In Re: D.A.R., Appeal of: M.A.S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: D.A.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.A.S. FATHER :
:
:
:
:
: No. 61 MDA 2023
Appeal from the Decree Entered December 16, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0173a
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: AUGUST 2, 2023
M.A.S. (Father) appeals from the decree, entered on December 16,
2022, that granted the petition filed by the York County Office of Children
Youth and Families (CYF) to involuntarily terminate his parental rights to his
son, D.A.R. (Child), born in July of 2021. Following our review, we affirm the
decree on appeal.1
CYF filed a petition for involuntary termination of parental rights
pursuant to Sections 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act, 23
Pa.C.S. §§ 2101-2938. The orphans’ court’s Pa.R.A.P. 1925(a) opinion
indicates that it adopted its opinion that was stated on the record at the end
of the termination of parental rights hearing, held on December 14, 2022, and
December 16, 2022. See Orphans’ Court Opinion (OCO), 2/14/23, at 1; N.T.,
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1 The parental rights of M.G.R. (Mother) were also terminated on the same
date; however, Mother did not file an appeal.
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12/16/22, at 159-200. The orphans’ court also indicates that it took “judicial
notice of the statements made in the amended motion for judicial notice that
was filed December 12, 2022. That statement outlines the findings made in
the underlying dependency action and comports with the orders that were
entered as identified in that motion.” OCO at 3 n.8 (citing N.T., 12/14/22, at
15). From the foregoing, we glean the following facts.
This matter began on July 16, 2021, shortly after Child was born. An
order for emergency protective custody was issued and Child was placed in
foster care. Although at first Father questioned paternity, he withdrew this
claim and requested partial supervised visitation, which was granted and over
time expanded, but with continued supervision. Father was employed,
working the third shift, which caused Father to fall asleep and not be attentive
to Child during visitation. Moreover, Father’s home was found not to be
appropriate. Father was ordered to complete a parenting capacity
assessment, continue participation in individual therapy, cooperate with
Catholic Charities, and continue to comply with supervised visitation. Child
was doing well in the foster home.
Following a permanency review in December of 2021, Father was found
to be moderately compliant with the permanency plan. He continued to work
third shift and was scheduled for the parenting capacity assessment in January
of 2022. His goals were outlined as follows:
i. Father’s therapeutic goals to be addressed were (1) safe
decision making, (2) responses to situation and
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environment, and (3) assuring that Father’s relationships
are safe for himself and the minor child.
ii. Father’s advocacy goals were (1) housing, (2)
employment, (3) finances and budgeting, (4)
transportation, (5) parenting capacity, (6) assuring
participation in the minor child’s appointments, and (7)
domestic violence and anger management.
Amended Motion for Judicial Notice (AMJN), 12/12/22, at 9. Although Father’s
progress was rated as moderate, “there continue[d] to be some concerns
regarding the anger management services and the completion of the Parenting
Capacity Assessment.” Id. In response to recommendations suggested to
Father, he attended individual counseling, but did not start couples counseling
or anger management classes. Although Father did not attend Child’s Early
Intervention sessions, he did continue to visit with Child, which went well.
In a status review order issued by the trial court on March 18, 2022, the
orphans’ court determined that Father was making moderate to significant
progress with fully supervised visitation with Child, which was moved to
Father’s home. He continued to work full time and could financially support
Child. He attended weekly counseling for anger management and domestic
violence, which “was adjusted to accommodate Father’s borderline intellectual
functioning.” Id. at 13.
In the permanency review order issued on June 1, 2022, the orphans’
court found Father’s compliance to be only moderate. He remained employed
at Burger King. In his home, Father kept a large snake in the bedroom in
which Child would reside if reunified with Father. A lot of people resided in
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Father’s home, including his significant other, who needed to complete a
parenting capacity addendum, and Father was to continue visitation coaching,
parenting education, and bi-weekly outpatient counseling. Father was
discharged from anger management classes, had completed a parenting
capacity assessment, and was diagnosed with unspecified trauma. It was
determined that Father may be able to parent a child if he had support. It
was recommended that Father’s visits with Child transition to partial
supervision, but there was a need to continue placement of Child outside the
care and custody of Father.
The findings and conclusions provided in the status review order, dated
September 12, 2022, indicated that concerns remained as to Father’s
residence and that police were frequently called there due to domestic
disputes. Father reported he had changed jobs but provided no
documentation. Partial visitation with Child continued at Father’s home;
however, when caseworkers made visits, it was noted that broken glass was
found in the home which made the location unsafe for Child. It was also noted
that Father allowed his significant other to take Child to the store even though
she had a lengthy history with CYF. Concerns continued about Father’s
significant other and the necessity to have frequent contact with the police.
