J-A04012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.K.K.-W., A : IN THE SUPERIOR COURT OF
MINOR APPEAL OF R.G. AND E.G., : PENNSYLVANIA
KINSHIP PARENTS :
:
:
:
:
:
: No. 1891 EDA 2019
Appeal from the Order Entered June 5, 2019
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000831-2016
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 20, 2020
In this appeal, we are faced with an unusual conflict. Two caring and
competent families wish to adopt a dependent child currently in the custody
of a child welfare agency. The trial court had the unenviable task of picking
which of the two competing adoption petitions would be successful. After
careful review, we can find no error or abuse of the trial court’s discretion and
therefore affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04012-20
R.G. and E.G. (“Foster Parents”),1 appeal from the order entered June
5, 2019, that denied their petition to adopt K.K.K.-W. (born in September
2012) (“Child”), and granted the petition to adopt Child filed by L.R. (“Aunt”).
Much of the factual history of this matter was stipulated to by the
parties. We will note where factual disputes exist.
In March 2014, Child was seen in the emergency room at St.
Christopher’s Hospital for Children (“St. Christopher’s”) because a chicken
bone became lodged in his throat. See N.T., 3/28/18, at 10. Child was
referred to the Hematology Department due to abnormal blood platelets. See
id. However, Child’s mother2 failed to follow up with the scheduled
appointment. See id. DHS received a General Protective Services report
alleging medical neglect of Child and deplorable housing conditions. See id.
As a result, Child and his three older siblings were informally placed with their
maternal great aunt. See id.
In May 2014, Child was diagnosed with leukemia by St. Christopher’s
and was placed on a bone marrow donor waitlist. See id. Child was
subsequently admitted to St. Christopher’s for chemotherapy and radiation
____________________________________________
1 We recognize that Foster Parents refer to themselves as Kinship Parents and
that many witnesses, including the Philadelphia Department of Human
Services (“DHS”)’s witnesses, acknowledged that their prior relationship with
Child renders them kinship foster parents. Our use of Foster Parents is solely
for ease of discussion.
2 Child’s father died in July 2012.
-2-
J-A04012-20
treatments. See id. at 10-11. Child’s mother visited sporadically and rarely
called for updates. See id. at 11.
Child remained hospitalized at St. Christopher’s until October 7, 2014.
See id. At that time, he was transferred to Children’s Hospital of Philadelphia
(“CHOP”) and remained there until February 9, 2015. See id. Child was
placed in isolation due to his compromised immune system. See id.
Following an unsuccessful cord blood transplant in October 2014, Child
underwent another cord blood transplant in December 2014 that was
successful. See id. Child’s mother appeared at the hospital on two occasions
to sign consents for the cord blood transplants but rarely visited Child. See
id. Due to mother’s neglect, among other factors, the court terminated
mother’s parental rights to Child in April 2017.
Child was discharged from CHOP to Childway Pediatric Services
(“Childway”) on February 9, 2015. See id. at 12. Child was placed in an
isolation room at Childway where he required around-the-clock monitoring for
his health. See id. Child remained at Childway for ongoing treatment and
supervision for 17 months. See id. Over the course of his stay, Child was
admitted to CHOP on multiple occasions due to respiratory issues, episodes of
high fevers, reactive airway disease, and auto-immune hemolytic anemia.
See id.
Child was medically cleared to be discharged from Childway to a home
environment on May 11, 2016, with the stipulation that the caretaker
-3-
J-A04012-20
successfully complete training for all necessary medical protocols.3 See id.
at 14. At Childway, R.G. (“Foster Mother”) was assigned to Child as a one-
on-one nursing assistant and cared for Child until his discharge to her medical
foster home on June 16, 2016. See id. at 13.
The Northeast Treatment Center Community Umbrella Agency (“NET
CUA”) executive and case management team, the law department, and the
child advocate all agreed to discharge Child to Foster Parents’ home. See id.
at 14. Child has resided with Foster Parents following his discharge to their
care.
Aunt is the stepsister of Child’s deceased father. See id. at 13. V.M.
(“Grandmother”) is married to Child’s grandfather. See id. Both visited Child
at Childway and attended medical appointments. See id. Beginning in
October 2016, the juvenile court permitted Aunt two hours of weekly
supervised visits with Child. See id. at 14-15. In March 2017, Child began
four hour unsupervised visits with Aunt. See id. at 15. Visits expanded to
eight hours in November 2017. See id.
On July 14, 2017, Aunt filed a petition for adoption, followed by Foster
Parents filing a petition for adoption on November 20, 2017. The trial court
____________________________________________
3Foster Parents were certified as medical foster parents on June 14, 2016.
See N.T., 3/28/18, at 14. Aunt was certified as a medical foster parent on
August 23, 2016. See id.
-4-
J-A04012-20
held hearings on the competing petitions.4 At these hearings, the court heard
the testimony of Aunt; Foster Mother; E.G. (“Foster Father”); Grandmother;
James Loving, Psy. D., who the parties stipulated is an expert in clinical and
forensic psychology and performed an assessment of Child’s psychological
functioning; Kala Fell, a Licensed Marriage and Family Therapist, who the
parties stipulated is an expert in the areas of marriage and family therapy and
trauma-focused therapy and acted as Child’s trauma therapist; Ann
Wohlschlaeger, CRNP, who provided care for Child at CHOP; Telita Thomas,
an adoption case manager at NET CUA; Tasha Admiral, the initial NET CUA
case manager; Kimberly Ali, Deputy Commissioner of Child Welfare
Operations for DHS; and Kristin Neitz, a foster care worker for Bethany
Christian Services (“Bethany”).
At the conclusion of the final hearing on June 25, 2018, the trial court
ordered all parties to file proposed findings of fact and conclusions of law
within 45 days after receipt of the transcripts. At a status hearing on October
31, 2018, the parties reported that the transcripts of the hearings were not
completed and that Aunt’s counsel had died. See Continuance Order,
10/31/18. The court appointed counsel for Aunt and, after the transcripts of
____________________________________________
4 The transcript for the second half of the May 8, 2018 hearing is not contained
in the certified record. However, the transcript is included in the reproduced
record and we have considered it. See Commonwealth v. Barnett, 121
A.3d 534, 545 n.3 (Pa. Super. 2015) (stating, “While this Court generally may
only consider facts that have been duly certified in the record, where the
accuracy of a document is undisputed and contained in the reproduced record,
we may consider it.” (citations omitted)).
-5-
J-A04012-20
testimony were completed, the parties filed proposed findings of fact and
conclusions of law in February 2019.
On June 5, 2019, the court entered the order on appeal, denying Foster
Parents’ petition for adoption and granting Aunt’s petition for adoption. Foster
Parents timely filed a notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).5 Foster
Parents raise the following issues for our review:
1. The [t]rial [c]ourt incorrectly asserts at page 38 of its
opinion that Appellants “suggest that a subsequent hearing would
make a nullity of the entire proceedings” and then the [t]rial
[c]ourt concludes that “such a claim is without merit, lacks legal
foundation and is merely supposition based on innuendo”.
