J-S74045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: C.A.Y., A MINOR                    IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA

APPEAL OF: R.Y., FATHER                                No. 1789 EDA 2014


          Appeal from the Decree and Order entered May 20, 2014,
       in the Court of Common Pleas of Philadelphia County, Juvenile
  Division, at No(s): CP-51-AP-0000691-2013, CP-51-DP-0000656-2012,
                        FID No. 51-FN-001207-2012

BEFORE:       BENDER, P.J.E., DONOHUE, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JANUARY 02, 2015

        R.Y. (Father) appeals from the decree entered May 20, 2014, in the

Court    of   Common       Pleas   of   Philadelphia    County,   which   terminated

involuntarily Father’s parental rights to his minor daughter, C.A.Y. (Child),

born in February of 2012. Father also appeals from an order entered that

same day, which changed Child’s permanency goal to adoption. We affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

        On February 6, 2012, the Department of Human Services (DHS)
        received a General Protective Services (GPS) report due to
        [M]other testing positive for Oxycontin, cocaine and opiates
        while giving birth to [Child]. The report also alleged that [Child]
        was administered morphine to counter her Oxycontin withdrawal
        symptoms. The report was substantiated.

        At birth, [Child] was diagnosed as suffering from low birth
        weight and prescribed a diet to gain weight. [Child] remained
        hospitalized until February 22, 2012. Upon discharge, [Child]



* Retired Senior Judge assigned to Superior Court.
J-S74045-14


     was released to [M]other, who was enrolled in an intensive
     outpatient dual diagnosis treatment program.

     On February 22, 2014, In-home Protective Service (IHIP)
     through DHS Northeast Treatment Center (NET) was
     implemented in the home of [Child’s] paternal grandmother.
     The [F]ather of the [C]hild resided in the paternal grandmother’s
     home.

     On March 16, 2012, the IHIP’s social worker visited the home of
     the paternal grandmother. The IHIP worker found the home
     smelled of marijuana and observed fresh ashes in an ashtray.
     The [F]ather admitted to the IHIP’s social worker that he had
     been using synthetic marijuana.

     In March 2012, [M]other and [Child] began residing with
     [Child’s] maternal grandmother. As of April 13, 2013, [M]other
     and [Child] were again residing in paternal grandmother[’s]
     home with [F]ather.

     On April 18, 2012, DHS filed an urgent petition on behalf of
     [Child].

     An adjudicatory hearing was held on May 1, 2012, before the
     Honorable Jonathan Irvine. Judge Irvine adjudicated … [Child]
     dependent and awarded temporary legal custody to the maternal
     grandparents [(Grandparents)].     The [trial c]ourt specifically
     ordered [M]other and [F]ather of [Child] to the Clinical
     Evaluation Unit (CEU) for forthwith drug screens, dual diagnosis
     and monitoring. The [C]hild … was placed in care of family
     members. Mother and [F]ather were present at the hearing.

     Father tested positive for cocaine and benzodiazepines on May 1,
     2012. On May 9, 2012, [F]ather was evaluated at the CEU and
     again tested positive for cocaine. The [F]ather reported to the
     CEU that he had an extensive history of drug abuse. The drug
     abuse history is as follows: (1) seven years of cocaine abuse, (2)
     ten years of Valium and Xanax abuse, (3) a five year period of
     PCP abuse, (4) one year of heroin abuse (5) consistent
     marijuana abuse and (6) a six year period of Percocet abuse.

     Mother died of a drug overdose on June 30, 2012.
     [Grandparents] requested kinship care subsequent to [M]other’s
     death.

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        In July 2012, DHS temporarily suspended [F]ather’s visitation
        with [Child] due to his erratic behavior, inappropriate late night
        contact with [Child’s] caregivers and his failure to enroll in a dual
        diagnosis treatment program.

