J-S04018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF J.A.T., A               :   IN THE SUPERIOR COURT
    MINOR                                      :        OF PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.D.H., FATHER                  :
                                               :
                                               :
                                               :
                                               :   No. 2816 EDA 2019

              Appeal from the Order Entered September 13, 2019
             In the Court of Common Pleas of Montgomery County
                    Orphans' Court at No: No. 2019-A0040


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                                FILED APRIL 7, 2020

       D.D.H. (“Father”) appeals from the order entered September 13, 2019,

which terminated involuntarily his parental rights to his son, J.A.T., born in

April 2017 (“Child”).1 We affirm.

       The Montgomery County Office of Children and Youth (“OCY”) became

involved with the family on February 1, 2018, when Mother brought Child to

the Pottstown Office of OCY and stated that she was homeless and looking for

resources. N.T., 8/6/19, at 6-7. Due to a previous history with OCY, Mother

was urine screened, and tested positive for methamphetamine, amphetamine,

and tetrahydrocannabinol (“THC”). Id. at 7. The identity and whereabouts

of Child’s father were unknown. N.T., 9/12/19, at 15-16. Due to Mother’s

____________________________________________


1 That same day, the court terminated involuntarily the parental rights of
L.S.D.T. (“Mother”). Mother has not appealed the order and has not filed a
brief in the instant appeal.
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homelessness, substance abuse, and lack of appropriate caretakers, OCY

obtained an order for emergency protective custody of Child. N.T., 8/6/19, at

7.   Following a shelter care hearing on February 2, 2018, Mother did not

maintain contact with OCY and her whereabouts were unknown. Id. at 9-10,

24-25.   In July 2018, Father was identified as a putative father of Child,

ordered to undergo paternity testing, and later confirmed to be Child’s

biological father. N.T., 9/12/19, at 16-17.

      Family service plans were created for the family on February 12, 2018;

August 12, 2018; and February 8, 2019.         N.T., 8/6/19, at 21-22.    At a

permanency review hearing on August 16, 2018, the court found that Father

was making no compliance with the permanency plan, denied paternity of

Child, and did not present as a resource for Child. Order, 8/20/18, at 1. At a

permanency review hearing on November 8, 2018, the court found that Father

was making minimal compliance with the permanency plan and had begun

visiting with Child.   Order, 11/9/18, at 1.   Following that hearing, specific

family service plan goals were identified for Father, and included maintaining

a relationship with Child; keeping in contact with OCY; updating OCY regarding

housing; providing pay stubs; and avoiding positive drug screens.         N.T.,

9/12/19, at 23. At a permanency review hearing on February 14, 2019, the

court found that Father was in minimal compliance with the permanency plan

and, although Father had continued visitation, he indicated that he was not

able to be a resource for Child. Order, 2/15/19, at 1.




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       On March 22, 2019, OCY filed a petition to terminate involuntarily

Father’s parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),

and (b).

       The court held hearings on the petition on August 6, 2019, and

September 12, 2019.          OCY presented the testimony of Clare Henderson,

formerly an OCY supervisor at the Pottstown intake unit; Brenda Michael,

program manager at Friendship House; Krystal Dukes, OCY casework

supervisor for the Pottstown office; D.L., legal father of Child;2 Lori Ann Heath,

formerly the ongoing OCY caseworker for Child; and Susan Rhoads, the

adoption caseworker assigned to Child.           Father, represented by counsel,

testified on his own behalf via telephone. Child was represented during the

duration of the case by Robert Angst, Esquire, as legal counsel; at the final

hearing, Child was represented by Eileen Schaefer, Esquire, as legal counsel.