Father was not in individual therapy as was recommended. As for Child, he
continued to do well in the foster home and was bonded with his foster
parents. Child continued with Early Intervention, but Father had not attended
any of these appointments. It was also reported that Child experienced night
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terrors after visits with Father. In light of these findings, the court determined
that “the current placement goal was not appropriate and/or feasible in that
neither parent ha[d] made significant progress toward[] reunification.” Id. at
20. Therefore, the court changed the primary goal to adoption, but
reunification with Father was a concurrent goal.
The November 16, 2022 permanency review order provided that
Father’s compliance with the permanency order was moderate. Father
reported that he continued employment but provided no pay stubs or
verification to CYF. He also indicated that he would be moving from the house
he shared with his significant other, but continued to remain in their home
despite the fact his significant other seemed to perpetuate the conflicts
between her and Father, and he took no steps to reduce the conflict. His
significant other reported that he hit her during one of Child’s visits. Father
admitted to arguments but denied domestic violence. Therefore, visits with
Child returned to fully supervised. Father also missed a visit with Child and
declined a Zoom visit. He also did not provide the necessary special brand of
diapers and milk that Child required due to acid reflux, eczema and rashes
from milk protein. Rather, the foster mother provided these necessities.
Father was attentive to Child during visits but did not feed Child or parent him.
The court concluded that “Father made minimal progress toward alleviating
the circumstances which necessitated the original placement.” Id. at 23.
Additionally, in the November order, the court discussed how well Child
was doing in the foster home. He was receiving weekly occupational therapy
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and was working on feeding and food aversions. Although given notice by the
foster mother, Father did not attend medical appointments or Early
Intervention sessions. The court determined Child’s placement outside
Father’s custody continued to be needed. Thus, the court found that it was in
Child’s best interest to be free for adoption and that he could remain with the
only parents providing for his care.
As noted above, the hearing on the termination petition was held on
December 14th and 16th of 2022. CYF presented the testimony of a caseworker
involved in the matter and the foster mother. Father testified on his own
behalf. The court then issued its decree terminating Father’s parental rights
to Child pursuant to Section 2511(a)(1), (2), (5), (8) and (b) of the Adoption
Act. Thereafter, Father filed a timely appeal to this Court, setting out the
following issues in his brief:
I. Whether the orphans’ court erred in terminating the parental
rights of Father pursuant to [S]ection 2511(a)(1), (2), (5) and
(8) of the Adoption Act?
a. The evidence did not support by clear and convincing
evidence that Father had evidenced a settled purpose of
relinquishing parental claim to [C]hild or has refused or
failed to perform parental duties.
b. The evidence did not support by clear and convincing
evidence that [C]hild was without parental care or control
or that the conditions which led to the initial placement
would not or could not be remedied by Father.
c. There was not clear and convincing evidence that [F]ather
could not or would not remedy the conditions which led to
the initial removal.
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d. There was not clear and convincing evidence that the
conditions which led to the removal or placement of [C]hild
continued to exist and termination of parental rights would
best serve the needs and welfare of [C]hild.
II. Whether the orphans’ court erred in concluding that
termination of parental rights would best serve the needs and
welfare of … Child pursuant to [S]ection 2511(b) of the
Adoption Act?
III. Whether the orphans’ court erred in concluding Father failed
to meet many of his goals as Father was doing well until [] his
visits were changed back to supervised visits due to “concerns”
about domestic violence, which were never substantiated?
Father’s brief at 6-7.2
Appellate review of termination of parental rights cases
implicate[s] the following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether
the order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the
welfare of the child.”
In re I.J., 972 A.2d 5, 8 (Pa. Super. 2009) (quoting In re S.D.T.,
Jr., 934 A.2d 703 (Pa. Super. 2007), appeal denied, … 950 A.2d
270 ([Pa.] 2008)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
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2 Father listed a fourth issue, but in the Argument Section of his brief he
withdraws that “issue from this Court’s consideration.” See Father’s brief at
36. Therefore, we do not include it in the list of issues raised.
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In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc),
appeal denied, … 863 A.2d 1141 ([Pa.] 2004) (internal citations
omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002)
(internal citations and quotation marks omitted).
In re Z.P., 994 A.2d 1108, 1115-16 (Pa. Super. 2010).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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However, we need only agree with the trial 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 at 384.
We therefore consider the orphans’ court’s termination of Father’s
parental rights pursuant to Section 2511(a)(8) and (b), which provide:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
. . .
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
. . .
(b) Other considerations.-The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(8), (b).
This Court has stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(8), the following factors must be demonstrated: (1) the
child has been removed from parental care for 12 months or more
from the date of removal; (2) the conditions which led to the
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removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003); see
also 23 Pa.C.S. § 2511(a)(8).
