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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF N.R., A MINOR           :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
                                           :
APPEAL OF: A.D. AND J.D.                   :
                                           :
                                           :
                                           :     No. 1006 MDA 2016
                                           :

                     Appeal from the Decree May 20, 2016
                 In the Court of Common Pleas of York County
                     Orphans’ Court at No(s): 2015-0027a

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 09, 2017

        Appellants, A.D. and J.D., appeal from the May 20, 2016 Decree

entered in the Court of Common Pleas of York County which granted the

Petition to Adopt N.R. (“Child”) that the Child’s foster mother, E.T.M.

(“Foster Mother”), filed pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101-

2910.    In granting Foster Mother’s Petition, the orphans’ court denied the

Petition to Adopt that Appellants filed. After careful review, we affirm.

        The relevant factual and procedural history is summarized as follows.

The Child tested positive for methadone and oxycodone at her birth in June

2013 and remained in the hospital for approximately one month.              Upon

release from the hospital in July 2013, Children Youth and Families of York

County (“the Agency”) placed the Child with Appellants, the Child’s biological
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paternal aunt and uncle.       On August 12, 2013, the orphans’ court

adjudicated the Child dependent. The Child’s father was incarcerated prior

to the Child’s birth, remains incarcerated, and has never been released.

        In October 2013, the Agency reunified the approximately 3-month-old

Child with her mother. After six months, in April 2014, the Agency placed

the approximately 9-month-old Child in foster care with Foster Mother.     The

Agency declined to place the Child back in the care of Appellants because

they were in the process of moving from the Commonwealth of Pennsylvania

to the Commonwealth of Kentucky, a move that they completed in June

2014.

        In December 2014, at the request of Appellants, the Agency made a

referral for an Interstate Compact pursuant to the Interstate Compact on the

Placement of Children, 62 P.S. § 761, which was completed and approved in

June 2015.

        The Child remained with the Foster Mother, however, because “the

[orphans’ court] determined at each permanency review that the current

placement was necessary and appropriate as a preadoptive home.           As no

safety concerns were noted, the [C]hild was never removed from the home

and placement with the [Appellants] was unnecessary.”        Orphans’ Court

Opinion, filed 4/19/16, at 3 (unpaginated).




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      On May 7, 2015, the orphans’ court changed the Child’s permanency

goal to adoption, and on May 13, 2015, the orphans’ court terminated the

parental rights of the Child’s mother and father.1

      On December 2, 2015, Appellants filed a Petition for Adoption.       On

February 10, 2016, Foster Mother filed a Petition for Adoption. 2

      On May 20, 2016, the orphans’ court held an evidentiary hearing.

Testimony revealed, inter alia, that during the time the Child was placed

with Foster Mother, Appellants visited the Child in person two times, once

right after the Child was placed with Foster Mother and once after Appellants

filed the Petition for Adoption. N.T., 5/20/16, at 11. In addition, Appellants

have had approximately fifty (50) Facetime video phone calls with the Child,

facilitated by Foster Mother on a weekly basis when possible.        Orphans’

Court Decision, 5/20/16, at 7-8.




1
  The Child’s mother did not appeal. The Child’s father timely appealed and
on December 2, 2015, this Court affirmed the Orders that changed the
Child’s permanency goal to adoption and terminated the father’s parental
rights. In re Adoption of N.K.J.R., Nos. 991 MDA 2015, 1007 MDA 2015
(filed December 2, 2015) (unpublished memorandum).
2
  On March 2, 2016, Foster Mother filed a Motion to Dismiss Appellants’
Petition for Adoption, claiming that Appellants did not have standing.
Appellants filed an Answer with New Matter. On April 19, 2016, the orphans’
court denied Foster Mother’s Motion to Dismiss and ordered, inter alia, that
Appellants’ had standing to proceed on their Petition for Adoption. The
orphans’ court proceeded to schedule a May 20, 2016, hearing where the
court would hear evidence on both Foster Mother’s and Appellants’ Petitions
for Adoption. Order, 4/19/16.



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      On May 20, 2016, the orphans’ court granted Foster Mother’s Petition

for Adoption and denied Appellants’ Petition.

