This week we see a new case from a trial court on Long Island, which held that folks who adopt an open marriage that produces children might find the custody courtroom doors open when parts of the relationship have closed.

Follow along carefully. It is a bit more “complicated” than you might expect. Dawn and Michael Marano are married in 1994. In 2001, they form an intimate relationship with a neighbor Audria Garcia. The Michael/Audria relationship (yes, the extramarital one) yields a child in 2007. It appears that back in 2007 there was a common agreement among the three partners that they would raise the child together.

You can predict what happens next. Dawn files for divorce and seeks custodial rights to the child. Michael responds she has no rights because she is not a biological parent. Meanwhile, Michael and Audria are not getting along either. The Trial Court, looking at a growing body of precedent coming from the gay community where it is fairly common for one “parent” to lack a biological nexus to the child, decided that natural mother would have primary custody. Father would have weekends and Father’s wife would have weekly dinners and some summer vacation. The Court found that the child did have a relationship with all three adult parties.

The press coverage of this decision has been extensive. New York Magazine, Glamour, Cosmopolitan, Slate. The women are content with the ruling. Father professes that he will appeal. One can only imagine the trauma to a ten-year-old child innocently caught in this maelstrom of parental conflict and swirling publicity. On the adult side there appears to have been a “contract” whether written or not to raise the child communally. But suppose Michael and Audria expelled Dawn from the compact and admitted another man or woman as a substitute? If that subsequent relationship disintegrated, does the most recent exile from the “pact” have standing to request custody time as well? Is there a limit to how many contestants a custody dispute can have? And so long as I am asking questions; is there a time when the confusion associated with this litigation can be deemed to outweigh the merits of fostering and then judicially monitoring multiple relationships surrounding the same child? This may be the rantings of a curmudgeon. But thirty years ago, the mere existence of one extramarital relationship could cost a parent dearly in terms of custodial rights. And while the current crop of rulings on who can seek an award of physical time with a child seem to portend greater expansion of parental rights, I wonder whether children will ultimately pay the price emotionally because the greater the number of constituent parents, the greater the opportunity for conflict that undermines stability in a child’s life.

Some might argue: “We can just ask the child…” That is true but 10 year olds are not very adept at evaluating conflict. Moreover, they do not like to say no to anyone offering love and affection. One of the principles deemed most important in determining whether to award joint custody is the ability to cooperate. This author suggests that there should be a heavy presumption that two parents are enough and that if there is a strong sense that a third parent can and will cooperate to promote stability only then should a door be opened to admit a third party. Dawn might well be the best parent of the three but Michael and Audria enter the custody ring with constitutional rights. Those rights were judicially recognized long before Dawn stood back while her husband and another woman conceived and gave birth to a child. Yes, there are cultures including Native American ones where children were considered the property of the village and not the parents. But American culture is not wired that way and childhood is confusing enough without having three or more contestants battling out your best interests while you sit in the back of the courtroom wondering what a person dressed in a robe will decide is best for you.

Dawn M. v. Michael M., 00109/2011, N.Y. Supreme (Suffolk County)

Last Fall brought us a decision from the Supreme Court of Pennsylvania holding that a grandparent did not have standing to terminate a Father’s parental rights incident to an adoption. Last week brought us a Superior Court case in which the appeal comes from a Mother and her own Father in a custody case involving a 12-year-old child.

Mother had a girlfriend. To show the seriousness of their commitment, Mother and Girlfriend decided they would adopt each other’s children. The family remained intact for 13 years until April, 2011. A few months after the split, Girlfriend filed to obtain sole legal and physical custody of her natural child (a son) and primary physical custody of Mother’s child, a daughter. Mother counterclaimed for primary custody of both children.

After some initial skirmishes in the Montgomery County courts, a consent order was formed in August, 2012. Each parent would keep primary custody of her natural child. Problems began to arise between Mother and her adopted son and a parent coordinator was appointed who thought psychiatric and psychological support was necessary. In addition, a custody evaluation was ordered at the instigation of the parent coordinator.

Matters boiled over and on May 27, 2013, Mother shot Girlfriend in the presence of both minor children. Mother was charged with attempted homicide and endangering the welfare of the children. She was sentenced to a lengthy prison term exceeding 20 years. Mother was prohibited from communicating with her adopted son and from discussing the incident with her own natural child. Mother’s assertion to this day is that she acted in self-defense.

