J-A01002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.A.R.J., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: M.J., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2161 EDA 2018

                 Appeal from the Decree Entered June 21, 2018
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0001266-2016,
                            FID: 51-FN-001981-2014


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 26, 2019

       Appellant, M.J. (“Mother”), appeals from the decree entered on June 21,

2018, in the Court of Common Pleas of Philadelphia County, involuntarily

terminating her parental rights to her daughter, K.A.R.J. (“Child”), born in

January of 2011.1 Upon careful review, we affirm.

       In its Rule 1925(a) opinion, the trial court thoroughly set forth the

factual and procedural history of this case, which the record evidence

supports.    As such, we adopt the court’s findings herein.      See Trial Court

Opinion, 9/19/18, at 1-5.

       By way of background, the Philadelphia Department of Human Services

(“DHS”) became involved with this family in April of 2014, upon receiving a
____________________________________________


1The trial court terminated the parental rights of Child’s father, C.A., and of
any unknown father, by decree dated May 31, 2017. Trial Court Opinion,
9/19/18, at 2, n. 3. Father is not involved in the instant appeal.
J-A01002-19



report alleging that Mother was unable to provide for Child and her older

brother, C.J., who is not a subject of this appeal. Id. at 1. Specifically, the

report alleged that Mother had been unemployed since 2012; Mother’s home

was in foreclosure; the water service in Mother’s home had been

disconnected; there was limited food in the home; and Mother was suffering

from depression.    Id.   DHS substantiated the report, and the Community

Umbrella Agency (“CUA”) implemented in-home services. Id.

       On September 22, 2014, the trial court adjudicated Child dependent.

Id. at 2. Child remained in Mother’s physical custody with DHS supervision.

Id. The CUA established Single Case Plan (“SCP”) objectives for Mother which

included maintaining housing; obtaining employment;              participating in

parenting classes; obtaining a parenting capacity evaluation; participating in

mental   health   services;   attending   supervised   visits   with   Child;   and

maintaining contact with the CUA. N.T., 6/21/18, at 20-21.

       On September 21, 2015, the trial court placed Child in the physical

custody of DHS. Trial Court Opinion, 9/19/18, at 3. Thereafter, permanency

review hearings occurred at regular intervals, and the trial court found at each

hearing that Mother was minimally compliant with her SCP objectives. Id. at

3-4.

       On December 22, 2016, DHS filed petitions for the involuntary

termination of Mother’s parental rights to Child and C.J., her older brother.

Trial Court Opinion, 9/19/18, at 4. Following a hearing, by decree dated May




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31, 2017, the trial court terminated Mother’s parental rights to Child and C.J.,2

and Mother filed a notice of appeal and a concise statement of errors

complained of on appeal with respect to Child only. Id. at 1, n. 2. By order

dated January 25, 2018, this Court reversed the decree and remanded the

case.3

       Thereafter, on February 9, 2018, upon request of the Child Advocate,

Judge Younge issued an order finding that aggravated circumstances existed

as to Mother, due to the termination of her parental rights to C.J., and no

efforts were to be made to reunify Mother and Child. Trial Court Opinion,

9/19/18, at 4.

       On remand, on March 2, 2018, DHS filed an amended petition for the

involuntary termination of Mother’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), (8), and (b). While the termination hearing was pending,

a permanency review hearing was held before Judge Younge on April 26,

2018, which resulted in an order permitting visitation between Child and

Mother if “therapeutically recommended and at Child’s discretion.” Trial Court

Opinion, 9/19/18, at 4.


____________________________________________


2 The Honorable Lyris Younge presided over the termination proceeding. She
remained the assigned judge in the underlying matter through April 26, 2018.
Trial Court Opinion, 9/19/18, at 4, n. 5.

3 This Court issued its order as a result of the motion filed by the Child
Advocate and DHS, in lieu of appellee briefs, to remand the case for a new
involuntary termination hearing.



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        The termination hearing on the amended petition occurred on June 21,

2018,4 during which DHS presented the testimony of Carol Robinson, the CUA

caseworker assigned to this family since February 3, 2017, and William F.

Russell, Ph.D., who performed a parenting capacity evaluation.          Mother

testified on her own behalf.5

        Ms. Robinson testified that Child, then age seven, had been in four

separate foster care placements since her removal from Mother in September

of 2015. N.T., 6/21/18, at 14. Child had been in her current kinship treatment

care placement since May of 2017, and, on June 11, 2018, she told Ms.

Robinson she would like to stay there long-term. Id. at 14, 76. At the time

of the hearing, Child had been in weekly mental health therapy for more than

two years, and Ms. Robinson testified that Child’s mental health has stabilized.

Id. at 18-19, 75.




