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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.M.T., JR., AND IN THE SUPERIOR COURT OF
N.C.T., MINORS PENNSYLVANIA
APPEAL OF: D.T., GRANDMOTHER No. 2972 EDA 2014
Appeal from the Order entered August 13, 2014,
in the Court of Common Pleas of Philadelphia County, Domestic
Relations, at No(s): CP-51-AP-0000145-2012,
CP-51-AP-0000146-2012
BEFORE: MUNDY, OLSON, and PLATT*, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2015
Appellant, D.T., (“Paternal Grandmother”) appeals from the order
dated and entered on August 13, 2014, granting the petitions for adoption
filed by Y.C., the foster mother (“Foster Mother”) of T.M.T., Jr., a male born
August of 2007, and N.C.T., a female born in June of 2009 (collectively, the
“Children”), and denying the petitions for adoption filed by Paternal
Grandmother, under the Adoption Act, 23 Pa.C.S.A. §§ 2701-2742.1 We
affirm.
On July 20, 2012, the trial court granted the petitions to involuntarily
terminate the parental rights of the Children’s mother, J.J., (“Mother”), and
* Retired Senior Judge specially assigned to the Superior Court.
1
The trial court’s orders serve as its adoption decree, as the court granted
Foster Mother’s petitions for adoption of the Children. We will not remand
this matter for the entry of an adoption decree.
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father, T.M.T., Sr., (“Father”), filed by the Philadelphia Department of
Human Services (“DHS”).
On July 31, 2012, Paternal Grandmother filed petitions for adoption of
the Children.2 The trial court scheduled a finalization hearing to take place
on October 12, 2012. On August 8, 2012, the trial court canceled the
scheduled hearing, however. On April 8, 2013, this Court affirmed the order
terminating Father’s parental rights. In re T.M.T., 64 A.3d 1119 (Pa.
Super. 2013). On August 9, 2013, Paternal Grandmother filed certificates of
service for her petitions for adoption.
On April 15, 2014, Foster Mother filed petitions for adoption of the
Children, along with reports of intention to adopt, and reports of
intermediary for each child. On July 14, 2014, the trial court held a hearing
on the competing adoption petitions.
At the adoption hearing, both Paternal Grandmother and Foster Mother
were present, represented by counsel, and testified on their own behalf.
DHS presented the testimony of Audrina Redguard, the ongoing service
worker at DHS. N.T., 7/14/14, at 22-23. DHS also presented the testimony
of Benita Riley, the DHS adoption social worker. Id. at 47.
Paternal Grandmother testified that she began raising the Children in
2009, when they were removed from the care of their biological parents
2
As the blood-related grandmother of the Children, Paternal Grandmother
was exempted from filing a report of intention to adopt and a report of
intermediary. See 23 Pa.C.S.A. §§ 2531(c) and 2533(a).
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because of unsafe housing. N.T., 7/14/14, at 4, 6. She is currently
employed by the City of Philadelphia, and previously was employed with the
school district, working with children. Id. at 5. Paternal Grandmother
testified that she has no record of committing child abuse. Id. at 5.
Paternal Grandmother stated that the Children lived with her, and that she
took sole responsibility for caring for them. Id. at 7. She testified that, at
times, Father or her sister, R., assisted her in caring for the Children. Id. at
7.
Paternal Grandmother explained that the Children were under DHS
supervision while they lived with her. Id. at 8. She stated that a social
worker, Ms. Noelle, would come to her home on a weekly basis, and Ms.
Redguard would come to her home once a month. Id. Paternal
Grandmother testified that she did not receive any negative feedback from
the DHS supervisors while the Children lived with her, and that they
indicated everything was fine. Id.
Paternal Grandmother stated that, on one occasion, Ms. Redguard told
her that Mother was complaining about the appearance of the Children’s
clothes, and, another time, Ms. Redguard told her to get the Children to the
doctor sooner. Id. at 8-9. Paternal Grandmother testified that she, Father,
or her brother would take the Children to their supervised and unsupervised
visits with Mother. Id. at 9-10. Paternal Grandmother stated that, when
Father and her brother began taking the Children to visits with Mother,
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Mother began complaining about the appearance of the Children. Id. at 10.
Paternal Grandmother testified that she had taken the Children to the doctor
six or seven days prior to their removal from her care on July 8, 2011. Id.
Paternal Grandmother testified that Ms. Redguard visited her on July
6, 2011, informed her of a status review hearing scheduled for the following
day, at which Paternal Grandmother need not be present. Id. at 10, 12.
Paternal Grandmother stated that Ms. Redguard observed the Children
sitting at a table and eating, and did not complain about their appearance.
Id. at 11. Paternal Grandmother testified that Ms. Redguard told her that
she would ask the court to grant Paternal Grandmother permanent legal
custody at the hearing. Id.