Once the shooting took place, Girlfriend (who had been shot by Mother) filed an abuse action and emergency custody petition. Mother’s own Father (Grandfather) filed a petition to intervene, requesting that he have custody of his granddaughter, the natural child of Mother. His allegation was that Girlfriend was tolerating physical abuse of the 11-year-old girl by her adoptive brother. Girlfriend, having recovered from the gunshot, asserted that the allegations were false and that Grandfather had no standing. Grandfather amended his petition in the wake of the objections to allege other incidents of abuse and to assert a right to custody under 23 Pa.C.S. 5325(2). Ironically, that ground as a basis for custody was declared unconstitutional by the Supreme Court while this appeal was pending. See. D.P. v. G.J.P. 146 A.3d 204 (Pa. 2016). The Superior Court notes that Girlfriend did not preserve the standing issue at trial so that it could not be asserted on this appeal. Judge Strassburger dissents on the standing issue but let’s keep our story on track.

Eight days after the shooting, the Trial Court entered an Order granting custody of the daughter to the Grandfather. (Mother’s father). A local attorney was appointed as child advocate and it was ordered that only the advocate could discuss the incident where the girl witnessed his natural mother shoot her adoptive parent.

A two-day custody trial followed. As the Superior Court notes, Grandfather needed to show an unaddressed risk of harm to have standing under 23 Pa.C.S. 5324. The Trial Court concluded that the risk was not sufficient to afford Grandfather the standing to seek custody he had filed to obtain. Accordingly, it granted the Girlfriend’s preliminary objection and therefore, concluded that the best interest analysis set forth in 23 Pa.C.S. 5328(a) was superfluous.

While all of this was awaiting trial, there was no interim custody order. The Trial Court instructed the attorneys and the child advocate to craft some form of physical contact. After two visits totaling 36 hours, the child advocate suspended Grandfather’s access because her directives were not being followed. Shortly after this occurred Girlfriend filed for sole legal and physical custody of both children. Another hearing was held, and in October, 2014 (17 months after the shooting) Girlfriend was awarded sole physical custody of both children. Mother was to have legal custody on a “cause shown” basis if she disagreed with Girlfriend’s legal decisions. All communication between Mother and daughter were to be reviewed and edited by the child advocate.

Grandfather did not appeal but filed another petition to modify which appears to complain about his absence of access. He was afforded another hearing where he expressed concern that the son was physically dangerous to the daughter in Girlfriend’s care. Mother also filed a request for phone contact with her daughter from prison. In August 2015, both requests were denied following another hearing. Postal contact was permitted by Mother subject to control by the child advocate.

Mother and Grandfather appealed. Mother asserted there were constitutional issues at stake as she had a fundamental right to parent. While the Superior Court found her constitutional argument to be fragmented, it did find that Mother’s claims of innocence in the shooting incident should not, alone, prevent contact between parent and child. The standard found in the statute is one of whether there is a “threat” from contact. 23 Pa.C.S. 5329(a) and (d). The Superior Court found that the Trial Court had not devoted enough energy to analysis of what it terms “prison visits” under Etter v.Rose 684 A.2d 1092,1093 (Pa.Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011).

A second source of controversy was the level of authority afforded the child advocate. The Appellate Court characterized the advocates regulation of contact between Mother and daughter as “overreach[ing]” and “micromanaged.” The Court concludes that this level of delegation, including the management of all communication between parent and child as improper. The Court notes that the title of “advocate” is not defined and cannot be equated with that of guardian ad litem. The term advocate is found in 42 Pa.C.S. 5983 and relates to involvement of children in the criminal law system as either victims or material witnesses. The advocate is described by the opinion as a holistic approach in contrast to the specific missions of guardian ad litem under 23 Pa.C.S. 5334 or attorney for the child under 23 Pa.C.S. 5335. The Court notes that from the record it appeared that the advocate acted at times as legal counsel and, at other times more akin to guardian ad litem. She appeared as both counsel and witness in these proceedings and was cross examined while testifying. The Supreme Court had decided in an order issued in September, 2013 that the guardian ad litem statute would be suspended to the extent that it required the G.A.L. to be an attorney or permitted “best” interests analysis to be conflated with “legal interests” or permitted the G.A.L. to present witnesses and participate in the trial in any role other than as a witness. The message this rule seemed to telegraph was that if you want to participate in a trial as a lawyer, you proceed under Section 5335. Section 5334 means you will sit, listen to the trial and take the stand to express what you consider to be the best interests of your subject child. On remand, the Trial Court was directed to carefully craft its order defining the scope of the attorney-advocates role.

