In the Interest of: Y.Z.I. Appeal of: A.R.S.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Y.Z.I., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: A.R.S., Appellant No. 2867 EDA 2013

Appeal from the Order September 11, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000321-2011

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ. MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2014 Appellant A.R.S. appeals from the September 11, 2013 order denying her petition for adoption of her nephew, Y.Z.I. In the order, the trial court

-adoptive

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fo After careful review, we affirm.

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*

Retired Senior Judge assigned to the Superior Court.

1 This order is appealable. While the trial court entered a single order as to competing adoption petitions, the two petitions retained their separate identities. Cf., Kincy v. Petro actions cannot be consolidated to the extent the actions lose their separate identities and become a single action . . . unless the actions involve the

to put Appellant out of court, it is final as it relates to her petition to adopt Y.Z.I. Accordingly, we have jurisdiction to entertain this appeal.

Y.Z.I. was born during April of 2010 with a breathing condition. He utilized a sleep apnea monitor and a breathing machine. Philadelphia with Foster Parents

approximately one month after his birth. Foster Parents underwent medical

improved greatly in the three years that he has been in their care. Later that summer, kinship care and placed him with Foster Parents.2 DHS determined that

because she was an unsafe caregiver. N.T., 8/28 immunizations were delinquent, and his development was delayed. Id. at 27. Foster Parents subsequently adopted L.B., and the brothers are closely bonded in their home. Id. at 48.

rents have been

terminated.3 Throughout the dependency proceedings for both Y.Z.I. and

harassment against Foster Parents. She dispersed flyers around Foster

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2 Y.Z.I. has a total of eight siblings, one of whom is an infant and remains in

who have left home. 3 On August 3, 2011, the trial court terminated the parental rights of the birth mother pursuant to 23 Pa.C.S. § 2511(a) and (b). Birth father subsequently relinquished his parental rights voluntarily on October 26, 2011.

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Id. at 77. A peculiar pattern of

cut the brake lines on their automobile, and loosened or removed its lug nuts. Id. at 78- role in the property damage, Grandmother harassed Foster Parents prior to and following court appearances, and assailed them at the agency during visitations. Id. at 60-61, 81-82. Appellant was involved in at least one incident that occurred in front of Y.Z.I. at the agency. Id. at 81-82, 100. Specifically, she cursed the foster mother and admonished the birth mother, her Id the supervised visitations that birth mother and Appellant shared with the children, she subsequently approache returning from a visitation and tried to remove L.B. from the car. Id. at 80.

Id.

During January 2012, the juvenile court entered a restraining order directing Grandmother to stay away from the two children and Foster Parents. Id. at 9-10, 64. The court reissued the order the following year.

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Id. at 64-65. Grandmother violated the no-contact directives approximately four times. Id. at 93-94.

filed a petition to adopt Y.Z.I. Appellant countered with an unopposed petition to intervene in the adoption proceedings, and a corresponding petition for adoption. During the ensuing adoption hearing addressing the countervailing petitions, the trial court considered evidence presented by

Foster Par their own behalf. At the time of the hearing, Y.Z.I. was approximately three and one-half years old, having lived with Foster Parents for all but one month of his life. Id. at 6. Appellant and Grandmother reside on separate floors of a partitioned house. On September 11, 2013, the trial court

This timely appeal followed. Appellant complied with Pa.R.A.P.

1925(a)(2)(i), and filed a Rule 1925(b) concise statement. She raises the following three issues on appeal:

1. Did the trial court abuse its discretion and commit legal error in failing to consider the preference for relatives in adoption proceedings?

2. Did the trial court abuse its discretion and commit legal error by allowing inadmissible testimony, on . . . five separate

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3. Did the trial court abuse its discretion and commit legal error in failing to adequately consider whether the best interest of the child would be served if visitation with his aunt were to occur?

o submit a brief,

the child advocate filed a brief in support of their position.

This Court recently reiterated our appellate review of an adoption decree.

Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence.

-finder, it determines

the credibility of the witnesses, and on review, we will not reverse its credibility determinations absent an abuse of that discretion.

