In the Interest of: L.E.B., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.E.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: F.E.K., MOTHER :
:
:
:
: No. 1769 MDA 2017

Appeal from the Order Entered October 27, 2017
In the Court of Common Pleas of Cumberland County
Juvenile Division at No(s): CP-21-DP-0000028-2016

IN THE INTEREST OF: L.E.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: F.E.K., MOTHER :
:
:
:
: No. 1780 MDA 2017

Appeal from the Decree October 20, 2017
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 106 Adoptions 2017

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.: FILED APRIL 27, 2018

F.E.K. (“Mother”) appeals from the decree entered October 20, 2017,1

in the Court of Common Pleas of Cumberland County, which involuntarily

____________________________________________

1 The trial court entered a separate decree that same day, terminating the
parental rights of Child’s father, A.E.B. A.E.B. did not appeal the termination
of his parental rights, nor did he file a brief in connection with the instant
appeal.
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terminated her parental rights to her minor daughter, L.E.B. (“Child”), born in

September 2007. Mother also appeals from the order dated October 20, 2017,

entered October 27, 2017, which changed Child’s permanency goal from

return to parent or guardian to adoption.2 In addition, Mother’s counsel has

filed petitions to withdraw and briefs pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After careful review, we grant counsel’s petitions to withdraw and

affirm the decree and order.

The record reveals that Cumberland County Children and Youth Services

(“CYS”) became involved with Child in January 2016, due to Mother’s erratic

behavior and failure to provide appropriate supervision. On January 16, 2016,

Mother called for an ambulance, claiming that Child was sick. Master’s

Recommendation for Shelter Care (Findings/Orders), 2/16/2016, at 2. When

the ambulance arrived, Mother required that the paramedics assess Child

outside, and refused to let them into her home. Id. On January 29, 2016,

police officers discovered Child alone at a Rent-A-Center. Id. The officers

were initially unable to locate Mother and return Child to her care. Id. Finally,

on February 2, 2016, police officers discovered Mother “attempting to flag

____________________________________________

2 Because Mother’s appeals arise from the same set of facts and involve similar
issues, we have consolidated them for disposition.

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down a car to drive her to Philadelphia.”3 Id. A shelter care hearing took

place before a master on February 4, 2016. The trial court adopted the

master’s recommendation and entered a shelter care order on February 16,

2016. The court adjudicated Child dependent on February 23, 2016.

On June 20, 2017, CYS filed a petition to change Child’s permanency

goal from return to parent or guardian to adoption. On September 21, 2017,

CYS filed a petition to involuntarily terminate Mother’s parental rights to Child.

The trial court conducted a combined goal change and termination hearing on

October 20, 2017.4 That same day, the court entered a decree terminating

Mother’s parental rights. However, the order changing Child’s permanency

goal was not entered on the docket until October 27, 2017. Mother timely

filed notices of appeal on November 17, 2017, along with concise statements

of errors complained of on appeal. In Mother’s concise statements, her

counsel indicated his intent to file petitions to withdraw and Anders briefs.

Mother’s counsel filed petitions to withdraw and Anders briefs in this Court

on February 11, 2018.5
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3 The date of Mother’s attempt to hitchhike to Philadelphia is not included in
the master’s recommendation for shelter care, but appears in several
pleadings throughout the record. CYS also included a police report resulting
from this incident as part of an exhibit during the goal change and termination
hearing.

4 Child had the benefit of both legal counsel and a guardian ad litem during
the hearing.

5 While Mother’s counsel filed a separate petition to withdraw and Anders
brief at each appeal, his filings are identical.

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Before reaching the merits of Mother’s appeal, we first must address

counsel’s petitions to withdraw. See Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005) (“‘When faced with a purported Anders brief, this

Court may not review the merits of the underlying issues without first passing

on the request to withdraw.’”) (quoting Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)). This Court extended the Anders procedure

to appeals from decrees involuntarily terminating parental rights in In re V.E.,

611 A.2d 1267 (Pa. Super. 1992). To withdraw pursuant to Anders, counsel

must:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)). With respect to the third requirement of Anders, that counsel inform

the appellant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “attach to their petition to withdraw a copy of the

letter sent to their client advising him or her of their rights.” Commonwealth

v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Additionally, an Anders brief must comply with the following

requirements:

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(1) provide a summary of the procedural history and facts, with
citations to the record;

(2) refer to anything in the record that counsel believes arguably
supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

In the instant matter, counsel filed petitions to withdraw, certifying that

he reviewed the case and determined that Mother’s appeal is frivolous.