2. The [t]rial [c]ourt erred, abused its discretion, and violated
the Due Process rights of Appellants and the child by permitting
one (1) year to pass between the last day of trial and the decision
by the [t]rial [c]ourt, thereby completely failing to consider,
among other things, the enhancement of the bond and attachment
between the child and the Appellants and siblings in the household
and further in failing to consider the last year of the child’s life in
the [t]rial [c]ourt’s mandatory needs and welfare determination.
3. The [t]rial [c]ourt erred as a matter of law and abused its
discretion in failing to appoint legal counsel for the child within the
meaning of the Adoption Act of Pennsylvania [(23 Pa.C.S.A. §§
2101–2910)] and in failing to ascertain the wishes or preference
of the child, and in so doing violated the constitutional right of the
child to have legal counsel and therefore a voice with regard to
his own life and adoption.
____________________________________________
5 On July 17, 2019, Foster Parents filed an “Emergency Motion To Stay Trial
Court’s May 30, 2019 Order And For Child To Remain In His Current Home
With Kinship Parents Pending Resolution Of Appeal In Superior Court.” By
order dated July 18, 2019, this Court granted Foster Parents’ motion and
directed, “[t]he status of child’s visitation order with [Aunt] is to remain in
place, pending further order of this Court.”
-6-
J-A04012-20
4. The [t]rial [c]ourt abused its discretion by disregarding,
failing to give proper weight and / or deference to, and / or failing
to attend to the full extent of the testimony of various witnesses,
some of which was uncontradicted and undisputed, including Ann
Wohlschlaeger (attending Children’s Hospital nurse practitioner),
Dr. Loving (the child transition evaluator), Kala Fell (attending
trauma therapist of child), Appellee [Aunt], DHS Administrator,
Kimberly Ali and the Appellants.
5. The [t]rial [c]ourt’s failure to consider highly relevant
evidence concerning what is in the child’s best interests . . . is a
gross error, an abuse of discretion[,] and a violation of its parens
patriae duty.
6. The [t]rial [c]ourt erred as a matter of law and abused its
discretion by not recognizing the Appellants as “kinship” as
defined by Pennsylvania Law.
7. The [t]rial [c]ourt herein placed improper weight on
Appellee’s step-family relationship and failed to place great weight
on the significant, highly valued, bonded, securely attached,
existing family relationship the child has with . . . E.G., and R.G.,
Appellants[,] and O.G., their daughter.6
Foster Parents’ Brief at 16, 18, 22, 31-32, 60, 74, and 78.7
With regard to adoptions, we review the trial court’s determinations for
an abuse of discretion. See In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016).
This Court has stated:
____________________________________________
6 While Foster Parents’ statement of questions involved contains six questions,
their brief contains seven argument sections. This constitutes a violation of
Pa.R.A.P. 2119(a), requiring the argument section to be “divided into as many
parts as there are questions to be argued.” Moreover, the argument section
combines several of the questions involved and divides others. Despite the
violation of Rule 2119(a), we address the issues posed by Foster Parents as
set forth in the argument section of their brief.
7 Child’s Child Advocate has filed a brief supporting Foster Parents.
-7-
J-A04012-20
An abuse of discretion does not exist merely because a reviewing
court would have reached a different conclusion. Appellate courts
will find a trial court abuses its discretion if, in reaching a
conclusion, it overrides or misapplies the law, or the record shows
that the trial court’s judgment was either manifestly unreasonable
or the product of partiality, prejudice, bias or ill will.
Id. While we are not bound by findings of fact unsupported by the record or
the court’s inferences drawn from the facts, we defer to the findings of the
trial judge with regard to credibility and weight of the evidence. In re
Adoption of A.S.H., 674 A.2d 698, 700 (Pa. Super. 1996).
In Foster Parents’ first two arguments, which we address together,
Foster Parents fault the trial court for waiting one year after the close of
testimony to deliver a decision. Foster Parents contend that this delay
deprived the trial court of current evidence regarding Child’s needs, welfare,
and best interest, and his current relationship with Foster Parents and Aunt. 8
See Foster Parents’ Brief at 17-18. Moreover, Foster Parents argue that the
delay violated the due process rights of Foster Parents and Child. Id. at 19-
21. Foster Parents contend that cases involving children are typically handled
on an expedited basis, and that the delay here is “structurally an abuse of
discretion[.]”9 Id. at 21.
____________________________________________
8 While Foster Parents couch their first issue as a claim that the trial court
erred by concluding that obtaining current evidence on Child’s situation would
render the prior proceedings a nullity, their argument essentially restates their
assertion that the trial court should have obtained current information
regarding Child. See Foster Parents’ Brief at 17-18.
9 The Child Advocate argues,
-8-
J-A04012-20
The trial court clarified its reasoning:
The trial court, counsel, and the parties were faced with a unique
procedural history. Counsel for [Aunt] passed suddenly and
unexpectedly after the trial but prior [to] submitting final required
filings which were due from all counsel. Contrary to [Foster
Parents’] suggestion that the trial court abused its discretion by
violating Due Process, the trial court ensured the Due Process
rights of all parties by appointing counsel in the stead of counsel
who passed during his representation. Moreover, all counsel, at
some point requested and/or agreed (without objection) to
multiple continuance request[s]. Finally, as to the last contention
espoused in [Foster Parents] initial averment, to suggest that a
subsequent hearing would make a nullity of the entire
proceedings. Such a claim is without merit, lacks legal foundation
and is merely supposition based on innuendo.
Trial Court Opinion, 9/23/19, at 38.
It is well settled that “[p]rocedural due process requires, at its core,
adequate notice, opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over the case.” Garr v.
Peters, 773 A.2d 183, 191 (Pa. Super. 2001) (internal quotation marks and
citations omitted). “Due process is flexible and calls for such procedural
____________________________________________
In light of the fact that 17 months have passed since the trial
concluded, [Child] is at a greater risk for psychological damage if
he goes to live with Appellee. Therefore, this Court should remand
to the trial court for a further evidentiary hearing regarding the
best interests of [Child] at this point in time. See In re Adoption
of L.J.B., 18 A.3d 1098, 1110-1111 (remanding for an evidentiary
hearing regarding change in circumstance of adoptive parent).
Child Advocate’s Brief at 43.
-9-
J-A04012-20
protections as the situation demands.” In re Adoption of Dale A., II, 683
A.2d 297, 300 (Pa. Super. 1996) (citations omitted).
Further,
[i]n order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal[,] the Superior Court will not consider a claim which
was not called to the trial court’s attention at a time when any
error committed could have been corrected. In this jurisdiction .
. . one must object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to afford the
jurist hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.
Thompson v. Thompson, 963 A.2d 474, 475–476 (Pa. Super. 2008)
(citation omitted).
