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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.R.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.F., FATHER : No. 3693 EDA 2015
Appeal from the Order Entered November 4, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. AP# CP-51-AP-0000205-2014,
DP# CP-51-DP-0002022-2011, FID# 51-FN-382382-2009
IN THE INTEREST OF: Z.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.F., FATHER : No. 3696 EDA 2015
Appeal from the Order Entered November 4, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. AP# CP-51-AP-0000203-2014,
DP# CP-51-DP-0002024-2011, FID# 51-FN-382382-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 28, 2016
J.F. (“Father”) appeals from the decrees and orders entered
November 4, 2015, in the Court of Common Pleas of Philadelphia County,
Family Court Division, granting the petitions of the Philadelphia Department
of Human Services (“DHS”) and involuntarily terminating his parental rights
to his dependent, female children, J.R.F., born in March of 2010, and Z.F.,
* Former Justice specially assigned to the Superior Court.
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born in April of 2011 (collectively, the “Children”),1 pursuant to 23 Pa.C.S.A.
§§ 2511(a)(1), (2), (5), (8), and (b), and changing the Children’s
permanency goal to adoption pursuant to 42 Pa.C.S.A. § 6351.2 3
After
review, we affirm.
We summarize the relevant procedural and factual history as follows:
This family became known to DHS on April 16, 2011, when DHS
received a General Protective Services report that Mother and her newborn
children tested positive for benzodiazepines and marijuana at the time of
delivery.4 (Notes of testimony, 7/10/15 at 98-100, 126.) Mental health and
domestic violence issues were also raised. (Notes of testimony, 8/5/14 at
39-40; 7/10/15 at 103-104, 135.) On November 9, 2011, the Children were
1
Father additionally has a younger male child, not subject to this case, with
whom DHS was involved and who was ultimately returned to Father’s
custody. (Notes of testimony, 7/10/15 at 63-65.) It is unclear from the
record if Mother is the biological mother of this child.
2
In separate decrees entered on the same date, the trial court terminated
the parental rights of the Children’s mother, S.S. (“Mother”), also pursuant
to Sections 2511(a)(1), (2), (5), (8), and (b). Mother has filed an appeal at
Pennsylvania Superior Court Docket Nos. 3520 EDA 2015 and 3522 EDA
2015.
3
As Father does not raise the change of the Children’s permanency goal to
adoption in his concise statement of statement of questions section of his
brief, we find the issue is waived. Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that, a failure
to preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver of those issues).
4
Mother gave birth to twins, one of whom did not survive. (Notes of
testimony, 7/10/15 at 126.)
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adjudicated dependent with DHS supervision and in-home services.5 (Notes
of testimony, 7/10/15 at 100, 110, 117.)
After Mother was observed under the influence, on January 9, 2013,
DHS obtained Orders of Protective Custody for the Children. (DHS Exhibit 2;
notes of testimony, 7/10/15 at 105-106.) On January 11, 2013, the court
then committed the Children to DHS custody and placed them in foster
care.6 (DHS Exhibit 2; notes of testimony, 7/10/15 at 105-108.) On
March 20, 2013, the court again adjudicated the Children dependent. (DHS
Exhibit 2.)
Father’s FSP objectives included drug and alcohol treatment, domestic
violence counseling, parenting classes, appropriate housing, and visitation
with the Children. (Notes of testimony, 8/5/14 at 29, 50; 7/10/15 at 122,
125.)
In March of 2014, the case was transferred to Turning Points for
Children, a Community Umbrella Agency (“CUA”). (Notes of testimony,
8/5/14 at 16; 7/10/15 at 12.) Prior to transfer, in March 2014, DHS
changed the Children’s permanency goal with regard to the FSP to adoption.
(Notes of testimony, 8/5/14 at 25-29, 43-45.)
5
Father and Mother appealed this determination at Pennsylvania Superior
Court Docket Nos. 321 EDA 2013 and 322 EDA 2013, respectively. These
appeals were ultimately dismissed on May 23, 2013 for failure to file a brief.
6
The Children are currently placed together in kinship care in a pre-adoptive
home. (Notes of testimony, 7/10/15 at 28, 34.)
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The trial court held permanency review hearings in this matter on
June 20, 2013, October 15, 2013, and January 14, 2014. Throughout these
reviews, the trial court maintained the Children’s commitment, placement,
and permanency goal.