Counsel also filed briefs, which include a summary of the history and facts of

the case, potential issues that could arguably support the appeal, and

counsel’s assessment of why those issues are meritless, with citations to the

record and relevant legal authority. Counsel attached to his briefs a copy of

his letter to Mother, advising her that she may obtain new counsel or raise

additional issues pro se. Accordingly, counsel has complied with the

requirements of Anders and Santiago, and we may proceed to review the

issues outlined in his Anders briefs. We must also “conduct an independent

review of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (footnote omitted).

Counsel’s Anders briefs raise the following issues for our review.

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1. Did the trial court abuse its discretion and commit an error of
law when it found that the child’s permanent placement goal of
reunification was neither appropriate, nor feasible and ordered a
goal change to adoption, thus contravening section 6351(f) of the
Juvenile Act, 42 Pa.C.S.[A.] § 6351(f)?

2. Did the trial court abuse it discretion and commit an error of
law when it found that sufficient grounds existed for a termination
of [Mother’s] parental rights in the child, thus contravening
sections 2511(a) and 2511(b) of the Adoption Act, 23 Pa.C.S. §§
2511(a) & 2511(b)?

Anders briefs at 4 (suggested answers omitted).

We first consider whether the orphans’ court abused its discretion by

changing Child’s permanency goal to adoption. We apply the following

standard of review.

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

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

The Juvenile Act governs proceedings to change a child’s permanency

goal. See 42 Pa.C.S.A. §§ 6301-6375. Trial courts must apply the following

analysis when considering a goal change petition.

Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child might

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be achieved; (6) the child’s safety; and (7) whether the child has
been in placement for at least fifteen of the last twenty-two
months. The best interests of the child, and not the interests of
the parent, must guide the trial court. As this Court has held, a
child’s life simply cannot be put on hold in the hope that the parent
will summon the ability to handle the responsibilities of parenting.

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

marks omitted).

In this case, the trial court found that Child has been in placement for

twenty months, and that Mother remains unable to provide the care necessary

for her mental and emotional well-being.6 Trial Court Opinion, 1/12/2018, at

4. The court emphasized that Child is afraid of Mother, despite intensive

therapy. Id. In addition, the court found that little, if any, bond exists

between Child and Mother. Id. at 5. The court found that Child has a bond

with her pre-adoptive foster parents, and that the love and support of the

foster parents will enable Child to overcome any adverse effects resulting from

the severance of her relationship with Mother. Id.

Mother argues that the trial court abused its discretion and committed

an error of law, because she complied with her Family Service Plan (FSP)

goals. Anders briefs at 12. Mother contends that she obtained mental health

treatment, participated in parenting instruction, and visited Child. Id. Mother

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6In its opinion, the trial court focused its analysis on its decision to terminate
Mother’s parental rights. While the court did not separately discuss its
decision to change Child’s permanency goal to adoption, we find that its
analysis of the evidence supporting termination also supports the goal change.

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further argues that the court failed to consider whether CYS made reasonable

efforts to finalize Child’s permanency plan pursuant to 42 Pa.C.S.A. §

6351(f)(5.1). Id. Mother contends that she is a Muslim, but that CYS placed

Child in a Christian foster home. Id. Mother maintains that placing Child in

a Christian foster home alienated her from her religious and cultural roots,

and impaired Mother’s ability to establish a bond. Id. at 12-13.

After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion. During the hearing, CYS presented

the testimony of caseworker, Debra Zervanos. Ms. Zervanos testified that

Mother is compliant with her FSP goals. N.T., 10/20/2017, at 46, 48. Mother

attends parenting instruction and mental health counseling, and participates

in visits with Child. Id. at 48-49. However, Ms. Zervanos testified that Child

should not return to Mother’s care, because she is afraid of Mother and has

no bond with her. Id. at 49. She explained, “She was getting herself so

anxious prior to visits she wasn’t sleeping. She was waking up with night

terrors. There was one incident following a visit where she urinated herself.”

