In Re: Adoption of: C.J.A., Appeal of: B.A. , 204 A.3d 496 ( 2019 )


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  • J-A27028-18
    
    2019 PA Super 40
    IN RE: ADOPTION OF: C.J.A., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: B.A., MOTHER AND P.F.           :   No. 1731 EDA 2018
    Appeal from the Order Entered May 10, 2018
    In the Court of Common Pleas of Monroe County
    Orphans’ Court at No: 86 OCA 2017
    BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
    OPINION BY STABILE, J.:                              FILED FEBRUARY 14, 2019
    B.A. (“Mother”) and P.F. (“Fiancé”) (collectively, “Petitioners”)1, 2 appeal
    from the order entered May 10, 2018, which denied their petition to terminate
    the parental rights of G.L.K., III (“Father”), involuntarily with respect to his
    son, C.J.A. (“Child”), born in March 2012. After careful review, we affirm.
    The record reveals that Mother and Father dated for about three months
    in 2011, prior to Child’s birth. N.T., 4/25/18, at 12. At the time, both Mother
    and Father lived in Luzerne County. Id.; N.T., 3/1/18, at 5. After Child was
    born, Father questioned whether he was Child’s father and sought a paternity
    ____________________________________________
    1 While Mother appears to indicate in her brief that she is the sole appellant in
    this case, her notice of appeal states that both she and Fiancé are appealing
    together.
    2During these proceedings, Mother indicated that she and Fiancé would be
    married in October 2018. N.T., 3/1/18, at 27. The record does not indicate
    whether the marriage actually took place.
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    test. N.T., 3/1/18, at 6. The test confirmed Father’s paternity of Child and
    Mother obtained a child support order.3 
    Id.
    After receiving the results of the paternity test, Father began exercising
    partial physical custody of Child. Id. at 11. No custody order existed, but the
    parties reached an informal agreement providing Father with custody every
    other weekend. Id. at 11, 14. This began when Child was several months
    old and lasted about a year until Father separated from his new girlfriend.
    N.T., 4/25/18, at 16-17. The separation left Father homeless temporarily and
    his periods of custody ended because he had nowhere to go with Child. Id.
    About a week later, Father moved into his sister’s home, which was directly
    across the street from Mother’s home. Id. at 17. Father started visiting Child
    at Mother’s home “[a]bout three or four times a week, . . . for about two
    hours.” Id. at 18. This continued until October 2014, when Child was two
    and a half years old. Id. at 20; N.T., 3/1/18, at 8. At that time, Mother left
    her home near Father’s sister and moved with Fiancé to Monroe County. N.T.,
    3/1/18, at 8. Father confronted Mother as she was preparing to leave and
    she informed him that he “would not see [Child] anymore.” N.T., 4/25/18, at
    20-21.
    Mother did not tell Father where she and Child would be living and he
    struggled to locate them after they left. Id. at 21. Father retained Mother’s
    ____________________________________________
    3Father has remained current on his child support obligation to the present
    day. N.T., 3/1/18, at 11.
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    phone number on his prepaid cellphone but “smashed” the phone accidently
    and was unable to retrieve the number. Id. at 22. He further discovered that
    Mother blocked him on Facebook. Id. at 24. Father occasionally drove by the
    home of Mother’s parents to see if her car was there, but to no avail. Id. at
    23. He also spoke to two of Mother’s friends, but they informed him that they
    too did not know where Mother lived. Id. at 23-24.
    In 2016, one of Mother’s friends informed Father that Mother and Child
    may be residing in Monroe County. Id. at 25. Father conducted an internet
    search but did not learn anything new about Mother’s whereabouts. Id. at
    26. Later that year, in September 2016, Father’s current girlfriend gave birth
    to his daughter. Id. at 27. This event inspired Father to renew his search for
    Mother and Child. Id. at 27, 45. In June 2017, Father decided to reach out
    to Mother’s sister on Facebook. Id. at 27. He requested that Mother’s sister
    pass along a message asking Mother to contact him so that he could spend
    time with Child without court intervention. Id. at 28. Mother initially failed
    to respond but relented after about a month because Father continued to send
    messages to her sister. Id. at 40, 58. Mother passed a message back to
    Father stating that she would not be contacting him. Id. at 57.
    Undeterred, Father spoke to his lawyer about what he could do to locate
    Mother and Child. N.T., 4/25/18, at 29. Father’s lawyer advised him to hire
    a private investigator and file a custody complaint. Id. at 30. Father utilized
    a private investigation website, which revealed Mother’s phone number but
    not her new address. Id. Father also filed a complaint for custody in Luzerne
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    County. Id. Father tried to serve Mother by mailing the relevant documents
    to her parents’ home, but Mother’s parents returned the documents to Father.
    Id. at 31-33.
    After consulting a police officer, Father also began searching publically
    available criminal docket sheets. Id. at 29, 34. Father’s search revealed that
    Mother had an active criminal case.4 Id. at 35. In approximately September
    2017, Father and his lawyer contacted the office of the magistrate handling
    the case and obtained a copy of the criminal complaint, which contained a new
    address for Mother. Id. at 35-37. Later that month, Father hired Constable
    Charles West to serve Mother personally. Id. at 4-5. Constable West could
    not locate Mother at the addresses Father provided,5 but was able to contact
    Fiancé by calling the phone number that Father obtained using the private
    investigation website. Id. at 5-6, 10, 65. According to Constable West, Fiancé
    “pretty much told me that they’re not going to tell me where they are at