Here, no party objected to the timeliness of the trial court’s decision or
contended that more current evidence was needed until the court entered its
order. Indeed, the record demonstrates that, by letter dated February 5,
2019, Foster Parents’ former counsel sought a one-week extension for Foster
Parents and Aunt to file their proposed findings of fact and conclusions of law.
See Letter, 2/5/19. The letter suggested that Aunt’s counsel, the Child
Advocate, and counsel for DHS concurred in the request. The letter did not
seek to re-open the record to update the trial court on Child’s status, and
there is no indication that any party objected to the time frames set by the
trial court until after the court entered its decision. The failure to timely object
or request that the record be re-opened results in waiver of these issues.
- 10 -
J-A04012-20
Nevertheless, had these issues not been waived, we would conclude that
they lack merit. Although Foster Parents correctly observe that many cases
involving children are handled on an expedited basis, Foster Parents do not
identify specific time requirements applicable to adoptions. See 23 Pa.C.S.A.
§ 2901 (“the court may enter a decree of adoption at any time.”).
Here, Foster Parents and Child were afforded due process, as the trial
court held numerous hearings to allow all parties to present testimony and
evidence. While there was a delay in obtaining the transcripts and the trial
court issuing an order, that delay, given the number of hearings and the death
of Aunt’s counsel, is not unreasonable. Accordingly, to the extent these issues
were not waived, we would conclude that the trial court did not abuse its
discretion when it did not re-open the record to permit additional evidence.
Next, Foster Parents argue that the trial court erred because it failed to
appoint legal counsel for Child and did not ascertain Child’s preferred outcome.
See Foster Parents’ Brief at 22. Foster Parents argue that, in the context of
involuntary termination of parental rights, children have a right to inform the
court of their preferred outcome. See id. While Foster Parents concede that
the appointment of legal counsel is not required in adoption proceedings, they
argue that, given the magnitude of the decision, counsel should have been
appointed for Child. See id. at 23.
Although the trial court appointed a Child Advocate for Child, Foster
Parents argue that the Child Advocate’s role was not defined, and “[a] child
- 11 -
J-A04012-20
needs the constitutional protection of having a voice in his choice of familial
relationship.” See id. at 24-25. Foster Parents argue that Child possessed a
constitutional right to “have a say with regard to his permanent familial
relationships. . . .”10 See id. at 30-31.
The trial court addressed this issue as follows:
Next, the trial court responds to the [Foster Parents’] second
averment of error. Here, [Foster Parents’] reliance on the cited
cases is misguided, as these cases address contested termination
of parental rights cases. See In re Adoption of L.B.M., 161 A.3d
172 (Pa. 2017) (In that case, our Supreme Court held that failure
to appoint counsel, separate from the guardian ad litem, for
children in a contested termination of parental rights case is
structural error. See id. at 183.) (emphasis added). Moreover,
this issue was not raised during trial. “It is well-established that
where the parties in a case fail to preserve an issue for appeal, an
appellate court may not address that issue sua sponte.” Johnson
v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016) (citation
omitted).
Trial Court Opinion, 9/23/19, at 38.
The appointment of counsel pursuant to the Adoption Act is governed
by Section 2313(a), which states:
(a) Child.--The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the proceeding is
being contested by one or both of the parents. The court may
____________________________________________
10 Foster Parents fault the trial court for appointing legal counsel for Aunt,
while forcing Foster Parents “to fend for themselves with retained counsel.”
See Foster Parents’ Brief at 23. However, Foster Parents did not raise this
issue when the trial court appointed counsel for Aunt and do not develop this
argument in any meaningful fashion in their brief. Accordingly, we conclude
that this issue is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super.
2011) (failure to develop argument and cite to authority to support argument
results in waiver of claim); Thompson v. Thompson, 963 A.2d at 475–76
(Pa. Super. 2008).
- 12 -
J-A04012-20
appoint counsel or a guardian ad litem to represent any child
who has not reached the age of 18 years and is subject to any
other proceeding under this part whenever it is in the best
interests of the child. No attorney or law firm shall represent
both the child and the adopting parent or parents.
23 Pa.C.S.A. § 2313(a) (emphasis supplied).
Our Supreme Court, in In re Adoption of L.B.M., 161 A.3d 172, 183
(Pa. 2017) (three justice plurality joined by two justices concurring), held that
23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the
legal interests of any child involved in contested involuntary termination
proceedings. The Court noted that legal interests are synonymous with the
child’s preferred outcome, but the child’s best interests are determined by the
court. Id. The Pennsylvania Supreme Court has held that: (1) a guardian ad
litem may serve as counsel where there is no conflict between the child’s legal
and best interests, and (2) there is no conflict between the child’s best and
legal interests if the child is non-communicative due to the child’s young age.
See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018).
Pursuant to Section 2313(a), the court “shall appoint counsel to
represent the child in an involuntary termination proceeding when the
proceeding is being contested by one or both of the parents.” See 23
Pa.C.S.A. § 2313(a). In other circumstances, “[t]he court may appoint
counsel or a guardian ad litem to represent any child who has not reached the
age of 18 years and is subject to any other proceeding under this part
whenever it is in the best interests of the child.” See id. As our Supreme
- 13 -
J-A04012-20
Court has explained, “[t]he statutory word ‘may’ as contrasted with ‘shall’
signals a discretionary rather than a mandatory act.” Commonwealth v.
Williams, 828 A.2d 981, 988 (Pa. 2003).
Pursuant to the plain language of the statute, the trial court was
permitted, but not required, to appoint a guardian ad litem or legal counsel
for Child. In fact, Child was represented by a Child Advocate throughout the
proceedings, who represented to the trial court, “I feel as if this is a dual role,
what [Child] wishes as well as what we believe is in his best interest.” See
N.T., 3/28/18, at 25.
Accordingly, while there is no requirement for the trial court to appoint
counsel for Child, the trial court did so, and counsel indicated they represented
both Child’s best and legal interests. Further, the Child Advocate argued in
favor of Foster Parents’ adopting Child. Thus, even if Child possessed a
constitutional right to counsel, the appointment of a single guardian ad litem
(“GAL”)/legal counsel to represent Child was appropriate. See In re T.S.,
192 A.3d at 1092-93. Foster Parents’ third issue does not merit relief.11
____________________________________________
11 We also reject Foster Parents’ argument that the court did not discern
Child’s preferred outcome. The legislature requires the consent to an adoption
of the adoptee, “if over 12 years of age.” See 23 Pa.C.S.A. § 2711. Child
was five at the time of the hearing, and, therefore, there is no requirement
that Child consent to the adoption. Moreover, the Child Advocate, who
asserted that she represented “what [Child] wishes,” argued in favor of Foster
Parents adopting Child.
