In Re: B.N.M. Appeal of: K.H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.N.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: K.H.
No. 372 MDA 2016
Appeal from the Order Entered January 29, 2016
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 83789
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
K.H. (“Paternal Grandmother”) appeals from the January 29, 2016
order denying her petition to adopt her now-five-year-old granddaughter,
B.N.M. We affirm.
The trial court succinctly summarized the underlying facts and
procedural history as follows:
B.N.M. was born [during] October . . . 2011[,] at the
Reading Hospital[.] Due to Mother’s drug use, B.N.M. was born
prematurely and addicted to methadone. To this day, B.N.M.
suffers from exotropia, Bell’s palsy and developmental delays in
motor development and speech. At the time of B.N.M.'s birth,
Mother listed E.D. [(“Legal Father”)] as the father on the birth
certificate. However, . . . Paternal Grandmother . . . believed
that her son A.L. [(“Biological Father”)] was the child's true
biological father. [Biological Father] also has a six-year-old son
by Mother, E.M.[,] [who] is currently in the custody of Paternal
Grandmother. B.N.M. was in the custody of her drug addicted
Mother and Legal Father until the summer of 2013, living in four
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different motels and various drug houses. B.N.M. was without
proper supervision, sufficient food and hygiene for most of that
time. Mother was arrested in July 2013 on several felony
charges and when it became apparent that Legal Father was
unable to care for B.N.M. due to his own drug rehabilitation
status, Berks County Children and Youth Services (hereinafter
"BCCYS ") gained physical and legal custody of the child through
a voluntary thirty day placement[.] BCCYS approached
Grandmother at that time to ask if she would take temporary
custody of B.N.M. but she declined because she was currently
overwhelmed with caring for B.N.M.'s brother E.M., who is
autistic. Legal Father asked that B.N.M. be placed temporarily
with . . . T.Mu., who ultimately became B.N.M.'s Foster Mother.
At the expiration of the thirty day placement, BCCYS filed
a Petition for Dependency. On September 4, 2013, the [juvenile
court] adjudicated B.N.M. dependent and granted physical and
legal custody to BCCYS. At that point, [the juvenile court]
confirmed continued placement with . . . C.Mu. and T.Mu.
[(“Foster Parents”)]. Grandmother and her paramour, M.T-C.,
later applied as a kinship resource for B.N.M., but were denied.
....
During the dependency case process, [the juvenile court]
held status hearings and permanency review hearings to review
Mother’s progress toward a possible reunification with B.N.M.
Each time, [the juvenile court] confirmed the child's continued
placement with . . . Foster Family as she was thriving in that
environment and Mother continued to move from rehab to jail to
a psychiatric hospital. Grandmother attended most of the
hearings with her paramour M.T-C. . . . Grandmother repeatedly
requested that B.N.M, be placed with her and also asked for
visitation. Although [the juvenile court] declined to place the
child with Grandmother, she was granted supervised visits with
B.N.M. at which the child's biological brother E.M. attended in
order to allow the siblings to interact.
DNA testing in fall 2013 determined that [Biological
Father], and not [Legal Father], was the biological father of
B.N.M. [Biological Father relinquished] his parental rights on
December 7, 2013, stating repeatedly to BCCYS staff that he
wished for B.N.M. to be adopted by the Foster Parents and not
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by any of his biological family because of the abuse he allegedly
suffered at their hands. Mother and Legal Father’s parental
rights were terminated by the [orphans’ court] on November 26,
2014[.] [Biological Father] attended the hearing solely to
reiterate his desire that B.N.M. never be placed with any of his
relatives.
....
After parental rights were terminated, . . . three competing
[1]
parties [,i.e., Grandmother, Great Aunt , and Foster Parents,]
filed [adoption petitions.] . . . Grandmother’s paramour did not
join in her petition [.]
....
