In Re: V.B., a minor, Appeal of: C.M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: V.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.M., NATURAL FATHER :
:
: No. 691 WDA 2017
Appeal from the Order April 10, 2017
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-064-2016
BEFORE: OTT, MOULTON, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 03, 2017
Appellant, C.M. (“Father”),1 appeals from the order dated April 10,
2017 in the Court of Common Pleas of Allegheny County, involuntarily
terminating his parental rights to V.B. (“Child”), born in February of 2015,
pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (b) of the Adoption Act.2
Father claims that the trial court erred in terminating his parental rights
under subsection (b). We affirm.
The relevant facts and procedural history of this case are as follows.
Mother and Father were never married. Prior to Child’s birth, there were
several reported incidents of domestic violence between Mother and Father.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 As noted below, Child’s natural mother, T.B. (“Mother”), is deceased.
2 23 Pa.C.S. §§ 2101-2938.
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On September 28, 2014, the police responded to a call pertaining to a
domestic violence incident between Mother and Father. The police observed
Mother with a bloody lip and a swollen face. Mother was transported to the
hospital for medical care, and Father was charged with simple assault and
recklessly endangering another person. In October of 2014, Mother filed a
Protection from Abuse (“PFA”) petition against Father after another domestic
abuse incident occurred between them. Mother was granted a temporary
PFA order against Father on October 8, 2014.
On November 9, 2014, the police responded to another domestic
abuse call that Father dragged Mother down the steps. When the police
arrived, they observed Mother, pregnant with Child, in a disheveled state
with scratches and a swollen jaw. Mother was transported to the hospital for
medical attention, and Father was charged with aggravated assault causing
serious bodily injury, aggravated assault on an unborn child, terroristic
threats, stalking, and harassment.
Mother has a long history with Allegheny County Office of Children,
Youth and Families (“CYF”) as a dependent child until she aged out of CYF’s
care. In December of 2014, Mother voluntarily re-entered CYF’s care as a
resumption youth, seeking assistance for housing and domestic violence.
CYF placed Mother at Gwen’s Girls, a group home for pregnant teens and
young children. Shortly thereafter, Mother filed another PFA petition against
Father. On December 11, 2014, Mother was granted a temporary PFA order
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against Father. On December 23, 2014, Father consented to and signed a
final PFA order, effective until December 23, 2017. On March 3, 2015, about
a month after Child’s birth, Mother filed an Indirect Criminal Contempt
(“ICC”) complaint against Father for violating the December 23, 2014 final
PFA order. Father consented to and signed a court order that extended the
final PFA order to March 25, 2018.
On May 6, 2015, CYF received notification from Paternal Grandmother
that Father left the three-month-old Child in her care without any clothing,
diapers, formula or other baby essentials on about May 4, 2015. Paternal
Grandmother did not know where Father was or when he coming back for
Child, and could not get in contact with either Mother or Father. CYF later
found out that Mother left Gwen’s Girls with Child to spend the weekend with
Maternal Grandmother, but failed to return or respond to calls from Gwen’s
Girls. CYF became concerned that Child was with Paternal Grandmother and
not Mother due to Mother’s history of domestic abuse with Father and her
active PFA order against him. On same day, CYF obtained an Emergency
Care Authorization (“ECA”) and removed Child from Paternal Grandmother’s
care.
On May 7, 2015, CYF learned that Mother and Maternal Grandmother
had been murdered at Maternal Grandmother’s home. At the shelter care
hearing on May 8, 2015, Father failed to appear and his immediate
whereabouts were unknown. The trial court placed Child into foster care.
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The trial court further ordered that Child’s location was to remain
confidential and Child was to have no contact with Father. Father did not
appear at the adjudication hearing on June 3, 2015, because he was in jail in
Essex County, New Jersey, and subsequently charged in the homicides of
Mother and Maternal Grandmother, as well as the kidnapping of Child. At
the hearing, the trial court adjudicated Child dependent. The trial court
further awarded CYF legal and physical custody of Child, and continued
Child’s placement at the same kinship foster home, where Child currently
resides. Father was subsequently extradited to Pennsylvania and was
incarcerated in Allegheny County Jail pending trial on homicide and
kidnapping charges. CYF sent Father a family service plan (“FSP”) in June
15, 2015. Father’s FSP goals were: (1) to maintain contact with CYF, (2) to
alert CYF of his status, and (3) to complete a full assessment. On August 7,
2015, the trial court appointed Foster Mother as the educational and medical
decision maker for Child.
Thereafter, several permanency review hearings were held between
2015 through 2016. At each permanency review hearing, the trial court
continuously ordered that Child’s placement remain confidential and Child
not to have contact with Father. Father has not seen or had any type of
contact with Child since he left him at Paternal Grandmother’s house in May
of 2015.
