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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W.P., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.S., MOTHER : No. 3511 EDA 2015
Appeal from the Order, November 4, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-382382-2009,
CP-51-AP-0000204-2014, CP-51-DP-0002021-2011
IN THE INTEREST OF: Z.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.S., MOTHER : No. 3520 EDA 2015
Appeal from the Order, November 4, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-342382-2009,
CP-51-AP-0000203-2014, CP-51-DP-0002024-2011
IN THE INTEREST OF: J.R.F., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.S., MOTHER : No. 3522 EDA 2015
Appeal from the Order, November 4, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-382382-2009,
CP-51-AP-0000205-2014, CP-51-DP-0002022-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
* Former Justice specially assigned to the Superior Court.
J. S63014/16
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 28, 2016
S.S. (“Mother”) appeals from the decrees and orders entered
November 4, 2015, in the Court of Common Pleas of Philadelphia County,
Family Court Division, granting the petitions of the Philadelphia Department
of Human Services (“DHS”) and involuntarily terminating her parental rights
to her dependent children: T.W.P., Jr., born in December of 2005; J.R.F.,
born in March of 2010; and Z.F., born in April of 2011 (collectively, the
“Children”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b),
and changing the Children’s permanency goal to adoption pursuant to
42 Pa.C.S.A. § 6351.1 2 After review, we affirm.
We summarize the relevant procedural and factual history as follows:
1
In a separate decree entered on August 13, 2015, the trial court
terminated the parental rights of T.W.P., Jr.’s, father, T.W.P., Sr.
(“Father 1”), pursuant to Sections 2511(a)(1), (2), (5), (8), and (b).
Father 1, who is incarcerated, has not filed an appeal from the termination
of his parental rights, nor is he a party to the present appeal.
Further, in separate decrees also entered on November 4, 2015, the
trial court terminated the parental rights of putative father of J.R.F. and Z.F.,
father, J.F. (“Father 2”), also pursuant to Sections 2511(a)(1), (2), (5), (8),
and (b). Father 2 has filed an appeal at Pennsylvania Superior Court Docket
Nos. 3593 EDA 2015 and 3596 EDA 2015.
2
Mother does not specifically contest the change of the Children’s
permanency goal to adoption. Therefore, Mother has waived any challenge
to the change of permanency goal. Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that, a failure
to preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver of those issues).
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This family became known to DHS on April 16, 2011, when DHS
received a General Protective Services report that Mother and her newborn
children tested positive for benzodiazepines and marijuana at the time of
delivery.3 (Notes of testimony, 7/10/15 at 98-100, 126.) Mental health and
domestic violence issues were also raised. (Notes of testimony, 8/5/14 at
39-40; 7/10/15 at 103-104, 135.) On November 9, 2011, the Children were
adjudicated dependent with DHS supervision and in-home services.4 (Notes
of testimony, 7/10/15 at 100, 110, 117.)
After Mother was observed under the influence, on January 9, 2013,
DHS obtained Orders of Protective Custody for the Children. (DHS Exhibit 2;
notes of testimony, 7/10/15 at 105-106.) On January 11, 2013, the court
then committed the Children to DHS custody and placed them in foster
care.5 (DHS Exhibit 2; notes of testimony, 7/10/15 at 107-108.) On
March 20, 2013, the court again adjudicated the Children dependent. (DHS
Exhibit 2.)
3
Mother gave birth to twins, one of whom did not survive. (Notes of
testimony, 7/10/15 at 126.)
4
Father 2 and Mother appealed this determination at Pennsylvania Superior
Court Docket Nos. 321 EDA 2013 and 322 EDA 2013, respectively. These
appeals were ultimately dismissed on May 23, 2013 for failure to file a brief.
5
The Children are currently in kinship care. J.R.F. and Z.F. are placed
together, separately from T.W.P., Jr., in a pre-adoptive home. However,
testimony was presented that J.R.F. and Z.F.’s resource family plans on
adopting T.W.P., Jr., as well. (Notes of testimony, 7/10/15 at 27-28, 34,
167.)