On April 30, 2014, DHS filed petitions to involuntarily terminate
parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and
(b), and to change the Children’s permanency goal to adoption pursuant to
42 Pa.C.S.A. § 6351. The court then conducted combined termination and
goal change hearings on August 5, 2014, July 10, 2015, and August 13,
2015. Mother and Father each testified on their own behalf. Additionally,
the court heard from the following witnesses: Markey Mosley, former DHS
social worker; Alimata Doumbia, case manager and supervisor, Turning
Points for Children; Craig Minus, DHS social worker; Dr. Erica Williams,
psychologist, Assessment & Treatment Alternatives, Inc.;7 Devon Jacques,
case manager, Turning Points for Children; Devonnae Grasty, visitation
coach, Turning Points for Children; Cipriana Arias, permanency specialist,
Turning Points for Children; and Christina Tavares, child advocate social
worker.
7
Dr. Williams conducted a parenting evaluation as to Mother and issued a
related report dated July 3, 2014, and marked DHS Exhibit 27. (Notes of
testimony, 7/10/15 at 130. See DHS Exhibit 27.) She therefore offered
testimony as to Mother only. (Notes of testimony, 7/10/15 at 128-155.)
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On November 4, 2015, following the submission of written closing
argument, the trial court entered decrees involuntarily terminating Father’s
parental rights to the Children and orders changing the permanency goal to
adoption. Thereafter, on December 3, 2015, Father, through appointed
counsel, filed timely notices of appeal, along with concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),
which this court consolidated sua sponte on January 12, 2016.
On appeal, Father raises the following issues for review:
1. Whether the Trial Court erred by terminating
the parental rights of Appellant, Father, under
23 Pa.C.S.A. § 2511 subsections
(a)(1),(a)(2),(a)(5) and § 2511(a)(8)?
2. Whether the Trial Court erred by finding, under
23 Pa.C.S.A. § 2511(b), that termination of
Appellant’s parental rights best serves the
child’s developmental, physical and emotional
needs and welfare?
Father’s brief, at 4.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental
rights cases requires appellate courts “to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record.”
In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817,
826 (Pa. 2012). “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. “[A] decision may be reversed for
an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice,
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bias, or ill-will.” Id. The trial court’s decision,
however, should not be reversed merely because the
record would support a different result. Id. at 827.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re
R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to
believe all, part, or none of the evidence presented and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
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
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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
have defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8), as well as (b).8
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 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380,
384 (Pa.Super. 2004) (en banc). Here, we analyze the court’s termination
pursuant to Sections 2511(a)(2) 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:
....
8
We note that Father argues that Sections 2511(a)(5) and (8) are not
applicable as the Children were “removed from only Mother’s home and were
never in the care of the Father.” (Father’s brief, at 13-14.) As we review
and uphold the court’s termination under Section 2511(a)(2), we need not
address this issue.
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(2) The repeated and continued
incapacity, abuse, neglect or
refusal of the parent has caused
the child to be without essential
parental care, control or
subsistence necessary for his
physical or mental well-being and
the conditions and causes of the
incapacity, abuse, neglect or
refusal cannot or will not be
remedied by the parent.
....
(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(a)(2), (b).
We first examine the court’s termination of Father’s parental rights
under Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
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well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002).
In finding evidence establishing grounds under Section 2511(a)(2), as
well as (a)(5) and (a)(8), the trial court explained:
This Court found clear and convincing evidence
to terminate Father’s parental rights pursuant to
Sections 2511(a)(2),(5) and (8). The evidence
supports this Court’s finding that Father lacked the
capacity to provide a stable and safe living
environment for the Children. Father failed to obtain
employment, suitable housing, was inconsistent with
mental health treatment and continued to display
anger problems. Furthermore Father continued to
maintain a relationship with Mother, an active drug
user, despite the existence of severe domestic
violence problems. Although certificates were
presented as evidence that Father had addressed his
objectives, this Court found that the fact that Father
was able to obtain certain certificates did not equate
with his being in a position to parent the Children.
Father blamed the system for his current
circumstance and took no accountability for his
behavior. In addition, the Court found it was in the
Children’s best interests to terminate Father’s rights
because the Children, were doing well in their
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pre-adoptive home, under the care of their foster
parents who were meeting all of their needs.
Trial court opinion, 3/22/16 at 11-12 (citations to record omitted).
Father, however, argues that he completed his FSP objectives, which
included drug and alcohol treatment, mental health treatment, domestic
violence classes, and visitation with the Children. (Father’s brief, at 11-12.)
Father also notes testimony that his younger son was returned to his care
and custody. (Id. at 12.) As a result, Father therefore avers that he “does
not believe that DHS proved by clear and convincing evidence that a
continued incapacity remains and that there are any barriers to reunification
with his Children.” (Id.)