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On March 30, 2016, CYF filed a petition for involuntary termination of
Father’s parental rights to Child. On November 9, 2016, the trial court held
a termination of parental rights hearing for Child. CYF presented testimony
from two CYF caseworkers, two police officers, and expert testimony from
psychologist, Neil Rosenblum, Ph.D. Father, represented by counsel, was
present at the hearing, but did not testify. Following the termination
hearing, the trial court ordered the parties to submit findings of fact and
legal briefs, and took the matter under advisement. On April 10, 2017, the
trial court entered an order terminating Father’s parental rights to Child
pursuant to Sections 2511(a)(2), (5), and (b).
On May 10, 2017, Father timely filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Father raises the following issue for our review.
Did the trial court abuse its discretion and/or err as a
matter of law in concluding that termination of Father’s
parental rights would serve the needs and welfare of Child
pursuant to 23 Pa.C.S. § 2511(b)?
Father’s Brief at 6.
We consider Father’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of
fact and credibility determinations of the trial court if they
are supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
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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, quotation marks, and
alterations omitted). “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) (citations omitted).
Section 2511 of the Adoption Act controls the termination of parental
rights, and requires a bifurcated analysis.
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 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.
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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) (citation
omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(2), and (5), as well as (b). Father does
not challenge the trial court’s finding of grounds for termination under
Section 2511(a). Instead, Father concedes that CYF clearly and convincingly
established grounds for termination pursuant to Section 2511(a)(2).
Father’s Brief at 13. We, therefore, analyze the trial court’s termination
pursuant to Section 2511(b) only, which provides as follows:
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(b).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
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Subsection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child. In
In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this
Court stated, “Intangibles such as love, comfort, security,
and stability are involved in the inquiry into the needs and
welfare of the child.” In addition, we instructed that the
trial court must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on
the child of permanently severing that bond. Id.
However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that
no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.
Super. 2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of the
particular case. Id. at [7]63.
In re I.E.P., 87 A.3d 340, 346 (Pa. Super. 2014) (citation omitted).
[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 its mental and
emotional health than the coincidence of biological or
natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and
quotation marks omitted). The trial court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d at 763-64 (affirming the
involuntary termination of the mother’s parental rights, despite the existence
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of some bond, where placement with the mother would be contrary to the
child’s best interests, and any bond with the mother would be fairly
attenuated when the child was separated from her, almost constantly, for
four years).
In addition, our Supreme Court stated that, “[c]ommon sense dictates
that courts considering termination must also consider whether the children
are in a pre-adoptive home and whether they have a bond with their foster
parents.” In re T.S.M., 71 A.3d at 268 (citation omitted). Moreover, in
weighing the bond considerations pursuant to Section 2511(b): “courts must
keep the ticking clock of childhood ever in mind. Children 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. at 269.
With regard to its analysis of Child’s needs and welfare, and the effect
of severing any bond between the Child and Father, the trial court stated:
CYF caseworkers, Lawrence Walter and Melissa Fuchs
provided credible evidence that [F]ather had only seen
[C]hild a couple of times, before he abandoned [C]hild
with no food, diapers and clothes at [Paternal
Grandmother’s] home. The record is clear that [C]hild has
never lived with [F]ather and there is no attachment or
bond. CYF provided clear and convincing evidence that
there is no bond between [F]ather and [C]hild and that
[F]ather has never provided [C]hild with any of the
intangible dimensions that encompass the needs and
welfare of a child, and the love, comfort, security and
closeness entailed in a parent/child relationship . . . . In
addition, this court finds that termination of [F]ather’s
parental rights would not cause [C]hild to suffer any
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extreme emotional consequences since the record is clear
that [C]hild did not have a bond or any attachment with
[F]ather.
[C]hild has resided with his current [F]oster [M]other/pre-
adoptive parent since May 2015. [Foster Mother] has been
[C]hild’s primary caregiver for most of his life and the only
parent figure [C]hild has known. As noted in Dr.
Rosenblum’s Interactional Evaluation report dated June 3,
2016[, F]oster [M]other is [C]hild’s primary
attachment/security figure. Dr. Rosenblum’s report states
that, “[Child] is currently in a very significant and
important attachment at this time. He literally becomes
upset when he is away from [F]oster [M]other with the
exception of his time in his day care program. As a result,
his ability to attach to an alternative caregiver would be
highly compromised and undoubtedly traumatic to [Child]
as well.” Dr. Rosenblum opined that there is no potential
for [C]hild to have any type of meaningful relationship, let
alone an attachment or familiarity with [F]ather. Dr.