      Appellants timely appealed.     Both Appellants and the orphans’ court

complied with Pa.R.A.P. 1925.

      Appellants raise the following issues on appeal:

   1. Whether the [orphans’ court] abused its discretion and/or made an
      error of law when granting Foster Mother’s Petition for Adoption given
      the age, health, and biological connection to Appellants versus that of
      Foster Mother?

   2. Whether the [orphans’ court] abused its discretion and/or commited
      an error of law by refusing to consider the [C]hild’s future best
      interests and assuming the court had no authority to mitigate the
      trauma associated with granting Appellate [sic] Petition for Adoption?

Appellants’ Brief at 5.

      It is well settled that “[i]n both custody and adoption matters, our

paramount concern is the best interests of the child.       This ‘best interests’

determination is made on a case-by-case basis, and requires the weighing of

all factors which bear upon a child's physical, intellectual, moral, and

spiritual well-being.”    In re Adoption of A.S.H., 674 A.2d 698, 700 (Pa.

Super. 1996) (citations omitted); see also 23 Pa.C.S. § 2902(a).

      This Court reviews an adoption determination for an abuse of

discretion. In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not

find an abuse of discretion “merely because a reviewing court would have

reached a different conclusion.” Id. (citation omitted). Rather, “[a]ppellate

courts will find a trial court abuses its discretion if, in reaching a conclusion,



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it overrides or misapplies the law, or the record shows that the trial court's

judgment was either manifestly unreasonable or the product of partiality,

prejudice, bias or ill will.” Id. (citation omitted).

      Further, when this Court reviews a trial court’s “best interests”

analysis in custody and adoption matters, our scope of review is as follows:

      An appellate court is not bound by findings of fact made by the
      trial court which are unsupported in the record, nor is it bound
      by the court's inferences drawn from the facts. However, on
      issues of credibility and weight of the evidence, an appellate
      court defers to the findings of the trial judge, who has had the
      opportunity to observe the proceedings and the demeanor of the
      witnesses.    Only where it finds that the custody order is
      manifestly unreasonable as shown by the evidence of record will
      an appellate court interfere with the trial court's determination.

A.S.H., supra at 700 (citations and internal quotation marks omitted).

      Appellants first aver that the orphans’ court did not properly consider

Foster Mother’s age and health. Appellants’ Brief at 11. We disagree.

      Appellants argue that the best interests of a child is served when that

child is adopted by “younger, age appropriate couples” or “natural age

parents” who are not susceptible to chronic illnesses such as the diabetes

with which Foster Mother has been diagnosed.            Appellants’ Brief at 11-12

(internal quotation marks omitted).

      Appellants rely on In re Davis, 465 A.2d 614 (Pa. 1983), to support

their claims that Foster Mother’s age and health should preclude her from

adopting the Child. However, Appellants misconstrue this case.




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      In Davis, the appellants were a 75 and 83-year-old couple who

challenged the decision to remove a 6-year-old child from their care and

place that child in foster care with his half-siblings after his mother passed

away. While noting “the age of seventy and beyond is hardly an ideal time

of life to be raising [children],” our Supreme Court clearly stated “age alone

cannot be the determinative factor” but should be one of the factors that a

trial court considers. Davis, supra at 621 (emphasis in original) (citation

omitted).   Although the advanced age of potential foster parents is an

important factor to consider, “no ‘bright lines’ can or should be drawn.” Id.

      In this case, in response to Appellants’ concerns regarding Foster

Mother’s age and health, the trial court opined:

      In this instance, the [c]ourt took into account the age difference
      between the Appellants and [Foster Mother], and heard credible
      evidence that the Agency had no concerns about [Foster
      Mother]’s health, or, after observing her interaction with [the
      Child], her ability to parent the [C]hild, or effectively care for
      her. [Foster Mother] is only 54 years old, and at that age, is not
      significantly older than many natural parents with young
      children. Further, the [c]ourt took into account that [Foster
      Mother] resides with her sister, her daughter, and her niece, and
      that in the event that [Foster Mother] required any assistance in
      caring for the [C]hild, there are several others in the home, who
      are ready and willing to assist. While the [c]ourt did consider
      this factor, we found that in light of all of the other factors, it
      was not, and should not be, dispositive.           The paramount
      consideration is what is best for the [C]hild. As discussed in the
      Opinion stated on the record, and as outline[d] herein, adoption
      by [Foster Mother] is in the [C]hild's best interest[s].

