In the Int. of: A.I.S., Appeal of: T.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.I.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.T.S., FATHER
No. 115 EDA 2019
Appeal from the Order Entered December 10, 2018
In the Court of Common Pleas of Montgomery County
Orphans' Court at No(s): 2018-A0109
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS,J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 12, 2019
T.T.S. (Father) appeals from the order entered on December 10, 2018,
that granted the petition filed by the Montgomery County Office of Children
and Youth (OCY) to involuntarily terminate his parental rights to his child,
A.I.S. (Child), born in July of 2011. We affirm.
We begin by noting that the OCY filed termination petitions with regard
to Child and Father's two other children, twins A.J.S. and A.N.S., both born in
March of 2017. Father appealed to this Court seeking reversal of the trial
court's orders terminating his parental rights to all three children. However,
on February 28, 2019, Father filed a petition with this Court to discontinue the
appeals relating to the twins. Therefore, the only appeal presently before this
panel concerns the termination of Father's parental rights to Child.'
* Retired Senior Judge assigned to the Superior Court.
' The parental rights of J.S. (Mother) to the three children were also
terminated by the trial court at the same time. Mother is not a party to this
appeal.
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In its Pa.R.A.P. 1925(a) opinion, the trial court explained that in the
transcript of the December 6, 2018 hearing, it addressed its "reasoning as to
the entry of the [o]rders appealed from...." Trial Court Opinion, 1/7/19. In
order to address Father's issues raised on appeal, we set forth parts of the
court's discussion of its findings, as follows:
The three ... children entered OCY custody during March and April
of 2017.
Twins ... were born premature with allegedly no prenatal care and
addicted to drugs on March [], 2017. Upon their respective
releases from the hospital neonatal intensive care unit, the twins
were placed in [the] custody of OCY on March 16 and April 3 of
2017.
The oldest child ... went into OCY custody on April 10, 2017,
following a police raid for drugs at the family home on April 7,
2017.
Prior to the police raid and after the birth of the twins, both
parents tested positive for drugs on March 28, 2017, and both
admitted using drugs.
The initial Family Service Plan of the Office of Children & Youth
was created on April 10, 2017. Subsequent plans were dated June
27, 2017, and December 27, 2017. Neither parent successfully
achieved their Family Service Plan goals.
* * *
Birth [F]ather has been in jail since May the 9th, 2017,
approximately 19 months. According to OCY Exhibit 13, birth
[F]ather visited all kids once on May 4, 2017, before going to the
jail.
While the twins were in OCY custody, birth [F]ather visited the
twins four times. Since going to jail, birth [F]ather only visited
[Child]. Those visits began by video on November 27, 2017.
There have been no visits with the twins since then due to a court
order.
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OCY Exhibit 14 contains birth [F]ather's acknowledgment of
cocaine and opiate drug use. Birth [F]ather has not submitted a
urine test since March 28, 2018, due to his incarceration.
The twins have never been in the custody of their birth parents.
When [Child] entered OCY custody, she required significant dental
work and was behind in receiving her required immunizations.
She suffered from significant facial tics, her mobility was impacted
by constant tiptoe walking.
The children have lived in foster homes since entering OCY
custody. The twins live together in one foster home, while [Child]
resides in a separate foster home. The parents in both foster
homes have worked diligently to address the special needs of the
children, especially [Child] and [the female twin]. Since coming
into their lives the foster parents have developed a close bond
wherein the children have come to rely on their foster parents to
meet all of their needs, both physical and emotional.
* * *
Birth [F]ather has a limited bond with [Child]. This bond is filled
with uncertainty that fuels [Child's] current state of instability.
N.T., 12/6/18 at 108-11.
The trial court then discussed its findings as they relate to the grounds
for termination set forth in 23 Pa.C.S. § 2511(a)(1), (2) and (8). The court
indicated that the parents' drug use could equate with an incapacity to parent
and gross negligence. As for Father, the court considered his incarceration
and the lack of evidence of his attempts to avoid incarceration. The court also
considered the children's needs and welfare under 23 Pa.C.S. § 2511(b),
stating:
Currently in this case[,] the testimony clearly established that
there is affection between birth [F]ather and [Child]. Currently on
video and that video showed that [C]hild does react or interact
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with her [F]ather. Birth [F]ather has maintained throughout his
video visits as well as the prison visits prior to that consistent
contact and the [c]ourt received credible evidence and testimony
that there is a limited parental bond between the [C]hild and birth
[F]ather.
