J-S17031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                           IN THE SUPERIOR COURT
H.R.N., A MINOR                                         OF
                                                   PENNSYLVANIA




APPEAL OF: K.M.T., MOTHER

                                                 No. 2889 EDA 2017


              Appeal from the Order entered August 7, 2017,
          in the Court of Common Pleas of Philadelphia County,
            Family Court, at No(s): CP-51-AP-0000711-2017.




IN THE INTEREST OF:                           IN THE SUPERIOR COURT
R.R.N., A MINOR                                         OF
                                                   PENNSYLVANIA




APPEAL OF: K.M.T., MOTHER

                                                 No. 2891 EDA 2017


              Appeal from the Order entered August 7, 2017,
          in the Court of Common Pleas of Philadelphia County,
            Family Court, at No(s): CP-51-AP-0000517-2017.




IN THE INTEREST OF:                           IN THE SUPERIOR COURT
G.N., A MINOR                                           OF
                                                   PENNSYLVANIA
J-S17031-18


    APPEAL OF: K.M.T., MOTHER

                                                     No. 2894 EDA 2017


                  Appeal from the Order entered August 7, 2017,
              in the Court of Common Pleas of Philadelphia County,
                 Family Court, at No(s): CP-51-AP-0000518-2017




    IN THE INTEREST OF:                           IN THE SUPERIOR COURT
    L.R.N., A MINOR                                         OF
                                                       PENNSYLVANIA




    APPEAL OF: K.M.T., MOTHER

                                                     No. 2897 EDA 2017


                  Appeal from the Order entered August 7, 2017,
              in the Court of Common Pleas of Philadelphia County,
                Family Court, at No(s): CP-51-AP-0000519-2017.

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MAY 30, 2018

        K.M.T. (“Mother”) appeals from the orders terminating her parental

rights to her four children: L.R.N. (11 years old); G.N. (9 years old); R.R.N.

(3 years old); and H.R.N. (3 months old).1       Her rights to her older three

children – L.R.N., G.N., and R.R.N. – were terminated pursuant to 23 Pa.C.S.A.

§2511(a) (1), (2), (5), (8) and (b). Mother’s rights to her youngest, H.R.N.,


____________________________________________


1Ge.N, Father, also appeals, but his case is before a separate panel of this
Court. See 2824, 2826, 2827, 2828, EDA 2017.

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J-S17031-18



were terminated pursuant to 23 Pa.C.S.A. §2511(a) (1), (2), (4), (5), (8) and

(b). After careful review, we affirm as to the three eldest children, but reverse

as to H.R.N.

      The relevant facts and procedural history of this case are extensive, but

they may be summarized as follows. The parties first came to the attention

of the Department of Human Services (“DHS”) in November 2009. Mother

had taken L.R.N. to the hospital, alleging Father physically abused the child.

The hospital found no evidence of physical abuse and the child was released

the same day. At the hospital, however, Mother appeared to be under the

influence of an unknown substance.      Some combination of these two facts

precipitated DHS involvement. Soon thereafter, DHS confirmed that Mother

was prescribed Seroquel and Methadone. DHS developed a Safety Plan to

relocate Mother and her children (L.R.N. and G.N.) to the Eliza Shirley Red

Shield shelter. The family was discharged two weeks later in December 2009

when Mother and the children failed to return to the shelter. Mother took the

children to DHS.    After Mother tested positive for benzodiazepines, DHS

created a new safety plan where the maternal grandparents would serve as

caregivers to L.R.N. and G.N. In late December 2009, Mother was arrested

for shoplifting. At that point, DHS obtained a protective custody order for the

children, who remained in the care of their maternal grandparents.

      In January 2010, the juvenile court adjudicated the children dependent.

Father was ordered to undergo a drug and alcohol screen and a dual diagnosis

assessment; the court found Mother received inpatient treatment at My

                                      -3-
J-S17031-18



Sister’s Place, where she was residing.     The children joined Mother soon

thereafter.

      In June 2010, the children were again removed to the care of the

maternal grandparents.    Over the next year and a half, the juvenile court

found the parents to be minimally compliant with their reunification goals.

The parents eventually complied with the permanency plan, however; and in

late December 2011, the children were reunified with their parents.        The

dependency case was then closed for nearly three years.