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Mother’s Family Service Plan (“FSP”) objectives included drug and
alcohol treatment, mental health treatment, domestic violence counseling,
and appropriate housing. (Notes of testimony, 8/5/14 at 19, 21.) She was
additionally referred for a parenting capacity evaluation and a dual diagnosis
assessment. (Id. at 21.)
In March of 2014, the case was transferred to Turning Points for
Children, a Community Umbrella Agency (“CUA”). (Notes of testimony,
8/5/14 at 16; 7/10/15 at 12.) Prior to transfer, in March 2014, DHS
changed the Children’s permanency goal with regard to the FSP to adoption.
(Notes of testimony, 8/5/14 at 25-29, 43-45.)
The trial court held permanency review hearings in this matter on
June 20, 2013, October 15, 2013, and January 14, 2014. Throughout these
reviews, the trial court maintained the Children’s commitment, placement,
and permanency goal.
On April 30, 2014, DHS filed petitions to involuntarily terminate
parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and
(b), and to change the Children’s permanency goal to adoption pursuant to
42 Pa.C.S.A. § 6351. The court then conducted combined termination and
goal change hearings on August 5, 2014, July 10, 2015, and August 13,
2015. Mother and Father 2 each testified on their own behalf. Father 1,
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who is incarcerated, did not appear, but was represented by counsel.6
Additionally, the court heard from the following witnesses: Markey Mosley,
former DHS social worker; Alimata Doumbia, case manager and supervisor,
Turning Points for Children; Craig Minus, DHS social worker; Dr. Erica
Williams, psychologist, Assessment & Treatment Alternatives, Inc.,
stipulated to be a specialist and expert in child and adolescent psychiatry; 7
Devon Jacques, case manager, Turning Points for Children;
Devonnae Grasty, visitation coach, Turning Points for Children;
Cipriana Arias, permanency specialist, Turning Points for Children; and
Christina Tavares, child advocate social worker.
On November 4, 2015, following the submission of written closing
argument, the trial court entered decrees involuntarily terminating Mother’s
parental rights to the Children and orders changing the permanency goal to
adoption. New counsel was appointed for Mother for purposes of appeal on
6
Father 1’s criminal abstract was admitted as DHS Exhibit 3. (See DHS
Exhibit 3.) Counsel for Father 1 stipulated to DHS 3 and that Father 1 is
“unable to care for [T.W.P., Jr.] for the foreseeable future.” (Notes of
testimony, 8/13/15 at 27.) He further stipulated that the current CUA
worker would testify to the lack of a current relationship between Father 1
and T.W.P., Jr., and that it would not cause any irreparable harm if the
relationship were to be severed. (Id. at 27-28.) As indicated, Father 1 has
not appealed the termination of his parental rights and he is not a party to
the present appeal.
7
Dr. Williams conducted a parenting evaluation as to Mother and issued a
related report dated July 3, 2014, and marked DHS Exhibit 27. (Notes of
testimony, 7/10/15 at 130. See DHS Exhibit 27.) She therefore offered
testimony as to Mother only. (Notes of testimony, 7/10/15 at 128-155.)
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November 12, 2015. Thereafter, on November 18, 2015, Mother, pro se,
filed timely notices of appeal, along with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which
this court consolidated sua sponte on December 18, 2015. Appointed
counsel subsequently filed a brief on behalf of Mother. On appeal, Mother
raises the following issues for review:
1. Judge had no authority to rule in said matter
for he was recused/disqualified from these
proceedings for his partiality and biasness [sic]
against [Mother] in open court.
2. Judge [sic] ruling was in contradictory [sic] to
statutory and constitutional law; violating due
process rights of [Mother].
3. Judge have [sic] created an arbitrary situation
by forcing the incompetent attorney of the
Defenders Association that I asked to be taken
off my case [and] he said no in open court.
Mother’s brief, at 2.8
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental
rights cases requires appellate courts “to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record.”
In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817,
826 (Pa. 2012). “If the factual findings are
supported, appellate courts review to determine if
the trial court made an error of law or abused its
8
In the summary of argument and argument portions of her brief, Mother,
through counsel, for the first time raises Sections 2511(a) and (b). (Id. at
4-11.)
