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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: H.R.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: B.P. AND J.B., PARENTS :
:
:
:
: No. 1096 MDA 2023
Appeal from the Decree Entered July 6, 2023
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-9399
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 09, 2024
Appellants, B.P. (“Mother”) and J.B. (“Father”) (collectively “Parents”)
appeal from the July 6, 2023 decrees, entered in the Court of Common Pleas
of Luzerne County, terminating their parental rights to their daughter, H.R.B.
(“Child”), born in January 2015, pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5),
(8), and (b). We affirm.
In January 2020, Parents brought Child to the Hazleton City Police
Department after she alleged that her older half-brother, D.B., sexually
abused her. Notes of Testimony (“N.T.”), 2/28/2023, at 20, 23. At that time,
officers put the case on hold to evaluate five-year-old Child. As the officers
were not confident that Child was competent in making these allegations,
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* Former Justice specially assigned to the Superior Court.
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Child was released to Parents’ care, but the family was placed under CYS
supervision. Id. at 18-19, 24.1 Thereafter, Luzerne County Children and Youth
Services (“CYS”) implemented a safety plan that required Parents to supervise
any contact between Child and D.B. Id. at 52.
On March 4, 2020, CYS received another referral alleging that Child was
sexually abused by D.B. again. Id. at 37. Child was removed from Parents’
home and, in April 2021, placed in the care of her maternal uncle and aunt
(“Kinship Mother”), where Child has remained. Id. at 4, 37. Thereafter, Child
began therapy and was diagnosed with unspecified trauma and stressor
related disorder, ADHD, and confirmed child sexual abuse. Id. at 30. Further,
at the time of her placement with Kinship Mother, Child was behind
educationally at six years old and had to repeat kindergarten. Id. at 5.
Following Child’s removal, Parents were charged with endangering the
welfare of a child. Id. at 19. CYS developed a permanency plan requiring
Parents to attend a parenting course, participate in mental health services,
attend supervised visitation and participate in family counseling with Child.
Id. at 38-39. Parents mostly completed these services.2 Id. at 39. However,
Parents continued to deny Child’s allegations of abuse. Id. at 41.
____________________________________________
1 Detective Corporal Brett Naprava shared that her concern that Child was not
competent in her allegations, pointing to Child’s statement that she believed
the characters from Paw Patrol cartoon were real. N.T. at 18-19.
2 Parents participated in visits with Child approximately three times per week.
N.T. at 5-6. However, in September 2021, the juvenile court discontinued the
(Footnote Continued Next Page)
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On October 3, 2022, CYS filed petitions for the involuntary termination
of Parents’ parental rights to Child pursuant to 23 Pa.C.S.A § 2511(a)(1), (2),
(5), (8), and (b). The orphans’ court conducted an evidentiary hearing on
February 6, 2023, when Child was eight years old.3 CYS presented the
testimony of Kinship Mother; Corporal Brett Naprava, detective with the
Hazleton City Police Department; Theresa Sears, clinical program manager for
KidsPeace and Child’s therapy provider; Sherri Hartman, CYS caseworker;
Jessica Timek, CYS supervisor; and Rose Kelly, court appointed special
advocate (“CASA”). Parents were represented by counsel but did not testify.
By decrees entered on July 7, 2023, the orphans’ court involuntarily
terminated Parents’ parental rights to Child pursuant to 23 Pa.C.S.A §
2511(a)(2), (5), (8), and (b). Parents filed a timely notice of appeal along with
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).4 In response, the orphans’ court filed its Rule 1925(a)
opinion on September 1, 2023.
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visitation in light of the criminal court’s order proceedings that, as best we can
discern, prohibited contact between Parents and Child. Id. at 11.
3 On October 3, 2023, the orphans’ court appointed Corbett Price Law, LLC,
as Child’s legal counsel and guardian ad litem (“GAL”). The certified record
confirms that the Child’s legal and best interests do not conflict. See N.T. at
31, 42, 63, 70-72; see also 23 Pa.C.S.A. § 2313(a); In re K.M.G., 240 A.3d
1218, 1238 (Pa. 2020) (holding appellate courts should engage in “limited sua
sponte review” concerning a child’s statutory right to counsel in the
termination context).