      In November 2014, DHS received a report alleging that the parents left

then-6-year-old G.N. and then-8-month-old R.R.N in the care of the eldest

child L.R.N., who was 8 years old. A subsequent investigation revealed that

Mother and Father were abusing OxyContin, Percocet, Klonopin and Xanax.

There was limited food in the home. The home was dirty and cluttered with

trash, thereby creating a fire hazard. The parents were also selling their food

stamps, and asking neighbors for food and baby formula. L.R.N. was suffering

from asthma; G.N. had Attention-Deficient Hyperactivity Disorder.

      Although the children remained in the home, DHS discovered a number

of concerns over the following year. Mother failed to provide the results of

her drug tests to DHS’ service providers. Mother reported that armed

neighborhood men had threatened to kill her family. Mother failed to enroll

in mental health treatment. A DHS service provider had to assist Mother by

transporting her and the children to their dental appointments; the two older

children had 23 cavities between them. Mother did not ensure G.N. received

                                     -4-
J-S17031-18



his daily medication. During home visits, a service provider suspected Mother

was under the influence.      Mother was diagnosed with multi-personality

disorder and bipolar disorder.    The children were eventually adjudicated

dependent for the second time in December 2015.

      At the ensuing permanency review hearing in March 2016, Mother

appeared to be under the influence. Her lack of compliance with drug screens

led to the children being placed out of her care. Mother’s compliance with

DHS’ Single Case Plan was minimal throughout the following year. In April

2017 Mother gave birth to H.R.N.; Mother had no prenatal care and DHS was

evidently unaware she was pregnant. The new baby had low scores on the

Appearance, Pulse, Grimace, Activity Respiration (APGAR) scale.      Although

she previously had been prescribed Suboxone, Mother was purchasing and

using the drug illegally at that time. The baby was treated at the hospital for

Suboxone withdrawal symptoms. Upon her release from the hospital, H.R.N.

was placed in the care of a maternal aunt. H.R.N. was adjudicated dependent

on May 11, 2017. DHS filed its petition to terminate the parents’ rights as to

the three eldest children on May 5, 2017; H.R.N.’s petition was filed on July

11, 2017. On July 13, 2017 the three oldest children transitioned from their

placement with maternal relatives to their pre-adoptive placement with

paternal aunt. It appears the baby, H.R.N., remained with a maternal aunt,

but was also in the processing of transitioning to the same paternal aunt.

      On August 7, 2017, the trial court terminated Mother’s rights in the

following manner:    As to L.R.N., G.N., and R.R.N., Mother’s rights were

                                     -5-
J-S17031-18



terminated as to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). As to H.R.N.,

Mother’s rights were terminated as to 23 Pa.C.S.A. § 2511(a)(1), (2), (4), (5),

and (8).

      In her brief, Mother submits to us two questions:

           1. Did DHS sustain the burden that Mother's rights should
              be terminated when there was evidence that Mother had
              completed and/or had been actively completing her
              permanency goals?

           2. Was there sufficient evidence presented to establish that
              it was in the best interests of the child to terminate
              Mother’s parental rights?

Mother’s Brief, at 4.

      Our standard of review regarding orders terminating parental rights is

settled:

           When reviewing an appeal from a decree terminating
           parental rights, we are limited to determining whether the
           decision of the trial court is supported by competent
           evidence. Absent an abuse of discretion, an error of law, or
           insufficient evidentiary support for the trial court's decision,
           the decree must stand. Where a trial court has granted a
           petition to involuntarily terminate parental rights, this Court
           must accord the hearing judge's decision the same
           deference that we would give to a jury verdict. 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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. Id. at 806. We have previously stated:


                                        -6-
J-S17031-18


         The 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.”

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

      The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73–74 (Pa. Super.

2004). If competent evidence supports the trial court's findings, we will affirm

even if the record could also support the opposite result. In re Adoption of

T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      The termination of parental rights is controlled by 23 Pa.C.S. § 2511.

Under this statute, the trial court must engage in a bifurcated process in which

it initially focuses on the conduct of the parent under Section 2511(a). See In

the Interest of B.C., 36 A.3d 601 (Pa.Super.2012).

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

to Sections 2511(a)(1), (2), (4), (5), (8) 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:

         (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.

         (2) The repeated and continued incapacity, abuse, neglect
         or refusal of the parent has caused the child to be without

                                      -7-
J-S17031-18


          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.

          ....

