In the Interest of: A.D., Appeal of: D.D. ( 2020 )

J-A12044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.D., NATURAL FATHER :
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: No. 74 WDA 2020
Appeal from the Order Entered December 13, 2019
in the Court of Common Pleas of Allegheny County,
Orphans' Court at No(s): CP-02-AP-0000047-2019.
IN THE INTEREST OF: T.A.D. A/K/A : IN THE SUPERIOR COURT OF
T.W., A MINOR : PENNSYLVANIA
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APPEAL OF: D.D., NATURAL FATHER :
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: No. 75 WDA 2020
Appeal from the Order Entered December 13, 2019,
in the Court of Common Pleas of Allegheny County,
Orphans' Court at No(s): CP-02-AP-0000048-2019.
IN THE INTEREST OF: R.E.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.D., NATURAL FATHER :
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: No. 76 WDA 2020
J-A12044-20
Appeal from the Order Entered December 13, 2019,
in the Court of Common Pleas of Allegheny County,
Orphans' Court at No(s): CP-02-AP-0000049-2019.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 08, 2020
In this consolidated matter, Appellant D.D. (Father) appeals the orders
involuntarily terminating his rights to his three daughters, five-year-old A.D.,
four-year-old T.A.D., and two-year-old R.D. (collectively, the Children),
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b).1 After review, we
affirm.
In its Pa.R.A.P. 1925(a) opinion, the orphans’ court thoroughly
addressed the complicated factual and procedural history, which we restate
as follows:
Children, Youth and Families of Allegheny County (CYF) filed
a petition seeking termination of parental rights (TPR)
relative to the Children on March 14, 2019. The Children
had been removed from [the] parents’ care pursuant to an
Emergency Custody Authorization (ECA) since July 26,
2017. On August 23, 2017, they were adjudicated
dependent pursuant to the Juvenile Act […] with the Juvenile
Court finding them to be without proper parental care and
control. They were placed in the kinship foster care
placement of their Maternal Grandmother on July 28, 2017
and have remained with [her] to date.
Pursuant to the Joint Stipulations of Counsel, […] the
parents were married in Pittsburgh, Pennsylvania on March
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1The orphans’ court also terminated the rights of E.D. (Mother), who did not
appeal.
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30, 2014. Father testified that he is currently 42-years-old.
Mother is currently 25. As of December 13, 2019, the date
of the TPR hearing, the Children were 5, 4, and 2.
On January 2, 2015, Mother filed a Protection From Abuse
(PFA) action against Father, alleging that he threw Mother
and their child down a concrete sidewalk and that there is a
history of physical and emotional abuse by Father including
threats to kill her. With Father’s consent, Mother obtained
a Final PFA Order on January 14, but, on February 12, 2015,
at Mother’s request, the PFA Order was terminated. FN 1.
FOOTNOTE 1: The language used by Mother in her
request for termination of the PFA order is noteworthy,
“I love him with all my heart and I (sic) willing to give it
another shot and I promise you won’t (sic) hear from us
again.”
The caseworker testified that the family first came to the
attention of CYF on May 11, 2015 when the family was
behind on rent and Mother, alleging that Father did not
listen to her, sought support from various mental health
agencies. Mother did not follow through with services and
the case was “screened out” by the agency.
The family next came to the attention of CYF on June 25,
2015 as a result of a police referral for what the caseworker
referred to as “interpersonal violence between caregivers.”
Apparently, the police took the Children to the home of
[Maternal Grandmother] and the case was again “screened
out” because CYF determined that the Children were safe in
the care of [Maternal Grandmother].[2] Next, on June 2,
2016, Mother and Father reported to the agency that they
were homeless and living in a car. They went to a homeless
shelter and needed support. This case was also “screened
out.” On June 25, 2016, CYF received a referral from
Washington County about an incident that took place
outside of a homeless shelter where the parents were
allegedly arrested for disorderly conduct and Father was
charged with a firearms violation. FN 3.
____________________________________________
2We clarify that the Children were not placed in Maternal Grandmother’s care
until July 2017.