- 14 -
J-A04012-20
Next, we address Foster Parents’ remaining issues, wherein Foster
Parents contend that the trial court did not properly assess the best interests
of Child. In adoption matters, the paramount concern is the best interests of
the child. In re K.D., 144 A.3d at 151. “This ‘best interests’ determination
is made on a case-by-case basis, and requires the weighing of all factors which
bear upon a child’s physical, intellectual, moral, and spiritual well-being.” In
re A.S.H., 674 A.2d at 700 (Pa. Super. 1996); see also 23 Pa.C.S.A. §
2902(a). Once parental rights have been terminated:
anyone may become an adoptive parent, and the best interest of
the child is the controlling factor by which a court must be guided.
Furthermore, a trial court must base its conclusions in an adoption
case upon all relevant information discerned with the full
participation of all interested parties.
In re Adoption of D.M.H., 682 A.2d 315, 319 (Pa. Super. 1996).12
“[W]hen possible, the preservation of the family is the desired outcome
in custody matters. However, [t]he goal of preserving the family unit cannot
be elevated above all other factors when considering the best interests of the
children, but must be weighed in conjunction with other factors.” In re K.D.,
144 A.3d at 153 (internal quotation marks omitted). Additionally, the trial
____________________________________________
12Typically, a foster parent must obtain the consent of the child service agency
that maintains custody; however, the agency’s decision to withhold consent is
not dispositive. In re Adoption of J.E.F., 902 A.2d 402, 418 (Pa. 2006)
(“hold[ing] that the custodial agency’s refusal to consent to [foster parents’]
petition to adopt does not, by itself, operate to deprive [them] of standing to
participate”).
- 15 -
J-A04012-20
court has the duty to consider the statements and opinions of the GAL when
making its determination of which family would better serve the bests
interests of the child.13 See Adoption of D.M.H., 682 A.2d at 322. Further,
“[t]he existence of an emotional bond between the child and one of the
prospective custodial parents is an important factor.” In re A.S.H., 674 A.2d
at 700.
Significantly, when parental rights have been terminated “the familial
relationship, the blood connection, no longer has the significance that it would
have otherwise.” Adoption of D.M.H., 682 A.2d at 319. When considering
the impact of familial relationships, “a live-in relationship with a direct sibling
is far more powerful than occasional or even regular visits with cousins or
other similarly distant family members.” Id. At 320.
Nevertheless, a petitioner’s genetic relationship with the child is a
relevant consideration that the trial court must address in deciding to grant or
deny a petition for adoption. See id. at 319 (“the trial court properly
____________________________________________
13 The trial court did not directly acknowledge the Child Advocate’s position
that Child should be adopted by Foster Parents in its opinion. However, at the
conclusion of the hearings, the Child Advocate made a closing statement
informing the trial court that the Child Advocate supported Child’s adoption by
Foster Parents. See N.T., 6/25/18, at 53-61. Further, the trial court stated,
“I take this matter very seriously. I promise all parties that I will review
everything. My personal notes, the notes of testimony, everything that the
attorneys provided to this [c]ourt.” See id. at 62. Thereafter, all parties,
including the Child Advocate, submitted extensive findings of fact and
conclusions of law. We have no reason to question that the trial court did
what it promised to do, and considered the Child Advocate’s position.
- 16 -
J-A04012-20
evaluated the familial relationship between grandmother and child by making
the relationship a relevant, but not a controlling, consideration.”).
In Foster Parents’ fourth and fifth issues, they argue that the trial court
improperly considered and weighed the evidence, and, as a result, entered an
order that is not in Child’s best interest. Foster Parents fault the trial court’s
analysis of the testimony of Ann Wohlschlaeger, Dr. Loving, Kala Fell, Kimberly
Ali, Telita Thomas, Foster Parents, and Aunt. See Foster Parent’s Brief at 31-
60.
In essence, Foster Parents argue that the trial court took testimony that
was negative for Foster Parents out of context and afforded it too much
weight, and, similarly, gave testimony that was positive for Aunt too much
weight. See id. Further, Foster Parents argue that the trial court ignored
testimony that was favorable to them. See id. Additionally, Foster Parents
assert that the trial court treated their testimony less favorably than Aunt’s.
See id. at 54.14
In their fifth issue, Foster Parents argue that the trial court failed to
consider all relevant evidence to assess the best interests of Child. See id. at
60-61. Foster Parents contend that the trial court did not consider the bond
between themselves and Child, and observe that virtually no testimony was
____________________________________________
14 The Child Advocate argues that the trial court failed to appropriately
consider the “required best interest of the child analysis, instead focusing
exclusively on Appellee’s biological ties with the child as well as the perceived
missteps by municipal agencies. . . .” Child Advocate’s Brief at 3.
- 17 -
J-A04012-20
elicited regarding the bond between Child and Aunt. See id. at 62. Further,
Foster Parents assert that the trial court failed to consider the Child Advocate’s
recommendation in favor of Child’s adoption by Foster Parents. See id. at 63.
Foster Parents also argue that the trial court ignored: Child’s medical issues;
Aunt’s historical lack of involvement and failure to address Child’s neglect;
Foster Parents’ relationship with Child during his time at Childway; the close
bond between Child and his foster family; Foster Parents’ financial stability
and Aunt’s financial instability; and Aunt’s limited ability to understand and
address Child’s medical issues. See id. at 61-69. Foster Parents note that
the trial court incorrectly concluded that Aunt was medically certified as a
foster parent when Child was released from Childway; unfairly questioned
Foster Mother’s truthfulness; concluded there were concerns about Child’s
safety in Foster Parents’ home; and ignored Aunt’s initial lack of involvement.
See id. at 69-74.
Last, in their sixth and seventh issues, Foster Parents fault the trial court
for failing to acknowledge they are a kinship placement due to the relationship
that developed between Child and Foster Parents while Child was at
Childway.15 See id. at 74-75. Foster Parents contend that the trial court
____________________________________________
15 Pursuant to statute, “[i]f a child has been removed from the child’s home
under a voluntary placement agreement or is in the legal custody of the county
agency, the county agency shall give first consideration to placement with
relatives or kin.” See 67 Pa.C.S.A. § 3105. Kin includes “[a]n individual with
- 18 -
J-A04012-20
should have placed Foster Parents and Aunt on an equal footing as each are
kinship placements. See id. at 75. Foster Parents conclude that the trial
court improperly placed Aunt’s familial connection above the evidence that
Child has a close and bonded relationship with the foster family.16 See id. at
78-79.
In its opinion, the trial court issued extensive findings of fact. The trial
court noted that DHS supported Aunt’s adoption petition, but observed, “the
child’s best interest is the only relevant factor in determining whether to grant
or deny an adoption petition.” Trial Court Opinion, 9/23/19, at 21-22. The
trial court recounted the extensive history of Child’s medical care and Aunt’s
efforts to be approved as a foster parent for Child. See id. at 23-27. The
court recognized that Child was released from Childway to Foster Parents, and
expressed concern Aunt was not included in the decision to discharge Child.
____________________________________________
a significant, positive relationship with the child or family.” See 67 Pa.C.S.A.
