J-S72013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: C.S., A                   :   IN THE SUPERIOR COURT OF
    MINOR                                         :        PENNSYLVANIA
                                                  :
                                                  :
    APPEAL OF: J.S., BIOLOGICAL                   :
    MOTHER                                        :
                                                  :
                                                  :
                                                  :   No. 1256 MDA 2018

                  Appeal from the Decree Entered July 10, 2018
     In the Court of Common Pleas of Lackawanna County Orphans' Court at
                              No(s): A-17 of 2018


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                          FILED: JANUARY 17, 2019

        J.S. (“Mother”) appeals from the order dated June 27, 2018, and

entered on July 10, 2018, in the Court of Common Pleas of Lackawanna

County, that granted the petition of the Lackawanna County Office of Youth

and Family Services (“OYFS”), and involuntarily terminated her parental rights

to her son, C.S.1 After careful review, we affirm.

        C.S. was born in December of 2015. OYFS became involved with the

family in February of 2017 when it received a referral regarding bruises on

C.S.’s face.    N.T., 5/17/18, at 15.          Further investigation revealed multiple

bruises on C.S.’s cheeks, eyelids, forearm, ears, and the bridge of his nose.

Id. Additionally, C.S. had multiple broken bones in different stages of healing,

including fractures to his left arm, right leg, and skull. Id. at 15. Mother,
____________________________________________


1   The birth father, A.P., relinquished his parental rights voluntarily.
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who suffers from an undisclosed intellectual disability, had no explanation for

C.S.’s injuries. Id. at 16. Pursuant to a shelter care order dated February

27, 2017, the court granted OYFS legal and physical custody of C.S. The order

anticipated that C.S. would be placed in foster care upon his release from the

hospital.   On May 11, 2017, the court entered an order adjudicating C.S.

dependent.

      As a result of C.S.’s injuries, Mother was charged with endangering the

welfare of children, simple assault, and recklessly endangering another

person. N.T., 5/17/18, at 17. On July 24, 2017, Mother entered a plea of

nolo contendere to the charge of simple assault, acknowledging that she would

not contest that she “did attempt to cause or did intentionally, knowingly, or

recklessly cause bodily injury to C.S., a then 14-month-old male. Specifically

[Mother] did cause injuries, including facial bruises and bone fractures.” N.T.,

Plea Hearing, 7/24/17, at 3.

      OYFS implemented a family service plan (“FSP”) that required Mother to

obtain a mental health evaluation and comply with all recommendations,

stabilize her mental health, engage in intellectual disability services, complete

an   evaluation   with   Advocacy   Alliance   to   identify   support   services,

appropriately respond to C.S., both emotionally and physically, participate in

a safe care program and a mothers group, and apply the parenting skills

learned. N.T., 5/17/18, at 27-28. Mother obtained full compliance with the

FSP. Id. at 33. However, her progress toward reunification was minimal due




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to her inability to apply the skills learned through the services that were

provided. Id. at 33-34.

       On April 25, 2018, OYFS filed a petition to involuntarily terminate

Mother’s parental rights to C.S. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5)

and (8) and § 2511(b). The trial court conducted hearings on the petition on

May 17, 2018 and June 27, 2018. C.S. was represented by Attorney Kevin

O’Hara, who acted as his guardian ad litem (“GAL”) throughout the

dependency proceedings.2         OYFS presented the testimony of Urica Carver,

OYFS    caseworker;      Lisa   Kanavy,        OYFS   visitation   supervisor;   Stefanie
____________________________________________


2 In In re T.S., 192 A.3d 1080 (Pa. 2018), our Supreme Court reiterated that
23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court continued that a guardian ad litem who is an attorney
may act as legal counsel pursuant to § 2313(a) as long as the dual roles do
not create a conflict between the child’s legal interest, which is synonymous
with his preferred outcome, and his best interests. In addressing a potential
conflict in that case, the High Court concluded that the trial court did not err
in allowing the guardian ad litem to act as the sole representative during the
involuntary termination of parental rights proceeding because the children,
ages two and three, respectively, were incapable of expressing their preferred
outcome. The Court reasoned,

       [I]f the preferred outcome of the child is incapable of
       ascertainment because the child is very young and pre-verbal,
       there can be no conflict between the child’s legal interests and his
       or her best interests; as such, the mandate of Section 2313(a) of
       the Adoption Act that counsel be appointed ‘to represent the child,’
       23 Pa.C.S. § 2313(a), is satisfied where the court has appointed
       an attorney-[GAL] who represents the child’s best interests during
       such proceedings.

Id. at 1093-94. Given that C.S. was two years old at the time of the hearing
in the case at bar, we discern no conflict between his legal interest and best
interests.

