J-S36016-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: D.B., SR., FATHER : : : : : : No. 794 MDA 2024
Appeal from the Decree Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00009
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.B., SR., FATHER : : : : : No. 795 MDA 2024
Appeal from the Order Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00010
IN THE INTEREST OF: M.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.B., SR., FATHER : : : : : No. 796 MDA 2024
Appeal from the Order Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00011
IN THE INTEREST OF: D.B., JR., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA J-S36016-24
: : APPEAL OF: D.B., SR., FATHER : : : : : No. 797 MDA 2024
Appeal from the Order Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00012
IN THE INTEREST OF: A.R.E.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.B., SR., FATHER : : : : : No. 798 MDA 2024
Appeal from the Order Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00013
IN THE INTEREST OF: B.M.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.B., SR., FATHER : : : : : No. 799 MDA 2024
Appeal from the Order Entered May 31, 2024 In the Court of Common Pleas of Mifflin County Orphans' Court at No(s): 2024-00014
BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and BENDER, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 12, 2024
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D.B., Sr. (“Father”) appeals from the orders terminating his parental
rights to his six minor children. Father’s counsel (“Counsel”) has filed an
Anders1 brief and application to withdraw. Father has filed a motion
requesting new counsel and argues the orphans’ court abused its discretion in
terminating his parental rights after the juvenile court denied him visitation
with his children. We affirm the termination of Father’s parental rights, grant
Counsel’s application to withdraw, and deny Father’s motion for counsel.
S.B. (“Mother”) and Father are the natural parents of six children: J.B.;
K.B.; D.B., Jr.; B.B.; M.B.; and A.-R.B (“the Children”). They were born in
2010, 2014, 2016, 2019, 2020, and 2022, respectively. The five eldest
children were placed in the custody of the Mifflin County Children and Youth
Services Agency (“CYS”) in December 2021. They were adjudicated dependent
in January 2022. The youngest child was placed in CYS’s custody and
adjudicated dependent in September 2022.
CYS filed petitions for termination of Mother’s and Father’s parental
rights to the Children on January 24, 2024. Immediately before a hearing on
the petitions began, on April 29, 2024, Mother relinquished her parental rights.
The CYS caseworker testified that CYS first became involved with the
family in January 2020, when the family moved to Mifflin County from Dauphin
County. CYS had received reports of “drug use, criminal activity, unstable
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967); see also In re V.E., 611 A.2d
1267, 1275 (Pa.Super. 1992) (holding Anders protections apply to appeals of involuntary termination of parental rights).
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housing, unstable income, domestic violence in the home, inappropriate
discipline, and truancy.” Order and Opinion, May 31, 2024, at 2. In December
2021, Mother and Father admitted to using methamphetamine, but they
refused drug tests and a home visit from CYS. N.T., 4/29/24, 13-14. These
circumstances led to the removal of the five eldest children. See id. at 13-15.
Father was then incarcerated in July 2022, and has remained in prison.
Id. at 27. He is serving sentences for two counts each of endangering the
welfare of children (“EWOC”) and possession with intent to deliver, and one
count each of simple assault and criminal use of a communication facility. Id.
at 5; Ex. P-31. Four of the Children were victims of Father’s EWOC conviction.
N.T. at 38. Mother was the victim of Father’s simple assault. Id. at 56.
Although the record does not elaborate on the bases for Father’s convictions,
according to the testimony, on one occasion, Father held a gun to Mother’s
head, and on another occasion, the Children’s grandmother held a gun to
Father’s head to stop him from beating Mother. Id. at 49.
The youngest child, A.-R.B., was removed from Mother’s care in
September 2022, two days after her birth. Mother was incarcerated at the
time. The Children now reside with foster parents. Id. at 15.
CYS developed several child permanency plans during the life of the
case. Id. at 16. The initial goals called for the parents to
[e]nsure the physical, medical, developmental, educational, emotional needs of the children are met; ensure his own physical and mental health needs are being assessed and addressed in order to meet the needs of the children; live a drug-free lifestyle and refrain from criminal activity; participate in [Family
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Intervention Crisis Services (“FICS”)] reunification services . . . [t]o meet the needs of the children and family; ensure safe, stable, and sanitary home conditions; and cooperate with [CYS] and service providers.
Id. at 17.