§ 3102.
16 The Child Advocate echoes Foster Parents’ arguments regarding Child’s best
interests, asserting that the trial court ignored Child’s close relationship with
his foster family and improperly focused on Aunt’s complaints regarding the
handling of Child’s case; Foster Mother’s anxiety; and concerns about Child’s
behavior. Child Advocate’s Brief at 30-31, 33-35. Further, the Child Advocate
faults the trial court for discussing the failure of the Child Advocate to request
Child’s placement with his paternal grandmother. See id. at 36. Additionally,
the Child Advocate argues that the trial court took testimony out of context to
support its finding of a safety concern in Foster Parents’ home. See id. at 37-
38. The Child Advocate contends the trial court did not consider Child’s bond
with Foster Parents and granted Aunt’s petition for adoption solely based on
biological ties and not on an evaluation of Child’s best interests. See id. at
39-41.
- 19 -
J-A04012-20
See id. at 26-27. Further, the court credited testimony that Aunt did not have
visitation with Child from June 16, 2016 through September 29, 2016, before
the juvenile court ordered two hour supervised visits in late September 2016.
See id. at 28.
The court also credited testimony that Thomas, a NET CUA adoption
case manager, visited Child in Foster Parents’ home in October 2016 and
observed that Child appeared to be “a happy, energetic little boy that was
running around and playing.” See id. However, Thomas observed rough
playing between Child and O.G., Foster Parents’ daughter. See id. The court
noted that, at a subsequent visit in November 2016, Thomas was concerned
that Child and O.G. ignored Foster Mother when she told them to stop running
and to sit down. See id. at 28-29. Thomas observed another incident in late
2016 or early 2017 where O.G. tried to kick Child down the stairs, although
Foster Mother prevented her from doing so. See id. at 29.
The court noted that, shortly after the parental rights to Child were
terminated, Foster Mother began to complain about Child’s behavior. See id.
However, the trial court observed that Thomas did not notice tantrums or
difficult behavior during her visits. See id. In November 2017, Child told
Foster Mother that he wanted to live with Aunt. See id. at 30. In December
2017, Foster Mother reported to Thomas that Child was having a tantrum.
See id. When Thomas arrived minutes later, Child was lying on a bench
reading and did not appear to be having a tantrum. See id. However, Foster
- 20 -
J-A04012-20
Mother was “very frantic, very upset, visually shaken, in tears and complaining
about [Child’s] tantrums getting out of control.” Id.
Foster Mother also reported that she was having a hard time dealing
with Child’s outbursts. See id. The court observed that, based on the visit,
Thomas concluded that Foster Mother was emotionally unstable and
recommended that Foster Mother contact her foster care agency, Bethany, for
support. See id. Thomas learned that Bethany had similar concerns and had
discussed putting a safety plan in place at the home. See id.
The court also noted that Bethany put two safety plans in place in
December 2017 and January 2018, with the January 2018 safety plan
containing more detail. See id. The safety plans were designed to provide
Foster Parents additional assistance and to ensure Child’s safety. See id. The
safety plans remained in place at the time of the hearings. See id. at 31.
Further, the court noted that Foster Mother acknowledged a history of anxiety
predating Child being placed in her home, and faulted Foster Mother for not
disclosing the issue to Child’s therapist. See id.
The court also considered the testimony of Dr. Loving, who concluded
that Child is emotionally and medically resilient. See id. at 32. The court
credited testimony that Child has a “fairly good” prognosis for moving from
one home to another because he has a level of familiarity and comfort with
Aunt. See id. The court also credited Dr. Loving’s opinion that there are
benefits for children to be with their biological family, including a sense of
- 21 -
J-A04012-20
identity, and an easier and more comfortable understanding of who they are,
where they come from, and where they belong. See id.
The court noted Thomas’s testimony that Aunt facilitates visits between
Child and his siblings. See id. at 33. Child talks about his siblings to Thomas
constantly and expresses that he misses them and wants to know when he
will see them. See id. Prior to Aunt arranging the visits, they occurred
infrequently. See id.
The court observed that Thomas recommended that Child be placed with
Aunt “because she believes that children who are placed with their biological
family have a stronger connection to their family throughout their lifetime that
makes it easier for the child’s adjustment.” Id. at 21. The court discounted
Aunt’s past financial challenges, concluding that Aunt was currently financially
stable. See id. at 33.
The court also recounted testimony from Fell, Child’s trauma therapist,
that Child shares a healthy attachment with Aunt that is similar to his
attachment with Foster Mother.17 See id. at 35. The court concluded,
“[b]ased upon the foregoing facts and applicable statutory and case law, this
court finds that it would be in [Child’s] best interest to be adopted by [Aunt].”
Id.
____________________________________________
17 The trial court’s opinion suggests that this testimony is found at N.T.,
5/1/18, at 147: 11-19. Pursuant to our review, we note the testimony actually
occurred at page 171.
- 22 -
J-A04012-20
Upon a careful review of the record, we conclude that, while the record
supports Foster Parents’ contention that there is a bond between Foster
Parents and Child, the trial court did not abuse its discretion by granting Aunt’s
petition for adoption. Foster Parents testified that they love Child and have a
close bond to him. See N.T., 5/8/18, at 8; N.T., 6/25/18, at 5, 12. Further,
they provided testimony about the close and loving relationship between Child
and O.G., their natural daughter. See N.T., 5/8/18, at 41-42; N.T., 6/25/18,
at 29-30.
Foster Parents took Child on vacations with them and never put him in
respite care. See N.T., 6/25/18, at 33. Further, Foster Mother missed her
grandfather’s funeral to ensure Child could have surgery the same day,
refusing to reschedule the surgery because “it wasn’t in [Child’s] best
interest.” N.T., 5/8/18, at 61-63. Additionally, because of Child’s medical
needs, Foster Mother decreased her work schedule to part-time and made
changes to the home to account for Child’s asthma.18 See id. at 89-90.
____________________________________________
18Ann Wohlschlaeger, Child’s nurse at CHOP, testified that Child’s medical
appointments are now more sporadic. See N.T., 3/29/18, at 159. Further,
she testified that she had no concerns about Foster Mother’s medical care of
Child and noted that she has a loving relationship with Child. See id. at 168-
69. Wohlschlaeger noted that Aunt asks relevant questions at appointments
and had no concerns about Aunt’s ability to understand Child’s medical needs.
See id. at 169-70. However, Aunt would still need to receive a one-hour
medical training. See id. at 170.
- 23 -
J-A04012-20
Foster Mother testified that she spent time with Child at Childway as his
nurse technician and brought her family to see Child. See id. at 19-20, 39.
During Child’s time at Childway, the foster family took Child on approximately
25 outings. See id. at 47.