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FOOTNOTE 3: Based on the testimony of Detective
Crousey, a firearms charge from 2015 against Father was
dismissed.
Apparently mother made the decision at that time that she
would move herself and the children to Maternal
Grandmother’s home. Therefore, the case was again
“screened out.”
Finally, in August of 2016, the case was accepted for
services by CYF because Father reported that the family was
homeless due to Mother’s untreated mental health issues.
Services were implemented to assist the family but the
agency had difficulty locating the family and they were
uncooperative and unhappy that CYF had appeared at their
home unannounced. In April 2017, the case was transferred
to the current caseworker who utilized a locator service and
was able to locate and meet with the family on May 5, 2017
at the location which has been the family home throughout
the life of the case. At the meeting, Father was cooperative
but Mother was screaming and yelling at [the caseworker].
She obtained releases of information and determined that
the two children ([the] youngest had not been born) were
behind medically and needed supportive services.
[In] June [] 2017, the youngest child was born and
reportedly tested positive for cocaine and marijuana. The
caseworker went to the home but was not permitted access
by Mother. The caseworker made a referral for intensive,
crisis level in-home services for the family. On July 25,
2017, the caseworker obtained and executed [an
Emergency Custody Authorization] because the parents had
failed to cooperate with the crisis services which were to
have been implemented in the home. The police
accompanied the caseworker and she observed the home to
be in complete disarray, smelling of urine and feces, with
items all over the floor, only a mini-fridge for food, and
bloody sanitary napkins in the bathroom sink. The two older
Children, wearing only diapers, were located in an upstairs
bedroom with only a mattress and sheet and a blanket
hanging in the window. Mother was holding the newborn
and the caseworker did not observe a crib or pack and play.
The older Children’s hair was matted and dirty; they were
non-verbal (speaking only unintelligible gibberish); and the
two-year-old appeared to have an issue with her gait.
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CYF set goals for both parents in order to assist them in
achieving reunification and the Juvenile Court conducted
permanency reviews every three months. The permanency
review orders find that neither parent demonstrated more
than minimal compliance with the permanency plan and no
more than minimal progress in remedying the
circumstances which necessitated the original placement
from November, 2017 until March 27, 2019 when Father’s
compliance was listed as moderate, although his progress
continued to be minimal.
Several additional items in the caseworker’s testimony are
noteworthy relative to Father’s compliance and progress.
She testified that she continues to send hearing notices to
both Mother and Father at the address from which the
Children were removed and that she believes that they
continue to reside together, although Mother is not at the
home consistently. The caseworker also testified that she
had gone to the home to implement coached visitation for
Father and that she heard “smashing and crashing” and
Mother shouting that [Father] better not put his hands on
her and that she would kill him. As a result, on April 25,
2019, the coached visitation was postponed by court order
pending domestic violence treatment. FN 6.
FOOTNOTE 6: Father claimed that he was incarcerated
as a result of an allegation by [Maternal Grandmother]
that he molested one of the Children. He said that this
happened when he was supposed to have the coached
visitation. The caseworker testified that although there
was a report that the youngest child had a bloody diaper
and because the parents were having coached visitation
at the time, there were potential perpetrators (along with
[Maternal Grandmother]), that situation was quickly
determined not to be the result of abuse and that Father
was arrested on an unrelated domestic violence warrant
when the police were contacted as a result of the
“smashing and crashing” that she heard.
Father did not provide verification that he had completed
[domestic violence] treatment until July 15, 2019.
CYF also presented the testimony of various police officers
who testified to various incidents involving Mother and
Father. One incident of note with respect to Father took
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place on April 18, 2018 in which Mother sought police
assistance claiming that Father had a knife and was going
to kill her. At the time of investigation, it was determined
that Father, who was very cooperative, did not have a knife
but Mother had a crack pipe. Another incident took place
on June 26, 2018, in which Mother was running towards
Father with a 12-inch butcher knife. Mother was criminally
charged but the case was dismissed or withdrawn because
Father failed to appear to testify. Another incident involving
Mother and Father took place on September 16, 2018, in
which Mother and Father were both at the residence and
Father struck a third party with a brick. The police officer
also located a knife which Father denied using but Mother
said Father had in his hand. The officer testified that she
went inside of the residence at the time and it was in
complete disarray, with items thrown everywhere and
moldy food in all of the rooms.
