J-S66002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-S66002-16



     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

                                   -2-
J-S66002-16



       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
____________________________________________


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.




                                           -3-
J-S66002-16



      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.

                                    -4-
J-S66002-16




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.




                                       -5-
J-S66002-16



     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

                                    -6-
J-S66002-16



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

                                      -7-
J-S66002-16



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

                                       -8-
J-S66002-16



     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



                                   -9-
J-S66002-16



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




                                    - 10 -
J-S66002-16



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

____________________________________________


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.



                                          - 11 -
J-S66002-16



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




                                    - 12 -