In April of 2015, Foster Mother learned that Child needed a resource he
could be placed with. See id. at 45-46. Foster Mother contacted the Child
Advocate and Tasha Admiral. See id. at 47. Subsequently, Foster Parents
completed training. See id. at 46-47. When Child was initially placed with
Foster Parents, he had difficulty adapting and would cry, scratch, tantrum,
and wake up with night terrors. See id. at 36. Foster Mother also explained
that Child would throw himself on the ground and hit himself and walls. See
id. at 38.
In December 2017, Child’s behavior escalated to the point he attempted
to push O.G. down the stairs and threatened to kill Foster Mother. See id. at
73. Child also expressed a desire to live with Aunt. See id. at 77. Child’s
behavior regressed to the point that Foster Mother wrote to the Child
Advocate, “I need help or I’m not sure that I can keep doing this.” Id.
However, Foster Mother testified that Child’s behaviors calmed down after
Child began trauma therapy in January 2018. See id. at 86.
With respect to Child’s relationship with Aunt, Foster Mother testified
that Child does not talk about Aunt without prompting and occasionally asks
- 24 -
J-A04012-20
not to visit Aunt. See id. at 9, 12. However, Foster Mother acknowledged
that Child looks forward to seeing his siblings. See id. at 11.
Foster Mother testified that Child’s behaviors escalate after visits with
Aunt. See id. at 65-66. Despite Child’s negative reaction to visits, Foster
Mother agreed that it is important for Child to see his biological family and
conceded that Child would have a negative response if he no longer saw Aunt.
See id. at 113-14. Foster Mother testified that she would allow ongoing
contact with Aunt and Child’s family if she were allowed to adopt Child. See
id. at 64.
Aunt testified regarding her background and relationship with Child.
Aunt is a certified nurse assistant and works on the weekends but would alter
her schedule if she were permitted to adopt Child.19 See N.T., 3/28/18, at
29-31. When Child was admitted to St. Christopher’s and CHOP, Aunt
acknowledged she did not visit him, claiming that there were restrictions on
who could visit. See id. at 35-36, 65-67.
After Child was released to Childway, Aunt visited once a week for two
hours, although her visits became more sporadic when her father was ill. See
____________________________________________
19 Counsel for Foster Parents cross-examined Aunt extensively on
inconsistencies regarding Aunt’s financial statements, the source of a home
equity loan taken out to effectuate the repairs to her property, overdue taxes,
and code violations. See N.T., 3/28/18, at 116-24, 137-40, 149-50.
- 25 -
J-A04012-20
id. at 36-37, 69-70, 73-75. Thereafter, Aunt visited one or more times a
week beginning in August 2015. See id. at 74-75.
Aunt made various repairs to her home in the hope that Child would be
discharged to her care and underwent training through NET CUA and
Childway. See id. at 38-40. In June 2016, Aunt learned that Child was being
released to Foster Parents because she did not complete all of her medical
training to care for Child. See id. at 42-46.
After Child was released to Foster Parents’ care, Aunt continued to have
visits with Child, with the visits eventually expanding to eight unsupervised
hours in November 2017. See id. at 46-49, 77-78. Aunt began to have visits
every other Saturday when Child sees his six siblings.20 See id. at 49, 51,
55-56. Aunt testified that Child’s visits with his siblings go well and that they
love each other. See id. at 91-92.
Aunt testified that Child has a good relationship with her youngest child.
See id. at 62-63. They play games together and are “like two peas in a pod.”
Id. at 63. Aunt acknowledged that Child refers to her as Aunt S. and to her
mother as “grandmom.” Id. at 76. Aunt also conceded that Child is very
close with the foster family and has a strong attachment to them. See N.T.,
3/29/18, at 49, 52.
____________________________________________
20 Several of Child’s siblings are in foster care. See N.T., 3/28/18, at 89-90.
- 26 -
J-A04012-20
Aunt testified Child has a parent-child relationship with Foster Parents
and a sibling relationship with O.G. See id. at 53-54. However, Aunt
explained that she wants to adopt Child because she loves him and she wants
him home with his family. See N.T., 3/28/18, at 64-65.
Tasha Admiral, the NET CUA case manager from April 2014 through
September 2016 provided a historical view of Child’s case. See N.T., 5/8/18,
Vol. II, at 3. Admiral testified to concerns about Aunt because Aunt did not
visit Child while he was at St. Christopher’s and CHOP. See id. At 10-11.
Initially, Admiral identified Grandmother as a placement resource, but
she was precluded from caring for Child because her husband had a conviction
involving an assault on a child. See id. at 13-15. Thereafter, Admiral
identified Aunt as a possible resource. See id. at 15. Aunt was open to
participating in a home assessment and caring for Child. See id. at 16.
However, when Admiral performed the home assessment, she determined
Aunt’s home was not appropriate as Aunt was doing repairs to the carpet and
the kitchen and there was no bed for Child. See id. at 21.
Admiral testified that, although Child could have been released from
CHOP to a home, she could not locate an appropriate home. See id. at 23-
24. Accordingly, Child was placed at Childway. See id. at 23-24. After Child
was moved to Childway, Admiral continued to have concerns that Aunt was
not proactive about obtaining a foster care certification and did not
consistently attend visits or medical appointments. See id. at 32-34, 36-39.
- 27 -
J-A04012-20
Admiral explained she had to “practically beg for them to step it up[,] you
know[,] because he needed to be in a preadoptive home, he need[ed] to be
adopted and he needed to be loved and cared for.” Id. at 39.
When Admiral asked Aunt whether she would adopt Child, Aunt did not
want to commit and suggested she would take Child until his mother got back
on her feet. See id. at 110-12. After the juvenile court allowed Admiral to
investigate placing Child with Foster Parents in October 2015 Aunt’s
participation changed and she began visiting weekly. See id. at 40-42.
While Child was at Childway, Foster Parents took him on numerous
outings and developed a good relationship with Child. See id. at 43-46.
Admiral noted that Child began referring to Foster Mother as “mom”, although
Foster Mother attempted to redirect him. Id. at 45-46. In contrast to the
attention to Child that Foster Parents demonstrated, Admiral testified that
Aunt visited sporadically, only took Child on one outing to get pizza, and was
not knowledgeable regarding Child’s health and needs. See id. at 46-50.
When Child was discharged from Childway, Admiral determined Child
should be placed with Foster Parents because of their commitment to Child
and their bond with Child. See id. at 50, 56-57. Admiral concluded that Aunt
was not an appropriate placement because of her level of commitment, family
support, and bond with Child. See id. at 50-53.
Admiral testified that individuals at DHS and NET CUA then tried to
convince her to change her position. See id. at 65-66. Admiral believed they
- 28 -
J-A04012-20
supported Aunt because she was part of Child’s family. See id. at 69. Admiral
was instructed to reassess Aunt’s home in September 2016, and found the
house to be structurally appropriate; however, Admiral did not believe Aunt
could handle Child’s medical conditions. See id. at 79-81. Further, Admiral
testified that when she monitored supervised visits with Aunt, Child appeared
to be uncomfortable. See id. at 87-88. When Admiral left her job in
September 2016, Child and the foster family had a genuine and loving
relationship. See id. at 90-91.
