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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

Protecting Health Information in the Context of Divorce Proceedings and Domestic Relations

Posted in Divorce

My colleagues Michael Kline and Elizabeth Litten recently co-wrote a series of blog posts for the firm’s HIPAA, HITECH and HIT blog containing valuable information for individuals either undergoing divorce proceedings or navigating other domestic relations issues.

In their series, Michael and Elizabeth explore complex issues arising from the November 2014 ruling by the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, P.C. The case has significant implications for individual health information (“IHI”) privacy in the context of domestic relations – both in the divorce or legal separation context and even in a less confrontational domestic environment.  While settlement agreements and divorce decrees often address healthcare and health insurance issues, especially where there are custodial children involved, addressing IHI issues is much less common. Michael and Elizabeth also discuss practical tips for individuals dealing with situations involving their domestic relationships.

I invite you to read all three parts of their series. Here are Part I, Part II and Part III.

THE FORGOTTEN TAX DEDUCTIONS

Posted in Alimony, Divorce, Equitable Distribution, Practice Issues

The general rule is that personal expenses are almost never deductible by taxpayers on Schedule “A” (Itemized Deductions) of their personal returns.  But all rules have exceptions and almost everyone is familiar with the deductions available for medical and dental expenses.  These are great deductions but with this hitch.  You only get to deduct the amount that exceeds 7.5% of Adjusted Gross Income.  Thus, it takes some pretty catastrophic medical expenses to get past the threshold.

But there are two lesser known deductions that merit some attention.  Under Section 212(1) of the Internal Revenue Code, a taxpayer may deduct expenses directly attributable to the production or collection of income that is taxable.  Spousal support and alimony is taxable income and both the Tax Court and the Internal Revenue Service agree that counsel fees attributable to the determination and collection of spousal support and alimony are proper deductions under Section 212.  This includes proceedings to collect arrearages (overdue amounts) and to increase alimony payments.  The deductions apply only to the payee.  The payor does not qualify for a similar deduction in defending these claims.

The fees must be reasonable for the goal sought.  Thus a $10,000 deduction to secure a $9,000 increase may be subject to challenge.  The deductions for legal fees are also limited to those greater than 2% of adjusted gross income.  Thus if an otherwise unemployed spouse incurred $10,000 in fees to secure an award of $3,000 a month in alimony, her adjusted gross income of $36,000 per year means that the first $720 (2%) of counsel fees are not deductible.  The deduction is taken on Schedule “A” under “Job Expenses and Certain Miscellaneous Deductions” (lines 21-27 for 2014).

The second and more nebulous area where deductions may be taken is for “Tax Advice.”  Section 212 (2) of the Internal Revenue Code allows deductions for “the management, conservation or maintenance of property held for the production of income.”  This is a far trickier deduction as there are no Treasury Department regulations directly addressing it.  The regulations under Section 212(1) inform us that investment management fees and custodian fees associated with investments are deductible.  The same costs for a personal residence are not. Expenses of estate litigation are afforded deductibility even though not directly related to production of income.  Expenses incurred in asserting rights to property are non-deductible.  But if the property produces income and the claim is related to collection of a portion of it, that “income” portion is deductible.  Expenses associated with preparing tax returns are deductible but again the deduction is for expenses beyond 2% of Adjusted Gross Income.  The general view (not found in the regulations) is that “tax advice” secured for purposes of managing one’s investments is deductible and many divorce practitioners sometimes freely “allocate” a substantial portion of their invoice to “tax advice” to help a client out.  But, this is a slippery slope for both the adviser and the tax payer because unlike the alimony deduction, there is no real means to measure what is reasonable and what is not and to a large degree, the assets being allocated in the divorce are not income producing.

