J-S22009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF BABY L.,                     IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee



APPEAL OF: B.E., BIOLOGICAL FATHER

                                                     No. 1827 MDA 2016


                     Appeal from the Decree October 7, 2016
                In the Court of Common Pleas of Dauphin County
                      Orphans’ Court at No(s): 108-AD-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 11, 2017

       B.E. (“Father”) appeals from the decree entered on October 7, 2016,

in the Court of Common Pleas of Dauphin County, involuntarily terminating

his parental rights to his son, Baby L. (“Child”), born in May of 2015. 1 After

careful consideration, we affirm.

       The record reveals the following relevant procedural history.        On

December 22, 2015, J.L.H. (“Prospective Adoptive Father”) and his wife,

S.E.H. (“Prospective Adoptive Mother”) (collectively “Prospective Adoptive

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  By separate decree entered on October 7, 2016, the orphans’ court
granted the petition to confirm consent to terminate the parental rights of
T.M.B. (“Mother”). Mother filed a notice of appeal, which this Court quashed
sua sponte as untimely. Mother did not file a brief in Father’s appeal.
J-S22009-17


Parents”), filed a petition for the involuntary termination of Father’s parental

rights to Child pursuant to 23 Pa.C.S. §§ 2511(a)(1) and (2). In addition,

on December 22, 2015, Prospective Adoptive Parents filed a report of intent

to adopt, a petition for adoption, and a petition to confirm consent to the

voluntary termination of Mother’s parental rights.

       On April 20, 2016, Prospective Adoptive Parents filed an amended

petition for the involuntary termination of Father’s parental rights pursuant

to 23 Pa.C.S. §§ 2511(a)(1), (2), (6), and (b).2      The orphans’ court held

hearings on September 19, 2016, and October 5, 2016. The court set forth

the following factual findings, in relevant part, which the testimonial

evidence supports.3

____________________________________________


2
  In his brief, Father states that he was served with the amended involuntary
termination petition but not the petition filed in December of 2015. Father’s
Brief at 16. The orphans’ court found that Father was served with the
amended petition only. N.T., 10/5/16, at 98; Trial Court Opinion, 12/20/16,
at 9.
3
  Prospective Adoptive Parents presented the testimony of Morgan C. Davis,
Esquire, the former associate attorney at the law firm representing
Prospective Adoptive Parents; Renee Dreisbach, the legal secretary at the
law firm representing Prospective Adoptive Parents; Kasey Shienvold,
Psy.D., a clinical and forensic psychologist who performed a psychological
assessment of Prospective Adoptive Parents and observed their relationship
with Child in August of 2016; Prospective Adoptive Father; Prospective
Adoptive Mother; and L.F., Prospective Adoptive Maternal Grandmother.
Father testified on his own behalf, and he presented the testimony of A.E.,
his sister; and Elizabeth Ruby, Esquire, an assistant public defender at the
Dauphin County Public Defender’s Office.        Mother, who contested the
petition to confirm consent of the termination of parental rights, testified on
her own behalf. N.T., 9/19/16, 1-183; N.T., 10/5/16, at 1-102.



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       4. Father was told immediately by Mother when she discovered
       she was pregnant.

       5. Neither Father nor his extended, large family[,] gave Mother
       any emotional or financial support during the pregnancy.

       6. Mother did not tell Father when she went into labor and gave
       birth to [Child in] May [of] 2015.

       7. [Two days after Child’s birth,] Mother told Father and the
       public through postings on Facebook that [Child] was stillborn.

       8. Father was enraged and subjected Mother to angry and
       threatening verbal attacks for which she filed a Petition for
       Protection from Abuse [“PFA”] in May of 2015.

       9. Father’s bail was revoked after the [PFA] Order was entered
       and he was incarcerated in late May 2015.[4]

       10. Father plead [sic] guilty to simple assault and aggravated
       assault of two women for which he was sentenced to five to
       fifteen years in a state correctional facility.[5]

       11. In late December, 2015, Father learned from Mother that
       [Child] was alive and had been placed with a couple who were
       caring for [Child].

____________________________________________


4
  Father was incarcerated on May 19, 2015, the same date that he appeared
in court on a miscellaneous listing regarding separate criminal charges for
simple and aggravated assault, for which he was then on bail. The assault
charges were lodged against him before Child’s birth, and neither charge
involved Mother as the victim. Rather, the charges alleged two different
women as victims. On approximately May 19, 2015, Father was charged
with a crime involving terroristic threats, which arose from the same incident
that was the basis of the PFA order issued against him on behalf of Mother.
As a result of the new criminal charge, Father’s bail was revoked, and he
was incarcerated. N.T., 9/19/16, at 115-119, 121-122.
5
  On February 9, 2016, Father pleaded guilty to the assault charges. N.T.,
9/19/16, at 116.



