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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: C.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.S., BIOLOGICAL :
MOTHER :
:
:
: No. 1256 MDA 2018
Appeal from the Decree Entered July 10, 2018
In the Court of Common Pleas of Lackawanna County Orphans' Court at
No(s): A-17 of 2018
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED: JANUARY 17, 2019
J.S. (“Mother”) appeals from the order dated June 27, 2018, and
entered on July 10, 2018, in the Court of Common Pleas of Lackawanna
County, that granted the petition of the Lackawanna County Office of Youth
and Family Services (“OYFS”), and involuntarily terminated her parental rights
to her son, C.S.1 After careful review, we affirm.
C.S. was born in December of 2015. OYFS became involved with the
family in February of 2017 when it received a referral regarding bruises on
C.S.’s face. N.T., 5/17/18, at 15. Further investigation revealed multiple
bruises on C.S.’s cheeks, eyelids, forearm, ears, and the bridge of his nose.
Id. Additionally, C.S. had multiple broken bones in different stages of healing,
including fractures to his left arm, right leg, and skull. Id. at 15. Mother,
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1 The birth father, A.P., relinquished his parental rights voluntarily.
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who suffers from an undisclosed intellectual disability, had no explanation for
C.S.’s injuries. Id. at 16. Pursuant to a shelter care order dated February
27, 2017, the court granted OYFS legal and physical custody of C.S. The order
anticipated that C.S. would be placed in foster care upon his release from the
hospital. On May 11, 2017, the court entered an order adjudicating C.S.
dependent.
As a result of C.S.’s injuries, Mother was charged with endangering the
welfare of children, simple assault, and recklessly endangering another
person. N.T., 5/17/18, at 17. On July 24, 2017, Mother entered a plea of
nolo contendere to the charge of simple assault, acknowledging that she would
not contest that she “did attempt to cause or did intentionally, knowingly, or
recklessly cause bodily injury to C.S., a then 14-month-old male. Specifically
[Mother] did cause injuries, including facial bruises and bone fractures.” N.T.,
Plea Hearing, 7/24/17, at 3.
OYFS implemented a family service plan (“FSP”) that required Mother to
obtain a mental health evaluation and comply with all recommendations,
stabilize her mental health, engage in intellectual disability services, complete
an evaluation with Advocacy Alliance to identify support services,
appropriately respond to C.S., both emotionally and physically, participate in
a safe care program and a mothers group, and apply the parenting skills
learned. N.T., 5/17/18, at 27-28. Mother obtained full compliance with the
FSP. Id. at 33. However, her progress toward reunification was minimal due
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to her inability to apply the skills learned through the services that were
provided. Id. at 33-34.
On April 25, 2018, OYFS filed a petition to involuntarily terminate
Mother’s parental rights to C.S. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5)
and (8) and § 2511(b). The trial court conducted hearings on the petition on
May 17, 2018 and June 27, 2018. C.S. was represented by Attorney Kevin
O’Hara, who acted as his guardian ad litem (“GAL”) throughout the
dependency proceedings.2 OYFS presented the testimony of Urica Carver,
OYFS caseworker; Lisa Kanavy, OYFS visitation supervisor; Stefanie
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2 In In re T.S., 192 A.3d 1080 (Pa. 2018), our Supreme Court reiterated that
23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court continued that a guardian ad litem who is an attorney
may act as legal counsel pursuant to § 2313(a) as long as the dual roles do
not create a conflict between the child’s legal interest, which is synonymous
with his preferred outcome, and his best interests. In addressing a potential
conflict in that case, the High Court concluded that the trial court did not err
in allowing the guardian ad litem to act as the sole representative during the
involuntary termination of parental rights proceeding because the children,
ages two and three, respectively, were incapable of expressing their preferred
outcome. The Court reasoned,
[I]f the preferred outcome of the child is incapable of
ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his
or her best interests; as such, the mandate of Section 2313(a) of
the Adoption Act that counsel be appointed ‘to represent the child,’
23 Pa.C.S. § 2313(a), is satisfied where the court has appointed
an attorney-[GAL] who represents the child’s best interests during
such proceedings.
Id. at 1093-94. Given that C.S. was two years old at the time of the hearing
in the case at bar, we discern no conflict between his legal interest and best
interests.
