J-S32015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: N.K., NATURAL MOTHER,

                          Appellant                     No. 32 WDA 2015


               Appeal from the Order Entered December 8, 2014
                 In the Court of Common Pleas of Blair County
                Civil Division at No(s): CP-07-DP-0000033-2013


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




APPEAL OF: N.K., NATURAL MOTHER,

                          Appellant                     No. 33 WDA 2015


              Appeal from the Order Entered December 19, 2014
                In the Court of Common Pleas of Blair County
                    Orphans’ Court at No(s): 2014 AD-53


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                                FILED JULY 24, 2015

        N.K. (“Mother”) appeals the December 8, 2014 order changing the

goal in the dependency case of her daughter, K.N. (“Child”), born August of

2003,    to   adoption   and   the    December   19,   2014   order   involuntarily

terminating Mother’s parental rights to Child. We affirm.
J-S32015-15


     We glean the facts of this case from the certified record and the trial

court’s opinion. Blair County Children, Youth and Families (“CYF”) became

involved with Child in March 2013 through general protective services due to

Mother’s bizarre behavior, which included reporting that Child had been

kidnapped.    During services, Child reported sexual abuse, which led to an

investigation and resulted in criminal charges against the paramour of

Child’s maternal grandmother.     CYF established a safety plan for Child,

which Mother violated within months by allowing Child to have contact with

her maternal grandmother, who lived with the alleged sexual abuse

perpetrator. At nine years old, Child requested foster placement due to her

exposure to domestic abuse between Mother and Mother’s paramour.

Despite CYF’s attempts to work with Mother through mental health and

family services, Mother’s mental instability and violation of the safety plan

resulted in an adjudication of Child’s dependency and placement in foster

care on May 2, 2013.

     CYF provided treatment and counseling services to assist Child in

emotionally managing the sexual-abuse criminal proceedings, the loss of her

family, and the transition to foster care.   CYF also provided services to

Mother, including a psychological evaluation and a referral for drug and

alcohol assessment. Over the course of numerous dependency proceedings,

Child’s goal remained reunification until December 8, 2014, when the trial

court determined that Mother had failed to comply with the permanency plan


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and could not provide a safe, stable home for Child. Order, 12/8/14, at ¶ 3.

Based on the trial court’s findings and Child’s placement for almost eighteen

months, CYF filed a petition for termination of Mother’s parental rights on

October 9, 2014. After conducting a hearing over three days, the trial court

granted CYF’s petition on December 19, 2014, involuntarily terminating

Mother’s parental rights to Child.1 Mother and the trial court complied with

Pa.R.A.P. 1925.

       Mother presents the following questions for our consideration:

       1. Whether the agency met its burden of proving either that the
       mother is incapable of performing parental duties, or that she
       has failed to remedy the conditions which led to her child’s
       dependency placement?

       2. Whether termination of parental rights is in the child’s best
       interests, where a bond exists between parent and child, and no
       clear alternative path to permanency exists?

       3. Whether changing the goal to adoption was appropriate,
       where the mother had made substantial progress toward
       alleviating the problems that led to placement of her child, and
       had maintained a strong bond with the child?

____________________________________________


1
   After the legally presumptive father, W.N., voluntarily relinquished his
parental rights to Child, the trial court entered an order terminating W.N.’s
rights on December 19, 2014. W.N. has not appealed that order and is not
a party to this appeal. Child’s biological father, J.W., supported the goal
change to adoption and was willing to voluntarily relinquish his rights.
However, because J.W. requested that his voluntary relinquishment be
contingent on the termination of Mother’s parental rights, the trial court did
not accept J.W.’s voluntary relinquishment; rather, it entered an order
involuntarily terminating J.W.’s parental rights on December 19, 2014.
Upon J.W.’s request, the trial court stayed that order until disposition of
Mother’s appeal to this Court. Order, 2/10/15.



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Mother’s Brief at 6.

      We conduct our review according to the following standard:

         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.

      The burden is upon the petitioning person or agency to prove by
      clear and convincing evidence that its asserted grounds for
      seeking the termination of parental rights are valid. Moreover,
      we have explained:

         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.

      The trial court is free to make all credibility determinations, and
      may believe all, part, or none of the evidence presented. If the
      findings of the trial court are supported by competent evidence,
      we will affirm even if the record could also support the opposite
      result.