The caseworker testified that the Children were doing well
in [Maternal Grandmother’s] care and that they are well-
bonded to her. The parties also stipulated that [Maternal
Grandmother] has been meeting each Child’s
developmental, physical and emotional needs and welfare
since they were placed with her in July 2017. Evaluations
were performed by Dr. Eric Bernstein, an expert in the field
of individual and interactional psychological evaluations.
Mother never appeared for any evaluations. [Maternal
Grandmother] either missed evaluations or failed to bring
the Children three times. Finally, after four scheduled
evaluations, Dr. Bernstein concluded, that [Maternal
Grandmother] serves as a capable caregiver to whom the
Children are attached and that she meets the Children’s
needs and recognizes the importance of [Father’s] role in
the Children’s lives even despite her resentment of his role
in [Mother’s] life. With respect to Father, Dr. Bernstein
concluded that he exchanged affection and created an
environment of play, fun and offered them support as
necessary. However, Dr. Bernstein noted that he showed a
lack of knowledge about the Children’s overall
developmental needs and well-being which Father
attributed to the agency’s failure to provide him with the
necessary information.
At the hearing, Father denied responsibility for any of the
conditions leading up to the removal of the Children.
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Although he claimed he did everything he was asked to do
by CYF, he questioned why he had to do it since it was not
his fault. He acknowledged that he continues to reside at
the residence that Mother leases, although he claimed that
he has lived there by himself since the middle of 2018. In
response to representations by the caseworker that he and
Mother appeared together at the last Permanency Review
hearing in Juvenile Court on September 4, 2019, Father
testified that Mother has not visited the house since their
last court hearing when she came to get clothes for court.
Father admitted that Mother’s residence was not suitable for
the Children as it had a leaking roof and other deficiencies.
However, he blamed the caseworker for not finding him
another residence as he insisted that the lack of suitable
housing was the only impediment to reunification. He
blamed CYF and/or [Maternal Grandmother] for any missed
visits. FN 9.
FOOTNOTE 9: A great deal of time was spent at the
hearing on the issue of missed visits and CYF introduced
voluminous records of visitation schedules. (Exhibit 3). I
am not focusing on these issues because I did not find
grounds for termination for Father under Section
2511(a)(1) and further, any missed visits did not form
the basis to support termination on any of the grounds
that I did find.
Trial Court Opinion (T.C.O.), 2/14/20, at 1-7 (citations to the record and some
footnotes omitted).
The orphans’ court held the termination hearing on December 13, 2019
and issued its termination orders the same day. Father timely-filed this
appeal. He presents the following issues for our review:
1. Whether the [orphans’ court] committed fatal error
and/or abused its discretion in finding [CYF] met their
burden of proof and proved by clear and convincing
evidence that the parental rights of [Father] should be
terminated pursuant to 23 Pa.C.S.A. §2511(a)(2),
(a)(5), (a)(8)?
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2. Whether the [orphans’ court] erred and/or abused its
discretion by finding that [CYF] met their burden of
proof and proved by clear and convincing evidence
that terminating the parental rights of [Father] best
meets the needs and welfare of the minor child[ren]
pursuant to 23 Pa.C.SA. §2511(b)?
Father’s Brief at 9.
We review these issues 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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child[.]
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In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
In this case, the court terminated Father’s parental rights pursuant to
subsections 2511(a)(2), (5), (8), and (b). Those subsections 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:
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied by the parent.
[…]
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
reasonable period of time and termination of the parental
rights would best serve the needs and welfare of the
child.
[…]
(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
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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) ... 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.
