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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  IN RE: A.J.A., A MINOR                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
  APPEAL OF: W.A., GRANDFATHER                 :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 4100 EDA 2017

                Appeal from the Order Entered November 9, 2017
                 In the Court of Common Pleas of Wayne County
                      Civil Division at No: No. 2016-00003,
                        No. 2017-00007, No. 2017-00009


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                                FILED JULY 09, 2018

       Appellant, W.A. (“Maternal Grandfather”), appeals from the order

entered on November 9, 2017, in the Court of Common Pleas of Wayne

County, which granted the petition to adopt his then seven-year-old grandson,

A.J.A. (“Child”), that Appellees, R.M. (“Foster Father”) and B.H. (“Foster

Mother”) (collectively, “Foster Parents”), filed pursuant to the Adoption Act,

23 Pa.C.S.A. §§ 2101-2910, and scheduled an adoption hearing, inter alia. In




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* Retired Senior Judge assigned to the Superior Court.
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granting Foster Parents’ petition, the court denied the petition to adopt that

Maternal Grandfather filed.1 Upon careful review, we affirm.

       The factual and procedural history relevant to this appeal are as follows.

In January 2014, Wayne County Children & Youth Services (“CYS”) received

a request to visit Child at the home of Maternal Grandfather.2 At the time of

its visit, Maternal Grandfather was not present, and CYS found Child in the

care of his maternal aunt, who appeared impaired.3 N.T., 9/29/17, at 9. On

January 17, 2014, the court placed Child in the protective custody of CYS,

which then placed Child with Foster Parents. Id. at 10. The court adjudicated

Child dependent on February 19, 2014.            Id. at 9.   The court involuntarily

terminated the parental rights of Child’s mother, K.A. (“Mother”), by decree

entered on July 15, 2016, and of Child’s father, M.S. (“Father”), by decree




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1 In addition, the order denied the petition for adoption filed by S.G. (“Paternal
Aunt”). Paternal Aunt did not file a notice of appeal, and she is not a party to
this appeal.

2CYS received the request from a child welfare agency in New Jersey, which
had been involved with the family. N.T., 9/29/17, at 9.

3 Ms. Bass testified that CYS received an allegation that Child’s maternal aunt
was under the influence of crack. N.T., 9/29/17, at 9. The record does not
reveal whether she was tested for drugs on the date of Child’s placement.




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entered on August 9, 2016.4, 5 The record reveals that Mother had a significant

history of substance abuse and did not satisfy her permanency plan goals. Id.

at 98.

         Foster Parents filed a report of intention to adopt Child on January 9,

2017, which they amended on January 23, 2017. They filed a petition for

adoption on March 1, 2017. On May 11, 2017, CYS filed a consent to adoption

of Child by Foster Parents. Maternal Grandfather filed a petition to intervene

on February 28, 2017, and he filed a petition for adoption on March 8, 2017.

Finally, on March 29, 2017, Paternal Aunt filed a petition to intervene, a report

of intention to adopt, and a petition for adoption. Paternal Aunt subsequently

filed a motion to consolidate the competing adoption petitions to determine

which party’s petition would move forward, which the trial court granted by

order dated April 12, 2017.6

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4 The Honorable Raymond L. Hamill, P.J., presided over the termination
proceedings, and he presided over the subject adoption proceedings.

5 Mother filed a notice of appeal, and this Court affirmed the involuntary
termination decree. See In re A.A., 160 A.3d 253 (Pa. Super. 2017)
(unpublished memorandum). Father did not appeal from the termination
decree.

6 The trial court bifurcated the matter into two separate evidentiary hearings
because it was “expeditious, as opposed to hosting multiple hearings on each
petition prior to scheduling the final adoption hearing.” Trial Court Opinion,
1/5/18, at 2-3. In doing so, the court explained that it relied on In re K.D.,
144 A.3d 145 (Pa. Super. 2016), wherein we approved of addressing
competing adoption petitions in a single proceeding. See In re K.D., supra
at 152 (citing In re J.E.F., 902 A.2d 402 (Pa. 2006) (“concluding that a single



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       The hearing on the competing petitions occurred September 29, 2017.

CYS presented the testimony of its assistant director, Amy Bass; Foster

Mother; and Foster Father. Maternal Grandfather and Paternal Aunt testified

on their own behalf.          Legal counsel and a guardian ad litem (“GAL”)

represented Child during the hearing, both of whom argued in support of

Foster Parents’ petition to adopt.7

       On October 11, 2017, the trial court issued a decree granting Foster

Parents’ petition for adoption and denying the remaining parties’ petitions.