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Calachino, intellectual disabilities support coordinator for Wayne County
Behavioral and Developmental Program; and Patrick Quinn, director of
program operations at The Arc of Northeastern Pennsylvania. Mother,
represented by counsel, testified on her own behalf. Further, Mother
presented the testimony of Tamara Fisher, Mother’s habilitation specialist
through Holcombe Behavioral Health System. On July 10, 2018, the trial court
entered an order involuntarily terminating Mother’s parental rights to C.S.
Thereafter, on July 27, 2018, Mother filed a notice of appeal, along with
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i).
Mother raises the following issues for our review:
A. Whether the trial court erred as a matter of law and/or
manifestly abused its discretion in determining the agency
sustained its burden of proving the termination of Mother’s
parental rights is warranted under Sections 2511(a)(1),
2511(a)(2), 2511(a)(5) and/or 2511(a)(8) of the Adoption Act?
B. Even if this Court concludes the agency established
statutory grounds for the termination of Mother’s parental rights,
whether the trial court nevertheless erred as a matter of law
and/or manifestly abused its discretion in determining the agency
sustained its additional burden of proving the termination of
Mother’s parental rights is in the best interests of the child?
Mother’s brief at 5.
We review these claims mindful of our well-settled standard of review:
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
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or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 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 order did not identify the sections of the
Adoption Act under which it terminated Mother’s parental rights. However,
the court’s opinion and on-the-record statements from the bench confirm that
it terminated Mother’s parental rights pursuant to § 2511(a)(2) and (b). This
Court may affirm the trial court’s decision regarding the termination of
parental rights with regard to any one subsection of § 2511(a) as well as
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§ 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
The relevant sections provide:
§ 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:
....
(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. § 2511(a)(2) and (b).
Our Supreme Court set forth our inquiry under § 2511(a)(2) as follows:
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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
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and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.” . . .
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based upon
parental incapacity. The legislature, however, in enacting the
1970 Adoption Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit as one who
refuses to perform the duties.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).
This Court has long recognized 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 addressing § 2511(a), the trial court observed that Mother engaged
in the services provided by OYFS. Trial Court Opinion, 8/2/18, at 2. However,
it found Mother did not demonstrate that she gained any skills from the
services. Id. The court concluded Mother was unable to care for C.S.’s basic
and medical needs, or to provide for his safety. Id. Additionally, at the
conclusion of the hearing, the court noted, “[M]other, I think, maybe is at a
point where she could take care of herself more independently, but I’m sure
she can’t take care of a child.” N.T., 6/27/18, at 213.
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Mother asserts the trial court erred because OYFS did not explore the
extent of Mother’s intellectual disabilities, her limitations, or available
programming to assist Mother. Mother’s brief at 21. Mother argues that OYFS
should have undertaken a psychological evaluation of Mother to identify her
limitations. Id. at 22. Mother faults OYFS for concluding that Mother did not
make enough progress when it had insufficient information about her
limitations. Id. She contends that she progressed towards independence
with the assistance of the supports available to her. Id. at 22-23.
Accordingly, Mother argues the court erred in concluding that the causes of
her parental incapacity, abuse, neglect or refusal cannot or will not be
remedied. Id. at 23.
The record supports the trial court’s conclusion that OYFS established,
by clear and convincing evidence that Mother suffers from a parental
incapacity that she cannot or will not remedy. C.S. came into OYFS’s care as
a result of physical abuse, i.e., multiple bruises, broken bones in different
stages of healing, and a lack of any immediate explanation for those injuries
from Mother. N.T., 5/17/18, at 15-16. Later, Mother proffered a variety of
explanations for the injuries, including asserting C.S. returned from his
maternal grandparents’ home injured, that 14-month-old C.S. tripped and fell
playing cops and robbers, that he fell on his own, or that she fell while holding
him. Id. at 22-23, N.T., 6/27/18, at 105, 163. However, the medical records
belied these alternative scenarios. C.S.’s doctor at Geisinger opined that
C.S.’s arm was fractured by a twisting motion and his leg and clavicle were
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fractured by forced trauma. N.T., 5/17/18, at 21. While the causes of the rib
and head fractures could not be determined, Mother ultimately entered a plea
of nolo contendere to simple assault. Id.at 17, 21.
During the hearing, Ms. Carver, the OYFS caseworker assigned to the
family, testified that Mother was fully compliant with her FSP goals,
participated in the required courses, took the initiative to enroll herself in
additional programs for parenting, CPR, and fire safety. Id. at 32-33, 55-56.
