J-S40031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.D., FATHER : : : : : No. 1074 EDA 2023
Appeal from the Order Entered March 22, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0003191-2017
IN THE INTEREST OF: A.J.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.D., FATHER : : : : : No. 1075 EDA 2023
Appeal from the Decree Entered March 22, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000458-2020
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.D., FATHER : : : : : No. 1076 EDA 2023
Appeal from the Order Entered March 22, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0003192-2017 J-S40031-23
IN THE INTEREST OF: A.M.A.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.D., FATHER : : : : : No. 1077 EDA 2023
Appeal from the Decree Entered March 22, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000457-2020
BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED MAY 3, 2024
Appellant, A.D. (“Father”), appeals from the March 22, 2023 decrees of
the trial court that terminated his parental rights to his children, A.J.D. and
A.M.A.D. (collectively, “Children”). Father also appeals from the March 22,
2023 trial court orders that changed the permanent placement goal for
Children to adoption. After careful review, we affirm.
By way of background, the Department of Human Services of the City
of Philadelphia (“DHS”) received its first report, a general protective service
report,1 on September 26, 2017, alleging that Father had engaged in domestic ____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 Pennsylvania law defines two types of reports received by county agencies.
A “general protective service report” is “[a] verbal or written statement to the county agency from someone alleging that a child is in need of general protective services[,]” with those services being designed to prevent the potential for harm to a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary (Footnote Continued Next Page)
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violence, physical abuse, and inappropriate discipline in the Children’s
household. See N.T., 4/18/18, at 37-39. At that point in time, A.J.D. was
three years old and A.M.A.D. was one year old. In addition to the Children,
five maternal half-siblings resided in this household with Father and B.S.
(“Mother”). DHS validated the report through one of the Children’s half-
siblings, who indicated that she was fearful of Father because, inter alia, he
beat her with a cord and broom.2 See id., at 38-40.
Notwithstanding this report, evidence suggested that Father had moved
out of the same residence as Mother and the Children.3 See id., at 40 (DHS
investigator stating that she “was told that [Father] was not [living in the
home]”). Because of this apparent departure, DHS kept the Children in
Mother’s house and implemented Community Umbrella Agency (“CUA”)
____________________________________________
for his physical, mental, or emotional health, or morals.” 55 Pa. Code § 3490.223(i). In contrast, a “child protective report” is made by someone who has “reasonable cause to suspect that a child has been abused.” 55 Pa. Code § 3490.11(a).
2 Throughout the course of its investigation, DHS also learned that Mother had
once tried to obtain a Protection from Abuse (“PFA”) Act order against Father. See N.T., 4/18/18, at 42. Although she never expressly admitted that she had been abused, Mother implied that she was afraid of Father. See id., at 41. Other women, too, have initiated PFA proceedings against Father. See id., at 44. Father also has a prior conviction for involuntary manslaughter of a former paramour.
3 Father’s place of living remained unclear throughout sizable portions of the
proceedings, with Father’s attorney conveying to the court that he lived, at various points, in Johnstown, Pennsylvania, as well as Philadelphia.
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services in the family’s home. See id., at 41 (remarking that there was no
“imminent need to remove the children” at the time).
In October 2017, DHS received a second report, a child protective
report, primarily alleging that Father had punched one of the Children’s half-
siblings at some undefined point. See id., at 44-45. The half-sibling stated
that “she received a black eye from this [incident].” Id., at 46. Father denied
that he was physically abusive, see id., at 47 (Father also denying that he
was committing any domestic violence), but despite indicating that he was no
longer living with Mother, he did not provide an updated address. See id., at
49 (during the DHS investigation, Father was “just there, babysitting”).
Mother denied that there was any physical abuse occurring to any of her
children. See id., at 49. Eventually, after further investigation, DHS filed
dependency petitions for the Children. See id., at 48.
In December 2017, there was a third report directed to DHS alleging
domestic violence. See id., at 55. However, when several of the Children’s
half-siblings were interviewed by DHS, other than providing vague intimations
of improper conduct, they were unwilling to speak about their home life. See,
e.g., id., at 56 (one of the half-siblings demeanor described as “[v]ery
guarded”), 59 (another of the half-siblings stating that although she did not
want to speak to DHS, “she felt it was best if the kids were removed from the
home[]”).
