In re Interest of K.D.
| Decision Date | 22 July 2016 |
| Docket Number | Nos. 1975 MDA 2015,s. 1975 MDA 2015 |
| Citation | 2016 PA Super 162,144 A.3d 145 |
| Court | Pennsylvania Superior Court |
| Parties | 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. |
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.
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.
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)
.
Pre–Adoptive Parents raises the following issues:
Pre–Adoptive Parents' Brief at 4–5.
The Agency raised the following issues:
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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