Instantly, we observe Father’s vague concise statement of matters
complained of on appeal partially impeded the orphans’ court’s ability to
address Father’s issues. See T.C.O. at 8. The court explained: “A review of
Father’s concise statement discloses no specific rulings or errors I committed
but simply reiterates that my conclusions were in error. Such general
language fails to preserve any issues for review and renders the [orphans’]
court incapable of explaining its reasoning and the appellate court unable to
perform a meaningful review.” See id. (citing Lineberger v. Wyeth, 894
A.2d 141 (Pa. Super. 2006)). However, the orphans’ court subsequently
addressed the issues as best it could, because it acknowledged the gravity of
a termination proceeding.
Given the striking finality of the termination case, we are loath to find
waiver. Still, “[w]e cannot scour the record on appellant’s behalf trying to find
mistakes by the hearing judge. It is the appellant’s responsibility to precisely
identify any purported errors.” In re Child M., 681 A.2d 793, 799 (Pa. Super.
1996). Notwithstanding Father’s sweeping charge that CYF failed to meet its
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burden, we must limit our review only to those specific points raised in the
argument section of Father’s Brief. See id.; see also Pa.R.A.P. 2119(a) (the
argument section of an appellate brief must contain a full discussion of the
points raised accompanied by citation to pertinent authority).
Turning now to the substance of our review, we observe that we need
only agree with the court as to any one subsection of 2511(a), as well as
subsection 2511(b) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). We analyze the court’s decision to terminate under
subsection 2511(a)(8) and (b).
Under Section 2511(a)(8), the petitioning agency must prove by clear
and convincing evidence that: 1) the children have been removed from the
care of the parent by the court for at least 12 months; 2) the conditions which
led to the removal or placement of the child continue to exist; and 3)
termination would best serve the needs and welfare of the children. 23
Pa.C.S.A. § 2511(a)(8); see also In re C.L.G., 956 A.2d 999, 1005 (Pa.
Super. 2008) (en banc).
The first element is beyond dispute. The Children were removed from
parental care and placed with their Maternal Grandmother in July 2017,
approximately 29 months prior to the termination hearing. Regarding the
second element, Father does not contest the court’s determination that the
conditions which led to removal still exist. See Father’s Brief at 15-19. His
primary argument is that conditions can be remedied, and that he remains
willing to remedy the conditions. Id. at 16. But that is not a proper
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consideration under Section 2511(a)(8); the question is whether the
conditions still exist.
Ultimately, CYF has propped Father up with services for over two years,
but the best argument Father can muster is that it would not take him long to
remedy the conditions. This argument is without merit. See In re Z.S.W.,
946 A.2d 726, 732 (Pa. Super. 2008) (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.”) While the orphans’ court found Father was
moderately compliant with CYF, the court also found that his progress was
minimal. For instance, in its Pa.R.A.P. 1925(a) opinion, the court explained
that its overarching concern with respect to all three statutory termination
sections was Father’s failure to realize that the Children were in serious danger
when they were removed from him. See T.C.O. at 9. Because Father
continued to deny responsibility for the conditions that led to removal, the
court feared that the Children would be neglected again. The court opined
that “services did not appear to help.” Id. at 10. Father provides no argument
or support to refute this determination. We agree with the orphans’ court’s
conclusions that CYF sufficiently proved the second element of the Section
2511(a)(8) analysis.
The third and final element under a Section 2511(a)(8) analysis is
whether termination would best serve the Children’s needs and welfare. This
inquiry is distinct, albeit discreetly so, from the “needs and welfare” analysis
under Section 2511(b). We have previously explained the nuance as follows:
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We note that, initially, 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) explicitly requires an evaluation of the “needs and
welfare of the child” prior to proceedings 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) accounts for the needs of
the child in addition to the behavior of the parent.
Moreover, only if a court determines that a 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)[.] 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 Children], as proscribed by Section 2511(b)[.]
In re C.L.G., 956 A.2d at 1008-1009 (internal citations and some quotation
marks omitted).