In re J.F.M., 71 A.3d 989, 992–993 (Pa. Super. 2013) (internal quotation

marks and citations omitted).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of 23

Pa.C.S. § 2511(a). In this case, the trial court terminated Mother’s parental



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rights under subsections (1), (2), (5), and (8) of section 2511(a).       On

appeal, we will focus on subsection (8), which provides 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:

                                * * *

        (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. § 2511(a)(8).

     On appeal, Mother argues, “The evidence in this case does not clearly

establish that [Mother] has failed to address her mental health problems.”

Mother’s Brief at 15.   In support of her position, Mother challenges the

report of Dr. Marolyn Morford as outdated, incomplete, and inconclusive.

Id. at 15–16.   Additionally, Mother highlights the testimony of her mental

health counselor “who testified at the twelve month review hearing, [and]

noted that [Mother’s] condition had improved.”     Id. at 17.    According to

Mother, the question of “whether [she] had the capacity to parent her child

at the time her parental rights were terminated – remains unanswered.” Id.

     We have discussed the requirements of section 2511(a)(8) as follows:




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      Section (a)(8) sets a 12-month time frame for a parent to
      remedy the conditions that led to the [child’s] removal by the
      court. 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 of [the agency] supplied over a realistic time period.
      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 [agency] services.

In re J.F.M., 71 A.3d at 993 (quoting In re K.Z.S., 946 A.2d 753, 759 (Pa.

Super. 2008)).

      Here, the first element of section 2511(a)(8) has been met. Child had

been in CYF’s care for a period of seventeen months from the adjudication of

dependency on May 2, 2013, until CYF filed the termination petition on

October 9, 2014, and for an additional two months as of the final

termination hearing on December 8, 2014.

      Addressing Mother’s challenge to the evidence and the second element

of section 2511(a)(8)—whether the conditions which led to Child’s placement

continue to exist—the trial court opined as follows:

            The dependency record which this [c]ourt incorporated into
      these orphan court proceedings contains clear and convincing
      evidence that despite the best efforts of CYF to assist the Mother
      to remedy the reasons placement occurred, Mother has not
      gained any stability and continues to struggle to maintain her
      own existence.      The psychosocial report completed by Dr.
      Marolyn Morford, in October 2013, (Exhibit B-April 14, 2014
      hrg.), indicates under Prognosis, page 8 of the report:

         7) Mother’s prognosis: [Mother’s] prognosis is completely
         dependent upon her cooperation with supportive personal
         treatment that would address the problem mentioned
         above as well as her depression and anxiety problems.

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       Participation [in] random drug/alcohol test[s] would also
       be important, these are difficult long standing problems
       that will not change in the very near future. It has been 6
       months since her daughter was removed and her
       assessment here does not indicate much insight.

            The dependency record will also reveal that this [c]ourt
     attempted a positive strength building approach in all [c]ourt
     proceedings to encourage and engage Mother, in light of her
     mental health instability, which effort failed, unfortunately, to
     change any pattern of Mother in the 18 months [Child] remained
     in care. We recognize the sexual abuse criminal charges created
     complications as [Child] struggled emotionally in September
     2013.     Visits with her Mother distressed her and caused
     nightmares as she relived her abuse and trauma. She also felt
     guilty for reporting the abuse and causing hurt and harm to her
     Mother. [Child’s] therapist stopped visits with her Mother at that
     time, however, the goal of visits resumed in April 2014 and
     [Child] and her Mother had positive interaction however, Mother
     could not maintain consistency missing approximately 50% of
     the visits available to her. When the therapist approved visits to
     continue outside the supervision and assessment of the
     therapist, the provider CYF assigned to facilitate that contact
     could not locate the Mother and confirm her permanent
     residence. In fact, [CYF] had a delay in assigning the provider
     as they too had encountered the same struggle to maintain
     contact with Mother before assigning the provider in late August
     2014.