Ultimately, on December 11, 2017, DHS obtained orders of protective
custody (“OPC”) for all seven children living with Mother due to domestic
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violence concerns. See id., at 59. Following a shelter care hearing, which
occurred several days after the issuance of the OPCs, the Children were
temporarily committed to DHS’s custody.4 See Shelter Care Order, 12/15/17,
at 1-2. At this juncture, Father and Mother’s visitation rights were also
suspended. See id., at 2.
In January 2018, DHS received a fourth report, alleging that Father had
burned one of the Children’s half-siblings, two years old at the time, in a bath
some four years prior. See N.T., 4/18/18, at 60, 67. In response, Father
admitted that he left this half-sibling unsupervised, which led to burns on that
individual’s foot. See id., at 64. However, Father also indicated that instead
of going to seek medical treatment, the family treated the half-siblings’
wounds themselves. See id., at 65.
On April 18, 2018, following a full hearing in which Mother and Father
were represented by counsel, the court adjudicated Children and their half-
siblings dependent and committed them to DHS’s custody. See Order of
Adjudication and Disposition, 4/18/18, at 1. Father was additionally referred
for a parenting capacity evaluation and domestic violence classes. See id., at
2. Father’s visitation rights were also suspended until he completed domestic
violence counseling. See id. It was at this point that Father obtained a single
case plan that indicated he should engage with the Children pursuant to the
4 The Children resided in the same pre-adoptive foster home from December
2017 onward. See N.T., 4/18/18, at 77. The other minor half-siblings were placed in kinship care. See id., at 62, 77.
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court order, avail himself of CUA services, and participate in domestic violence
counseling, parenting classes, and anger management classes. See id.
Following these determinations, the court, in subsequent review
hearings, continued to find Children’s placement to be necessary and
appropriate, with DHS and CUA making reasonable efforts to finalize their
permanency plans. See, e.g., Permanency Review Order, 5/15/19.
In October 2018, Father was granted line-of-sight and line-of-hearing
supervised visitation, but he never progressed beyond supervised contact.
Father’s last visit with the Children was in March 2019. See Permanency
Review Order, 10/29/18.
Eventually, in December 2020, DHS filed petitions to involuntarily
terminate the parental rights of the Children’s Mother and Father and to
change the Children’s permanency goal to adoption. See Petition for Goal
Change to Adoption/Petition to Terminate Parental Rights. In May 2022, the
court held a hearing to address these concerns. By this point, the Children had
been in DHS’s care for fifty-three months. See N.T., 5/18/22, at 9. Father was
represented by counsel at this hearing, and Children were represented by legal
interests counsel and a guardian ad litem.
Therein, it was established that DHS validated, through extensive
investigations, four separate reports of Father engaging in domestic violence
and inappropriate discipline against Mother and the Children’s half-siblings.
See e.g., at 11-13. Moreover, CUA indicated that Father had not maintained
contact with the agency, nor had he completed his domestic violence, anger
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management, or parenting single plan objectives. See id., at 28-29. A
representative of CUA opined that Father had not demonstrated the necessary
protective capacity to parent the Children and had not even seen them for
over two years. See id., at 29. Furthermore, in the opinion of the CUA case
manager, the Children did not look to Father for love or support, which
compelled a conclusion that they would not suffer irreparable harm if Father’s
parental rights were terminated and the Children’s permanency goals were
changed to adoption. See id., at 31. The Children were reported to be very
happy in the foster home, and both Children looked to their foster mother for
their basic needs and support. See id., at 30.
Ultimately, in March 2023, the trial court terminated Father’s parental
rights and changed the Children’s goal to adoption.5 Specifically, the court
found that DHS established, by clear and convincing evidence, that
termination was warranted under Sections 2511(a)(1), (2), (5), (8), and (b)
of the Adoption Act. See 2511(a)(1), (2), (5), (8), (b). From the bench, the
court stated:
[Father] had both constructive and actual knowledge of his [s]ingle [p]lan objectives. The fact is co[rrob]orated by [Father’s] attendance at his supervised visits. He did not comply. … He did not simply guess the correct date and time, and location to be present for these visits. He was made aware of the visitation information and [s]ingle [c]ase [p]lan objectives on multiple occasions in court by the presiding judge and … CUA.