The three adoption hearings were [initially] scheduled for
November 2015 but . . . [t]he hearings were held before [the
orphans’ court[2] on January 26 and 27, 2016. . . . The parties
did not request that the Court interview the child. . . . On
January 29, 2016, [in separate orders] the [orphans’] [c]ourt
granted Foster Parents’ Petition for Adoption and denied
Grandmother’s and Great Aunt’s petitions[.] Grandmother [filed
a timely appeal] on February 29, 2016. [On January 29, 2016,
the orphans’ court entered a formal adoption decree in favor of
Foster Parents].
Trial Court Opinion, 4/15/16, at 2-6
Grandmother presents three questions for our review.
1. Has the Honorable Trial Court erred in granting an
adoption by following the recommendation of Berks County
Children and Youth and severing the bond between paternal
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1
The appeal of Great Aunt was listed consecutively with the instant matter.
We address that appeal in a separate writing.
2
Different judges presided over the dependency proceedings in the juvenile
court and the adoption proceedings in the orphans’ court.
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grandmother and the child's sibling that resides with the
grandmother ?
2. Has the Court of Common Pleas committed an error of law by
utilizing 62 PS § 1302.2 "Discontinuance of Family Finding" in
this case, by issuing an Order on January 14, 2[0]15, wherein,
"BCCYS shall not assess relatives presenting for the child
pursuant to 62 P[S] [§]1302.2 ?"
3. Did the Trial Court commit an error by not considering
Fostering Connections and Family Finding by granting the
adoption to a foster family?
Grandmother’s brief at 3.
Appellate review of an adoption decree is as follows:
When reviewing a decree entered by the 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 that
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 trial court must determine
whether the proposed adoption would promote the child’s needs and welfare.
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.
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23 Pa.C.S. § 2902(a). Moreover, in § 2724, relating to testimony and
investigations, the Adoption Act further elucidates that the child’s best
interest is the only relevant factor in determining whether to grant or deny
an adoption petition. Specifically, § 2724(b) provides in pertinent part, “In
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
physical, mental and emotional needs and welfare of the child.”
While it is difficult to discern Grandmother’s precise complaints from
the assertions that she levels in her brief, she criticizes BCCYS and the
juvenile court for their respective actions during the dependency
proceedings. Our scope of review of the order denying her petition for
adoption is limited to the testimony and evidence adduced during the
evidentiary hearings relating to the competing petitions for adoption. In re
Adoption of Farabelli, 333 A.2d 846, 849 (Pa. 1975) (“scope of our review
on this issue is limited to consideration of the testimony and the
determination as to whether the Court's findings are supported by
competent evidence”). Thus, to the extent that Grandmother challenges the
merits of the agency’s stewardship during the dependency proceedings or
the juvenile court’s prior decisions, those claims are unavailing herein.
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With the aforementioned legal precept in mind, we note that
Grandmother’s second and third issues relate to a juvenile court order that
was entered on January 14, 2015, and a BCCYS decision regarding the
placement of B.N.M. with Foster Parents rather than kinship care with her.
As we discuss below, since both of these assertions involve juvenile court
proceedings that do not implicate the orphans’ court hearing or its
determination whether the proposed adoption would promote B.N.M.’s needs
and welfare, they fail as a matter of law. Farabelli, supra.
Grandmother asserts that the juvenile court’s January 14, 2015
permanency review order, which is not in the certified record that was
transmitted to this court, effectively eliminated her as an adoptive resource
by relieving BCCYS of its obligation to assess her for kinship placement
during the dependency proceedings. In short, she contends that the
juvenile court’s endorsement of the agency’s decision-making was a
harbinger of the orphans’ court’s subsequent decision to deny her adoption
petition one year later. As noted, supra, since Grandmother did not appeal
the juvenile court order, or assert a related claim during the subsequent
adoption proceedings before the orphans’ court, the issue is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Moreover, as discussed,
infra, the record sustains the orphans’ court’s merits determination to deny
Grandmother’s petition for adoption based upon the evidence adduced
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during the evidentiary hearing. Thus, to the extent that Grandmother
asserts that the juvenile court erred in sustaining the agency’s refusal to
consider her as a kinship resource, that claim is fruitless.
