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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.M.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.G.
No. 2524 EDA 2016
Appeal from the Order Entered July 7, 2016
in the Court of Common Pleas of Philadelphia County Family Court
at No(s): CP-51-AP-0000216-2014
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 23, 2017
A.G. (“Aunt”) appeals from the order entered in the Court of Common
Pleas of Philadelphia County, which granted the petition to adopt E.M.G.
(“Child”), that Child’s former foster parents, M.M. and Y.M. (“Foster
Parents”) filed pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101-2910.
When granting Foster Parents’ adoption petition, the trial court also denied
Aunt’s petition to adopt the Child. We affirm.
The trial court made the following findings of fact:
1. On July 16, 2013, [Child] was removed from the home
of her biological parents, following the fatality of her older
half-sister, and allegations of child abuse against [Child’s]
biological father.
*
Former Justice specially assigned to the Superior Court.
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2. An aggravated circumstances hearing was held on July
29, 2013, and on October 29, 2013[,] there was a finding
of aggravated circumstances.
3. On July 30, 2013, after a hearing on the merits, [Child]
was adjudicated dependent by the court.
4. On September 9, 2014, the parental rights of [Child’s]
biological parents were terminated.
5. Upon removal from the biological parents’ home, [Child]
was placed in a treatment foster home through Lutheran
Children and Family Services.
6. On July 7, 2015, Aunt[1] filed a petition to adopt [Child],
and on August 25, 2015, Foster Parents filed a cross-
petition to adopt.
7. Foster Parents’ Petition to Adopt is supported by the
Child Advocate.
8. [The Department of Human Services (“DHS”)] approved
the family profile for Foster Parents on May 14, 2015.
9. Ms. Tracey Thomasey, Social Worker from the Support
Center for Child Advocates, testified that [Child] is very
bonded to the Foster Parents. Ms. Thomasey testified that
[Child] has a very strong parent-child relationship with
[Foster Parents]. Ms. Thomasey further testified that
disruption of this relationship would be traumatic to
[Child].
10. [Foster Parents] have provided a stable home for []
Child supported by extended family and a network of
friends.
11. [Child] has developed a sibling relationship with
[Foster Parents’] young son.
12. The trial court accords significant weight to the
testimony offered by Ms. [Elizabeth] Hogan, Ms. [Sandra
1
Aunt is Child’s paternal aunt.
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Lee] Starkes and Ms. [Tracy] Thomasey. All of which the
court found to be credible, reliable, and reflective of
superior professional competency.[2]
Trial Ct. Op., 9/19/16, at 4-5 (citations omitted).
Aunt testified at trial, stating that she had been in Child’s life since her
birth and continuously and actively pursued adoption of her niece. N.T.
1/13/16, at 36-40. Aunt did admit to a nine-month period, right after Child
was placed in foster care, during which she had no contact with Child. Id. at
76. Aunt highlighted that after she was granted supervised visitation with
Child, she traveled bi-monthly, at her own expense, from her home in
Atlanta, Georgia, to visit with Child. Id. at 70. In addition, Aunt described
her close relationship with several other of Child’s blood relatives. Id. at 18.
Aunt also provided pictures of a bedroom she had prepared in her home for
Child. Id. at 20.
Aunt discussed her diverse home community in Atlanta, Georgia and
her intention to provide Child with many intellectually enriching experiences.
Id. at 32-34. Aunt reported that she is employed as a database
administrator and applications specialist and has an option to work from
2
Ms. Starkes, a Lutheran Children and Family Services Social Worker,
testified that as the on-going case-manager for Child, she had observed
Child with Foster Parents bi-monthly for approximately two years. N.T.
1/13/16, at 150-51. She testified that Child had a positive “huge
turnaround” with Foster Parents and had “blossomed [into] this beautiful
little girl.” Id. at 156. Although she also observed Aunt’s visits with Child
and had “no concerns” about Aunt, Ms. Starkes specifically noted the close
bond between Child and Foster Parents. Id. at 153-55.