PROPOSED NEW LAW CLOSES CUSTODY LOOPHOLE FOR CHILDREN CONCEIVED BY RAPE

Posted in Child Abuse, Custody

Pennsylvania’s child custody code requires the submission of a criminal record and abuse history affidavit which is designed to identify whether a party to a custody action or a member of their household has been accused or convicted of a criminal offense. The crimes are almost all violent crimes or crimes of a sexual nature such as rape, luring, exploitation and other offenses. Obviously, the existence of these crimes in a parent’s background can have a significant effect on their custodial situation.

A loophole, however, existed which will hopefully be put to an end by a bill introduced in the Pennsylvania state house and senate designed to prevent a rapist from ever seeking custody of the child conceived from a rape. While it may seem inconceivable that a rapist could ever obtain custody of a child, the fact remains that under the black letter of the law, the rapist would have both a support obligation and standing to seek custody of the child they fathered.

The affect such litigation would have on the victim must be devastating and no woman should have to endure confronting their rapists in family court, let alone work out custodial exchange times. So while the child custody code may be able to use the criminal record affidavit to help justify precluding the rapist from having custody, nothing presently exists which precludes him from bringing the action and dragging his victim to court.

The Rape Survivor Child Custody and Support Act is being introduced by State Senator Randy Vulakovich (R-Allegheny) and Representative Joe Hackett (R-Delaware).  The new law would allow for the termination of the rapists parental rights, but preserve the obligation to pay support. Under the current law, the only way to sever a rapist’s parental rights would be through the adoption of the child. Doing so, however, would also alleviate any support obligation by the rapist.

As quoted by Kaye Burnet of Pittsburgh’s National Public Radio, Kristin Houser of Pennsylvania Coalition Against Rape admits that the number of women effected by this law may be small, but it is nevertheless a worthwhile and necessary piece of legislation: “[this] isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania, but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

AN HOUR ON THE TEENAGE BRAIN

Posted in Custody, Divorce, Practice Issues

The January 28 edition of Terry Gross’ Fresh Air distributed by National Public Radio featured an interview with the chair of the University of Pennsylvania Neurology Department, Frances Jensen.  The subject was a relatively in depth discussion of the teenage brain. At one level a lot of this is news that has been available. The front of the brain, where judgment is processed, is a part that does not really fully develop until an adult enters his or her early 20s. But Jensen’s interview reveals more than the sound bites that we have become used to accepting as substantive information. I listened to the interview while driving so that I cannot profess to have absorbed this accurately but here were some of the information I was able to absorb.

High levels of stress inflicted on teenagers can contribute to depression that can afflict them throughout adulthood.

High rates of teenage suicide correlate to the fact that teenagers can’t really evaluate what suicide means.

The marijuana of today is far more effective than that of olden times and teenage brain receptors for this substance physically absorb more of its most dangerous components than the brains of fully formed adults. In other words, the stuff is more dangerous and the teenager is more vulnerable.  Kids who smoke these drugs on weekends have cognitive impairment that goes on for days after the “smoke” was ingested.

In addition to the fact that they have not formed the ability to process risk in the same way as a fully matured adult, teenagers can often lack the brain processing power to experience and express empathy for another’s loss or sadness. So that’s why your kid seemed ambivalent about your auto accident or the death of grandma.

The interview with Dr. Jensen also revealed some things about us. Yes, we are struggling to keep up in a world where technology can now carpet bomb our brains with information. The studies she has examined show that our ability to juggle multiple tasks apexes in our mid to late 30s. The editor of this blog is in his late 30s and as a former editor I am resigned to employing old age and treachery to overcome his youth and skill.

The interview is well worth the time if you have a child in the nightmare years. It might be well worthwhile to listen to with that child. As most of us know, teenagers think they know everything anyway so perhaps even if they don’t credit their parents, they might give some deference to a professor of neurology.

