J-A21015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Y.Z.I., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.R.S.,
Appellant No. 2867 EDA 2013
Appeal from the Order September 11, 2013
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000321-2011
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2014
Appellant A.R.S. appeals from the September 11, 2013 order denying
her petition for adoption of her nephew, Y.Z.I. In the order, the trial court
-adoptive
1
fo After careful review, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
This order is appealable. While the trial court entered a single order as to
competing adoption petitions, the two petitions retained their separate
identities. Cf., Kincy v. Petro
actions cannot be consolidated to the extent the actions lose their separate
identities and become a single action . . . unless the actions involve the
to put Appellant out of court, it is final as it relates to her petition to adopt
Y.Z.I. Accordingly, we have jurisdiction to entertain this appeal.
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Y.Z.I. was born during April of 2010 with a breathing condition. He
utilized a sleep apnea monitor and a breathing machine. Philadelphia
with Foster Parents
approximately one month after his birth. Foster Parents underwent medical
improved greatly in the three years that he has been in their care. Later
that summer,
kinship care and placed him with Foster Parents.2 DHS determined that
because she was an unsafe caregiver. N.T., 8/28
immunizations were delinquent, and his development was delayed. Id. at
27. Foster Parents subsequently adopted L.B., and the brothers are closely
bonded in their home. Id. at 48.
rents have been
terminated.3 Throughout the dependency proceedings for both Y.Z.I. and
harassment against Foster Parents. She dispersed flyers around Foster
____________________________________________
2
Y.Z.I. has a total of eight siblings, one of whom is an infant and remains in
who have left home.
3
On August 3, 2011, the trial court terminated the parental rights of the
birth mother pursuant to 23 Pa.C.S. § 2511(a) and (b). Birth father
subsequently relinquished his parental rights voluntarily on October 26,
2011.
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Id. at 77. A peculiar pattern of
cut the brake lines on their automobile, and loosened or removed its lug
nuts. Id. at 78-
role in the property damage, Grandmother harassed Foster Parents prior to
and following court appearances, and assailed them at the agency during
visitations. Id. at 60-61, 81-82. Appellant was involved in at least one
incident that occurred in front of Y.Z.I. at the agency. Id. at 81-82, 100.
Specifically, she cursed the foster mother and admonished the birth mother,
her
Id
the supervised visitations that birth mother and Appellant shared with the
children, she subsequently approache
returning from a visitation and tried to remove L.B. from the car. Id. at 80.
Id.
During January 2012, the juvenile court entered a restraining order
directing Grandmother to stay away from the two children and Foster
Parents. Id. at 9-10, 64. The court reissued the order the following year.
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Id. at 64-65. Grandmother violated the no-contact directives approximately
four times. Id. at 93-94.
filed a petition to adopt Y.Z.I. Appellant countered with an unopposed
petition to intervene in the adoption proceedings, and a corresponding
petition for adoption. During the ensuing adoption hearing addressing the
countervailing petitions, the trial court considered evidence presented by
Foster Par
their own behalf. At the time of the hearing, Y.Z.I. was approximately three
and one-half years old, having lived with Foster Parents for all but one
month of his life. Id. at 6. Appellant and Grandmother reside on separate
floors of a partitioned house. On September 11, 2013, the trial court
This timely appeal followed. Appellant complied with Pa.R.A.P.
1925(a)(2)(i), and filed a Rule 1925(b) concise statement. She raises the
following three issues on appeal:
1. Did the trial court abuse its discretion and commit legal
error in failing to consider the preference for relatives in
adoption proceedings?
2. Did the trial court abuse its discretion and commit legal
error by allowing inadmissible testimony, on . . . five separate
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3. Did the trial court abuse its discretion and commit legal
error in failing to adequately consider whether the best interest
of the child would be served if visitation with his aunt were to
occur?
o submit a brief,
the child advocate filed a brief in support of their position.
This Court recently reiterated our appellate review of an adoption
decree.
Court must determine whether the record is free from legal error
and the court's factual findings are supported by the evidence.
-finder, it determines
the credibility of the witnesses, and on review, we will not
reverse its credibility determinations absent an abuse of that
discretion.