While Father dedicates an entire portion of his Brief to the Section
2511(b) “needs and welfare” analysis, he offers no argument concerning the
Section 2511(a)(8) analysis beyond a generic statement that the Children
would be best served by being raised by their biological father. See Father’s
Brief at 18 (citing Santosky v. Kramer, 455 U.S. 745, 767 (1982)). Again,
we will not scour the record in search of support for this contention; we
conclude that the orphans’ court did not abuse its discretion in determining
that CYF met all the elements of termination under Section 2511(a)(8).
Next, we consider Children's needs and welfare pursuant to subsection
(b). See Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). “In this context, the
court must take into account whether a bond exists between child and parent,
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and whether termination would destroy an existing, necessary and beneficial
relationship.” Z.P., 994 A.2d at 1121. The court is not required to use expert
testimony, and social workers and caseworkers may offer evaluations as
well. Id. Ultimately, the concern is the needs and welfare of a child. Id.
We have said:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love,
comfort, security, and closeness—entailed in a parent-child
relationship, as well as the tangible dimension. Continuity of
the relationships is also important to a child, for whom
severance of close parental ties is usually extremely painful.
The trial court, in considering what situation would best
serve the child[ren]'s needs and welfare, must examine the
status of the natural parental bond to consider whether
terminating the natural parent's rights would destroy
something in existence that is necessary and beneficial.
Matter of M.P., 204 A.3d 976, 984 (citing Z.P., 994 A.2d at 1121).
The court may equally emphasize the safety needs of the child and may
consider intangibles, such as the love, comfort, security, and stability the child
might have with the foster parent. M.P., 204 A.3d at 984 (citing In re N.A.M.,
33 A.3d 95, 103 (Pa. Super. 2011)). Where there is no evidence of a bond
between the parent and child, it is reasonable to infer that no bond exists.
Id. “[A] parent's basic constitutional right to the custody and rearing of ... her
child is converted, upon the failure to fulfill ... her parental duties, to the child's
right to have proper parenting and fulfillment of [the child's] potential in a
permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (internal citations omitted).
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Instantly, Father notes that CYF’s expert, psychologist Dr. Bernstein,
and its own caseworker recognized an attachment between the Children and
Father. See Father’s Brief at 21-22. Father also argues that some of his
missed visits were caused by Maternal Grandmother’s vacation and her
intentional withholding of the Children. Id. at 22. Father concludes that
permanency could have been obtained without termination, had CYF pursued
permanent legal custodianship. Id. at 22-23.
Indeed, Dr. Bernstein observed Father showing affection for the Children
and that Father created a supportive environment of play and fun. He noted
that Father and Children shared a limited bond. But in Dr. Bernstein’s
estimation, the bond was limited because Father displayed a lack of
appreciation for the Children’s developmental needs and visitation schedule.
Dr. Bernstein was unable to provide an expert opinion about permanency, as
Mother did not attend her scheduled appointments. Dr. Bernstein ultimately
opined that Maternal Grandmother was a capable caregiver to whom the
Children were attached. Meanwhile, the CYF caseworker recognized
attachment between the Children and Father, but testified that the Children
were, in fact, bonded to Maternal Grandmother. The Children did not ask for
Father, look for him, or speak with him on the phone.
Moreover, when the Children entered Maternal Grandmother’s care, the
two eldest Children were nonverbal. A.D., the oldest child, might be on the
autism spectrum, although there does not yet appear to be a definitive
diagnosis. Meanwhile, Father either denied that the Children had any issues,
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or blamed CYF for not making him aware of them. In the two plus years since
the Children entered Maternal Grandmother’s care, the Children have been
forced to rely solely on Maternal Grandmother to meet their needs and
welfare. Clearly, whatever bond the Children had with Father was not so
beneficial to merit preservation. The court did not abuse its discretion by
determining that CYF met its burden under Section 2511(b).
In sum, we conclude that the orphan’s court did not err or commit an
abuse of discretion by finding involuntary termination of Father’s rights was
warranted under Section 2511(a)(8) and (b) of the Adoption Act.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2020
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