EVIDENCE OF MISTAKEN IDENTITY REVERSES SUPPORT ORDER

Posted in Support

Enforcing out of state support orders is controlled by the Interstate Family Support Act (23 Pa.C.S.A. § 8101 et al.  It may seem like the most obvious of steps, but imperative in successfully obtaining and enforcing a support order is correctly identifying the individual subject to the support order. Such was the case in Worley v. Effler in which a fourteen year old North Carolina child support order was registered in Centre County, Pennsylvania for the purposes of enforcement.

The matter was heard by the Superior Court on the basis that the trial court did not adequately allow the purported payor to present evidence demonstrating that she was not, in fact, the individual against whom the order was entered. Mistaken identity is not something that happens merely in movies or on television. Here, Kelly Richards Webster, also known as Kelly Lynn Effler, found herself subject to $24,309 in unpaid child support based on the North Carolina support order.

At the trial level, having immediately requesting a hearing to contest the entry of the support order against her, Webster was barred from presenting evidence that she was not the person named in the order. The trial court believed it was obligated to give the North Carolina support order full faith and credit and the trial court is not wrong on that position.  However, by entering the order without allowing Webster to present evidence contesting her identification as the payor was deemed an abuse of discretion by the Superior Court. Webster is to be afforded the opportunity to demonstrate that North Carolina does not have personal jurisdiction over her to make the underlying order valid against her.

This case offers an interesting analysis of the rules governing the validity and enforcement of foreign orders, but it also prompts one to consider how Worley and/or North Carolina concluded that Webster was the payor. The North Carolina order appears to have laid dormant from an enforcement standpoint for over a decade. Either the payee or the North Carolina domestic relations unit (or both) did not find the arrears to be important enough to enforce the order earlier. I would surmise that at some point the over $20,000.00 arrearage caught someone’s attention and a public records search was made based on names, age range, and other information to track down the payor. Webster was caught in that net. Absent more conclusive information, Worley/North Carolina may have reasonably believed that Kelly Webster of Centre County was their delinquent payor.  Unfortunately for them, they were wrong and a deadbeat parent continues to avoid her child support obligation.

IT TURNS OUT THE STATUTE OF LIMITATIONS DOES AFFECT DIVORCE AGREEMENTS.

Posted in Divorce, Practice Issues, Support

A panel decision of the Pennsylvania Superior Court on December 23, 2014 informs us that despite recent decisions refusing statute of limitation defenses in actions to enforce property settlement agreements, the defense still lives.  It comes down to the nature of the obligation for which enforcement is sought.

We start with the older cases.  In a 2006 decision Crispo v. Crispo,  909 A.2d 308 (Pa. Super, 2006) the parties concluded their property agreement in 1995.  In 2004 Wife sued to enforce the agreement and after a hearing at which Husband asserted the statute of limitations as a defense held him in contempt subject to purge upon obtaining life insurance in the amount of $300,000.00 paying a Sears charge in the amount of $2,048.49 and a MasterCard bill in the amount of $4,662.76 plus the sum of $22,500 to Appellee.  The agreement had called upon husband to maintain the life insurance until his children reached 22 and to pay off Wife’s credit card debt.  It also required him to pay the $22,500 for his interest in a business he owned.  Under the terms of the agreement the lump sum was due in 1997.  He appealed stating that the credit card and cash payment provisions were beyond the four year statute of limitations.

In Crispo, the Superior Court held that these were continuing obligations and therefore not subject to the statute of limitations.  The authority cited for this proposition was a Monroe County Common Pleas case.  Jenkins v. Jenkins, 2004 WL 3406186 (Pa.Com.Pl. Oct. 25, 2004), 71 Pa. D. & C. 4th 205.  According to the case decided on by the Superior Court on December 23, 2014 if an agreement does not contain a specific deadline, the contract is continuing. K.A.R. v. T.G.L. 2014 Pa. Super. 285.

In 2009, the Superior Court decided Miller v. Miller, 983 A.2d 736 (Pa. Super. 2009).  That was an agreement to continue to pay mortgage payments associated with a marital residence.  In November, 2005, Wife sued to recover payments she made because Husband had not.  He asserted that statute of limitations with respect to any amounts due for more than four years. Again, the Superior Court held this was a continuing contract because there was no deadline for payments nor was the amount specified.