The CYS caseworker stated that Father was minimally compliant with
the goals. Id. at 18-19, 36. Father has not been compliant with the drug use
requirements, because he has refused all drug tests. Id. at 17, 36. CYS also
found Father “was uncooperative and not meeting his own mental health
needs” by refusing to participate in any mental health services, despite his
mental health concerns and lengthy drug history. Id. at 18, 36. CYS has
further concerns about Father’s violence against Mother and the Children. Id.
at 18.
The executive director of FICS testified that FICS began reunification
services for Father in January 2022, by “providing visitation, opportunity for
counseling sessions, parent education sessions . . . lifestyle checks, drug
screens, and at times transportation.” Id. at 42; see also id. at 44-45. Father
refused drug screens and refused to sign releases for his mental health
treatment. Id. at 46-47. In the months before he was incarcerated, Father
would not allow FICS into the home for lifestyle checks. Id.
Regarding visitation with the Children, Father attended 23 of 28 visits
with the Children before he was incarcerated. Id. at 59. Some visits involved
conflict with Mother, and on one occasion, FICS contacted the police because
Father “was conflicting with staff and refused to leave[.]” Id. at 55. CYS also
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found that during visits, the parents inappropriately forced the eldest child
into a parental role. Id. at 20-22.
Since his incarceration, Father has frequently written the Children letters
and e-mails. Id. at 32. He has also sent the Children hand-painted “hankies”
as gifts. Id. at 23-24, 33-34, 53. However, CYS censors Father’s letters and
e-mails because he makes inappropriate promises to the Children. Id. at 20-
21, 24-25. FICS had also instructed Father not to make future promises in his
letters to the Children. Id. at 50, 68; see also id. at 50 (testimony regarding
the effect of Father’s promises on the three children in trauma therapy).
While Father was incarcerated in county prison – between July and
December 2022 – he visited with the Children 14 of 17 offered times. Id. at
29, 60. However, Father’s parenting ability was still of concern during these
visits, as he continued to make inappropriate statements to the Children. Id.
at 55-56.
After Father was moved to a state incarceration facility, in December
2022, he was unable to visit with the Children. Id. at 84. Following a
permanency review hearing in April 2023, the juvenile court terminated
Father’s visits with the Children. Id. at 31-32.
In June 2023, Father filed a petition to restart visitation, which the court
granted. Id. at 81; Ex. R-5. Visits resumed in February 2024 on Zoom. N.T.
at 31, 61. FICS provided conditions for the visits, including asking Father not
to make promises to the Children about the future. Id. at 48-49. However,
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Father still made promises to the Children during the video visits. Id. at 50.
Two of the Children did not want to participate in the last visit. Id. at 26.
The executive director of FICS testified that if Father was released from
incarceration, he would not be able to effectively care for the Children. Id. at
54. She said that in addition to addressing other concerns about his ability to
safely parent, he would require a lengthy drug treatment program. Id. at 56-
57. The program could last from several months to two years. Id. at 38.
The CYS caseworker testified that there is no parental bond between
Father and the Children. Id. at 25. The FICS executive director also testified
that the Children do not see their relationship with Father as safe, and that
they do not believe Father can meet their needs. Id. at 58.
The CYS caseworker testified that the Children are doing well in their
foster home. Id. at 22. The FICS executive director testified that the foster
parents provide safety, stability, love, and nurturance. Id. at 57. The Children
have a significant parental bond with the foster parents. Id. at 58.
The eldest child, who was 14 years old at the time, testified that she
wanted to be adopted by the foster parents, with whom she has lived for a
year and a half. Id. at 131-32. She stated, “I want to be adopted because at
the moment right now I do not feel like my dad is able to give me what I need,
one, being in jail . . . , two, not having his house of his own and, three, not
ever really having visits and not home.” Id. at 133. She stated that when she
lived with Mother and Father, she “felt safe because [she] had two parents
and there was no like robbers or anything, but [she] didn’t feel safe because
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there was domestic abuse.” Id. at 134. She also recounted, “In Harrisburg we
didn’t have much food because my parents were doing drugs at the time and
sleeping and not really in the moment. This one time I had to eat mustard
because I was hungry and there was no food in the fridge.” Id. at 136-37.