           Additionally, the final Orphan’s Court proceeding on
     December 8, 2014 indicates the Mother failed to appear without
     any explanation or contact with the [c]ourt and/or her attorney.
     Mother attended the first hearing on the Petition to Terminate
     Parental Rights on October 22, 2014 with counsel. This [c]ourt
     took testimony from all witnesses except the Mother, due to time
     constraints.    This [c]ourt rescheduled the Termination of
     Parental Rights hearing for November 12, 2014 at which time
     Mother failed to appear and her counsel argued for another
     continuance which the [c]ourt granted.3 The final hearing on
     December 8, 2014 indicated through the testimony of the foster
     Mother that despite the foster Mother’s past practice of
     arranging and providing for direct contact with the Mother and
     [Child] (with CYF consent) the Mother had not had any contact
     with [Child] after November 16, 2014.         Mother’s attorney

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     affirmed that Mother met with him prior to December 8, 2014
     and knew the consequences of the proceedings from his
     explanation despite perhaps her alleged “confusion”. We find all
     of these facts circumstantially support the fact Mother has not
     yet found stability or the will to make changes, assert her
     parenthood and provide permanency for [Child]. In other words,
     CYF has without a doubt met their burden to establish that
     Mother’s incapacity or refusal has caused [Child] to be without
     essential parental care necessary for her physical and mental
     well-being and the conditions and causes of the incapacity and
     refusal cannot or will not be remedied by the Mother. See23
     Pa.C.S.A.2511 Section 2511 (a)(2)(5) & (8)
        3
           At the outset of the November 12, 2014 hearing, this
        [c]ourt denied the continuance; however, at the end of
        that hearing we granted counsel the opportunity to call
        Mother and we accepted her word that she did not know of
        the proceeding until the day before, however she still failed
        to appear or make contact with her counsel.           In an
        abundance of caution this [c]ourt rescheduled the hearing
        for November 19, 2014 and Mother’s counsel requested
        another continuance to allow more time for him to meet
        with Mother before her testimony.       We granted that
        request and reset the hearing for December 8, 2014.

            In summary, Mother has demonstrated bizarre and
     irrational behavior, has never evidenced mental stability and
     appears to utilize illegal drugs to self-medicate rather than
     receive treatment.4     She has not established a permanent
     residence and continues to reside with [T.S.] with whom
     domestic violence has occurred. Her strong resistance to change
     or to take accountability for her actions has continued for over
     18 months. Essentially these conditions seriously impair her
     functioning and parenting skills as noted in the report of Dr.
     Morford. Based upon this ample record, we find CYF has met its
     high burden to provide evidence for termination [of] parental
     rights.
        4
          While the therapist facilitated visits between Mother and
        [Child], Mother lost a great deal of weight and openly
        showed the track marks on her arms from drug use.

Trial Court Opinion, 3/10/15, at 4–6.


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      Upon review, we discern support in the record for the trial court’s

findings.   Child was removed by CYF due to concerns related to Mother’s

mental instability and her violation of the safety plan. Secondary concerns

included Mother’s drug and alcohol history, poor housing, and allegations of

domestic violence. We note some evidence of Mother’s progress. According

to Mother’s mental health counselor, as of Mother’s April 3rd and April 10th,

2013 sessions: she “is a lot more calmer, a lot more focused. She has taken

the initiative to . . . self-enroll in home nursing agency, drug and alcohol

counseling program.”    N.T., 4/10/14, at 20.    However, the record further

reveals that Mother did not appear for the initial shelter care or adjudicatory

proceedings. N.T., 5/3/13, at 1; 5/10/13, at 1. Moreover, Mother suffers

from major depressive disorder and generalized anxiety disorder, and she

has a history of drug abuse, inpatient hospitalizations, domestic violence,

and noncompliance with services. N.T., 5/10/13, at 26; N.T. 12/19/13, at

38–39; N.T., 7/21/14, at 1–2, 5–15; N.T., 10/22/14, at 19–20, 26–29.

Significantly, Mother’s visitation with Child was sporadic: “She had about a

fifty percent show rate or not and sometimes it was a no-show, sometimes it

was cancellation, sometimes it was showing up to a visit for half an hour or

more late.” N.T., 11/22/14, at 11. With the exception of a family dinner at

Pizza Hut in November 2014, Mother did not have visits with Child from July

2014 through the December 8, 2014 hearing.         N.T., 11/12/14, at 34–35;

N.T., 12/8/14, at 5.   Additionally, Mother’s whereabouts were sometimes


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unknown to CYF, counselors, service providers, and her attorney, which

resulted in no contact with her. N.T., 10/22/14, at 26-29; N.T., 11/12/14,

at 3.

        As for housing, Mother lived between her paramour’s home, her own

house, which had no running water, and a friend’s house. N.T., 4/10/14, at

81–87; N.T., 10/22/14, at 26-29.          Caseworkers who visited Mother’s

residence observed from the outside that it was in poor condition and

appeared to be vacant. N.T., 7/21/14, at 40, 45–56; N.T., 10/22/14, at 27,

29. CYF caseworkers were not able to conduct a home inspection because

they could not reach Mother, she would cancel the appointment, or she

would not show up for the appointment. N.T., 10/22/14, at 25–29, 47–49.

