify were
       not required to be made of [CYS], she still provided Father
       with the names and telephone numbers of service providers
       such as parenting services, substance abuse services, and
       mental health services. Ms. Stelmak indicated that…Father
       did not provide [CYS] with any documentation verifying that
       he completed the court ordered services prior to the date of
       filing of the petition to terminate his parental rights on May
       14, 2019.

       Ms. Stelmak indicated that she spoke with a service provider
       from Wyoming Valley Alcohol and Drug Services who
       indicated that Father did not complete any programs. It was
       recommended that [F]ather participate in individual
       outpatient therapy and weekly individual sessions. Father
       participated in three of those sessions and then stopped
       attending the sessions. Ms. Stelmak testified that the last
       contact that Father had with Wyoming Valley Alcohol and
       Drug Services was on May 24, 2018. Ms. Stelmak also
       testified that on November 25, 2018[,] Father was “closed
       out” from the Family Service Association due to Father’s
       noncompliance.

       With respect to mental health, Ms. Stelmak received a
       report from Northeast Counseling Center regarding Father
       which stated that in May 2019 he participated in an
       evaluation which revealed that Father had a diagnosis of
       moderate cannabis use disorder. Ms. Stelmak stated that
       Father did not believe that he had any addiction to cannabis.
       Ms. Stelmak stated that since Father was taking medication
       for his seizure disorder, he was advised not to use his
       medication and to refrain from consuming any alcohol or
       any type of non-prescribed drug. Father was advised to
       consult with a physician and was given a lab order
       requesting a toxicology screen. One week later, Father no
       longer wanted to engage in services and since there was no
       referral from [CYS], Father was discharged.

       Ms. Stelmak testified that she did not believe…Father
       remedied the circumstances which led to [Child’s]
       placement. She stated that Father did not provide any proof
       verifying that he completed the services required of him.


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       Ms. Stelmak testified that since the date of placement,
       Father was afforded visitation with [Child]. Ms. Stelmak
       stated that Father was visiting with [Child] until November
       2, 2018. Father visited with [Child] at a facility known as
       “Vision Quest.” Father was then closed out on November 7,
       2018 due to his lack of participation in the visits. [CYS] sent
       a letter to Father advising him to take part in visits on
       Tuesdays and Thursdays from 9:00 a.m. to 12:00 p.m. at
       the [CYS] visitation center. Ms. Stelmak stated she had
       texted Father several times; however, the messages came
       back as non-deliverable. Ms. Stelmak indicated that Father
       only provided her with one phone number. On cross
       examination, Ms. Stelmak stated that Father’s visits at
       Vision Quest were terminated due to his lack of attendance.
       Ms. Stelmak testified that she sent the aforesaid letter
       pertaining to the visits changing to [CYS] to the address
       provided by Father. Ms. Stelmak stated that if Father had
       moved from his address, it was his responsibility to notify
       [CYS] within twenty-four (24) hours of any changes to his
       address or phone number. Ms. Stelmak had learned that
       Father moved from his address; however, Father never
       notified Ms. Stelmak of his change of address or phone
       number. Ms. Stelmak stated that throughout the placement
       of [Child], Father did not keep consistent contact with Ms.
       Stelmak in order to inquire about his daughter.

       Ms. Stelmak testified that on December 4, 2018, she
       received a text message from Father stating that he was not
       able to visit with his daughter at [CYS] because he was
       working in New York. Ms. Stelmak testified that Father must
       have received the letter from [CYS] in November 2018
       which notified him that the visits would be taking place at
       [CYS] on Tuesdays and Thursdays.

       Father testified that he tried to contact M[s]. Stelmak and
       left her several text messages. He stated that he went to
       the [CYS] office a few times and brought gifts with him for
       [Child]. Father stated that he moved out of his home in
       September 2018 and that he did notify Ms. Stelmak over
       the phone of his new address. Father further testified that
       he was never notified by Ms. Stelmak by text message or
       telephone call that his visits at Vision Quest were
       terminated. He also stated that he was never notified of
       same by Vision Quest.

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       Father did admit that after his last visit on November 2,
       2018, he contacted Ms. Stelmak to advise her that he took
       a job in New York and that he would be working there for “a
       while.” Father wanted to set up a different visitation
       schedule upon his return. Father stated that he remained
       in New York until April 2019 when his job was completed.
       Father stated that he did have a telephone conversation with
       Ms. Stelmak in which she advised him that visits would occur
       on Tuesdays and Thursdays. However, Father was not able
       to attend these visits due to his employment in New York.

       This [c]ourt finds Father’s testimony to be inconsistent.
       Father originally testified that Ms. Stelmak did not provide
       him with any names of treatment centers and told him he
       must do it on his own. Then Father changed his testimony
       and admitted that Ms. Stelmak provided names of certain
       treatment providers that he could contact. The [c]ourt finds
       that although Ms. Stelmak told Father that she was not
       permitted to refer him to a treatment center, she
       recommended the names and phone numbers of certain
       treatment providers for Father. The [c]ourt finds Father’s
       testimony to not only be inconsistent, but also not credible
       and finds Ms. Stelmak’s testimony to be credible.