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home. Id. at 26-27. During her testimony, Aunt also expressed her
trepidation that if allowed to adopt Child, Foster Parents would not include
her in Child’s life, while she intended to include Foster Parents if she were
permitted to adopt. Id. at 47-50. Aunt also opined that removing Child
from the parents she has known for the majority of her life would not be
damaging for Child at three-years-old. Id. at 46.
While DHS acknowledged that Aunt was persistent in her bid to adopt
Child, the agency declined to oppose the adoption petition of either Aunt or
Foster Parents. Id. at 175. DHS presented the testimony of Heather Coles
who reported that Aunt was considered an adoptive resource “based on her
commitment; her coming to visits twice a month” and “based on family
connections.” Id. at 174. However, Ms. Coles admitted that she did not
meet Child, or observe Child interact with Aunt or Foster Parents. Id. at
175. At trial, it was noted that the interstate compact unit at DHS had
approved Aunt’s home study necessary for adoption. Id. at 189-90.
Ultimately, on July 7, 2016, the trial court issued an order granting
Foster Parents’ adoption petition and denying Aunt’s petition. Aunt filed a
timely notice of appeal and simultaneously filed a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(1).
The trial court filed a responsive opinion.
Aunt raises the following issues for review:
I. Whether the trial court erred in failing to conduct a
thorough examination of the child’s best interests when it
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considered only the evidence offered by or on behalf of the
[Foster Parents], failed to acknowledge or give any weight
to the evidence presented by or on behalf of Aunt, and
failed to conduct a comparative analysis of the relative
benefits of the two prospective adoptive families?
II. Whether the court erred in failing to consider
persuasive evidence supporting a conclusion that [Child’s]
best interests would be served by allowing Aunt to adopt
the Child when the court ignored her consistent contact
with the Child since birth and the emotional bond between
them, her timely and persistent attempts to be considered
an adoptive resource, and the administrative and litigation
delays that prevented her from being able to perform
parental duties on behalf of the child prior to trial?
III. Whether the court erred in failing to acknowledge or
give weight to [DHS’s] support for Aunt’s adoption of the
Child, where it is the public policy of this Commonwealth to
prefer placement with a relative and to prefer family
reunification, where the Foster Parents intend to sever all
ties for the Child with her biological family, and where
there was no evidence presented disputing that Aunt is
capable of undertaking the parental role?
Aunt’s Brief at 14-15.
The crux of all three of Aunt’s issues lies in her overarching contention
that the trial court failed to consider vital aspects of the evidence presented
while engaging in an analysis of Child’s best interests. Therefore, we will
discuss all three issues in tandem. Aunt specifically contends that the trial
court did not sufficiently consider her persistent and significant efforts to
adopt niece, which were delayed only by events outside of Aunt’s control,
such as administrative and litigation delays. Id. at 37-38. She points to her
continual involvement in Child’s life and her emotional bond with Child. Id.
She also cites her own ability to provide a “permanent, healthy and safe
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environment” for Child. Id. at 30-31. Moreover, Aunt emphasizes her
status as a blood relative of Child and asserts that allowing Foster Parents to
adopt Child would effectively cut Child off from her biological family, thus
failing to promote Pennsylvania’s public policy of the preservation of family
ties. Id. at 43-45. We conclude that no relief is due.
We begin by noting our standard of review:
It is of course true that our paramount concern in child
custody cases is to determine the best interests of the
child. Thus, appellate review of child custody [o]rders is of
the broadest type, and we may modify the trial court’s
custody determination where it is shown by evidence of
record to be manifestly unreasonable. Further, our review
is not bound by the trial court’s deductions, inferences and
interpretations of evidence and we will exercise
independent judgment to consider the merits of the case
and to enter an [o]rder that is correct and just.
***
Despite this Court’s broad standard of review regarding
child custody orders, on issues of credibility and weight of
the evidence, we must defer to the findings of the trial
judge who has had the opportunity to observe the
proceedings and the demeanor of the witnesses.