Father testified that he has completed programs in prison for domestic
violence, drug and alcohol abuse, mental health, and parenting. Id. at 78. He
also testified regarding the letters and hankies he sent the Children to
maintain their relationship. Father stated that he did not feel CYS had made a
strong enough attempt to reunify him with the Children. He maintained that
CYS and FICS had withheld his letters and gifts from the Children and
manipulated them into wanting to be adopted. According to Father’s counsel,
Father will be eligible for parole in July 2025. Id. at 75, 120. Father claimed
he could be released to a drug treatment program as soon as six months after
the hearing. Id. at 76, 119-20.
The orphans’ court entered an Order and Opinion granting the petition
for termination of Father’s parental rights. The court also issued orders
terminating Father’s parental rights as to each child.2 The court found grounds
for termination exist under 23 Pa.C.S.A. § 2511(a)(2), (a)(5), (a)(8), and (b).
Father filed a notice of appeal at each child’s docket. As stated above,
Counsel has filed an Anders brief and moved to withdraw. CYS, counsel for
2 The orders were dated May 7, 2024, but filed May 31, 2024.
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the Children, and the guardian ad litem each filed a brief in support of the
termination. Father submitted a pro se response to the Anders brief.
We must assess the adequacy of Counsel’s request to withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
banc). Counsel is required to file a petition to withdraw “stating that, after
making a conscientious examination of the record, counsel has determined
that the appeal would be frivolous.” Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa.Super. 2013) (en banc). Counsel must file with the petition
an Anders brief, in which counsel must
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Counsel must provide a copy of the Anders brief to the client, and advise the
client of the right to retain new counsel or proceed pro se. Id.
Instantly, Counsel has filed a motion to withdraw stating he believes the
appeal would be frivolous. Counsel’s Anders brief provides a history of the
case, citations to testimony that arguably support Father’s appeal, and
Counsel’s reasons for concluding the appeal is frivolous. Counsel has sent
Father a copy of the Anders brief and a letter informing him of his right to
proceed with private counsel or pro se.
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Counsel has satisfied the technical requirements for petitioning to
withdraw. We will therefore turn to the merits of the appeal, followed by our
own examination of the record to detect any non-frivolous issues. Santiago,
978 A.2d at 355 n.5; In re Adoption of B.G.S., 240 A.3d 658, 662 (Pa.Super.
2020).
We begin with the standard for review for an order terminating parental
rights.
A party seeking termination of parental rights bears the burden of establishing grounds for termination “by clear and convincing evidence.” In re Z.S.W., 946 A.2d 726, 728 (Pa.Super. 2008). Clear and convincing evidence is evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” Id. at 728-729 (internal quotation marks and citation omitted). We accept the findings of fact and credibility determinations of the trial court if the record supports them. See In re C.M.C., 140 A.3d 699, 704 (Pa.Super. 2016). If the factual findings have support in the record, we then determine if the trial court committed an error of law or abuse of discretion. Id.
In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).
Section 2511 of the Adoption Act governs the termination of parental
rights. Matter of Adoption of L.C.J.W., 311 A.3d 41, 48 (Pa.Super. 2024);
see 23 Pa.C.S.A. § 2511(a), (b). It first requires the party seeking termination
to establish that the parent’s conduct satisfies one of the statutory grounds
for termination delineated in the subsections of Section 2511(a). L.C.J.W.,
311 A.3d at 48. This Court need only affirm the orphans’ court’s finding for
termination under any one subsection of Section 2511(a). In re D.L.B., 166
A.3d 322, 327 (Pa.Super. 2017). The petitioner must then prove that
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termination will best serve the needs and welfare of the child, pursuant to
Section 2511(b). L.C.J.W., 311 A.3d at 48.
Here, the court found grounds for termination under Section 2511(a)(2),
(a)(5), and (a)(8). Termination under subsection (a)(2) requires proof of the
following three elements:
(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and
(3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.
Id.
A parent’s “incapacity” to provide essential parental care, control, or
subsistence for his child is not limited to affirmative acts of misconduct. It also
exists when the parent fails “to demonstrate a concrete desire or ability to
remedy the problems that led to [the c]hild’s placement.” Id. at 327-28. For
example, a parent demonstrates incapacity by failing to cooperate with agency
services, participate in drug treatment, and complete mental health
counseling. Id. at 328. Incarceration can also establish a parent’s incapacity
to provide essential parental care, control or subsistence. In re Adoption of
S.P., 47 A.3d 817, 830 (Pa. 2012).
