J-S24001-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: C.A.J., a Minor                   :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
APPEAL OF: R.J. and T.J.                 :           No. 1843 MDA 2015

           Appeal from the Decrees entered September 24, 2015
              in the Court of Common Pleas of Berks County,
                   Orphans' Court Division, No(s): 84255

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MAY 06, 2016

     R.J. (“Father”)1 and T.J. (“Mother”) (collectively, “Parents”) appeal

from the Decrees granting the Petitions filed by the Berks County Children

and Youth Services (“CYS” or the “Agency”) to involuntarily terminate their

parental rights to their minor child, C.A.J., a male born in June 2014,

(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b).2 We affirm.

     Previously, on December 9, 2013, the trial court terminated the

parental rights of Parents to their older son, T.J., born in February 2013,

under section 2511(a)(2) and (b).     That same date, the trial court also


1
  Arizona criminal records indicate that in 2000, Father pled guilty to five
counts of attempted sexual assault of a minor (under the age of 14). Father
was sentenced to ten years in prison, and was released from prison in March
2009. Father is a lifetime sex offender registrant under Megan’s Law.
2
  On September 24, 2015, the trial court also involuntarily terminated the
parental rights of any unknown father of Child. No individual claiming to be
the putative father has filed an appeal.
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terminated the parental rights of Mother to her son, M.Y.,3 born in April

2008, under section 2511(a)(1) and (b).           This Court affirmed the

termination of Parents’ parental rights as to T.J., agreeing with the trial

court’s finding that despite CYS’s offer to pay for non-offender treatment for

Mother and sex offender treatment for Father, neither parent took

advantage of the opportunity to obtain those services and move toward

reunification with T.J.    See In re T.J., 105 A.3d 801 (Pa. Super. 2014)

(unpublished memorandum at 10). This Court also affirmed the termination

of Mother’s parental rights as to M.Y. based on her failure to comply with

court-ordered treatment, and her inability to provide a safe environment to

fulfill the needs of M.Y. See id. (unpublished memorandum at 12-13).

        Mother gave birth to Child in June 2014. On June 10, 2015, CYS filed

separate Petitions seeking to involuntarily terminate the parental rights of

Parents to Child, pursuant to section 2511(a)(1), (2), (5), (8), and (b). Also

on June 10, 2015, CYS filed a Petition seeking to involuntarily terminate the

parental rights of Mother and any unknown father of Child, pursuant to

section 2511(a)(1), (2), and (b).4

        On September 18, 2015, the trial court held a hearing on the

termination Petitions.     CYS presented the testimony of Richard Frederick


3
    Father is the stepfather of M.Y.
4
 Parents previously filed an appeal from an Order in this matter, at Docket
No. 1466 MDA 2015, relating to the scheduling of the hearing on the
Petitions. They discontinued the appeal on October 21, 2015.
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Small, Ph.D. (“Dr. Small”), as an expert in psychological evaluations and

psychology.   N.T., 9/18/15, at 6.   Dr. Small opined that Mother would be

unlikely to protect or nuture a child in her care. Id. at 9. Dr. Small further

testified that Mother’s visits with Child were inconsistent, and that she

lacked motivation or commitment to bond with Child. Id. at 21. Dr. Small

opined that Mother is overwhelmed, and easily dominated, so that her

protective instinct toward her children is overwhelmed by Father. Id. Dr.

Small testified that Mother did not show any concern or regret that her two

older children, T.J., and M.Y., had been adopted, and that she did show any

recognition of mistakes on her part. Id. at 22-23.

      Dr. Small also opined that Father had a long history of committing

sexual abuse, for which Father had served time in prison, and that Father

did not express any emotion or empathy toward his stepsiblings that he had

abused, which is the hallmark of an antisocial personality. Id. at 12. Dr.

Small stated that it would be highly unlikely that Father would improve with

additional treatment or services. Id. at 13. While Dr. Small could not opine

with any degree of certainty that Father is a sexual danger to a young child,

Dr. Small was concerned about Father’s unwillingness to put the needs of

others above his own, particularly those of a young child.    Id. at 15. Dr.

Small indicated that Parents have a pathological relationship that is

complementary, and that Father easily manipulates Mother. Id. at 21.




