J-S56016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: A.O.                                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
APPEAL OF: LACKAWANNA COUNTY                   :
DEPARTMENT OF HUMAN SERVICES,                  :
OFFICE OF YOUTH & FAMILY                       :
SERVICES                                       :
                                               :
                                               :   No. 502 MDA 2016


                 Appeal from the Order Entered March 7, 2016
             In the Court of Common Pleas of Lackawanna County
                      Orphans’ Court at No(s): A-2-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED SEPTEMBER 09, 2016

       The Lackawanna County Department of Human Services, Office of

Youth and Family Services (“the Agency”), appeals from the March 7, 2016

order denying its petition for the involuntary termination of parental rights of

L.O. (“Mother”), with respect to her daughter, A.O., born in January 2010.

We reverse and remand.1




____________________________________________


* Former Justice specially assigned to the Superior Court.

1
  We observe that the child’s guardian ad litem, at the conclusion of the
testimonial evidence, recommended that the orphans’ court involuntarily
terminate Mother’s parental rights. See N.T., Hearing, 1/26/16, at 72.
J-S56016-16


      The Agency filed the subject petition on January 7, 2016, wherein it

requested the involuntary termination of Mother’s parental rights pursuant to

23 Pa.C.S.A. § 2511(a)(1), (8), and (b). On that same date, the Agency filed

a petition to confirm consent to adoption with respect to J.S. (“Father”). A

hearing on the petitions occurred on January 26, 2016, during which the

Agency    presented   the   testimony   of   Nicholas   Robinson,   an   Agency

caseworker; Michelle Mancuso, a detective with the Lackawanna County

District Attorney’s Office; and Nikki Ganczarski, an Agency caseworker.

Mother attended the hearing, but she did not present any evidence. Father

did not attend the hearing, but he was represented by counsel who was

excused from the proceedings by the orphans’ court after it ruled, on the

record and in open court, to confirm Father’s consent to the adoption of A.O.

See N.T., Hearing, 1/26/16, at 15-16.

      The record reveals that A.O. has been adjudicated dependent on three

separate occasions in her six years of life due to Mother’s illegal drug use;

that is, on January 21, 2011, which was discharged on September 29, 2011;

on November 10, 2011, which was discharged on July 8, 2013; and most

recently, on June 12, 2014. She had been in placement for twenty

consecutive months by the time of the subject proceedings. See N.T.,

1/26/16, at 17. In total, A.O. had been in placement for 37 months—half of

her life. See id. at 18.




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      Detective Mancuso testified with respect to the incident that occurred

on May 31, 2014, that resulted in A.O.’s most recent placement, and in

Mother’s incarceration until November 18, 2015. See id. at 19. The

detective was part of a team on that date that executed a search warrant at

Mother’s residence for drug paraphernalia. See id. at 44. Mother and A.O.

were not home when the search team arrived. See id. at 45. When she did

arrive home, Detective Mancuso testified that, “Mother took off in her

vehicle.” Id. Detective Mancuso and her colleague pursued Mother in a car

that had emergency lights and sirens activated. See id. at 46. She testified

that Mother drove erratically, and she went through three stop signs until

she came to a stop. See id. Detective Mancuso testified that Mother

“refused to get out of the car with our commands. At that point, I did see

the child in the back seat; a young child, unrestrained.” Id. She explained

that the child was not in a safety seat or restrained by a seatbelt. See id. at

46-47. Detective Mancuso testified that her colleague “tased” Mother

through the open door of her vehicle, and they then took Mother into

custody. Id. at 47. She testified that her colleague retrieved “some heroin

out of her, I think it was [in] her pocketbook, or maybe her pants[.]” Id. at

48. Detective Mancuso testified that she subsequently retrieved from Mother

“approximately 210 bags of heroin, from her pants. . . .” Id. at 49.

Thereafter, Detective Mancuso placed A.O. into the custody of the Agency.

See id. at 50.


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     At the conclusion of the evidence, the orphans’ court ruled on the

record in open court to deny the Agency’s petition for the involuntary

termination of Mother’s parental rights. See id. at 72-73. In addition, upon

request by the Agency’s counsel, the orphans’ court held in abeyance its

ruling that granted the Agency’s petition to confirm Father’s consent to

adoption. See id. at 76-77.

     On February 24, 2016, the court issued a written decision and order

regarding the Agency’s petitions, which was entered on the orphans’ court’s

docket on March 7, 2016. On March 29, 2016, the Agency 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 orphans’ court then filed a

Rule 1925(a) opinion.