In re E.M.I., 57 A.3d 1278, 1284 (Pa.Super 2012) (citation omitted).
care during the prior dependency proceeding and refusing to consider her as
a placement resource for her then-newborn nephew, Y.Z.I., our scope of
review of the order denying her petition for adoption is limited to the
testimony and evidence adduced during the evidentiary hearing relating to
the dueling petitions for adoption. In re Adoption of Farabelli, 333 A.2d
consideration of the testimony and the determination as to whether the
t
not address them herein.
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At the outset, we observe that the second argument that Appellant
presents on appeal is waived because she did not include it or a reasonable
facsimile in her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii)
Grandmother, the Rule 1925(b) statement as
believe the adversity between my mother and the opposing parties,
attorneys and court personnel to be problematic because . . . [she] had
adverse conversations with the opposing parties involved [which] prejudiced
my ability to have a fair non-
Statement, 10/10/13. On appeal however, Appellant does not challenge the
adoption proceedings were biased again
behavior. Instead, Appellant argues that the trial court erred by admitting
imposition of the no-
that, on five separate occasions, the trial court permitted the impermissible
testimony over her objections. Id. As the claim that Appellant leveled in
the admissibility-of-evidence issue that she actually raised on appeal, it is
waived.
Furthermore, even if Appellant had presented the pertinent argument
in the Rule 1925(b) statement, the issue would be waived pursuant to
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Pa.R.A.P. 302 because she failed to present the relevant objections below.
sustained her objections to the evidence. Appellant objected on hearsay and
1) Gra
2)
for police assistance in issuing notice of the order to Grandmother. N.T.,
8/28/13, at 30, 40, 59. Significantly, the trial court sustained those
objections and struck the testimony as hearsay. Id. at 31, 40, 59.
appearance wit
statement that the lug nuts and brakes on her car had been tampered with
deliberately. Id. at 31, 79. However, since the trial court did not consider
any of the foregoing evidence in formulating its decision, none of these
Herein, Appellant contends that the trial court erred in permitting the
complains that the testimony, which she characterizes as irrelevant, clouded
the purportedly inadmissible testimony, no competent evidence was
presented to establish that she presented a safety risk to Y.Z.I.
Unfortunately for Appellant, however, she failed to object on any basis to
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harassment; 2) thinly-veiled threats of violence against the foster family; 3)
suspected property damage, 4) at
vehicle; and 5) outburst in front of the children during the supervised
visitation. Id. at 61-62, 64, 67, 74-75, 77, 78-82. Foster mother also
established, without objection, the need for two restraining orders, and
Id. at 61-62, 74-75.
In fact, Appellant not only failed to object to the relevancy of the
foregoing testimony, she questioned the foster mother on most of these
points during cross-examination. Id. at 86-91. Accordingly, since Appellant
its admission presently. See
are waived and cannot be raised for the first time on appeal.). Thus, we do
not address the merits of the second complaint Appellant levels in her brief.
failing to apply a preference in favor of relatives in adoption proceedings.
interest determination. Invoking her close ties to Grandmother and the birth
argues that the trial court failed to consider her familial connection with
Y.Z.I. in contravention of the preference for adoption by relatives. Without
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identifying any relevant legal authority to support her position, she suggests
that, between her adoption petition and that of the nonrelated Foster
Parents, the evidentiary scale is tipped in her favor even before the adoption
aim fails.
Appellant misinterprets the preference in favor of relatives in adoption
preference exists to her benefit, any preference in favor of a relative relates
only to standing to participate in the adoption proceedings. As the High
Court explained in In re Adoption of J.E.F., 902 A.2d 402, 414 (Pa. 2006).
A child's aunt and uncle who indicate an interest in adopting the
child at that stage are not a threat to the nurturing and
maintenance of the new family bond; indeed, if their petition is
heard and prevails, it is their family which will be the one to
enfold the child. . . . More importantly, for purposes of the mere
preliminary question of standing, a child's blood aunt and uncle
who indicate an interest in adoption clearly have an interest
which surpasses that of the ordinary, unrelated citizen. And,
finally, nothing in the Adoption Act provides that the termination
of parental rights acts to sever the child's relationship with all
other relatives.11
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11
To the contrary, it is notable that, following termination of
parental rights, the Adoption Act treats relatives with more
deference than non-relatives. Thus, Section 2531, which
certain relatives, including aunts and uncles, from the reporting
requirement. 23 Pa.C.S. § 2531(c).