While the statute does not set a deadline for the remedying of the
incapacity to parent, subsection (a)(2) does not require a court to allow a
parent infinite time to do so. In re Z.P., 994 A.2d 1108, 1117 (Pa.Super.
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2010). To this end, the length of a parent’s remaining incarceration is “highly
relevant” to whether the parent can or will remedy an incapacity. S.P., 47
A.3d at 830; see also In re Adoption of A.C., 162 A.3d 1123, 1132
(Pa.Super. 2017) (“[C]ourts properly consider the incapacitating effect of a
parent’s incarceration and whether the duration of that incarceration would
prevent a parent from remedying the incapacity”). Similarly relevant to this
inquiry is any uncertainty regarding a parent’s release date and whether
reunification will be further delayed by the released parent’s need “to obtain
housing, employment, and transportation skills in addition to parenting skills.”
S.P., 47 A.3d at 831. Ultimately, “[a] child’s need for consistent parental care
and stability cannot be put aside or put on hold simply because the parent is
doing what [he] is supposed to do in prison.” In re E.A.P., 944 A.2d 79, 84
(Pa.Super. 2008).
Here, in finding termination warranted under this subsection, the
orphans’ court observed that the Children were adjudicated dependent in
January and September 2022. Order and Opinion at 4. It further found that
thereafter,
FICS provided Father with parent education, counseling sessions, visitation, and lifestyle checks. Father did not take advantage of the services offered by FICS before incarceration. Father did engage in services while incarcerated. Father had made minimal progress toward alleviating the circumstances that necessitated the original placement of J.B., K.B., D.B.JR., B.B., M.B., and A.- R.B. Father failed to meet the objectives of [CYS]. Father has a lack of insight into his inabilities and believes he has done everything he can to have the [C]hildren returned to his custody upon his release from incarceration. Father does not have a place
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for J.B., K.B., D.B.JR., B.B., M.B., and A.-R.B. to stay if the [C]hildren would be returned to him and home conditions are still an issue. Father testified he believes he should be accepted into a State Drug Treatment Program. If Father is accepted into a State Drug Treatment Program there is additional drug and alcohol treatment for approximately sixty (60) days before the possibility of release. At that point, Father still does not have sustainable housing for the [C]hildren. After more than two years of services, [CYS] and FICS both testified Father is not capable of providing for the [C]hildren’s physical, developmental, and emotional needs.
Father still exhibits the inability to parent. Due to his lack of insight and his failure to meet [CYS’s] objectives, Father was never able to remedy his behaviors and provide the [C]hildren with an environment that would meet the [C]hildren’s emotional, mental, physical, and developmental needs.
This has caused J.B., K.B., D.B.JR., B.B., M.B., and A.-R.B. to be without essential parental care, control, or subsistence necessary for their physical and mental well-being. Due to the extended duration of this case, the Court finds Father’s incapacity cannot be remedied in a timely manner. For these reasons, the Court finds by clear and convincing evidence grounds for termination of Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2).
Id. at 4-5.
The record supports the orphans’ court’s conclusions. Father has been
incarcerated since July 2022, and the Children have been in placement since
January and September 2022 due to Father’s drug use, domestic violence,
and resulting incarceration. Father initially failed to demonstrate a desire to
remedy the conditions that led to the Children’s placement by refusing to
comply with the services offered by CYS and FICS prior to his incarceration,
including drug treatment and mental health counseling. And, although Father
asserts he has made some progress while in prison, Father’s release date is
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uncertain, as is the length of time he would be in a drug treatment program
once released.
We next turn to the Section 2511(b) inquiry. Section 2511(b) requires
the court to “give primary consideration to the developmental, physical and
emotional needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b). The court
must place the child’s best interest above the needs of the parent. Int. of
K.T., 296 A.3d 1085, 1105 (Pa. 2023). The court must consider “intangibles
such as love, comfort, security, and stability.” Id. at 1106 (citation omitted).
It must review whether the child has a beneficial bond with the biological
parent and the effect of severing any such bond, and whether the child is
bonded to pre-adoptive foster parents. Id.; see also id. at 1109-11, 1113-
15.