        A permanency review hearing was held on August 2, 2012. The
        Honorable Jonathan Irvine vacated temporary legal custody and
        ordered [Grandparents] be referred for kinship assistance. A
        protective order was issued preventing [F]ather from contacting
        [Grandparents]. The [trial c]ourt incorporated [F]ather’s CEU
        report of non-compliance, which indicated positive screens for
        cocaine and benzodiazepines on 5/1/12 and 5/9/12.
        Additionally, the CEU reported that [F]ather was not compliant
        with the recommended intensive outpatient drug treatment.

        A Family Service Plan meeting was held by the Department of
        Human Services. The Family Service Plan objectives for [F]ather
        were (1) to maintain sobriety by attending drug treatment and
        complying    with   all recommendation[s],     including   CEU
        assessments, monitoring and random drug screens (2) to
        complete job training and/or maintain employment, (3) attend
        parenting classes.

Trial Court Opinion, 7/18/2014, at 1-3 (unnumbered pages).

        On December 4, 2013, DHS filed a petition to terminate Father’s

parental rights to Child involuntarily, as well as a petition for goal change to

adoption.     A termination and goal change hearing was held on May 20,

2014.     Following the hearing, the trial court entered a decree terminating

Father’s parental rights. The court also entered a permanency review order

changing Child’s goal to adoption.       Father timely 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) and (b).1

1
  Father’s notice of appeal indicated that he was appealing both from the
decree terminating his parental rights, as well as the order changing Child’s
permanency goal to adoption. We observe that it was improper for Father to
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      Father now raises the following issues for our review.

      1. Whether the [t]rial [court] erred and/or abused its discretion
      as a matter of law in granting the petition to involuntarily
      terminate Father’s parental rights pursuant to 23 Pa.C.S. [§]
      2511(a)[?]

      2. Whether the [t]rial [c]ourt erred or abused its discretion as a
      matter of law by terminating Father’s parental rights under
      2511(b) of the Adoption Act[?]

      3. Whether the [t]rial [c]ourt erred or abused its discretion by
      changing the goal from reunification to adoption[?]

      4. Whether the [t]rial [c]ourt erred by failing to make a
      determination as to the credibility of Father’s testimony[?]

Father’s Brief at 3.

      In his first two issues, Father argues that the trial court abused its

discretion by terminating his parental rights pursuant to 23 Pa.C.S.

§ 2511(a) and (b).

            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


file a single notice of appeal as to both the termination decree and the goal
change order. See Pa.R.A.P. 341, Note (“Where, however, one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). However,
we decline to quash Father’s appeal. It is likely that, had Father correctly
filed two notices of appeal, this Court would have consolidated both cases,
and we discern no prejudice stemming from Father’s procedural misstep.
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J-S74045-14


      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).

      Our courts apply a two-part analysis in reviewing an order terminating

parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.

2007),

      [i]nitially, 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.

Id. at 511 (citations omitted).

         Here, the trial court terminated Father’s rights pursuant to 23 Pa.C.S.

§ 2511(a)(1), (2), (5), (8), and (b).       “This [C]ourt may affirm the trial

court’s decision regarding the termination of parental rights with regard to

any one subsection of Section 2511(a).”       In re J.F.M., 71 A.3d 989, 992

(Pa. Super. 2013) (citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004)).              For the




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purposes of our analysis, we focus on Section 2511(a)(8).       The statute

provides, in relevant part, 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:

                                     ***

            (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.

                                     ***

      (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) … (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.

      To terminate parental rights pursuant to 23 Pa.C.S.A.
      § 2511(a)(8), the following factors must be demonstrated: (1)
      the child has been removed from parental care for 12 months or
      more from the date of removal; (2) the conditions which led to
      the removal or placement of the child continue to exist; and (3)
      termination of parental rights would best serve the needs and
      welfare of the child. Section 2511(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

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J-S74045-14


       conditions that led to the child’s removal continue to exist,
       despite the reasonable good faith efforts of [the child welfare
       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
       [the child welfare agency’s] services.

In re D.A.T., 91 A.3d 197, 204-05 (Pa. Super. 2014), appeal denied, 95

A.3d 278 (Pa. 2014) (quoting In re K.Z.S., 946 A.2d 753, 759 (Pa. Super.