       Lori Heath testified that she was the ongoing caseworker for Child. N.T.,

9/12/19, at 15-16. During the first few months of the case, OCY was not

aware of the identity of Child’s father. Id. at 16. Family members of Child’s

mother suggested that Father might be the biological father of Child, and,

after an Accurint search, Father was found. Father participated in a paternity




____________________________________________


2 D.L. was identified as the legal father of Child on the birth certificate, but
was later excluded as the biological father of Child by paternity testing. N.T,
9/12/19, at 3-12. D.L. prepared a petition to voluntarily relinquish his
parental rights to Child, which was accepted at the September 12, 2019
hearing. Id.

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test, which confirmed his paternity. Id. Father lived in Wisconsin, although

OCY did not have an exact address for him at that time. Id. at 17.

      Ms. Heath testified that paternity was established in July 2018 and

Father began visiting in October 2018.     Id.   Ms. Heath stated that Father

indicated to her that he had not been involved with Child because Mother’s

family had called Father and said Mother had miscarried. Id. at 26. Thus,

Father claimed he had not known about Child until OCY made contact. Id. at

26.   However, Ms. Heath acknowledged that there were conflicting stories

within Mother’s family, as her sister stated that was not true.      Id. at 26.

Regardless, Mother and Father did not have a long-term relationship. Id.

      Initially, Father requested visits every other week since he was

travelling from Wisconsin. Id. at 17. Father visited on October 15, 2018;

October 30, 2018; and November 9, 2018, for an unconfirmed visit. Id. at

17-18. At the October 15, 2018 visit, Father discovered that Mother’s sister

was visiting with her child at the same time, and had to be repeatedly pulled

out of that visit room. Id. at 28. Ms. Heath took a urine screen from Father

at the November 8, 2018 permanency review hearing, and it was positive for

THC. Id. at 20-21. Father acknowledged that he had smoked marijuana. Id.

at 21. At each of the visits, Father indicated a different living situation from

the original address that had been considered for the interstate compact. Id.

at 22-23. After the third visit, family service plan goals were provided for

Father, namely, to maintain a relationship with Child, keep in contact with

OCY, and to update OCY regarding Father’s housing. Id. at 23. Father was

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also to provide Ms. Heath with pay stubs to prove employment, and to avoid

positive drug screens. Id. at 23.

      Father was supposed to attend a visit on November 27, 2018, but

emailed Ms. Heath the day before to cancel. Id. at 18. Ms. Heath testified

that, after Father’s cancellation, she texted back and forth with him over the

next few days, but he did not confirm a visit. Id. at 19. Ms. Heath sent Father

a letter on December 5, 2018, asking him to schedule a visit; Father did not

reply until December 14, 2018, asking about visits. Id. Ms. Heath testified

that, based on the wording of the email, she did not believe the email was

written by Father. Id. Ms. Heath asked to speak to Father on the phone, but

did not receive a reply. Id. Ms. Heath believed the email was written by

Father’s significant other, and they were stating that they had split up, and

Father would still like to have visits. Id. Ms. Heath did not hear from Father

again until January 9, 2019; Father gave her a home address but did not

schedule a visit. Id. Ms. Heath re-sent the December 5, 2018 letter to the

new address, but did not receive a response. Id. at 20. On January 11, 2019,

Ms. Heath received a text from Father stating that he would not be able to

care for Child. Id. at 20. Father indicated he was between homes and had

lost his job, and did not feel he would be able to care for Child. Id. After that

text, Ms. Heath did not receive any further contact from Father. Id.

      Ms. Heath testified that, throughout the history of the case, Father made

no progress on his goals. Id. at 23-24. Specifically, once Father was given

goals, there was no further contact from him. Id. at 24. Ms. Heath did not

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believe that Child had a bond with Father; Child did not seem to recognize

Father at the third visit. Id. at 24. Ms. Heath believed it was in Child’s best

interest to be adopted. Id. Child has taken to the family very well, is bonded

with both parents, and has become part of the family. Id.

      Brenda Michael testified that she is the program manager of Friendship

House, through which Child was placed into foster care in May 2019. N.T.,

8/6/19, at 14-15.    Child is in a pre-adoptive placement with a same-sex

married couple in Collegeville, and is adjusting well to their home. Id. at 15.