Paternal Grandmother stated that she did not attend the hearing on
July 7, 2011, because she had a staff development meeting at work. Id. at
10-11.3 Paternal Grandmother testified that Ms. Redguard came to her
home after the hearing on July 7, 2011, and informed her that Mother
brought photographs depicting something spilled on the floor, which came as
a surprise to Ms. Redguard and Ms. Noelle. Id. at 12. Paternal
Grandmother testified that Ms. Redguard stated she and Ms. Noelle would be
removing the Children. Id. Paternal Grandmother explained that Ms.
Redguard showed her a photograph that depicted spaghetti sauce spilled on
the floor, and the appearance of vomit on the floor, but Paternal
3
The trial court admitted as evidence the notes of testimony from the
hearing on July 7, 2011. Id. at 22-23.
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Grandmother denied that anyone in her home ate spaghetti. Id. at 13.
Paternal Grandmother told the Children that they were being removed and
needed to cooperate, which upset them and made them cry. Id. at 12-13.
Paternal Grandmother is seeking to adopt the Children because they are her
family. Id.
Paternal Grandmother testified that, after the Children were removed
from her care, N.C.T. sustained a concussion, and Paternal Grandmother and
Father went to the hospital to see her. Id. at 16. Paternal Grandmother
explained that, after the Children were removed from her care, she was
permitted to visit them, and did visit them, at the Children’s Services, Inc.
(“CSI”) building for approximately one month, but stopped because of her
work. Id. Paternal Grandmother testified that she has a close, loving
family, and teaches giving, caring, and loving each other. Id. Paternal
Grandmother takes the children in her family to family gatherings and
playgrounds. Id. at 20. Paternal Grandmother believes it is in the best
interest of the Children for her to adopt them because she kept them
healthy, has fun with them, and loves them. Id.
Ms. Redguard testified that, as an ongoing service worker at DHS, it is
her responsibility to make certain that children are safe after intake until
adoption. Id. at 23-24. She became responsible for this case in 2010. Id.
at 24. Ms. Redguard testified that, prior to July 7, 2011, a former CSI
worker brought to her attention that Paternal Grandmother failed to follow-
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up on the ophthalmology appointments for T.M.T., Jr. Id. at 24, 26. The
former CSI worker, Ms. Noelle, brought to her attention that Mother was
complaining about the Children’s appearance at visits. Id. at 24-25.
Additionally, CSI was concerned that Father was bringing the Children to
visit Mother, as the parents had a contentious relationship. Id. at 25-26.
Paternal Grandmother, as the kinship care parent, was expected to bring the
Children to the visits. Id. at 25.
Ms. Redguard explained that DHS subcontracted CSI to provide
services. Id. at 26. CSI was responsible for the supervised visits at CSI,
and for conducting weekly visits with Paternal Grandmother to ensure that
the Children were safe while in her care. Id. Ms. Redguard testified that
CSI sent a letter, dated June 20, 2011, to Paternal Grandmother at her
address, and copied DHS. Id. at 27-28. In the letter, CSI stated concerns
about the Children’s unwashed appearance and their musty body odor. Id.
at 28. Further, in the letter, CSI stated that, if the hygiene and personal
care issues continued to be an issue, the Children would be removed from
the home. Id.
Ms. Redguard testified that, in February or March of 2011, she had a
conversation with Paternal Grandmother concerning the need to ensure that
T.M.T., Jr. was taken to medical appointments, about Father bringing the
Children to their visits with Mother, and the appearance of the Children. Id.
at 30. Ms. Redguard stated that, when she went to the home once a month,
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the Children appeared to be happy and thriving, and they were eating. Id.
at 30-31. However, there were concerns about the Children’s appearance
and body odor when they left the home. Id.
On the morning of the status hearing on July 7, 2011, Mother showed
Ms. Redguard twelve photographs that depicted the Children with bite marks
on their bodies. Id. at 31-33. The photographs alarmed Ms. Redguard,
because she saw the Children at Paternal Grandmother’s home on the day
prior the hearing, but they were dressed with clothing that covered their
backs and arms. Id. at 32-33. After the hearing, Ms. Redguard proceeded
to Paternal Grandmother’s home, showed Paternal Grandmother one of the
photographs, and explained that the Children were being removed from
Paternal Grandmother’s care. Id. at 34-35. Paternal Grandmother stated
that the marks were mosquito bites. Id. at 32, 36. Paternal Grandmother
packed the Children’s belongings in two trash bags, which they took to the
foster care home. Id. at 35.
When Ms. Redguard arrived with the Children at their foster care
home, she examined both of the Children. Id. She found that N.C.T. had
bruises or some type of marks on her back and her arms, consistent with the
photographs, some of which had cleared up. Id. The bruises were on
N.C.T.’s upper back, arm, and under both eyes. Id. at 35-36. She also had
scratches on her face. Id. Ms. Redguard later discovered the marks on
both Children were scabies bites. Id. at 36. Ms. Redguard further testified
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that she examined T.M.T., Jr. without his clothing. Id. at 37. He did not
have as many bite marks as N.C.T., but he was wearing blue plastic
underpants. Id. T.M.T., Jr, explained that Paternal Grandmother dressed
him in the blue plastic underwear when he urinated in his underwear. Id.