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      CYS then presented the testimony of Sarah Albright (“Albright”), a

licensed   professional   counselor,   who   is   qualified   in   sexual   offender

evaluation and treatment, and domestic violence evaluation and treatment.

Id. at 23-24.   Albright testified that Father was unsuccessfully discharged

from psychosexual evaluation and treatment for noncompliance, and that he

had been deceitful about his history.    Id. at 25-29. Albright testified that

Father’s lack of willingness to attend treatment and accept responsibility for

his actions demonstrated his lack of motivation to change.           Id. at 29, 34.

Albright opined that Father’s lack of empathy toward stepsiblings that he

had abused increased the risk that he would be a re-offender, because he

does not care if he harms someone. Id. at 31. Based on Father’s failure to

complete an evaluation and treatment related to his history, Albright opined

that Father should have no contact with Child pending Father’s completion of

a full evaluation.   Id. at 29-30.     Further, Albright believes that Father

appears to be a risk to prepubescent individuals, but she would need to

conduct a therapeutic polygraph examination to render an opinion.             Id. at

33, 34-35.

      Next, CYS presented the testimony of Julie Karaisz (“Karaisz”), who is

a licensed social worker who works with children, adolescents, and families

in Berks County, and an expert in the area of diagnosing domestic violence

and “non-offending” treatment. Id. at 36-37. Karaisz testified that Mother

had attended eight one-hour non-offending parent individual sessions,


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between April 5, 2015, and July 8, 2015.        Id. at 37-38.    During these

sessions, Mother defended Father, and refused to acknowledge that he is a

sex offender. Id. at 38, 48-49. Mother has refused to separate herself from

him or acknowledge that he could be a threat to her or her children. Id. at

38, 50.    After July 8, 2015, Mother reported that she did not have

transportation or resources to attend treatment, and she was unsuccessfully

discharged. Id.   Karaisz opined that, based on the eight sessions, Mother is

very resistant to understanding the risk that Father poses to her children

because Mother is very vulnerable and defensive about Father’s criminal

history. Id. at 38-39; see also id. at 50-51 (wherein Karaisz testified that

Mother lacks a willingness to even hear that she and her children are

vulnerable to Father, because Mother believes what Father tells her).

Karaisz stated that Mother has difficulty recognizing safe boundaries, and a

lack of insight on how to protect herself and any child in her care. Id. at 39.

      CYS then presented the testimony of Carla Sanders (“Sanders”), who

is an adoption supervisor at CYS, and is assigned to Child’s case. Id. at 53.

Sanders testified that she became involved with the family on January 30,

2013, when Father moved into Mother’s home, and there were concerns

about M.J. Id. at 55. Mother then gave birth to T.J. Id. After the parental

rights as to M.J. and T.J. had been terminated, CYS discovered that Mother

had given birth to Child in June 2014, and CYS again became involved with

the family.   Id. at 55-56.   As CYS was concerned that Parents had not


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remedied any of the prior issues, it sought and received emergency custody

of Child, and placed Child in foster care with T.J. and M.Y. Id. at 56.

      Sanders explained that Parents had resided with Mother’s family

members in Fleetwood, Berks County. Id. at 57-58. The entire household

later moved to Schuylkill County, where they currently reside, because the

rent was less expensive. Id. at 58. Sanders testified that, with regard to

reporting stable housing and maintaining appropriate income, Parents have

notified the Agency of any changes in their income and residence. Id. at 68.

Parents also have reported to the Agency that, at around the time of Child’s

birth, Father was working at a donut shop, but quit when they moved to

Schuylkill County. Id. at 58, 69. Mother was working at a produce store for

two months, but also quit.        Id. at 64, 69.       Parents are presently

unemployed. Id. at 58, 69.

      Parents were informed that it would be difficult to maintain contact

and cooperate with CYS services if they moved away from Berks County.

Id. at 58-59. As Parents indicated that transportation was a problem, CYS

provided transportation once a month for visits, the non-offending parent

evaluation, and domestic violence treatment. Id. at 59; see also id. at 56-

57 (wherein Sanders stated that prior to July 1, 2015, CYS provided

transportation for one visit, and Mother provided transportation for the

second visit each month).      The majority of the cooperation by Parents

occurred when CYS provided transportation. Id. at 59; see also id. at 57


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(stating that after July 1, 2015, when CYS terminated the transportation,

Mother has attended four visits with Child).

