J-S47043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: J.G., FATHER : No. 462 MDA 2019
Appeal from the Order Entered March 1, 2019
in the Court of Common Pleas of Montour County
Civil Division at No(s): 2017-00048
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2019
J.G. (“Father”) appeals from the Order granting the Petition filed by the
Montour County Children and Youth Services (“CYS” or the “Agency”), seeking
to involuntarily terminate Father’s parental rights to his minor female child,
R.G. (born in June 2002) (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(1), (5), (8), and (b).1 We affirm.
On December 12, 2018, CYS filed a Petition seeking involuntary
termination of Father’s parental rights to Children. The trial court conducted
____________________________________________
1 We note that the trial court also terminated the parental rights of K.H.,
Child’s mother (“Mother”), who is not a party to the instant appeal. Child has
a younger sister, W.G. (born in August 2004), who is Father’s daughter with
Mother (collectively, R.G. and W.G. are referred to as “the Children”).
Although the trial court also terminated Father’s rights to W.G., Father has
not challenged that termination Order.
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an evidentiary hearing on the Petition in February 2019.2 At the start of the
hearing, Father’s counsel requested a continuance, because Father was
awaiting a decision regarding his Social Security Disability. The trial court
denied counsel’s request. Subsequently, in its Pa.R.A.P. 1925(a) Opinion, the
trial court set forth the following Findings of Fact:
3. Because of lack of supervision and lack of cleanliness, the
[C]hildren were placed with [their] maternal grandmother on April
26, 2016, with a safety plan. Dependency was established [on]
May 14, 2015. The [C]hildren returned to Mother’s home on
August 5, 2015, but returned to the foster care [placement on]
September 16, 2015. They were returned home [on] February
12, 2015. But [the Children] were finally returned to foster care
[on] May 5, 2016, where they have remained until the present.
4. After a goal change hearing, the goal for the [C]hildren was
changed to adoption on April 5, 2017. A [P]etition for termination
of parental rights was filed [on] November 27, 2017. However,
that [P]etition was withdrawn because of Father’s jury acquittal
on serious criminal charges for which he spent two years in jail.
… The [A]gency wanted to give Father more time to establish
himself with a job and housing.
….
6. Father and Mother separated in about 2008. Mother had
custody of [the Children]. In 2009, [CYS] asked Father to take
the [C]hildren because of issues with Mother’s parenting. [Father]
had custody until early 2013. During much of that time he was
____________________________________________
2 At the hearing, Child’s legal interests were represented by John McDanel,
Esquire (“Attorney McDanel”), and Child’s best interests were represented by
her guardian ad litem (“GAL”), Michael Wintersteen, Esquire. See In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality) (requiring the
appointment of separate legal counsel to represent the legal interest of a child
involved in a contested involuntary termination proceeding). Relevantly,
Attorney McDanel testified that Child was unable to communicate her
preferred outcome because she has Down Syndrome. See N.T., 2/25/19, at
96.
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living with a girlfriend [] and her children. [Father subsequently]
moved out in 2013[,] and moved in with Mother and her husband
and her children.
7. Father went to jail in May 2013 for theft of a vehicle. He spent
20 months in jail until January 2015. During that time[, Father]
lost his Social Security Disability[,] which he had been receiving
for a broken heel bone, PTSD, depression and [a] bi-polar
condition. During this time, Mother received a [Protection From
Abuse Order] against Father and received custody of the
[C]hildren.
8. In May 2015, Father was arrested and jailed for a sexual assault
crime. He remained in jail until July 2017[,] when he was released
after a jury found him not guilty.
9. When Father was released from jail, a permanency plan was
put in effect. Per the plan, [Father] needed to maintain housing;
have verifiable income; secure transportation; cooperate with
Justice Works; and maintain contact with the [C]hildren. Father
cooperated with Justice Works. He maintained contact and visits
with [Child]. He had some transportation through a public van
service but recently discontinued it because he could not pay the
minimal fee.
10. As to income, [Father] continues to wait and see if his Social
Security income will be approved. He filed an application upon
release from prison in July 2017. Because of the bureaucracy and
typical delays, [Father] is still waiting for a decision on a hearing
that was held in December 2018. However, [Father’s] efforts to
earn income within his abilities have been minimal to non-
existent. He has had no income.