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      12. Knowing the child was alive, Father did not provide any
      financial assistance for the child, nor did he send gifts, cards,
      diapers, or letters to [Child].

                                     ***

      14. Father will be incarcerated for a minimum of three and one-
      half to five years, but possibly longer.

      15. Father has an extensive criminal record.

      16. Dr. Kasey Shienvold testified on behalf of [Prospective
      Adoptive Parents] to the fact that [Child] was strongly bonded to
      [Prospective Adoptive Parents].

      17. [Child] has lived with [Prospective Adoptive Parents] since
      May 16, 2015.

      18. The Guardian Ad Litem recommended termination of Father’s
      parental rights, coupled with confirmation of Mother’s consent to
      terminate her parental rights as in the best interest of [Child],
      based on incapacity of Father to care for [Child] for at least three
      and one-half years and possibly much longer, and the fact he
      had made no attempt to provide [Child] with any necessities of
      life or gifts since learning the child was alive.

Trial Court Opinion, 12/20/16, at 7-9. In addition, the orphans’ court found

that Father “learned in early January of 2016 that [Child] was being cared

for by a pre-adoptive couple.” Id. at 9 (citation to record omitted).

      Further, the record reveals that Father mailed a handwritten letter to

Mother dated January 21, 2016, which she forwarded to counsel who

represented her during the subject proceedings in her contest of the confirm




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consent petition, postmarked February 4, 2016.6 N.T., 9/19/16, at 178-179;

Respondent’s Exhibit C. Mother requested that counsel, in turn, forward the

letter to counsel for Prospective Adoptive Parents.     N.T., 9/19/16, at 179-

181. In the letter, Father stated as follows, in pertinent part.

       I was told on the first week of this year that [Child] is alive and
       well.

       I was also made aware that he was given to a family in a
       temporary arrangement.

       I fully dispute any and all terms of this agreement and request
       that [Child] be given back to his mother. . . .

       I’m aware that no adoption is legal without [b]oth parents[‘]
       consent. I am totally against everything that has transpired
       without my knowledge!

       I want [Child] back with his mother. . . .

Respondent’s Exhibit C.

       Prospective Adoptive Mother testified that in August of 2015, Mother

told her “she did know who the father was of the child. . . . [Mother] said

she had a PFA [order] against him. She . . . told me that [Father] knew that

she was pregnant and that the baby was born but that she hadn’t told

[Father] that she had placed [Child] for adoption.” N.T., 9/19/16, at 146.

Prospective Adoptive Mother testified that she first learned Mother had lied


____________________________________________


6
  Mother acknowledged during direct examination that at the time she
forwarded Father’s letter, she was “awaiting to retain [counsel] until [she]
got the funds. . . .” N.T., 9/19/16, at 181.



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to Father by telling him Child was stillborn when she received his January

21, 2016 letter. N.T., 9/19/16, at 146-147.

       By decree entered on October 7, 2016, the orphans’ court involuntarily

terminated Father’s parental rights. Father timely filed a notice of appeal on

November 3, 2016.7           The orphans’ court filed its opinion pursuant to

Pa.R.A.P. 1925(a) on December 21, 2016.

       On appeal, Father presents the following issue for our review:

       1. Whether the [t]rial [c]ourt committed prejudicial error and/or
       abused its discretion in terminating [Father’s] parental rights
       under 23 Pa.C.S.A. § 2511 when:

              (a) [Prospective] Adoptive Mother, who is an attorney, and
              her counsel failed to notify [F]ather in a timely manner
              about the adoption[;] and/or

              (b) Father and Father’s family previously have been
              informed the child was stillborn; and/or
____________________________________________


7
  Father did not concurrently file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). By order dated
November 7, 2016, the orphans’ court directed Father to file the concise
statement by November 30, 2016. On November 30, 2016, Father filed a
motion for an extension of time to file the concise statement. The court
granted Father’s motion on December 1, 2016, and directed that he file the
concise statement within twelve days. Father timely complied. Because no
party claims prejudice as a result of Father’s procedural violation, we will not
quash or dismiss his appeal. See In re K.T.E.L., 983 A.2d 745, 748 (Pa.
Super. 2009) (holding that the appellant’s failure to concurrently file the
Rule 1925(b) statement with the notice of appeal did not warrant quashing
or dismissing the appeal, as no court order had been violated, and there was
no prejudice to any party); Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super.
2010) (stating that, where the appellant not only failed to concurrently file a
Rule 1925(b) statement with her notice of appeal but also failed to comply
with the trial court’s order to file the Rule 1925(b) statement within twenty-
one days, she waived her issues on appeal).



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            (c) Father was never informed [that] Mother had already
            allegedly agreed to said adoption proceedings and was
            never permitted to exercise his parental duties.

