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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.J.Y., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.D., MOTHER No. 848 MDA 2014
Appeal from the Decree entered April 14, 2014,
in the Court of Common Pleas of Luzerne County, Orphans’
Court, at No(s): A-8099
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 19, 2014
L.D. (“Mother”) appeals from the decree dated and entered on April
14, 2014, in the Luzerne County Court of Common Pleas, Orphans’ Court
Division, involuntarily terminating her parental rights to her son, D.J.Y.
(“Child”), born in May of 2005, pursuant to section 2511(a)(1) and (b) of the
Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Child is autistic and has Attention Deficit Hyperactivity Disorder (ADHD).
Trial Ct. Op., 6/12/14, at 6. In 2007, Luzerne County Children and Youth
Services (“CYS”) removed Child from the care of Mother and Father and
placed Child in the custody of Child’s maternal great aunt (“Great Aunt”) and
great uncle (“Great Uncle”) (together, “Petitioners”), in whose care Child has
remained up to the filing of the subject termination petition. Id. at 2. On
June 16, 2008, the trial court entered an order, giving primary physical
1
The trial court, by separate decree dated and entered on April 14, 2014,
also involuntarily terminated G.Y.’s (“Father’s”) parental rights to Child.
Father did not participate in any of the lower court proceedings, has not
appealed the decree terminating his parental rights to Child, and is not a
party to this appeal.
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custody of Child to Petitioners, allowing Mother visitation with Child, and
requiring Mother to complete a parenting class, a drug and alcohol
evaluation, and a mental health evaluation. Id. at 7, 14. Pursuant to the
order, Mother was also required to provide to the trial court written
documentation verifying that she had completed all of the requirements. Id.
at 7.
On August 23, 2013, Petitioners filed a petition for the involuntary
termination of Mother and Father’s parental rights to Child, alleging the
elements of 23 Pa.C.S.A. § 2511(a)(1) and (b) as grounds for termination.
Id. at 1. The trial court held an evidentiary hearing on April 9, 2014. Id.
At the hearing, the trial court heard testimony from Petitioners and Mother.
S.D. (“Maternal Grandmother”), R.P. (“Maternal Great Grandmother”), and
Mother’s 15-year-old son, Child’s brother, O.Y., also testified at the hearing.
Great Aunt testified that, over the course of the six months prior to
filing the termination petition (February 23, 2013 to August 23, 2013),
Mother did not have any contact with Child, nor had she fulfilled any
parental duties on Child’s behalf:
Q. From February 23rd, 2013 up to the date of August 23rd,
2013, has [Mother] had any contact with [Child]?
A. No.
Q. Has she made any phone calls to [Child]?
A. No.
Q. Has she sent any cards or letters to [Child]?
A. No.
Q. Has she sent any gifts to [Child]?
A. No.
Q. Has she come by the house and asked to speak to [Child]?
A. No.
Q. Has she had any indirect contact with [Child] through
Facebook or social media?
A. No.
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Q. During that period of time, have you prevented her from
contacting [Child]?
A. No.
Q. Does [Mother] provide any type of financial support for
[Child]?
A. No.
Q. Does she pay child support?
A. No.
Q. Is she court ordered to pay child support?
A. No.
Q. Does she drop off clothing for [Child]?
A. No.
Q. Does she drop off food for [Child]?
A. No.
Q. Does she give you any support outside of the court for
[Child]?
A. No.
Q. . . . has she taken [Child] to any doctor’s appointments?
A. No.
Q. Dentist appointments?
A. No.
Q. Mental health appointments?
A. No.
Q. Has she done any parental duties whatsoever on behalf of
[Child] during that six-month period?
A. No.
Notes of Testimony, 4/9/14, at 18-20. Great Aunt further testified that
Mother could have contacted Child during the six months prior to the filing of
the termination petition since Mother was aware of Petitioners’ telephone
number, having previously called Great Aunt on that exact telephone
number, as well as Petitioners’ address, having previously visited Petitioners’
residence. Id. at 11-12. Great Uncle corroborated Great Aunt’s testimony
and testified that he, too, had done nothing to prevent Mother from
contacting or seeing Child during the six months prior to filing the
termination petition. Id. at 49-50. Further, Petitioners testified that it is
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their intention to adopt Child should the trial court grant the termination
petition. Id. at 46-48.