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Calachino, intellectual disabilities support coordinator for Wayne County

Behavioral and Developmental Program; and Patrick Quinn, director of

program operations at The Arc of Northeastern Pennsylvania.            Mother,

represented by counsel, testified on her own behalf.          Further, Mother

presented the testimony of Tamara Fisher, Mother’s habilitation specialist

through Holcombe Behavioral Health System. On July 10, 2018, the trial court

entered an order involuntarily terminating Mother’s parental rights to C.S.

      Thereafter, on July 27, 2018, Mother 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).

      Mother raises the following issues for our review:

      A.    Whether the trial court erred as a matter of law and/or
      manifestly abused its discretion in determining the agency
      sustained its burden of proving the termination of Mother’s
      parental rights is warranted under Sections 2511(a)(1),
      2511(a)(2), 2511(a)(5) and/or 2511(a)(8) of the Adoption Act?

      B.    Even if this Court concludes the agency established
      statutory grounds for the termination of Mother’s parental rights,
      whether the trial court nevertheless erred as a matter of law
      and/or manifestly abused its discretion in determining the agency
      sustained its additional burden of proving the termination of
      Mother’s parental rights is in the best interests of the child?

Mother’s brief at 5.

      We review these claims mindful of our well-settled standard of review:

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law

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     or abused its discretion. A decision may be reversed for an abuse
     of   discretion    only   upon     demonstration      of    manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. The trial
     court’s decision, however, should not be reversed merely because
     the record would support a different result. We have previously
     emphasized our deference to trial courts that often have first-hand
     observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

     Termination of parental rights is governed by § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing evidence
     that the parent’s conduct satisfies the statutory grounds for
     termination delineated in Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the
     needs and welfare of the child under the standard of best interests
     of the child. One major aspect of the needs and welfare analysis
     concerns the nature and status of the emotional bond between
     parent and child, with close attention paid to the effect on the child
     of permanently severing any such bond.

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

     In this case, the trial court order did not identify the sections of the

Adoption Act under which it terminated Mother’s parental rights. However,

the court’s opinion and on-the-record statements from the bench confirm that

it terminated Mother’s parental rights pursuant to § 2511(a)(2) and (b). This

Court may affirm the trial court’s decision regarding the termination of

parental rights with regard to any one subsection of § 2511(a) as well as




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§ 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).

The relevant sections provide:

     § 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. § 2511(a)(2) and (b).

     Our Supreme Court set forth our inquiry under § 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


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      and causes of the incapacity, abuse, neglect or refusal cannot or
      will not be remedied by the parent.” . . .

         This 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 S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).

      This Court has long recognized that a parent is required to make diligent

efforts   towards   the   reasonably   prompt   assumption   of   full   parental

responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). A parent’s

vow to cooperate, after a long period of uncooperativeness regarding the

necessity or availability of services, may properly be rejected as untimely or

disingenuous. Id. at 340.

      In addressing § 2511(a), the trial court observed that Mother engaged

in the services provided by OYFS. Trial Court Opinion, 8/2/18, at 2. However,

it found Mother did not demonstrate that she gained any skills from the

services. Id. The court concluded Mother was unable to care for C.S.’s basic

and medical needs, or to provide for his safety.     Id.   Additionally, at the

conclusion of the hearing, the court noted, “[M]other, I think, maybe is at a

point where she could take care of herself more independently, but I’m sure

she can’t take care of a child.” N.T., 6/27/18, at 213.




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      Mother asserts the trial court erred because OYFS did not explore the

extent of Mother’s intellectual disabilities, her limitations, or available

programming to assist Mother. Mother’s brief at 21. Mother argues that OYFS

should have undertaken a psychological evaluation of Mother to identify her

limitations. Id. at 22. Mother faults OYFS for concluding that Mother did not

make enough progress when it had insufficient information about her

limitations.   Id.   She contends that she progressed towards independence

with the assistance of the supports available to her.            Id. at 22-23.

Accordingly, Mother argues the court erred in concluding that the causes of

her parental incapacity, abuse, neglect or refusal cannot or will not be

remedied. Id. at 23.

      The record supports the trial court’s conclusion that OYFS established,

by clear and convincing evidence that Mother suffers from a parental

incapacity that she cannot or will not remedy. C.S. came into OYFS’s care as

a result of physical abuse, i.e., multiple bruises, broken bones in different

stages of healing, and a lack of any immediate explanation for those injuries

from Mother. N.T., 5/17/18, at 15-16. Later, Mother proffered a variety of

explanations for the injuries, including asserting C.S. returned from his

maternal grandparents’ home injured, that 14-month-old C.S. tripped and fell

playing cops and robbers, that he fell on his own, or that she fell while holding

him. Id. at 22-23, N.T., 6/27/18, at 105, 163. However, the medical records

belied these alternative scenarios.    C.S.’s doctor at Geisinger opined that

C.S.’s arm was fractured by a twisting motion and his leg and clavicle were

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fractured by forced trauma. N.T., 5/17/18, at 21. While the causes of the rib

and head fractures could not be determined, Mother ultimately entered a plea

of nolo contendere to simple assault. Id.at 17, 21.