Father’s Brief at 5 (emphasis in original).

      Our standard of review is as follows:

      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
      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 Section 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

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       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, we conclude that the certified record supports the decree

pursuant to Sections 2511(a)(2) and (b), which provide as follows.8

       (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.
____________________________________________


8
  Based on this disposition, we need not review the decree pursuant to
Sections 2511(a)(1) and (6). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc) (stating that this Court need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm).



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23 Pa.C.S. §§ 2511(a)(2), (b).

      This Court has stated as follows:

      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) (citation

omitted)). Further, “[t]he 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.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court addressed the relevance of incarceration in termination decisions

under Section 2511(a)(2). The Court held that:

      incarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

Id. at 828. With respect to the third factor, whether the parent can remedy

the incapacity, the S.P. Court cited with approval the concurring opinion in

In re R.I.S., 36 A.3d 567 (Pa. 2011) (plurality), as follows:

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      The fact of incarceration during an ongoing dependency action
      will not disqualify a parent from resuming parental responsibility
      so long as the parent will be released quickly enough to permit
      the court to provide the child with timely permanency upon
      reunification. If, however, the length of parent’s incarceration
      will preclude the court from unifying the (former) prisoner and
      the child on a timely basis in order to provide the child with a
      permanent home to which he or she is entitled, then the length
      of sentence, standing alone, should and does meet the legal
      criteria for involuntary termination of the incarcerated parent’s
      parental rights under 23 Pa.C.S. § 2511(a).

In re Adoption of S.P., 47 A.3d at 829-830 (citing In re R.I.S., 36 A.3d at

576)(Baer, J., concurring)).

      With respect to 23 Pa.C.S. § 2511(b), this Court has stated that,

“[i]ntangibles 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

1284, 1287 (Pa. Super. 2005) (citation omitted).      Further, the trial 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. (citation omitted).   However, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.”     In re K.Z.S., 946

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).

      Instantly, turning to Section 2511(a)(2), the orphans’ court found In

re Adoption of S.P. controlling in terminating Father’s parental rights. The

court concluded that the length of Father’s incarceration is a determinative


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factor warranting termination of his parental rights.9 N.T., 10/5/16, at 99-

100; Trial Court Opinion, 12/20/16, at 7.

       On appeal, Father argues that the orphans’ court erred in terminating

his parental rights “by focusing primarily on his criminal charges (which did

not involve children) [and] his length of incarceration. . . .” Father’s Brief at

15. Father’s argument is based on the undisputed facts that (1) Mother had

lied by telling him that Child was stillborn; and (2) Prospective Adoptive

Parents and their counsel learned of Father’s name and his incarceration in

August of 2015, but they failed to contact him or inform him about the

prospective adoption. Id. at 16.

       It is undisputed that Father did not learn that Child was alive until

Mother told him in late December of 2015. In addition, Father did not learn

of the prospective adoption until Mother told him in early January of 2016.

Father argues “[t]his delay substantially impaired [his] ability to be a

father. . . .”   Father’s brief at 18.         He asserts “had Mother never lied, he

would not have threatened her (a charge which was later dismissed) and his
____________________________________________


9
  It is important to note that, at the conclusion of the testimonial evidence,
the Guardian ad Litem (“GAL”), on the record and in open court,
recommended the involuntary termination of Father’s parental rights
pursuant to Section 2511(a)(2) based on his sentence of a term of
incarceration of five to fifteen years. N.T., 10/5/16, at 90-91. The GAL
emphasized that, if the court did not terminate Father’s parental rights, “we
might be creating a dependent child. . . . We would essentially be creating a
child that has only one parent who is incarcerated. . . .” Id. at 90. The GAL
further stated, “the reality is that . . . [C]hild’s life would be put on hold
during that [time during which he was adjudicated dependent].” Id. at 91.



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bail would not have been revoked which would have allowed him to

physically, financially and emotionally bond and care for [Child].” Id. at 24.

We are unpersuaded by Father’s arguments.

       We do not condone Mother’s bad conduct wherein, for approximately

the first seven and one-half months of Child’s life, she led Father to believe

that [Child] was stillborn.       However, Mother’s conduct does not preserve

Father’s parental rights under Section 2511(a)(2).         Indeed, Father’s own

conduct warrants termination.