    because [Father] will never see his daughter or his children [sic] again. And
    told me to go F myself, and have a nice day.” Id. at 6.
    In November 2017, Father obtained an order permitting him to serve
    Mother by publication. Id. at 37-39. The Luzerne County trial court conducted
    a custody conciliation in January 2018, at which Mother failed to appear, and
    ____________________________________________
    4   Mother testified that the charges “were all dropped.” N.T., 3/1/18, at 70.
    5Mother had moved to her current address earlier in the year. N.T., 3/1/18,
    at 5.
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    entered an interim custody order. Id. at 41; Petitioners’ Exhibit 4. Shortly
    thereafter, Father received notice that Petitioners filed a petition to terminate
    his parental rights involuntary in Monroe County on December 28, 2017.6 Id.
    at 41.     Petitioners also filed a custody complaint in Monroe County and
    preliminary objections in Luzerne County challenging the proceedings based
    on improper venue. N.T., 3/1/18, at 19-22. The Luzerne County trial court
    vacated its interim order and directed that all future custody proceedings
    occur in Monroe County. See Petitioners’ Exhibit 5.
    On March 1, 2018, and April 25, 2018, the Monroe County orphans’ court
    conducted a hearing on the involuntarily termination petition. The court heard
    the testimony of Mother, Fiancé, Constable West, and Father. Following the
    hearing, by order entered May 10, 2018, the court denied the petition. In its
    opinion accompanying the order, the court found that the Adoption Act would
    not permit Fiancé to adopt Child because he and Mother were not yet married.
    Orphans’ Court Opinion, 5/10/18, at 5-8. The court further observed that
    Petitioners filed their termination petition to thwart Father’s custody case,
    which was contrary to the purposes of the Act. Id. at 8-9. In addition, the
    court found that Petitioners failed to prove grounds for termination of Father’s
    parental rights pursuant to Section 2511(a)(1) of the Act. Id. at 10-16. The
    court reasoned that Father attempted to reestablish a relationship with Child
    in the six months immediately preceding the filing of the termination petition
    ____________________________________________
    6   Fiancé also filed a petition for adoption and a report of intention to adopt.
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    but that Mother created barriers to prevent his success. Id. at 12-16. The
    court described Father’s testimony as “credible and convincing” but rejected
    Mother’s testimony, observing that her “demeanor in Court was less than
    convincing and she appeared angry that Father wanted to be a part of the
    child’s life.” Id. at 14-16. Petitioners timely filed a notice of appeal on June
    11, 2018,7 along with a concise statement of errors complained of on appeal.
    Petitioners now raise the following issues for our review.
    1. Did the [orphans’ c]ourt err by finding, based on the marital
    status of the parties, that [Fiancé] could not petition for adoption
    under the act despite th[e] fact that the parties have been
    together for years, intend to get married and have set a date,
    have [a] child in common who is a sibling to [Child] and [Fiancé]
    has raised the child as his own?
    2. Did the [orphans’ c]ourt err in finding that Father’s minimal
    efforts by attempting to locate and file for a custody modification
    after a greater than three-year absence, w[ere] enough to
    overcome the evidence of clear abandonment and intent to
    relinquish his parental rights and fail[ure] to perform any essential
    duties?
    ____________________________________________
    7 Generally, a party must file his or her notice of appeal within thirty days after
    entry of the order. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by
    this rule, the notice of appeal . . . shall be filed within 30 days after the entry
    of the order from which the appeal is taken.”). Thirty days after May 10,
    2018, was Saturday, June 9, 2018. Thus, Petitioners timely filed their notice
    of appeal on Monday, June 11, 2018. See 1 Pa.C.S.A. § 1908 (“Whenever
    the last day of any such period shall fall on Saturday or Sunday, . . . such day
    shall be omitted from the computation.”).
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    3. Did the [orphans’ c]ourt place too much weight upon the
    alleged efforts [M]other took to block contact and fail[] to account
    for the best interest of the child in view of [F]ather’s clear intent
    for several years to abandon his responsibilities by making no
    effort at all to establish [] contact with much less parent[] [] the
    minor child?
    Petitioners’ Brief at 5 (suggested answers omitted).
    We consider these claims 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   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).
    Before reaching the merits of this appeal, we discuss sua sponte Child’s
    right to counsel. See In re Adoption of T.M.L.M., 
    184 A.3d 585
    , 588 (Pa.
    Super. 2018) (addressing the child’s right to counsel sua sponte “as children
    are unable to raise the issue on their own behalf due to their minority.”).
    The Adoption Act requires that children receive counsel in all contested
    involuntarily termination proceedings.
    (a) Child.--The court shall appoint counsel to represent the child
    in an involuntary termination proceeding when the proceeding is
    being contested by one or both of the parents. The court may
    appoint counsel or a guardian ad litem to represent any child who
    has not reached the age of 18 years and is subject to any other
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    proceeding under this part whenever it is in the best interests of
    the child. No attorney or law firm shall represent both the child
    and the adopting parent or parents.
    23 Pa.C.S.A. § 2313(a).
    The term “counsel” in Section 2313(a) refers to an attorney directed by
    the child who represents his or her legal interests. In re Adoption of L.B.M.,
    