Ms. Redguard was concerned as the temperature was 90 degrees Fahrenheit
and she was uncertain as to how long T.M.T., Jr. had been wearing the blue
plastic underpants after he soiled his pants. Id. Ms. Redguard stated that
T.M.T., Jr. had been properly bathed, for the most part, but N.C.T. was filthy
around her neck. Id. at 38.
Ms. Redguard testified that, prior to July 7, 2011, Mother had one or
two one-hour visits with the Children at CSI. Id. at 38. At the time of the
July 7, 2011 hearing, Mother had one other child living with her. Id. DHS
had no concerns about that child, who was approximately one year old, and
did not have scabies. Id. After the Children were removed from Paternal
Grandmother’s care, Foster Mother took the Children to the pediatrician,
where they received treatment for their scabies. Id. at 39. Ms. Redguard
remained involved with the case until July or August of 2012. Id. at 39.
She is unaware of the Children having scabies between July of 2011 and July
of 2012, and she had no other concerns about the Children after their
removal from Paternal Grandmother’s home. Id.
On cross-examination by counsel for Foster Mother, Ms. Redguard
testified that she had a conversation with Paternal Grandmother about the
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two ophthalmology appointments which T.M.T., Jr. missed. Id. at 40. She
explained to Paternal Grandmother that the ophthalmology appointments
were important so that T.M.T., Jr.’s vision could be monitored.4 Id. at 40-
41.
On cross-examination by counsel for Paternal Grandmother, Ms.
Redguard testified that she received a medical document regarding the
Children’s scabies. Id. at 41-42. She believed that T.M.T., Jr. would have
been three years old and would have had pediatrician appointments once a
year, while N.C.T. would have been under two years old and would have
been seen by a physician every six months. Id. at 42. Ms. Redguard told
Paternal Grandmother about the missed ophthalmology appointments and
Father taking the Children to CSI for visits with Mother, but she did not know
about the scabies bites during her visits. Id. at 43. When she saw the
Children prior to the status hearing on July 7, 2011, they seemed fine, and
she told Paternal Grandmother that she would request the court to award
Paternal Grandmother permanent legal custodianship of the Children. Id. at
43.
Ms. Redguard was assigned to the case for approximately two years
and, when she visited the home of Paternal Grandmother on a monthly
basis, the residence seemed to be a fine home for the Children. Id. at
42-43. Ms. Redguard told Paternal Grandmother that she was not required
4
T.M.T., Jr. suffers from congenital glaucoma and is blind in one eye. If left
unchecked, the condition could lead to total blindness.
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to be present at the status hearing scheduled for July 7, 2011, but she was
welcome to attend. Id. at 43-44. Ms. Redguard explained that Mother
presented the photographs at the status hearing, but did not testify under
oath. Id. at 44. The July 7, 2011 status hearing was the first hearing that
Mother attended. Id. at 45-46.
Ms. Redguard was concerned about Father transporting the Children to
their visits with Mother because the parents had a contentious relationship.
Id. at 45. The Children were removed from Mother’s custody because of the
deplorable living conditions in her home, including a lack of utilities, holes in
the ceiling, and decay causing unsafe conditions. Id. at 46. Ms. Redguard
also took the Children to their foster care home on July 7, 2011. Id.
On cross-examination by the Child Advocate’s counsel, Ms. Redguard
testified that she harbored a concern about Father transporting the Children
to their visits with Mother because he has drug and alcohol issues. Id. The
court terminated Father’s parental rights to the Children because he never
remedied those issues. Id. Nevertheless, Paternal Grandmother allowed
Father to transport the Children. Id. at 46-47.
Next, DHS presented the testimony of Ms. Riley, who became
responsible for the case in August of 2012, after it was transferred to the
adoption unit of DHS. Id. at 47. She was responsible for ensuring that the
Children were in a safe environment and that the adoption papers were
timely processed. Id. at 47-48. Ms. Riley testified that the Children were
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currently in the pre-adoptive Delta Community support home of Foster
Mother, where they lived since February 1, 2013. Id. at 48. She visited
the Children on a monthly basis from the time of placement in the home
until March of 2014, for thirteen visits. Id. Her visits lasted for forty-five
minutes to an hour. Id. at 48-49.
Ms. Riley testified that T.M.T., Jr. has a happy, healthy, content
relationship with Foster Mother and moves freely in her home. Id. at 49.