* * *
Despite the bond, this [c]ourt has not heard any evidence that the
birth parents or in this case more specifically the birth [F]ather is
ready to go home with [Child] today. Today is your day in court.
Father does not have a home. He is unable to give a time frame
for when he will go home.
* * *
In the case before me[,] I find that a parental bond between birth
[F]ather and [Child] exists. I find that there is no bond between
either birth parent and the twins.
I find that a stronger bond exists between [Child] and her foster
parents and I find that an even stronger bond exists between the
twins and their foster parents.
The children have a close relationship with their foster parents.
Both sets of foster parents are advocates for these children[,]
meeting their physical and their emotional needs to the point
where the children have come to rely on them for love and
stability.
Therefore, I find from the evidence and testimony that termination
of the birth mother's and the birth [F]ather's rights best serves
the needs and the welfare of [the children], and that termination
of the parental rights of the birth mother and the birth [F]ather
will not irreparably harm any of the children.
N.T. at 117-19.
Father filed a timely 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). He
raises the following issues for our review:
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1. DID THE TRIAL COURT ERR IN REFUSING TO CONTINUE THE
TRIAL UNTIL AFTER THE OUTCOME OF [FATHER'S] OPEN AND
RELATED CRIMINAL MATTER, WHICH WOULD THEREBY PERMIT
[FATHER] TO TESTIFY WITHOUT VIOLATING HIS RIGHT TO
REMAIN SILENT UNDER THE 5TH AND 14TH AMENDMENTS OF
THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9
OF THE PENNSYLVANIA CONSTITUTION?
2. DID THE TRIAL COURT ERR IN TERMINATING [FATHER'S]
PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.[] § 2511(A)(1)
WHERE BIRTH FATHER (I) PARTICIPATED IN EVERY VISIT MADE
AVAILABLE TO HIM PRIOR TO AN [D] DURING HIS
INCARCERATION, (II) MAINTAINED CONTACT WITH OCY, AND
(III) SHOWED APPROPRIATE LOVE AND CONCERN FOR HIS
CHILDREN?
3. DID THE TRIAL COURT ERR IN TERMINATING [FATHER'S]
PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.[] § 2511(A)(2)
SOLELY DUE TO HIS INCARCERATION?
4. DID THE TRIAL COURT ERR IN TERMINATING [FATHER'S]
PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.[] § 2511(A)(8)
WHERE PETITIONER PRESENTED NO EVIDENCE THAT THE
CIRCUMSTANCES LEADING TO OCY INVOLVEMENT COULD NOT
OR WOULD NOT BE REMEDIED?
5. DID THE TRIAL COURT IMPROPERLY SHIFT THE BURDEN TO
BIRTH FATHER WHEN TERMINATING PURSUANT TO 23 PA.C.S.[]
§ 2511(A)(1) AND (2)?
6. DID THE HONORABLE TRIAL COURT COMMIT ERROR BY
INVOLUNTARILY TERMINATING [FATHER'S] PARENTAL RIGHTS
TO THE CHILDREN WHERE THE EVIDENCE CONFIRMED THAT A
STRONG AND LOVING BOND EXISTED BETWEEN BIRTH FATHER
AND THE CHILDREN AND THAT THE PETITIONER WAS UNABLE TO
ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT
TERMINATION WAS IN THE BEST INTERESTS OF THE CHILDREN
AS CONTEMPLATED BY 23 PA.C.S.[] § 2511(B)?
7. DID THE HONORABLE TRIAL COURT ERR IN ADMITTING AND
RELYING UPON HEARSAY EVIDENCE WITHIN THE CERTIFIED
RECORDS OF [FATHER'S] CRIMINAL MATTERS?
Father's brief at 4.
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We begin by addressing Father's first issue relating to his request for a
continuance until after the outcome of his criminal matter. The basis for this
request was his concern that his testimony at the termination hearing would
implicate his 5th Amendment right to remain silent. Father claims that "[t]he
trial court impermissibly forced Father into a 'catch -22' of his constitutional
rights, forcing him to choose between exercising his right against self-
incrimination and his right to parent his child." Father's brief at 8. To explain
the interrelationship between Father's criminal charges and the termination
proceeding, Father's brief contains the following:
Here, Father possessed a right against self-incrimination on the
pending criminal charges against him at the time of the
termination of parental rights hearing. First, he faced charges for
drug delivery resulting in death and related offenses. Father also
faced criminal charges for endangering the welfare of a child and
related offenses. This second set of charges arose from a police
search of Father's home, which he shared with Mother, Paternal
Grandmother, and [Child]. Those criminal charges are
inextricably entwined with OCY taking custody of [Child], as OCY
took custody of [Child] because the police executed the search
warrant, which resulted in those criminal charges. Father has not
yet been convicted of the crimes of endangering the welfare of a
child and possession of drug paraphernalia.6 Therefore, at the
time of trial on this matter, he continued to possess his right
against self-incrimination.