As for the appeal of Grandfather, it shared many of the waiver problems found in Mother’s appeal. Both were presented pro se and the Court opined that the Pa.R.A.P. 1925(b) statements were not well articulated.

Here the reasoning gets somewhat muddled. Bear in mind that the majority has affirmed the Trial Court ruling that Grandfather did not attain the standard of showing that the children lacked sufficient parental authority and control. So it was motoring under the partial custody standard and doing so because Girlfriend had not asserted lack of standing to seek partial custody in response to Grandfather’s filing. The Trial Court denied partial custody because his desire to have contact with his granddaughter was not in the child’s interest because of Grandfather’s (a) animosity toward Girlfriend (b) his steadfast belief that his daughter was not guilty of a crime when she shot Girlfriend and (c) his efforts to control his granddaughter’s testimony. The Trial Court also felt that Grandfather was inclined to try to sow discontent between Girlfriend and the eleven-year-old daughter (by adoption). The Superior Court finds that there was scant evidence to support these conclusions and while it defers to Trial Courts in these types of analysis, the analysis must be borne of evidence presented rather than supposition. It also held that under Section 5328(c)(1)(iii) the Trial Court must perform the 16 factor analysis that has become a part of all custody determinations.

Specifically, while condemning Grandfather’s use of the term “Adoptive Mother” in the case, the Court did not find this so egregious as to merit suspension of contact. The Court found no record that Grandfather had attempted to discuss or persuade his granddaughter to take a side in the criminal proceeding against her natural mother. This was ascribed to a “supposition” on the part of the child advocate rather than any evidence of record. The Grandfather had attempted to arrange for the child to meet with Mother’s criminal counsel for purposes of an interview but that interview was blocked by a subsequent court order.

In the end, the appellate court expresses concern that Girlfriend is not exercising sufficient control over her son to the possible risk of her daughter. The Superior Court described some of the incidents and believed the conduct between the sibling children involved more than innocent horseplay. Thus, it reversed not only to have a full evaluation of Mother’s rights while incarcerated but Grandfather’s rights under Section 5328(a). This makes for an interesting rehearing, as the law of standing is different than it was at the last hearing.

For better or for worse, this is what “new age” custody proceedings are going to entail; an unmarried couple, who adopt and then split badly, even violently. The children involved present their own issues related to physical conflict. A grandfather tries to intervene and an advocate is criticized both for the nature of her role and for overzealousness in the protection of an 11 year old child. Bear in mind, the circumstance of an adoption is the only thing that bars to two natural fathers from appearing on the scene to add to the mele. Note as well that this action began in November, 2011. It was temporarily settled in August, 2012 but within eight months gunfire erupted, setting in motion a piece of litigation that has subsisted for more than 3.5 years and is headed back to trial. The one child affected is described as “now 12”. That would mean that she was perhaps 7 when her world fell apart.

Note Bene:   We have been longstanding critics of the business of identifying custody litigants and children by initials. The author has been told this is a losing battle. But this opinion, for those willing to endure its 45 page analysis, was a special form of suffering. For 45 pages, here is what one read:

M.G. v. L.D.; Appeal of C.B.D. 2017 Pa. Super 29 (2/8/2017)

L.D.   Mother of M.G.D.. Adoptive parent of E.G.D.

M.G.  Mother of E.G.D. Adoptive parent of M.G.D.

C.B.D. Father of L.D.; Grandfather to E.G.D. and (by adoption) E.G.D.

As I have explained plaintively to any appellate judge who grants me audience, the children in this case are the soldiers in the trenches of modern day custody wars. They are gassed with parental acrimony nearly every day. They don’t read the Atlantic Reporter and their friends don’t either. In this case, two children have lived a life of newspaper headlines and criminal trials culminating in a long-term prison sentence. The least of their concerns is whether their identity is revealed in appellate paper books and resulting opinions. Meanwhile, if called upon to explain the precedential effect of this reported case in a pending case, this lawyer would be required to emit enough letters to daze even a lifetime “bingo addict.” The addict at least has a chance at a prize.