Last month’s ruling has a decidedly different flavor.  Husband and wife formed an agreement in August, 2003 related to payment to Wife of certain sums defined by formula if and when Husband’s stock or warrants in his business were sold.  In March, 2011 Wife sued to enforce the agreement alleging that Husband sold a portion of the stock in January, 2004.  In 2004 and 2005 husband did make payments to Wife of $450,000 for her business interest but he retained part of the business and morphed it twice before selling it without additional compensation to her. Husband answered that she was beyond the statute of limitations on the 2004 transaction and that the portion of the business that she claimed he retained in the 2004 sale was “completely distinct.”

As one might expect from reading this far, Wife asserted this was a continuing contract.  She cited Crispo and Miller.

The trial court found that husband sold all of his stock in the business in January 2004.  Thus, that was the date Wife was entitled to her payments.  It turned out that in addition to the sales piece of the transaction husband received something the court deemed a “stay” bonus for remaining with the acquiring purchaser of his business.  So this contract that called for a fixed payment in January, 2004 and the statute ran in January 2008 per 42 Pa.C.S. 5528(a)(8).  Wife argued that she had stayed the statute by filing a writ of summons in 2005.  Apparently this was done because she was already unhappy with the payments she had received.  The Superior Court held that filing a civil action does not preserve claims brought under 23 Pa.C.S. 3105 to enforce agreements.  She argued that she did not discover the claim until she secured copies of tax returns filed in 2011 and 2012.  The response of the court is that husband did provide closing binders for the 2004 sale within a year of the transaction and that even back then she was asserting in writing that she was still due money.  The Superior Court opined that for purposes of the discovery rule the statute would have run from the date the closing binders were delivered, a date one year after the sales transaction.  Wife’s argument that they were negotiating during this time was dismissed under the well established principle that negotiations do not stay a statute of limitation.

The Court held that this was not a continuing contract and said this case is distinguishable from Crispo and Miller.

At one level, this writer is happy to see the statute of limitations brought back to a field where we are told time and again that contract law governs.  But, this ruling does not really reconcile with either Crispo or Miller.  In this case, the Superior Court cites Crispo for the proposition that even in the case of continuing contracts, “the statute of limitations will run either from the time the breach occurs or when the contract is terminated.”  It further states that a continuing contract is one with no definite time for payment or where there are several separate contracts.”

So let’s get the chains out and measure these cases.  In Crispo, the parties divided their credit card debt and each agreed to pay some.  Husband did not pay.  Wife knew that Husband didn’t pay as the opinion states that she began making the payments he had due under the agreement on his behalf.  So, clearly he defaulted and just as clearly, she knew it.  Using what I will call the Crispo standard, the breach occurred for statute of limitation purposes the moment she knew that he had not paid.  As for the $22,500 amount to be paid for the business interest it was to be deferred to 2001 unless Husband filed a petition to modify support in which case the payment was due on filing of the modification.  Again the opinion states that in 1997 Husband decided to seek modification of support.  Under the contract this made the $22,500 due immediately.  Her enforcement claim was filed in 2004, seven years after the default.  Despite what the opinion says, these are not continuing obligations.  They are clear defaults known to the innocent party.

Miller is much the same.  Per the contract, Husband was to pay the mortgage.  He did not.  Wife knew this because she began paying the mortgage herself.  So we have a breach and it is known to the innocent party.  The argument that there was no deadline for the payments just doesn’t hold water.  Promissory notes associated with mortgages are pretty clear about what is required and when.