     The Agency presents the following issues for our review:

     I. Whether the orphans[’] court erred by not considering the
     ASFA guidelines, the previous court orders and that the child has
     been in placement for thirty-seven months, more than half her
     life and denies the child permanency, committing an error of
     law?

     II. Whether the orphans[’] court erred as a matter of law by not
     doing an analysis of the best interests of the child?

     III. Whether the decision of the orphans[’] court is against the
     weight of the evidence in that Mother did not testify nor had any
     other witnesses on her behalf?

     IV. Whether the orphans[’] court erred by not stating, in the
     alternative, how much time Mother was to receive in order to
     attempt to complete the requirements of the permanency plan,
     an abuse of discretion?


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      V. Whether the orphans[’] court erred and abused its discretion
      by not considering that the Mother had repeated periods of
      incarceration in relapse, never making progress toward
      reunification?

      VI. Whether the orphans[’] court erred by finding that Mother
      had not had sufficient time to complete reunification, which is
      contrary to the evidence presented?

      VII. Whether the orphans[’] court erred and committed an abuse
      of discretion by misapplying the cases cited in its decision?

Mother’s Brief at 6.

      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 (“Act”), 23 Pa.C.S.A. §§ 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


                                      -5-
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     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, the relevant provisions of the Act are 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.

                                     ...

         (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)(1), (6) or (8), the court shall
      not consider any efforts by the parent to remedy the conditions


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      described therein which are first initiated subsequent to the
      giving of notice of the filing of the petition.

23 Pa.C.S.A § 2511(a)(1), (8), (b).

     Parental rights 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 C.M.S., 832 A.2d

457, 462 (Pa. Super. 2003) (emphasis in original) (citation omitted). Our

Supreme Court has held that

     [o]nce the evidence establishes a failure to perform parental
     duties or a settled purpose of relinquishing parental rights, the
     court must engage in three lines of inquiry: (1) the parent’s
     explanation for his or her conduct; (2) the post-abandonment
     contact between parent and child; and (3) consideration of the
     effect of termination of parental rights on the child pursuant to
     Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,

     the 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).

     The following factors must be demonstrated when seeking termination

under Section 2511(a)(8):

     (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.

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In re Adoption of M.E.P., 825 A.2d 1266, 1275–1276 (Pa. Super. 2003)

(citation omitted). See also 23 Pa.C.S.A. § 2511(a)(8).

     “Section 2511(a)(8) sets a 12-month time frame for a parent to

remedy the conditions that led to the children’s removal by the court.” In re

A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the twelve-month period

has been established, the court must next determine whether the conditions

that led to the child’s removal continue to exist, despite the reasonable good

faith efforts of the agency supplied over a realistic period. See id. “[T]he

relevant inquiry in this regard is whether the conditions that led to removal

have been remedied and thus whether reunification of parent and child is

imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super.

2009) (citations omitted). This Court has acknowledged that

     the application of Section (a)(8) may seem harsh when the
     parent has begun to make progress toward resolving the
     problems that had led to removal of her children. By allowing for
     termination when the conditions that led to removal continue to
     exist after a year, the statute implicitly recognizes that a child’s
     life cannot be held in abeyance while the parent is unable to
     perform     the   actions   necessary     to   assume     parenting
     responsibilities. This Court cannot and will not subordinate
     indefinitely a child’s need for permanence and stability to a
     parent’s claims of progress and hope for the future.

In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013) (quoting I.J., 972 A.2d

at 11–12).

     With respect to the “needs and welfare” analysis pertinent to

subsections (a)(8) and (b), we have observed:



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        [I]nitially, the focus in terminating parental rights is on the
        parent, under Section 2511(a), whereas the focus in
        Section 2511(b) is on the child. However, Section 2511(a)(8)
        explicitly requires an evaluation of the “needs and welfare of the
        child” prior to proceeding to Section 2511(b), which focuses on
        the “developmental, physical and emotional needs and welfare of
        the child.” Thus, the analysis under Section 2511(a)(8) accounts
        for the needs of the child in addition to the behavior of the
        parent. Moreover, only if a court determines that the parent’s
        conduct warrants termination of his or her parental rights,
        pursuant to Section 2511(a), does a 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.”   Accordingly,   while    both
        Section 2511(a)(8) and Section 2511(b) direct us to evaluate
        the “needs and welfare of the child,” we are required to resolve
        the analysis relative to Section 2511(a)(8), prior to addressing
        the “needs and welfare” of [the child], as proscribed by
        Section 2511(b); as such, they are distinct in that we must
        address Section 2511(a) before reaching Section 2511(b).

In re Adoption of C.L.G., 956 A.2d 999, 1008–1009 (Pa. Super. 2008) (en

banc)    (citations   omitted).   “Section   2511(a)(8)   does   not   require   an

evaluation of the remedial efforts of either the parent or [the agency].” In

re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956 A.2d at

1007).