4 Filing a single notice of appeal from multiple orders is discouraged. General
Electric Credit Corporation v. Aetna Casualty and Surety Company, 263
(Footnote Continued Next Page)
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On appeal, Parents raise the following issues:
1. Whether the court erred and/or abused its discretion in
terminating Parents’ parental rights with respect to 23 Pa.C.S.A
§ 2511(a) of the Adoption Act?
2. Whether the court erred and/or abused its discretion in
terminating Parents’ parental rights with respect to 23
Pa.C.S.A. § 2511(b) of the Adoption Act?
Parents’ Brief at 5 (cleaned up).
Our standard of review in this context is well-settled:
In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the
decree of the termination court is supported by competent
evidence. When applying this standard, the appellate court must
accept the orphans’ court’s findings of fact and credibility
determinations if they are supported by the record. Where the
orphans’ court’s factual findings are supported by the evidence,
an appellate court may not disturb the orphans’ court’s ruling
unless it has discerned an error of law or abuse of discretion.
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A.2d 448 (Pa. 1970) (one appeal from several judgments is discouraged as
unacceptable practice and Supreme Court has quashed such appeals where
no meaningful choice between them could be made). However, our Supreme
Court has held in K.H. v. J.R., 826 A.2d 863 (Pa. 2003):
Where a party specifies a particular part of a judgment or order in
their notice of appeal, appellate review may nevertheless be
extended to orders not identified in the notice of appeal if the
specified and unspecified orders are connected, the intention to
appeal the unspecified order is apparent, and the opposing party
has not suffered prejudice and has had an opportunity to brief the
issues.
Id. at 871. Instantly, the court terminated Parents’ parental rights to Child
by separate decrees, but Parents filed only one notice of appeal. However,
the notice of appeal demonstrates Parents’ intention to appeal both decrees.
In addition, no party has asserted any prejudice as a result of Parents filing
a single notice of appeal and each had an opportunity to address the issue.
Thus, we observe no impediment to our appellate review of the case at bar.
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An abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion or the
facts could support an opposite result. Instead, an appellate court
may reverse for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-
will. This standard of review reflects the deference we pay to trial
courts, who often observe the parties first-hand across multiple
hearings.
In considering a petition to terminate parental rights, the orphans’
court must balance the parent’s fundamental right to make
decisions concerning the care, custody, and control of his or her
child with the child’s essential needs for a parent’s care,
protection, and support. Termination of parental rights has
significant and permanent consequences for both the parent and
child. As such, the law of this Commonwealth requires the moving
party to establish the statutory grounds by clear and convincing
evidence, which is evidence that is so clear, direct, weighty, and
convincing as to enable a trier of fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.
Interest of M.E., 283 A.3d 820, 829-30 (Pa.Super. 2022) (cleaned up).
The involuntary termination of parental rights is governed by Section
2511 of the Adoption Act, which calls for a bifurcated analysis that first focuses
upon the “eleven enumerated grounds” of parental conduct that may warrant
termination. Id. at 830; 23 Pa.C.S.A. § 2511(a)(1)-(11). If the orphans’ court
determines the petitioner has established grounds for termination under at
least one of these subsections by “clear and convincing evidence,” the court
then assesses the petition pursuant to Section 2511(b), which focuses upon
the child’s developmental, physical, and emotional needs and welfare. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). This Court need only agree with the
orphans’ court’s determination as to “any one subsection of [Section] 2511(a),
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in addition to [Section] 2511(b), in order to affirm the termination of parental
rights.” Id.
In the case sub judice, the orphans’ court terminated Parents’ parental
rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).
Instantly, we will analyze the court’s termination decrees pursuant to Section
2511(a)(8) and (b), which provide as follows:
(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.
....
(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).
In order to satisfy Section 2511(a)(8), the petitioner must prove that:
(1) the child has been removed from the parent’s care for at least 12 months;
(2) the conditions which led to the removal or placement still exist; and (3)
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termination of parental rights would best serve the needs and welfare of the
child. In re Adoption of J.N.M., 177 A.3d 937, 943 (Pa.Super. 2018).
Furthermore, termination pursuant to Section 2511(a)(8) does not require an
evaluation of a parent’s willingness or ability to remedy the conditions that led
to the removal or placement of the child. In re M.A.B., 166 A.3d 434, 446
(Pa.Super. 2017). Rather, our inquiry is focused upon whether the at-issue
“conditions” have been “remedied” such that “reunification of parent and child
is imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.Super.
