In the Interest of: Z.B., Appeal of: C.B. ( 2019 )

J-S65017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.B., PATERNAL :
GRANDMOTHER :
:
:
:
: No. 1231 MDA 2019
Appeal from the Order Entered, June 20, 2019,
in the Court of Common Pleas of Northumberland County,
Orphans' Court at No(s): ADOPTEE 39-2016.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2019
Appellant C.B. (Paternal Grandmother) appeals the order denying her
petition for the adoption of her five-year-old grandson, Z.B. (Child), filed
pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101–2910.1 In denying Paternal
Grandmother’s petition, the court determined that Child’s best interests
favored an adoption by T.R. and F.R. (Kinship Parents) and allowed them to
proceed with their respective adoption petition. After review, we affirm.
The extensive record discloses the following relevant history:
Child was born in August 2013 to L.W. (Mother) and D.B. (Father). The
parents were still in high school when Child was born. While she was
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Paternal Grandmother’s husband was a co-petitioner in her effort to adopt
Child; however, only Paternal Grandmother appeals the orphans’ court
decision.
J-S65017-19
pregnant, Mother met Kinship Parents through a social function at a local fire
hall. Mother discussed her pregnancy with Kinship Mother, who was a
pediatric nurse. When Child was born, he spent the early days of his life in a
neonatal intensive care unit (NICU). After his release, Mother and Father
knocked on the door of Kinship Parents, looking for help. From that point on,
Kinship Parents’ involvement was extensive.
Biological Parents struggled as they tried to finish school and find work. It
did not take long before Kinship Parents became the primary resource for the
Biological Parents. Kinship Parents watched the baby multiple days per week
while the parents went to school, worked, and socialized. This care included
overnight stays. When the Biological Parents brought Child to Kinship Parents,
Child was often dirty and hungry. Kinship Parents would feed and bathe Child.
They would also buy diapers. Biological Parents would take Child to Kinship
Parents in the middle of the night when they could not calm him. During the
first 18 months of Child’s life, Mother testified that Child essentially lived at
Kinship Parents’ home.
Kinship Mother noticed that Child appeared weak on his left side. This
led to a diagnosis that Child may have suffered a stroke in utero. Kinship
Parents then transported Child to and from various medical appointments.
Because it was more convenient for everyone, and because Child was already
spending the lion’s share of his time in the Kinship home, Kinship Parents
hosted Child’s physical therapy at their home. Kinship Mother even
-2-
J-S65017-19
handpicked Child’s doctors based on her experience as a medical professional
in the area.
Eventually, CYS became involved after learning of the parents’ lack of
stable housing, food insecurity, and safety concerns. In one incident, Child
swallowed a tide pod while in Mother’s care and nearly died. Biological Parents
called Kinship Parents from the emergency room and asked them to come. At
one point, only one guest was allowed to be by Child’s bedside, and the
Biological Mother asked Kinship Mother to be that person. In another incident,
when Child was approximately two-years-old, doctors determined that Child
suffered a non-accidental bruise on his penis. This was the impetus for Child’s
formal removal from Biological Parents’ care. In August 2015, Child was
adjudicated dependent and placed with Kinship Parents.
Paternal Grandmother also played a role in Child’s life. However, the
record reveals that this relationship was, at best, a traditional grandparent-
grandchild connection. Even then, regular contact did not begin until Child
was adjudicated dependent around his second birthday. Prior to that, Paternal
Grandmother was present at Child’s birth and visited Child several times a
year. Biological Father was not on good terms with Paternal Grandmother,
and did not want to ask Paternal Grandmother for help, despite Child’s
considerable needs and lack of resources. Paternal Grandmother also lived
approximately 75 miles away, and she testified that Biological Mother did not
want her involved.
-3-
J-S65017-19
When Child was removed by CYS and placed with Kinship Parents,
Paternal Grandmother claimed she met with CYS to be a placement option.