There are facts buried in the K.A.R. opinion from which one gets the impression that the Plaintiff did not get a fair shake from her settlement agreement.  But, the facts are equally clear that she knew her spouse had sold the business because she got $450,000 in payments and a settlement binder from the transaction within twelve months of the closing on the business sale.  The facts also show that she was not happy about the amount she got and was vocal about it.  So imposition of the four year statute of limitations made perfect sense.  But, it would have made perfect sense in Crispo and Miller as well.  It just didn’t turn out that way.

Viva la K.A.R.  If property settlement agreements in divorce are contracts, it would seem that the laws affecting contracts, including statutes of limitation, should be invoked as well.

 

THE COMPLEXITIES OF VALUING SMALL BUSINESSES

Posted in Divorce, Equitable Distribution, Practice Issues

We have recently been working with a client married to a “sophisticated investor.”  When we cracked open the documents telling us what Mr. Investor owned, we found a succession of limited partnerships not one of which offered us any information from which we could begin in ascertain value.

Meanwhile, there were eight of these and one formed the impression at the outset that the investments were heavily weighted towards newly formed businesses.  

Valuing any closely held business is a challenge.  The typical approaches employed to do this involve measuring the stream of income or cash flow and efforts to find a comparable company that has recently sold.  The trouble with startup companies is that they rarely have strong financials.  It is not uncommon to engage a business appraiser to have that person come back and report that while they can see value from an intuitive viewpoint, the objective criteria needed to opine about value in an objective report is simply not there.  

Occasionally, the stock market affords us a demonstration of this conundrum and the recent transaction involving Merck’s acquisition of tiny Cubist Pharmaceuticals is a good example.  Cubist was formed in 1992.  It has fewer than 1,000 employees but it has been publically traded at a price that did not crack the $25 mark until 2010.  Startup pharmaceutical companies can be a roller-coaster as good and bad news circulates about the products they are trying to develop.  Moreover, it costs millions if not billions to bring a meaningful drug to market and that investment is typically a multi-year journey.  However, Cubist rose in price on a pretty steady basis until early 2014 when it reached $75 a share.  In 2014, after peaking early, it tumbled back toward $60 and then clawed up to $75 a share.  

In today’s world pharmaceutical companies trade at about 40x earnings.  As December approached Cubist was trading at 87x earnings, more than double the industry average.  It’s profit margin was 5.6%. Operating margin was 9.5%.  Return on assets was 2.3%.  Return on equity 4.47%.  On these numbers one could argue that the market had it a little overpriced. 

Then Merck stepped in offering to buy the company for $8.4 billion; roughly $110 a share.  That’s just about one-third more than the market thought it was worth the day before.  But then, on the very evening when the sale was announced, a court in Delaware issued a ruling that challenged one of Cubist’s patents.  Cubists shares instantly fell 4% and Merck’s shares fell 5%. 

Cubist’s largest individual shareholder holds 176,000 shares.  He saw this transaction coming as he is the CEO.  Let’s assume he was dividing his property with a spouse.  Last Friday his spouse would have been negotiating over shares with a market value of $13,200,000.  On Monday those same shares were worth $19,360,000.  A day later; $2,640,000 less.   If you were being divorced from the shareholder and made your deal on December 5, you would have had no idea that the following Monday would see the shares worth an additional six million.  But then who could predict both a court ruling on Tuesday and just how the market would react.  The experts are saying Merck overpaid by $2 billion. 

The point of this is that we all like certainty when valuing assets.  But even it situations where the stock is publically traded, the tides of the market can change precipitously.  The problem is all the more difficult the smaller the business involved because small companies, like small boats, are less seaworthy in changing economic climates.

SUPERIOR COURT AFFIRMS THAT MASTER’S RECOMMENDATION IS STILL JUST A RECOMMENDATION

Posted in Custody, Equitable Distribution, Practice Issues

The process of equitable distribution is multi-stage, often involving one or more conferences with a “master” specifically assigned to the case and who is an expert in equitable distribution. The master develops a recommendation which can be accepted by the parties; negotiated further, or; rejected outright by one or both parties who take exception to it and move the matter to an equitable distribution trial before a judge. The recommendation is just that – a recommended outcome – and while the master’s recommendations often closely mirror the outcome determined by the judge, they are not dispositive and they are not binding once the parties go before a judge.

