In re Interest of K.D.

144 A.3d 145

2016 PA Super 162

In the Interest of K.D., a Minor.

Appeal of D.S. & L.S.

In the Interest of K.D., a Minor.

Appeal of Lackawanna County Office of Youth and Family Services.

Nos. 1975 MDA 2015

Superior Court of Pennsylvania.

Submitted Feb. 16, 2016.

Filed July 22, 2016.

Ronnie J. Fischer, Honesdale, for D.S. and L.S.

A. Leigh Redmon, Scranton, for Lackawanna County Office of Youth and Family.

Kurt T. Lynott, Dunmore, for E.D., appellee.

Kevin J. O'Hara, Carbondale, for Guardian Ad Litem, appellee.

BEFORE: MUNDY, DUBOW, and STRASSBURGER,^* JJ.

OPINION BY DUBOW, J.:

D.S. and L.S. (“Pre–Adoptive Parents”) and the Lackawanna County Office of Youth and Family (“the Agency”) appeal from the Decree that the Orphan's Court entered granting the Petition to Adopt K.D. (“Child”) that the Child's maternal grandmother, E.D. (“Grandmother”), filed pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101 –2910.¹ In granting Grandmother's petition, the Orphan's Court denied the Petition to Adopt that the Pre–Adoptive Parents filed.

After thorough review, we vacate the Decree granting Grandmother's adoption petition and remand to the Orphans' Court with instructions to grant the Petition to Adopt that Pre–Adoptive Parents filed. We do so because the Orphan's Court based its Decree solely on the Child's biological connection to Grandmother. The Orphans' Court ignored the undisputed evidence that the Child is traumatized by her visits with Grandmother and Grandmother consistently shows poor judgment when attempting to meet the Child's needs. Moreover, the Child is bonded to, and is thriving in the care of, Pre–Adoptive Parents. The Child, who is four years old, has lived with Pre–Adoptive Parents for most of her life. Therefore, it is in the Child's best interests for Pre–Adoptive Parents to adopt the Child.

Factual and Procedural History

The Child was born on December 14, 2011. On March 12, 2012, when she was almost three months old, the Lackawanna County Office of Youth and Family Services (“the Agency”) removed the Child from her mother because the Child, while in the mother's care, suffered severe chemical burns to her eyes as a result of someone putting an alkaline cleaning product in her eyes. The Child spent two weeks in Wills Eye Hospital. The Child is legally blind and remains medically fragile. She has undergone, and will continue to undergo, multiple eye surgeries for which extensive post-operative care is required, including multiple kinds of eye drops a day and various eye patches.

At the time of the injury, the Child was living with her mother, who was seventeen years old, and Grandmother. Following an investigation by the Agency, the Agency found that the injury was “non-accidental” and “indicated” both the mother and Grandmother as the perpetrators of the child abuse.

On May 12, 2012, the court adjudicated the Child dependent and placed the Child with a family member. The family member, however, found it too stressful to meet the Child's medical needs and deal with the mother. After two months, the family member asked the Agency to remove the Child from her care. The Agency then placed the Child with Pre–Adoptive Parents, who are trained to care for medically fragile children. The Child has remained with Pre–Adoptive Parents for the past three and a half years. Pre–Adoptive Parents have years of experience fostering medically fragile children and provide consistent and high quality medical care for the Child as well as a loving and caring home.

In 2014, the mother voluntarily relinquished her parental rights to the Child. The court then terminated the parental rights of the Child's father and changed the Child's permanency goal to adoption.

After the court terminated the mother's parental rights, the court ordered the Agency to provide Grandmother with a weekly two-hour, “line-of-sight” supervised visit.²

Grandmother appealed her child abuse “indicated” status, and the administrative agency eventually expunged the finding. Consequently, the Agency arranged for the Child to have longer line-of-sight supervised visits with Grandmother.³ Those visits occurred once a week and lasted four hours each. The Agency never recommended increasing the length of the visits because of the Agency's concerns expressed in visitation reports. N.T. at 98.

On March 6, 2015, Pre–Adoptive Parents filed a Report of Intention to Adopt the Child in accordance with 23 Pa.C.S. §§ 2530 and 2531(c), and attached a pre-adoptive investigation and home study. They then filed a Petition for Adoption on April 9, 2015.

On May 5, 2015, the Agency filed a Petition to Intervene, which the Orphans' Court granted. The Orphans' Court also continued an evidentiary hearing on Pre–Adoptive Parents' Adoption Petition, and directed that Grandmother be given notice of the petitions and the new date for the hearing on the Petition for Adoption of May 26, 2015.