11. As to housing, Father’s efforts have been fruitless. He had
been denied the right to live with the [C]hildren [in the residence
of his girlfriend,] since she had a felony child endangerment
conviction on her record. [Father] lived with [his girlfriend] for
over a year[,] until about early December 2018. [Father] was
then homeless, squatting in an abandoned or empty building. He
was arrested for assault and/or harassment and/or trespass in
Sunbury, Pennsylvania, on or about February 4, 2019. [Father]
stated at the time that he was homeless. At the time of the
termination hearing, he remained in prison in lieu of $75,000.00
bail.
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12. Father continues to use [illicit] marijuana. He indicates that
if he had more money, he would qualify for medical marijuana.
[Father] said the marijuana helps him, and he intends to continue
using [it].
13. The [C]hildren are doing well in their now longtime foster
home. The foster parents intend to adopt the [C]hildren if there
is a termination of parental rights. The [C]hildren are healthy,
happy, and maturing age[-]appropriately. [Children] both have
stability and tranquility in their lives[,] for possibly the first time.
They are thriving in school and very comfortable.
….
15. [Child] is a pleasant and affable child. She has Down
Syndrome and a heart condition and tubes in her ears[,] all of
which need[] medical attention. She also requires speech
therapy. [Child’s] foster parents have been meeting her needs.
16. The [A]gency made reasonable efforts to assist Mother and
Father in their efforts to provide reunification and to help Mother
and Father remedy the conditions that led to removal.
17. At the time of the hearing, the [C]hildren had been in the care
of the [A]gency for over 22 months. Father has not had custody
of the [C]hildren for almost four [y]ears. Shortly before those
four years, he had been in jail for vehicle theft for 20 months.
18. [Child] has been removed from Father’s care by the court for
a period of at least six months[;] [] the conditions that led to the
removal and placement of the [C]hildren continue to exist[;] and
Mother and Father cannot practically remedy these conditions
within a reasonable period of time.
19. The services or assistance available to Father are not likely to
remedy the conditions which led to the removal or placement
with[in] a reasonable period of time.
20. It is in the best interest of [Child] that parental rights be
terminated because termination would best serve the
developmental, physical, and emotional needs and welfare of the
[C]hildren.
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21. [Child] has been removed from the Father by the court[;] []
more than 12 months have elapsed from the removal and
placement[;] [] the conditions which led to the removal continue
to exist[;] and termination of parental rights would best serve the
needs and welfare of the [C]hildren.
22. The GAL and [Attorney McDanel] agree that termination of
parental rights is supported by the facts and the law and is in the
[C]hild’s best interests.
23. The [CYS] witness was credible.
Trial Court Opinion, 5/7/19, at 3-5.
On March 1, 2019, the trial court entered an Order terminating Father’s
parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (5), (8), and
(b). Father timely 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) and (b).3
In his brief on appeal, Father raises the following issues:
A. Did the [trial court] commit an error of law and abuse [its]
discretion when it determined the burden of clear and convincing
evidence was met in terminating the parental rights of [Father]
pursuant to 23 Pa.C.S.[A] § 2511 et. [sic] seq.?
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3 On May 22, 2019, this Court issued a Rule to Show Cause why Father’s
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018) (requiring separate notices of appeal from a single
order resolving issues on more than one docket). Father filed a Response,
explaining that the dependency docket number was included only for
reference, and that Father’s appeal raises exclusively from the termination
proceeding. This Court discharged the Rule to Show Cause on May 31, 2019.
Upon review, we conclude that under the unique circumstances of this case,
where each of Father’s claims arise from only one docket number and one
proceeding, there is no jurisdictional impediment to our review under Walker.
We therefore decline to quash Father’s appeal on this basis.
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B. Did the [trial court] commit an abuse of discretion and an error
of law when it determined that Father could not or would not
remedy those conditions within a reasonable period of time
pursuant to 23 Pa.C.S.[A.] § 2511 et. [sic] seq.?
C. Did the [trial court] commit an error of law when it determined
that the conditions that lead [sic] to the removal or placement of
the [C]hild continue to exist and termination of parental rights
would best serve the needs and welfare of the [C]hild (23
Pa.C.S.[A.] § 2511(a)(5)[)], when Father’s incomplete goal,
having income and/or employment, is currently pending a Social
Security decision?
D. Did the [trial court] commit an error of law and abuse of
discretion when it determined that the conditions that lead [sic]
to the removal or placement of the [C]hild continue to exist and
termination of [Father’s] parental rights would best serve the
needs and welfare of the [C]hild (23 Pa.C.S.[A.] § 2511(a)(8)[)],
when Father’s incomplete goal of acquiring a residence relied on
Father’s Social Security appeal decision?