Initially, it was unclear whether Paternal Grandmother wanted to be an
adoptive resource. CYS articulated that Paternal Grandmother needed proper
clearances before she could visit with Child. Notwithstanding the reasons for
the delay, Paternal Grandmother did not petition to intervene in Child’s
dependency case until September 2016, a full year after Child was adjudicated
dependent. Once Paternal Grandparents joined the dependency case, the
court awarded them visitation on several weekends per month.
The initial goal of the dependency proceedings was for Child to reunify
with Biological Parents. Over time, they could not alleviate the concerns that
led to Child’s removal. All the while, Child thrived in the home of Kinship
Parents. CYS petitioned to involuntarily terminate Biological Parents’ rights,
but before the court held a final hearing, Biological Parents voluntarily
consented to the termination.
Kinship Parents and Paternal Grandparents filed cross petitions for
adoptions, pursuant to 23 Pa.C.S. § 2701. The orphans’ court conducted a
hearing over the course of five dates between December 2018 and May 2019.
The court heard testimony from 18 witnesses, including CYS caseworkers,
Child’s medical professionals, the respective petitioners and members of their
families.
On June 20, 2019, the orphans’ court dismissed Paternal Grandparents’
petition for adoption. Paternal Grandmother filed this timely appeal.
-4-
J-S65017-19
She presents one multifaceted issue for our review:
Did the trial court err or abuse its discretion in denying
[Paternal Grandmother’s] petition to adopt where [Paternal
Grandmother] had a long-standing relationship with [C]hild
from birth and had significant periods of custody during the
case, where [C]hild had a clear bond with [Paternal
Grandmother], where [Paternal Grandmother] diligently
pursued and acquired both kinship care certification and
foster care certification while [C]hild was a dependent child
for the sole purpose of becoming a placement resource for
[C]hild, where the actions of [CYS] conducted no Family
Finding to identify [Paternal Grandmother] or include
[Paternal Grandmother] in the process, where the excessive
length in time during the pendency of the matter enhanced
the relationship and bond, and where the court refused to
appoint an expert to conduct an evaluation to determine
what impact, if any, severing the relationship would have on
the child.
Paternal Grandmother’s Brief at 7.
Appellate review an orphans’ court adoption determination for an abuse
of discretion:
When reviewing a decree entered by an orphans’ court, this
Court must determine whether the record is free from legal
error and the court’s factual findings are supported by the
evidence. Because the orphans’ court sits as the fact-finder,
it determines the credibility of the witnesses, and on review,
we will not reverse its credibility determinations absent an
abuse of discretion.
In re E.M.I., 57 A.3d 1278, 1284 (Pa. Super. 2012) (citation omitted).
The polestar of adoption proceedings is the best interest of the adoptee.
Pursuant to 23 Pa.C.S. § 2902(a), the orphans’ court must determine whether
the proposed adoption would promote the child’s needs and welfare:
-5-
J-S65017-19
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. § 2902(a).
We also observe that the child’s best interest is the only relevant factor
in determining whether to grant or deny a petition. See 23 Pa.C.S. § 2724(b).
Section 2724(b) provides, in relevant part: “[T]he age, sex, health, social and
economic status or racial, ethnic or religious background of the child or
adopting parents shall not preclude an adoption but the court shall decide its
desirability on the basis of the physical, mental and emotional needs and
welfare of the child.” See also In re K.D., 144 A.3d 145, 152-153 (Pa. Super.
2016) (citation omitted).
When the choice becomes whether to keep a child with the biological
family, we have acknowledged that family preservation is the desired
outcome. In re K.D., 144 A.3d at 153. “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.” Id. (citing In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa.
Super. 2011).
Paternal Grandmother’s primary argument is that she has a clear bond
with Child, who expressed a desire to have a relationship with her. Testimony
-6-
J-S65017-19
revealed that Child does have a familial bond with Paternal Grandmother and
enjoys his time with her. However, this fact obscures the nature of the case.