In re Adoption of D.M.H., 682 A.2d 315, 318 (Pa. Super. 1996) (citations
omitted).
Regarding petitions for adoption, this Court has recently set forth the
following legal precepts:
Both Pennsylvania’s Adoption Act and case law require
the court deciding a Petition for Adoption to base its
decision on the “physical, mental, and emotional needs
and welfare of the child.” 23 Pa.C.S. § 2724(b). In other
words, the court must make its decision on a case-by-case
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basis after consideration of all factors that bear on the
child’s physical, emotional, intellectual, moral and spiritual
well-being and the best interests of the child.
We are mindful that, when possible, the preservation of
the family is the desired outcome in custody matters.
However, the 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 145, 152-53 (Pa. Super. 2016) (some citations and
quotation marks omitted) (holding that trial court erred by granting
biological grandmother’s petition to adopt minor child where child was
thriving with unrelated pre-adoptive parents).
Further, it is well settled that “once the parental rights have been
terminated, anyone may become an adoptive parent[.]” D.M.H., 682 A.2d at
319 (citations omitted). Significantly, when parental rights have been
terminated “the familial relationship, the blood connection, no longer has the
significance that it would have otherwise.” Id. We also recognize that 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.
Moreover, it is beyond cavil that when both parties are equally fit:
and the child is of tender years, the trial court must give
positive consideration to the parent who has been the
primary caretaker. Not to do so ignores the benefits likely
to flow to the child from maintaining day to day contact
with the parent on whom the child has depended for
satisfying his basic physical and psychological needs.
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The removal of a young child from an established home
with one parent has long been recognized as a factor
which bears upon his emotional well-being. A child
becomes strongly attached to those who stand in parental
relationship to it and who have tenderly cared for it.
Commonwealth v. ex rel Jordan, 448 A.2d 1113, 1115 (Pa. Super. 1982)
(quotation marks, citations and footnotes omitted).
In the case sub judice, Aunt’s argument that her status as a blood
relative should have been determinative is unavailing. As our case law
demonstrates, a biological connection is but one factor for consideration and
does not retain the same significance once parental rights have been
terminated. See K.D., 144 A.3d at 152-53; D.M.H., 682 A.2d at 319
(affirming biologically unrelated adoptive parents’ right to adopt minor child
over maternal grandmother). In addition, the trial court properly considered
Child’s relationship with her Foster Parents’ son, with whom Child has lived
for the majority of her life and with whom she enjoys a close sibling
relationship. See id. We conclude that the trial court did not commit error
by declining to find that Aunt’s biological connection to Child was alone
sufficient to require Aunt’s adoption petition to prevail.
Further, the trial court was well within its purview when finding that
the testimony presented regarding Child’s bond with Foster Parents was
persuasive and ultimately dispositive. See D.M.H., 682 A.2d at 318 (“on
issues of credibility and weight of the evidence, we must defer to the
findings of the trial judge who has had the opportunity to observe the
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proceedings and the demeanor of the witnesses”); Jordan, 448 A.2d at
1115 (“the trial court must give positive consideration to the parent who has
been the primary caretaker”). While Aunt’s arguments regarding her
considerable efforts toward adopting Child are significant and laudable, the
trial court appropriately focused on Child’s bests interests when fashioning
its decision to allow Foster Parents, the only parents Child has known for the
majority of her life, to adopt Child. See D.M.H., 682 A.2d at 318
(paramount concern should be given to the best interests of the child). The
trial court aptly concluded:
The court considered any and all contact that Aunt had
with [Child] and gave it the appropriate weight. Any
attempts by [Aunt], no matter how well intentioned,
[were] no substitute for the continuity of care required by
a child during the crucial formative years. This continuity
of care was afforded [Child] by Foster Parents.
Trial Ct. Op., at 7.
We discern no abuse of discretion and see no reason to disturb the
trial court’s decision to grant Foster Parents’ petition to adopt Child.
Accordingly, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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In the Interest of: E.M.G., a Minor
Combined Opinion