6 Birth [F]ather subsequently pleaded guilty on
December 13, 2018[,] and was sentenced to an
aggregate prison term of 91/2 to 20 years between
both criminal matters.
Id. at 9 (some footnotes omitted). Thus, Father contends that because the
criminal matters were still outstanding at the time of the termination hearing,
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any statements he made could have been used against him in the criminal
proceeding.
Interestingly, Father relies on In re Adoption of .7.1., 530 A.2d 908
(Pa. Super. 1987), for the proposition that a parent has a constitutional right
to parent his child. However, he overlooks the portion of the .7..7. opinion,
which provides that:
[I]t the duty of our courts to protect children from abuse
is also
and neglect. The judicial system is society's last line of defense
against parental misconduct. Though we must respect the parent -
child relationship, we cannot afford it total deference. A parent
has the right to raise his child as he sees fit within the bounds of
decency and reason. He does not have a license to abuse and
neglect his helpless dependent.
Id. at 913.
Simply stated, Father could have testified about his ability to care for
Child, i.e., his capacity to parent, and his ability to meet Child's needs. He
then could have relied on his 5th Amendment right in response to any
questions directed to him about his criminal charges. Instead, Father chose
not to testify, thus, providing no evidence about his abilities relating to child -
rearing. As a result, Father has not convinced us that a continuance would
have changed the circumstances, especially in light of his pleading guilty to
the criminal charges a week after the termination hearing concluded. Father
is not entitled to any relief.
We next turn to the tenets that guide this Court when we review an
order terminating parental rights.
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Appellate review of termination of parental rights cases
implicate 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 1.1., 972A.2d 5, 8 (Pa. Super. 2009) (quoting In re S.D.T.,
Jr., 934 A.2d 703 (Pa. Super. 2007), appeal denied, 597 Pa. 68,
950 A.2d 270 (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.
In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc),
appeal denied, 581 Pa. 668, 863 A.2d 1141 (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.
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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).
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
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 763.
In re Adoption of .7.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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As noted above, the trial court terminated Father's parental rights
pursuant to Sections 2511(a)(1), (2), (8) and (b). 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.
Father's brief provides argument regarding the three subsections of Sections
(a) and (b), listed as issues 2, 3, 4 and 6. We have chosen to address and
analyze the court's decision to terminate Father's parental rights under
Section 2511(a)(1) 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:
(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. § 2511(a)(1), (b).
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In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided
direction relating to what considerations need to be addressed when reviewing
a trial court's decision to terminate parental rights under various subsections
of 2511(a). Specifically, relating to subsection (a)(1), the Z.P. Court stated:
A court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish
parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition.
In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court should
consider the entire background of the case and not simply:
mechanically apply the six-month statutory provision.
The court must examine the individual circumstances
of each case and consider all explanations offered by
the parent facing termination of his ... parental rights,
to determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
737 A.2d 283 (Pa. Super. 1999)).
In re Z.P., 994 A.2d at 1117 (emphasis in original).
In his brief, Father's argument, addressing subsection (a)(1), centers
on his allegation that OYC failed to carry its burden showing that "Father failed
to parent or evidenced a settled purpose of relinquishing his parental rights."
Father's brief at 11. He also claims that he took affirmative steps to parent
and attended every visitation offered him. The court addresses its findings
and conclusions in its discussion at the December 6, 2018 hearing, stating:
To satisfy the requirements of Section 2511(a)(1)[,] the moving
party must produce clear and convincing evidence of conduct
sustained for a period of six months, at least six months, prior to
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the filing of the petition, so that's the time frame I talked about
earlier from December of 2017 to June of 2018[,] which reveals a
settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. Once the evidence establishes
that failure to perform parental duties or that settled purpose of
relinquishing parental rights, then I have to look at another three
lines of inquiry. And as I stated just now, I believe that both birth
mother and birth [F]ather have evidenced before this [c]ourt or
the evidence has been clear and convincingly determined by me
that the parents have refused to perform their parental duties and
it reflects, clearly reflects, a settled purpose of relinquishing their
parental rights.
So now the next three things that I have to look at is the parents'
explanation of their conduct. I looked over my notes. I looked
over them again. And I didn't see anything. I did not see one bit
of evidence related to the parents' explanation for their conduct.