We do not reduce a best interest analysis in an adoption case to a battle
of the bonds. But it is evident that Child’s primary bond is to Kinship Parents.
Part of the reason Child was placed in their care was their close relationship
prior to CYS involvement. N.T., 5/3/19 (Day 5), at 157-158. The psychologist
who conducted an expert evaluation of Child concluded that Child recognizes
Kinship Parents as the most consistent and persistent source of safety,
security, and nurturing. N.T., 12/12/18 (Day 2), at 37. To that end, he is
spontaneously affectionate with them. Id. at 37-38. Child has spent every
Christmas and every birthday with them in their primary care. Id. at 37. He
refers to Kinship Parents as mom and dad. The court also heard expert
testimony that Child has a very strong emotional attachment to them.
The psychologist who evaluated Child recommends that Child still
continue to have a relationship with his Grandparents, but fully recommends
adoption by Kinship Parents. Part of the reason for this recommendation was
Child’s significant medical needs resulting from the stroke. The psychologist
classified these needs as chronic and persistent. Id. at 33-34. His condition
resembles cerebral palsy, but would not necessarily be identified as such as
he gets older. He receives numerous services aimed at improving his walking
ability and monitoring his overall cognitive motor development. Id. He wears
a leg brace for support. Id.
-7-
J-S65017-19
Child’s pediatrician also testified that Child displayed behavioral
concerns, though he is still too young for a definitive diagnosis regarding
ADHD or learning deficits. Id. at 67. Child receives learning support at school.
While his pediatrician described Child’s prognosis as excellent, she testified
that Child will need extra care, including aggressive physical therapy and
bracing. Id., at 67, 69. The psychologist concluded that Kinship Mother’s
experience as a pediatric nurse “would help as an asset in both coordinating
the child care and continuing to care for [Child] as he progresses.” Id., at 33.
While the orphans’ court determined that Kinship Parents were involved
since birth, it determined that Paternal Grandmother was not heavily involved
in Child’s life. Prior to Child’s dependency adjudication, Paternal Grandmother
visited Child only sporadically. While Paternal Grandmother became more
involved after officially joining the dependency proceedings, the record reveals
that Child’s relationship with Paternal Grandmother was not as significant as
the one he shared with Kinship Parents.
When Child returned from weekend visits with Paternal Grandparents,
Child regressed in his physical and behavioral development. Id., at 30. For
instance, he displayed more weakness in his left foot and grinded his teeth at
night. Id. Paternal Grandparents acknowledged that Child’s behavioral issues
had made their visits challenging. Sometimes he would get upset when
reprimanded by them. Transitions between Kinship Parents and Paternal
Grandparents were particularly tense. Child would yell and kick; he would
-8-
J-S65017-19
scream that he wanted his mommy (in reference to Kinship Mother). Id., at
38.
The orphans’ court agreed with the psychologist’s nuanced
recommendation that a continued relationship with both sets of petitioners
would be in Child’s best interests, but the court wisely acknowledged that it
could not order the same. Thus, given the blunt choice between Paternal
Grandparents and Kinship Parents, the orphans’ court concluded that adoption
by Kinship Parents would be in Child’s best interests. This determination is
supported by the record.
Paternal Grandmother’s appeal essentially dissolves here, as none of her
other issues have bearing on the ultimate question: what is in Child’s best
interests? Nevertheless, we address those matters contemporaneously as
follows.
Paternal Grandmother argues that, because of CYS “stonewalled” her
efforts to become an adoptive resource, the proverbial dye was cast long ago.
She contends that because CYS did not include her in the process from the
beginning, the dependency proceeding only enhanced the bond Child shared
with Kinship Parents. This argument is misplaced and without merit.
Since his birth, Child was always closer with Kinship Parents than
Paternal Grandparents. This is not necessarily the fault of Paternal
Grandparents, and certainly not the fault of Kinship Parents. Biological
Parents purposefully sought to limit contact between Child and Paternal
Grandparents. And when Biological Parents were in need, they knocked on
-9-
J-S65017-19
Kinship Parents’ door, not the door of Paternal Grandparents. CYS logically
identified Kinship Parents as a favorable placement option.