He seeks out Foster Mother for comfort. Id. Ms. Riley opined that there is a
bond between T.M.T., Jr. and Foster Mother. Id. She is aware that he has
congenital glaucoma, is blind in his left eye, and receives ophthalmology
services through Children’s Hospital of Philadelphia. Id. T.M.T., Jr.
receives bi-weekly counseling to address his aggression and receives
medications for that condition. Id.
Ms. Riley testified that Foster Mother is consistently aware of the
Children’s appointments and the services they are receiving. Id. at 50. Ms.
Riley considers Foster Mother capable of caring for T.M.T., Jr.’s medical and
behavioral needs. Id. Ms. Riley observed that Foster Mother is nurturing
toward T.M.T., Jr., re-directs him as necessary, is loving and attentive
toward him, and ensures that all of his needs are met. Id. Ms. Riley
testified that, on behalf of DHS, she consented to Foster Mother’s petition to
adopt T.M.T., Jr. because the Children seem bonded to Foster Mother, Foster
Mother addresses their needs, and she requested to adopt them. Id. at 50-
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51. Ms. Riley believes it is in T.M.T., Jr.’s best interest for Foster Mother to
adopt him, and that it is contrary to his best interest to be adopted by
anyone else. Id. at 51.
Ms. Riley observed that N.C.T. is younger and more “needy” than
T.M.T., Jr. Id. N.C.T. interrupts Ms. Riley’s conversations with Foster
Mother, but Foster Mother re-directs her. Id. Foster Mother is nurturing
toward N.C.T., and ensures that all of N.C.T.’s needs are met, including
enrolling her in pre-school. Id. N.C.T. receives preventative ophthalmology
appointments and receives preventative medication for the glaucoma
condition, for which she has not been diagnosed. Id. at 51-52. Foster
Mother ensures that N.C.T. attends her medical appointments and takes her
medicine. Id. at 52. Foster Mother had N.C.T. evaluated a few months
prior to the July 14, 2014 hearing. Id. The evaluation recommended that
no services were necessary for N.C.T. Id.
Ms. Riley described Foster Mother’s interactions with N.C.T. as loving,
kind, and attentive. Id. Ms. Riley explained that DHS consented to Foster
Mother’s adoption of N.C.T. because Foster Mother has been a stable
provider for both of the Children. Id. at 53. Foster Mother ensures that the
Children are safe, and that their medical, educational, and daily needs are
met. Id. Ms. Riley believes that it is in N.C.T.’s best interest to be adopted
by Foster Mother. Id.
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On cross-examination by counsel for Foster Mother, Ms. Riley
responded that she believes Foster Mother will be able to maintain the
Children’s services and keep up with their medical appointments. Id. Ms.
Riley stated that she understands the importance of continuing the
Children’s medical care and meeting T.M.T., Jr.’s behavioral and emotional
needs. Id.
Finally, Foster Mother testified that she has lived at her current
address for thirteen years, and plans to continue residing there. Id. at 54.
Foster Mother stated that she has biological children, a male who is 35 years
old and has three children and a daughter who is 26 years old and is a
nurse, and has two children. Id. at 54-56. Neither of these grown children
resides with her, but her daughter brings her children to Foster Mother’s
home to play with N.C.T. Id. Foster Mother also has a 22-year-old
biological daughter, who resides at home and is studying to be a licensed
practical nurse. Id. at 54-55. Foster Mother’s younger daughter helps her
with feeding and watching the Children. Id. at 55. Foster Mother also can
depend on her friends and family. Id. Foster Mother has had more than
forty children in her home, and she treats them all as family. Id. In 2008,
Foster Mother adopted two children who are brothers, one of whom has
autism and mild retardation, which she has to manage. Id. Foster Mother
also has permanent legal custody of a third male child, who has been living
with her since 2010. Id.
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Foster Mother testified that, at first, T.M.T., Jr. was leery of her home,
but now realizes that he is part of a family and enjoys interacting with the
older boys. Id. The older boys help watch N.C.T. Id. at 57. Foster Mother
stated that she wants to adopt the Children because she loves them and
they are part of her family. Id.
Foster Mother ensures that T.M.T., Jr. receives his eye drops and
medication before he eats in the morning. Id. at 58. She stated that
T.M.T., Jr.’s ophthalmologist believes the child’s eye is stable and that it will
not worsen. Id. She also ensures that T.M.T., Jr. sees his behavioral
therapist every two weeks. Id. Foster Mother stated that T.M.T., Jr. is
doing well and is opening up and speaking with the therapist. Id. She
explained that T.M.T., Jr.’s behavioral specialist has her phone number and
they communicate via text messages to ensure that T.M.T., Jr. is
well-behaved. Id. T.M.T., Jr. also has a Therapeutic Staff Support (“TSS”)
worker for twenty hours in the school for the blind, where he is entering first
grade. Id. at 59. Foster Mother stated that T.M.T., Jr. has been doing
better in school with the TSS worker. Id. at 58-59. Foster Mother testified
that some of T.M.T., Jr.’s test results show that he is functioning at a third
grade level. Id. at 59.