E. Did the [trial court] commit an error of law and abuse [its]
discretion when it denied Father’s request to continue the
Termination of Parental Rights hearing until receiving the result of
Father’s pending Social Security [a]ppeal decision?
Father’s Brief at 4-5.4
We will address Father’s first four issues together, as they each allege
that the trial court abused its discretion in terminating his parental rights to
Child. See id. at 18-33. Father claims that CYS did not cite any concerns for
Child’s safety or well-being. Id. at 18. Father also points out that he had
completed three of his goals, and had attempted to overcome the barriers to
____________________________________________
4Because we have already addressed the propriety of Father’s appeal under
Walker, we will not separately address the issue identified as “Issue F” in
Father’s Brief.
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completion of the remaining two goals (i.e., securing acceptable housing, and
achieving financial stability). Id. at 18-19, 26, 30, 32. According to Father,
he “only requires the decision from Social Security to obtain income and
housing.” Id. at 29; see also id. at 30, 32. Additionally, Father
acknowledges his marijuana use, but argues that CYS failed to present
evidence that his use of marijuana renders him unable to parent, or that he
uses drugs in the presence of Child. Id. at 21.
In reviewing an appeal from an order terminating parental rights, we
adhere 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. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
[U]nlike 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. 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.
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In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of 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. (citation and
quotation marks omitted).
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), along
with consideration of subsection 2511(b). See In re B.L.W., 843 A.2d 380,
384 (Pa. Super. 2004) (en banc). We will consider section 2511(a)(8) 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) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
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***
(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)(8), (b).
Parental rights may be terminated pursuant to Section 2511(a)(8) if
“(1) the child has been removed from the care of the parent for at least twelve
months; (2) the conditions that led to the removal or placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009).
“As this Court has repeatedly indicated, termination under subsection (a)(8)
does not require an evaluation of [a parent’s] willingness or ability to remedy
the conditions that led to placement of [the] children.” Id. (emphasis in
original; citation omitted). Instead, subsection (a)(8) “requires only that the
conditions continue to exist, not an evaluation of parental willingness or ability
to remedy them.” Id. (citation and quotation marks omitted).
Therefore, the relevant questions are whether the parent has remedied
the conditions that led to the removal of the child and whether the child’s
reunification with that parent is imminent at the time of the termination
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hearing. See id.; see also In re Adoption of R.J.S., 901 A.2d 502, 512
(Pa. Super. 2006) (concluding that termination under section 2511(a)(8) was
appropriate where the mother was not in a position to parent her children at
the time of the termination hearing). “If a parent fails to cooperate or appears
incapable of benefiting from the reasonable efforts supplied over a realistic
period of time, CYS has fulfilled its mandate and[,] upon proof of satisfaction
of the reasonable good faith effort, the termination petition may be granted.”
In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003) (citation, quotation marks,
and brackets omitted). As we have previously stated,
[w]e recognize that the application of [subsection] (a)(8) may
seem harsh when the parent has begun to make progress toward
resolving the problems that had led to removal of [his] children.
By allowing for termination when the conditions that led to
removal continue to exist after a year, the statute implicitly
recognizes that a child’s life cannot be held in abeyance while the
parent is unable to perform the actions necessary to assume
parenting responsibilities. This 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.
Indeed, we work under statutory and case law that contemplates
only a short period of time, to wit eighteen months, in which to
complete the process of either reunification or adoption for a child
who has been placed in foster care.
In re I.J., 972 A.2d at 11 (emphasis in original; citation omitted).
The focus in terminating parental rights under section 2511(a) is on the
parent, but, pursuant to section 2511(b), it is on the child. In re Adoption
of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008). With regard to section
2511(b), this Court has stated,
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[o]nce the statutory requirement for involuntary termination of
parental rights has been established under subsection (a), the
court must consider whether the child’s needs and welfare will be
met by termination pursuant to subsection (b). In this context,
the court must take into account whether a bond exists between
child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted); see
also In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (stating that “[t]he emotional
needs and welfare of the child have been properly interpreted to include
intangibles such as love, comfort, security, and stability.” (citation, quotation
marks, and brackets omitted)). When evaluating a parental bond, “the court
is not required to use expert testimony. Social workers and caseworkers can
offer evaluations as well. Additionally, section 2511(b) does not require a
formal bonding evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations
omitted).
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.
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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 753, 763 (Pa. Super. 2008) (affirming
involuntary termination of parental 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 his or her
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., N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
Here, with regard to section 2511(a)(8) and (b), the trial court stated
as follows:
Father primarily argues that he could not secure housing or
financial stability until his Social Security [appeal] was decided.