In her testimony, Mother admitted that she had not performed
parental duties such as taking Child to the doctor, dentist, or optometrist
since Child was two years old, and that, since 2008, besides running into
Child on occasion at a family affair, she had only seen Child on one
occasion—his eighth birthday in May 2013. Id. at 97, 108-109. Mother also
confirmed that, in the six months prior to the filing of the termination
petition, she did not telephone Petitioners to speak with Child, nor did she
send any cards, letters, gifts, or money to Petitioners for Child. Id. at 97-
98, 109.
On cross-examination, Mother testified to her issues with substance
abuse, indicating that, on January 18, 2013, she had pleaded guilty to
possession of a controlled substance and, from February 2013 to the
beginning of March 2013, was incarcerated for retail theft and possession of
a controlled substance. Id. at 99-100. In addition, on March 11, 2013,
Mother pleaded guilty to public drunkenness and similar conduct. Id. at 99.
Mother further testified that, upon her release from incarceration in March
2013, she admitted herself to Valley Forge Medical Center, a rehab facility,
and that she had remained sober since being successfully discharged from
the facility in April 2013. Id. at 79, 113. Nevertheless, despite being able
to provide the trial court with a certificate evidencing her successful
completion of a rehabilitative programs, Mother failed to supply written
documentation verifying her completion of a drug and alcohol evaluation and
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a mental health evaluation, as required by the trial court’s June 16, 2008
order. Trial Ct. Op. at 7.
On April 14, 2014, the trial court entered corresponding decrees,
terminating the parental rights of Mother and Father, respectively, pursuant
to 23 Pa.C.S.A. § 2511(a)(1) and (b). On May 14, 2014, Mother
simultaneously filed a timely 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).
On appeal, Mother raises a single question for our review:
Whether the trial court erred in finding that [Petitioners] met
[their] burden to prove the elements of termination with respect
to [23 Pa.C.S.A. § 2511(a)(1) and (b)][] through clear and
convincing evidence?
Mother’s Brief at 3.
We review appeals from the involuntary termination of parental rights
according to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; [In re:]
R.I.S., [614 Pa. 275], 36 A.3d [567, 572 (2011) (plurality
opinion)]. As has been often stated, an abuse of discretion does
not result merely because the reviewing court might have
reached a different conclusion. Id.; see also Samuel-Bassett
v. Kia Motors America, Inc., [613 Pa. 371], 34 A.3d 1, 51
(2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634
(2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
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As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency
and termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S.A. § 2511, which requires a bifurcated analysis:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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) (citing 23 Pa.C.S.A. §
2511). The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
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parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009). Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, the trial court terminated Mother’s parental rights pursuant to
section 2511(a)(1) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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.
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23 Pa.C.S.A § 2511(a)(1), (b).
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) (citing
In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,
Once 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).
Id. (quoting In re Adoption of Charles E.D.M., 550 Pa. 595, 602, 708
A.2d 88, 92 (1998)).
This Court has emphasized 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) (internal
citations omitted). We have explained:
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.
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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.
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. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with . . . her physical and emotional
needs.
Id.
Further, we have stated that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous. Id. at 340.
In her brief on appeal, Mother essentially argues that Petitioners
presented insufficient evidence to sustain their burden under section
2511(a)(1) and (b), and, thus, that the trial court abused its discretion in
terminating her parental rights to Child. Specifically, Mother contends that
the trial court erred in finding that Mother’s conduct during the six months
prior to the filing of the termination petition established her refusal or failure
to perform parental duties on Child’s behalf or evidenced Mother’s settled
purpose of relinquishing her parental claim to Child. In support, Mother
emphasizes her testimony that she maintained regular contact with Child up
to her incarceration from February 2013 to the beginning of March 2013,
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during which she claims that she was unable to telephone Petitioners to
speak to Child and had no funds to buy stamps to send cards or letters to
Child. Mother’s Brief at 8 (citing N.T., 4/9/14, at 96). In addition, Mother
avers that, after being successfully discharged from rehabilitation in April
2013, she made several attempts to contact Child, all of which were
unsuccessful because Petitioners, recognizing Mother’s telephone number on
their caller identification, refused to answer her phone calls. Id. at 9 (citing
N.T., 4/9/14, at 79-81).
