In the Interest of: E.M.G., a Minor

• Court: Superior Court of Pennsylvania
• Decided: March 23, 2017
• Docket: In the Interest of: E.M.G., a Minor No. 2524 EDA 2016
• Status: Unpublished

Opinion

J-A02039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-A02039-17

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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