 

BLOG PIC

Just days before a separate panel of the Superior Court held that Pennsylvania courts may assume jurisdiction to dissolve civil unions, Judges Gantman, Bender and Panella issued a published opinion, In re Adoption of R.A.B., Jr., holding that an adult adoption consummated in July, 2012 could be annulled or revoked. 2016 Pa. Super. 295. The opinion was published on December 21, 2016.

In April 2012, 76-year-old Roland Bosee petitioned the Allegheny County Orphans’ Court to permit him to adopt his 40+ year life companion, Nino Esposito. Mr. Esposito was then 65 years old. The adoption was granted.

The stated purpose of the adoption was for these gentlemen to form a family relationship in a world where they could not marry in Pennsylvania. When that law changed in 2014, Mr. Esposito filed a petition to revoke the adoption. As one might suspect, his companion did not oppose but the Orphans’ Court dismissed the petition on the basis that there is no precedent to revoke or annul these proceedings. The Superior Court citing a 1957 Somerset County case, Adoption of Phillips, decided that adoptions may be revoked for good cause premised upon general principles of equity. 12 D&C 2d. 387, 396-97. See also Adoption of Hilton 2 D&C 2d 499 (Montgomery 1975) aff’d 369 A.2d 728 (Pa. 1977). The appellate court also noted family court precedent in both Delaware and New Jersey permitting such a proceeding where the stated goal was marriage.

The Allegheny County decision was reversed and the case remanded for the purpose of entering an order terminating the adoption.

We note that there is room for mischief here and in so doing we do not suggest that the litigants in this case having any such motive. Suppose one of the parties in a similar situation elects not to proceed with the marriage? Does the other party have the right to vacate the order vacating the adoption? The family courts have seen a marked uptick in cases where adult children are being asked to support their elderly parents? Is the revocation of an adoption a possible avenue to avoid that kind of support? Adult adoption is an area where courts need to proceed gingerly both in terms of their establishment and their revocation. Motivations are not always what they seem. Adoption was not recognized at common law and most laws in America and England have a little more than a century of precedent. These laws were created at a time when adult mortality was far higher and people were looking for a better solution to the orphan trains that carried 250,000 children to the mid-west between 1850 and 1920.

In our haste to report on last week’s Pennsylvania Supreme Court case on support duties of non-parents, we overlooked another case decided on December 21, clarifying when an order conferring standing on a party in a custody case becomes appealable.

“Standing” is the legal term for the right to be a party in a lawsuit. The kid next door may be cute but that doesn’t give me the right to seek custody of him just because I would be a better parent.  There has to be a recognized legal nexus between the natural or adoptive parents of a child and the right of some non-parent to claim custodial rights.

The case we last reported on offers a good example. The Serbian father of the children was no longer involved once the children arrived in America and birth mother married step-father.  Step-father took on the role of parent for several years and when that relationship ended step-father stepped forward and asserted that because he had acted as a parent, he had the rights of a parent.  The Supreme Court of Pennsylvania offered no comment on whether this gentleman was or wasn’t a substitute parent, but faced with a lower court decision awarding him joint legal and physical custody of the children, they decided he was eligible to pay child support for children he had half the time.

K.C. and V.C. v. L.A. is a little different. The defendant is the natural mother of L.A., who was born in 2011.  The natural parents did not do so well and a child welfare agency in Northampton County sought to have L.A. declared dependent, meaning that the child was not having basic needs met by the biological parents.  The agency secured an award of physical custody and then placed the child with a maternal aunt of the mother and a friend with whom the maternal aunt resided.  In Spring, 2013 the Court vacated the dependency placement and awarded custody to the biological father.  The aunt and her friend were given partial physical custody of the child on alternate weekends.  The Father lived with his own mother and her current husband.

Two months after being awarded custody and when the child was only 18 months old, the natural father passed away. The decedent’s mother and her husband filed to assume custody.  At that point the child had been with them for nine months although they were not part of the custody order, as Father was the actual person awarded custody.  The maternal aunt and friend filed a claim of their own noting that they had physical custody of the child for seven months under the aegis of the dependency finding. Typically when a child is found dependent as L.A. was, the agency is awarded legal and physical custody subject to their right to place the child wherever the agency deems suitable.