____________________________________________


4   The Honorable Joseph Fernandes presided over the subject proceeding.

5 During the involuntary termination proceeding, a Child Advocate represented
Child’s legal interests, and a guardian ad litem (“GAL”) represented her best
interests. See In re T.S., 192 A.3d 1080 (Pa. 2018) (citing In re Adoption
of L.B.M., 161 A.3d 172 (Pa. 2017)) (stating that, pursuant to 23 Pa.C.S. §
2313(a), a child who is the subject of a contested involuntary termination
proceeding has a statutory right to counsel who discerns and advocates for
his or her legal interests, which our Supreme Court has defined as the child’s
preferred outcome). At the conclusion of the testimonial evidence, the Child
Advocate and the GAL argued on the record and in open court for the
involuntary termination of Mother’s parental rights. N.T., 6/21/18, at 127-
132.



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       With respect to Mother’s SCP goals, Ms. Robinson testified that, “In

essence, [Mother] completed employment,[6] housing,[7] financial counseling,

and parent education.” N.T., 6/21/18, at 21. However, Mother did not satisfy

her objectives regarding visitation and mental health. Id. at 21-22, 25-27,

64-65.

       By decree dated and entered on June 21, 2018, the trial court

involuntarily terminated Mother’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1), (8), and (b). Mother timely filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).        The trial court filed its Rule 1925(a) opinion on

September 19, 2018.

       Mother raises the following issues for our review:

       1.     Whether the trial court erred in terminating [Mother’s]
       parental rights under 23 Pa.C.S.A. [§] 2511(a)(1), the evidence
       having been insufficient to establish Mother had evidenced a
       settled purpose of relinquishing parental claim, or having refused
       or failed to perform parental duties[?]

       2.   Whether the evidence was sufficient to establish that
       [Mother] had refused or failed to perform parental duties, caused
____________________________________________


6 Ms. Robinson testified that Mother has been employed full-time since April
of 2016. N.T., 6/21/18, at 29.

7  Mother entered into a lease for an apartment in February of 2018. Id. at
33. Ms. Robinson visited the apartment on June 20, 2018, the day before the
subject proceeding, at which time she questioned whether Mother “really
live[d] there.” Id. at 39, 74. She described observing Mother’s unmade bed
with unpacked bedding in the bedroom. Id. at 34-36.




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       Child to be without essential parental care, that conditions having
       led to placement had continued to exist, or finally that any of the
       above could not have been remedied[?]

       3.    Whether the evidence was sufficient to establish that
       termination of parental rights would best serve the needs and
       welfare of the minor child, under 23 Pa.C.S. [§] 2511(b)[?]

Mother’s brief at 5 (unnecessary capitalization omitted).8

       We review this appeal according to an abuse of discretion standard, 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
____________________________________________


8  Mother’s counsel asserted during oral argument before this Court that the
trial court erred or abused its discretion in permitting the Child Advocate to
state Child’s preferred outcome of this matter. However, Mother neither
raised this issue in her concise statement of errors complained of on appeal,
nor set it forth or suggested it in the statement of questions involved in her
brief. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006) (stating, “We will not ordinarily consider any issue
if it has not been set forth in or suggested by an appellate brief's statement
of questions involved, Pa.R.A.P. 2116(a), and any issue not raised in a
statement of matters complained of on appeal is deemed waived.”) (citation
omitted).

  In her concise statement, Mother asserts that the court erred in not allowing
Child to testify during the termination hearing and in permitting the CUA
caseworker to testify regarding Child’s out-of-court declarations. Because
Mother does not set forth these issues or suggest them in the statement of
questions involved in her brief, they are also waived on appeal. See Krebs,
supra; Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”)


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     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, 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).

     Instantly, we conclude that the certified record supports the decree

pursuant to Section 2511(a)(1) and (b), which provides as follows.

     (a) General Rule.—The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

            (1) The parent by conduct continuing for a period of at
            least six months immediately preceding the filing of the
            petition either has evidenced a settled purpose of
            relinquishing parental claim to a child or has refused or
            failed to perform parental duties.

                                       . . .




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       (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)(1), (b); see also In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc) (stating that we need only agree with the trial court

as to any one subsection of Section 2511(a), as well as Section 2511(b), in

order to affirm).9

       With respect to Section 2511(a)(1), “the moving party must produce

clear and convincing evidence of conduct, sustained for at least the six months

prior to the filing of the termination petition, which reveals a settled intent to

relinquish parental claim to a child or a refusal or failure to perform parental

duties.”    In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation

omitted).

       It is well-established that “Section 2511 does not require that the parent

demonstrate both a settled purpose of relinquishing parental claim to a child

and refusal or failure to perform parental duties. Accordingly, parental rights



____________________________________________


9 Based on this disposition, to the extent Mother argues in her second issue
that the trial court abused its discretion in terminating her parental rights
pursuant to Section 2511(a)(8), we need not review that issue.

