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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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