On May 21, 2015, Grandmother filed a response to Pre–Adoptive Parents' Adoption Petition, as well a counterclaim Petition for Adoption. The Agency and Pre–Adoptive Parents filed preliminary objections asserting that Grandmother had not properly intervened and had not attached appropriate documentation to her counterclaim adoption petition. The trial court denied the preliminary objections.

On August 13, 2015, the Honorable Thomas Munley held an evidentiary hearing on both Petitions to Adopt. At the hearing, Pre–Adoptive Parents presented the testimony of Pre–Adoptive Mother, as well as that of present and former Agency caseworkers, Sharon Roginski, Stephanie Herne, Jane Leach, and Lisa Gruszewski, who worked closely with the Child and the parties, and an in-home nurse, Tammy Miller.⁴ Grandmother presented testimony from the relative with whom the Agency had initially placed the Child, as well as her own testimony.

At the end of the hearing, the Child's Guardian Ad Litem, Kevin O'Hara, Esq., testified that it was in the Child's best interest to remain in the Pre–Adoptive parents' home. The Orphans' Court requested briefs from the parties, articulating his analysis of this case as between the Pre–Adoptive Parents, to whom the Child is more attached than anybody, and the Grandmother who is a blood relative:

... [T]he [C]hild has been living with the [Pre–Adoptive Parents] for three years. And they're doing a great job raising this child. I'm sure at this point the child is more attached to the [Pre–Adoptive Parents] than anybody. But the point is [Grandmother] is a blood relative. So, this is what we have to decide, amongst other things. But that's a major issue here.

N.T. at 238.

On October 14, 2015, the Orphans' Court granted Grandmother's Petition to Adopt and entered a Decree stating that the Orphan's Court “accept[ed] the Petition filed by [Grandmother] in regard to [the Child], and will permit her to schedule an Adoption Hearing within six months of the date of this Decree [.]” Decree, 10/14/15. In addition, the court directed the Agency “to facilitate the transition of [the Child] from foster placement to placement with [Grandmother] as the child's adoptive resource.” Id. Both Pre–Adoptive Parents⁵ and the Agency filed timely appeals. The Orphans' Court did not require the parties to comply with Pa.R.A.P.1925(a).

Issues Raised on Appeal

Pre–Adoptive Parents raises the following issues:

1. Did the orphans' court err as a matter of law in denying [Pre–Adoptive Parents'] petition for adoption and accepting [Maternal Grandmother's] petition for adoption when the orphans' court did not engage in any analysis of [K.D.'s] best interests, did not consider [her] special medical needs or emotional needs, and issued a decision contrary to the evidence presented and the recommendations of the [A]gency, [K.D.'s] guardian ad litem and [K.D.'s] Court–Appointed Special Advocates?

2. Did the orphans' court err as a matter of law in overemphasizing [Maternal Grandmother's] status as a “blood relative” of [K.D.] by making it the controlling factor in its decision and in minimizing [Pre–Adoptive Parents'] relationship to [K.D.] by treating them as foster parents rather than preadoptive [sic] parents?

3. Did the orphans' court err as a matter of law in allowing [Maternal Grandmother] to participate in adoption proceedings and in accepting [her] petition for adoption over [Pre–Adoptive Parents'] petition for adoption when [Maternal Grandmother] was not granted leave of court to intervene in the adoption proceedings and did not secure the required consent of the [A]gency to her proposed adoption, and accordingly lacked standing to adopt [K.D.]?

4. Did the orphans' court err as a matter of law in failing to consider whether the statements in [Maternal Grandmother's] petition were true, whether the needs and welfare of [K.D.] will be promoted by [Maternal Grandmother's] adoption, and whether [she] met the requirements of the Adoption Act when Section 2902 of the Adoption Act requires a court to make these findings in permitting an adoption?

Pre–Adoptive Parents' Brief at 4–5.

The Agency raised the following issues:

1. Whether the Orphans' Court erred by allowing [E.D.] to participate in these adoption proceedings without a hearing or an order filed of record allowing intervention, by not dismissing the counter[-]petition [for] adoption, and by dismissing [Maternal Grandmother's] petition for adoption for failure to have the required attachments?

2. Whether the Orphans' Court erred by not performing a best interests of the child analysis and by not determining if the three requirements of 23 Pa.C.S.A. [§ ] 2902 were met?

3. Whether the Orphans' Court erred by not considering the concerns about [Maternal Grandmother] raised by the Agency and [K.D.'s court-appointed special advocates] including [Maternal Grandmother's] behavior during visits with [K.D.], difficulty in administering medication during visits, [K.D.'s] behavior following visits, and whether [K.D.] has a bond with [Maternal Grandmother], who has not moved past line of sight supervision?

4. Whether

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