Admiral’s replacement, Telita Thomas, an adoption case manager for
NET CUA, became Child’s case manager in October 2016. See N.T., 4/18/18,
at 6-7. Thomas acknowledged that Child’s case was considered a high-profile
case at NET CUA because of the involvement of “higher ups” at DHS, and the
NET CUA administration and executives became involved. See id. at 53-54.
Thomas testified that Aunt was upset about Child being discharged to
Foster Parents and attempted to put pressure on DHS through her state
representative and the Philadelphia mayor’s office.21 See N.T., 4/19/18, at
____________________________________________
21Kimberly Ali, the Deputy Commissioner of Child Welfare Operations for DHS,
testified that she became involved after Aunt made complaints about Child
being discharged to Foster Parents rather than Aunt. Ali recommended that
Aunt be permitted to adopt Child because she is a committed family member
and demonstrated an ability to care for Child. See N.T., 4/19/18, at 76. Ali
testified that Child is resilient and “[i]t’s comforting for children to know who
they are, where they come from, where their family comes from. That’s
comforting for them. That they have siblings, that they have a relationship
- 29 -
J-A04012-20
9-11. When Thomas first received the case, her superiors wanted Child moved
to Aunt’s home; however, Thomas claimed that she reviewed all of the
available information before deciding it was best to move Child to Aunt’s
home.22 See N.T., 4/18/18, at 56-58; N.T., 4/19/18, at 11-13.
Thomas testified that she went to Foster Parents’ home in October 2016,
and Child appeared happy, energetic, and was running around. See N.T.,
4/18/18, at 13-15. She observed that Foster Parents share a close bond with
Child, show love to Child, and created an appropriate structure in the home.
See id. at 87.
She believed that Foster Parents and Child both love each other and
have a parent-child relationship. See id. at 84-88. Thomas also observed a
sibling bond between Child and O.G. See id. Thomas testified that Child
responds well to Foster Father and dresses like him. See N.T., 4/19/18, at
33-34. Thomas further testified that Child calls Foster Parents “mom and dad”
and refers to Aunt as “Aunt S.” N.T., 4/18/18, at 84-85.
Thomas opined that Child would be negatively affected if removed from
Foster Parents’ home. See id. at 88-89. Further, Thomas acknowledged that
____________________________________________
with their siblings. It’s comforting for them to know their grandparents, their
great grandparents, their aunts and uncles.” See id. at 76-77.
22DHS filed a motion to move Child to Aunt’s home in September 2016 but
the juvenile court did not permit DHS to move Child. See N.T., 4/19/18, at
70-71.
- 30 -
J-A04012-20
Child has difficulty transitioning and engaged in self-harming behavior when
transitioned from CHOP to Childway. See N.T., 4/19/18, at 25-27.
However, Thomas expressed concerns about the interactions between
Child and O.G. at her first visit, as they played very roughly, with O.G. putting
Child in a headlock that Child struggled to get out of. See N.T., 4/18/18, at
15. At a visit in November 2016, Child and O.G. were running around and did
not respond to Foster Mother. See id. at 17. Thomas noted that the home
had less structure than she was used to seeing. See id. On another occasion,
O.G. moved her foot as if she was going to kick Child down the steps. See
id. at 18.
Thomas also testified that Foster Mother complained about Child’s
behavior at home, but Thomas never observed any issues. See id. at 19-20.
In late November or early December 2017, Foster Mother sent an email
regarding Child’s “multiple tantrums, very aggressive behavior, kicking walls,
yelling and screaming he hated her, he was going to harm [O.G.]. He was
threatening to kick her down the steps.” Id. at 23-24.
On Thomas’ way to a visit in December 2017, Foster Mother texted
Thomas to indicate that Child was having a tantrum. See id. at 25. When
Thomas arrived several minutes later, Child was lying on a bench reading.
See id. Foster Mother “was very frantic, very upset, visually shaken. She
was in tears and stated that, you know, [Child’s] tantrums were getting out
of control. She’s having a hard time dealing with them. The things that he
- 31 -
J-A04012-20
says are very harsh. He says, I hate you, you’re not my mom, you don’t love
me.” Id. at 26.
Thomas suggested that Foster Mother reach out to her foster care
agency, Bethany, for additional training to better deal with Child’s tantrums.
See id. Thomas learned that Bethany had similar concerns and had already
discussed putting a safety plan into action in the home.23 See id. at 29. The
safety plan was to ensure that Foster Mother received additional assistance.
See id. at 29-30. However, Thomas testified that Foster Parents are good
caretakers of Child and stated, “[a]bsolutely he’s safe in the home.” Id. at
86.
Turning to Aunt’s relationship with Child, Thomas testified that she only
missed one or two visits between October 2016 and April 2018. See id. at
31. Thomas observed no issues with Aunt’s behavior at visits. See id.
Further, although Thomas expressed some concern about unpaid taxes, she
____________________________________________
23 Kristin Neitz, the Bethany social care worker, testified that Foster Mother
reached out to Neitz with concerns about Child threatening to push O.G. down
the stairs. See N.T., 5/1/18, 37. Neitz implemented a safety plan in
December 2017 because she believed that something was happening in the
home that compromised Child’s safety and considered it necessary to keep
Child on a safety plan. See id. at 37-38, 40, 89. Out of the thirty families
Neitz worked with, Foster Parents were the only ones with a safety plan. See
id. at 87-89. Nevertheless, Neitz did not believe Child should be removed
from Foster Parents’ care and thought such a move would negatively impact
him. See id. at 48-50.
- 32 -
J-A04012-20
was generally not concerned about Aunt’s finances. See id. at 45-46, 64, 67-
69.
When Thomas visited Aunt’s home in October 2016, it appeared orderly
and neat. See id. at 34. Thomas had no concerns about Aunt’s qualifications
to care for Child. See id. at 345.
Thomas testified regarding a visit in November 2016, recalling that Child
went into Aunt’s house and seemed to know his routine. See id. at 38. Child
took his jacket off and put it away before taking Thomas on a tour of the
home. See id. Thomas observed “a really good relationship” between Child
and Aunt and noted that Child talks about Aunt’s children frequently. Id. at
38-40. Thomas also observed that Child talked about his siblings constantly
and asked when he would see them. See id. at 41. Thomas believed that it
would be traumatic for Child if he did not see Aunt, Grandmother, or his
siblings again. See N.T., 4/19/18, at 43-44.
Based on her observations, Thomas believed that both homes were
equally appropriate, but recommended that Child be adopted by Aunt because
“children who are placed with their biological family have a stronger
connection to their family throughout their life[t]ime.” N.T., 4/18/18, at 42-
43; N.T., 4/19/18, at 51. Thomas believed there would be a benefit to a
lifetime connection to his siblings because they had similar experiences and
they have a close bond. See N.T., 4/18/18, at 44-45. Further, she believed
the siblings would stay in contact if Aunt is permitted to adopt Child. See id.