However, Mother’s progression stalled because she was unable to apply the
skills she learned. Id. at 33-34.
As it relates to safety concerns in Mother’s home, Ms. Carver indicated
that Mother did not recognize common hazards. When Mother moved to a
new home, Ms. Carver observed that Mother had open heaters, the stairs were
not blocked off, and electrical plugs were not covered. Id. at 34. The
conditions remained for several months until Ms. Carver finally requested that
Mother fix the issues. Id. at 63. Mother complied, but only because she was
told to, not because she understood the risks. Id. at 34-35, 64. Ms. Carver
also confirmed that Mother did not progress to unsupervised visits because of
concerns about C.S.’s safety and her ability to care for C.S. Id. at 25-26.
Ms. Carver opined that Mother would need 24-hour supervision to care
for C.S. and could not independently care for him in the near future due to
the safety concerns. Id. at 38, 61. Ms. Carver did not believe that additional
time would help because safety and supervision were the primary concerns
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and Mother’s ability to provide safety and supervision did not improve despite
the services offered. Id. at 68-69. For example, during the period that C.S.
was convalescing from the non-accidental injuries that are the genesis of
OYFS’s involvement with the family, Mother never thought to inquire about
his recovery. Id. at 24.
Lisa Kanavy, a visitation supervisor for OYFS, testified that Mother
attended every visit and brought appropriate meals. N.T., 6/27/18, at 20-21,
33. However, visits did not progress beyond line-of-sight because of safety
concerns. Id. at 19. Mother would place C.S. in a highchair and ignore him
while she went to the kitchen to make lunch. Id. at 20. Further, a recurring
issue was Mother’s failure to cut food up so it was small enough that C.S.
could not choke on it. Id. at 20-21. Additionally, Mother would not
immediately follow C.S. when he left the room. Id. at 19. Ms. Kanavy
recounted an incident where, after getting changed, C.S. was crawling on the
floor of the bathroom, left the room, entered the kitchen, and retrieved a toy
before Mother could get to him. Id. at 35.
Ms. Kanavy sought to teach Mother about health and safety issues. One
of the barriers was that Mother never acknowledged that C.S.’s injuries were
serious, asserting that broken bones and bruises did not constitute serious
injuries. Id. at 9-10, 16-17. Further, Mother did not believe that keeping
C.S. safe was her role, claiming her responsibility was to provide shelter, food,
and clothing. Id. at 17, 42. Ms. Kanavy taught the course on safe care, which
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included three modules, safety, health, and parent-child interaction, followed
by a test. Id. at 12. Ms. Kanavy acknowledged that she has not taught
another individual with an intellectual disability, id. at 77, but she was aware
of Mother’s status and attempted to assist Mother by explaining concepts to
her from different points of view. Id. at 40-41. Additionally, the test following
the first module was adjusted to account for Mother’s intellectual disability by
explaining questions in more detail and allowing Mother to ask questions. Id.
at 45. Mother failed the first test and, after additional education, failed it
again. Id. at 13. Mother answered 30% of the safe care questions correctly.
Id. at 44. A score of 70% is considered a passing score. Id. at 68. Because
Mother could not pass the first module, they did not pursue the other modules.
Id. at 15. Ms. Kanavy testified that OYFS would not return C.S. to Mother’s
care without Mother successfully completing all three modules. Id.
The foregoing evidence of record confirms that Mother did not make
sufficient progress toward reunification.3 C.S. came into care as a result of
serious injuries that occurred while he was in Mother’s care. Despite receiving
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3 Mother complains that, to the extent that her progress was insufficient, it
was the result of OYFS’s failure to employ reasonable efforts toward
reunification in light of her intellectual disability. We disagree. The record
supports OYFS’s efforts to account for Mother’s disability. Moreover, even if
it did not, an agency’s failure to provide reasonable efforts is not a basis for
denying a petition to terminate parental rights. See In re D.C.D., 105 A.3d
662, 676 (Pa. 2014) (“Superior Court erred in reversing the trial court's
termination of Father's parental rights as a result of CYS's failure to provide
reasonable efforts to enable Father to reunify with Child”).