In its Rule 1925(a) opinion, the trial court explained its analysis under
section 2511(a)(1) as follows:
With grounds for termination under [section 2511(a)(1)],
the first line of inquiry. . . is the parent’s explanation for his or
her conduct. . . . Mother testified that [during her incarceration
from February 2013 to the beginning of March 2013] she did not
request visits with [Child] because she believed [that] prison is
an inappropriate place to visit for a child. However, Mother did
not make any attempts to call[] [or] send letters or cards to
[Child] while she was incarcerated. When Mother was
questioned several times as to the reason for [her] not calling
[Child] from prison, Mother seemed to avoid answering the
questions by answering that the counselors did not care.
Then[,] when asked specifically as to whether she attempted to
call [Child] from prison, Mother responded that she requested a
“male” to make a phone call on three (3) different occasions in
February of 2013 and that the “male” would not call [anymore]
and that no one cared. Mother also did not write to [Child] from
prison claiming that she did not have money for stamps. It is
also interesting to note that subsequent to being released from
prison, Mother was in Valley Forge Medical Rehabilitation Center
from March 2013 until April 2013. During her stay, Mother also
did not call or write to [Child], claiming that she had no funds to
do so. However, when Mother left the Rehabilitation Center in
April of 2013, Mother still did not call or write to [Child] between
April 2013 and August 2013. During that time, Mother was
neither incarcerated nor in a [r]ehabilitation [c]enter.
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Mother gave inconsistent testimony regarding calling
[Child] between February 2013 and August 2013. Mother
testified that in April of 2013, she was calling [Petitioners’]
residence, but [Petitioners] would not answer the telephone.
Then[,] Mother testified that she did not telephone [Petitioners]
to speak to [Child] between February 23, 2013 and August 23,
2013.
The [trial court] finds that Mother did not attempt to call or
write to [Child] while she was incarcerated. The [trial court]
does not find Mother credible in testifying that she asked a male
to call or that she had no funds to write a letter. Even after
Mother was released from prison and the rehabilitation center,
Mother still did not call or write to [Child] for the remaining four
(4) months prior to the filing of the [termination petition].
[Based on the foregoing, the trial court finds that Mother]
did not utilize [the] resources [available to her in prison] to
maintain a place of importance in [Child’s] life. Thus, the [trial
court] finds [that] Mother has refused or failed to perform any
parental duties between February 23, 2013 and August 23, 2013
and did not offer a reasonable explanation for not performing her
parental duties.
The second line of inquiry is the post-abandonment contact
between parent and child. There is credible testimony given by
[Great Aunt] that Mother did not have any contact with [Child]
six (6) months prior to filing the [termination petition] (between
February [23,] 2013 and August 23, 2013)[.] [Child] has been
living with [Great Aunt] since 2007. Mother testified that the
only time she saw [Child] was when the families got together.
Mother testified that she saw [Child] on one or two occasions in
December of 2013 when [Child] and [Great Aunt] were visiting
[Maternal Great Grandmother’s] home.
Trial Ct. Op. at 8-11 (internal citations omitted).
After a careful review of the record, we conclude that the trial court’s
findings are supported by clear and convincing, competent evidence, and
that it reasonably concluded that Mother, by her conduct during the six-
month period preceding the filing of the termination petition, demonstrated
a settled purpose of relinquishing her parental claim to Child and/or her
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refusal or failure to perform parental duties on Child’s behalf, in accordance
with section 2511(a)(1). Further, to the extent that Mother is asking this
Court to revisit the trial court’s determinations regarding the credibility of
the testifying witnesses, we find that the trial court’s findings are supported
by competent evidence of record and, accordingly, discern no abuse of
discretion or error of law on the trial court’s part. See In re Adoption of
R.J.S., 901 A.2d at 506 (stating that “[t]he trial court, not the appellate
court, is charged with the responsibilities of evaluating credibility of the
witnesses and resolving any conflicts in the testimony. In carrying out these
responsibilities, the trial court is free to believe all, part, or none of the
evidence.”) (internal citations omitted).
We now turn our attention to section 2511(b) and look to see if the
trial court properly found that termination was in the best interest of Child.
With respect to section 2511(b), this Court has explained the requisite
analysis 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
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).
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In its analysis of section 2511(b), the trial court explained:
The third line of inquiry. . . requires the [trial court] to
review the evidence in support of termination under [section
2511(b)]. . . . The [trial court] finds that [Child’s] physical
needs are met by [Petitioners]. [Great Aunt] testified that [] she
and [Great Uncle] take [Child] regularly to the pediatrician and
that [Child’s] immunizations are up to date. [Great Aunt]
testified that [Petitioners] own their home and [Child] has his
own room. [Great Aunt] stated she prepares [Child’s] meals and
also insures that [Child] has sufficient clothing to wear.