      Mother attended a total of twenty-five visits with Child since the start

of the case.   Id. at 56; see also id. at 65 (wherein Sanders states that

Mother missed a number of visits with Child). Mother needed prompting on

basic care for Child, who was calm, and there were no major concerns. Id.

at 56, 70. Father’s only contact with Child was in the hospital, before Child’s

placement in foster care, as his visits were suspended. Id. at 56-57; see

also id. at 67 (wherein Sanders stated that the trial court ordered that

Father was to have no visitation with Child because he has not completed

sexual offender treatment to demonstrate that he poses no risk to Child).

      Sanders testified that Mother cooperated with parenting education,

and attended the program at Open Door between August 7, 2014, and

October 16, 2014. Id. at 60. At sessions, Mother was reportedly engaged,

but was timid in her responses. Id. Mother also eventually cooperated with

a mental health evaluation conducted by Dr. Small. Id. at 60-61. Mother

had engaged in individual therapy, in Schuylkill County, regarding domestic

violence, pursuant to Dr. Small’s recommendation.        Id. at 61, 67.    She

participated in an educational program regarding domestic violence, but did

not agree to participate in the Commonwealth Clinical Group for domestic

violence training, nor did she agree to participate in an evaluation of what

she had learned from the domestic violence training at Open Door. Id.; see


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also id. at 70-71 (wherein Sanders testified that the Agency had offered to

cover the expense of an evaluation to determine whether Parents had

learned anything, and to determine the risk they posed for Child, but did not

receive a response).   Mother attended individual counseling, and Parents

attended some marriage counseling sessions, but they did not attend on a

regular basis.   Id. at 63.   Parents participated in casework services and

recommendations with regard to Child with the caseworker, Jeni Dudash

(“Dudash”), on several occasions. Id. at 64. Mother cooperated with non-

offending parenting evaluations. Id. at 63-64.

     Father attended parenting education at Open Door with Mother. Id. at

65-66. Father had a mental health evaluation by Dr. Small, but refused to

engage in recommended therapy.       Id. at 66.        Father participated in the

same domestic violence program as Mother.        Id.     While Father completed

the educational session regarding domestic violence, he did not follow

through with an evaluation of what he had learned.            Id. at 66, 70-71.

Father has not completed a sexual offender treatment program during his

involvement with the Agency.    Id. at 67, 69-70. Father indicated that he

has not participated in a sex offender treatment program because he lacks

the funds to pay for it. Id. at 67. Father has attended a casework services

session with Dudash and Christine Yuhasz.        Id.     Sanders explained that,

after July 1, 2015, the Agency had no contact with Parents.           Id. at 65.

There was no bonding evaluation performed concerning Parents. Id. at 67.


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     Sanders testified that Child is doing well in his foster home, and he

appears to be very bonded with the foster family, to whom he looks for all of

his needs. Id. at 56. Child smiles at his foster parents, and appears to be

bonded with the other children placed in the home. Id. Sanders testified

that CYS has no concern of any detriment to Child from the termination of

Parents’ parental rights. Id. at 57-58. Sanders testified that Child’s foster

family is the only family that he knows, so it would be harmful for him to be

removed from that situation and placed with people he does not know. Id.

Sanders stated that there are no concerns noted at the end of visits

regarding Child’s ability to separate from Mother. Id. Sanders testified that

Parents have not made any progress toward remediating the issues that

necessitated placement of Child or recognizing the issues. Id. at 59.

     On   September    24,   2015,   the   trial   court   entered   its   Decrees

involuntarily terminating the parental rights of Mother, Father, and the

unknown father, finding that CYS established the facts alleged in the

Petitions by clear and convincing evidence.

     On October 23, 2015, Parents timely filed a Notice of Appeal along

with a Concise Statement of Errors Complained of on Appeal pursuant to




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Pa.R.A.P. 1925(a)(2)(i) and (b).5

      On appeal, Parents raise the following questions for this Court’s

review:

      1. Did the Honorable Trial Court err in ruling that terminating
         parental rights was proper in this case?

      2. Has a Due Process violation occurred since Father was
         required to complete certain sexual offender services as a
         prerequisite to reunification or even visitation with [C]hild,
         yet the Agency or [c]ourt never permitted funding for such
         services?

