J. A03044/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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