In re E.M.I., 57 A.3d 1278, 1284 (Pa.Super 2012) (citation omitted).

care during the prior dependency proceeding and refusing to consider her as a placement resource for her then-newborn nephew, Y.Z.I., our scope of review of the order denying her petition for adoption is limited to the testimony and evidence adduced during the evidentiary hearing relating to the dueling petitions for adoption. In re Adoption of Farabelli, 333 A.2d

consideration of the testimony and the determination as to whether the

t

not address them herein.

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At the outset, we observe that the second argument that Appellant presents on appeal is waived because she did not include it or a reasonable facsimile in her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii)

Grandmother, the Rule 1925(b) statement as believe the adversity between my mother and the opposing parties, attorneys and court personnel to be problematic because . . . [she] had adverse conversations with the opposing parties involved [which] prejudiced my ability to have a fair non- Statement, 10/10/13. On appeal however, Appellant does not challenge the

adoption proceedings were biased again behavior. Instead, Appellant argues that the trial court erred by admitting

imposition of the no- that, on five separate occasions, the trial court permitted the impermissible testimony over her objections. Id. As the claim that Appellant leveled in

the admissibility-of-evidence issue that she actually raised on appeal, it is waived.

Furthermore, even if Appellant had presented the pertinent argument in the Rule 1925(b) statement, the issue would be waived pursuant to

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Pa.R.A.P. 302 because she failed to present the relevant objections below.

sustained her objections to the evidence. Appellant objected on hearsay and

1) Gra 2) for police assistance in issuing notice of the order to Grandmother. N.T., 8/28/13, at 30, 40, 59. Significantly, the trial court sustained those objections and struck the testimony as hearsay. Id. at 31, 40, 59.

appearance wit statement that the lug nuts and brakes on her car had been tampered with deliberately. Id. at 31, 79. However, since the trial court did not consider any of the foregoing evidence in formulating its decision, none of these

Herein, Appellant contends that the trial court erred in permitting the

complains that the testimony, which she characterizes as irrelevant, clouded

the purportedly inadmissible testimony, no competent evidence was presented to establish that she presented a safety risk to Y.Z.I. Unfortunately for Appellant, however, she failed to object on any basis to

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harassment; 2) thinly-veiled threats of violence against the foster family; 3) suspected property damage, 4) at vehicle; and 5) outburst in front of the children during the supervised visitation. Id. at 61-62, 64, 67, 74-75, 77, 78-82. Foster mother also established, without objection, the need for two restraining orders, and Id. at 61-62, 74-75.

In fact, Appellant not only failed to object to the relevancy of the foregoing testimony, she questioned the foster mother on most of these points during cross-examination. Id. at 86-91. Accordingly, since Appellant

its admission presently. See are waived and cannot be raised for the first time on appeal.). Thus, we do not address the merits of the second complaint Appellant levels in her brief.

failing to apply a preference in favor of relatives in adoption proceedings.

interest determination. Invoking her close ties to Grandmother and the birth

argues that the trial court failed to consider her familial connection with Y.Z.I. in contravention of the preference for adoption by relatives. Without

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identifying any relevant legal authority to support her position, she suggests that, between her adoption petition and that of the nonrelated Foster Parents, the evidentiary scale is tipped in her favor even before the adoption aim fails.

Appellant misinterprets the preference in favor of relatives in adoption

preference exists to her benefit, any preference in favor of a relative relates only to standing to participate in the adoption proceedings. As the High Court explained in In re Adoption of J.E.F., 902 A.2d 402, 414 (Pa. 2006).

A child's aunt and uncle who indicate an interest in adopting the child at that stage are not a threat to the nurturing and maintenance of the new family bond; indeed, if their petition is heard and prevails, it is their family which will be the one to enfold the child. . . . More importantly, for purposes of the mere preliminary question of standing, a child's blood aunt and uncle who indicate an interest in adoption clearly have an interest which surpasses that of the ordinary, unrelated citizen. And, finally, nothing in the Adoption Act provides that the termination of parental rights acts to sever the child's relationship with all other relatives.11

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11 To the contrary, it is notable that, following termination of parental rights, the Adoption Act treats relatives with more deference than non-relatives. Thus, Section 2531, which

certain relatives, including aunts and uncles, from the reporting requirement. 23 Pa.C.S. § 2531(c).