When aunt and friend filed to intervene, the deceased Father’s mother and her current husband objected noting that the only custody maternal aunt and friend had was under the dependency award. In other words, no court had deemed them to be fit parents. They were merely the choice placement of the agency that had taken the children away from the natural parents because basic needs were not met.

The request of aunt and friend to intervene was denied by the trial court. We don’t have that decision, but typically, the placement of a very young child with a maternal aunt is not any more than a convenience for agencies that are overwhelmed with demands just like these.  The argument of the agency goes: “Look your honor, the child is two months old and the natural parents are not getting the job done.  We don’t have a lot of places to send a two month old child and the maternal aunt and her friend seem able and sincere and we will keep an eye on them while we try to correct the problems that forced us to take the child away from his/her natural parents.” In this case, natural Father seems to have stepped up to the plate and ended up with primary custody.  Unfortunately, he died almost immediately after he won custody.

The request of aunt and friend for “standing” to try to resume custody in the wake of natural father’s death being denied, the aunt and friend filed an appeal. The Superior Court quashed (i.e., dismissed) the appeal because it was not a final adjudication of the custody action brought by paternal grandmother and her husband.  The Superior Court ruling had a precedential foundation.  It has long been the law that appeals from custody orders must relate to orders that “dispose of all claims.”  See G.B. v. M.M.B. 670 A.2d 714 (Pa. Super. 1996).  The goal here is to avoid piecemeal disposition of custody claims on appeal.

Aunt and friend were not taking no for an answer. After all, they had physical custody of L.A. for seven months and Father (while resident with his mother and stepfather) had custody for perhaps nine months.

While the basic premise of appellate rules is to not decide cases piecemeal, a large body of law has evolved concerning what are termed “collateral orders”. These are orders which do not dispose of the whole case but which may change the course of the entire litigation.  In this case, paternal grandmother was seeking custody premised upon the rights awarded to her deceased son.  Her son held those rights for nine months before he died.  The parties who had physical custody of the child for the preceding seven months asserted that they should have custody and the Superior Court said they could not even make a case.

In an opinion authored by Madame Justice Todd, the Court notes that the prevailing public policy is to avoid appellate review of cases before they have been fully decided. But, the exception to that rule is invoked where failure to permit the appeal effectively “kills” the case.  In a unanimous opinion, the Supreme Court finds that dismissal of aunt and friend’s claim was appealable because the dismissal “killed” the case.  In effect, natural Father being dead and natural mother otherwise “absent without leave” (AWOL) there were effectively only two real contestants for this infant child; the paternal grandmother whose rights arose purely from the fact that the natural father lived with her when he secured custody and the aunt whose right to custody was also “derived” from the decision of the Office of Children and Youth to place the child awarded to them with the aunt.

Unless granted the right to intervene, the aunt and her friend asserted that the petition of paternal grandmother and her husband would never be contested because there was no one with standing to contest it except for the absent natural mother. The appellants had enjoyed custody for seven months. The paternal grandmother had never had custody.  The child was awarded to her son who happened to be resident with her when he got custody and when he died.

The Supreme Court decided that (a) the order putting the aunt and friend out of court was severable from the rest of the custody case because there was no one else who sought custody and (b) any claims they might have asserted were lost because they can’t appeal from a custody order to which they were never afforded the status of parties. The Court distinguishes this from other civil orders affecting standing because there is an important and immediate impact on children.  In particular it cites In re Barnes Foundation, 871 A.2d 792 (Pa. 2005) where the Court held that the intervenors lost their right to appeal the final decision because they had not preserved an appeal on the issue of intervention.  The Court reasoned that while Barnes does not involve an issue as prescient as child custody, the principle of early intervention is all the more important where children are involved.

So the principle is clear. If a party seeking custodial rights is denied the opportunity to participate, the appeal is collateral and must be taken within thirty days of the date the order denying intervention or standing is entered.  The applicable rule is Pa. R.A.P. 313.