2009). This Court has acknowledged:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her 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.
Id. at 11-12 (emphasis in original; internal citations omitted).
Finally, this Court has explained that,
while both Section 2511(a)(8) and Section 2511(b) direct us to
evaluate the “needs and welfare of the child,” we are required to
resolve the analysis relative to Section 2511(a)(8), prior to
addressing the “needs and welfare” of [the child], as proscribed
by Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc).
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Initially, it is undisputed that Child has been removed from Parents’ care
for the requisite twelve months. In concluding that CYS satisfied the second
prong of Section 2511(a)(8), the court emphasized Parents’ disbelief of Child’s
allegations against her older half-brother, as follows:
The conditions that led to [C]hild’s removal from [Parents’] care
and into placement were: [Child] being inappropriately touched
by her half-brother for the second time and [P]arents’ failure to
properly protect [C]hild by failing to properly supervise [C]hild’s
half-brother[]. Despite [P]arents engaging in services, [P]arents
failed to benefit from the services by still lacking the capacity to
emotionally protect [C]hild and make her feel safe. [P]arents
refused to believe that [C]hild was inappropriately touched by her
half-brother despite Father having the knowledge that his son
inappropriately touched his younger brother in the past.
The [c]ourt has performed the above extensive analysis in taking
testimony and finding credible evidence in concluding that
[Parents] did not benefit from the required services. Therefore,
the conditions that gave rise to placement continue to exist.
Orphans’ Court Opinion (“O.C.O.”), 9/1/2023, at 25.
Parents argue that the conditions for Child’s placement are unclear
because following Child’s initial allegations the police “did not believe there
was any reason for concern” and Child was not removed until after a
subsequent referral. Parents’ Brief at 16. Parents further contend that they
successfully completed all services and participated in almost all supervised
visits until the juvenile court discontinued visitation in September 2021, as
discussed above. Id. at 19. Parents posit that their inability to see Child
prevented them from demonstrating that they understood the circumstances
that led to Child’s removal. Id. at 19-20.
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Initially, Parents’ argument that the conditions leading to Child’s
removal are unclear is without merit. Following this assertion, Parents
proffered that “the circumstances that led to [Child’s] placement were the
allegations of abuse by a [half-]brother . . . .” Id. at 19. By their own
arguments and the certified record, it is clear that Parents were fully aware of
the circumstances that caused Child’s removal, i.e., Child’s allegations of
sexual abuse committed by her older half-brother. See N.T. at 39 (“[P]arents
had violated a safety plan that had been set up. They had allowed the half[-]
brother around [Child] after she disclosed that he was inappropriately
touching her”). Additionally, Detective Naprava emphasized that although the
criminal case was put on hold following Child’s initial allegations in January
2020, CYS began supervising the family and implemented a safety plan at that
time. Id. at 24.
Further, Parents’ argument that their completion of required services
resolved the conditions which led to removal is unavailing. Throughout Child’s
dependency, Parents have consistently stated that they did not believe Child
had been sexually abused by her half-brother. Kinship Mother testified that
she observed Child as she tried to engage Parents regarding what happened,
but Parents were unsupportive, as follows:
Q: And were there any concerns with the visits?
A: Yes.
Q: What were those concerns?
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A: As [Child] would engage with them in the visits in the
beginning, I slowly started seeing a deterioration as [Child] was
speaking more about the trauma that she endured before she
came to our house. Parental responses would be, especially from
[Mother], that that’s not nice to say. You’re making me cry.
[Mother was] unsupportive in her reaction to [Child’s]
explanations of what would happen to her during her trauma. She
wasn’t very supportive.
Q: So I’m going to ask you to be a little bit specific when you’re
talking about what [Child] was discussing. Can you tell the [c]ourt
what she was discussing at those times?
A: Yes. She was saying that [her half-brother] had touched her
inappropriately on two separate occasions, once in the bedroom,
once in the bathroom. And she was telling [Parents] how that
made her feel. And the responses weren’t supportive at all.
Q: Can you remember what the responses were?
A: You’re making me cry. That’s not nice to say.
Q: And who made those responses? Was it just [M]other or both
[P]arents?
A: [Mother]; [Father] wouldn’t say anything at all.