On July 31, 2014, an Altoona police officer found drugs and paraphernalia in

Mother’s residence, multiple pieces of mail addressed to Mother, and he

obtained statements from individuals in the home that Mother lived there.

The officer also observed that the home was in poor condition, bug infested,

with bags of trash overflowing in the kitchen and clutter, clothing, and

garbage strewn throughout the house.          N.T., 10/22/14, at 14–21.   At the

time of the termination hearing, Mother did not appear on the second and

third dates, despite the trial court rescheduling twice so Mother could testify.

N.T., 11/22/14, at 1, 44–50; N.T., 12/18/14, at 1–7.

        In light of the foregoing, we discern no abuse of the trial court’s

discretion in finding that CYF presented clear and convincing evidence that


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the conditions which led to the removal or placement of Child continue to

exist. 23 Pa.C.S. § 2511(a)(8). The trial court heard from caseworkers and

medical experts regarding Mother’s ongoing mental instability and inability

to care for Child.   The trial court was in the best position to assess the

credibility of these witnesses. Thus, we conclude that the trial court’s legal

conclusion—that termination of Mother’s parental rights would best serve the

needs and welfare of Child—is without error.

      Mother’s second issue challenges the trial court’s bond analysis

pursuant to 23 Pa.C.S. § 2511(b). According to Mother, termination would

be appropriate, despite bonds, if “substantial, possibly permanent, damage

[was] done to [Child] by the prolonged, unhealthy, pathological bond with

Mother[.]” Mother’s Brief at 19–20 (quoting In re TSM, 71 A.3d 251, 271

(Pa. 2013)). Here, Mother asserts, “there is no evidence that the bond with

the mother is unhealthy.” Id. at 20.

      Section 2511(b) provides as follows:

      (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.




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23 Pa.C.S. § 2511(b). As this Court has explained, “Section 2511(b) does

not explicitly require a bonding analysis and the term ‘bond’ is not defined in

the Adoption Act.         Case law, however, provides that analysis of the

emotional bond, if any, between parent and child is a factor to be

considered.”     In re Adoption of C.J.P., 114 A.3d 1046, 1054 (Pa. 2015)

(quoting In re K.K.R.–S., 958 A.2d 529, 533 (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.”    Id. (quoting In re N.A.M., 33 A.3d 95, 103 (Pa.

Super. 2011)).

             [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.

N.A.M., 33 A.3d at 103 (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super.

2010)); see also In re T.D., 949 A.2d 910, 920–923 (Pa. Super. 2008)

(affirming termination of parental rights where “obvious emotional ties exist

between child and parents, but parents are either unwilling or unable to

satisfy irreducible minimum requirements of parenthood,” and where

preserving parents’ rights would prevent child from being adopted and

attaining permanency).

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     The trial court addressed section 2511(b) as follows:

            We hasten to add that [Child] does indeed love her Mother
     and as Mother argues, [Child] has a bond with her Mother. We
     must therefore address whether termination of Mother’s rights
     would best serve the developmental, physical and emotional
     needs and welfare of [Child] as set forth in Section 2511(b).
     The record indicates [Child] continued to request and receive
     contact with her Mother during her placement in her first and
     now second foster care placements. Other than the length of
     time from September 2013 – June 2014 where Mother did not
     have visits with [Child], she has enjoyed phone contact, letters
     and visits through the foster family and [Child’s] therapist as
     well as CYF contacts at Mother’s availability.5 Mother and [Child]
     have enjoyed this contact despite the fact that Mother has not
     had the ability to provide the daily essential care and guidance
     required of a parent toward a child.             We believe this
     demonstrates that [Child] has the capacity to love her Mother
     and concurrently recognize her Mother loves her but cannot
     provide permanency for her. In fact, the testimony indicates
     that [Child] has adjusted to her second foster family, has bonded
     to them and has blossomed in her confidence and social skills
     enabling her to state her needs and accept nurturing. We note
     once again, at 9 years old at the inception of this case, [Child]
     requested foster care. She continues to have the added stress
     of pending criminal charges to deal with the sexual abuse
     allegations. Until disposition of these charges she continues to
     need a very consistent, nurturing stable environment to help her
     manage that difficult experience.        In the 18 months of
     placement, [Child] has demonstrated no adverse consequences
     of the severed relationship with her Mother. To the contrary,
     evidence exists that she has begun to heal. We attribute that
     fact, in large measure, to her foster Mother in light of the fact
     the foster Mother promotes contact with [Mother] by even
     coordinating a dinner at Pizza Hut for [Child’s] mom and family
     to maintain contact. This helps [Child] to keep her roots “intact”
     in a healthy manner as she grows and flourishes in an
     appropriate setting for permanency. This bodes well for [Child’s]
     long-term emotional well-being, despite the need to terminate
     rights to remove the limbo of foster care.
       5
           Even with the openness of nonjudgmental contact
       provided by the foster family the Mother did not/could not