“Section 2511(a)(8) sets a 12-month time frame for a parent to remedy
the conditions that led to the children’s removal by the court.” In re A.R.,
837 A.2d 560, 564 (Pa. Super. 2003). Once the twelve-month period has
been established, the court must next determine whether the conditions that
led to the child’s removal continue to exist, despite the reasonable, good faith
efforts of CYF supplied over a realistic period. Id. The “relevant inquiry in
this regard is whether the conditions that led to removal have been remedied
and thus whether reunification of parent and child is imminent at the time of
the hearing.” In re I.J., 972 A.2d at 11. This Court has acknowledged:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013) (quoting I.J., 972 A.2d at
11-12).
With respect to the “needs and welfare” analysis pertinent to section
2511(a)(8) and (b), we have observed:
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[I]nitially, the focus in terminating parental rights is on the parent,
under Section 2511(a), whereas the focus in Section 2511(b) is
on the child. However, Section 2511(a)(8) explicitly requires an
evaluation of the “needs and welfare of the child” prior to
proceeding to Section 2511(b), which focuses on the
“developmental, physical and emotional needs and welfare of the
child.” Thus, the analysis under Section 2511(a)(8) accounts for
the needs of the child in addition to the behavior of the parent.
Moreover, only if a court determines that the parent’s conduct
warrants termination of his or her parental rights, pursuant to
Section 2511(a), does a 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.” Accordingly, while both Section 2511(a)(8) and Section
2511(b) direct us to evaluate the “needs and welfare of the child,”
we are required to resolve the analysis relative to Section
2511(a)(8), prior to addressing the “needs and welfare” of [the
child], as proscribed by Section 2511(b); as such, they are distinct
in that we must address Section 2511(a) before reaching Section
2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en
banc) (citations omitted). “Section 2511(a)(8) does not require an evaluation
of the remedial efforts of either the parent or [the Agency].” In re B.C., 36
A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956 A.2d at 1007).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
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. 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
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the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
The thrust of Father’s argument relating to subsection (a)(8) is that CYF
did not carry its burden. Although Father concedes that the 12-month period
required in subsection (a)(8) has elapsed, he “does not concede that the
conditions which led to the removal of [C]hild continue to exist or could not
be remedied promptly.” Father’s brief at 28. He asserts that the initial
concerns were with Mother and that he made progress during much of the
case and his visits with Child became partially supervised visits in his home.
Father also points out that he maintained employment and stable housing.
Additionally, he asserts that he “complied with the Agency’s request for a
Parenting Capacity Assessment[] and engaged in counseling and anger
management counseling.” Id. at 29. He further relies on the Parenting
Capacity Assessment that showed he could raise Child with support. He also
argues that the record did not support the court’s conclusions that there were
domestic violence concerns. With regard to subsection (b), Father asserts
that the bond between him and Child is limited because of the amount of time
he spends with Child. He also contends that he is ready to have Child in his
home and that he “has extended family in the area that would be supportive
and would love to see [C]hild.” Id. at 32.
The orphans’ court responded to Father’s arguments set forth in his first
and second issues, specifically, those relating to subsections (a)(8) and (b) as
follows:
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The [c]ourt has noted that [Father] had some instances of
progress in remedying the conditions that initially caused
placement. However, these instances were only brief windows of
time in which [Father] showed minimal motivation to fully remedy
those conditions to achieve reunification. Brief instances of
improvement do not negate that the second element of this factor
is satisfied. Though an unpublished opinion, we find compelling a
Superior Court decision that affirmed a trial court’s finding
regarding similar conduct by a parent when it terminated the
parental rights of a mother under § 2511(a)(8), when the mother
made inconsistent and sporadic progress towards remedying the
conditions that led to the initial removal only to subsequently
rescind on that progress each time. As the court so aptly stated:
It was proper for the trial court to conclude that
Mother has exhibited a pattern of poor judgment and
bad decision making, and that she failed to correct
that pattern.
In the Interest of J.M.K., 159 A.3d 44 (Pa. Super. … 2016)
([u]npublished).[3]
Similarly, although [Father] achieved some progress toward
addressing the conditions that led to [C]hild’s removal, the second
element of this factor is still satisfied, as he shows a clear pattern
of poor judgment and bad decision[-]making which resulted in
conditions re-emerging and leaving [C]hild to languish in care.
For example, [Father] would appropriately change [h]is work
schedule, but changed it back. [Father] progressed to partially
unsupervised custody, but then required full supervision. [Father]
picked which treatment and programs he wanted to participate in,
but refused to entertain most attempts to assist him.