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Indeed, once the preference of standing is afforded to a relative, the

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Id. at

412 (quoting In re Adoption of Hess, 608 A.2d 10, 13 (Pa. 199 stages of the proceedings, the best interest of the child is the paramount

substantive presumption in favor of Appellant over Foster Parents. As a substantive preference on the merits in favor of genetic relatives simply does not exist, the burden of proof between Appellant and Foster Parents is evenly balanced. Accordingly, to prevail in the adoption proceedings, both petitioners were required to establish that their proposed adoption was in

The polestar of adoption proceedings is the best interest of the adoptee. Pursuant to 23 Pa.C.S. § 2907, the trial court must determine lfare.

That proviso is as follows:

If satisfied that the statements made in the petition are true, that the needs and welfare of the person proposed to be adopted will be promoted by the adoption and that all requirements of this part have been met, the court shall enter a decree so finding and directing that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent or parents and shall be subject to the duties of a child to him or them.

23 Pa.C.S. § 2907. Moreover, in § 2724, relating to testimony and

interest is the only relevant factor in determining whether to grant or deny an adoption petition. Specifically, § 2724(b) provides in pe

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any case, the age, sex, health, social and economic status or racial, ethnic or religious background of the child or adopting parents shall not preclude an

adoption but the court shall decide its desirability on the basis of the

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physical,

consideration that the trial court must address in deciding to grant or deny a petition for adoption. In re Adoption of D.M.H., 682 A.2d 315, 319

between grandmother and child by making the relationship a relevant, but

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Instantly, the trial court considered

Appel

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4 Prior to January 2, 2011, the effective date of the new Child Custody Law, the best interest considerations in adoption cases and child custody cases were identical, i.e., a case by case weighing of all factors which bear upon the child's physical, intellectual, moral, and spiritual well-being. See In re Adoption of A.S.H., 674 A.2d 698, 700 (Pa.Super. 1996). During 2011, our legislature fashioned sixteen specific factors for trial courts to consider when awarding custody of a child under that act. 23 Pa.C.S. § 5328. The relevant portions of the Adoption Act remain unaltered. 5 Technically, In re Adoption of D.M.H., 682 A.2d 315, 319 (Pa.Super. 1996), is an appeal of a custody order entered in a dispute between a grandmother and prospective adoptive parents pending the entry of an adoption decree. However, in resolving that case, this Court invoked the Adoption Act and pertinent adoption-related case law addressing the appropriate weight that trial courts should place upon the grandparent/grandchild relationship in adoption cases. Mindful that the best-interest considerations were identical at that juncture, we rely on the relevant portions of the In re Adoption of D.M.H. herein.

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Foster Parents for approximately three years and that Appellant visited Y.Z.I. an average of twice per year during that time frame. See Trial Court Opinion, 1/21/14, at 3. It also considered that Appellant resides with Grandmother in what Appellant described as a three-level home with separate living areas and observed that, while Appellant vowed to move from the residence, in part, to comply with the restraining order, she advocated for the order to be lifted. Id. at 3-4. Hence, Appellant, who

not confident that the no- safety is necessary. Moreover, the certified record established both that Appellant was at least complicit in some of the antics that placed Y.Z.I. in

e for Y.Z.I. See

N.T., 8/28/13, at 33-

relief is due.

determination. Appellant contends that the trial court failed to consider

his biological family. She a finding that the foster mother never foreclosed the possibility of visitations

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-adoption contact was reversible error.

She also asserts that the trial court failed to consider the benefits that Y.Z.I.

f at

As noted supra -

by-case basis, and requires the weighing of all factors which bear upon a child's physical, intellectual, moral, and spiritual well- In re Adoption of A.S.H., supra at 700. Herein, the trial court heard all of the pertinent details of the countervailing petitions for adoption and considered the rele During the evidentiary hearing, Shante Taylor, the DHS social worker

Parents, who are the only family he has known since his birth. N.T., 8/28/13, at 49. She described Foster Parents as loving and nurturing and observed an obvious bond between them and Y.Z.I. Id. at 46-47, 49.