One reason that Kinship Parents were ideal for Child’s placement was
because Biological Parents had such a positive relationship with them. After
all, Kinship Parents were a “kinship” in their own right. See 67 Pa.C.S. § 3102
(Definitions).2 And lest it be forgotten, the goal of Child’s dependency
proceedings was to reunify Child with Biological Parents. While Kinship
Parents immediately held themselves out as an adoptive resource, they had
supported the Biological Parents since Child’s birth. Even after the termination
of Biological Parents’ rights, Kinship Parents allowed Biological Parents to have
contact with Child whenever they desired.
A second, critical reason for the placement with Kinship Parents was
their close proximity to the Biological Parents and Child’s doctors. While we
observe Paternal Grandparents’ sincere effort to journey a considerable
distance (approximately 90 minutes each way) to Child’s appointments and
visits, the dependency court’s decision to keep Child within his community
offered Child more stability and increased the likelihood of reunification with
Biological Parents. Not only was the placement with Kinship Parents a proper
choice, but it also appeared to be the only choice.
____________________________________________
2 “‘Kin’ is defined as an individual 21 years of age or older who is one of the
following...An individual with a significant, positive relationship with the child
or family.” Although Kinship Parents might not have qualified as “kin” at
Child’s birth, by the time CYS became involved, Kinship Parents most certainly
had a significant and positive relationship with both Child and Biological
Parents. They were not mere babysitters.
- 10 -
J-S65017-19
Once the dependency case became court active, Paternal Grandparents
still waited to become involved. They only sought a formal kinship placement
in March 2016, six months after Child’s adjudication. Paternal Grandparents
only sought to intervene in the dependency case in September 2016, over a
year after Child’s adjudication. Paternal Grandmother contends that there
was a delay after she sought visitation. However, the record merely reflects
CYS had to obtain clearances from Paternal Grandparents in order to allow for
contact with Child since CYS assumed legal custody of him upon the
adjudication. None of CYS’s actions could be construed as stonewalling
Grandmother.
We do not pass judgment on Paternal Grandmother’s limited
involvement in comparison to Kinship Parents. One could assume they did all
they could do. But Biological Father made a clear choice when he sought the
help of Kinship Parents instead of his own parents.
Nonetheless, we emphasize that the goal of preserving the family unity
cannot be elevated above all other factors. See In re K.D., 144 A.3d at 153.
On appeal, that is exactly what Paternal Grandmother asks us to do – to
elevate her familial connection to Child to such a height that it negates the
last five years’ worth of best-interest evidence, all of which supports an
adoption by Kinship Parents.
Finally, Paternal Grandmother argues the orphans’ court erred when it
failed to appoint an expert to evaluate what impact, if any, severing the
relationship with Paternal Grandparent would have on Child. See Paternal
- 11 -
J-S65017-19
Grandmother’s Brief at 7, 13. Although the expert psychologist testified about
the impact of severing the relationship, Paternal Grandmother argues that the
court should have granted her request for an updated bonding evaluation,
since the last evaluation was conducted 18 months earlier. See N.T., 3/26/19
(Day 3), at 106-107.
In her brief, Paternal Grandmother provides no argument regarding the
denied request. Instead, she couches the issue in a tangential matter:
whether the trial court failed to consider the familial relationship. See Paternal
Grandmother’s Brief, at 13 (citing In re Adoption of D.M.H., 682 A.2d 315;
319 (Pa. Super. 1996) (holding that the trial court did not fail to give enough
weight to familial relationship in deciding the best interest of the child)).
In the instant case, the orphans’ court clearly considered Paternal
Grandmother’s relationship with Child in determining Child’s best interests.