Foster Mother explained that N.C.T. is in pre-school and will enter
kindergarten. Id. There were no concerns for N.C.T. in pre-school. Id.
Foster Mother also had no concerns for the behavior of the Children in her
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home. Id. She testified that she would be able to continue to handle the
medical and behavioral needs of the Children, and would speak with their
physicians. Id.
On cross-examination by counsel for Paternal Grandmother, Foster
Mother stated that she intends to change the last name of the Children in
order to give them her last name. Id. at 60. She also stated that she
permitted her adopted sons to continue to have contact with their biological
family. Id.
On August 13, 2014, the trial court entered its order, granting Foster
Mother’s petitions for adoption, finding adoption by Foster Mother to be in
the best interests of the Children, and denying Paternal Grandmother’s
petitions for adoption. Based on the testimonial and documentary evidence,
the trial court found the following.
***
6. Petitioner [Foster Mother] has had continuous custody and
care of the [C]hildren since February 1, 2013. (N.T. 7/14/2014,
pg. 48, lines 9-12).
7. Petitioner [Paternal Grandmother] has not had significant
contact with the [C]hildren for over one year. (N.T. 7/14/2014,
pgs. 19, 23, 24).
8. D.H.S. has given its consent to . . . [Foster Mother] to adopt
the [C]hildren. (N.T. 7/14/2014, pgs. 50, 52-53).
9. The record developed at trial clearly establishes that there is a
strong bond between the [Children] and [Foster Mother]. (N.T.
7/14/2014, pgs. 49-53, 57).
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10. There is no evidence in the record that establishes any
current bond between the [Children] and Petitioner [Paternal
Grandmother]. The record, arguably, shows that there is clearly
a lack of such an existing bond.
11. The record is replete with testimony as to unsafe conditions
and/or descriptions of injuries, health issues and untreated
medical conditions of the [C]hildren during the period that they
were in the care of Petitioner [Paternal Grandmother]. (N.T.
7/14/2014, pgs. 28, 32, 35-38).
12. The trial court had the benefit of live testimony and the
ability to see the demeanor of the witnesses. Accordingly, the
trial court had the ability to evaluate and measure the sincerity
of their responses of all witnesses who testified. The trial court
finds:
a. Petitioner [Foster Mother] consistently testified credibly.
b. Petitioner [Paternal Grandmother] provided testimony
which was either questionable, contradictory, or conflicting.
Accordingly, her testimony is less reliable as it lacks
consistent credence with respect to material issues.
Trial Court Opinion 1/13/15, at 2-3.
Thereafter, Paternal Grandmother retained her present counsel, who
entered an appearance on September 24, 2014. On September 24, 2014,
Paternal Grandmother filed a petition in the trial court seeking permission to
file an appeal nunc pro tunc. The trial court granted the petition on October
1, 2014. On October 10, 2014, Paternal Grandmother filed a notice of
appeal, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).5
5
As this is an appeal designated as a Children’s Fast Track Case, we have
made every effort to decide it expeditiously. See In re T.S.M., 71 A.3d
251, 261 n.21 (Pa. 2013). However, the certified record was not
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In her brief on appeal, Paternal Grandmother raises three issues, as
follows.
A. Whether the trial court committed reversible error in making a
finding that it is in the best interest of the [C]hildren to deny the
adoption petition filed by [Paternal Grandmother]?
B. Whether the trial committed reversible error in making a
finding that there is no evidence that established any current
bond between the [C]hildren and [Paternal Grandmother]?
C. Whether the trial court’s determinations as set forth in [A-B]
above were clearly supported by the preponderance of the
evidence?
Paternal Grandmother’s Brief, at 1.
Initially, in their brief, the Children complain that Paternal
Grandmother’s brief does not contain a statement of the facts necessary to
determine the points in controversy, nor does it reference any place in the
record to show that she raised or preserved a question for appeal. The
Children suggest that we should quash the appeal for failure of Paternal
Grandmother’s brief to comply with Pa.R.A.P. 2117(a)(4) and (c)(4). The
Children also complain that Paternal Grandmother’s brief fails to provide a
statement of the facts with references to the record necessary for
substantive review, and fails to cite to the record in the Argument section, in
violation of and 2119(c), (d), and (e). The Children ask us to deem Paternal
Grandmother’s issues waived pursuant to Pa.R.A.P. 302(a).
transmitted to this Court until January 23, 2015. As a result, the briefing
schedule was delayed. Moreover, both parties requested extensions of time
to file their briefs. Accordingly, the extensions resulted in another month of
delay in listing this case for disposition by a merits panel.
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This Court may quash or dismiss an appeal if an appellant fails to
conform to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101; Laird v. Ely & Bernard, 528 A.2d 1379 (Pa.