Y.Z.I. as if he is their birth child. Id. at 49. She also described the bond that Y.Z.I. shares with his four-year-old brother, L.B., whom Foster Parents previously adopted. Id. at 47.

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Similarly, the foster placement caseworker, HajaOlabisi Amoo, testified that she was assigned to the family during May of 2010, when Y.Z.I. was an infant. Id. at 17. She has visited Y.Z.I. at least twice a month for three years. Id Id. at 18-19. She explained that when Y.Z.I. was first placed in the home, he was so frail and feeble that she hardly recognized him to be a newborn child. Id. at 18. Over time, however, she observed Foster Parents nurture the child back to good health. Id and nurturing they were giving him, the love and everything. They are really devoted to him, and Id. She Id. at 20.

Ms. and she recommended that the court grant their adoption petition. Id. at 21.

Similarly, the foster mother described her relationship with Y.Z.I., - Id. at 68-69. She repeated that the foster family is the only family that Y.Z.I. has known, and explained how she and her husband cared for him through his sickness and watched him develop. Id while she was at work. Id time, you know. He makes sure they are fed Id.

Foster mother also attested to her love for Y.Z.I. and described him as an energetic three-year-old boy who is closely bonded with L.B. Id. Y.Z.I.

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participates in organized flag football and soccer leagues with his brother. Id. at 70. She likens the pair to a set of twins. Id. Both boys were scheduled to begin preschool together during September 2013. Id. 70, 72. Foster Parents arranged for Y.Z.I. to receive speech and behavior development services while at preschool. Id. at 73.

In contrast to the evidence establishing the love, comfort, and stability that Foster Parents provide for Y.Z.I., Appellant failed to present any evidence of a beneficial relationship between her and her nephew beyond the mere fact of genetics. Appellant never resided with Y.Z.I., and she has attended no more than six visitations with Y.Z.I. over the course of his and cared for L.B.

temporarily and made preparations to receive Y.Z.I. as an infant, DHS ultimately removed L.B. from her care due to safety concerns in that

trial court considered all of the best- physical, intellectual, moral, and spiritual well-being before denying

iled to

consider her potential post-adoption visitation with Y.Z.I. As noted, Appellant opines that the trial court erred in relying upon its finding that Foster Parents were receptive to granting her visitation with Y.Z.I. when, in fact, their support for the idea was tepid. Appellant appears to suggest that

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maintaining contact between Appellant and Y.Z.I. was central in its decision gree.

Initially, we observe that the petition before the trial court related to

prospective adoptive parent may elect to enter a post-adoption contact agreement pursuant to 23 Pa.C.S. §§ 2371-2742, this issue was not

was not presented to the trial court during the evidentiary hearing. Visitation traditionally is a matter that is decided by parents following the completion of the adoption proceeding. In re Adoption of A.S.H., supra

Even following the enactment of §§ 2371-2742, an adoption decree is not encumbered by, or subject to, conditions relating to visitations unless the parents execute a voluntary agreement for contact and submit that accord to the court for its approval under § 2735. Instantly, the trial court has yet to enter a final adoption decree in favor of Foster Parents, much less receive a proposed voluntary contact agreement for approval. Hence, any

Y.Z.I. at this juncture is premature. Id.

Additionally, the trial court did not err in considering the foster i.e., that she was not comfortable with

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extending visitation to Appellant at that time, but she was open to possibly fashioning an arrangement with Appellant after the foster mother became more familiar with her. N.T., 8/28/13, at 91-93. The trial court considered

contact between [Appellant] and [Y.Z.I.] . . . [and] . . . she did not conclusively rule out the possibility of

the trial

court did not opine that Foster Parents were receptive to granting Appellant visitation. To the contrary, as highlighted supra, the court observed that

Y.Z.I. in the future. Indeed, the court did not advocate that Foster Parents proposed anything more than the possibility of future contact. As the

ment into a claim of trial court error. No relief is due.

For all of the foregoing reasons, we affirm the order denying

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/2014