          (4) The child is in the custody of an agency, having been
          found under such circumstances that the identity or
          whereabouts of the parent is unknown and cannot be
          ascertained by diligent search and the parent does not claim
          the child within three months after the child is found.[2]

          (5) The child has been removed from the care of the parent
          by the court or under a voluntary agreement with an agency
          for a period of at least six months, the conditions which led
          to the removal or placement of the child continue to exist,
          the parent cannot or will not remedy those conditions within
          a reasonable period of time, the services or assistance
          reasonably available to the parent are not likely to remedy
          the conditions which led to the removal or placement of the
          child within a reasonable period of time and termination of
          the parental rights would best serve the needs and welfare
          of the child.

          ....

          (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.

23 Pa.C.S.A. §§ 2511(a)(1), (2), (4), (5), (8). Additionally, this Court “need

only agree with [the trial court's] decision as to any one subsection in order




____________________________________________


2 23 Pa.C.S.A. § 2511(a)(4) was only found to be grounds for termination as
to H.R.N.

                                           -8-
J-S17031-18



to affirm the termination of parental rights.” In re B.L.W., 843 A.2d 380, 384

(Pa.Super.2004).

      For clarity’s sake, we divide our discussion between the older three

children, whose terminations we affirm, and the youngest child, whose

termination we reverse.

      We begin with the older three children: L.R.N.; G.N.; and R.R.N. Mother

argues that the trial court erred because she had either completed or was in

the process of completing her court-ordered reunification goals.      But our

review of the testimony reveals that in the three years since the DHS case

was reopened, Mother’s compliance was minimal. See N.T., 8/7/17, at 32.

Mother did not provide any evidence that she complied with her drug

screening. In fact, Mother was caught trying to falsify a drug test when it was

discovered she brought a condom full of urine to the screen. Id., at 19.

Because Mother appeared to be under the influence during her visits with the

children, the court suspended the visits. Id., at 25; 34. Even after they

resumed, Mother’s lack of participation in the reunification process did not

warrant anything more than weekly, two-hour supervised visits. Id., at 44.

Mother could not provide the caseworker with documentation that she sought

mental health treatment.    Mother testified that she is now employed as a

caretaker, hired by the brother of her elderly charge. Id., at 96. However,

that employment did not commence until July 1, 2017, around two months

after DHS filed its termination petition. Section 2511(b) provides that the

court may not consider any effort by the parent to remedy the conditions

                                     -9-
J-S17031-18



described in subsection (a)(8) if that remedy was initiated after the parent

was given notice that termination petition had been filed. 23 Pa.C.S.A.

§2511(b); see also In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004).

      While the trial court found that DHS met its burden of proof under each

of the four subsections of the termination statute referenced above, we can

affirm the termination if we agree with the decision of any one of those

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

we agree with the trial court’s decision on subsection (a)(8).

      In order to satisfy subsection 2511(a)(8), DHS must show the following

three elements: (1) that the child has been removed from the care of the

parent for at least twelve (12) months; (2) that the conditions which had led

to the removal or placement of the child still exist; and (3) that termination

of parental rights would best serve the needs and welfare of the child. 23

Pa.C.S.A. § 2511(a)(8). Termination under subsection 2511(a)(8) does not

require an evaluation of a parent's willingness or ability to remedy the

conditions that led to placement of his or her children. In re Adoption of

J.N.M., 177 A.3d 937, 943 (Pa. Super. 2018); see also In re M.A.B., 166

A.3d 434, 446 (Pa. Super. 2017).

      Here, the court gave Mother several years to remedy the conditions that

led to the children’s repeated removals. The final removal occurred in March

2016; thus, the twelve month time period was satisfied. Despite DHS working

with her over many years, Mother failed to participate in any meaningful drug

or mental health treatment.     Her visitations were suspended because of

                                    - 10 -
J-S17031-18



apparent drug use. The visits she had were supervised. At the time of the

termination, the conditions that led to these children’s removal still existed.

Finally, for the same reasons that will be discussed below regarding 2511 (b),

the trial court concluded that termination would best serve the children’s

needs and welfare. We agree.

      Having established that section 2511(a)(8) was a proper ground for

terminating Mother’s parental rights, we must now determine whether

termination would serve the children’s needs and welfare under section

2511(b). See id.

      Section 2511(b) provides, in pertinent part:

         (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.