Prior to Child’s pre-adoptive placement, he was placed with a previous foster

family, with whom he is still in contact. Id. at 18. Child has transitioned well

from foster home to foster home. Id. Child is loving and affectionate with

both of his foster mothers, who are engaging and nurturing to him. Id. at 16.

Child, who was two years old at the time of the hearing, was well ahead of the

development curve and showing some athletic ability. Id. at 19.

      No visitation has occurred with Child’s birth family members since Ms.

Michael became involved with the case, nor has any contact or outreach

occurred from either birth parent. Id. at 16-17. Ms. Michael testified that it

was her belief that it was in the best interest of Child to be adopted; Father

made a few visits at the end of last year, but indicated that he could not be a

resource for Child. Id. at 17. Child needs permanency and is with a family

willing to provide that for him. Id.

      Father testified that once he discovered he had a son, he attempted to

arrange visits with Child. N.T., 9/12/19, at 41. Father requested that the

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court not terminate his parental rights because he is a hardworking father, he

is trying, and had recently broken up with the woman he was seeing. Id.

Father testified that he is trying to “get everything under control.” Id. at 41-

42. Father testified that he loved Child from the moment he found out about

him and has been trying to be in contact or “at least” visit. Id. at 42. Father

stated he recently acquired his own housing, is working, and has family

support from his mother and aunt. Id. Father claimed that he could take

Child in about a week as he has clothes, a place for Child to sleep and “all [he]

really need[s] is baby food.” Id. at 43.

        Father admitted that he had not had any contact with Child since

November 2018, either in person, by phone, or on FaceTime, although Father

stated he had spoken with an adoption worker named Sue.3            Id.   Father

admitted that he had not sent Child any gifts or cards for his birthday or the

holidays, had not paid child support, and was not sending food or clothing to

care for Child. Id. at 44. Father stated that his girlfriend answered his phone.

Id. at 44-45.     Father stated that sometime in August 2019 he had emailed

Ms. Rhoads his new address and phone number along with his mother’s phone

number. Id. at 45.

        Susan Rhoads testified that she is Child’s adoption caseworker. N.T.,

9/12/19, at 50-51. She established email contact with Father in March 2019,

when she was writing a child profile for Child and needed family background

____________________________________________


3   “Sue” was Susan Rhoads, Child’s adoption caseworker.

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information. Id. at 51. In June 2019, Ms. Rhoads let Father know of the

impending hearing and to get an idea of what Father’s position was; she did

not get much of a response and long periods of time would go by between

responses.    Id.   Ms. Rhoads emailed Father following the August 6, 2019

hearing to inform him that the hearing had been continued, and sent him a

copy of the notice that had been mailed to the address provided. Id. Father

replied that he had received the notice. Id. At that same time, Ms. Rhoads

asked Father if he would like counsel for the proceedings, and Father did not

respond. Id. at 52. At one point, Father asked what he could do to get Child

back, but he did not request more visits. Id. Ms. Rhoads reached out to

counsel for OCY to have an attorney appointed just in case. Id. at 52-53.

       At the conclusion of the hearing, the court terminated Father’s parental

rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and changed

Child’s permanent placement goal to adoption, 42 Pa.C.S.A. § 6351. Father

timely filed a notice of appeal from the termination of his parental rights and

a statement of errors complained of on appeal pursuant to 1925(a)(2)(i) and

(b).

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

       1. The [t]rial [c]ourt erred in finding clear and convincing evidence
       existed to terminate [Father’s] parental rights under 23
       Pa.C.S.[A.] Section 2511(a).

Father’s Brief at 4.

       We review cases involving the termination of parental rights according

to the following standards.

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      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) (internal citations and quotations

omitted).

      Termination 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).

      We thus turn to the trial court’s order terminating Father’s parental

rights pursuant to 23 Pa.C.S.A. § 2511(a) and (b). The trial court terminated

Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).

