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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: I.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.M., FATHER :
:
:
:
:
: No. 932 MDA 2017
Appeal from the Decree Entered May 3, 2017
In the Court of Common Pleas of Franklin County Orphans' Court at
No(s): 17-ADOPT-2017
IN THE INTEREST OF: I.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.M., FATHER :
:
:
:
: No. 933 MDA 2017
Appeal from the Order Entered May 3, 2017
In the Court of Common Pleas of Franklin County Juvenile Division at
No(s): CP-28-DP-0000043-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD*, J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 11, 2017
In these related appeals, R.M. (“Father”), appeals from the decree and
order of the Franklin County Court of Common Pleas that involuntarily
terminated his parental rights to his daughter, I.M. (“Child”), born in May of
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S64036-17 & J-S64037-17
2016, and changed Child’s permanency goal from reunification to adoption.1
We affirm.
On May 16, 2016, Franklin County Children and Youth Services (“CYS”)
filed an application for Emergency Protective Custody of Child. Petitioner’s
Exhibit 1. In its application, CYS averred that it had an extensive history with
Mother spanning over 24 months, which involved Mother’s two older children
who had already been removed from her care. Id. The orphans’ court granted
the application and Child was placed in foster care after Child’s birth. Child
remained in foster care following an adjudication and disposition hearing on
June 13, 2016. Petitioner’s Exhibit 4.
When Child initially came into care, the identity of Child’s biological
Father was unknown. Although Father had signed an Acknowledgement of
Paternity at the hospital following Child’s birth, Mother later suggested that
her husband, and not Father, was Child’s biological Father. Mother later
indicated that Father was actually Child’s biological Father, and Father
____________________________________________
1 Father’s appeal from the decree terminating his parental rights is docketed
at 932 MDA 2017, and his appeal from the order changing Child’s goal is
docketed at 933 MDA 2017.
A.L. (“Mother”) signed a waiver to voluntarily terminate her parental rights to
Child. However, after a colloquy, the orphans’ court questioned the
voluntariness of her relinquishment and held a hearing on the petition to
terminate Mother’s parental rights. The orphans’ court found clear and
convincing evidence to support the involuntary termination and, by separate
decree, terminated the parental rights of Mother. Mother did not file a brief
in connection with this appeal, nor did she file her own separate appeal.
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acknowledged paternity of Child through a support action filed with the
Franklin County Domestic Relations office.
On April 12, 2017, CYS filed petitions to involuntarily terminate Father’s
parental rights to Child and to change Child’s permanency goal to adoption.
The orphans’ court conducted a combined termination and goal change
hearing on May 2, 2017. At the hearing, CYS presented the testimony of Emily
Beckner, program director at Alternative Behavioral Consultants (“ABC”), and
Elizabeth Johnston, the caseworker assigned to Father’s case. Father testified
on his own behalf. Following the hearing, the orphans’ court terminated
Father’s parental rights and changed Child’s permanency goal to adoption,
and on May 3, 2017, entered its decree and order. On June 1, 2017, Father
timely filed separate notices of appeal and concise statements of matters
complained of on appeal pursuant to 1925(a)(2)(i) and (b).
Father, in his appeal from the decree terminating his parental rights,
raises the following issues for our review:
I. Was there clear and convincing evidence presented at trial
to establish that Father had evidenced a settled purpose of
relinquishing parental claim to [Child] or that he refused or
failed to perform parental duties for six months immediately
prior to the [p]etition?
II. Was there clear and convincing evidence to show that
there was a repeated and continued incapacity, abuse,
neglect or refusal of Father that has caused Child to be
without essential care, control or subsistence necessary for
[Child’s] physical or mental well-being and the conditions
and causes of the incapacity, abuse or neglect or refusal
cannot or will not be remedied by Father[?]
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III. Was there clear and convincing evidence to determine
that the child will not be harmed by the severing of the bond
with Father?
Father’s Brief, 932 MDA 2017, at 14.
Our standard of review is well-settled.
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 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
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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 orphans’ court terminated Father’s parental rights
pursuant to sections 2511(a)(1), (2), (5) and (b). We need only agree with
the court as to any one subsection of section 2511(a), as well as section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the orphans’ court’s decision to terminate
under section 2511(a)(1) and (b), which provides 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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
***
(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 notice of the filing
of the petition.
23 Pa.C.S. § 2511(a)(1), (b).
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To satisfy Section 2511(a)(1), the moving party must
produce clear and convincing evidence of conduct sustained
for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties. . . . Section 2511 does not require
that the parent demonstrate both a settled purpose of
relinquishing parental claim to a child and refusal or failure
to perform parental duties. Accordingly, parental rights may
be terminated pursuant to Section 2511(a)(1) if the parent
either demonstrates a settled purpose of relinquishing
parental claim to a child or fails to perform parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa. Super. 1999) (citation omitted).