So then the second thing that I had to look at was the post -
abandonment contact between the parent and the child. I
received no evidence related to birth mother's contact. I did
receive evidence regarding birth [F]ather's contact, but only as it
related to [Child].
So the final consideration that this [c]ourt has to look at the
is
effect that terminating the parental rights would have on the
children pursuant to Section 2511(b). Those factors are listed in
the case In re: ZSW, cited at 946 A.2d 726 and 730. That is a
2008 Superior Court case.
In this case at hand, the [c]ourt hereby determines that OCY has
established by clear and convincing evidence that both birth
parents have failed to perform any parental duties for a period of
more than six months prior to the filing of the petition for
termination of parental rights as cited under Section (a)(1).
N.T. at 112-14.
Essentially, the trial court found that Father failed to complete the
objectives set out in the family service plan during the period beginning prior
to the six-month period before the filing of the petition. Moreover, Father
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provided no explanation relating to his conduct or his capability of even
performing minimal parenting duties, particularly in light of his incarceration,
which he claims was the sole basis for the court's decision. The court's
comments relating to Father's incarceration note that Father's lack of
testimony provided nothing to convince the court that Father attempted in any
way to avoid incarceration or to give an explanation about his conduct or
overcome any obstacles to his parenting. See In re Adoption of S.P., 47
A.3d 817, 830 (Pa. 2012) (stating, "that incarceration, while not a litmus test
for termination, can be determinative of the question of whether a parent is
incapable of proving 'essential parental care, control or subsistence....').
Although evidence was presented as to his contact with Child, none was
provided by Father himself in that he did not testify and the court found that
a stronger bond existed between Child and her foster parents. Thus, the court
concluded that the termination of his parental rights best serves Child's needs
and welfare and that the termination would not irreparably harm her.
Our thorough review of the record reveals that the trial court did not
abuse its discretion in ordering the termination of Father's parental rights.
The record supports the court's findings and conclusion that Father's refusal
or failure to perform parental duties occurred for a period of at least six
months prior to the filing of the petition. Moreover, the evidence shows that
Child has bonded with foster parents, who satisfy her needs. Additionally, we
note that a child's life "simply cannot be put on hold in the hope that [a parent]
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will summon the ability to handle the responsibilities of parenting." In re
Z.S.W., 946 A.2d. 726, 732 (Pa. Super. 2008) (citation omitted). "[A]
parent's basic constitutional right to the custody and rearing of [his or her]
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 at 856.
Since Father has not convinced us otherwise, we conclude that he is not
entitled to any relief.
In his fifth issue, Father contends that the court improperly shifted the
burden of proof from the agency to him in that there was a lack of evidence
about "Father's incarceration and what steps he took to avoid incarceration...."
Father's brief at 14. As stated previously in this decision, "the burden of proof
is upon the party seeking termination to establish by 'clear and convincing'
evidence the existence of grounds for [involuntarily terminating parental
rights]." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). In this case, that
entity is OCY. However, the T.F. decision also provides that under subsection
2511(a)(1), after the establishment of the factors set forth therein, "the court
must engage in three 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)." Id. at 742-43 (quoting In re:
Involuntary Termination of C.W.S.M., 839 A.2d 410, 415 (Pa. Super.
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2003)) (emphasis added). Here, without any testimony or evidence from
Father, he has failed to explain his conduct. Pursuant to T.F., Father is
required to counter OCY's evidence to the degree that he must explain his
conduct. This is not a shifting of the burden to him, and without an
explanation from him, the court did not err in accepting OCY's evidence
relating to Father's conduct, i.e., his imprisonment, and its impact on whether
a termination of his parental rights was in the best interests of Child. Thus,
this argument does not provide Father with relief.
In Father's final issue, he claims that the court erred by "admitting
certified court records related to Father's then -pending criminal charges that
contained hearsay testimony." Father's brief at 16. Father concedes that a
public record constitutes an exception to the hearsay rule. See Pa.R.E.
803(8). He states, however, that OCY's exhibits 6 and 7 include two criminal
complaints that "set forth the factual allegations against Father which were
either direct hearsay or based on hearsay statements." Father's brief at 16.
Therefore, he asserts that the court's admission of these statements
prejudiced him causing him not to receive a fair hearing. We disagree in that
Father has not identified the place in the record where a reference to those
documents was made, nor where the court indicated its reliance on those
documents to support its decision. Again, this argument does not provide
relief to Father.
Order affirmed.
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 8/12/19
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