We have long held that, in order to affirm a termination of parental rights, we

need only agree with the trial court as to any one subsection of Section


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2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc). We focus our analysis on 23 Pa.C.S.A. § 2511(a)(1)

and (b).

     The relevant subsections of 23 Pa.C.S.A. § 2511 provide:

     (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.

                                     ***

     (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.A. § 2511.

     With regard to Section 2511(a)(1), this Court has observed that

     To meet the requirements of this section, “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) (citing In re
     Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The


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     court must then 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). Id. (quoting
     In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
     92 (1998)).

     This Court has explained that a parent does not perform his or her
     parental duties by displaying a “merely passive interest in the
     development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.
     Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005)
     (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003),
     appeal denied, 580 Pa. 687, 859 A.2d 767 (2004)). Rather,
     “[p]arental duty requires that the parent act affirmatively with
     good faith interest and effort, and not yield to every problem, in
     order to maintain the parent-child relationship to the best of his
     or her ability, even in difficult circumstances.” Id. (citation
     omitted).

In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

     With regard to Section 2511(b), “the court must take into account

whether a bond exists between child and parent, and whether termination

would destroy an existing, necessary and beneficial relationship.” Z.P., 994

A.2d at 1121. The court is not required to use expert testimony, and social

workers and caseworkers may offer evaluations as well. Id. Ultimately, the

concern is the needs and welfare of a child. Id.

     We have stated:

     [b]efore granting a petition to terminate parental rights, it is
     imperative that a trial court carefully consider the intangible
     dimension of the needs and welfare of a child—the love, comfort,
     security, and closeness—entailed in a parent-child relationship, as
     well as the tangible dimension. Continuity of the relationships is
     also important to a child, for whom severance of close parental
     ties is usually extremely painful. The trial court, in considering
     what situation would best serve the child[ren]’s needs and
     welfare, must examine the status of the natural parental bond to


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      consider whether terminating the natural parents’ rights would
      destroy something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000)). The trial court may equally emphasize the safety needs of the child

and may consider intangibles, such as the love, comfort, security, and stability

the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,

103 (Pa. Super. 2011); see also In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.

2008) (court may emphasize the safety needs of child). Where there is no

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

no bond exists. Id. “[A] parent’s basic constitutional right to the custody and

rearing of . . . her child is converted, upon the failure to fulfill . . . her parental

duties, to the child’s right to have proper parenting and fulfillment of [the

child’s] potential in a permanent, healthy, safe environment.” In re B.,N.M.,

856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).

      In this case, we do not review the order pursuant to Section 2511(b)

because Father did not preserve the issue in his concise statement of errors

complained of on appeal, nor in his statement of questions involved in his brief

on appeal. See Krebs v. United Refining Company of Pennsylvania, 893

A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that

are not raised in both his concise statement of errors complained of on appeal

and the statement of questions involved in his brief on appeal); see also In

re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating failure to include

argument/discussion in brief as to issue results in waiver of that claim) and

In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (same).

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      With regard to Section 2511(a)(1), Father argues that he was not aware

of Child’s existence until July 2018 and immediately began making

arrangements to travel from Wisconsin to Pennsylvania to establish a

relationship with Child. Father’s Brief at 6-7. Father notes that he visited

Child three times over the next two months, and also attended a court hearing.

Id. Father contends that he contacted OCY several times to set up visits in

November 2018, and asked about visits in December 2018 and January 2019.

Id. Father argues that he was not able to perform his parental duties because

he was unaware of Child, and was not prepared to perform his parental duties,

but should not be denied the opportunity now. Id.

      The record is clear that, for six months prior to the filing of the

termination petition, Father failed to perform parental duties. The relevant

time period begins September 22, 2018.         It is possible that Father was

unaware of Child’s existence until July 2018. It is true that Father visited with

Child three times in October 2018 and November 2018. However, as the trial

court observed,

      [Child] has never been in the custody of [Father]. When [Child]
      was 15 months old, [Father] was identified as [Child’s] birth father
      after taking a paternity test. Another man was listed as the father
      on the birth certificate of [Child].