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may be terminated pursuant to Section 2511(a)(1) if the parent either

demonstrates a settled purpose of relinquishing parental claim to a child or

fails to perform parental duties.” In re Adoption of Charles E.D.M., 708

A.2d 88, 91 (Pa. 1998) (emphasis in original) (citation omitted). In addition,

      [T]he trial court must consider the whole history of a given case
      and not mechanically apply the six-month statutory provision.
      The court must examine the individual circumstances of each case
      and consider all explanations offered by the parent facing
      termination of his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      Our Supreme Court has explained that parental duty “is best understood

in relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa.

1977).

      A child needs love, protection, guidance, and support. These
      needs, physical and emotional, cannot be met by a merely passive
      interest in the development of the child. Thus, this Court has held
      that the parental obligation is a positive duty which requires
      affirmative performance. This affirmative duty encompasses
      more than a financial obligation; it requires continuing interest in
      the child and a genuine effort to maintain communication and
      association with the child. Because a child needs more than a
      benefactor, parental duty requires that a parent ‘exert himself to
      take and maintain a place of importance in the child’s life.’

Id. (citations omitted).

      We have stated that the court must next consider “the parent’s

explanation for his or her conduct” and “the post-abandonment contact

between parent and child” before moving on to analyze Section 2511(b). In

re Z.S.W., supra (quoting In re Adoption of Charles E.D.M., supra at 92).

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      With respect to Section 2511(b), this Court has stated, “[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).

      In this appeal, Mother argues that DHS did not meet its evidentiary

burden under Section 2511(a)(1). Mother asserts that she was consistent

with her supervised visitation with Child for six months immediately preceding

the filing of the first termination petition on December 22, 2016. Mother then

argues that, to the extent she failed to visit with Child from January 25, 2018,

when this Court reversed the May 31, 2017 decree and remanded the case,

to March 2, 2018, when DHS filed an amended termination petition, it was

less than the requisite six-month time-period. The testimonial evidence belies

Mother’s claim.

      Ms. Robinson testified that, from November of 2015, soon after the court

removed Child from Mother, through the first termination proceeding on May


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31, 2017, Mother attended 50 out of 82 weekly one-hour supervised visits

with Child. N.T., 6/21/18, at 64-65. In addition, Ms. Robinson testified that

she offered Mother additional visits at unspecified times, but Mother declined

them. Id. at 69-70. Further, she observed that Mother had limited interaction

with Child during the visits, and that Mother was consistently “on the phone

during visits.” Id. at 40-42. She testified that Mother never brought dinner

or snacks to the visits, which occurred from 6:00 p.m. to 7:00 p.m. Id. at

41. Mother’s last supervised visit with Child was on May 30, 2017, and it

lasted for one-half hour because Mother had to leave for an appointment. Id.

at 68. Mother never attempted to reschedule that visitation so that she could

spend a full one-hour visit. Id. at 69. Moreover, DHS never increased her

visits or permitted them to be unsupervised, and Mother never requested that

it do so. Id. at 65. Based on the foregoing, we disagree with Mother that she

satisfactorily met her FSP goal regarding visitation at the time of the first

termination hearing.

      Thereafter, from the time of the first hearing on May 31, 2017, through

the second hearing on June 21, 2018, the testimonial evidence reveals that

Mother never visited with Child; asked how Child is; asked about Child’s

therapeutic needs; asked to attend Child’s medical appointments and school

conferences; sent cards or gifts to Child; or contacted Child by telephone. Id.

at 42-43, 72-73.




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     Mother asserts that she was not afforded supervised visits after the

issuance of the May 31, 2017 decree up through the April 26, 2018

permanency order, discussed above, which permitted visits upon a therapist’s

recommendation and at Child’s discretion.    Mother asserts that the record

does not include a therapeutic recommendation for visits. Mother’s counsel

stated on the record during the subject hearing that he filed a subpoena for

documents from the therapist, who we presume was Child’s therapist, but the

therapist had not yet complied. N.T., 6/21/18, at 46. However, Mother does

not assert, and the record does not demonstrate, that she requested from

Child’s therapist a recommendation for supervised visitation to resume. In

addition, Ms. Robinson testified that she would have offered Mother an

unspecified number of additional visits after the May 31, 2017 termination

decree, but “she did not want any additional visits.” Id. at 70. Further, Ms.

Robinson testified that Mother never contacted her at the CUA after the first

termination hearing. Id. at 29-30, 74.