[The court was] not persuaded by his argument that his failure to ____________________________________________
5 The trial court also terminated Mother’s parental rights to Children. Mother
did not appeal.
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comply with the [s]ingle [p]lan objectives and make any progress is anyone’s fault but his own.
N.T., 3/22/23, at 9-10.
Father timely appealed these determinations and has complied with his
obligations under Pennsylvania Rule of Appellate Procedure 1925(b).
On appeal, Father raises seven issues for review, four challenging the
trial court’s involuntary termination of his parental rights to Children and three
contesting the court’s change of the Children’s permanency goal.
In addressing his first four issues, we apply the following precepts:
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 the Interest of J.R.R., 229 A.3d 8, 11 (Pa. Super. 2020) (quoting In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013)).
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. See In the Interest of L.W., 267 A.3d 517, 522 (Pa. Super.
2021). The clear and convincing evidence standard is defined as “testimony
that is so clear, direct, weighty and convincing as to enable the trier of fact to
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come to a clear conviction, without hesitance, of the truth of the precise facts
in issue.” Id. (citation omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act. “Subsection (a) provides eleven enumerated grounds describing
particular conduct of a parent which would warrant involuntary termination[.]”
In re Adoption of C.M., 255 A.3d 343, 359 (Pa. 2021); see 23 Pa.C.S. §
2511(a)(1)-(11). If the trial court determines the petitioner established
grounds for termination under subsection 2511(a) by clear and convincing
evidence, the court then must proceed to assess the petition under subsection
(b), which focuses on the child’s needs and welfare. See T.S.M., 71 A.3d at
267.
Here, the trial court terminated Father’s parental rights pursuant to
Sections 2511(a)(1), (2), (5), and (8), and subsection (b). However, this
Court may affirm the court’s decision to terminate if we agree with its
determination concerning any one subsection of Section 2511(a), as well as
Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). We focus our analysis on Section 2511(a)(1) and (b), which provide as
follows:
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
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* * *
(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), … 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).
To terminate a parent’s parental rights under Section 2511(a)(1), the
petitioner “must demonstrate by competent, clear and convincing evidence
[that] [t]he 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.” In re Adoption of C.M., 255 A.3d 343, 363-64 (Pa.
2021) (citation and quotation marks omitted).
With respect to a parent’s performance of parental duties under Section
2511(a)(1), our Supreme Court has explained as follows:
Parental duties are not defined in the Adoption Act, but our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance and support. Parental duties are carried out through affirmative actions and develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child’s life. Fortitude is required, as a parent must act with reasonable firmness to overcome obstacles that stand in the way of
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preserving a parent-child relationship and may not wait for a more suitable time to perform parental responsibilities.
In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (internal quotation
marks, brackets and internal citations omitted).
A parent’s failure or refusal to perform parental duties “must be
analyzed in relation to the particular circumstances of the case.” Id. (citation
omitted). Therefore, a court addressing a petition filed under Section
2511(a)(1) shall “examine the individual circumstances and any explanation
offered by the parent to determine if that evidence, in light of the totality of
circumstances, clearly warrants permitting the involuntary termination of
parental rights.” Id. at 593 (citation and brackets omitted). “Consideration of
the totality of the circumstances includes evaluation of the following: (1) the
parent’s explanation for his or her conduct; (2) the post-abandonment contact
between the parent and child, if any, including any efforts made by the parent
to reestablish contact with the child; and (3) the effect that termination of
parental rights would have on the child pursuant to Section 2511(b).” Id.
While courts must not engage in a mechanical application of the terms of the
Adoption Act, the “most critical period for evaluation [under Section
2511(a)(1)] is six months immediately preceding the filing of the termination
petition.” Id. at 592.
In its opinion, the court found that, given his lack of progress on his
single case plan and his complete absence from the Children’s lives, Father
unexplainably failed to perform his parental duties for a substantial amount of
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time:
Father never argued that he complied with or achieved his [single case plan] objectives or had made efforts to do so. The entirety of Father’s argument was that he was never informed by CUA or anyone else of what his [single case plan] objectives were. … [The lower court] reviewed the certified court record for this matter and determined that Father was present in court for this matter on at least eight prior occasions between the years of 2017 and the termination hearing on May 18, 2022. He also attended two hearings by video conference during the COVID-19 pandemic. The court records indicate that a representative from CUA was present on at least five of these occasions. … Father had both actual and constructive knowledge of his [single case plan] objectives. … [Father] attended supervised visits at various points during the history of this case. The only way that Father would be aware that his visits were supervised and when and where they were to occur is if it was communicated to him by a representative of CUA. Father would have been informed of his [single case plan] objectives by both CUA and the presiding judge before whom he appeared at each of the court listings of this case.