Specifically, [Father] did not adequately or consistently
address his housing or his employment issues, which were the
issues that le[]d to the initial removal. He found suitable housing,
but quickly returned to unsuitable housing. He switched to work
a shift that would permit basic childcare, and then returned to
working 3rd shift without developing any plan for supervision of
[C]hild by a competent adult while he was at work. Over the
course of sixteen (16) months, [Father] made arbitrary and poor
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3 We remind the orphans’ court that only unpublished non-precedential
memorandum decisions of the Superior Court filed after May 1, 2019 may be
cited for their persuasive value. See Pa.R.A.P. 126(b).
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decisions on what resources he did and did not feel like utilizing.
He made poor judgment about what constituted proper housing
or working hours that would allow for basic childcare. At one
point, he even declined the Agency’s offer of bus passes to help
with transportation to [C]hild’s medical appointments. Although
we need not consider the parent’s ability or willingness to remedy
these conditions under this subsection, [Father] showed through
his inconsistencies that he had the potential to remedy the
conditions when he felt inclined, but would do so … only for short
periods of time.
Like the Superior Court’s findings in In the [I]nterest of
J.M.K., the record reflects that [Father] had a pattern of poor
judgment and bad decision[-]making that he failed to correct. The
trial court submits that this is enough to satisfy § 2511(a)(8).
[Father’s] statement also contends that the [orphans’] court
erred in concluding that the third prong of the § 2511(a)(8)
analysis was satisfied, and that termination of parental rights
would not best serve the needs and welfare of [C]hild pursuant to
§ 2511(b) of the Adoption Act.
The [orphans’] court submits that it found termination would
best serve the needs and welfare of [C]hild based on clear and
convincing evidence presented by the [Agency]. In addition to
the daily needs being met exclusively in the foster home, [C]hild
has required specialized care for his multiple health issues.13 The
foster parents provided most, if not all, of the required supplies
for these issues for nearly [C]hild’s entire life. The foster parents
also ensured that the [C]hild attended ongoing medical
appointments and followed treatment plans. [Father] was not
able to consistently provide for [C]hild’s basic and special needs,
even with coaching and notice, at any time leading to the filing of
the petition. [Father] did not ask about [C]hild’s progress in
physical therapy or for any updates on [C]hild. [Father’s] inability
to provide consistent care would be particularly harmful to a child
with ongoing medical issues who requires a parent who can
perform tasks such as timely administer[ing] [C]hild’s medication
and ensur[ing] [C]hild attends his scheduled appointments.
13 [C]hild’s health concerns include reoccurring eczema
diaper rashes, muscle issues in his neck, eye[]tracking
issues, food aversion, lactose intolerance, and other
gastrointestinal issues that require special diapers and
formula.
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Furthermore, the Superior Court has held that common
sense dictates that when courts consider termination, they must
additionally consider whether the child is in a pre-adoptive home,
and whether the child has a bond with their foster parents. In re
T.S.M., 71 A.3d 251, 267-69 (Pa. Super. 2013). The record
shows that [C]hild has bonded with his foster parents, and that
his foster parents provide for his emotional needs as well. Again,
[C]hild’s foster parents were his caretakers for nearly his entire
life. Foster mother testified that [C]hild refers to his foster
parents as “mom” and “dad”, respectively. There was no
indication the Child had bonded with [Father], and it was reported
[C]hild experienced night terrors after visiting with him. [Father]
acknowledged in his own testimony that [C]hild does not refer to
him as “dada”. [Father] also acknowledge[d] [C]hild has little to
no interest in interacting with him during visits, and that there is
no bond between them. In light of these facts and [Father’s] own
admissions, [C]hild would suffer no long-term harm from severing
his contact with [Father], because there is little to no bond to
sever. Therefore, the trial court submits that termination of
parental rights best serves the needs and welfare of [C]hild.
OCO at 5-10 (footnotes citing pages in the N.T. omitted).
Based upon the facts found by the orphans’ court, which our review
reveals are supported by the evidence of record, we discern no abuse of
discretion by the court in its conclusion that the asserted grounds for seeking
termination of parental rights are valid and, additionally, that terminating
Father’s parental rights would best serve the developmental, physical and
emotional needs and welfare of Child.4
The entire thrust of Father’s third issue is essentially a restatement of
the facts that were found in his favor and his contention that some of the
court’s findings were not substantiated by the evidence. Again, we are
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4 We further observe that the attorney representing Child joined CYF’s brief
that was in support of the orphans’ court’s decision to terminate Father’s
parental rights.
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compelled to disagree with Father’s argument. Rather, the court’s extensive
review and discussion is supported by the record. Moreover, as noted earlier,
the orphans’ court is the sole finder of fact and the determiner of credibility of
the witnesses. See In re Z.P., 994 A.2d at 1116. We, therefore, conclude
that the court did not abuse its discretion or commit reversible error in
terminating Father’s parental rights. Accordingly, we affirm the decree from
which Father appealed.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2023
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