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services for over a year, Mother still could not provide safety for C.S., even in
a supervised setting. The testimony of Ms. Carver and Ms. Kanavy confirms
that Mother’s repeated and continued incapacity, abuse, neglect or refusal
caused C.S. to be without essential parental care, control or subsistence
necessary for his physical or mental well-being. Further, the causes of
Mother’s incapacity, abuse, neglect or refusal cannot or will not be remedied.
Accordingly, we discern no abuse of discretion by the trial court in terminating
Mother’s parental rights pursuant to § 2511(a)(2).
We next determine whether termination was proper under § 2511(b).
This Court has stated that the focus in terminating parental rights under
§ 2511(a) is on the parent, but it is on the child pursuant to § 2511(b). See
In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).
In reviewing the evidence in support of termination under § 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, [§] 2511(b) does not require a formal bonding evaluation.”
In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal citations
omitted). Although it is often wise to have a bonding evaluation and make it
part of the certified record, “[t]here are some instances . . . where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa.Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this
analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa.Super. 2008) (internal citations and
quotation marks omitted).
Thus, the court may emphasize the safety needs of the child. See In
re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental
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rights, despite existence of some bond, where placement with mother would
be contrary to child’s best interests). “[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).
With respect to § 2511(b), Mother argues that termination did not meet
C.S.’s needs and welfare. Mother’s brief at 23. Mother highlights her own
testimony, as well as that of Ms. Fisher, to assert there is a bond between
Mother and C.S. Id. at 24. Further, Mother faults OYFS for failing to account
for her intellectual limitations. Id. at 25.
The record supports the trial court’s conclusion that termination of
Mother’s parental rights best meets C.S.’s needs and welfare. Ms. Carver, the
OYFS caseworker, testified that C.S. has been in his foster home for 14
months. N.T., 5/17/18, at 67. C.S. has his needs met by his foster parents
and the family loves and cares for each other. Id. Ms. Carver observed C.S.
playing and laughing with his foster parents and described them as very
nurturing. Id. at 35, 66. Ms. Carver opined that it is in C.S.’s best interest
for Mother’s parental rights to be terminated. Id. at 67. Similarly, Ms.
Kanavy, the OYFS visit supervisor, opined that Mother is bonded to C.S., but
she did not believe that C.S. is bonded to Mother. N.T., 6/27/18, at 61. Ms.
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Kanavy observed C.S. call Mother “mommy,” but C.S. also referred to case
aides as “mommy.” Id. at 30. She acknowledged C.S., at times, seeks
comfort from Mother during visits, but she did not see C.S. run to Mother as
she would expect if C.S. was bonded to Mother. Id. at 31. Ms. Kanavy opined
it was in C.S.’s best interest to establish permanency with his foster parents.4
Id. at 34.
Here, the trial court credited OYFS’s evidence and concluded termination
of Mother’s parental rights best serves C.S.’s developmental, physical and
emotional needs and welfare. The record confirms that C.S. resides in a loving
home, with foster parents that Mother acknowledges are doing a good job
raising C.S. The trial court noted C.S. “has bonded with his foster parents
rather than with Mother.” Trial Court Opinion, 8/2/18, at 2. While Mother
may profess to love C.S., a parent’s own feelings of love and affection for a
child, alone, will not preclude termination of parental rights. In re Z.P., 994
A.2d at 1121. As we stated, a child’s life “simply cannot be put on hold in the
hope that [a parent] will summon the ability to handle the responsibilities of
parenting.” Id. at 1125. Rather, “a parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and fulfillment
of his or her potential in a permanent, healthy, safe environment.” In re B.,
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4Mother acknowledged that the foster parents are “wonderful people” and
have done a good job raising C.S. N.T., 6/27/18, at 191.
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N.M., 856 A.2d at 856 (citation omitted). Upon our review of the record, we
discern no abuse of discretion in the trial court’s conclusion that terminating
Mother’s parental right serves C.S.’s developmental, physical and emotional
needs and welfare pursuant to § 2511(b).
Accordingly, for all of the foregoing reasons, we find that the record
sustains the trial court's determination that OYFS established the statutory
grounds to terminate Mother’s parental rights pursuant to § 2511(a)(2) and
confirms that terminating Mother’s parental rights best satisfies C.S.’s
developmental, physical, and emotional needs and welfare under § 2511(b).
Thus, we affirm the trial court order terminating Mother’s parental rights to
C.S. pursuant to § 2511(a) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2019
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