Id. at 6-7.
Ms. Hartman, CYS caseworker, reiterated that Parents’ inability to
believe Child presented ongoing safety concerns, as follows:
Q: So as we sit here today, what is the ongoing safety concern?
A: The ongoing safety concern is [P]arents’ lack of protective
capacity. Due to their lapse in judgment, there is an insufficient
protective capacity. [P]arents violated a safety plan, which was
designed to prevent contact between the siblings. That contact
[occurred] two times.
Q: And what are your concerns today? I understand the safety
plan had occurred and that was broken. What are your concerns
today?
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A: When I met with [P]arents, [they] stated that they do not
believe that the incidents occurred.
...
Q: Have [P]arents rectified the issues that led to [Child’s]
placement?
A: No.
Q: Why do you say that?
A: [C]hild -- even though -- [P]arents did parenting. They did
mental health services. The issue was the safety of [C]hild. And
[P]arents failed to keep [C]hild safe. [P]arents’ lack of accepting
what [Child] had to say still would place [her] at risk.
Q: Can you explain that a little bit more?
A: If [P]arents don’t believe that -- what [C]hild said, that she’s
been sexually abused, then if [C]hild went home, there is a high
risk of [it happening] again.
Id. at 39-40, 42.
Ms. Hartman further testified that Parents obtained a protection from
abuse (“PFA”) order against D.B., which included Child, in September 2021.
Id. at 44. However, Ms. Hartman proffered that Parents only obtained the PFA
after D.B. attacked Mother. Id. at 44-45 (“My understanding was that the PFA
was -- that it was more for [P]arents. When the referral had come in, [D.B.]
had attacked [Mother]. After that, she did go and get a PFA.”). Due to Parents’
ongoing insistence that Child was not sexually abused, Ms. Sears testified that
Child “express[ed] that she did not feel that [Parents] listened to her or
protected her or were able to keep her safe.” Id. at 31.
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The record is clear that although Parents participated in the required
services, they did not gain the insight required to protect or support Child.
The orphans’ court’s findings are well supported by the record, and we discern
no error regarding the second prong of Section 2511(a)(8).
Regarding the final prong of Section 2511(a)(8), Parents do not submit
any cohesive argument to challenge the orphans’ court’s determination that
termination of parental rights best serves the needs and welfare of the child.
Rather, Parents baldly state that they were unable to care for Child following
the cessation of visitations. Nevertheless, we will review the sufficiency of the
orphans’ court’s findings out of an abundance of caution.
In concluding that termination of Parents’ parental rights would best
serve the needs and welfare of Child, the orphans’ court relied on the
testimony of Ms. Kelly, Kinship Mother, Ms. Sears, and Ms. Hartman. Ms. Kelly
testified that, based upon her observations as Child’s CASA, it is in Child’s best
interest for Parents’ rights to be terminated. N.T. at 72-73. She further stated
that Child loves her kinship family, who are a pre-adoptive resource, and she
feels safe with them. Id. at 71.
Ms. Hartman reported that Child has explicitly expressed that she does
not desire further contact with Parents. Id. at 63 (“[Child] states that ... she
does not want to return to [Parents’] home; that she does not feel safe and
she is concerned that … she could possibly get hurt again in their home.”).
According to Ms. Hartman, Child has assimilated well with her kinship family
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who are extremely supportive of her. Id. at 60-61 (“She participates in family
activities with the immediate and extended family. There are family pictures
of her all over. … [T]hey let her decorate her own room. … They wanted [] to
make sure that she was part of the family.”).
Kinship Mother testified that although Child was behind in her
educational development when she was first placed with the family in April
2021, she has since caught up. Id. at 5. Additionally, although Child was
insecure and sad when she first arrived, Kinship Mother indicated that Child is
now outgoing, happy, and secure. Id. Further, Ms. Sears testified that Child’s
participation in therapy helped Child develop a consistent positive self-image,
taught Child how to form healthy attachments, and educated Child on how to
communicate clearly and regulate her emotions. Id. at 29. Overall, we
observe no abuse of discretion or error of law in the orphans’ court’s
conclusion that the third prong of Section 2511(a)(8) was satisfied.