Super. 1987). “[A]s a practical matter, this Court quashes appeals for
failure to conform to the Rules of Appellate Procedure only where the failure
to conform to the Rules results in the inability of this Court to discern the
issues argues on appeal.” Kern v. Kern, 892 A.2d 1, 6 (Pa. Super. 2005)
(citation omitted). While we cannot condone Paternal Grandmother’s failure
to conform to the Pennsylvania Rules of Appellate Procedure in her brief, the
failure has not hampered our review. We are able to discern the issues that
Paternal Grandmother raises on appeal. Thus, we will not quash or dismiss
the appeal.
We will address Paternal Grandmother’s issues together. Paternal
Grandmother asserts that she has been a primary family resource for the
Children since their birth, and that she and the Children have an established,
maternal, loving and caring family bond. She explains that she cared for the
Children between 2009 and July of 2011, when DHS removed them from her
care, and placed them in foster care. Citing Peters v. Costello, 891 A.2d
705 (Pa. 2005), she asserts that she stood in loco parentis, and established
a loving relationship with the Children during the two-year period that she
cared for them. She claims that, as the Children’s grandmother and
caregiver, she clearly bonded with the Children. She contends that the
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removal of the Children from her care and placement in the care of another
person had a negative effect on the Children’s emotional needs. Paternal
Grandmother urges that her adoption of the Children will serve the
Children’s best interests, as she is their paternal grandmother.
On appeal from a decree of adoption, our standard of review is an
abuse of discretion. In re B.L.L., 787 A.2d 1007, 1015 (Pa. Super. 2001).
Thus, an adoption decree will be vacated only if the challenging party
demonstrates the invalidity of the decree by clear and convincing evidence.
Id. “An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.
2007) (quotation omitted).
A decree of adoption is entered upon presentation of competent
evidence that the adoption is in the child’s best interest. In re B.L.L., 787
A.2d at 1015. “The proceedings in an adoption hearing are unique and
involve parties, experts, investigators and non-parties to a greater extent
than in custody hearings, but ultimately are subject to the same standard,
that being the best interest of the child.” Id. citing In re Adoption of
A.S.H., 674 A.2d 698 (Pa. Super. 1996).
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Further, the best interest determination in adoption matters is made
on a case-by-case basis, and requires a weighing of the factors set forth in
section 2724 of the Adoption Act, 23 Pa.C.S.A. § 2724. In re B.L.L., 787
A.2d at 1015 citing In re Adoption of A.S.H., supra.
Section 2724 of the Adoption Act provides in pertinent part:
(b) Investigation.—The court may request that an
investigation be made by a person or public agency or, with its
consent, a voluntary agency, specifically designated by the court
to verify the statements of the petition and such other facts that
will give the court full knowledge of the desirability of the
proposed adoption, or the court may rely in whole or in part
upon a report earlier made under section 2535 (relating to
investigation). In 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 physical,
mental and emotional needs and welfare of the child.
23 Pa.C.S.A. § 2724.
The trial court found that Foster Mother had continuous custody and
care of the Children since February 1, 2013. Trial Court Opinion, 1/13/15, at
2 (citing N.T. 7/14/2014, pg. 48, lines 9-12). The trial court also found that
Paternal Grandmother had no significant contact with the Children for over
one year. Trial Court Opinion, 1/13/15, at 2 (citing N.T. 7/14/2014, pgs. 19,
23, 24). Paternal Grandmother testified that she visited the Children for
approximately one month after they were removed from her care on July 7,
2011, but she could not take more time from work to continue visiting them.
N.T., 7/14/14, at 19.
The trial court stated the following.
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This court, in assessing what is in the best interest of the
[C]hildren in the instant contested adoption, is called upon to
choose the more appropriate party or parties. The trial court
gives great weight to [Foster Mother,] as she has been involved
in the day[-]to[-]day parenting of the [C]hildren[,] and has
provided them continuous care for well over a year. The court,
in making its best interest analysis, must also consider bonding.
Scholarly research suggests[,] “Bonding is a significant
reciprocal attachment which both parties want and expect to
continue, and which is interrupted or terminated at considerable
peril to the parties involved.” Bonding is a Vital Issue: Appellate
Courts Agree, by James Kenny[,] PhD [sic] and Mask Bontrager,
MSW [sic], JD. [sic], pg. 1. This same research reveals that
relationships arising out of bonding outweigh relationships based
merely on kinship. See [i]d. at 2. In the instant case, the
record provides more than clear and convincing evidence of the
existence of a strong mutual bond between the [C]hildren and
[Foster Mother].
***
In the instant case, the [C]hildren have been in the
continuous care of [Foster Mother] for over one year without
interruption or incident. Thus[, Foster Mother] has provided a
stable environment best suited for the continued long-term
growth and development of the [C]hildren. Accordingly, the
court finds the welfare of the children is best safeguarded in the
stability they have become accustom [sic] to with [Foster
Mother].