Trial Court Opinion 7/11/23, at 7 (footnote omitted).
Father’s single plan objectives were:
[t]o avail himself for family stabilization, to engage in visits with [C]hildren per the court order, to make himself available to CUA services, to make himself available to sign all needed consents and releases, to participate in domestic violence counseling …, to participate in parenting classes and to participate in anger management classes.
N.T., 5/18/22, at 28. However, Father did not attend any of these classes or
programs. See id., at 29. Furthermore, Father’s last visit with the Children
was in March 2019. See id., at 29, 50. As stated, supra, the petition to
terminate Father’s parental rights was filed in December 2020.
Other than baldly stating that he “never failed or refused to perform his
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parental duties,” Father’s Brief, at 14, Father’s only argument on appeal
pursuant to Section (a)(1) is that the CUA case manager’s testimony, which
established that Father “had not visited with the [C]hildren since March of
2019[,]” id.; see also N.T., 5/18/22, at 29, was “undocumented, hearsay
testimony of the caseworker[.]” Father’s Brief, at 14. In particular, Father
argues that the person who testified “had been assigned to the case … [for]
only two months” and “had no personal knowledge of [F]ather’s involvement
in visiting the children, or lack of involvement.” Id. However, a review of the
record establishes that Father raised no objection to the CUA case manager’s
testimony in this regard.6
In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. On appeal the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected. ... [O]ne must object to errors, improprieties[,] or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.
In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (quoting Thompson v.
Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008) (citation omitted)). As
such, Father’s claim of hearsay, as a basis to contradict his abdication of
6 Father did object to other portions of the CUA case manager’s testimony on
hearsay grounds, but not her testimony regarding Father’s last visitation with Children in March 2019. See N.T., 5/18/22, at 11-13, 17-23, 31.
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parenting duties, is waived. Even if it were not, the trial court permitted the
CUA case manager to testify as to other information she had gleaned from her
review of the agency file under the business records exception to the rule
against hearsay, see Pa.R.E. 803(6); N.T., 5/18/22, at 18-21, and Father has
offered no explanation as to why her testimony concerning his lack of visitation
derived from the same source would not also be permitted. We further note
that there is nothing in the record that contradicts the case manager’s clear
testimony that Father had not seen Children for more than a year prior to the
filing of the termination petition and for more than three years as of the date
of the hearing. N.T., 5/18/22, at 29. Accordingly, there was clear and
convincing evidence that Father failed to perform his parental duties for a
period of well over six months, and the lower court did not abuse its discretion
or commit an error of law in concluding the same.
Once a petitioner establishes adequate grounds for termination
pursuant to Section 2511(a), the court turns to Section 2511(b), which
requires it to “give primary consideration to the developmental, physical and
emotional needs and welfare of the child.” 23 Pa.C.S. § 2511(b). “The
emotional needs and welfare of the child have been properly interpreted to
include intangibles such as love, comfort, security, and stability.” T.S.M., 71
A.3d at 267 (citation and quotation marks omitted); see also In the Interest
of K.T., 296 A.3d 1085, 1106 (Pa. 2023). “Notably, courts should consider
the matter from the child’s perspective, placing her developmental, physical,
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and emotional needs and welfare above concerns for the parent.” K.T., 296
A.3d at 1105.
Beginning with In re E.M., 620 A.2d 481 (Pa. 1993), our Supreme Court
has consistently mandated that any Section 2511(b) analysis “requires
consideration of the emotional bonds between the parent and child.” T.S.M.,
71 A.3d at 267. Specifically, “[c]ourts must determine whether the trauma
caused by breaking [the parent-child] bond is outweighed by the benefit of
moving the child toward a permanent home.” Id. at 253 (cleaned up). The
recognized threshold for this required bond inquiry is whether termination will
sever a “necessary and beneficial relationship,” causing the child to suffer
“‘extreme emotional consequences’ or significant, irreparable harm.” K.T.,
296 A.3d at 1109-10 (quoting E.M., 620 A.2d at 484). “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 Adoption of A.H., 247 A.3d
439, 445 (Pa. Super. 2021) (citation omitted). “Accordingly, the extent of the
bond-effect analysis necessarily depends on the circumstances of the
particular case.” Id. (citation omitted).