Further, the order directed that Child “shall have all the rights of a child and

heir of [Foster Parents] and they shall be subject to all the duties of such

child.” Decree, 10/11/17.

       On October 20, 2017, Foster Parents filed a motion for reconsideration

asserting, in essence, that the decree finalized the adoption prematurely.8

Foster Parents requested the court vacate the decree and issue a new order


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proceeding is the most expeditious way to address competing adoption
petitions”)).

7Likewise, Child’s counsel and GAL filed appellee briefs to this Court in support
of the subject order.

8 Specifically, Foster Parents averred that testimony was not presented
necessary to finalize the adoption such as “the presentation of a home study
or criminal background as required.” Motion, 10/20/17, at ¶ 9. Further, they
averred that discussions have been ongoing with Maternal Grandfather and
Paternal Aunt “regarding an Act 101 Agreement. It is necessary that any Act
101 Agreement reached be incorporated into the Adoption proceedings.” Id.
at ¶ 10.


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“which simply reiterates the fact that the court will be moving forward on the

Adoption Petition filed by [Foster Parents].” Motion, 10/20/17, at ¶ 11. Foster

Parents further asserted that counsel for CYS and for Child, as well as the GAL,

were in agreement with the request. Id. at ¶ 12-14.

       By order dated and entered on November 9, 2017, the trial court

vacated the October 11, 2017 decree. The order scheduled a hearing on the

Foster Parents’ petition for adoption for purposes of finalizing the adoption.

The order expressly denied the petitions for adoption filed by Maternal

Grandfather and Paternal Aunt. Maternal Grandfather timely filed a notice of

appeal along with a concise statement of errors complained of on appeal.9 On

January 5, 2018, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

       On appeal, Maternal Grandfather raises the following issue for our

review:

       1.    Did the trial court err or abuse its discretion in denying
       Appellant an adoption hearing where Appellant had a long-
       standing relationship with [Child] from [Child’s] birth, where
       [Child] remembered Appellant and expressed a desire to have an
       ongoing relationship with Appellant, where Appellant diligently
       pursued and acquired both kinship care certification and foster
       care certification while [Child] was a dependent child for the sole
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9  We must determine sua sponte whether an appeal is taken from an
appealable order.      See Gunn v. Automobile Ins. Co. of Hartford,
Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009). “An appeal lies only from
a final order, unless permitted by rule or statute.” Stewart v. Foxworth, 65
A.3d 468, 471 (Pa. Super. 2013). Instantly, we deem this order final and
appealable. See In re K.D., supra (determining that order granting the
grandmother’s petition to adopt and permitting her to schedule an adoption
hearing within six months of the date of the order was final and appealable)
(citing In re Adoption of J.E.F., 864 A.2d 1207 (Pa. Super. 2004)).

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      purpose of becoming a placement resource for [Child], where
      [CYS] offered no evidence that Appellant was an improper
      placement resource, and where the delay of Appellant’s approval
      for both kinship care and foster care was due to the actions of
      [CYS][?]

Maternal Grandfather’s brief at 6 (unnecessary capitalization omitted).

      This Court reviews an adoption determination for an abuse of discretion.

In re K.D., supra at 151. We will not conclude that there is 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, 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).

      We have stated, “[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).

      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

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      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).

      Maternal Grandfather first argues on appeal that the trial court abused

its discretion in denying his petition for adoption because CYS had approved

him as a kinship and/or foster care resource three years in a row. We conclude

that this argument is without merit because, despite being approved as a

foster care resource, the record reveals that CYS determined it was not in

Child’s best interest to place him in kinship care with Maternal Grandfather.

      Amy Bass, the CYS assistant director, testified that CYS approved

Maternal Grandfather as a kinship/foster care resource on June 24, 2015, at

which time Child had been in placement for eighteen months. N.T., 9/29/17,

at 19.   However, CYS did not transfer custody of Child to him because,

approximately three months earlier, in March of 2015, the court directed CYS

to provide reasonable efforts to reunify Child with Father, and Maternal

Grandfather did not support the court-ordered reunification efforts. Id. at 19-

21. Ms. Bass explained that a foster care resource needs to “fully support” a

child’s placement goal. Id. at 21. She testified that, in contrast to Maternal

Grandfather, the Foster Parents did support the reunification effort with

Father. Id. at 22.




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        In addition, Ms. Bass testified that CYS did not place Child in kinship

care with Maternal Grandfather because Maternal Grandfather “had a very

close relationship with [Mother]. However, one of our concerns from the very

beginning of the case and continuing still to today is that his very close bond

and love for his daughter clouds his judgment such that we have concerns

about his protective capacities and his tendency to enable both of his

daughters, the one from which [sic] [Child] was placed . . . and [Mother].”