___________________________________________________
Indeed, once the preference of standing is afforded to a relative, the
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Id. at
412 (quoting In re Adoption of Hess, 608 A.2d 10, 13 (Pa. 199
stages of the proceedings, the best interest of the child is the paramount
substantive presumption in favor of Appellant over Foster Parents. As a
substantive preference on the merits in favor of genetic relatives simply
does not exist, the burden of proof between Appellant and Foster Parents is
evenly balanced. Accordingly, to prevail in the adoption proceedings, both
petitioners were required to establish that their proposed adoption was in
The polestar of adoption proceedings is the best interest of the
adoptee. Pursuant to 23 Pa.C.S. § 2907, the trial court must determine
lfare.
That proviso is as follows:
If satisfied that the statements made in the petition are
true, that the needs and welfare of the person proposed to be
adopted will be promoted by the adoption and that all
requirements of this part have been met, the court shall enter a
decree so finding and directing that the person proposed to be
adopted shall have all the rights of a child and heir of the
adopting parent or parents and shall be subject to the duties of a
child to him or them.
23 Pa.C.S. § 2907. Moreover, in § 2724, relating to testimony and
interest is the only relevant factor in determining whether to grant or deny
an adoption petition. Specifically, § 2724(b) provides in pe
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any case, the age, sex, health, social and economic status or racial, ethnic or
religious background of the child or adopting parents shall not preclude an
adoption but the court shall decide its desirability on the basis of the
4
physical,
consideration that the trial court must address in deciding to grant or deny a
petition for adoption. In re Adoption of D.M.H., 682 A.2d 315, 319
between grandmother and child by making the relationship a relevant, but
5
Instantly, the trial court considered
Appel
____________________________________________
4
Prior to January 2, 2011, the effective date of the new Child Custody Law,
the best interest considerations in adoption cases and child custody cases
were identical, i.e., a case by case weighing of all factors which bear upon
the child's physical, intellectual, moral, and spiritual well-being. See In re
Adoption of A.S.H., 674 A.2d 698, 700 (Pa.Super. 1996). During 2011,
our legislature fashioned sixteen specific factors for trial courts to consider
when awarding custody of a child under that act. 23 Pa.C.S. § 5328. The
relevant portions of the Adoption Act remain unaltered.
5
Technically, In re Adoption of D.M.H., 682 A.2d 315, 319 (Pa.Super.
1996), is an appeal of a custody order entered in a dispute between a
grandmother and prospective adoptive parents pending the entry of an
adoption decree. However, in resolving that case, this Court invoked the
Adoption Act and pertinent adoption-related case law addressing the
appropriate weight that trial courts should place upon the
grandparent/grandchild relationship in adoption cases. Mindful that the
best-interest considerations were identical at that juncture, we rely on the
relevant portions of the In re Adoption of D.M.H.
herein.
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Foster Parents for approximately three years and that Appellant visited
Y.Z.I. an average of twice per year during that time frame. See Trial Court
Opinion, 1/21/14, at 3. It also considered that Appellant resides with
Grandmother in what Appellant described as a three-level home with
separate living areas and observed that, while Appellant vowed to move
from the residence, in part, to comply with the restraining order, she
advocated for the order to be lifted. Id. at 3-4. Hence, Appellant, who
not confident that the no-
safety is necessary. Moreover, the certified record established both that
Appellant was at least complicit in some of the antics that placed Y.Z.I. in
e for Y.Z.I. See
N.T., 8/28/13, at 33-
relief is due.
determination. Appellant contends that the trial court failed to consider
his biological family. She a
finding that the foster mother never foreclosed the possibility of visitations
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-adoption contact was reversible error.
She also asserts that the trial court failed to consider the benefits that Y.Z.I.
f at
As noted supra -
by-case basis, and requires the weighing of all factors which bear upon a
child's physical, intellectual, moral, and spiritual well- In re
Adoption of A.S.H., supra at 700. Herein, the trial court heard all of the
pertinent details of the countervailing petitions for adoption and considered
the rele
During the evidentiary hearing, Shante Taylor, the DHS social worker
Parents, who are the only family he has known since his birth. N.T.,
8/28/13, at 49. She described Foster Parents as loving and nurturing and
observed an obvious bond between them and Y.Z.I. Id. at 46-47, 49.