***
It would be destructive and certainly not in the best
interest of the [C]hildren to remove them from their existing,
stable environment.
***
Based on the foregoing findings of fact, applicable law and
legal analysis, the weight and sufficiency of the evidence support
the granting of the petitions of [Foster Mother]. The trial court’s
decision is supported by the record developed at trial and is
supported by the established law of the Commonwealth. The
trial court’s ruling is in the “best interest” of the [C]hildren.
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Trial Court Opinion, 1/13/15, at 4-5.
The trial court’s determination that the Children’s best interests are
served by being adopted by Foster Mother is supported by ample, competent
evidence in the certified record. The trial court found that Foster Mother
provided a stable environment best suited for the continued long-term
growth and development of the Children. The court found that the welfare
of the Children is best safeguarded in the stability provided by Foster
Mother. Ms. Riley testified that Foster Mother ensures that the Children are
safe, and that their medical, educational, and daily needs are met. N.T.,
7/14/14, at 53. Ms. Riley opined that there is a bond between T.M.T., Jr.
and Foster Mother. Id. at 49. Ms. Riley testified that, on behalf of DHS, she
consented to Foster Mother’s petition to adopt T.M.T., Jr. because the
Children seem bonded to Foster Mother, Foster Mother addresses the
Children’s needs, and she has requested to adopt them. Id. at 50-51. Ms.
Riley also testified that Foster Mother’s interactions with N.C.T. are loving,
kind, and attentive. Id. at 52. Ms. Riley believes that it is in the Children’s
best interest to be adopted by Foster Mother. Id. at 51, 53.
Paternal Grandmother offered the only testimony concerning what she
does to support the physical, mental and emotional needs and welfare of the
Children, and the bond between her and the Children. Paternal
Grandmother testified that it is in the best interest of the Children for her to
adopt them because they are a family, and she kept them healthy, has fun
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with them, and loves them. Id. at 20. Paternal Grandmother relies on
Peters to support her argument that she stood in loco parentis to the
Children when they lived with her between 2009 and 2011, and, therefore,
has a bond with them.
In Peters, our Supreme Court outlined the relevant principles as
follows:
The term in loco parentis literally means “in the place of a
parent.” Black's Law Dictionary (7th Ed. 1991), 791.
The phrase “in loco parentis” refers to a person who puts
oneself [sic] in the situation of a lawful parent by
assuming the obligations incident to the parental
relationship without going through the formality of a legal
adoption. The status of in loco parentis embodies two
ideas; first, the assumption of a parental status, and,
second, the discharge of parental duties. . . . The rights
and liabilities arising out of an in loco parentis
relationship are, as the words imply, exactly the same as
between parent and child.
Peters, 891 A.2d at 710 (citation and footnote omitted).
Paternal Grandmother did not act in loco parentis when the Children
were placed in foster care. Rather, she was a kinship care provider, and
DHS had legal custody of the Children. Thus, her in loco parentis argument
is misplaced. See In re N.S., 845 A.2d 884, 887 (Pa. Super. 2004) (former
foster parent who had physical possession and provided day-to-day care to
children lacked standing to pursue adoption, visitation, or custody where
county children and youth agency held legal custody of children); see also
In re Adoption of Crystal D.R., 480 A.2d 1146 (Pa. Super. 1984) (foster
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parents who petitioned to terminate parental rights of natural parents did
not stand in loco parentis to children because state agency had responsibility
for actual care and physical custody of the children and had legal custody of
minors).
Paternal Grandmother also cites Commonwealth ex rel. Jordan v.
Jordan, 448 A.2d 1113 (Pa. Super. 1982), to support her argument that, in
a best interest analysis, courts examine the primary caregiver factor,
recognizing that the children become strongly attached to those who parent
and tenderly care for them. See Paternal Grandmother’s Brief, at 4. Based
on the primary caretaker doctrine, Paternal Grandmother asserts that she
established a bond long before the Children were removed from her home by
caring for them and tending to their physical and emotional needs.
Paternal Grandmother’s contention lacks merit as this Court has ruled
that the primary caretaker doctrine is no longer viable in light of the
statutory factors enumerated in the Child Custody Act. See W.C.F. v. M.G.,
2015 PA Super 102 (Pa. Super. 2015); M.J.M. v. M.L.G., 63 A.3d 331, 338
(Pa. Super. 2013).
Even if the primary caretaker doctrine were applicable to the instant
adoption case, the facts would not support a finding that Paternal
Grandmother’s adoption of the Children is in their best interest. The
testimony of Ms. Redguard established that, when the Children were in the
care of Paternal Grandmother, she failed to take T.M.T., Jr. to
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ophthalmology appointments for his special needs glaucoma condition. Ms.