       The [c]ourt finds that the conditions that led to [Child’s]
       removal from Father’s care and into placement were
       Father’s inability to complete his parenting courses,
       substance abuse treatment and mental health treatment.
       The [c]ourt has performed the above extensive analysis in
       taking testimony and finding credible evidence in concluding
       that Father did not complete his court ordered services.
       Therefore, the conditions that gave rise to placement
       continue to exist.

       (3) NEEDS AND WELFARE OF THE CHILD

                                *     *      *

       [CYS] presented credible testimony regarding the needs,
       welfare and best interest of [Child] in relation to her Father.
       Ms. Stelmak testified that [Child] has been in placement
       with the foster parents since May 2018. Ms. Stelmak
       testified that the foster parents also adopted another child

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         and there is another foster child with them in the home, in
         addition to [Child]. She testified that [Child] has assimilated
         into the family. According to Ms. Stelmak, she visited the
         foster home on a monthly basis. She testified that [Child]
         has a bond with her foster siblings and her foster parents.
         Ms. Stelmak stated that [Child] enjoys hearing music in the
         house and there are also many toys in the house for [Child]
         to play with.

         Ms. Stelmak stated that the foster parents meet [Child’s]
         physical needs. They provide her with shelter, clothing, and
         food. They also take [Child] to her doctor’s appointments.
         In addition, the foster parents meet [Child’s] developmental
         needs.     Ms. Stelmak stated that the foster mother
         homeschools her oldest daughter and includes [Child] in
         some of the activities at home. The foster parents also meet
         [Child’s] emotional needs. They provide her with comfort
         when she’s sad. They laugh with her when she’s happy, and
         celebrate birthdays with her, in addition to holidays and
         family events.

         Ms. Stelmak describes the relationship between the foster
         parents and [Child] as a parent/child relationship. [Child]
         has been residing with the foster parents for one year. Ms.
         Stelmak testified that she had the opportunity to observe
         some interaction between [Child] and…Father. Ms. Stelmak
         testified that Father had not visited with [Child] since
         November 2018 when [Child] was six months old. As of the
         date of the hearing, [Child] was 16 months old.

         Ms. Stelmak testified that the foster parents wish to adopt
         [Child]. The foster parents understand that in the event
         they do adopt [Child], [Child] will have all the rights of a
         biological child and could inherit from their estate. Ms.
         Stelmak testified that the foster parents do not have any
         reservations in their adoption of [Child].

         Ms. Stelmak also testified that she did not believe that
         [Child] would suffer any detrimental impact or effect in the
         event the [c]ourt terminates…Father’s parental rights. Ms.
         Stelmak believes that adoption of [Child] by the foster
         parents would be in [Child’s] best interest.

(Trial Court Opinion, filed February 14, 2020, at 5-13) (internal citations and

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footnotes omitted). Following a comprehensive review of the record, in light

of the applicable law, we accept the court’s conclusions.        Child has been

removed from Father for a period in excess of twelve months, and Father has

failed to comply with the court-ordered services. Additionally, remaining with

Child’s foster parents is in Child’s best interest. Accordingly, we agree that

termination was appropriate pursuant to 23 Pa.C.S.A. § 2511(a)(8).

       Similarly, the record supports the court’s Section 2511(b) conclusions

as well. The notes of testimony reveal Father’s lack of affirmative efforts to

participate in Child’s life. See In re B., N.M., supra at 855 (requiring parents

to demonstrate “genuine effort to maintain communication and association

with the child”). Father has not visited Child since November 2, 2018. (See

N.T. Termination Hearing, 8/22/19, at 21). Although Father explained his lack

of visitation as a consequence of working out of state, he made no effort to

remain otherwise active in Child’s life by providing financial support, sending

gifts, or even inquiring about Child’s wellbeing during his absence. (Id. at 22-

23).    As a result, Ms. Stelmak concluded Child “doesn’t really have a

relationship or bond with [Father] at this time.” (Id. at 23).

       In contrast, Ms. Stelmak testified that the foster parents have met, and

continue to meet, Child’s physical, developmental, and emotional needs. (See

N.T. Termination Hearing, 9/10/19, at 14-16). Ms. Stelmak stated that Child

has bonded with her foster parents and foster siblings, and has fully

assimilated into her foster family. (Id. at 13-14). Consequently, Ms. Stelmak


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testified that Child would not suffer any detrimental effects upon termination

of Father’s parental rights. (Id. at 16-17). As the record supports the court’s

conclusions under Sections 2511(a)(8) and (b), we see no reason to disturb

its decision to terminate Father’s parental rights.   See In re Adoption of

K.J., supra.   For the foregoing reasons, we affirm the decree terminating

Father’s parental rights to Child.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/01/2020




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