But let’s also consider the collateral impact of the collateral appeal doctrine with an eye cast in the direction of the announced goal of affording child custody decisions a “fast track” for disposition. The subject child was born in December, 2011.  The child is placed with aunt and friend in February, 2012.  In September, 2012, Father secures shared custody.  In April 2013, the child is awarded to Father.  He dies. In June, 2013 his mother files to be custodian.  Later that month aunt and friend file to intervene.  It takes more than 18 months for the trial court to decide that the intervention should be denied.  In 90 days, the Superior Court quashes the appeal.  The Petition for Allowance had to have been filed in April-May 2015, if timely.  The case is reported as “submitted” on October 21 and was disposed of with opinion by the Supreme Court in 60 days.  So, effectively from June 6, 2013 (date of primary custodian’s death) until December, 2015, the life of a then 18 month old child is in limbo.  That’s 31 months to decide that the folks who had physical custody for seven months did have standing to challenge the custody action of the folks who had physical custody for nine months.  We have written law telling us that these matters need to be expedited.  But this child lost a father at 18 months and still doesn’t know where he will live almost three years after father died.  The appellate process through two such courts consumed a little more than 8 months.  But it took the trial court an extraordinary eighteen months to decide whether aunt and friend had standing.  Query, if you are the trial judge on remand and looking at the factors explicated in the custody statute, does the 2.5 year status quo since father died count as a stability factor for a child whose life was little more than a series of disruptions prior to Father’s death. Under a pure “best interests” analysis that would seem to be true.  But, in a world where fairness is also a factor at some level, does the belated and ultimately erroneous ruling of the trial and Superior Courts count against the prevailing party in the subsequent proceedings?  In this case, it is difficult to justify eighteen months to decide whether a party has standing.  That delay created a status that will be difficult to undo unless the paternal grandmother and spouse have completely dropped the proverbial custodial ball.  On this record, they will defend a case against another set of claimants (aunt and friend) who have not so much as seen the subject child since April, 2013.  That amounts to 31 of the 48 months young L.A. has been alive.

The recent Superior Court decision In re Adoption of M.R.D. and T.M.D. offers a new challenge in the context of who can be an adoptive parent.  While in her early 20s a young woman ventured to South Dakota to teach school.  She met a young man in 2002 and when she returned to Pennsylvania in 2003, he briefly followed her back here.  Just before he returned to South Dakota, it would appear that Mother became pregnant with twins.  They were born in Pennsylvania in October, 2004.  At the time Mother was living with her own Father.  The Father of the children did visit Pennsylvania to visit shortly after the children were born but he then returned to South Dakota and did not come back until 2006.  That trip was also a brief one and the Father did not encourage any visits in South Dakota by mother and children.  Later in 2006, Mother and the children moved into a rental home owned by her father.  South Dakota Father was aware of this move but little else changed and Father was last heard from in January, 2007.

In January 2013, Mother filed to terminate Father’s parental rights.  This appears to have been in response to Father’s action requesting an award of custody.  At the time Father had not seen the children in seven years.  His last written communication with the children had been in January, 2007.  It would appear that he provided little to no financial support since their birth.  And aside from the first two visits, Mother did not try to make the children aware of the identity of their Father.

What made this adoption unusual was the fact that for the second time in recent Pennsylvania history, the proposed adopting parent was Mother’s own father.  It appears undisputed that this gentleman had effectively provided the same kinds of parenting support that a natural Father is expected to provide.

The first part of the case was easy.  Father provided the textbook facts typical of parental abandonment such as would justify termination of his rights in an adoption.  The more difficult question was whether the children’s grandfather was an eligible adoptive parent.

In the 2-1 decision Judges Donohue and Stabile answered in the negative. They held that the purpose behind the statute remains “to foster a new parent-child relationship.” Absent such a relationship, the purpose is likely to provide disagreeable parents with a “new….dangerous, tactic” to employ in the world of child custody litigation; cross petitions to terminate. Accordingly, they reversed the Lycoming County ruling terminating Father’s parental rights.

The pinion properly observes that grandfather is functioning in many ways as a substitute parent. But the greater challenge here is that in a world where families are evolving as a matter of fact, if not necessarily as a matter of law, what does it take to qualify for the appellation “parent” besides biology or residence while married to a woman who has become pregnant?

