J-S02030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: S.J.A.G., A MINOR            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: K.R., FATHER                         No. 2213 EDA 2014


              Appeal from the Decree entered June 26, 2014,
      in the Court of Common Pleas of Philadelphia County, Family
    Court, at No(s): CP-51-AP-0000070-2014, CP-51-FN-336485-2009

BEFORE:     MUNDY, OLSON, and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 02, 2015

      K.R. (“Father”) appeals from the decree dated and entered on June 26,

2014, that granted the petition filed by the Philadelphia County Department

of Human Services (“DHS”) to involuntarily terminate his parental rights to

his minor child, S.J.A.G., a female born in February 2004, (“Child”),

pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). The decrease also changed

the permanency goal for Child to adoption pursuant to 42 Pa.C.S.A § 6351,

without further notice or consent from Father.1 We affirm.

      The trial court ably set forth the factual background and procedural

posture of this appeal. As the trial court stated:


1
   The trial court also involuntarily terminated the parental rights of Child’s
Mother, D.D.G. a/k/a D.G. (“Mother”), and the unknown father to Child in
separate decrees dated and entered on June 26, 2014. Neither Mother nor
the unknown father has filed an appeal, nor is either one a party to this
appeal. The trial court expressly stated that, in the June 26, 2014 decrees,
it changed Child’s permanency goal to adoption.          Trial Court Opinion,
9/8/14, at 6.
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       [Child was] born [in] February [] 2004.

       On September 10, 2006, [DHS] substantiated a [general
       protective services] report which alleged that [M]other left
       [Child] in the family home alone for approximately [ten]
       hours without any adult supervision.       The report also
       alleged [that M]other left [Child] in the home alone
       frequently.

       On March 22, 2011, DHS received a child protective services
       report alleging [that Father had purposefully injured Child].
       It was alleged that [Child] stated she had pain in her arms
       and legs. It was alleged that [F]ather had taken [Child] to
       the emergency room of Albert Einstein Medical Center [] for
       chemical exposure. [Child] made statements to the hospital
       staff that she was suffering from pain. [Child] expressed
       that she was fearful of [Father].      It was alleged that
       [F]ather’s home was filthy and that the police had been to
       the home due to drug activity. The report also alleged that
       [M]other and [F]ather shared custody of [Child]. . . . The
       report was indicated.

       DHS transported [Child] and [Mother] to Children’s Hospital
       of Philadelphia [(“CHOP”)] to have x-rays and a physical
       examination. CHOP diagnosed [Child] with a wrist sprain
       and a foot contusion. DHS learned [that Mother] had been
       convicted of [] endangering the welfare of a child in 2010.
       [Child] was discharged from the hospital to the care of her
       godfather[.]

       On March 23, 2011, [F]ather came to DHS and stated that
       he had attempted to file for emergency custody of [Child].
       [F]ather denied the allegations of the report and stated that
       [Child’s] injuries were self-inflicted. Furthermore, [F]ather
       stated that [M]other told [Child] to accuse him of abuse. . .
       .

       On March 23, 2011[,] DHS obtained an order of protective
       custody [] for [Child] and placed [Child] in a foster home
       setting through Delta Community Supports.

       The DHS investigation revealed that [M]other had a history
       of mental health issues and was diagnosed as suffering from
       depression.

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        A shelter care hearing was held on March 25, 2011 before
        [a juvenile master].    The [master] lifted the [order of
        protective custody] and ordered the temporary commitment
        to stand. Mother and [F]ather did not attend the court
        hearing.

        On April 25, 2011, a Family Service Plan [(“FSP”)] meeting
        was held by [DHS]. The [FSP] objectives for [M]other were
        (1) to stabilize her mental health[] and (2) to obtain legal
        assistance for the criminal charges. The [] objectives for
        [F]ather were (1) to participate in mental health and
        drug/alcohol evaluations, (2) [to participate in] anger
        management classes[,] and (3) to provide adequate and
        safe living conditions. [M]other participated in the FSP
        meeting. [F]ather did not participate in the FSP meeting.

        An adjudicatory hearing was held on August 17, 2011,
        before the Honorable Donna Woelpper. Judge Woelpper
        adjudicated [C]hild dependent and [committed] her to DHS.
        [F]ather did not attend the hearing.

        On September 23, 2011, DHS held an FSP meeting. The
        additional FSP objective identified for [F]ather was that he
        learn and understand how [Child] was injured.         Father
        participated in the FSP meeting.