23 Pa.C.S.A. § 2511(b).

      Pursuant to Section 2511(b), the trial court must take into account

whether a natural parental bond exists between child and parent, and whether

termination   would    destroy   an     existing,   necessary   and   beneficial

relationship. In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).

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 needs and welfare of the child.” In addition, we instructed that



                                      - 11 -
J-S17031-18



the orphans' court must also discern the nature and status of the parent-child

bond, with utmost attention to the effect on the child of permanently severing

that bond. Id. However, the extent of the bond-effect analysis necessarily

depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d

753, 763 (Pa. Super. 2008).

      While a parent's emotional bond with his or her child is a major aspect

of the Subsection 2511(b) best-interest analysis, it is nonetheless only one of

many factors to be considered by the court when determining what is in the

best interest of the child. The mere existence of an emotional bond does not

preclude the termination of parental rights. Rather, the orphans' court must

examine the status of the bond to determine whether its termination “would

destroy an existing, necessary and beneficial relationship.” As we explained

in In re N.A.M.:

         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and should
         also consider the intangibles, such as the love, comfort,
         security, and stability the child might have with the foster
         parent. Additionally, this Court stated that the trial court
         should consider the importance of continuity of relationships
         and whether any existing parent-child bond can be severed
         without detrimental effects on the child.

33 A.3d 95, 103 (Pa. Super. 2011) (citing In re A.S., 11 A.3d 473, 483 (Pa.

Super. 2010). Moreover, we have found terminations to be proper despite

the existence of a parent-child bond when the bond is not necessarily

meaningful or healthy. In re M.M., 106 A.3d 114, 120 (Pa. Super. 2016);

see In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that the strong

                                    - 12 -
J-S17031-18



parent-child bond was an unhealthy one that could not by itself serve as

grounds to prolong foster care drift); see also In re L.M., 923 A.2d 505, 512

(Pa. Super. 2007) (holding that a parent's love of her child, alone, does not

preclude a termination).

        Since their last removal in March 2016, the three eldest children largely

have been placed with family.      At the time of the hearing, they had been

placed with their paternal aunt, who is their pre-adoptive foster parent. Prior

to that, they were with their maternal grandmother. Although there was no

bonding evaluation conducted between the children and their paternal aunt,

the aunt is someone the children know. Additionally, DHS caseworker testified

that the children have adjusted well in the home. N.T., 8/7/17, at 74. The

caseworker testified, and the trial court agreed, that although the two oldest

children, L.R.N. and G.N., are bonded with Mother, this bond is not beneficial

or necessary. The court also concluded that this bond is outweighed by the

children’s need for stability and safety. We agree. The children – especially

the oldest two children – have experienced a tumultuous childhood thus far.

DHS involvement began 9 years ago.             Since then, Mother has never

maintained any prolonged sobriety. The children were removed multiple times

and have had to endure various placements.         Moreover, Mother had often

neglected them to the point where their health suffered. When they finally

got to a dentist, two of the children had nearly two dozen cavities between

them.     Apart from the physical effects of Mother’s neglect, their lack of

permanency could have long-term consequences on their mental health.

                                      - 13 -
J-S17031-18



      The children currently suffer from mental health issues which Mother

has also failed to address; the social worker testified that Mother had not been

involved in G.N.’s behavioral medication management nor has she been

involved in his therapy. Because the children are placed with kin, we recognize

that they will likely continue to have some contact with Mother. This should

mitigate any adverse effect termination might have on the older children. See

In re M.M., 106 A.3d 114, 119-120 (Pa. Super. 2014).           Additionally any

adverse effects are wholly outweighed by the benefits of adoption. We find

that the record supports termination of Mother’s parental rights as to L.R.N.,

G.N., and R.R.N. The needs and welfare of these three children will be served

by the termination of Mother’s parental rights.

      With respect to the trial court’s decision to terminate Mother’s parental

rights to youngest child, H.R.N., we must reverse. Initially, we recognize that

the trial court’s termination under subsection (a)(4) may be based a clerical

error. Section 2511(a)(4) provides: “The child is in the custody of the agency,

having been found under such circumstances that the identity or whereabouts

of the parent is unknown and cannot be ascertained by diligent search and

the parent does not claim the child within three months after the child is

found.” This section does not apply to the facts of this case. Perhaps the

termination provision was included in DHS’s petition to terminate the parental

rights of the “Unknown Father.” See 23 Pa.C.S.A. § 2512(c) (“If the petition

does not identify the father of the child, it shall state whether a claim of

paternity has been filed under Section [5103] (relating to paternity)).