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2). Testimony was presented that
Father’s current living accommodations were not appropriate for
reunification with the Children, nor were his prior accommodations. (Notes
of testimony, 7/10/15 at 49-51, 171-174.) Significantly, Father was residing
in a one-bedroom apartment with his brother, thereby leaving the Children
without their own room. (Id. at 171-172.) Alimata Doumbia, Turning Points
for Children case manager and supervisor, indicated, “Father was informed
that the Children needed to have their own room, their own living space.”
(Id. at 51.)
Also of concern was the volatile nature of Mother and Father’s
relationship and the fact that they remained in a relationship. (Id. at 178,
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197-198, 202, 206-207.) On this topic, Devon Jacques, Turning Points for
Children case manager, testified to trepidation related to ongoing domestic
violence. (Id. at 206-207.)
Q. Mr. Jacques, obviously, you have concerns
about the relationship between [M]other and
[F]ather? You’ve been on this case for four
months, correct?
A. Close to five months.
Q. Close to five months. When you got the case
[M]other and [F]ather were engaged to be
married?
A. Around that time, yes.
Q. And then they broke up for some period of
time?
A. Yes.
Q. And now they’re back together?
A. Yes.
Q. Would you say they have a volatile
relationship?
A. I would.
Q. Now, you said you did not observe any
violence between [M]other and [F]ather, but
you said it was verified. Can you explain what
you mean?
A. Meaning [F]ather and [M]other had an
incident. Family was aware of it but the police
were not called.
Q. And based on the history you have concerns
that the domestic violence is ongoing?
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A. Yes.
Q. Why does that concern you for reunification
purposes?
A. It conflicts with the stability of the [C]hildren.
Q. Stability that they have with [K.H.] and that
family?
A. Yes.
Id. at 206-207. Likewise, despite certification of completion of classes,
Father continued to display signs of anger management issues, lashing out
at various case workers involved with this matter, creating an apprehension
as to whether Father could control his anger in the presence of the Children.
(Notes of testimony, 8/5/14 at 34, 38; 7/10/15 at 26, 58-59, 68; 8/13/15 at
41-44.)
In addition, those who supervised Father’s visits with the Children
reported that Father had problems controlling the Children during visitation,
resulting in his walking out of a visit on one occasion and holding a child
down on the ground in another. (Notes of testimony, 8/13/15 at 11-14, 19-
20.) Father additionally missed visitation with the Children, missing 10 of
32 visits. (Id. at 177-178.) Relatedly, Mr. Jacques testified that Father
frequently scheduled appointments during the time he was supposed to have
visitation. (Id. at 181-182.) Hence, the record substantiates the conclusion
that Father’s repeated and continued incapacity, abuse, neglect, or refusal
has caused the Children to be without essential parental control or
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subsistence necessary for their physical and mental well-being. See In re
Adoption of M.E.P., 825 A.2d at 1272. Moreover, Father cannot or will not
remedy this situation. See id.
We next determine whether termination was proper under
Section 2511(b). With regard to Section 2511(b), our supreme court has
stated as follows:
[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.
In re K.M., 53 A.3d at 791. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “[I]n 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) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
In examining Section 2511(b), the trial court stated:
The Children who were four (4) years and five
(5) years old were living in the same pre-adoptive
foster home in kinship care with [K.H.], Mother’s
cousin, and her husband where all of their daily
needs were being met. Ms. Doumbia testified that
the child, J.R.F., was attending school regularly and
had a great bond with the kinship parents.
Ms. Doumbia testified that the child, Z.F., was
receiving services thru [sic] Elwyn and had a parent-
child relationship with the foster parents who
provided her with a loving home where she was
happy. Ms. Tavares testified that she observed the
Children in the foster home and described them as
happy and talkative, fighting to get her attention so
that they could show her pictures of what they had
done as a family. Additionally, Ms. Doumbia testified
that, in her opinion, the Children would not suffer
any irreparable harm if Father’s parental rights were
to be terminated. This was based upon
Ms. Doumbia’s opinion that there was no parent-
child bond between the Children and Father together
with the fact that all of the Children’s daily needs
were being provided by the kinship foster parents
whom with [sic] the Children are happy. This
opinion was corroborated by Mr. Jacques who agreed
that the Children would not suffer any irreparable
harm if Father’s parental rights were to be
terminated. Mr. Jacques strongly believed that the
Children would suffer irreparable harm if they were
to be removed from the care of their kinship foster
parents. Mr. Jacques added that the Children are
bonded with their kinship foster parents where they
feel safe, comfortable and secure. Mr. Jacques noted
that the Children have a loving relationship with the
kinship foster parents who are meeting all of their
emotional and individual needs. This Court also
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heard testimony from Devonnae Grasty, a visitation
coach from Turning Points for Children. Ms. Grasty
testified that the Children don’t respect Father nor do
they identify him as a Father figure. According to
Ms. Grasty, there was no parent-child bond between
the Children and Father. Finally, Mr. Mosley[9]
testified that, in his opinion, it would be in the
Children’s best interest for their goal to be changed
to adoption.