        A permanency review hearing was held on December 22,
        2011, before Judge Woelpper. The [trial c]ourt referred
        [F]ather to Behavioral Health System for appropriate
        services. [F]ather did not attend the court hearing.

        The matter was then listed on a regular basis before the
        Honorable Jonathan Q. Irvine . . . pursuant to Section 6351
        of the Juvenile Act . . . and evaluated for the purpose of
        determining or reviewing the permanency plan of [C]hild
        with the goal of reunification of the family.

Trial Court Opinion, 9/8/14, at 1-2 (some internal capitalization omitted).

      On January 30, 2014, DHS filed a petition to involuntarily terminate

the parental rights of Father, Mother, and the unknown father of Child. On


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April   4, 2014, the     trial court   held an evidentiary   hearing on    the

termination/goal change petition. At the request of Mother’s counsel at the

outset of the hearing, the court declared that an additional day of testimony

would be held on June 26, 2014, so that the trial court could hear testimony

and receive documentary evidence with regard to the termination of

Mother’s parental rights.

        At the hearing on April 4, 2014, DHS presented the testimony of

Jennifer Robinson, its caseworker assigned to the case.          N.T. Hearing,

4/4/14, at 5.    DHS then presented the testimony of Rebecca Freking, the

trauma therapist from Children’s Crisis Treatment Center (“CCTC”), who had

been Child’s treating therapist since December of 2012.      Id. at 21. Next,

DHS presented the testimony of Ismael Jiminez, a DHS employee.          Id. at

42-43. Father then testified on his own behalf. Id. at 59.

        Although Mother was present at the hearing on April 4, 2014, she did

not appear at the hearing on June 26, 2014; however, her counsel was

present on June 26, 2014.        At the close of the testimony regarding the

termination of Mother’s parental rights, the trial court terminated Mother’s

parental rights on the record. On that same date, June 26, 2014, the trial

court entered the decree terminating Father’s parental rights.

        On July 24, 2014, Father 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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        In his brief on appeal, Father raises the following issues:2

          1. Did the court below err in finding that DHS had met its
          burden    in  proving    grounds    under   23   Pa.C.S.A.
          § 2511(a)(1),(2), (5) and (8)?

          2. Did the court below err in finding that DHS had met its
          burden to prove that termination would be in [C]hild’s best
          interests, under [Section] 2511(b)?

          3. Did the court below err in failing to find that DHS had
          neglected to make reasonable efforts to reunify Father with
          [Child]?

          4. Did the court below err in denying Due Process of Law to
          [Father], as guaranteed by the Constitutions of the United
          States [of America] and of the Commonwealth of
          Pennsylvania?

Father’s Brief at 4.3

        We review an appeal from the termination of parental rights in

accordance with the following standard.

          [A]ppellate courts must apply an abuse of discretion
          standard when considering a trial court’s determination of a
          petition for termination of parental rights.            As in
          dependency cases, our standard of review requires an
          appellate court to accept the findings of fact and credibility
          determinations of the trial court if they are supported by the

2
    For ease of discussion, we have reordered Father’s claims on appeal.
3
  In his brief, Father changed the wording of the issues raised in his concise
statement errors complained of on appeal somewhat, but we find that he
preserved his issues for our review. 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). However,
Father failed to develop, in his brief, any claim of error concerning the goal
change to adoption. Thus, we conclude that Father has waived any claim
that the trial court erred in changing Child’s goal to adoption.


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        record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the
        factual findings are supported, appellate courts review to
        determine if the trial court made an error of law or abused
        its discretion.    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 [the Pennsylvania Supreme Court] discussed in R.J.T.,
        there are clear reasons for applying an abuse of discretion
        standard of review in these cases. [The Supreme Court]
        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 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, 826-27 (Pa. 2012) (some internal

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


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        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).

      Father   argues that the     trial court erred when it involuntarily

terminated his parental rights under section 2511(a)(1), (2), (5), and (8),

because the decision was not supported by clear and convincing evidence.

With regard to section 2511(a), in general, Father contends that DHS

thwarted his efforts to maintain his relationship with Child.    Father claims

that there was no evidence that he had a settled purpose, refusal, or failure

to be a parent under section 2511(a)(1). With regard to section 2511(a)(2),

he asserts that it is by the choice of DHS, not his own choice, that the

conditions and causes of his incapacity, neglect or refusal to parent Child will

not be remedied. Further, with regard to section 2511(a)(5), he alleges that

it was DHS’s fault that the conditions that led to Child’s removal from his

care and custody and placement in foster care continue to exist.           With

respect to section 2511(a)(8), Father asserts that there is confusion as to

whether the trial court terminated his parental rights because the conditions

that existed at the time of Child’s placement still existed at the time of the

hearing, or based on conditions that arose at a later time.