Although the six months immediately preceding the filing of the petition are
the most critical to the analysis, “the trial court must consider the whole
history of a given case and not mechanically apply the six-month statutory
provision.” In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation
omitted). Additionally, to the extent that the orphans’ court based its decision
to terminate parental rights pursuant to subsection (a)(1), “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(b). We explained that “[a] parent is required to
exert a sincere and genuine effort to maintain a parent-child relationship; the
parent must use all available resources to preserve the parental relationship
and must exercise ‘reasonable firmness’ in resisting obstacles placed in the
path of maintaining the parent-child relationship.” In re C.M.S., 832 A.2d
457, 462 (Pa. Super. 2003) (citation omitted).
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Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the orphans’ court must then
engage in three additional lines of inquiry: “(1) the parent’s explanation for
his or her conduct; (2) the post-abandonment contact between parent and
child; and (3) consideration of the effect of termination of parental rights on
the child pursuant to Section 2511(b).” In re Z.S.W., 946 A.2d 726, 730 (Pa.
Super. 2008) (citation omitted).
In the instant matter, the orphans’ court found that CYS presented clear
and convincing evidence in support of its petition to terminate Father’s
parental rights pursuant to section 2511(a)(1). Orphans’ Ct. Op., 7/5/17, at
27-28. The court reasoned that the conditions requiring Child’s placement in
foster care continued to exist and emphasized Father’s instability and lack of
progress during Child’s dependency. Id. at 23-28. The court questioned
Father’s effort and commitment to Child and expressed concern over “Father’s
ability or desire to overcome obstacles to parenting Child.” Id. at 27.
Father asserts that the evidence presented did not demonstrate that
termination of his parental rights was appropriate. In particular, Father
argues that he has remedied the facts and circumstances that rendered him
incapable of parenting Child, and that he has remained in full compliance with
the permanency plan put in place by CYS. Father’s Brief, 932 MDA 2017, at
20-21. Father alleges that, to the extent some goals may remain
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unaddressed, his limited resources “limit his ability to address some of the
concerns” and are “something that is out of his control.” Id. at 20.
Our review of the record supports the orphans’ court’s findings. Father’s
permanency plan required him to participate in medication management,
complete a parental fitness assessment, obtain and maintain financial
stability, visit with Child, comply with the terms of his probation, refrain from
further criminal charges, participate in the Non-Violence Intervention Services
(“NOVIS”) program, complete a drug and alcohol evaluation and follow
through with any recommendations, and participate in random drug screens.
N.T., 5/2/17, at 55.
Regarding Father’s goal to participate in medication management, CYS
caseworker, Elizabeth Johnston, testified that although Father was initially
consistent with his mental health treatment, Father’s last confirmed
medication management appointment was December 16, 2016. While Father
alleged that he was consistent in attending his treatment sessions, Father was
unable to provide any documentation to the court confirming his attendance.
Moreover, Father failed to complete the parental fitness assessment.
Emily Beckner, program director at ABC, testified that Father was scheduled
to participate in a parental fitness assessment at ABC on January 6, 2017. Id.
at 16. However, despite repeated attempts to confirm the assessment, Father
never confirmed that he would attend the appointment and the assessment
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was cancelled. Id. at 17. Father alleged that he attempted to reschedule the
appointment with Ms. Johnston, but that Ms. Johnston never got back to him.
Further, Ms. Beckner testified that the assessment consisted of two
components: a psychological portion and a parent/child observation. Id. at
19. Ms. Beckner noted that the parent/child observation had to be completed
in a private setting in order to see a true picture of [Father’s] parental abilities.
Id. at 20. In that regard, ABC requested that Father provide them with
documentation that his home was not infested with bed bugs before it could
conduct the assessment in Father’s home. Father denied having bed bugs in
his home and further claimed that his mother, Paternal Grandmother,
arranged for Ehrlich Pest Control to inspect the home for bed bugs. Id. at 93-
94. When ABC asked Father to provide them with documentation that Ehrlich
had inspected the home, Father alleged that it was against Ehrlich’s policy to
provide them with the requested documentation. Id. at 111, 114. Father
later signed a release to permit CYS to contact Ehrlich, who indicated that they
had no record of ever being at Father’s residence. Id. at 61.
Likewise, Father also failed to comply with the terms of his parole, which
stemmed from a domestic violence incident involving Mother.2 Father pled
guilty to simple assault and was sentenced to time served (sixty-three days)
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2 At the time of the incident, Mother was pregnant with Child.