Redguard’s testimony also established that Paternal Grandmother allowed
both of the Children to develop scabies and suffer bites. Paternal
Grandmother allowed N.C.T. to be filthy, T.M.T., Jr. to wear his soiled
underpants in hot weather, and both Children to smell of a foul odor.
Notably, while Paternal Grandmother had the Children in kinship care, she
allowed Father to transport them to visit Mother, although he had a
contentious relationship with Mother. These matters resulted in the
Children’s removal from Paternal Grandmother’s care on July 7, 2011.
The record also supports the trial court’s determination that Paternal
Grandmother did not have significant contact with the Children for over one
year after the agency removed them from her home. Although Paternal
Grandmother continued to visit the Children for approximately one month
after they were removed from her care, she no longer pursued visitation
after that time, as she believed her work obligations were more important.
We find it significant that Paternal Grandmother allowed the Children to
remain in foster care without pursuing visitation through the time of the July
14, 2014 hearing on the adoption petitions.
In the context of a termination of parental rights matter, this Court
observed that no bond worth preserving is formed between a child and a
natural parent where the child has been in foster care for most of the child’s
life, and the resulting bond with the natural parent is attenuated. In re
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K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Although Paternal
Grandmother is not a natural parent of the Children, she is their blood
relative for purposes of the adoption petition. See 23 Pa.C.S.A. § 2531(c).
T.M.T., Jr. and N.C.T. have been in foster care, and out of Paternal
Grandmother’s care, since July of 2011. They were approximately four
years old and two years old, respectively, at the time of their removal from
her care and placement in foster care. She has not visited them since
August, 2011. Thus, we find that the trial court did not abuse its discretion
in concluding that the Children’s bond with Paternal Grandmother, who did
not visit the Children in nearly three years, is attenuated, at best.
Likewise, Paternal Grandmother testified that she loves the Children.
N.T., 7/14/14, at 20. In the context of termination of parental rights, this
Court stated that a parent’s own feelings of love and affection for a child,
alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). We find no abuse of the trial court’s
discretion in concluding that Paternal Grandmother’s professed love for the
Children is not sufficient for the court to grant her adoption petition and
deny Foster Mother’s adoption petition where she has failed to demonstrate
her love for the Children through her actions.
In the context of termination proceedings, this Court also held that it is
appropriate to consider a child’s bond with his or her foster parents. See In
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re: T.S.M., 71 A.3d 251, 268 (Pa. 2013). Regarding the bond analysis, in
In re: T.S.M., our Supreme Court instructed as follows.
The “utmost attention should be paid to discerning the
effect on the child of permanently severing the parental bond.
However, as discussed below, evaluation of a child’s bonds is not
always an easy task.
The Superior Court has emphasized that the mere
existence of a bond or attachment of a child to a parent will not
necessarily result in the denial of a termination petition. “[E]ven
the most abused of children will often harbor some positive
emotion towards the abusive parent.” “The continued
attachment to the natural parent, despite serious parental
rejection through abuse and neglect, and failure to correct
parenting and behavior disorders which are harming the children
cannot be misconstrued as bonding.”
Common sense dictates that courts considering
termination must also consider whether the children are in a pre-
adoptive home and whether they have a bond with their foster
parents.
***
[C]ontradictory considerations exist as to whether
termination will benefit the needs and welfare of a child who has
a strong but unhealthy bond to his biological parent, especially
considering the existence or lack thereof of bonds to a pre-
adoptive family. As with dependency determinations, we
emphasize that the law regarding termination of parental rights
should not be applied mechanically, but instead always with an
eye to the best interests and the needs and welfare of the
particular children involved. . . . Obviously, attention must be
paid to the pain that inevitably results from breaking a child’s
bond to a biological parent, even if that bond is unhealthy, and
we must weigh that injury against the damage that bond may
cause if left intact. Similarly, while termination of parental rights
generally should not be granted unless adoptive parents are
waiting to take a child into a safe and loving home, termination
may be necessary for the child’s needs and welfare in cases
where the child’s parental bond is impeding the search and
placement with a permanent adoptive home.
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In weighing the difficult factors discussed above, courts
must keep the ticking clock of childhood ever in mind. Children
are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When
courts fail . . . the result, all too often, is catastrophically
maladjusted children.
In re: T.S.M., 71 A.3d at 267-269 (citations omitted).
In view of our Supreme Court’s instruction in In re: T.S.M., we find
that the trial court properly focused on the existence of a positive bond
between the Children and Foster Mother. There was ample, competent
testimony in the record from Ms. Riley to support the trial court in finding
that the Children have a stronger bond with Foster Mother than with
Paternal Grandmother, and that Foster Mother, who is anxious to adopt the
Children, provides them with a stable home and provides for all of their
needs and welfare. We, therefore, affirm the orders granting Foster
Mother’s adoption petitions, and denying Paternal Grandmother’s adoption
petitions.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2015
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