        Finally, this Court has explained the requisite analysis under Section

2511(b) as follows:

        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

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      bond. Id. 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. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008). Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

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

      In this case, the orphans’ court concluded that Mother did not fail to

perform her parental duties under Section 2511(a)(1). It explained as

follows:

      Given Mother’s not insignificant substance abuse history, which
      has led to periods of incarceration and rehabilitation, and the
      undisputed testimony that Mother has either complied with or
      was physically unable to comply with all tasks enumerated under
      A.O.’s court-approved permanency plan, we found that Mother
      had insufficient time to correct the problems leading to the
      child’s removal.

Trial Court Opinion, 4/6/16, at 5.

      With respect to Section 2511(a)(8), the court explained as follows.

      [The Agency] failed to prove that “the conditions which led to
      the removal or placement of [A.O.] continue to exist.” [The
      Agency] caseworkers testified that Mother’s drug abuse and,
      specifically, the incident on May 31, 2014 that led to Mother’s
      incarceration, necessitated A.O.’s current placement in foster
      care. They failed to show, however, that these circumstances
      continue to exist. While Mother may struggle with addiction for
      the rest of her life, the testimony showed that, since her
      incarceration began nearly two years ago, she has taken
      advantage of the opportunities afforded to her to improve the
      parent-child relationship. Though Mother may not yet be
      prepared or even equipped to assume all parental caretaking of
      A.O., we cannot involuntarily terminate her parental rights on
      this ground alone.

Id. at 6.


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      In its first, second, fifth, and sixth issues, the Agency argues that the

orphans’ court erred in denying its petition for the involuntary termination of

Mother’s parental rights because it denies A.O. permanency. Specifically, the

Agency argues that Mother has had repeated periods of drug relapse and

incarceration during A.O.’s life, which has resulted in the child being

adjudicated dependent on three separate occasions and being in placement

for half of her life. Further, the Agency argues that A.O. is in foster care with

a pre-adoptive family. For the following reasons, we hold that the orphans’

court abused its discretion in concluding that Mother’s conduct did not

warrant termination of her parental rights pursuant to Section 2511(a)(1)

and (8).

      Ms. Robinson, the Agency caseworker from May 2014 until October

2015, testified that, during A.O.’s three dependencies, Mother’s Family

Service Plan (“FSP”) objectives remained consistently to (1) obtain mental

health treatment; (2) attend drug and alcohol counseling; and (3)

participate in parenting classes. See N.T., 1/26/16, at 20, 21-22, 36-39.

Ms. Robinson testified that Mother participated in the services requested by

the Agency and/or ordered by the court since A.O.’s first dependency in

January 2011. See id. at 39-41. By the time of Mother’s arrest on May 31,

2014, for possession of heroin, she had participated in four separate

rehabilitation programs. See id. at 41. She testified on cross-examination as

follows:


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      Q. So would it be fair to say that [M]other has trouble . . .
      staying drug and/or alcohol free without having to attend some
      type of court-ordered program?

                                     ...

      A. I would find that fair to say. The few times that, you know,
      [Mother] has had the child and, . . . that we haven’t had
      dependency of the child, was when she was under supervision of
      the criminal justice system or incarcerated.

Id. at 41-42. Indeed, Ms. Robinson testified on direct examination:

      Q. So when we’re talking about compliance and progress, does
      [M]other have more of an issue complying with the request that
      you lay out for her or making progress based on compliance?

      A. Making progress and keeping it, so to say.

Id. at 22.

      Like Ms. Robinson, Ms. Ganczarski, the Agency caseworker from

October 2015 through the time of the hearing, testified that Mother has had

“the same consistent tasks” in her FSP plan over the years of A.O.’s

dependencies. Id. at 61. She testified, in part, that Mother has been

“through multiple rehab facilities. . . . So she has been through numerous

providers, and we do still have the concern for [M]other’s ability to maintain

[sobriety]. She has not shown a history of being able to maintain stability,

both with the mental health or with the drug and alcohol treatments.” Id.

      Ms. Ganczarski testified that Mother contacted her shortly after her

release from prison on November 18, 2015. They met on November 24,

2015, at which time they reviewed Mother’s FSP objectives. See id. at 55.

By the time of the hearing, she rated Mother’s compliance as moderate, but

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her progress as minimal because she could not “rate if [Mother is] able to

maintain the sobriety and stability long-term.” Id. at 59. Importantly, Ms.