      During the hearing, Ms. Carver, the OYFS caseworker assigned to the

family, testified that Mother was fully compliant with her FSP goals,

participated in the required courses, took the initiative to enroll herself in

additional programs for parenting, CPR, and fire safety. Id. at 32-33, 55-56.

However, Mother’s progression stalled because she was unable to apply the

skills she learned. Id. at 33-34.

      As it relates to safety concerns in Mother’s home, Ms. Carver indicated

that Mother did not recognize common hazards. When Mother moved to a

new home, Ms. Carver observed that Mother had open heaters, the stairs were

not blocked off, and electrical plugs were not covered.      Id. at 34.   The

conditions remained for several months until Ms. Carver finally requested that

Mother fix the issues. Id. at 63. Mother complied, but only because she was

told to, not because she understood the risks. Id. at 34-35, 64. Ms. Carver

also confirmed that Mother did not progress to unsupervised visits because of

concerns about C.S.’s safety and her ability to care for C.S. Id. at 25-26.

      Ms. Carver opined that Mother would need 24-hour supervision to care

for C.S. and could not independently care for him in the near future due to

the safety concerns. Id. at 38, 61. Ms. Carver did not believe that additional

time would help because safety and supervision were the primary concerns



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and Mother’s ability to provide safety and supervision did not improve despite

the services offered. Id. at 68-69. For example, during the period that C.S.

was convalescing from the non-accidental injuries that are the genesis of

OYFS’s involvement with the family, Mother never thought to inquire about

his recovery. Id. at 24.

      Lisa Kanavy, a visitation supervisor for OYFS, testified that Mother

attended every visit and brought appropriate meals. N.T., 6/27/18, at 20-21,

33. However, visits did not progress beyond line-of-sight because of safety

concerns. Id. at 19. Mother would place C.S. in a highchair and ignore him

while she went to the kitchen to make lunch. Id. at 20. Further, a recurring

issue was Mother’s failure to cut food up so it was small enough that C.S.

could not choke on it.      Id. at 20-21.     Additionally, Mother would not

immediately follow C.S. when he left the room.        Id. at 19.    Ms. Kanavy

recounted an incident where, after getting changed, C.S. was crawling on the

floor of the bathroom, left the room, entered the kitchen, and retrieved a toy

before Mother could get to him. Id. at 35.

      Ms. Kanavy sought to teach Mother about health and safety issues. One

of the barriers was that Mother never acknowledged that C.S.’s injuries were

serious, asserting that broken bones and bruises did not constitute serious

injuries. Id. at 9-10, 16-17. Further, Mother did not believe that keeping

C.S. safe was her role, claiming her responsibility was to provide shelter, food,

and clothing. Id. at 17, 42. Ms. Kanavy taught the course on safe care, which


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included three modules, safety, health, and parent-child interaction, followed

by a test.    Id. at 12.     Ms. Kanavy acknowledged that she has not taught

another individual with an intellectual disability, id. at 77, but she was aware

of Mother’s status and attempted to assist Mother by explaining concepts to

her from different points of view. Id. at 40-41. Additionally, the test following

the first module was adjusted to account for Mother’s intellectual disability by

explaining questions in more detail and allowing Mother to ask questions. Id.

at 45. Mother failed the first test and, after additional education, failed it

again. Id. at 13. Mother answered 30% of the safe care questions correctly.

Id. at 44. A score of 70% is considered a passing score. Id. at 68. Because

Mother could not pass the first module, they did not pursue the other modules.

Id. at 15. Ms. Kanavy testified that OYFS would not return C.S. to Mother’s

care without Mother successfully completing all three modules. Id.

       The foregoing evidence of record confirms that Mother did not make

sufficient progress toward reunification.3 C.S. came into care as a result of

serious injuries that occurred while he was in Mother’s care. Despite receiving



____________________________________________


3  Mother complains that, to the extent that her progress was insufficient, it
was the result of OYFS’s failure to employ reasonable efforts toward
reunification in light of her intellectual disability. We disagree. The record
supports OYFS’s efforts to account for Mother’s disability. Moreover, even if
it did not, an agency’s failure to provide reasonable efforts is not a basis for
denying a petition to terminate parental rights. See In re D.C.D., 105 A.3d
662, 676 (Pa. 2014) (“Superior Court erred in reversing the trial court's
termination of Father's parental rights as a result of CYS's failure to provide
reasonable efforts to enable Father to reunify with Child”).