Trial court opinion, 3/22/16 at 12-13 (citations to record omitted).
Father argues that the Children are bonded to him and that
termination of his parental rights would be detrimental to their well-being.
(Father’s brief, at 16.) Moreover, Father again indicates that DHS did not
meet their burden. (Id.) Father points to testimony that his visits with the
Children were “consistent” and “appropriate” and that the Children were
“happy” when they saw Father. (Id. at 15, 16.) Likewise, Father notes
testimony of those in support of unsupervised visitation. (Id. at 16.)
Here, the record likewise corroborates the trial court’s termination
order pursuant to Section 2511(b). Initially, we note that the Children are in
pre-adoptive homes. (Notes of testimony, 7/10/15 at 28, 34.) While Father
had visitation with the Children, this visitation remained supervised due to
concerns related to Father’s relationship with Mother. (Id. at 8, 197-198,
202, 206-207.)
9
The court incorrectly refers to Ms. Mosley as Mr. Mosely. This error did not
affect this court’s analysis.
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Further, as highlighted by the trial court, Alimata Doumbia, Turning
Points for Children case manager and supervisor, testified to her opinion that
the Children would not suffer irreparable harm if Father’s parental rights
were terminated, noting the lack of a parent-child bond between Father and
the Children, and the relationship between the Children and their kinship
provider. (Notes of testimony, 7/10/15 at 57, 61-62.) As Ms. Doumbia
indicated:
From the visits that I have observed with them, it’s
not a parent child relationship from my observation
that I’ve seen with them. The Children are getting
their daily needs met through the kinship provider.
They look to the kinship provider as the support, as
the safety. They’re happy of where they’re at right
now. . . .
Id. at 57. She further testified:
Q. Do you believe that there is a parent child
bond with [Father]?
A. In whom?
Q. In [Z.F.]?
A. [Z.F.], parent child, no.
Q. Why not?
A. Again, from my observation during the visit,
it’s more a playtime. [Z.F.] does not listen. At
times, he would have difficulty redirecting her.
And I guess, just from my observations
between the two visits at the kinship home and
father and [Z.F.], it was a big difference. So
that’s why I would say that.
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Q. And as far as [J.R.F.] and [Father] is there a
parent child bond?
A. Again, no, with the same testimony as with the
differences from my observations with the
kinship provider and the visits that I have
observed.
Q. And based on that you believe there would be
no irreparable harm if rights were terminated?
A. No.
Id. at 61-62.
Devonnae Grasty, Turning Points for Children visitation coach, who
supervised visits between Father and the Children, echoed the opinion of the
lack of a parent-child bond between Father and the Children, noting a lack of
respect of Father on the part of the Children. (Notes of testimony, 7/10/15
at 217-218.) “It appears to me that they don’t respect him, the way they
talk back and the way that they, you know, try to hit him and things like
that.” (Id.) Ms. Grasty contrasted this to the way the Children interact with
their kinship provider. (Id. at 218.)
Importantly, Devon Jacques, Turning Points for Children case
manager, and Christina Tavares, child advocate social worker, further
emphasized the positive, stable relationship between the Children and their
kinship provider. (Notes of testimony, 7/10/15 at 184-187; 8/13/15 at 33-
34.) As noted by the trial court, Mr. Jacques even indicated his belief that
the Children would conversely suffer emotional harm if separated from their
kinship provider due to the existence of a bond and the security they are
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afforded. (Notes of testimony, 7/10/15 at 184-187.) Further, having met
the Children in 2012, Ms. Tavares testified to the positive impact of this
relationship on the Children. (Notes of testimony, 8/13/15 at 33-34.) Thus,
as confirmed by the record, the emotional needs and welfare of the Children
favor termination. Accordingly, based upon our review of the record, we find
no abuse of discretion and conclude that the trial court appropriately
terminated Father’s parental rights under 23 Pa.C.S.A. §§ 2511(a)(2) and
(b).
Based on the foregoing analysis of the trial court’s termination of
Father’s parental rights and change of the Children’s permanency goal, we
affirm the decrees and orders of the trial court.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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