- 33 -
J-A04012-20
at 45. However, Thomas did not believe either Foster Parents or Aunt would
initiate contact with each other regardless of who was allowed to adopt Child.
See N.T., 4/19/18, at 38.
Kala Fell, Child’s trauma counselor, testified regarding Child’s mental
health treatment after he was referred to her in December 2017. See N.T.,
5/1/18, at 116-18. Fell noted that Child experienced multiple traumatic
events, including his time in medical isolation without access to his primary
caregiver. See id. at 122.
When treatment began, Foster Mother reported that Child was having
nightmares and difficulty sleeping at night, and was harming himself. See id.
Fell diagnosed Child with Post-Traumatic Stress Disorder. See id. at 125. As
therapy progressed, Child seemed more confident and his behavioral
symptoms subsided. See id. at 130-31.
Fell testified that Child did not have an awareness that he was in foster
care, describing Foster Parents as his parents. See id. at 128-29. Later,
Child suggested that Aunt was his foster family. See id. at 129. Fell testified
that Child refers to Foster Parents as “mommy” and “daddy” and believed he
“experiences them as his parents.” Id. at 132. Further, Child relates to O.G.
as his sister and they have “a really adorable relationship.” Id. at 137. Fell
had no concerns about Foster Mother caring for Child long term. See id. at
134.
- 34 -
J-A04012-20
Over the course of therapy, Child began speaking more about “his
positive visits at [Aunt’s] home and spending time with his siblings when
visiting with her. And so he also shares that he has a positive relationship
with her.” Id. at 133. Fell also participated in caregiver sessions with Aunt,
testifying that Aunt loves Child and “that she’s just a really loving lady.” Id.
at 138.
However, Fell did not believe Aunt fully understood Child’s trauma
symptoms because she had not experienced the behavior during her time with
Child. See id. at 140. Nevertheless, she believed that Aunt had the capacity
and willingness to learn how to meet Child’s needs. See id. Overall, she
believed that Child had a healthy attachment to Foster Parents and Aunt. See
id. at 167-68, 171.
Fell opined that, if the court terminated the relationship with Foster
Mother, Child “would be very confused by that and I think that he would be
terribly stressed.” See id. at 141. Fell based this opinion on Child viewing
Foster Parents as his parents and believed Child would “grieve that loss.” See
id. at 142-44. Fell expected that Child would exhibit physical aggression,
angry outbursts, threats of self-harm, potential harm to others, nightmares,
and sleep disturbances. See id. at 142.
However, Fell testified that Child would suffer a similar impact if his
relationship with Aunt were severed, but not “to the same extent,” because
Child is cared for day-to-day by Foster Parents. See id. at 144-45. Fell
- 35 -
J-A04012-20
testified that Child is resilient, but credited that to Child’s “safe recovery
environment.” See id. at 148. Although Fell expected Child to regress in the
immediate future if removed from Foster Parents’ home, she believed the
transition to Aunt’s home would be aided by the fact that they had a
preexisting relationship. See id. at 149-50, 159-60.
Dr. Loving testified regarding his psychological evaluation of Child. See
N.T., 3/29/18, at 78-79. He noted that he was not retained to make a
permanency recommendation, but considered the options and set forth his
prognosis for Child. See id. Dr. Loving opined that Child had “a fairly good
long-term prognosis for long-term emotional health regardless of custodial
outcome.” Id. at 82-83. Dr. Loving noted that Child is resilient and doing
well despite his trauma history. See id. Further, Child “progressed and
thrived while he’s been in [Foster Parents’] home for a long period of time.”
Id. at 84. Accordingly, Dr. Loving believed that Foster Parents contributed to
his resilience. See id. at 101-02.
Dr. Loving opined that Child “has a fairly good prognosis in the long
term for moving from one home to another in part because there is a basic
level of familiarity and comfort.” See id. at 86. However, he would expect
Child to have a significant setback in the near term. See id. at 127.
Assuming a basic level of health and stability, Dr. Loving testified that
there are benefits for children to be with biological family, including a sense
of identity, understanding who they are, where they come from, and where
- 36 -
J-A04012-20
they belong. See id. at 93. Dr. Loving observed, “[t]his becomes important
as they get a bit older, like adolescence, where any child, no matter what the
issues are, start to question those sorts of things.” Id. at 93-94. He further
explained, “all things being equal, it is a healthier experience typically for a
kid to be in a biological family where those issues are less complicated.” Id.
at 94. However, he also testified, “all other things being equal, it would
certainly be better if [Child] were to stay where he is and not have to
experience that disruption, that change of home situation.” Id. at 108.
Foster Parents argue that the trial court focused solely on Aunt’s familial
relationship with Child. This Court has reversed an order granting an adoption
petition when the order was only based on the petitioner’s status as the child’s
grandmother. See In re K.D., 144 A.3d 145 (Pa. Super. 2016) (reversing
trial court order granting grandmother’s petition for adoption based solely on
blood relationship despite testimony that the child had a close relationship
with the foster parents, grandmother behaved inappropriately at supervised
visits, the child reacted negatively to visits with grandmother, and
grandmother could not care for the child’s medical needs). Here, the situation
is markedly different, and the trial court appropriately considered Aunt’s
relationship with Child, her devotion to Child, Child’s relationship to his siblings
and extended family, and Aunt’s suitability to care for Child.
Foster Parents focus on the selfless care they provided Child for years
and the bond that exists between Child and his foster family, and their position
- 37 -
J-A04012-20
as “kin.” However, multiple witnesses testified to the beneficial relationship
between Child and Aunt and that children who are placed with relatives do
better in the long term. Further, although Child will experience loss if he does
not see Foster Parents, witnesses also testified that Child would experience
loss if he does not see Aunt. While the trial court did not focus extensively on
Child’s relationship with the foster family, it did acknowledge that he appeared
happy in their home, and shares a similar attachment to Foster Mother and
Aunt, demonstrating that it considered Child’s attachment to the foster family.
See Trial Court Opinion, 9/23/19, at 28, 35.
Although some of the trial court’s language is less than precise, it is
apparent that the court focused on determining the best interest of Child in a
case that represented a close call. Based upon our review of the record, and
in light of our deferential standard of review, we discern no abuse of discretion
in the trial court’s conclusion that allowing Aunt to adopt Child is in his best
interest and affirm the trial court order. See In re R.J.T., 9 A.3d 1179 at
1190 (Pa. 2010) (instructing that this Court should defer to the trial court
where a “close call” was made). Additionally, we lift the stay entered on July
18, 2019.
Order affirmed. Stay lifted. Jurisdiction relinquished.
Judge Colins joins the memorandum.
Judge Strassburger files a concurring memorandum in which Judge
Colins joins.
- 38 -
J-A04012-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/20
- 39 -