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services for over a year, Mother still could not provide safety for C.S., even in

a supervised setting. The testimony of Ms. Carver and Ms. Kanavy confirms

that Mother’s repeated and continued incapacity, abuse, neglect or refusal

caused C.S. to be without essential parental care, control or subsistence

necessary for his physical or mental well-being.        Further, the causes of

Mother’s incapacity, abuse, neglect or refusal cannot or will not be remedied.

Accordingly, we discern no abuse of discretion by the trial court in terminating

Mother’s parental rights pursuant to § 2511(a)(2).

      We next determine whether termination was proper under § 2511(b).

This Court has stated that the focus in terminating parental rights under

§ 2511(a) is on the parent, but it is on the child pursuant to § 2511(b). See

In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).

In reviewing the evidence in support of termination under § 2511(b), our

Supreme Court has 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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      When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well. Additionally, [§] 2511(b) does not require a formal bonding evaluation.”

In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal citations

omitted). Although it is often wise to have a bonding evaluation and make it

part of the certified record, “[t]here are some instances . . . where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa.Super. 2008).

      A parent’s abuse and neglect are likewise a relevant part of this

analysis:

      [C]oncluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent . . . Nor
      are we of the opinion that the biological connection between [the
      parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent, to
      establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa.Super. 2008) (internal citations and

quotation marks omitted).

      Thus, the court may emphasize the safety needs of the child. See In

re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental

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rights, despite existence of some bond, where placement with mother would

be contrary to child’s best interests). “[A] parent’s basic constitutional right

to the custody and rearing of . . . her child is converted, upon the failure to

fulfill . . . her parental duties, to the child’s right to have proper parenting and

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

environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (internal

citations omitted).

      With respect to § 2511(b), Mother argues that termination did not meet

C.S.’s needs and welfare. Mother’s brief at 23. Mother highlights her own

testimony, as well as that of Ms. Fisher, to assert there is a bond between

Mother and C.S. Id. at 24. Further, Mother faults OYFS for failing to account

for her intellectual limitations. Id. at 25.

      The record supports the trial court’s conclusion that termination of

Mother’s parental rights best meets C.S.’s needs and welfare. Ms. Carver, the

OYFS caseworker, testified that C.S. has been in his foster home for 14

months. N.T., 5/17/18, at 67. C.S. has his needs met by his foster parents

and the family loves and cares for each other. Id. Ms. Carver observed C.S.

playing and laughing with his foster parents and described them as very

nurturing. Id. at 35, 66. Ms. Carver opined that it is in C.S.’s best interest

for Mother’s parental rights to be terminated.             Id. at 67.   Similarly, Ms.

Kanavy, the OYFS visit supervisor, opined that Mother is bonded to C.S., but

she did not believe that C.S. is bonded to Mother. N.T., 6/27/18, at 61. Ms.


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Kanavy observed C.S. call Mother “mommy,” but C.S. also referred to case

aides as “mommy.”         Id. at 30.     She acknowledged C.S., at times, seeks

comfort from Mother during visits, but she did not see C.S. run to Mother as

she would expect if C.S. was bonded to Mother. Id. at 31. Ms. Kanavy opined

it was in C.S.’s best interest to establish permanency with his foster parents.4

Id. at 34.

       Here, the trial court credited OYFS’s evidence and concluded termination

of Mother’s parental rights best serves C.S.’s developmental, physical and

emotional needs and welfare. The record confirms that C.S. resides in a loving

home, with foster parents that Mother acknowledges are doing a good job

raising C.S. The trial court noted C.S. “has bonded with his foster parents

rather than with Mother.” Trial Court Opinion, 8/2/18, at 2. While Mother

may profess to love C.S., 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. As we stated, 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.” Id. at 1125. Rather, “a parent’s basic constitutional right to the

custody and rearing of his child is converted, upon the failure to fulfill his or

her parental duties, to the child’s right to have proper parenting and fulfillment

of his or her potential in a permanent, healthy, safe environment.” In re B.,


____________________________________________


4Mother acknowledged that the foster parents are “wonderful people” and
have done a good job raising C.S. N.T., 6/27/18, at 191.

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N.M., 856 A.2d at 856 (citation omitted). Upon our review of the record, we

discern no abuse of discretion in the trial court’s conclusion that terminating

Mother’s parental right serves C.S.’s developmental, physical and emotional

needs and welfare pursuant to § 2511(b).

      Accordingly, for all of the foregoing reasons, we find that the record

sustains the trial court's determination that OYFS established the statutory

grounds to terminate Mother’s parental rights pursuant to § 2511(a)(2) and

confirms that terminating Mother’s parental rights best satisfies C.S.’s

developmental, physical, and emotional needs and welfare under § 2511(b).

Thus, we affirm the trial court order terminating Mother’s parental rights to

C.S. pursuant to § 2511(a) and (b).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2019




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