Rosenblum testified that introducing [C]hild to [F]ather at
this time would be stressful and risky and any attempt to
change [C]hild’s primary caregiver now would compromise
[C]hild’s emotional well-being and would be undoubtedly
traumatic. Dr. Rosenblum opined that [C]hild’s
developmental needs and emotional well-being would be
best served through the goal of adoption, as it would
provide [C]hild with the needed permanency and the
opportunity to develop a secure and trusting relationship
while remaining in a home capable of meeting his needs.
The court also found clearly and convincingly that [F]oster
[M]other is providing [C]hild with both the tangible and
intangible dimensions of his needs and welfare. [CYF
c]aseworker, [Ms.] Fuchs testified that [C]hild is doing well
and is developmentally on target and all of his needs are
being met by his foster family. Ms. Fuchs also testified
that she has observed [C]hild with [F]oster [M]other,
opining that [C]hild appears very happy and comfortable in
the foster home and displays an attachment to [F]oster
[M]other. The caseworker also stated that [C]hild calls
[F]oster [M]other “mama.”
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The record is clear that [F]ather has not been able to
remedy the conditions which led to [C]hild’s removal and
continues to be incapable to parent [C]hild. It clearly does
not meet [C]hild’s needs and welfare to continue to wait
for [F]ather to be in a position to provide permanency due
to his uncertain future. Thus, due to [C]hild’s young age
and need for permanency and [F]ather’s continued inability
to meet the developmental, physical and emotional needs
and welfare of [C]hild, it is clear that termination meets
the needs and welfare of [C]hild.
Trial Ct. Op., 6/5/17, at 8-10 (citations omitted).
Father, however, argues that the trial court abused its discretion in
concluding that termination of his parental rights would best serve Child’s
needs and welfare pursuant to 23 Pa.C.S. § 2511(b), which focuses on the
best interests of the child and not on the fault of the parent. Father’s Brief
at 10. Father claims that, contrary to Section 2511(b), the trial court faulted
him for being incarcerated and absent in Child’s life and unfairly compared
what it perceived as Foster Mother’s thriving relationship with Child against
what it perceived as his hindered relationship with Child due to his
incarceration. Id. at 10, 16. Father further contends that the trial court
placed great weight on Dr. Rosenblum’s opinion that removing Child from
Foster Mother would be harmful to him, but failed to acknowledge that the
circumstances for Father’s absence from Child’s life since the time of his
placement were and continue to be completely out of Father’s control. Id.
at 17. Father argues that terminating his parental rights when he has been
incarcerated on charges for which he has not been tried or convicted of
deprives him of his constitutional right to parent his son and deprives Child
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of his right to his parent and extended family. Id. Father, therefore,
contends that the order terminating his parental rights to Child should be
reversed. Id. at 18. We disagree.
Here, the record substantiates the trial court’s termination of Father’s
parental rights to Child pursuant to Section 2511(b). During the termination
hearing, Mr. Walter, the initial CYF caseworker, provided the trial court with
the history of the case and the circumstances leading to Child’s placement in
foster care. N.T., 11/9/17, at 9-14. Mr. Walter testified that prior to
Mother’s death, Father may have seen Child twice. Id. at 55. Mr. Walter
further testified that Father has not had any contact with Child since he
abandoned him at Paternal Grandmother’s house in May of 2015. Id. Mr.
Walter stated that Child has resided in the same kinship foster home since
May of 2015. Id. at 90. Mr. Walter informed the court that Child looks to
Foster Mother to meet his needs, and Foster Mother meets his educational,
medical, and developmental needs. Id. at 90-91.
Ms. Fuchs, the subsequent CYF caseworker after Mr. Walter, testified
that she was assigned the case as the family services caseworker in March of
2016 and then as the home study caseworker for adoption in February of
2017. Id. at 98. Ms. Fuchs stated that she observed Child at his foster
home with Foster Mother. Id. at 101. Ms. Fuchs opined that Child is
comfortable at his foster home. Id. Ms. Fuchs testified that Child calls
Foster Mother, “Mama.” Id. at 102. Ms. Fuchs further testified that Foster
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Mother is very active with Child, and Child seeks her out if he needs
anything, wants anything, or just is seeking attention. Id. Ms. Fuchs has
no concerns regarding Foster Mother’s capability of providing stability to
Child. Id.
Dr. Rosenblum testified via telephone as an expert in child psychology
and forensic evidence. Id. at 118. Dr. Rosenblum stated that he conducted
an interactional evaluation of Child with Foster Mother on June 3, 2016. Id.