Orphans’ Court Opinion, filed 7/8/16, at 4 (unpaginated).




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      The orphans’ court properly considered Foster Mother’s age and health

as one of many factors in determining what was in the Child’s best interests.

A review of the record supports the orphans’ court’s findings. Accordingly,

we find no abuse of discretion.

      Appellants next aver that the orphans’ court did not give proper

consideration to Foster Mother’s household composition and lack of biological

connection to the Child. Appellants’ Brief at 11. We observe that Appellants

failed to raise either of these issues in their Pa.R.A.P. 1925(b) Statement.

Accordingly, we find that Appellants have waived these issues. See Klos v.

Klos, 934 A.2d 724, 731 (Pa. Super. 2007) (Father appealing child custody

rulings waived claims that did not appear in his statement of errors

complained of on appeal); see also 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”).

      Appellants’ next issue on appeal claims that the orphans’ court failed

to consider the long-term best interests of the Child and “erred in assuming

that it had no authority to mitigate the trauma the [C]hild may experience

by being removed from the foster placement.” Appellants’ Brief at 15.

      As noted above, the best interests of the child is “the sole standard for

any decision on his adoption, and it is one that should be applied on full

facts elicited during hearings in which all pertinent facts are placed before

the court.” In re: Adoption of Sturgeon, 445 A.2d 1314, 1321–1322 (Pa.



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Super. 1982). As such, we agree with the Appellants’ contention that a trial

court should consider a child’s future in its best interests analysis. However,

in the instant case Appellants’ argument lacks merit because the orphans’

court did engage in an analysis of the Child’s long-term best interests.

      The trial court opined:

      The notion that the Court considered only the temporary welfare
      of the [C]hild in making its decision is misguided. The Court
      found that terminating the bond between [Foster Mother] and
      the [C]hild would be detrimental to the [C]hild. The Court
      believes this effect would be both short term and long term. The
      [C]hild is clearly well loved and well cared for in her current
      environment, and she has developed a familial bond with [Foster
      Mother], as evidenced by her referring to [Foster Mother as]
      "Mommy" throughout the proceedings.             The Court also
      repeatedly observed the interaction between the [C]hild and
      [Foster Mother] at this hearing and numerous other hearings.
      The [C]hild evidences a strong bond with [Foster Mother], and
      further showed no interest or interaction with Appellants or their
      children. Appellants state that "long term stability" for the
      [C]hild favors an adoption by Appellants. However, absolutely
      no evidence was presented at the time of the hearing to suggest
      that the [C]hild's life in [Foster Mother]'s home is anything less
      than stable, nor was there any evidence presented to predict
      that at some point it may not be stable. This case presented a
      situation where two families could both give a child a loving,
      stable, and permanent home. Ultimately, the Court found that
      both the short term and long term welfare of the [C]hild favored
      her remaining in the home of the only stable family she has ever
      known.

Orphans’ Court Opinion, filed 7/8/16, at 5-6 (unpaginated).

      A review of the record supports the orphans’ court findings.      As the

orphans’ court did, in fact, consider the Child’s “long-term best interests” we

find no abuse of discretion.




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     Appellants next aver that the orphans’ court erred in its determination

that it had no authority to mitigate any trauma the Child might experience if

removed from her foster placement.      Appellants’ Brief at 15.   Appellants

failed to raise this issue in their Pa.R.A.P. 1925(b) Statement. Accordingly,

we find that Appellants have waived this issue. See Klos, supra.; see also

Pa.R.A.P. 302(a).

     A review of the record supports the orphans’ court findings and reveals

that the trial court properly considered the Child’s best interests when it

denied Appellants’ Petition to Adopt and granted Foster Mother’s Petition to

Adopt.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2017




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