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



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banc). Here, we will focus on section 2511(a)(2), as discussed by the trial

court in its Rule 1925(a) opinion.

      Section 2511 provides, in relevant part, 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 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.A. § 2511.

      We have stated:

        In order to terminate parental rights pursuant to 23
        Pa.C.S.A. § 2511(a)(2), the following three elements must
        be met: (1) repeated and continued incapacity, abuse,

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           neglect or refusal; (2) such incapacity, abuse, neglect or
           refusal has 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) (internal

citations omitted).

      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.”[].

           [The Pennsylvania Supreme] 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., 515 A.2d 883, 891 (Pa. 1996),
           quoting In re: William L., 383 A.2d 1228, 1239 (Pa.
           1978).

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

      The trial court found as follows:


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       The court found by clear and convincing evidence that
       [F]ather failed to perform his parental duties. Furthermore,
       the testimony of the social worker established that [F]ather
       has untreated mental health needs.            Moreover, the
       testimony stated that [F]ather did not comply with
       permanency plan for [Child]. Additionally, [F]ather did not
       comply with his mental health treatment.          Lastly, the
       testimony established that [F]ather did not provide
       documentation of his completion of a drug/alcohol
       treatment program.

       A parent has an affirmative obligation to act in his child’s
       best interest. As stated in Adoption of Hamilton, [549
       A.2d 1291, 1295 (Pa. Super. 1988)], “to be legally
       significant, the contact must be steady and consistent over
       a period of time, contribute to the psychological health of
       the child, and must demonstrate a serious intent on the part
       of the parent to recultivate a parent-child [relationship],
       and must [also] demonstrate a willingness and capacity to
       [undertake] the parental role.” . . .

       In the instant matter, [Child] has been in care for over [37]
       months. The testimony established [that Child] is in a
       stable environment and [that] adoption [is] in the [Child’s]
       best interest[s]. Furthermore, the testimony established
       that [Child] had symptoms of anger and anxiety due to the
       history of her exposure to [F]ather’s chronic mental illness.
       Moreover, [Child] was a victim of physical abuse by
       [F]ather. Additionally, the testimony revealed that [Child]
       had been diagnosed with ADHD[] and PTSD [and that she
       was suicidal]. The testimony established that [F]ather did
       not comply with his mental health treatment programs.
       [F]ather denied he was the perpetrator of the physical
       abuse of [Child].      Lastly, the testimony revealed that
       [F]ather did not have a plan of how to provide safety or
       stability for [Child].

       Section 2511 (a)(2) requires that “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 her physical or mental
       well being and the condition and causes of the incapacity,
       abuse, neglect or refusal cannot or will not be remedied by
       the parent.” 23 Pa.C.S.A. § 2511(a)(2)[.] These grounds

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        are not limited to affirmative misconduct. They may include
        acts of refusal to perform parental duties but more
        specifically on the needs of the child. Adoption of C.A.W.,
        683 A.2d 911, 914 (Pa. Super. 1996)[.]

        Courts have further held that the implications of a parent’s
        limited success with services geared to remedy the barriers
        to effective parenting can also satisfy the requirements of
        § 2511(a)(2). . . .

        The testimony established that [F]ather did not
        demonstrate the desire or ability to raise a child[.]
        Furthermore, the testimony revealed that [F]ather refused
        to obtain appropriate housing for [Child]. Moreover, the
        testimony revealed that [F]ather did not want [C]hild to
        receive mental health treatment. Lastly, the testimony
        stated that [F]ather refused to sign the required paperwork
        for [Child] to receive mental health treatment[.]

Trial Court Opinion, 9/8/14, at 4 (some internal citations omitted).