The [trial court] finds that [Petitioners] also meet [Child’s]
developmental needs. [Great Aunt] testified that since [Child] is
autistic and has ADHD, [Child] takes medications. [Child] also
has a [Therapeutic Staff Support] worker who works with [Child]
twenty (20) hours per week. [Child] has a behavioral specialist
who comes to [Child’s] residence two (2) hours every two (2)
weeks and who also works with [Child] once per week at
[Child’s] school. [Great Aunt] testified that she works with a
mobile therapist who assists [Child] once per week for two (2)
hours at the house.
The [trial court] also finds that [Petitioners] meet [Child’s]
emotional needs. [Great Aunt] testified that [Child] calls her
“Mommy” and [Great Uncle], “Daddy.” [Petitioners] adopted
[Child’s] sister who resides with them. According to [Great
Aunt], [Child] is very loving to his sister and views her and
[Petitioners] as his family. Also, when [Child] is upset, [Great
Aunt] provides him emotional support. [Great Aunt] testified
that she understands [Child’s] needs. [Great Aunt] testified that
she knows how to calm [Child] down when he is upset and when
he has tantrums. [Great Aunt] testified that she and [Great
Uncle] work with a mobile therapist who teaches them how to
address [Child’s] emotional issues.
According to [Great Aunt], there is no emotional bond
between [Child] and [Mother]. [Great Aunt] testified that [Child]
does not remember [Mother], nor does [Child] ask for her.
According to [Great Aunt], [Child] does not say he misses
[Mother]. [Great Aunt] testified that [Child] knows [Mother] is
part of the family because [Maternal Grandmother] and
[Maternal Great Grandmother] remind [Child] about [Mother].
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[Great Aunt] testified that [Child] calls her “Mommy” and
[Mother], “Mommy [L].” Mother admitted that although she
does believe there is still a bond between herself and [Child], the
bond is now stronger between [Great Aunt] and [Child].
[Great Aunt] testified that she would like to adopt [Child]
should the [trial court] terminate parental rights. [Great Aunt]
emphasized that she and [Great Uncle] already adopted [Child’s]
sister. [Great Aunt] testified that she loves [Child] and if she
were to adopt him, she knows she will be legally and financially
responsible for him. . . . [Great Uncle] also testified that it is
[Petitioners’] intention to adopt [Child], and further understands
that he would be financially responsible for [Child]. . . .
The [trial court] finds that [] Mother is not able to meet
[Child’s] best interests or needs. In stark contrast, [Petitioners]
have amply demonstrated they continue to meet [Child’s]
physical, developmental and emotional needs and that [Child]
has thrived under their care. [Child] needs and deserves a
permanent home. The only way to provide this to [Child] is to
terminate the rights of [] Mother. Clearly[,] it is in [Child’s] best
interest to do so.
Trial Ct. Op. at 11-17 (internal citations omitted).
Here, our review of the record indicates that there is competent
evidence to support the trial court’s decision that termination of Mother’s
parental rights best serves Child’s developmental, physical, and emotional
needs and welfare. Although Mother has expressed a willingness to fulfill
her parental duties regarding Child’s needs and welfare, her failure to put
herself in a position to develop a parental bond with Child as well as her
complete absence throughout the majority of Child’s life illustrate her
inability to do so. Moreover, the trial court found that Child has bonded with
Petitioners, who are pre-adoptive, have served as Child’s foster parents
since he was three years old, and ably provide for Child’s special needs. In
fact, as noted by the trial court, Mother, by her own admission, confirmed
that Child has a stronger bond with Great Aunt than with her. As such, we
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find that it was appropriate for the trial court to determine that the
termination of Mother’s parental rights would not have a detrimental effect
on Child and would be in Child’s best interest. In consideration of these
circumstances and our careful review of the record, we conclude that the
trial court did not abuse its discretion or commit an error of law in finding
competent evidence to support the termination of Mother’s parental rights to
Child under section 2511(b).
Accordingly, for the reasons stated above, we affirm the trial court’s
decree involuntarily terminating Mother’s parental rights to Child pursuant to
23 Pa.C.S.A. § 2511(a)(1) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2014
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