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to twenty-three months in Franklin County Jail. Petitioner’s Exhibit 17. Father
was also ordered to have no contact with Mother. Id.
On July 4, 2016, Father violated his parole for the first time when he
contacted Mother and assaulted her. Petitioner’s Exhibit 16. Father pleaded
nolo contendere to simple assault and was incarcerated for four months. Id.;
N.T., 5/2/17, at 98-99. In February of 2017, Father, again, violated his parole
and contacted Mother. N.T., 5/2/17, at 99.
Finally, Father has failed to demonstrate that he can maintain safe and
stable housing. Father currently resides with Paternal Grandmother in a one-
bedroom home. Id. at 92. Father acknowledged that the home was not a
permanent residence. Nonetheless, the only attempts Father made to find
suitable housing included submitting an application for public housing and
walking around downtown Chambersburg. Id. at 92, 115.
The orphans’ court, as the trier of fact, had no obligation to credit
Father’s testimony regarding his compliance with CYS’s permanency plan. The
orphans’ court was free to make credibility determinations, accept or reject
the testimony of the witnesses in whole or in part, and make reasonable
inferences from the evidence it considered credible. See In re M.G., 855
A.2d 68, 73-74 (Pa. Super. 2004). The fact that Father has been unable to
complete his parental fitness assessment, maintain safe and stable housing,
and comply with the terms of his parole for any appreciable amount of time
supports the orphans’ court’s conclusion that Father refuses and fails to
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perform his parental duties. Moreover, the trial court had ample basis to reject
Appellant’s explanations for his failure to comply. Accordingly, we discern no
abuse of discretion by the orphans’ court in terminating Father’s parental
rights pursuant to section 2511(a)(1).
Next, Father argues that the orphans’ court erred in finding termination
of his parental rights would best serve the developmental, physical, and
emotional needs and welfare of Child under section 2511(b). We have
discussed our analysis under section 2511(b) as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a
bonding analysis and the term bond is not defined in the
Adoption Act. Case law, however, provides that analysis of
the emotional bond, if any, between parent and child is a
factor to be considered as part of our analysis. While a
parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by
the court when determining what is in the best interest of
the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
and quotation marks omitted).
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In addressing the best interests and welfare of Child, the orphans’ court
found:
In consideration of the emotional bond between Father and
[Child], it seems that the present relationship is marginal,
even superficial, at best. The existence of some bond
between [Child] and Father does not necessarily defeat
termination. The question is whether the bond between
[Child] and Father is the one worth saving or whether the
bond could be sacrificed without permanent harm to [Child].
[Child] has become familiar with Father, based on the
number of visits the two have shared, but this level of
comfort and familiarity does not equate to a true
parent/child bond. No evidence suggests that Father has a
strong bond with [Child] equal to her bond with her foster
parents, that terminating Father’s parental rights will sever
an existing beneficial relationship, or that terminating
Father’s parental rights will result in irreparable harm to
[Child].
In contrast, the relationship between [Child] and the pre-
adoptive foster parents has proven beneficial to [Child].
[Child] has been in the care of her foster parents since just
after her birth. [Child] sees a specialist for concerns of a
hole in her heart and her foster parents have appropriately
scheduled medical appointments and monitor her. [Child]
is very active in her foster home and she is a happy baby.
[Child] plays with toys and plays with her brother, who also
resides at the foster home.
Orphans’ Ct. Op. at 36.
The record supports the orphans’ court’s finding that Child’s primary
bond is with her foster family, rather than Father. Further, the record supports
the finding that Child will not suffer irreparable harm if Father’s parental rights
are terminated. It was within the orphans’ court’s discretion to accept the
testimony of Ms. Johnston and Ms. Beckner, and to conclude that the benefits
of a permanent home with her foster family would outweigh any emotional
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distress Child might experience if Father’s parental rights were terminated.
While Child has a relationship with Father, it was within the orphans’ court’s
discretion to conclude that this bond is outweighed by her need for
permanence and stability. Child is closely bonded with her foster parents, and
the record reveals that Child’s half-brother3 also resides in the foster home.
Accordingly, we find no abuse of discretion in the orphans’ court’s conclusion
regarding subsection (b) that Child’s developmental, emotional, and physical
needs and welfare are best met by terminating Father’s parental rights.
We next address Father’s claim that the orphans’ court erred and/or
abused its discretion by changing Child’s permanency goal from reunification
to adoption. Father raises the following question in his appeal from the goal
change order:
I. Did the [orphans’ court] abuse its discretion when it
changed the goal for [Child] from reunification to adoption
when Father presented evidence that he would be able to
remedy the conditions that lead [sic] to the removal of
[Child] within a short period of time and when [Child] had
only been in placement for less [sic] one year?