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

competent evidence in the record that supports the trial court’s credibility

and weight assessments regarding section 2511(a)(2). There is competent

evidence in the record that supports the trial court’s finding that Father has

failed to comply with the permanency plan for Child.            There is also

competent evidence that supports the trial court’s finding that Father is

incapable of parenting Child because he continues to have mental health

issues without complying with his treatment, lacks appropriate housing for

Child, and lacks the parental skills and desire to raise a child.      See Trial

Court Opinion, 9/8/14, at 4.    The competent evidence in the record also

supports the trial court’s finding that Father has refused to sign the

paperwork necessary for Child to receive mental health treatment because

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he does not want her to have treatment, and has inappropriately denied that

he was the perpetrator of physical abuse on Child. Id. at 4-5. Finally, there

is competent evidence that supports the trial court’s conclusion that the

conditions that led to Child’s removal still exist, and will not be remedied by

Father in the future. We find no reason to disturb the trial court’s credibility

determinations.    See In re Adoption of S.P., 47 A.3d at 826-27.

Accordingly, we conclude that the trial court did not abuse its discretion in

terminating Father’s parental rights under section 2511(a)(2).

      Next, Father argues, under section 2511(b), that DHS failed to show

by clear and convincing evidence that the bond between Father and Child

has been broken, and that the needs and welfare of Child would be best

served by the termination of Father’s parental rights.

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated as follows.

        [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).

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      Under section 2511(b), the trial court found as follows:

         In the instant matter, the testimony established that [C]hild
         would not suffer any irreparable emotional harm if
         [F]ather’s parental rights were terminated. The testimony
         established that [Child] repeatedly expressed that she did
         not want any contact with [F]ather.        Furthermore, the
         testimony of the social worker revealed that [Child] had not
         had contact with [F]ather since April 2012[.] Moreover,
         [C]hild’s therapist testified that [Child] did not want to
         reunify with [F]ather. Therefore, [Child] did not have an
         opportunity to bond with [F]ather due to the lack of contact
         with him. Lastly, the testimony revealed [that Child] has
         bonded with her foster parents. [Child] refers to her foster
         parents as “mom and dad” and their child as her little sister.
         [Child] has a positive relationship with her foster parents
         and expressed feelings of stability and consistency.

Trial Court Opinion, 9/8/14, at 5-6 (internal citations omitted).

      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).          It is

appropriate to consider a child’s bond with her foster parents. See In re:

T.S.M., 71 A.3d at 268.

      The testimony of the DHS witnesses established that Child has no

bond with Father, and that she has a positive bond with her foster parents

who wish to adopt her into their family, where Child is happy. N.T. Hearing,


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4/4/14, at 19, 37, and 48.    While Father may love Child, he has failed to

demonstrate that he is capable of parenting Child. N.T. Hearing, 4/4/14, at

12-13 and 69. This Court has stated that a parent’s own feelings of love and

affection for a child, alone, will not preclude termination of parental rights.

In re Z.P., 994 A.2d at 1121.       We, thus, find that competent evidence

exists, supporting the finding that there is an absence of a bond with Father,

which, if severed, would harm Child. Trial Court Opinion, 9/8/14, at 5-6.

      Next, we address Father’s interrelated claims that the trial court

abused its discretion in failing to find that DHS had neglected to make

reasonable efforts to reunify Father with Child, and that Father was denied

his constitutional guarantee to due process of law because the trial court

terminated his parental rights to Child.     Our Supreme Court has expressly

rejected the contention that reasonable efforts are necessary to support a

termination decree under section 2511(a)(2). See In re D.C.D., ___ A.3d

___, 2014 WL 7089267 (Pa. 2014).

      In D.C.D., the Court analyzed the language of section 2511(a)(2), as

well as section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351.      The Court

reasoned that, while “reasonable efforts may be relevant to a court's

consideration of both the grounds for termination and the best interests of

the child,” neither of these provisions, when read together or individually,

requires reasonable efforts. Id. at *26-27 and *8-9 (citation omitted). The

Court also concluded that reasonable efforts were not required to protect a


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parent’s constitutional right to the care, custody, and control of his or her

child. Id. at *37-39, 10-11.

     Further, in the case at bar, Father cannot shift his failings to comply

with the permanency plan to DHS.      Certainly, it was Father – and Father

alone – who failed to remedy his substantial mental health issues; who

continues to reside in inappropriate housing; who refuses to acknowledge,

admit to, or apologize for the physical harm he inflicted upon Child; who

refused to provide DHS with documentation regarding whether he completed

a drug and alcohol treatment program; and, who would continue to harm

Child by denying her necessary mental health treatment.

     We conclude that the trial court did not abuse its discretion in finding

competent evidence to support the termination of Father’s parental rights

under section 2511(b). See In re Adoption of S.P., 47 A.3d at 826-27.

Accordingly, we affirm the decree terminating Father’s parental rights to

Child, and changing Child’s permanency goal to adoption.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/2/2015




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