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        establish any regularity or meaningful contact for over six
        months from July 2014-December 2014.

Trial Court Opinion, 3/10/15, at 6–8.

     Upon review, we find support in the record for the trial court’s findings.

While in Mother’s custody, Child was exposed to Mother’s unstable mental

health, drug issues, and domestic violence.    N.T., 5/10/13, at 27, 33–36.

Child experienced nightmares and anxiety after visits with Mother.       N.T.,

11/12/14, at 14, 17, 28. Mother was not supportive of Child with regard to

Child’s allegations of sexual abuse. N.T., 4/10/14, Exhibit B at 2–3. Child

disclosed to her counselor that Mother could not keep Child safe, and Child

took the blame for Mother’s shortcomings.      N.T., 12/19/13, at 21; N.T.,

7/21/14, at 24; N.T., 11/12/14, at 17, 28.     As of the December 8, 2014

termination hearing, contact between Child and Mother had ceased, with the

exception of a family dinner in early November 2014 arranged by Child’s

foster mother. N.T., 12/8/14, at 5–6. As of the final termination hearing,

Child had been in placement for almost twenty months.

     In contrast, Child has been in a pre-adoptive home with the “D” family

since June 8, 2014.     N.T., 11/12/14, at 31–32.        According to a CYF

caseworker, Child is doing very well with the D family; she has developed a

very strong relationship with them and asked if she could call her foster

parents “mom” and “dad.”      N.T., 10/22/14, at 38.      Additionally, Child’s

foster mother provides a unique sensitivity to Child’s situation and need to

maintain roots, having been separated from her own mother as a child

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without getting a chance to meet her mother before her death.            N.T.,

12/8/14, at 10–11.    Consequently, foster mother has encouraged contact

between Child and Mother. N.T., 10/22/14, at 38–39. Child indicated that

she likes her foster family; she described a positive relationship with foster

mother, advised the CYF caseworker that she felt safe in her foster home,

and indicated that being adopted by them would be “alright” with her. N.T.,

4/10/14, at 53–54; N.T., 7/21/14, at 27–28. According to Child’s counselor,

if Mother’s parental rights were terminated, Child would be able to transition

into her pre-adoptive family with whom she has built a strong attachment.

N.T., 11/22/14, at 26–27.       Moreover, the D family would ensure healthy,

appropriate, ongoing contact between Child and Mother in the future. Id. at

8–9, 26–27.

      In light of the foregoing, we discern no abuse of the trial court’s

discretion in finding that, although Mother loves Child, she cannot provide

permanency for Child.     See In re D.A.T., 91 A.3d 197 (Pa. Super. 2014),

appeal denied, 95 A.3d 278 (Pa. 2014) (holding evidence sufficient to

support termination of parental rights even though Mother’s testimony

revealed that she clearly loves her children). The trial court heard testimony

regarding Child’s relationship with Mother and her relationship with the pre-

adoptive family.   The trial court was in the best position to assess the

credibility of the witnesses.   Thus, we conclude that the trial court’s legal

conclusion—that termination of Mother’s parental rights would best serve the


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developmental, physical and emotional needs and welfare of Child—is

without error.

      Mother’s final issue challenges the trial court’s order changing the

permanency goal to adoption. Mother’s Brief at 20. We decline to review

this claim. As CYF points out, if the Superior Court affirms the termination

of Mother’s parental rights, “the issue of the goal change is moot and need

not be addressed by the Superior Court.”    CYF’s Brief at 40 (citing In re

M.T., 101 A.3d 1163, 1166 (Pa. Super. 2014)).        We are affirming the

termination of Mother’s parental rights. Therefore, her goal change issue is

moot. M.T., 101 A.3d at 1166.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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