For similar reasons, Grandmother’s complaints regarding the agency’s
refusal to place B.N.M. in her care during the dependency proceedings are
also ineffective. First, since Grandmother did not challenge the agency’s
decisions before the juvenile court, the fact that the agency favored Foster
Parents as placement resources during the dependency proceedings is not
before us in this appeal. More importantly, even recognizing that a
petitioner’s genetic relationship with the child is a relevant consideration that
the orphans’ court must address in deciding to grant or deny a petition for
adoption, the orphans’ court factored into its consideration Grandmother’s
relationship with B.N.M. and her care of B.N.M.’s older brother and
nevertheless concluded that Grandmother’s proposed adoption of B.N.M. was
not in the child’s best interest. In re Adoption of D.M.H., 682 A.2d 315,
319 (Pa.Super. 1996) (“the trial court properly evaluated the familial
relationship between grandmother and child by making the relationship a
relevant, but not a controlling, consideration.”). Thus, no relief is due.
The final claim we review relates to the merits of the orphans’ court’s
decision to deny Grandmother’s adoption petition. As noted, supra, the
orphans’ court determined that the proposed adoption would not promote
B.N.M.’s needs and welfare. See Trial Court Opinion, 4/15/16, at 17 (“there
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is substantial and compelling evidence that granting Grandmother’s
[p]etition for [a]doption . . . is not in the child’s best interest as the [propsed
adoption] would not suit [her] physical, mental, and emotional needs and
welfare[.]”). Grandmother challenges the trial court’s factual findings and
assails the manner in which the orphans’ court weighed the evidence that
she adduced during the hearing. Specifically, Grandmother disputes the
court’s findings that she was inattentive to B.N.M.’s plight during the
dependency proceedings, that she spearheaded the hostile campaign against
Foster Parents involvement with the child by administering a Facebook page
titled, “Bring [B] Home,” and that B.N.M. does not have a relationship with
her older brother, who is in Grandmother’s custody. See Pretrial
Memorandum, at Exhibit L.
Consistent with our standard of review, we reject Grandmother’s
invitation to revisit the orphans’ court’s factual findings that are supported
by the certified record. See In re E.M.I., supra at 1284. Tellingly, as it
relates to Grandmother’s credibility, the trial court found her untrustworthy.
The orphans’ court observed,
While the Court believes Grandmother's claim that she
loves B.N.M., the rest of Grandmother's testimony was not
credible and, frankly, was fantastical and confusing. For
example, she claimed that B.N.M.'s brother had suddenly been
cured of his autism but then a minute later admitted that he is in
speech and occupational therapy and attends a special school for
autistic children. There were also departures from truth in
Grandmother's assertions that she never missed or canceled any
visits with B.N.M. when, in fact, as demonstrated clearly, she
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had missed many. Her portrayal of the visits she did attend also
varied greatly with the BCCYS testimony regarding supervisor
reports of the character and quality of the interactions between
herself, B.N.M. and E.M. Grandmother was evasive when
initially asked about her missing a visit due to a hospitalization
for anxiety, which Grandmother at first denied but then
subsequently admitted. Finally, the Court had to take a ten
minute recess when Grandmother suddenly stopped
answering questions from her own attorney, would not
respond to queries of concern from this Court, and
appeared to be unable to cope with the realization that
truthful answers would be damaging to her case.
The Court also found Grandmother's denials of
involvement with the "Bring B. Home" Facebook page incredible,
especially when she admitted that as the "page administrator"
she was able to contact Facebook and have it removed. The
disturbing page publication featured private photos of supervised
visits and confidential medical information accessible only to
Grandmother and the biological family and accused the Foster
Parents of physically abusing B.N.M. and BCCYS of fabricating
B.N.M.'s medical diagnoses. The page heightened the hostile
environment surrounding the dependency proceedings at the
time and [led] to credible safety threats against the Foster
Family. This ultimately contributed to [the juvenile court]
entering an order [suspending supervised visitation].