Brief for Parents at 2-3.

      We review an appeal from the termination of parental rights in

accordance with the following standards:

      [O]ur scope of review is comprehensive: we consider all the
      evidence presented as well as the trial court’s factual findings
      and legal conclusions. However, our standard of review is
      narrow: we will reverse the trial court’s order only if we conclude
      that the trial court abused its discretion, made an error of law, or
      lacked competent evidence to support its findings. The trial
      judge’s decision is entitled to the same deference as a jury
      verdict.

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

5
   Despite the trial court’s entry of separate Decrees terminating Parents’
parental rights, Parents filed a single Notice of Appeal from the Decrees.
Although filing one appeal from separate orders is generally discouraged,
Parents’ arguments regarding each Decree are identical and arise from the
same set of facts. See Baker v. Baker, 624 A.2d 655, 656 (Pa. Super.
1993) (considering an appeal from separate orders where appellant’s
arguments were identical and stemmed from the same factual precedent).
Additionally, the trial court issued one Opinion to address both Decrees.
See Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super. 2014)
(stating that an appeal from two separate orders was not fatal where the
trial court addressed the issues pertaining to both orders). Therefore, under
these circumstances, we will address Parents’ appeal.
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      Termination of parental rights is controlled by section 2511 of the

Adoption Act.    See 23 Pa.C.S.A. § 2511.         The burden rests upon the

petitioner “to prove by clear and convincing evidence that its asserted

grounds for seeking the termination of parental rights are valid.”        In re

R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).           “[C]lear and convincing

evidence is defined as testimony that is so clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the precise facts in issue.”     Id. (citation

and quotation marks omitted). Further, 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 the 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).

      Satisfaction of any one subsection of Section 2511(a), along with

consideration of Section 2511(b), is sufficient for the involuntary termination

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

banc).   In this case, we will review the trial court’s decision to terminate

Parents’ parental rights based upon Section 2511(a)(2) and (b), which state

the following:

      § 2511. Grounds for involuntary termination


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     (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(a)(2), (b).

            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) 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).

Section 2511(a)(2) “does not emphasize a parent’s refusal or failure to

perform parental duties, but instead emphasizes the child’s present and


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future need for essential parental care, control or subsistence necessary for

his physical or mental well-being.” In re A.S., 11 A.3d 473, 481 (Pa. Super.

2010).

      Regarding section 2511(b), the trial court inquires whether the

termination of Parents’ parental rights would best serve the developmental,

physical and emotional needs and welfare of the child. See In re C.M.S.,

884 A.2d 1284, 1286-87 (Pa. Super. 2005); see also In re T.S.M., 71 A.3d

251, 267 (Pa. 2013).     “Intangibles such as love, comfort, security, and

stability are involved in the inquiry into the needs and welfare of the child.”

In re C.M.S., 884 A.2d at 1287 (citation omitted).       The 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.

Additionally, “the strength of emotional bond between a child and a potential

adoptive parent is an important consideration in a ‘best interests’ analysis.”

In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009).        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).      Finally, although the focus in terminating

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

under section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super. 2008) (en banc); see also In re Z.P., 994 A.2d at 1125 (stating




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that, a child’s life “simply cannot be put on hold in the hope that [a parent]

will summon the ability to handle the responsibilities of parenting.”).

      Parents contend that CYS failed to meet its burden of establishing that

they had a settled purpose of relinquishing their parental rights, and have

refused or failed to perform their parental duties. See Brief for Parents at 5-

10.   Parents argue that Mother had been attending visitations with Child,

and that she had cooperated with the trial court’s requirements to attend a

mental health evaluation, domestic violence training, and parenting classes.