2008)).

       Instantly, the trial court concluded that Father’s parental rights should

be terminated, and emphasized Father’s failure to remedy his history of drug

abuse. Trial Court Opinion, 7/18/2014, at 4-5 (unnumbered pages). Father

argues that the court abused its discretion in light of, inter alia, the efforts

he made to meet his FSP objectives.       Father asserts that he completed a

parenting class, gained employment, visited with Child, and made diligent

efforts to overcome his drug addiction. Father’s Brief at 12-15, 17-19.

       We conclude that the record supports the trial court’s decision. During

Father’s goal change and termination hearing, DHS social worker Catherine

Poczkowski testified that Child was adjudicated dependent after DHS

received “safety alerts” concerning Father’s parenting and suspected drug

use.   N.T., 5/20/2014, at 27.2      Ms. Poczkowski explained that she had


2
  In his brief, Father claims that Child was not removed from his care, but
that “[t]he facts demonstrate that the [C]hild was initially removed from her
Mother’s care.” Id. This assertion is contradicted by Ms. Poczkowski’s
testimony, supra, as well as the order adjudicating Child dependent, which
adopted the factual allegations contained in the DHS dependency petition.
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J-S74045-14


stressed to Father the importance of obtaining drug and alcohol treatment,

and that this was “the main issue of the case.”       Id. at 28-29, 39-40.

However, Ms. Poczkowski indicated that Father did not take his drug problem

seriously. Id. at 29, 43. For example, she testified that, following a Family

Services Plan meeting on April 30, 2013, Father did not “talk about being

serious about a treatment program” and made excuses for his positive drug

screens. Id. at 29-30. Ms. Poczkowski agreed that Father would “still have

to do intensive outpatient to completion, and outpatient to completion, and

lack of relapse before DHS would feel that there had been significant

progress concerning his chronic drug additions[.]” Id. at 62.

     Father’s failure to remedy his drug problem also was established by

Clinical Evaluation Unit (CEU) reports, which are contained in the certified

record on appeal, and which were presented by DHS during the termination

and goal change hearing. See N.T., 5/20/2014, at 8-12. The reports reveal

that Father underwent a drug and alcohol evaluation on May 9, 2012. DHS

Exhibit 3, at 1.   As a result of this evaluation, it was recommended that

Father take part in an intensive outpatient dual diagnosis treatment

program.   Id. at 4.   At first, Father engaged in treatment inconsistently.

DHS Exhibit 4, at 1-4. By December of 2013, Father was maintaining good

Order of Adjudication and Disposition, 5/1/2012, at 1. The dependency
petition reveals that, at the time the petition was filed, Child was residing
with Father and Mother in the home of her paternal grandmother.
Dependency Petition, 4/18/2012, Statement of Facts at 1-2. Child was
adjudicated dependent as a result of allegations that Father was using drugs,
and that Child was being left alone in his care. Id. at 1-2.
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attendance and participating in treatment. Id. at 5. However, Father had

“regressed to active addiction,” as evidenced by a positive drug test for

cocaine on September 18, 2013, and positive tests for opiates on November

26, 2013, December 2, 2013, and December 12, 2013.          Id.   Father “was

asked to develop a relapse prevention plan and was offered a higher level of

care to which he refused.” Id. Father’s final positive drug tests took place

on December 20, 2013, when he tested positive for cocaine and opiates, and

on January 28 2014, when he tested positive for alcohol. DHS Exhibit 4 at

6; DHS Exhibit 5 at 1-2.     Father began to attend a different treatment

program in February of 2014. DHS Exhibit 4 at 6. As of May of 2014, his

attendance was “sporadic.” Id.

     Accordingly, the record confirms that Child has been out of Father’s

care for a period in excess of 12 months, and that the conditions which led

to Child’s placement continue to exist, as Father has failed to remedy his

drug abuse problem. While Father testified that he was now making strides

with regard to overcoming his drug issues, he acknowledged that he had

only stopped using opiates since “the beginning of the year,” which Father

stated was the longest he had gone without a relapse for most of his life.