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discretion.” Id. “[A] decision may be reversed for
an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice,
bias, or ill-will.” Id. The trial court’s decision,
however, should not be reversed merely because the
record would support a different result. Id. at 827.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re
R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to
believe all, part, or none of the evidence presented and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
the focus is on the conduct of the parent. The party
seeking termination must prove by clear and
convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
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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). We
have defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
At the outset, we note that DHS argues that Mother has waived all
arguments on appeal as she failed to include them in her concise statement
of errors and failed to develop her argument through citation to pertinent
legal authority.9 (DHS’s brief, at 17.) DHS contends that Mother waived the
challenge to the trial court’s rulings pursuant to Section 2511(a) and (b) as
they were not included in her concise statement of errors. (Id. at 17-18.)
DHS further avers that Mother waived any argument with regard to those
issues raised in her concise statement and questions presented as she
“fail[ed] to develop or reference them in her Argument.” (Id. at 19.) As
summarized:
Here, Appellee DHS is unable to address the issues
identified in Mother’s statement of questions
9
Counsel for the Children joins in DHS’s brief.
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presented because the issues are not addressed in
any form or fashion in her Argument. Accordingly,
these issues are waived, and Mother’s appeal should
be denied. Additionally, the two arguments that
Mother raises for the first time in the Argument
section of her brief are waived for the reason that
the issues she raises (challenges to the trial court’s
findings under Sections 2511(a) and (b) of the
Adoption Act) are not included in her Rule 1925(b).
These two issues are also waived as a result of
Mother’s failure to list them in her Statement of
Issues Presented. Accordingly, for the foregoing
reasons, Mother’s appeal should be denied.
Id. at 20-21 (citations omitted).
We could find that Mother waived opposition to the trial court’s
disposition regarding Sections 2511(a) and (b), as she failed to include them
in her concise statement of errors. Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that, a failure
to preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver of those issues); Pa.R.A.P. 1925(b)(4)(vii)
(stating, “Issues not raised in the Statement and/or not raised in accordance
with this paragraph (b)(4) are waived.”).10 Nonetheless, pursuant to
10
We do, however, find that, as Mother failed to develop any challenge
and/or argument regarding those issues raised in her concise statement of
errors and statement of questions involved in the argument portion of her
brief, she waived any such argument. See In re W.H., 25 A.3d 330,
339 n.3 (Pa.Super. 2011) (stating, “[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived.”).
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Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (finding a lack
of waiver where the nature of a claim can be readily apprehended), we
conduct a review of the termination of Mother’s parental rights. Significant
to this determination, the trial court assessed the termination of Mother’s
parental rights pursuant to Sections 2511 (a) and (b). (Trial court opinion,
3/22/16 at 12-16.) We, thus, examine the trial court’s termination of
Mother’s parental rights as argued in her brief.
In this case, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8), as well as (b).
We have long held that, in order to affirm a termination of parental rights,
we need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380,
384 (Pa.Super. 2004) (en banc). Here, we analyze the court’s termination
pursuant to Sections 2511(a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
....
(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
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incapacity, abuse, neglect or
refusal cannot or will not be
remedied by the parent.
....
(b) Other considerations.--The court in
terminating the rights of a parent shall give
primary consideration to the developmental,
physical and emotional needs and welfare of
the child. The rights of a parent shall not be
terminated solely on the basis of
environmental factors such as inadequate
housing, furnishings, income, clothing and
medical care if found to be beyond the control
of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8),
the court shall not consider any efforts by the
parent to remedy the conditions described
therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
We first examine the court’s termination of Mother’s parental rights
under Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
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contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002).
Mother argues that the trial court erred as grounds for termination
pursuant to Section 2511(a)(2) were not supported by clear and convincing
evidence. (Mother’s brief, at 5.) Mother contends that the evidence
demonstrates her attempt at establishing and maintaining a relationship with
the Children and engaging in efforts to remedy the causes for the Children’s
placement. (Id. at 5-6.) “Although her children were not in her care,
[M]other through her efforts to remain close to her children, exhibited that
she was eradicating any repeated neglect, that caused them to be placed in
foster care.” (Id. at 6.) Mother further maintains that she “has
demonstrated her commitment remedy [sic] the situation that brought her
children into DHS custody. Furthermore, DHS has not proved that she could
not remedy such conditions.” (Id.)