    161 A.3d 172
    , 180 (Pa. 2017). As our Supreme Court has explained, a child’s
    legal interests are distinct from his or her best interests. 
    Id. at 174
    . A child’s
    legal interests are synonymous with his or her preferred outcome, while the
    orphans’ court must determine a child’s best interests. 
    Id.
     In a recent case,
    the Court explained that a single attorney may represent both a child’s best
    interests as his or her guardian ad litem (“GAL”) and that child’s legal interests
    as counsel pursuant to Section 2313(a), but only if no conflict exists between
    the two sets of interests. In re T.S., 
    192 A.3d 1080
    , 1088 (Pa. 2018).
    Concerning the responsibilities of counsel when representing a child, this
    Court has stated that effective representation requires, “at a bare minimum,
    attempting to ascertain the client’s position and advocating in a manner
    designed to effectuate that position.” T.M.L.M., 184 A.3d at 590. We also
    find instructive Section 6311 of the Juvenile Act and Rule 1154 of our Rules of
    Juvenile Court procedure, which govern the duties of a GAL representing a
    child’s legal and best interests in a dependency proceeding. See T.S., 192
    A.3d at 1089-90 (finding Section 6311(b)(9) instructive and applying it to
    interpret Section 2313(a)). The relevant provisions require that a child’s GAL
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    determine his or her wishes “to the extent that they can be ascertained . . . .
    When appropriate because of the age or mental and emotional condition of
    the child[.]” 42 Pa.C.S.A. § 6311(b)(9); Pa.R.J.C.P. 1154(A)(9).
    In the instant matter, Hillary Madden, Esquire, represented Child during
    the termination proceedings. While the transcripts of the hearing list Attorney
    Madden as Child’s GAL, the orphans’ court appointed her solely as Child’s legal
    counsel. See Order, 1/11/18. During the hearing, Attorney Madden did not
    present any evidence of her own, but did cross-examine the witnesses. She
    also made two statements regarding her position as Child’s counsel. Both
    statements related to the fact that Child did not remember Father, whom he
    had not seen since at least October 2014, and believed Fiancé to be his
    biological parent. On March 1, 2018, concerning the question of whether the
    court should conduct an interview of Child, Attorney Madden stated as follows.
    I met with him. He is five.[8] He doesn’t really have a very
    large attention span because he is five years old, and I wouldn’t
    want him to have to sit outside for an entire hearing.
    So my only thought was if Your Honor wanted to talk to him
    just about the adoption portion. Obviously, he wouldn’t have
    anything to say about the TPR because everyone testified he’s not
    even aware [Father] is his father. So, I would leave it up to the
    Court’s discretion if you want to talk to him about the adoption.
    N.T., 3/1/18, at 104.
    ____________________________________________
    8   Child turned six later that month.
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    In addition, at the conclusion of the hearing, Attorney Madden stated
    the following.
    Your Honor, as we discussed in the last hearing, I don’t have
    any testimony. [Child] is not here because of his age, and as Your
    Honor is well aware because of the nature of the fact that he does
    not know that he is the father -- his biological father.
    N.T., 4/25/18, at 67-68.
    Finally, Attorney Madden filed a brief in this Court, addressing at length
    her representation of Child. Attorney Madden explains as follows, in relevant
    part.
    . . . . [D]ue to the age and maturity of [Child] along with the   fact
    that he did not know [Father] was his biological father,           the