Based on the foregoing, the orphans’ court was well within its discretion
to terminate Parents’ parental rights under Section 2511(a)(8) because Child
had been removed from their care in excess of the twelve-month statutory
minimum, the conditions which led to Child’s removal continue to exist, and
termination would best serve the needs and welfare of Child.
Having determined that there are sufficient grounds for termination
pursuant to at least one subsection of Section 2511(a), we now turn to Section
2511(b), which affords “primary consideration” to “the developmental,
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physical and emotional needs and welfare of the child.” 23 Pa.C.S.A. §
2511(b). In Interest of K.T., 296 A.3d 1085 (Pa. 2023), our High Court held:
a court conducting a Section 2511(b) analysis must consider
more than proof of an adverse or detrimental impact from
severance of the parental bond. We emphasize analysis of the
parental bond is but one part of the overall subsection (b)
analysis, which includes a determination of whether the bond is
necessary and beneficial to the child, i.e., whether maintaining the
bond serves the child’s developmental, physical, and emotional
needs and welfare.
Id. at 1113 (emphasis added). In addition, the K.T. Court held that the
“Section 2511(b) inquiry must also include consideration of other important
factors.” Id. While not inventing an exhaustive list of considerations, the Court
explained that the inquiry must consider and weigh certain evidence if it is
present in the record, including, but not limited to,
the child’s need for permanency and the length of time in foster
care consistent with 42 Pa.C.S.[A.] § 6351(f)(9); whether the
child is in a preadoptive home and bonded with foster parents;
and whether the foster home meets the child’s developmental,
physical, and emotional needs, including intangible needs of love,
comfort, security, safety, and stability.
Id. (footnote omitted). See also id. at n.28.
The evaluation of a child’s respective bonds is not always an easy task.
“In cases where there is no evidence of any bond between the parent and
child, it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008) (citation
omitted). Nevertheless, “the mere existence of a bond or attachment of a child
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to a parent will not necessarily result in the denial of a termination petition.”
T.S.M., supra at 267. The Court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. Specifically, we have observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
Parents argue that CYS failed to prove that severing Child’s bond with
Parents would not be detrimental for her. Parents’ Brief at 21-22. Parents
contend that they share a “strong and loving” bond with Child. Id. at 22.
Parents baldly assert that they did everything they could to ensure the safety
of Child. Id.
In determining that termination of Parents’ parental rights favors Child’s
needs and welfare under Section 2511(b), the orphans’ court reemphasized
its extensive findings related to Parents’ inability to believe Child’s allegations
and the kinship family’s secure and loving bond with Child. O.C.O., 9/1/2023,
at 26-27. We discern no error.
Primarily, other than Parents’ bald assertions, no real evidence was
presented that Parents and Child share a bond. Ms. Hartman testified that
Child does not share a bond with either Parent. Id. at 62-63. As related supra,
Child wants no contact with Parents and wants to stay with her pre-adoptive
kinship family, where she feels safe, secure, and loved. Id. at 60-63. Ms.
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Hartman testified on direct examination regarding the kinship family, as
follows:
Q: And who has been providing for Child’s physical needs?
A: [Kinship parents].
Q: How so?
A: They provide clothing, food, and shelter.
Q: And do they take her to doctors’ appointments?
A: They take her to doctors’ appointments, her medical. Up until
she was discharged from KidsPeace and Children’s Service Center,
they ensured that all of those appointments were kept as well.
Q: What about her developmental needs; who meets those?
A: [Kinship Mother] has spent a lot of time helping [Child] with
her developmental needs. She was a little behind. She didn’t know
her numbers. She didn’t know any of that. But she spent a lot of
time get her up to where she is at now.
She worked with her also on [learning] normal kids’ reactions,
normal kids’ behavior.
...
Q: Who’s meeting her emotional needs?
A: The kinship parents. They are very supportive of her. They
listen to her. They show her the affection she seeks. [Child] likes
to hug. She likes to cuddle. They’re always there for her no matter
what.
Id. at 61-62. Accordingly, the orphans’ court did not abuse its discretion in
determining that termination best serves the Child’s developmental, physical,
and emotional needs and welfare pursuant to Section 2511(b).
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Based on the foregoing, we affirm the orphans’ court’s decrees
involuntarily terminating Parents’ parental rights to Child pursuant to Section
2511(a)(8) and (b).
Decrees affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 02/09/2024
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