In finding grounds for termination pursuant to Section 2511(a)(2), as
well as (a)(5) and (a)(8), the trial court stated:
This Court found clear and convincing evidence
to terminate Mother’s parental rights pursuant to
Sections 2511(a)(2), (5) and (8). The evidence
supports this Court’s finding that Mother lacked the
capacity to provide permanency and safety for the
Children. Mother was active drug user who was in
and out of treatment for 2-3 years. Mother failed to
address or even recognize that she was in a
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relationship with severe domestic violence which
threatened the Children’s safety. Additionally,
Mother was inconsistent with mental health
treatment. She was unemployed and living in a
home with no electricity. Finally, the results of a
Parenting Capacity Evaluation concluded that Mother
was out of touch with reality and was unable to
provide safety and permanency required to parent
the Children. Mother took no accountability for her
behavior and blamed her mother for the reason that
her Children were in care. In addition, . . . the Court
found it was in the Children’s best interests to
terminate Mother’s rights because the Children, were
doing well in their pre-adoptive homes, under the
care of foster parents who were meeting all of their
needs.
Trial court opinion, 3/22/15, at 14-15. Upon review, we agree.
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2) and substantiates the conclusion that
Mother’s repeated and continued incapacity, abuse, neglect, or refusal has
caused the Children to be without essential parental control or subsistence
necessary for their physical and mental well-being. See In re Adoption of
M.E.P., 825 A.2d at 1272. Moreover, Mother cannot or will not remedy this
situation. See id. As the trial court’s 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, we affirm the trial court’s decrees with regard to
Section 2511(a)(2). In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
We next determine whether termination was proper under
Section 2511(b). With regard to Section 2511(b), our supreme court has
stated as follows:
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[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S. § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M.,
53 A.3d 781, 791 (Pa.Super. 2012). In In re E.M.,
620 A.2d [481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare”
requires consideration of the emotional bonds
between the parent and child. The “utmost
attention” should be paid to discerning the effect on
the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “[I]n cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” In re Adoption
of J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
As further recognized in T.S.M.:
[C]ontradictory considerations exist as to whether
termination will benefit the needs and welfare of a
child who has a strong but unhealthy bond to his
biological parent, especially considering the
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existence or lack thereof of bonds to a pre-adoptive
family. As with dependency determinations, we
emphasize that the law regarding termination of
parental rights should not be applied mechanically
but instead always with an eye to the best interests
and the needs and welfare of the particular children
involved. See, e.g., R.J.T., 9 A.3d at 1190 (holding
that statutory criteria of whether child has been in
care for fifteen of the prior twenty-two months
should not be viewed as a “litmus test” but rather as
merely one of many factors in considering goal
change). Obviously, attention must be paid to the
pain that inevitably results from breaking a child’s
bond to a biological parent, even if that bond is
unhealthy, and we must weigh that injury against
the damage that bond may cause if left intact.
Similarly, while termination of parental rights
generally should not be granted unless adoptive
parents are waiting to take a child into a safe and
loving home, termination may be necessary for the
child's needs and welfare in cases where the child’s
parental bond is impeding the search and placement
with a permanent adoptive home.
71 A.3d at 268-269.
Mother argues that the court failed to consider evidence of the
continuing bond between her and the Children and her attempts to comply
with the objectives set forth for her reunification with the Children.
(Mother’s brief, at 7-11.) Mother avers that “there has not been adequate
consideration of the emotional needs of the children because mother
continued to maintain a bond with her children while she was attempting to
comply with DHS objectives, as her children remained in placement.” (Id.
at 10.)
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This court finds that Mother’s argument regarding Section 2511(b)
lacks merit. Again, upon review, as the trial court’s 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, we affirm the trial court’s
decrees with regard to Section 2511(b). In re T.S.M., 71 A.3d 251, 267
(Pa. 2013). We affirm the trial court’s decrees with regard to
Section 2511(b) on the basis of the discussion in the trial court opinion.
(Trial court opinion, 3/22/15, at 15-16.)
Based on the foregoing, we affirm the decrees and orders of the trial
court terminating Mother’s parental rights and changing the Children’s
permanency goal.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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