Id. at 50-51. Child receives therapy in order to address these issues. Id. at

51.

CYS also presented the testimony of Mother’s parenting instructor and

visitation supervisor, Lee Marriot, of Alternative Behavior Consultants. Ms.

Marriot testified that Mother did not progress in her parenting instruction, due

to her failure to interact with Child during visits. Id. at 33. Ms. Marriot

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recalled that she would often need to prompt Mother in order for her to speak

to Child. Id. at 34-35. She explained, “[f]or a two-hour visit, there was less

than twelve minutes, less than ten minutes, less than eight minutes of

conversation . . . . It was common to have ten, fifteen, twenty, twenty-five

minute periods of silence . . . .” Id. at 35, 78. Ms. Marriot described a typical

visit at Mother’s home as follows.

Typically, mom would be on the couch and unengaged and
rocking and looking at the television and [Child] would be carrying
on a conversation with me and wanting to play with her dolls or
do her homework, take long periods of time to get all of her
homework done so that she could avoid interacting. That’s what
I typically saw for a long time.

***

. . . . Mom was always happy to see [Child] and always greeted
her in a happy way. [Child] would rush past her, not wanting to
be hugged or kissed, and she usually had something good cooking
and [Child] would say, [“]What did you make[?”]

[Child] would do her homework with [the television
program] Ellen on. It was hard for [Mother] to understand
homework, so she would ask me for assistance with it. They
would eat a meal together quietly and then [Child] would get some
toys out to play with. That was like a typical type of visit.

Id. at 42-43.

In addition, CYS presented the testimony of Noretta Kime, Psy.D. clinical

psychology.7 Dr. Kime testified that she conducted an evaluation of Child’s

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7 We take the spelling of Dr. Kime’s last name from her bonding evaluation
report. It is misspelled “Keim” in the transcript of the goal change and
termination hearing.

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bond with her foster mother, D.W., and with Mother. Id. at 6. She concluded

that Child has a parental bond with D.W., and that removing Child from her

care would be “very detrimental.” Id. at 6-7. She concluded that Child has

only a tenuous bond with Mother. Id. The trial court questioned Dr. Kime as

follows.

THE COURT: And what about if I would sever the
relationship between [Child] and her mom? How would that affect
her well-being?

[Dr. Kime]: Based upon what I’ve been able to observe at
the interview and evaluation and understanding bonding, it would
be much less than it would be to sever that parental kind of
relationship that [Child] has with [D.W.] that she has developed
over this time.

THE COURT: You say it would be much less, but you can’t
say that there would be no effect?

[Dr. Kime]: I can’t say there wouldn’t be no effect, [sic] but
it would be much, much greater and more detrimental to her well-
being to sever that relationship between [Child] and [D.W.]
because she’s, [D.W.] is the parental figure in her life.

THE COURT: Any detrimental effect suffered by [Child] in
terminating the bond with her mother, would she be able to
overcome that with the assistance of [D.W.]?

[Dr. Kime]: Yes, I do believe so.

Id. at 7.

Thus, the record confirms that it would be in Child’s best interest to

change her permanency goal from reunification to adoption. Child’s primary

bond is with her pre-adoptive foster mother, D.W., and removing Child from

D.W.’s care would be very detrimental for her. While Mother is compliant with

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her FSP goals, she fails to engage and interact with Child during visits.

Moreover, Child is fearful of Mother, and visiting with Mother causes Child

significant emotional distress. Child’s bond with Mother is tenuous, and

severing that bond would not cause Child irreparable harm.

In reaching this conclusion, we reject Mother’s claim that CYS impaired

her ability to establish a bond by placing Child in a Christian foster home. The

record reveals that Mother alone is responsible for her and Child’s strained

relationship. As discussed above, Mother often goes for anywhere from ten

to twenty-five minutes during visits without even attempting to speak with

Child.

Accordingly, our independent review of Mother’s claim demonstrates

that it does not entitle her to relief. Moreover, our review of the record does

not reveal any non-frivolous issues overlooked by counsel. See Flowers, 113

A.3d at 1250. We therefore grant counsel’s petition to withdraw as to the goal

change, and we affirm the trial court’s order.