    undersigned, as legal counsel, was unable to explain               the
    termination of parental rights proceeding and/or discuss           the
    potential adoption by [Fiancé].
    ***
    As a result, the undersigned was unable to set forth a
    position on the record since the undersigned was only appointed
    as legal counsel and not as a [GAL] and it could not be sufficiently
    ascertained as to what [Child’s] position would be regarding the
    termination of parental rights. However, the undersigned was
    able to view the relationship between [Child] and [Fiancé] and it
    was clear that the two had a strong bond particularly because
    [Child] identified [Fiancé] as his biological father and had never
    been told otherwise.
    Child’s Brief at 1-2.
    Under the unique circumstances presented here, we find that Attorney
    Madden’s representation of Child complied with the minimum requirements of
    Section 2313(a). While Child was just over six years old at the conclusion of
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    the termination hearing and may have been articulate enough to express his
    legal interests, he did not and could not possess a preferred outcome in this
    case. Child was still quite young and did not even realize that Father existed.
    Moreover, it may have been confusing and traumatic for Attorney Madden to
    tell Child that Father existed and it was a reasonable judgment on her part
    not to do so. Thus, Attorney Madden discharged her duty as Child’s counsel
    to the best of her ability, based on his age, mental condition, and emotional
    condition, and we see no basis upon which to remand this matter for further
    proceedings.
    Because we conclude that Child received adequate representation of his
    legal interests in accordance with L.B.M. and its progeny, we may now turn
    to the merits of this appeal. We focus our analysis on Petitioners’ second and
    third claims, in which they challenge the finding of the orphans’ court that
    they failed to present clear and convincing evidence to terminate Father’s
    parental rights.9
    Section 2511 of the Adoption Act governs involuntary termination of
    parental rights. See 23 Pa.C.S.A. § 2511. It 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
    ____________________________________________
    9In light of our conclusion with regard to Petitioners’ second and third claims,
    we need not consider their first claim, in which they argue that the orphans’
    court erred by finding that the Adoption Act would not permit Fiancé to adopt
    Child.
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    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.
    In re L.M., 
    923 A.2d 505
    , 511 (Pa. Super. 2007) (citations omitted).
    Petitioners filed their petition pursuant to Sections 2511(a)(1) 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:
    (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 of notice of the
    filing of the petition.
    23 Pa.C.S.A. § 2511(a)(1), (b).
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    For a petitioner to meet the requirements of Section 2511(a)(1), he or
    she “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.” In re Z.S.W., 
    946 A.2d 726
    , 730 (Pa.
    Super. 2008). The orphans’ court must then consider the parent’s explanation
    for his or her abandonment of the child, in addition to any post-abandonment
    contact. 
    Id.
     (quoting In re Adoption of Charles E.D.M., 
    708 A.2d 88
    , 92
    (Pa. 1998)). A parent does not perform parental duties by displaying a merely
    passive interest in the development of his or her child. In re B.,N.M., 
    856 A.2d 847
    , 855 (Pa. Super. 2004), appeal denied, 
    872 A.2d 1200
     (Pa. 2005)
    (quoting In re C.M.S., 
    832 A.2d 457
    , 462 (Pa. Super. 2003), appeal denied,
    