Father’s Brief, 933 MDA 2017, at 8. Father argues that the goal change to
adoption was not in Child’s best interest. Father asserts that he has “a great
relationship” with Child and that Child will “be negatively affected by no longer
seeing Father.” Id. at 13-14.
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3Mother has two older children from other relationships. Dependency Petition,
5/17/16, at 3-5.
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[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept
the lower court’s inferences or conclusions of law.
Accordingly, we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
Goal change proceedings are governed by the Juvenile Act, 42 Pa.C.S.
§§ 6301–6375. This Court has summarized the requisite analysis as follows:
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the
placement; (2) the extent of compliance with the family
service plan; (3) the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; (4) the appropriateness and feasibility of the
current placement goal for the children; (5) a likely date by
which the goal for the child might be achieved; (6) the
child’s safety; and (7) whether the child has been in
placement for at least fifteen of the last twenty-two months.
The best interests of the child, and not the interests of the
parent, must guide the trial court. As this Court has held, a
child’s life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities
of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted).
In support of its decision to change Child’s permanency goal from
reunification to adoption, the orphans’ court stated as follows:
As discussed above, Father was not in compliance with the
family service plan. We agree that Father has consistently
visited with [Child] after her birth, upon his release from
incarceration. Unfortunately, his failure to address the bed
bug issue ruined his opportunity to learn and develop his
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parenting skills with the assistance of parent educators at
ABC. He squandered this very valuable opportunity to visit
with [Child] in a home-like setting where he could
demonstrate growth and improvement in his parenting
skills. We don’t view having to deal with a bed bug
infestation as an insurmountable obstacle outside of
Father’s control. He either could not—through lack of
problem-solving abilities, or would not—because of defiance
or lack of interest—address the issue.
Similarly, Father’s periods of incarceration also hindered his
ability to develop his parenting skills and his bond with his
daughter. During the pendency of this case, Father
committed new criminal offenses, as well as failed to abide
by the terms of his prior sentence, resulting in incarceration.
Father’s choices again thwarted reunification efforts.
Father did not have suitable housing, did not completed [sic]
a parental fitness assessment, and did not provided [sic]
documentation of compliance with mental health services,
parole supervision, or NOVIS. The goal of reunification was
not feasible in a reasonable period of time given Father’s
demonstrably lax effort at compliance.
Even if Father had agreed to submit to the parental fitness
assessment immediately after the TPR hearing, this Court
believes it very likely that additional services would have
been required before reunification could have been seriously
considered. We base this conclusion on the observations of
Balmer [sic] and Johnston who both testified to Father’s lack
of parenting abilities and lack of engagement and bond with
[Child].
Conversely, [Child] is safe, secure, and thriving in the pre-
adoptive foster home she has known since just after her
birth. The evidence supports a finding that [Child] enjoys a
significant bond with her foster family. While she may have
grown comfortable and familiar with Father, this is simply
not the same thing as a parent-child bond. [Child] will likely
suffer no lasting ill-effects from severing her relationship
with Father.
Orphans’ Ct. Op. at 40-42.
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Father fails to support his argument with regard to this issue with any
citation to legal authority. Pursuant to Pa.R.A.P. 2119(a), “The argument shall
be divided into as many parts as there are questions to be argued . . . followed
by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). “Arguments not appropriately developed include those
where the party has failed to cite any authority in support of a contention.”
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations
omitted).
The closest Father comes to making an argument appears in his
Summary of Argument and Standard of Review, where he states that the
standard of review for goal change proceedings is an abuse of discretion and
that court must determine whether the goal change is in the best interest of
the child. The lack of any legal analysis or citation to case law to support his
argument, and any explanation of Father’s argument in relation to that case
law, precludes our meaningful appellate review of Father’s challenge to the
change in permanency goal.
Even if we did not find Father’s argument waived, we likewise would
conclude that his claim does not merit any relief, as the record supports the
orphans’ court’s findings. Throughout the history of this case, Father has had
the same permanency goals. At every review hearing, the court has reiterated
Father’s need to participate in medication management, find suitable and
stable housing, and comply with the terms of his parole. Father, however,
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remained noncompliant with these goals and unable to parent Child. By the
time of the termination and goal change hearing, Child had been in the care
of foster parents for her entire life, and it was not clear when, if ever, Father
would be in a position to care for her. While it is true that Father maintains a
relationship with Child by regularly attending his visits, it was within the
orphans’ court’s discretion to conclude that this relationship is outweighed by
Child’s need for permanence and stability.
Based on the foregoing, we conclude that the orphans’ court did not
commit an error of law or abuse its discretion by terminating Father’s parental
rights and changing Child’s permanency goal from reunification to adoption.
Therefore, we affirm the court’s decree and order.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2017
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