Trial Court, 4/15/16, at 16-17 (citation to record omitted) (emphasis
added).
Thus, in addition to Grandmother’s general lack of trustworthiness, the
trial court made specific credibility determinations against Grandmother
relating to the frequency of her attendance at supervised visitations, the
quality of those visits, and her involvement with the incendiary Facebook
community that aligned against BCCYS and Foster Parents during the
dependency proceedings. The orphans’ court also rejected Grandmother’s
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assertion that B.N.M. shared a close relationship with her older brother. The
court found, “Despite Grandmother’s insistence that B.N.M.’s relationship
with her biological brother is paramount, Grandmother did not credibly
establish that B.N.M. and her brother enjoy any bond whatsoever.” Id. at
15.
Our review of the certified record supports the trial court’s weight and
credibility determinations. During the evidentiary hearing, Grandmother
equivocated on several topics. She failed to adequately explain her decision
to omit relevant information from BCCYS documentation regarding a PFA
that Biological Father filed against Grandmother’s live-in paramour, and
while she asserted that the paramour did not drink alcohol, she was forced
to concede that he had been arrested for public drunkenness. Id. at 51, 56.
In addition, the record belied Grandmother’s insistence that she did not tell
BCCYS that caring for B.N.M.’s brother, E.M., was overwhelming in
explaining to the agency why she was initially hesitant to be a placement
resource. Id. at 35-36, 72.
Moreover, as the orphans’ court noted, while Grandmother stressed
that she missed few of the scheduled supervised visitations with her
granddaughter, in actuality she missed at least four of the visitations that
were scheduled between February and May 2014, and was up to one-half
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hour late for other visitations that she did attend.3 Id. at 36-37. Similarly,
on one occasion Grandmother waited ten days before contacting the agency
to reschedule a visitation that she canceled. Id. at 38.
Likewise, Grandmother’s testimony regarding the nature of the
supervised visitations conflicted with the contemporaneous notes maintained
by the supervising caseworker. Specifically, Grandmother indicated that
B.N.M. did not require a significant warm up period to “adjust and be
comfortable” with her during the visitations, but the agency’s notes belied
that testimony and indicated that the child continued to be “standoffish” with
Grandmother as late as August 2014. Id. at 40-41, 43.
As to E.M., the certified record does not reveal a close bond between
him and B.N.M. Indeed, now five-year-old B.N.M. has not had contact with
E.M. since before the supervised visitations were terminated during 2014.
Additionally, the record belies Grandmother’s characterization of the sibling
relationship as wholly beneficial. While the two children posed for
photographs during the supervised visits, which Grandmother introduced at
trial, E.M. was regularly removed from the visitations due to his
uncontrollable behaviors and the caseworkers’ fear that he may strike his
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3
While Grandmother exercised monthly visitation during this period, she
was also authorized to accompany E.M. to his hour-long supervised
visitations with Mother and B.N.M. two times per month. The record does
not delineate which type of visitation that Grandmother missed.
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little sister. Id. at 39-40. The concern for the younger child’s saftey was so
palpable that the juvenile court eventually ordered Grandmother to have a
second adult accompany her to supervised visitations so that someone could
care for E.M. if he had to be removed from the visits for acting out. Id. at
39-40.
Finally, as it relates to the menacing Facebook page, Grandmother
initially denied responsibility for the page or the threats or allegations
contained therein. However, upon further questioning, she testified that she
contacted Facebook to have the page removed. N.T., 1/27/16, at 23-24.
She later conceded that only the page administrator was authorized to
terminate the forum. Id. at 56, 69.
As the orphans’ court findings are unassailable, we reject
Grandmother’s invitation to revisit those matters on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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