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Curiously, DHS sought – and the trial court granted – termination of the rights

of an unnamed father, despite the fact that Father acknowledged paternity of

H.R.N., and despite the fact that he and Mother were purportedly married at

the time of H.R.N.’s birth. We can surmise no other explanation for this finding

other than a clerical error. However, the law does not sever the parent-child

bond on this basis.

      Similarly   inappropriate   are    the     court’s findings   as   to   Sections

2511(a)(1), (5), and (8). Each of these provisions have timing requirements

before termination is appropriate; the statutory requisite timeframe outlined

for Sections 2511(a)(1) and (5) is six months, and for Section 2511(a)(8), it

is 12 months. At the time of the termination hearing, H.R.N. was only three

months old, and, thus, could only have been without parental care for a period

of approximately 3 months. We conclude that the trial court erred when it

terminated Mother’s parental rights to H.R. N. under these provisions. This

leaves only Section 2511(a)(2) as an appropriate ground for termination.

      As we stated above, if we were to conclude that Section 2511(a)(2) is a

suitable ground for termination, we could affirm the trial court’s decision to

terminate despite the defects in its analysis regarding the other subsections

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

(requiring only one basis under 2511(a) to affirm the termination of parental

rights). However, we are constrained to reverse on this ground as well.

      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, neglect or refusal; (2)

                                        - 15 -
J-S17031-18


       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 D.L.B., 166 A.3d 322, 327 (Pa. Super. 2017) (quoting In re Adoption

of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015.             “The grounds for

termination 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 perform parental duties.” Id.

       We readily acknowledge that as to the three older children, years’ worth

of facts allowed the trial court to conclude that Mother engaged in this sort of

repeated and continued misconduct. See 23 Pa.C.S.A. § 2511(a)(2).           The

record is replete with examples of Mother’s inability to parent those children.

But when it comes to H.R.N., the history of Mother’s misconduct only began

at H.R.N.’s birth three months prior.

       Significantly, unlike some of the other subsections of 2511(a),3 the

legislature did not impose any minimum timeframe for termination under

subsection 2511(a)(2); nor do we. We are not deciding that three months is

too short of a time period for a parent to demonstrate “repeated and continued

incapacity, abuse, neglect or refusal” to care for a child. See 23 Pa.C.S.A. §

2511(a)(2). Rather, we are constrained to reverse in this case because the

record is devoid of any real discussion of H.R.N. or Mother’s reunification

____________________________________________


3   See 23 Pa.C.S.A. § 2511(a)(1), (4), (5), (6), (8).

                                          - 16 -
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efforts since H.R.N.’s birth. The DHS Petition to terminate parental rights to

H.R.N. was largely an afterthought. We gleaned that the child was adjudicated

dependent in May, shortly after Mother tested positive for the substances she

abused during her pregnancy. The trial court also found that Mother did not

seek prenatal care. But our review of the record indicates that the trial court

scheduled only one permanency review hearing between the adjudication

hearing in May 2017 and the termination hearing in August 2017. The record

shows that this one hearing was scheduled for July 2017 and was then

continued because the trial judge was unavailable.      During the termination

hearing in August 2017, the testimony of the DHS witness focused primarily

on the facts surrounding the three older children. Further testimony revealed

that Mother had tested both positive and negative for controlled substances

since H.R.N.’s birth. These facts are insufficient to prove, especially by clear

and convincing evidence, that Mother’s misconduct was repeated and

continued with respect to H.R.N.       Because we reverse as to the Section

2511(a) analysis, we need not discuss the trial court’s conclusions as to the

bifurcated Section 2511(b) analysis.

      We are aware of the fractured state that our decision leaves this family,

just as we are aware that the ultimate outcome might be the same, and

Mother’s parental rights may eventually be terminated. To be clear, nothing

we have said here disturbs the trial court’s order placing H.R.N. with her

siblings in the care of the paternal aunt. Without evidence, however, we are

reduced to mere speculation, which can never justify bypassing the

                                     - 17 -
J-S17031-18



heightened due process afforded to parents engaged in the juvenile court

system.

     Orders affirmed in part, reversed in part. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




                                   - 18 -