Due to the propensity for the trial court to seemingly adopt the master’s determination, litigants can get confused as to the weight afforded the recommendation by the trial court or fail to understand that the trial court has no obligation to incorporate in part or in whole the recommendation. It is against this reality that the Superior Court recently issued a non-precedential (i.e., it cannot be cited as law) opinion highlighting the trial court’s ability to fashion an outcome dissimilar from the master’s recommendation.

The case, Waterstone v. Waterstone, Memorandum Decision, No. 444 MDA 2014 (Pa.Super. November 13, 2014), involves the trial court’s decision to deviate from the master’s recommendation on the allocation of marital debt. Wife received 60% of the marital estate and while the master allocated only 20% of the marital debt to Wife, the trial court – recognizing the disproportionate amount of the assets awarded to Wife – decided to allocate 40% of the debt to Wife. Wife’s arguments for a greater portion of the debt going to Husband are persuasive – she alleges that the bulk of the debt was due to gambling and repairs made to automobiles that he was keeping. Nevertheless, the trial court declined to consider the manner in which the debt was accumulated; it cited the well-settled law that since the debt was accumulated during the marriage it is subject to equitable distribution.

Wife’s reliance on the master’s recommendation was misplaced. Though both the master and the judge were considering the same equitable distribution factors, the judge is ultimately making findings of facts and conclusions of law. The trial court judge may make, in his/her discretion, determinations on credibility and evidentiary determinations. What may have persuaded a master at the equitable distribution conference may not have been admitted into evidence at trial.

Though it is unstated, the master’s hearing may well have been a non-record hearing; meaning there was no transcript taken establishing evidence on the record which could be relied upon at the trial level. Absent that record, the trial court would have been the opportunity to place on the record all of the essential facts for the trial court to consider. The trial court, affirmed by the Superior Court, made their own independent decision on the distribution of the assets and liabilities and Wife lost her appeal.

HAPPY NEW YEAR – LET’S TALK SUMMER VACATION

Posted in Custody, Divorce, Practice Issues, Support
6089394-happy-new-year-with-calendar-highlighting-december-31st

Copyright: 123RF Stock Photo

Discussing “how to survive the holidays” during the holidays is a pretty standard article for people to write. For many clients, such articles allow for self-reflection on how they approach the holidays and their interaction with their ex-spouse; or it helps build some confidence that they will manage the uncomfortable situations which arise around extended family. The problem is, if you are a client looking for advice on how to deal with holiday-related legal issues during the holidays, it is already too late to do anything. Due to scheduling constraints, attorney or client availability, negotiations and conferences, dealing with, for example, a Christmas issue should really begin in September or October.

Consequently, now that the winter holidays are nearly behind us, the next major source of friction for many people is how they are going to handle their kids’ summer vacations and educational decisions. Which camp? How many camps? When will you take vacation? Where is the vacation and who will be there? Who will be covering the kids? Who gets priority on choosing vacation weeks? Should there be a change in schools or extracurricular activities?

Addressing any or all of these questions cannot first occur in May. The earlier they can be addressed the greater the probability they will be worked out between the parties or, failing that, allow for enough time to take the issue to Court and have a decision rendered. Do not wait too long – the court will not consider a summer issue an “emergency” and allow for an expedited hearing simply because there is little time between when the disagreement occurred and when a decision must be made. You may find that petition slotted into the non-emergency hearing list and the ultimate decision affecting your 2016 summer instead of 2015.

Many family law attorneys notice a bump in their cases right after the holidays. People often wait to address issues until they have made it through this time of year and have the time and space away from friends and family to deal with a deeply personal issue such as divorce, or address a potentially contentious custodial issue. Having survived the holidays, or perhaps as a result of what happened over the holidays, they need to discuss their options or pursue an action. It is also a good time to take stock of what may come up in the near future.