Id. at 7, 9.   Parents further argue that Father participated in parenting

education, mental health evaluations, domestic violence training, and

marriage counseling.     Id. at 7-8.    Parents claim that Father could not

complete his sex offender evaluation requirements due to a lack of funding,

and that his criminal history and registration under Megan’s Law was the

only condition that he could not remedy.       Id. at 8.   Parents assert that

Father was not permitted to have visitation with Child because of a

requirement imposed during the prior termination proceedings concerning

the two older children.     Id. at 9.    Parents allege that they wanted to

cooperate with CYS so that the court would not terminate their parental

rights to Child. Id. at 9-10.

      Here, the trial court’s determination that Parents have evidenced a

repeated and continued incapacity, abuse, neglect or refusal that has caused

Child to be without essential parental care, control or subsistence necessary


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for his physical or mental well-being, and that the conditions and causes of

the incapacity, abuse, neglect or refusal cannot or will not be remedied by

Parents is supported by competent, clear and convincing evidence in the

record.   The trial court noted that Parents’ issues with regard to the

termination of M.Y. and T.J. were ongoing, and Parents do not have the

ability to remedy the conditions.         Trial Court Opinion, 11/17/15, at 2.

Further, the trial court found that “Mother’s moderate compliance with court-

ordered services did not establish her ability to protect [C]hild from harm[,]”

and “Father’s minimal compliance           with sex    offender   evaluation and

treatment continues to present a grave risk to [C]hild.” Id. We, therefore,

find no abuse of the trial court’s discretion in terminating the parental rights

of Parents under section 2511(a)(2) and (b).

      Additionally, the trial court’s determination that Parents cannot provide

for Child’s needs and welfare, and that his best interests are served by the

termination of their parental rights, is also supported by competent, clear

and   convincing    evidence   in   the   record.     Indeed,   the   trial   court’s

determination that there is no bond between Child and Parents, and that

Child would not suffer any harm from the termination of their parental rights

is supported by competent, clear and convincing evidence. See K.Z.S., 946

A.2d 753, 762-63 (Pa. Super. 2008) (stating that “where there is no

evidence of any bond between parent and child, it is reasonable to infer no

bond exists”).     Moreover, CYS presented evidence that Child has bonded


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with his foster parents and that they best serve his welfare interests. See

In re P.Z., 113 A.3d 840, 852 (Pa. Super. 2015) (stating that termination of

parental rights best served the child’s needs and welfare where a supportive

and secure environment existed with a new family); see also In re J.L.C.,

837 A.2d 1247, 1250 (Pa. Super. 2003) (stating that termination of parental

rights is proper where the child has formed a bond with the foster parents,

and where the child has lived with the foster parents for more than half of

his life).     We, therefore, find no abuse of the trial court’s discretion in

terminating the parental rights of Parents under section 2511(b).

      In their second argument, Parents assert that CYS deprived Father of

his constitutional guarantee to due process of law because CYS failed to

provide reasonable services to reunify Parents with Child. Brief for Parents

at 10.       Parents argue that Father was required to complete certain sex

offender services as a prerequisite to reunification or even visitation with

Child, but neither CYS nor the court permitted funding for such services. Id.

at 11.       Parents claim that their parental rights could not be terminated

because the Agency obviously had no intention of reunifying Father with

Child, and prematurely filed the Petitions to terminate parental rights. Id.

In support of their argument, Parents cite In re D.C.D., 91 A.3d 173 (Pa.

Super. 2014), which held that an agency must first make reasonable efforts

to reunify a parent with his or her child before filing a petition to terminate

parental rights. Brief for Parents at 10.


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      Parents’ reliance on this Court’s decision in D.C.D. is misplaced, as our

Supreme Court reversed that decision.        In re D.C.D., 105 A.3d 662 (Pa.

2014).   Our Supreme Court has held that neither section 2511(a)(2) nor

section 2511(b) requires a court to consider, at the termination stage,

whether an agency provided a parent with reasonable efforts aimed at

reunifying the parent with his or her child prior to the agency petitioning for

termination of parental rights. Id. at 672. Considering the substantive due

process interests of parents, the Court concluded that the Adoption Act, and

the clear and convincing standard, is sufficiently tailored to protect a

parent’s fundamental rights while also ensuring the safety and permanency

needs of dependent children. Id. at 673-77. Thus, Parents’ second claim is

without legal support and lacks merit.

      Accordingly, we affirm the trial court Decrees terminating the parental

rights of Mother and Father.

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




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