Id. Ms. Bass acknowledged on cross-examination that CYS’s primary concern

regarding Maternal Grandfather is that he has “denial issues with regard to

family members and drug abuse.”10 Id. at 46. On direct examination, she

further explained:

        Q: So when looking at an identified kinship resource, are all of
        these factors something that the agency considers in analyzing
        the best interest of the child?

        A: Yes. We have to know wherever that child is placed that they
        are aligned with the child, aligned with the agency, able to protect,
        able to whistle blow, able to identify problems and bring them


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10   Maternal Grandfather testified on direct examination:

        Q. [T]here’s been some discussion about [Child's maternal aunt]
        having an issue with drug use?

        A. I don't know anything about that.      I know she's on a lot of
        prescriptions.

Id. at 90. With respect to Mother, Maternal Grandfather acknowledged that
he supported her reunification with Child in the underlying dependency
matter. Id. at 98. He testified, “after a while I found out that [Mother] had
drug abuse.” Id. at 91.

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      forth, and we continue to have reservations as to [Maternal
      Grandfather]’s capacity to do that.

Id. at 22. Further, despite rejecting Maternal Grandfather as a kinship care

resource for Child, Ms. Bass testified CYS approved him three years in a row

as a foster care/kinship resource because “[h]e continued to ask to be

approved and he met the requirements.” Id. at 47. Based on the foregoing,

Maternal Grandfather’s assertion that the trial court abused its discretion in

denying his petition for adoption because CYS approved him as a foster care

resource for three consecutive years is without merit.

      Maternal Grandfather next argues that the trial court abused its

discretion because “Child has a long-standing close relationship and there is

no dispute that Child and Grandfather share a bond and love that remains

steadfast.”    Maternal Grandfather’s brief at 13.      We discern no abuse of

discretion.

      There is no dispute in the record that Child has a bond with Maternal

Grandfather.      During 2014, after CYS removed Child from Maternal

Grandfather and placed him with Foster Parents, Maternal Grandfather

participated in regular visits with Child on an alternating weekly basis, and

those visits went “very well.” N.T., 9/29/17, at 18. Foster Mother testified

that, in between visits, Child “spoke of [Maternal Grandfather] often,” who he

refers to as “Pop Pop.” Id. at 69. The court suspended Maternal Grandfather’s

visits, as well as Mother’s visits, in July of 2015, after Child began visiting with

Father and developed behavioral problems. Id. at 26-27. Child’s counselors

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supported eliminating “as many variables as possible to determine what was

contributing to this behavior. . . .” Id. at 26. Foster Mother testified that

Child expressed missing Maternal Grandfather and wanting to see him after

the visits ceased.11      Id. at 82.     She testified that she “absolutely” would

support an appropriate relationship between Child and Maternal Grandfather.

Id. at 82-83.

       Likewise, CYS supports an appropriate relationship between Child and

Maternal Grandfather. Ms. Bass testified on cross-examination:

       Q. So the concerns you have don’t necessarily, wouldn’t
       necessarily [a]ffect your opinion on whether or not [Child] should
       see his grandfather on some kind of regular basis?

       A. The concern that I would have would be whether that contact
       was unsupervised and the decisions he would make to allow
       [maternal aunt] or [Mother] to also have access. Other than that,
       [Maternal Grandfather] is very appropriate with [Child] and I
       believe that [Child] would benefit greatly from continuing contact
       with his grandfather.

Id. at 46-47.

       Despite the indisputable bond Child has with Maternal Grandfather, the

record reveals that Child’s parental bond is with Foster Parents. Foster Mother

testified that, for almost two years, Child refers to her and her husband as

“mom and dad.” Id. at 76. Foster Parents have adopted five other children

ranging in ages from twenty to five, and Child refers to them as his siblings.

Id. at 67, 76. Foster Father’s testimony was consistent with that of Foster
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11The record does not reveal if and when the court reinitiated Maternal
Grandfather’s visits with Child.


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Mother. Id. at 86. In response to a question on direct examination regarding

whether Child “has formed a significant and positive bond with [his] family,”

Foster Father testified, “Yes. This is home to him.” Id. at 87. Foster Mother

testified that, if removed from their home, “it would impact [Child] in a very

traumatic way and I don’t think he can handle it.” Id. at 76. Based on the

foregoing, we conclude there is no merit to Maternal Grandfather’s argument

that the court abused its discretion because of the bond that exists between

him and Child.