Y.Z.I. as if he is their birth child. Id. at 49. She also described the bond
that Y.Z.I. shares with his four-year-old brother, L.B., whom Foster Parents
previously adopted. Id. at 47.
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Similarly, the foster placement caseworker, HajaOlabisi Amoo, testified
that she was assigned to the family during May of 2010, when Y.Z.I. was an
infant. Id. at 17. She has visited Y.Z.I. at least twice a month for three
years. Id
Id. at 18-19. She explained that when Y.Z.I. was first placed in the home,
he was so frail and feeble that she hardly recognized him to be a newborn
child. Id. at 18. Over time, however, she observed Foster Parents nurture
the child back to good health. Id
and nurturing they were giving him, the love and everything. They are
really devoted to him, and Id. She
Id. at 20.
Ms.
and she recommended that the court grant their adoption petition. Id. at
21.
Similarly, the foster mother described her relationship with Y.Z.I.,
- Id. at 68-69. She repeated that the foster
family is the only family that Y.Z.I. has known, and explained how she and
her husband cared for him through his sickness and watched him develop.
Id
while she was at work. Id
time, you know. He makes sure they are fed Id.
Foster mother also attested to her love for Y.Z.I. and described him as
an energetic three-year-old boy who is closely bonded with L.B. Id. Y.Z.I.
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participates in organized flag football and soccer leagues with his brother.
Id. at 70. She likens the pair to a set of twins. Id. Both boys were
scheduled to begin preschool together during September 2013. Id. 70, 72.
Foster Parents arranged for Y.Z.I. to receive speech and behavior
development services while at preschool. Id. at 73.
In contrast to the evidence establishing the love, comfort, and stability
that Foster Parents provide for Y.Z.I., Appellant failed to present any
evidence of a beneficial relationship between her and her nephew beyond
the mere fact of genetics. Appellant never resided with Y.Z.I., and she has
attended no more than six visitations with Y.Z.I. over the course of his and
cared for L.B.
temporarily and made preparations to receive Y.Z.I. as an infant, DHS
ultimately removed L.B. from her care due to safety concerns in that
trial court considered all of the best-
physical, intellectual, moral, and spiritual well-being before denying
iled to
consider her potential post-adoption visitation with Y.Z.I. As noted,
Appellant opines that the trial court erred in relying upon its finding that
Foster Parents were receptive to granting her visitation with Y.Z.I. when, in
fact, their support for the idea was tepid. Appellant appears to suggest that
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maintaining contact between Appellant and Y.Z.I. was central in its decision
gree.
Initially, we observe that the petition before the trial court related to
prospective adoptive parent may elect to enter a post-adoption contact
agreement pursuant to 23 Pa.C.S. §§ 2371-2742, this issue was not
was not presented to the trial court during the evidentiary hearing.
Visitation traditionally is a matter that is decided by parents following the
completion of the adoption proceeding. In re Adoption of A.S.H., supra
Even following the enactment of §§ 2371-2742, an adoption decree is not
encumbered by, or subject to, conditions relating to visitations unless the
parents execute a voluntary agreement for contact and submit that accord
to the court for its approval under § 2735. Instantly, the trial court has yet
to enter a final adoption decree in favor of Foster Parents, much less receive
a proposed voluntary contact agreement for approval. Hence, any
Y.Z.I. at this juncture is premature. Id.
Additionally, the trial court did not err in considering the foster
i.e., that she was not comfortable with
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extending visitation to Appellant at that time, but she was open to possibly
fashioning an arrangement with Appellant after the foster mother became
more familiar with her. N.T., 8/28/13, at 91-93. The trial court considered
contact between [Appellant] and
[Y.Z.I.] . . . [and] . . . she did not conclusively rule out the possibility of
the trial
court did not opine that Foster Parents were receptive to granting Appellant
visitation. To the contrary, as highlighted supra, the court observed that
Y.Z.I. in the future. Indeed, the court did not advocate that Foster Parents
proposed anything more than the possibility of future contact. As the
ment into a claim of trial court
error. No relief is due.
For all of the foregoing reasons, we affirm the order denying
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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In the Interest of: Y.Z.I. Appeal of: A.R.S.
Combined Opinion