This time of year is ideal for looking at the next six months in order to alleviate some of the stress and concern they may have about summer vacations or child care coverage when the kids are out of school. If you think that there may be a legal or logistical issue over the summer or following school year, it is worth the call to your attorney to review your custody order or the applicable agreement and see whether you need to address your concern sooner rather than later. You may save yourself significant amounts of money, aggravation, and disappointment.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

BEST INTERESTS OF CHILDREN OUTWEIGH PARENTS EFFORTS AT REUNIFICATION

Posted in Adoption, Child Abuse, Custody
Copyright: 123RF Stock Photo

Copyright: 123RF Stock Photo

We’ve written about the process of terminating a parent’s custodial rights to their child an different cases presenting unique and unusual circumstances. In some instances, the process is almost rote due to parental ambivalence to the situation; the parent has made no real effort to be a parent to the child and allows the process of termination and adoption by a step-parent or third party to move forward unimpeded.

There are other times when a parent fights the termination and desperately tries to retain their custodial rights under any number of challenging and difficult circumstances. There may be legitimate justifications for the termination, or there may be zealous advocates unwilling to give a parent a chance to reassert themselves in the parental role. The decision is made based on the child’s best interests and appealing the trial court’s decision to terminate parental rights is difficult due to the deference to the trial court’s discretion and determinations of credibility.

A recent Pennsylvania case, however, highlights that despite the best efforts of the parents, the Court, Children and Youth Services, and other members of the support system, it is still in the best interests of a child to terminate the parents’ rights. Such is the case of In the interest of: M.T. et. al., 2014 Pa.Super. 223.

This case involves parents who consented to the removal of their two young children. Abuse and neglect had occurred resulting in significant injuries the kids. The parents acquiesced to the removal of the children and to undertake a structured reunification plan. Unfortunately, this couple simply could not get themselves sufficiently together – even allowing for being intellectually deficient – despite what appears to be an understanding by those agencies and third parties involved that they were making efforts to follow the plan.

The appeal is derived from the trial court’s decision to change the case goal for the children from reunification with their biological parents to placement and adoption by third parties. The parents appealed the decision to change the goal on the basis that it was improperly modified and that they had met all the requirements of the unification. They argued that there was insufficient evidence to show the children’s best interests were met by terminating their parental rights.

The Superior Court was unable to re-weigh the evidence and had to accept the trial court’s decision as to the credibility of witnesses. The trial court offered a well-reasoned and well-support justification for the goal change, including, the county agency’s demonstration that the conditions requiring the children’s placement persisted in the household, as well as a lack of acknowledgment that abuse occurred, and reliance on the grandparents (who perpetrated some of the abuse) for support.

In short, despite the combined efforts of the service providers, seventeen months had passed and the parents were unable to complete their reunification plan. At that point, it was in the children’s best interests to change the goal from reunification to adoption.

Unlike other situations, the biological parents had contact with the children – they would not have their rights terminated using the six month threshold for contact with the children. Instead, the trial court relied upon the testimony and evidence from the county agency and others to determine that despite being actively in a reunification plan that the children’s interests were best served by terminating that plan and moving the children toward adoption. Though they were bonded with their parents, the termination and adoption of the children by others served their interests more than to continue to hope that the parents would break through and fulfill the reunification requirements.

This is not to say the parents are sympathetic figures – the physical abuse the children experienced is horrible and included broken bones and burns. What this case highlights is that even those people working within the process of reunification will continue to be viewed against the standard of the children’s best interests and that those interests can run contrary to the desires, efforts, and wishes of the parents. Revising the plan goals and pursuing termination was firmly rooted in examining the efforts and progress of the parents over seventeen months and determining that the children’s best interests were served by ending the reunification process and allowing the children to move forward with adopted parents who offered the safety and stability they need to thrive.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.