      To the extent that the court granted Foster Parents’ adoption petition

because Child has been in their care throughout this case, Maternal

Grandfather argues, “Placement of Child with Foster [P]arents, rather than

[with him], was the decision of [CYS] who were the sole cause of delays in

investigating Grandfather’s alleged criminal and abuse history. [CYS] had an

affirmative obligation to properly consider Grandfather [with] due diligence

rather than cause the very delays [CYS] then used against Grandfather as a

reason to deny placement.”       Maternal Grandfather’s brief at 13-14.   This

assertion is likewise without merit.

      Ms. Bass testified that Maternal Grandfather wanted to be a resource for

Child since the time of his placement and adjudication in 2014. N.T., 9/29/17,

at 16. With respect to the reason for the eighteen-month delay in approving

him as a foster care resource, she testified that CYS had difficulty obtaining

records from its sister agency in New Jersey, which was involved with the

family first. She testified as follows.

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       We had information from New Jersey that [Maternal Grandfather]
       had a history both criminally and with our counterpart, the
       Children and Youth Agency in New Jersey. . . . So throughout
       most of 2014, we struggled to be able to obtain records from our
       sister agency from New Jersey to preliminarily screen whether
       those records would eliminate him as a foster parent not.

Id.    Specifically, Ms. Bass acknowledged on redirect examination that the

New Jersey agency told CYS that Maternal Grandfather’s criminal charge

related to “possession of marijuana and conspiracy.” Id. at 64. In fact, she

testified that, on January 21, 2014, soon after Child’s placement, Maternal

Grandfather tested positive for marijuana.         Id. at 65.   Further, Ms. Bass

testified, “there were several times . . . between January and June of 2014[,]

that [Maternal Grandfather] was asked to screen [for drugs] and he told us

that he was unable to.”12 Id. In addition, she testified that the New Jersey

agency told CYS, “that he had a child-abuse record with them.”13 Id. at 64.

Further, the sister agency told CYS “that they would never support Child going

to his care.” Id.

       Ms. Bass testified that CYS “never fully and thoroughly received [the

records] so finally,” on a date she did not specify in her testimony, CYS



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12 On cross-examination by Maternal Grandfather’s counsel, Ms. Bass testified
that CYS ultimately learned that the criminal charge was from 1993, and that
it had been dismissed. N.T., 9/29/17, at 42.

13 Ms. Bass testified that the child abuse allegations arose in 1986 and 2004,
and they involved Maternal Grandfather and Mother. She testified that the
allegations were determined to be unfounded. Id. at 44.

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requested that a “home study” be conducted for the purpose of foster care

approval, “with the understanding that there may be automatic disqualifying

factors that we just have not been able to obtain yet.” Id. at 17-18. She

testified that, once Maternal Grandfather “successfully completed his home

study process with [CYS],” he received the certificate of approval as a foster

care resource.   Id. at 19.   Thus, the record demonstrates that CYS acted

reasonably during 2014 in requesting and waiting for the records involving

Maternal Grandfather from its sister agency in New Jersey. CYS then acted

reasonably in requesting the home study after the delay in obtaining the

records.

      Moreover, even if the eighteen-month delay in approval had not

occurred, there is nothing in the record to indicate that CYS would have made

Maternal Grandfather the kinship care provider of Child. As discussed above,

the evidence reveals it was not the delay in the approval process, but his

failure to support the court-ordered reunification efforts with Father, his close

relationship with Mother, and his denial during the underlying dependency

matter of her drug issues, that CYS based its decision not to make Maternal

Grandfather the kinship care provider of Child. Therefore, we reject Maternal

Grandfather’s argument.

      Upon review, the testimonial evidence supports the order granting the

adoption petition filed by Foster Parents and denying Maternal Grandfather’s

petition. Child was four years old when placed with Foster Parents. Foster


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Mother testified he “didn’t know his ABC’s. He didn’t know any songs. He

didn’t know his numbers. He didn’t know his colors and we were battling a lot

of medical issues.   He had 8 cavities upon entrance in care.       He also had

lesions all over his body, rashes, breathing issues.” N.T., 9/29/17, at 68. She

testified that Child presently does “extremely well” in school, and he has no

delays in any of his school subjects.     Id. at 77, 79.    She indicated he is

“advanced” in his school subjects. Id. at 79. With respect to his physical

health, she testified he is doing “very well.” Id. at 77. Finally, Foster Mother

testified that Child continues to receive counseling services, and his behavioral

issues “have substantially improved.” Id. at 74. Based on the totality of the

evidence, we conclude that the November 9, 2017 order is reasonable.

Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/18




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