We next consider whether the trial court abused its discretion by

terminating Mother’s parental rights to Child involuntarily. We do so mindful

of the following.

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

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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, 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 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).

In this case, the trial court terminated Mother’s parental rights pursuant

to Sections 2511(a)(1), (2), (5), (8), and (b). We need only agree with the

court as to any one subsection of Section 2511(a), as well as Section 2511(b),

in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s

decision to terminate under Section 2511(a)(2) and (b), which provides as

follows.

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(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:

***

(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 address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to 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 well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.

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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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).

Instantly, Mother argues that the trial court abused its discretion

because she complied with her FSP goals and did everything that CYS asked

her to do. Anders briefs at 14. Mother further argues that the court

disregarded her attempts to bond with Child, as well as Child’s “stubborn

resistance to [M]other’s patient efforts toward engagement.” Id.

We conclude that Mother is not entitled to relief. After thorough review

of the testimony of caseworker, Debra Zervanos; parenting instructor and

visitation supervisor, Lee Marriot, of Alternative Behavioral Consultants; and

psychologist, Noretta Kime, Psy.D. clinical psychology; as discussed

previously, we find the record supports the trial court’s finding that Mother is

incapable of parenting Child, and that Mother cannot or will not remedy her

parental incapacity. Mother rarely interacts with Child unless Ms. Marriot

prompts her to do so. Moreover, Mother has failed to develop a bond with

Child, and Child is now fearful of her. By the time of the termination hearing

in this matter, Child had been in placement for twenty months. Child is in

need of permanence and stability, and it is clear that Mother will not be able

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to provide her with either within a reasonable time. As this Court has stated,

“a child’s life cannot be held in abeyance while a parent attempts to attain the

maturity necessary to assume parenting responsibilities. The 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

Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

Finally, we consider whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b).

Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.

[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted).

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Here, Mother argues that placing Child in a Christian foster home will

have a lifelong detrimental effect on her, by alienating her from her religious

and cultural roots. Anders briefs at 15. Mother refers this Court to the

testimony of Imam Mahmoud F. Jawhar, who testified as an expert witness on

“the practice of Islamic culture in Islamic families.” N.T., 10/20/2017, at 20.

He testified that placing a Muslim child in a non-Muslim foster home would

reduce the likelihood that the child goes on to be a practicing Muslim later in

life, and may leave them confused about their religious identity. Id. at 25-

31.

Mother is not entitled to relief. As discussed during our analysis of the

trial court’s goal change order, Noretta Kime, Psy.D. clinical psychology,

conducted a bonding evaluation of Child and Mother. Dr. Kime observed that

CYS attempted to promote Child’s bond with Mother, by providing her with

assistance from Lee Marriot and Alternative Behavior Consultants. N.T.,

10/20/2017, at 13. Despite this assistance, Dr. Kime concluded that Child

has only a tenuous bond with Mother, and that severing that bond would have

little, if any, effect. Id. at 6-7. Dr. Kime further concluded that Child has a

parental bond with her foster mother, D.W., and that removing Child from

D.W.’s care would be very detrimental for her. Id. Thus, it is clear that

terminating Mother’s parental rights would best serve Child’s needs and

welfare.

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Additionally, the record belies Mother’s argument that Child will suffer

adverse religious or cultural consequences. Dr. Kime testified that Mother

“didn’t really speak about any kind of religious practices” during her bonding

evaluation. N.T., 10/20/2017, at 9. Similarly, Ms. Marriot testified that she

never observed Mother engage in any religious practices with Child during

their visits. Id. at 41. Mother would sometimes pray during visits, but would

do so alone in her bedroom, and would not ask Child to join her. Id. D.W.

testified that she attempted to accommodate Child’s religious background by

offering her the opportunity to attend a mosque. Id. at 59. Child did not

want to attend. Id.

Once again, our independent review of Mother’s claim demonstrates that

it does not entitle her to relief. Moreover, our review of the record does not

reveal any non-frivolous issues overlooked by counsel. See Flowers, 113

A.3d at 1250. We therefore grant counsel’s petition to withdraw as to the

termination of parental rights, and we affirm trial court’s order and decree.

Order affirmed. Decree affirmed. Petitions to withdraw granted.

Judge Kunselman joins in this decision.

President Judge Gantman concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/27/18

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