Here, the court recognized that Father has kept in contact with the
Children during his incarceration and that there is a bond between them. Order
and Opinion at 9. However, it also observed that J.B. testified she has concerns
about living with Father due to his past drug use, domestic violence, and lack
of housing; that her foster parents meet the needs of herself and her siblings;
and that she wishes to be adopted. Id. The court further observed that Father
has continued to discuss inappropriate topics with the Children, has
“parentified” J.B., and is currently incarcerated. Id. at 9-10. The court
concluded that termination of Father’s parental rights would not sever an
existing, necessary, and beneficial relationship. Id. at 10.
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The court also observed that the Children are doing well in the home of
their foster parents, who are an adoptive resource. It found that denying
termination would threaten the Children’s developmental, educational, and
emotional foundation, “as they would be deprived of a permanent, healthy,
safe, and secure parent/child relationship with their foster parents.” Id. The
court thus concluded termination would best serve the Children’s
developmental, physical, and emotional needs and welfare. Id. The record
supports the court’s Section 2511(b) determination.
In the Anders brief, Counsel identifies the issue of whether the juvenile
court failed to apply the correct legal standard when suspending Father’s visits
in April 2023. Counsel notes the argument that Father was wrongfully deprived
visitation with the Children between December 2022, when he was moved to
state prison, and February 2024, when visitation resumed. According to the
argument, CYS did not make adequate efforts to provide for visitation as
required under 55 Pa.Code § 3130.68. These wrongs allegedly prejudiced
Father, because in determining whether termination was in the Children’s best
interests, the orphans’ court considered J.B.’s testimony that one of the
reasons she wished to be adopted was “Not ever really having visits.” Anders
Br. at 24. Counsel notes that Father attempted to maintain his relationship
with his children by writing letters and e-mails from prison, and he has taken
“advantage of every program that was made available to him at the prison to
make him a better parent and person when he eventually does get out of
prison.” Id. at 15-16.
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Father’s pro se brief raises this same issue, adding that he was denied
due process when the juvenile court discontinued his visits without any
petition having been filed. He further argues the court’s error was not
harmless, as it damaged the strong bond he had shared with his Children.
Father points out that while he was denied visitation for 14 months, this did
not deter him from maintaining contact with the Children, to whom he sent
letters and the hankies as gifts. Father also alleges the foster parents did not
give the Children the hankies or the e-mails to manipulate them into preferring
adoption.
The issue is frivolous. Neither Section 2511(a) or (b) “requires the court
to consider the reasonable efforts provided to a parent prior to termination of
parental rights.” In re D.C.D., 105 A.3d 662, 672 (Pa. 2014). Evidence that
an agency failed to provide services to a parent might be relevant to whether
that parent can or will remedy their incapacity, under subsection (a)(2), and
whether termination is in the best interests of the child, pursuant to Section
2511(b). Id. However, where a parent’s incapacity is due to a lengthy
incarceration, and reunification is not a realistic goal, an orphans’ court does
not abuse its discretion in terminating parental rights under Section
2511(a)(2) and (b), even where an agency failed to provide adequate
visitation to the incarcerated parent and that failure had a negative effect on
the parental bond. Id. at 675, 677.
As our Supreme Court has explained, if a court were to delay termination
based on such an allegation, where Section 2511 has been met, it would
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punish an innocent child. Id. at 675. Instead, where an agency fails to fulfill
its statutory requirement to provide a parent with reunification services, the
remedy is a financial penalty under federal law. Id. Moreover, our Supreme
Court has held that the legislative scheme governing dependency and
termination proceedings in Pennsylvania is sufficiently tailored to safeguard a
parent’s rights. Id. at 677.
Therefore, whether CYS provided Father with adequate visitation,
and/or whether the juvenile court erred in denying Father visitation during a
portion of the dependency case, are not bases for invalidating the orphans’
court’s termination analysis. Moreover, the court here did not find that
termination was in the Children’s best interests solely due to an interruption
in their visitation with Father. It also considered Father’s present and future
ability to meet the Children’s developmental, physical, and emotional needs,
and the Children’s bond with their pre-adoptive foster parents. There is no
reasonable basis in fact or law on which to argue this issue.
Our independent review of the record discloses no non-frivolous issues.
We therefore affirm the orders terminating Father’s parental rights, grant
Counsel’s application to withdraw, and deny Father’s motion for the
appointment of new counsel.
Orders affirmed. Application to withdraw granted. Motion for counsel
denied.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 11/12/2024
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