Id. at 139-41. Because Father’s most recent effort at conquering his drug

addiction took place after DHS filed the petition to terminate his parental

rights, the trial court was not permitted to consider it.    See 23 Pa.C.S.

§ 2511(b) (“With respect to any petition filed pursuant to subsection (a)(1),


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(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.”).

      Additionally, the record supports the other requirement under Section

2511(a)(8), regarding the needs and welfare of Child. While Father claimed

to have made progress with regard to his drug problem, he admitted that he

did not know how much drug treatment he would need, and that he would

be “battling this disease the rest of my life.” Id. at 170, 173. It is unclear

when, if ever, Father will be able to care for Child.    Conversely, Child is

bonded with Grandparents, who already care for her and provide for her

needs. Ms. Poczkowski testified that Child has lived with Grandparents for

the last 21 months. N.T., 5/20/2014, at 45. Child and Grandparents have

developed a “[v]ery strong” bond, and Child treats Grandparents “as if they

were her parents.” Id. at 49. Child appears happy with Grandparents, and

looks to them for affection. Id. Similarly, Grandparents “love and adore”

Child. Id. Ms. Poczkowski opined that it would be in Child’s best interest to

be adopted, and that it would cause Child “serious harm” to be removed

from Grandparents.       Id.   Ms. Poczkowski’s testimony was confirmed by

foster care case manager Ivy Lloyd, who agreed that Child is bonded with

Grandparents, and that Child would suffer irreparable harm if she were

taken from them. Id. at 117, 119-20, 122. We therefore conclude that the




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trial court did not abuse its discretion in finding that DHS met its burden

under section 2511(a)(8).

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights under Section 2511(b).

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).

      Here, the trial court concluded that termination would be in Child’s

best interests because Child is in a stable environment with Grandparents,

and because Child is bonded to Grandparents.            Trial Court Opinion,

7/18/2014, at 4-5 (unnumbered pages).        The court also determined that

“[Child] has not had an opportunity to bond with [F]ather due to [F]ather’s

consistent drug abuse,” and that Child would not suffer irreparable harm if

Father’s rights were terminated. Id. at 5. Father argues that the trial court

abused its discretion because, inter alia, Child is bonded to Father. Father’s

Brief at 20-22.   He also complains that a bonding evaluation should have


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been conducted because “[t]he DHS worker and Agency worker witnessed

less than three percent of the interactions between [Father] and his [C]hild.

That is not enough of an observation to make a well[-]reasoned decision

about the bond between [Father] and Child in this case.” Id. at 21.

       We conclude that the trial court did not abuse its discretion by

terminating the parental rights of Father pursuant to Section 2511(b).    As

noted, supra, Child is bonded with Grandparents. Further, Ms. Poczkowski

testified that there was no parent/child bond between Father and Child. Id.

at 57. She noted that Father’s interaction with Child “is somewhat guided”

by Child’s extended family, and explained, “for example, [Father’s mother]

would be like, [Child], go take a picture with your father. [Child], there’s

your DaDa. There’s Daddy. It seems to be forced by outside individuals and

not by the child, herself.” Id. at 58, 91-92. She also noted that Child did

not seem excited to see Father following a period of six weeks during which

he was unable to visit, reportedly due to his conflicting employment

schedule. Id. at 59. Ms. Lloyd agreed that Father’s interaction with Child

was poor and that “Father needs to be redirect[ed] by usually the person

accompanying him to the visit to interact with [Child], more so.” Id. at 115-

17, 121.   Both Ms. Poczkowski and Ms. Lloyd stated that Child would not

suffer irreparable harm if the bond with Father were severed.     Id. at 63,

122.




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      Father and his mother testified that Father and Child are bonded, and

that Father does not require redirection during visits. Id. at 150, 152, 155-

57, 180-82. However, the trial court was free to reject this testimony, and

to credit the statements and opinions of Ms. Poczkowski and Ms. Lloyd.