The orphans’ court explicitly stated that it “recognizes that the familial
relationship is a relevant consideration, but it is not the controlling
consideration.” T.C.O., 9/30/19, at 4 (not paginated). The court even went
so far as to lament that it could not fashion an order to ensure Child would
have some contact with Paternal Grandparents. See N.T., Day 5, at 180-181;
see also 23 Pa.C.S. § 5326 (“Effect of adoption”).3 The court indisputably
____________________________________________
3 Section 5326 of the Child Custody Act provides: “Any rights to seek physical
custody or legal custody rights and any custody rights that have been granted
under section 5324 (relating to standing for any form of physical custody or
legal custody) or 5325 (relating to standing for partial physical custody and
- 12 -
J-S65017-19
appreciated the gravity of its decision. But to Paternal Grandmother’s specific
objection – that the court did not grant her request for an updated evaluation
– we conclude that the court’s denial did not constitute an abuse of discretion
for the following reasons.
For one, the court heard extensive expert testimony about Child and his
relationships with both sets of petitioners and the nature of those bonds. The
psychologist testified that it would be in Child’s best interests to maintain both
relationships. See N.T., 12/12/18 (Day 2), at 51. But he also testified that
severing the relationship with Kinship Parents would be far more detrimental
to Child. Id., at 52-53. The parties then attempted to elicit from the
psychologist whether his expert opinion had changed since the evaluation he
conducted the previous year. Id., at 52-56. The psychologist had not
observed the family since and refused to entertain hypotheticals. Id.
Moreover, the orphans’ court may even rely on lay evidence to discern
a child’s best interests. To explain, we observe the similar statutory language
in the provision governing termination proceedings under the Adoption Act,
23 Pa.C.S.A. § 2511. Under Section 2511(b), wherein the court must conduct
the second of a two-prong termination analysis, the primary consideration is
the “developmental, physical and emotional needs and welfare of the child.”
23 Pa.C.S. § 2511(b). There, the court does not need to rely on expert
____________________________________________
supervised physical custody) to a grandparent or great-grandparent prior to
the adoption of the child by an individual other than a stepparent, grandparent
or great-grandparent shall be automatically terminated upon such adoption.”
- 13 -
J-S65017-19
testimony to evaluate the bond between a parent and child. See, e.g., In re
Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Additionally, Section 2511(b)
does not require a formal bonding evaluation. Id. (citation omitted). The
court needs only to take into account whether a bond exists, and whether
termination would destroy an existing, necessary and beneficial relationship.
Id. Thus, the court may rely on lay testimony to determine whether
termination is still warranted notwithstanding the existence of a bond.
Instantly, under the relevant adoption provision, the court must decide
desirability of adoption on the basis of the “physical, mental and emotional
needs and welfare of the child.” 23 Pa.C.S. § 2724(b). We are loathe to
equate the two provisions, notwithstanding the similarity of the language,
because each provision governs a discretely different situation: the
termination of parental rights on one hand, and the assumption of those rights
on the other.
This case offers a clear illustration. The choice here is not whether to
sever a beneficial bond, but which of the two beneficial bonds is worth
preserving and which must be severed. Ideally, neither bond would be
severed, per the expert’s recommendation and the orphans’ court’s hope.
Still, the court was tasked with that decision. Contrary to Paternal
Grandmother’s view, the law does not require a formal bonding evaluation to
be conducted, much less an up-to-the-minute formal bonding evaluation. We
do not require this in termination cases, and we conclude the same rule applies
in this scenario, where adoptive families file competing petitions.
- 14 -
J-S65017-19
Instantly, the expert witness testified that it would be far more
detrimental to sever the bond Child had with Kinship Parents. Although that
recommendation was made some 16 months prior to his testimony, the
orphans’ court also heard extensive lay testimony about Child’s life in the time
since the evaluation. In fact, the court heard from both sets of petitioners,
among others, about the relationship they had with Child, from his birth until
the date in question. From this testimony, the court could extract a decision.
That decision – to deny Paternal Grandmother’s request to adopt child – was
supported by the recorded and thus not an abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
- 15 -