Dr. Rosenblum testified that Child was about fifteen months old at the time
of the evaluation. Id. at 120. During the evaluation, Dr. Rosenblum
observed Child display signs of separation and stranger anxiety, noting Child
stayed with Foster Mother and was very cautious of Dr. Rosenblum’s
presence. Id. at 120-121. Dr. Rosenblum found that Child was reluctant to
leave Foster Mother, constantly making sure that Foster Mother was still
present and regularly returning to her care throughout the session. Id. at
124-125. Dr. Rosenblum opined that Child is emotionally dependent on
Foster Mother and views her as his primary security figure. Id. at 121. Dr.
Rosenblum testified that Child’s relationship with Foster Mother is essential
to his well-being. Id. Dr. Rosenblum stated that because Child is at an age
where he is actively forming his primary attachment and primary sense of
emotional support, it would be very emotionally damaging and stressful for
Child if he were removed from Foster Mother’s care. Id. at 125. Dr.
Rosenblum also testified that, due to Child’s sensitive temperament, his
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pronounced emotional dependency and strong degree of attachment to
Foster Mother, it would be extremely difficult and traumatic for Child to forge
a relationship with any other caregiver other than Foster Mother. Id. at
132. Dr. Rosenblum testified that, because Child last had contact with
Father when he was three months old and has not had contact since his
placement, Child did not have and does not have any type of meaningful
relationship or attachment with Father, let alone any awareness or
familiarity of Father. Id. at 127. Dr. Rosenblum opined that, if Father is
found not guilty and permitted visitation, visitation may be more harmful
than beneficial at this time. Id. at 138. Dr. Rosenblum testified that,
although children benefit from a relationship with a biological parent and
Father has not been convicted of the charges against him, preserving Child’s
immediate psychological needs outweighs preserving his relationship with
Father. Id. at 134.
Dr. Rosenblum testified that Foster Mother was very warm,
affectionate, nurturing, and engaging with Child. Id. at 121-122. Dr.
Rosenblum stated that Foster Mother did an outstanding job of promoting
Child’s cognitive development by engaging him in a variety of age-
appropriate learning activities and constantly provided Child with praise,
encouragement and support. Id. at 122. Dr. Rosenblum reported that
Foster Mother has an excellent support system with her family, friends and
church family, who are very excited about Child being placed with her. Id.
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at 123. Dr. Rosenblum stated that he was impressed with Foster Mother’s
ability to understand Child’s needs and provide him with a structured
routine. Id. at 122. Dr. Rosenblum testified that Foster Mother does an
outstanding job of keeping Child’s day to day life as consistent and as
supportive as possible. Id. Dr. Rosenblum stated that Foster Mother is
capable of providing long-term stability for Child, appropriately meets his
needs, and is committed to making him a major priority in her life. Id. at
133. Dr. Rosenblum opined that Child’s developmental needs and emotional
wellbeing would be best served through the goal of adoption as this provides
Child with needed permanency and opportunity to develop a secure and
trusting relationship, and remain in a home capable of meeting his needs.
Id. at 127.
Based on the foregoing evidence and the totality of the record, we
discern no abuse of discretion or legal error by the trial court in concluding
that termination of Father’s parental rights would best serve Child’s
psychological, emotional and developmental needs and welfare. The trial
court thoroughly considered Child’s bond with Father, and the effect of
severing that bond. The record supports the trial court’s determination that
there is no bond or substantial relationship between Child and Father that, if
severed, would cause a detrimental effect on Child. Further, the record
supports the finding of the trial court that Child’s primary bond is with Foster
Mother, who has afforded him permanency and fulfilled his developmental,
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physical, and emotional needs. See 23 Pa.C.S. § 2511(b). The evidence
also establishes that if Child is removed from Foster Mother’s care, it would
cause Child severe emotional distress. As such, the trial court correctly
prioritized Child’s emotional well-being and his need for safety, permanency
and stability over Father’s wishes. While Father may profess to love Child, a
parent’s own feelings of love and affection for a child, alone, will not
preclude termination of parental rights. See In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010). As we stated, “a child’s life simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citation and quotation marks omitted). Rather, “a parent’s basic
constitutional right to the custody and rearing of his child is converted, upon
the failure to fulfill his or her parental duties, to the child’s right to have
proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (citation omitted). It is well-settled that “we will not toll the well-
being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,
956 A.2d at 1007 (citation omitted). Thus, the failure to terminate Father’s
parental rights would condemn Child to a life in foster care with no
possibility of obtaining a permanent and stable home.
As there is competent evidence in the record that supports the trial
court’s findings and credibility determinations, we would find no abuse of the
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trial court’s discretion in terminating Father’s parental rights to Child under
Section 2511(b). In re T.S.M., 71 A.3d at 267. We, therefore, affirm the
trial court’s order terminating Father’s parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
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