He argues that as soon as he receives what he believes will be a
positive outcome to his Social Security case, he can adequately
support [Child]. “Parental rights may not be preserved by waiting
for some more suitable financial circumstances or convenient time
for the performance of parental duties and responsibilities.
Further, parental duty requires that the parent not yield to every
problem, but must act affirmatively, with good faith interest and
effort, to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances.” In the Interest
of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations
omitted).
In this case, the court has expressed sympathy with Father
for losing custody when he was arrested, jailed, and acquitted two
years later. The first termination [P]etition was withdrawn to give
Father more time to get himself in a position to raise [the
C]hildren. His efforts were minimal at best. He chafed at finding
housing other than with his questionable girlfriend[,] who
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eventually split with him. He sought not to be employed,
preferring to wait for Social Security. He could have worked at
least part-time. [Father] continued to use drugs[,] and stubbornly
said he would continue to do so. All of this was bracketed by a
twenty[-]month jail stint for vehicle theft[,] and a subsequent
[Protection From Abuse Order] in 2013-2015[,] and the recent
February 2019 incarceration at the time of the hearing, while he
was homeless. He has had some tough breaks in a system that
can aggravate troubles. But[,] most of his difficulties have been
self-inflicted.
….
… Father has not complied with the [service and
permanency] plans and has not met [C]hild’s needs. Finally, over
twenty-two months (actually almost four years) prior to the filing
of the [P]etition have elapsed from the date of [C]hild’s removal
and placement, [] the conditions which led to their removal
persist, and termination of parental rights would best serve the
needs and welfare of [C]hild.
[Section] 2511(b) provides that “[t]he court in terminating
the rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” Not only has Father failed to perform parental duties for
[Child] [s]ince July 2017, (and before), [but also] there is no
indication that he will be able to do so in the near future. It is not
in the best interest of [C]hild to deny her permanency, stability,
comfort, and hopes.
Trial Court Opinion, 5/7/19, at 7-10.
Here, the trial court appropriately considered that (1) Child has been
removed from the care of Father for at least twelve months; (2) the conditions
that led to the removal or placement of Child continue to exist; and (3)
termination of parental rights would best serve Child’s needs and welfare. In
re I.J., 972 A.2d at 11; In re C.L.G., 956 A.2d at 1005. The trial court
additionally considered that, because of Father’s neglect, any bond that Child
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has with Father must be severed for the well-being of Child. See In re:
T.S.M., 71 A.3d at 270-71 (concluding that severing the children’s bond with
their mother and the termination of the mother’s parental rights best served
the children’s needs and welfare). After a careful review of the record, this
Court finds competent, clear and convincing evidence in the record to support
the trial court’s decision to terminate the parental rights of Father. In re
Adoption of S.P., 47 A.3d at 826-27. Thus, we find no abuse of discretion
in the trial court’s termination of Father’s parental rights to Child.
In his fifth issue, Father asserts that the trial court abused its discretion
by denying his request for a continuance. Father’s Brief at 33. According to
Father, the outcome of the Social Security proceedings would determine his
ability to complete his remaining permanency goals (i.e., obtaining income
and housing). Id. at 34.
Initially, we note that Father failed to adequately develop this argument
with citation to relevant case law. See Pa.R.A.P. 2119(a) (stating that the
argument shall include “such discussion and citation of authorities as are
deemed pertinent.”). While we could deem Father’s issue waived on this
basis, we decline to do so. In any event, Father’s claim does not entitle him
to relief.
We adhere to the following standard of review:
Because a trial court has broad discretion regarding whether a
request for continuance should be granted, we will not disturb its
decision absent an apparent abuse of that discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
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the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias, or ill-
will.
In re J.K., 825 A.2d 1277, 1280 (Pa. Super. 2003) (citations omitted).
The trial court adequately explained its reasoning in denying Father’s
request for a continuance while he litigates his appeal of the denial of his
request for Social Security income. See N.T., 2/25/19, at 5-6; Trial Court
Opinion, 5/7/19, at 7-10. Although Father may profess to love Child, this
Court has generally stated that a parent’s own feelings of love and affection
for a child, alone, will not preclude termination of parental rights. In re L.M.,
923 A.2d 505, 512 (Pa. Super. 2007). “[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.” In re Z.S.W., 946 A.2d 726, 733 (Pa. Super.
2008) (citation and quotation marks omitted). Therefore, Father is not
entitled to relief on this claim.
Based upon the foregoing, we affirm the Order terminating Father’s
parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/05/2019
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