    859 A.2d 767
     (Pa. 2004)). Rather,
    [p]arental duty requires that the parent act affirmatively with
    good faith interest and effort, and not yield to every problem, in
    order to maintain the parent-child relationship to the best of his
    or her ability, even in difficult circumstances. A parent must utilize
    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. Parental
    rights are not preserved by waiting for a more suitable or
    convenient time to perform one’s parental responsibilities while
    others provide the child with his or her physical and emotional
    needs.
    
    Id.
     (citations omitted).
    Instantly, Petitioners maintain that the orphans’ court erred by denying
    their petition to terminate Father’s parental rights based on his “very minimal
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    recent effort” to reestablish contact with Child. Petitioners’ Brief at 16. They
    emphasize that courts must consider the whole history of a given case and
    not just the six months immediately preceding the filing of the petition. 
    Id.
    at 18-20 (citing In re D.J.S., 
    737 A.2d 283
    , 286 (Pa. Super. 1999)). They
    assert that Father’s abandonment of Child was so lengthy that his belated
    attempts to perform parental duties during the relevant six months were not
    sufficient to preserve his parental rights. Id. at 19-20. Petitioners further
    contend that the court placed too much weight on the alleged obstacles Mother
    created to prevent Father from performing parental duties. Id. at 20. They
    suggest that creating obstacles may have been “the right thing to do” in order
    to protect Child from the trauma of being reintroduced to Father after so many
    years. Id. at 20-22.
    We discern no abuse of discretion by the orphans’ court. As explained
    in our factual summary of this case above, Petitioners filed their involuntary
    termination petition on December 28, 2017. Thus, the six-month period set
    forth in Section 2511(a)(1) began to run on June 28, 2017. During that time,
    the record is clear that Father did nearly everything within his power to
    reestablish a relationship with Child and perform parental duties. Beginning
    in June 2017, Father contacted Mother’s sister on Facebook in an attempt to
    arrange visits with Child. He consulted his lawyer concerning ways to locate
    Mother and Child. Father then used a private investigation website to search
    for Mother and filed a custody complaint in Luzerne County. He spoke to a
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    police officer, searched publically available criminal dockets, and discovered
    that Mother had an active criminal case. Father and his lawyer contacted the
    office of the magistrate handling the case in an effort to obtain Mother’s
    address. He attempted to serve Mother personally by hiring Constable West
    and then resorted to service by publication. Finally, Father attended a custody
    conciliation and even obtained a custody order in Luzerne County. While it is
    true that Father did not actually succeed in making contact with Child, he
    strove to overcome the obstacles that Mother placed in his path. B.,N.M.,
    
    856 A.2d at 855
    .
    Further, while Petitioners are correct that orphans’ courts must consider
    the whole history of a given case and not just apply the relevant six-month
    period mechanically, the fact remains that the six-month period is the most
    critical part of the court’s analysis. D.J.S., 
    737 A.2d at 286
    . If we were to
    accept Petitioners’ argument and reverse the order of the orphans’ court, we
    would be ignoring the six-month period almost entirely. Because the Adoption
    Act required the court to focus its attention on the six months immediately
    preceding the filing of the petition, and because the record supports the court’s
    decision that Father made substantial efforts to perform his parental duties
    during that time, Petitioners are not entitled to relief. See In the Interest
    of D.F., 
    165 A.3d 960
    , 966 (Pa. Super. 2017), appeal denied, 
    170 A.3d 991
    (Pa. 2017) (“The Orphans’ Court is free to believe all, part, or none of the
    evidence presented and is likewise free to make all credibility determinations
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    and resolve conflicts in the evidence.”); In re R.J.T., 
    9 A.3d 1179
    , 1190 (Pa.
    2010) (“Even if an appellate court would have made a different conclusion
    based on the cold record, we are not in a position to reweigh the evidence and
    the credibility determinations of the trial court.”).
    Based on the foregoing, we conclude that the orphans’ court did not
    abuse its discretion or commit an error of law by denying the petition to
    terminate Father’s parental rights involuntarily.       Therefore, we affirm the
    court’s May 10, 2018 order.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/14/19
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Document Info

Docket Number: 1731 EDA 2018

Citation Numbers: 204 A.3d 496

Judges: Bowes, Stabile, McLaughlin

Filed Date: 2/14/2019

Precedential Status: Precedential

Modified Date: 10/19/2024