      [Father] was a resident of Wisconsin when he learned in July 2018
      that he was the birth father of [Child]. With the goal of obtaining
      custody of [Child] through an interstate compact, [Father] agreed
      to comply with the terms of [an FSP].

      [Father] was unable to work on the interstate compact because
      he did not have a definite address. He made no progress on his


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      FSP goals involving maintaining a relationship with [Child],
      providing OCY with his pay stubs, clean urine screens, and
      consistent contact with OCY regarding his housing updates.

      Initially, [Father] requested biweekly visits due to the travel
      distance from his Wisconsin residence. He visited [Child] on
      October 15, 2018, and again on October 30, 2018. In connection
      with [Father]’s attendance at a Permanency Review Hearing,
      [Father] last visited with [Child] on November 8, 2018. During
      that visit, [Father] provided a urine screen that was positive for
      THC. [Father] cancelled his scheduled November 27, 2018 visit
      by notice of an email on November 26, 2018.

      Subsequent contacts with OCY by [Father] were sporadic, most
      often in the form of emails that were never followed-up with phone
      calls, as requested. In his January 11, 2019 text to OCY, [Father]
      admitted that he was unable to care for [Child] because he was
      in-between homes and in-between jobs.

      Since learning that he was the birth father of [Child], [Father]
      provided no child support, clothing or food for [Child]. [Father]
      has not given [Child] gifts, or even cards, for his birthday or
      holidays. [Father] has had no contact with [Child] since his
      November 8, 2018 visit, despite the available use of phone calls
      or face time.

Trial Court Opinion, 10/15/19, at 3-4 (internal citations to the record omitted).

These observations are supported by the record. Despite three visits, Father

made no other efforts to perform parental duties or even to contact Child

during the relevant time period. See, e.g., J.T.M., 193 A.3d at 409.

      Accordingly, we examine Father’s explanation for his failure. Here, the

trial court noted that Father did not provide credible testimony regarding his

lack of support and contact with Child during the six-month period prior to the

filing of the petition but, instead, focused on his efforts to prepare for future

custody of Child. Trial Court Opinion, 10/15/19, at 4. The record supports

this conclusion. Father implied that his life had gotten out of control and that

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he had recently lost a job and housing, but never gave further explanation as

to why he failed to comply with his FSP goals or even to attempt to contact

Child. As this Court has observed, parental duty requires that the parent “act

affirmatively with good faith interest and effort, and not yield to every

problem, in order to maintain the parent-child relationship to the best of his

or her ability, even in difficult circumstances.”   B.,N.M., 856 A.2d at 855.

Here, despite Father’s argument that he should be allowed to perform parental

duties now, there is no evidence that he attempted to perform parental duties

in any significant manner prior to the filing of the petition. Additionally, the

record established that outside of the three visits discussed earlier, there was

no post abandonment contact whatsoever with Child, only vague attempts to

schedule visits with caseworkers that never finalized.

      Finally, the court appropriately concluded that, based upon the

testimony provided, there was no bond between Child and Father. Trial Court

Opinion, 10/15/19, at 5. Child did not even recognize Father by the third visit,

and there was credible testimony provided that Child was bonded with his

foster mothers, is an integral part of their family, and is thriving in his

placement. Caseworkers testified that it was in Child’s best interest to be

adopted.

      Consistent with the foregoing, we conclude that the evidence supports

the termination of Father’s parental rights pursuant to Section 2511(a)(1).

Father failed to perform parental duties for six months prior to the filing of the

petition, did not provide an adequate explanation for his conduct, had minimal

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post-abandonment contact with Child. Accordingly, the court did not err in

terminating Father’s parental rights involuntarily pursuant to 23 Pa.C.S.A. §

2511(a)(1) and (b).

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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