     Ms. Robinson testified that, in April of 2018, subsequent to the above-

mentioned permanency order, Child telephoned Mother and spoke to her for

two hours. Id. at 43. Child telephoned Mother more than once after that,

but Mother did not answer or return her calls. Id. at 44, 50. On June 20,

2018, when Ms. Robinson visited Mother to assess her apartment, Mother

stated that her attorney advised her not to speak to Child because there was




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a no-contact order.10 Id. at 45.          However, counsel for DHS and the Child

Advocate stated on the record and in open court that a no-contact order did

not exist in this case.      Id. at 46.        In addition, Ms. Robinson testified that

Mother did not contact the CUA after Child placed the telephone calls to inquire

whether Mother may speak to Child. Id. at 51. Ms. Robinson stated that, if

Mother had inquired about this, she would have told her, “it’s not a problem.”

Id.

       Based on the foregoing, as well as the totality of the record evidence,

we discern no abuse of discretion by the trial court pursuant to Section

2511(a)(1). The record demonstrates that Mother refused or failed to perform

her parental duties from September of 2014, when Child was adjudicated,

through the subject proceedings. Mother has maintained no more than a mere

passive interest in Child during this significant time period in Child’s life, and

she did not exert herself to take or maintain a place of importance in Child’s

life even after this Court reversed the May 31, 2017 decree and remanded the

case. Therefore, Mother’s first issue fails.

       With respect to Section 2511(b), Mother asserts that there is no

evidence regarding the bond, if any, between Child and Mother.                  In the

alternative, she asserts that there is no evidence of what bond “could possibly



____________________________________________


10Mother’s counsel confirmed on the record in open court that he advised
Mother not to have any contact with Child “because it would be . . .
contravening the order.” N.T., 6/21/18, at 46, 48.

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have been rekindled if physical contact were to be allowed to have occurred.”

Mother’s brief at 20. We disagree.

      In analyzing the decree pursuant to Section 2511(b), the following case

law is relevant.

      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 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),

          [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.

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

      Furthermore, our Supreme Court has stated, “[c]ommon sense dictates

that courts considering termination must also consider whether the children

are in a pre-adoptive home and whether they have a bond with their foster

parents.” In re T.S.M., supra at 268. The Court directed that, in weighing

the bond considerations pursuant to Section 2511(b), “courts must keep the

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ticking clock of childhood ever in mind.”      Id. at 269.   The T.S.M. Court

observed, “[c]hildren are young for a scant number of years, and we have an

obligation to see to their healthy development quickly. When courts fail . . .

the result, all too often, is catastrophically maladjusted children.” Id.

      Instantly, the trial court concluded that Child, then age seven, “does not

have a healthy, necessary, or beneficial parent-child bond with Mother.” Trial

Court Opinion, 9/13/18, at 14. The court found that Child’s relationship with

Mother is like that of an aunt and niece.      Id.   Ms. Robinsons’ testimony

supports the court’s findings. See N.T., 6/21/18, at 74-75.

      On cross-examination by the GAL, Ms. Robinson testified:

      Q. And when you’ve spoken to [Child] as recently as the spring,
      since the April order about visits was entered this year, and you’ve
      asked about visiting with her mother, what has she indicated to
      you?

      A. She wouldn’t mind seeing her mom, but, . . . just for a visit,
      but she’s coming back home.

      Q. And when she says coming back home, what does that mean?

      A. She was referring to her foster home.

Id. at 75-76. Indeed, Child has informed Ms. Robinson that she prefers to

stay long-term with her kinship parents. Id.

      Ms. Robinson further testified:

      Q. At one point recently when you asked [Child] about seeing her
      mother again, she mentioned that she’d like to see her in order to
      play with her phone?

      A. Yes.


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       Q. And why is that, do you believe?

       A. She’s a kid. They like to play on the phone with video games
       and . . . stuff.

Id. at 70.

       Ms. Robinson testified that, based on her monthly observations of Child

in the kinship home, where she has resided since May of 2017, Child shares a

parent-child bond with her kinship parents.11 Id. at 53-54, 77. The kinship

parents meet Child’s developmental, physical, emotional, and special mental

health needs. Id. at 76. Child’s mental health has stabilized, although she

still receives weekly therapy. Id. at 18, 75. Ms. Robinson testified that Child

will not suffer irreparable harm if Mother’s parental rights are terminated. Id.

at 75. Based on the foregoing, we discern no abuse of discretion by the trial

court in concluding that Child’s developmental, physical, and emotional needs

and welfare necessitate the involuntary termination of Mother’s parental

rights. Accordingly, we affirm the decree pursuant to 23 Pa.C.S. § 2511(a)(1)

and (b).

       Decree affirmed.

       Judge Stabile joins this memorandum. Judge McLaughlin files a

concurring memorandum statement.




____________________________________________


11The certified record does not specify the particular family relationship of the
kinship parents and Child.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/19




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