“[A] court conducting the Section 2511(b) needs and welfare analysis
must consider more than proof of an adverse or detrimental impact from
severance of the parental bond.” K.T., 296 A.3d at 1113. Our Supreme Court
has explained that the court should consider, as appropriate, the child’s need
for permanency and length of time in foster care, the child’s placement in a
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pre-adoptive home and whether there is a bond with the foster parents, and
whether the foster home meets the child’s developmental, physical, and
emotional needs. See id. Nonetheless, there is no “exhaustive list” of factors
that must be considered by a trial court in this context. Id., at 1113 n.28.
At this issue, the court explained as follows:
[The DHS representative] testified that she conducted two interviews of the [C]hildren[.] Both [C]hildren have been in the foster home for more than four years and refer to their caregiver as “mom.” Both [C]hildren move about the foster home freely and want to remain with their caregiver. They are bonded to each other and to their caregiver. [There was no testimony establishing] that there would be irreparable harm to the Children if they were permanently separated from Mother and Father. The testimony demonstrated that it was in the best interest of the Children to remain with their respective caregivers.
Trial Court Opinion, 7/11/23, at 8 (record citations omitted).
Father’s brief contains no record citations supporting his proposition that
he and his children “have a strong emotional bond.” Father’s Brief, at 18.
However, there is ample evidence demonstrating the converse: a lack of
emotional bond. Father’s contact with the Children went from sparing to
nonexistent, and the Children do not ask for Father. See N.T., 5/18/22, at 51.
Moreover, testimony reflected that the Children would not be irreparably
harmed if Father’s parental rights were terminated. See id. Instead, the
Children “affectionately call [their foster mother, with whom they have been
placed since 2017,] mom mom.” Id., at 32, 51 (stating, further, that the
Children had a parent/child bond with their foster mother).
There has been no error in the court’s determination that termination of
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Father’s parental rights best met the Children’s developmental, physical, and
emotional needs and welfare. The Children, at the time of the termination
hearing, had been with their foster mother for over four years, “their most
formative years.” Id., at 32. Both Children indicated that “they wanted to
remain with their mom-mom.” Id., at 31. In the absence of any indicia of a
parental bond between Father and the Children, the record demonstrates,
instead, a strong parent-child bond existing between the Children and their
foster mother. At the time of the termination of parental rights hearing, the
Children had been with their foster mother for more than half of their lives.
The testimony also reflected that the Children were happy living with the foster
mother, receiving love, comfort, and stability in this environment. As a result
of Father’s years-long, complete absence in the Children’s lives, it was not an
abuse of discretion for the court to conclude that no bond existed between
him and the Children and therefore that the Children’s best interests were
served by terminating Father’s parental rights. We therefore discern no abuse
of discretion or error of law in the trial court’s involuntary termination of
Father’s parental rights to Children, and we affirm the lower court’s March 22,
2023 decrees.
In Father’s fifth, sixth, and seventh issues in this appeal, he challenges
the change of Children’s permanent placement goal from reunification to
adoption. Given our decision to affirm the trial court’s termination decrees,
any challenge to the goal change orders is moot. See A.H., 247 A.3d at 446
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(“[T]he effect of our decision to affirm the [trial] court’s termination decree
necessarily renders moot the dependency court’s decision to change [a]
[c]hild’s goal to adoption.”); see also In the Interest of A.R., __ A.3d __,
__, 2023 PA Super 243, slip op. at 17 (Pa. Super. Nov. 28, 2023); In the
Interest of A.M., 256 A.3d 1263, 1272 (Pa. Super. 2021). We accordingly
also affirm the trial court’s goal change orders. A.R., __ A.3d at __, 2023 PA
Super 243, slip op. at 17; A.M., 256 A.3d at 1272-73.
Decrees affirmed. Orders affirmed.
Date: 5/3/2024
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