       As noted, on February 9, 2016, Father pleaded guilty to crimes

involving assault of two separate women, which he committed before Child’s

birth, and for which he was sentenced to a total term of incarceration of five

to fifteen years. It is important to note that Father’s criminal charge in May

of 2015, for terroristic threats against Mother upon being told Child was

stillborn, was dismissed.10       N.T., 9/19/16, at 116.   As such, Mother’s bad

conduct, and Father’s response, did not result in any criminal penalty to

Father. Although Father’s bail was revoked due to the new criminal charge,

he was credited for the time he served until his sentencing on February 9,

2016. Id. at 120-121. When the termination hearing concluded, three and
____________________________________________


10
   Elizabeth Ruby, Esquire, the assistant public defender in the Dauphin
County Public Defender’s Office, testified that the charge was dismissed
upon the District Attorney learning of Mother’s aforementioned bad conduct.
N.T., 9/19/16, at 120. The record does not specify the date that the charge
was dismissed. To the best that we can discern, it was dismissed in January
of 2016. Id. at 119-120.



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one-half years remained on Father’s minimum sentence, at which time Child

will be nearly five years old. If Father serves his maximum sentence, Child

will be approximately fifteen years old when Father is released from prison.

      We discern no abuse of discretion by the orphans’ court in concluding

that Father’s repeated and continued incapacity due to his incarceration has

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

and that the causes of Father’s incapacity cannot or will not be remedied in

light of the length of his incarceration.    See In re Adoption of S.P., 47

A.3d at 829-830 (citing In re R.I.S., 36 A.3d at 576) (Baer, J., concurring))

(“If . . . the length of parent’s incarceration will preclude the court from

unifying the (former) prisoner and the child on a timely basis in order to

provide the child with a permanent home to which he or she is entitled, then

the length of sentence, standing alone, should and does meet the legal

criteria for involuntary termination of the incarcerated parent’s parental

rights under 23 Pa.C.S. § 2511(a).”).

      With respect to Section 2511(b), this Court has explained as follows:

          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.
      In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
      mere existence of an emotional bond does not preclude the
      termination of parental rights. See In re T.D., 949 A.2d 910
      (Pa. Super. 2008) (trial court’s decision to terminate parents’
      parental rights was affirmed where court balanced strong
      emotional bond against parents’ inability to serve needs of
      child). Rather, the orphans’ court must examine the status of
      the bond to determine whether its termination “would destroy an

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      existing, necessary and beneficial relationship.” In re Adoption
      of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003).           As we
      explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

          In 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.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).

      Instantly, Father argues, “little, if any, evidence and consideration was

placed on the record that discerns the nature of the bond [between him and

Child] or the effects on [Child] of severing such bond.” Father’s brief at 15.

“In cases where there is no evidence of any bond between the parent and

child, it is reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d

at 762-763. Therefore, it was reasonable for the orphans’ court to infer that

no bond exists between Father and Child. We will not disturb the decree on

this basis when there is no record evidence of any bond between Child and

Father.

      In the alternative, Father argues that a bond “would have been

developed by way of a visitation schedule but Father was never afforded that

opportunity” due to Mother’s bad conduct.        Father’s Brief at 15.     We,

likewise, will not disturb the decree on this basis when the orphans’ court

terminated Father’s parental rights under Section 2511(b) because Child “is

bonded and flourishing physically and emotionally with [Prospective Adoptive

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Parents].”    Trial Court Opinion, 12/20/16, at 10.       As such, the court

determined “it is in the best interest of [Child], giving primary consideration

to his developmental, physical and emotional needs, to terminate Father’s

parental rights.” Id.

      The testimonial evidence supports the court’s findings.       Prospective

Adoptive Mother testified that Child has resided in the custody of the

Prospective Adoptive Parents since May 16, 2015, shortly after his birth.

N.T., 9/19/16, at 146. She testified that Child, then fourteen months old, is

happy and healthy, and that he “is very bonded” to Prospective Adoptive

Parents. Id. at 131-132, 136.

      Similarly, Dr. Schienvold testified that, based upon his observation in

August of 2016, Child showed “no evidence of delays in his gross or fine

motor [skills]. . . . He appeared to be [ ] fairly happy and healthy. . . .” Id.

at 46. Further, upon inquiry by the orphans’ court, Dr. Shienvold testified

that the termination of Father’s and Mother’s parental rights would not have

“a tremendous effect on the child assuming that the [Prospective Adoptive

Parents] maintain their kind of healthy relationship with the child and

maintain . . . their role as devoted and caring parents.” Id. at 68-69. Upon

inquiry by the court, Dr. Shienvold concluded that there would be no

negative effect on Child if Father’s and Mother’s parental rights are

terminated. Id. at 69.




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      Based on the foregoing and upon careful review of the totality of the

record evidence, the applicable law, and our standard of review, we discern

no abuse of discretion by the orphans’ court in concluding that termination

of Father’s parental rights serves       the   “developmental,   physical and

emotional needs and welfare” of Child. 23 Pa.C.S. § 2511(b); see also In

re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (stating that “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”). Accordingly, we affirm the decree pursuant to

Sections 2511(a)(2) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2017




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