Additionally, we observe that “[t]his Court has held that the trial court is not

required by statute or precedent to order that a formal bonding evaluation

be performed by an expert.”      In re B.C., 36 A.3d 601, 611 (Pa. Super.

2012) (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010)).             Ms.

Poczkowski and Ms. Lloyd witnessed a combined 9 or 10 visits between

Father and Child. N.T., 5/20/2014, at 55, 89, 123. It was for the court to

determine whether this was sufficient to reach an opinion concerning their

parent/child bond, or lack thereof. No relief is due.

      Father’s third claim is that the trial court abused its discretion by

changing Child’s permanency goal from reunification to adoption.       Father’s

Brief at 22-23. We consider this issue mindful of the following.

      [T]he standard of review in dependency cases requires an
      appellate court to accept the findings of fact and credibility
      determinations of the trial court if they are supported by the
      record, but does not require the appellate court to accept the
      lower court's inferences or conclusions of law. Accordingly, we
      review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

            Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
      when considering a petition for a goal change for a dependent
      child, the juvenile court is to consider, inter alia: (1) the
      continuing necessity for and appropriateness of the placement;
      (2) the extent of compliance with the family service plan; (3) the

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      extent of progress made towards alleviating the circumstances
      which    necessitated      the   original placement;    (4)    the
      appropriateness and feasibility of the current placement goal for
      the children; (5) a likely date by which the goal for the child
      might be achieved; (6) the child’s safety; and (7) whether the
      child has been in placement for at least fifteen of the last
      twenty-two months. The best interests of the child, and not the
      interests of the parent, must guide the trial court. As this Court
      has held, a child’s life simply cannot be put on hold in the hope
      that the parent will summon the ability to handle the
      responsibilities of parenting.

In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and

quotation marks omitted).

      With respect to this issue, Father contends that it was not in the best

interests of Child to change her permanency goal to adoption. Father’s Brief

at 23. Father argues that he was attempting to reunify himself with Child,

and that the court “should have afforded [Father] the opportunity to reunify

with his daughter given the fact that she had tragically lost her Mother two

years earlier.”   Id.   Father also asserts, inter alia, that Child spends the

majority of her time in daycare, that Grandparents “are older” and will be “of

advanced age” during Child’s teen years, and that Child “will ultimately

question her background and become curious as to where her natural Father

is.” Id.

      We again conclude that the trial court did not abuse its discretion. As

discussed supra, Father had ample opportunity to complete drug treatment

over the course of 21 months, but he failed to do so.          Further, Child

presently resides with Grandparents, who have provided for Child, and with


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whom Child is bonded.        Grandparents are in their “[l]ate 50’s” and in

“[g]ood” health, and there is no reason to conclude that they are too old or

will be incapable of caring for Child.   See N.T., 5/20/2014, at 107. While

both Grandparents work outside the homeand Child spends time in daycare

as a result, it was reasonable for the court to conclude that it would be in

Child’s best interest to be adopted. To conclude otherwise would result in

Child’s life continuing to be put on hold in favor Father, whose ability to

overcome his drug addiction and care for Child remains speculative. Father

is not entitled to relief.

      Father’s final claim is that “the trial court erred by failing to make a

determination as to the credibility of Father’s testimony.” Father’s Brief at

24.    Father argues that the trial court failed to make a “specific

determination” of Father’s credibility as a witness and that, as a result, “it is

impossible for the Appellate Court to determine whether findings of the

[t]rial [c]ourt [are] supported by competent evidence.” Id. We disagree.

      Tellingly, Father cites no authority for the proposition that a trial court

must make written findings of credibility as to each witness in order for this

Court to review a case. Moreover, to the extent the trial court’s decree and

opinion contradict portions of Father’s testimony, it is clear that the court

implicitly rejected that testimony.    We see no basis on which to conclude

that the trial court abused its discretion.




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      Accordingly, because we conclude that none of Father’s claims entitles

him to relief, we affirm the decree and the order of the trial court.

      Decree and Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/2/2015




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