Ganczarski testified that Mother is on parole until May 2020.2 Id. at 60. She

testified as follows:

       Q. Do you believe that the minor child can safely be returned
       home with [M]other at this point?

       A. No, I do not believe she can be safely returned at this point.
       Mother has not . . . consistently been able to show that she can
       maintain her mental health or sobriety on a long-term basis.
       Mother . . ., while she’s either incarcerated or under the
       supervision of parole or probation, she’s been able to . . .
       maintain sobriety, however, when she is not, it is when the
       concerns arise. So I would need to be able to see that [M]other
       is able to maintain long-term before the child can safely be back
       with [her].

Id. at 59-60.

       Ms. Ganczarski testified that       A.O.    began   visiting   with   Mother   in

October 2015, for a total of three visits before Mother was released from

prison.3 See id. at 65. She testified that Mother has also had three

supervised visits since her release from prison. See id. at 64. Although Ms.

Ganczarski did not supervise any of the visits between Mother and A.O., she

____________________________________________


2
 Ms. Ganczarski testified that Mother meets weekly with her parole officer,
maintains a curfew, and has had negative drug screens conducted by the
parole officer. See N.T., Hearing, 1/26/16, at 60.
3
  Ms. Ganczarski implied in her testimony that visitation was not permitted
between Mother and A.O. for an unspecified time-period because of Mother’s
conviction on charges for child endangerment stemming from the May 31,
2014 incident. See id. at 65-66.



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testified that, to her knowledge, Mother has acted appropriately during the

visits, and that “[t]here [were] no reports of fear between child and

mother.” Id. at 66-67. In addition, Ms. Ganczarski testified that Mother has

been cooperative during her interactions with her. See id. at 67.

     Ms. Ganczarski testified that A.O. has been in the same foster home

for twenty consecutive months at the time of the termination hearing, where

she had also resided during her prior placement, which was for sixteen

consecutive months. See id. at 68. Ms. Ganczarski testified that she has

observed A.O. in the foster home since June 2015. See id. at 69-70. She

testified that A.O. is bonded to her foster family, and that she refers “to

foster mom as her mother.” Id. at 69.

     Based on the foregoing testimonial evidence, we conclude that the

orphans’ court abused its discretion in determining that Mother’s conduct did

not warrant termination under Section 2511(a)(1) for failure to perform her

parental duties. In concluding that “Mother had insufficient time to correct

the problems leading to the child’s removal[,]” the court patently failed to

consider the entire history of this case. The evidence demonstrated that

Mother had the same FSP objectives for half of A.O.’s life, for a total of 37

months,   and   maintained   sobriety   only   when   incarcerated   or   under

supervision by the criminal justice system.

     Likewise, we conclude that the court abused its discretion in failing to

terminate Mother’s parental rights pursuant to Section 2511(a)(8). By the


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time of the hearing, A.O. had been in placement for twenty consecutive

months, which was far in excess of the statutory minimum. Because of

Mother’s significant drug addiction history, reunification between Mother and

A.O. was not imminent at the time of the hearing. Therefore, the conditions

that led to A.O.’s placement continued to exist. Finally, the testimonial

evidence     overwhelmingly       demonstrates     that   involuntarily   terminating

Mother’s parental rights would best serve the needs and welfare of A.O. by

providing her with permanence and stability in the home of her foster

parents, who are a pre-adoptive resource. See N.T., Hearing, 1/26/16, at

17. Although the evidence revealed that Mother has been cooperative with

the Agency since her release from prison and that she has been complying

with her FSP and parole requirements, we “cannot and will not subordinate

indefinitely [A.O.]’s need for permanence and stability to [Mother]’s claims

of progress and hope for the future.” In re J.F.M., supra.

       Accordingly, we reverse the subject order insofar as it denied the

Agency’s petition for the involuntary termination of Mother’s parental rights

pursuant to 23 Pa.C.S.A § 2511(a)(1) and (8).4 We remand this matter to

the orphans’ court to consider, in timely fashion, A.O.’s “developmental,

physical and emotional needs and welfare” pursuant to 23 Pa.C.S.A §


____________________________________________


4
  Based on this disposition, we need not consider the Agency’s remaining
issues on appeal.



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2511(b) and pertinent case5 authority.6 Thereafter, the court shall promptly

enter a new order regarding the involuntary termination of Mother’s parental

rights and Father’s consent to adoption.

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




____________________________________________


5
  See, e.g., In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (“[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.”)
6
 Ms. Ganczarski, an Agency caseworker, testified that A.O. is bonded with
her foster family, stating, “[s]he appears to be a part of the family and to
have a good connection and to be very stable and happy and safe in their
environment.” N.T., Hearing, 1/26/16, at 69.



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