We are commonly asked by clients:  “If my spouse has had no contact nor provided support for a period of six months or more, can’t I terminate his/her parental rights?” Under the Adoption law, that is true but most people miss the fact that the termination is part of an adoption that offers the child a substitute parent. If you have no player to sub for the parent who is not playing, you don’t have a basis to terminate parental rights.  And per this ruling (to which there was a length dissent) granddad is deemed an “ineligible receiver.”

 

 

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.

***************************************************************************

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.

Leslie Spoltore, one of our partners in our Wilmington office, posted President Barack Obama’s proclamation making November National Adoption Month. Family law is an area which often deals with difficult issues and outcomes where neither side feels like they’ve won even if the outcome is in their favor.

Adoptions, on the other hand, can be an extremely positive event where all those involved – the adoptive parents, the judge, the clerks at the Courthouse – all have a single-minded purpose of creating a new family and permanent family for a child. While some adoptions can become difficult due to competing interests of various adults, the overwhelming majority of them arise from two parents wanting to create a better life for child.

The full text of the President’s proclamation can be found at our Delaware Trial Practice Blog.

*******************************************************************

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.

One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother’s maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn’t coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans’ Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans’ Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans’ Court about the means and method Father employed to engineer an adoption of a child he wasn’t too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn’t having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: “It was a different inquiry {in Orphans’ Court}. {That Court proceeding}… had a different focus, a different responsibility. ….  I make my own credibility findings.”

As the Court observed, it was not there to redress Father’s purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans’ Court and the Superior Court with respect to Father’s “adoption” proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father’s conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.

Periodically I am asked questions about name changes for children or whether a mother is obligated to use the biological father’s last name for the child (answer: she’s not). A child’s last name is obviously an important and complicated issue that relates to the child’s identity and understanding of their history and parents. Mishandling a child’s last name can have emotional and legal repercussions for the child later in life.

A recent case out of Lawrence County in Pennsylvania highlights the standards used to consider whether changing a child’s name is in their best interests. The case In Re: Jessica Benegasi Foore involved a petition by the mother to remove the last name of the child’s biological father (“Foore”). The Court agreed on the basis that the child did not have a relationship with her father, thus there was no risk of alienation or interference with that relationship, but also because the name change would mirror that of her mother and half-sibling. The court considered that sharing the same name as the other members of her family would make the transition into school easier and provide her with better emotional security. The court also recognized that the father’s name carried with a negative connotation and poor reputation.

The considerations made the court in this case are not exhaustive, but provide a good insight into what facts make for successful name change petitions.

In Re: Jessica Benegasi Foore, C.P. Lawrence County, No. 70097 of 2011, M.D. (C.C.P. July 17, 2013).

 

A South Carolina attorney was recently disciplined for failing to have an active email address.

Despite characterizing herself as “retired” and not having a client in thirty years, the South Carolina Disciplinary Board still found that she “poses a substantial threat of serious harm to the public and to the administration of justice” for repeatedly failing to comply with the Court’s rule about having an active email address.

This case got me thinking about my practice, particularly my frustration with the tiny but hardcore group of attorneys who refuse to use email. One more than one occasion, I have had to take extra measures to hand deliver, courier, or Federal Express a document or correspondence to an attorney who does not use email. This has cost my client extra money to accommodate someone who is a rare exception in an industry that has accepted email, faxes, and smartphones (albeit, begrudgingly at times).

In one situation, I hand delivered a copy of a sizable responsive pleading to an attorney’s office. Faxing wasn’t an option and mailing would not work due to the forthcoming weekend. Though I could have served the document on the attorney at our hearing and been in complete conformity with the rules, I wanted to give the attorney the courtesy of having the pleading in advance. Had he used email, he would have had the PDF Friday afternoon to peruse at his convenience over the weekend. No good deed goes unpunished, however, and though his practice methods made service before the end of business on Friday virtually impossible (or, alternatively, cost prohibitive to the client), he nevertheless wrote a letter to tell me my hand delivery on Monday morning, in advance of the hearing, was “offensive.”

I scanned the letter into the system for future reference and dropped it in the recycle bin.

I recognize that some attorneys feel email is the scourge of the 21st century. The incorporation of email into smartphones makes us tethered to work around the clock. But in an industry that is essentially about customer service, it seems irresponsible – and in South Carolina, a breach of professional responsibility – not to have an active email account to communicate with clients, counsel, and the Court. To the best of my knowledge, no attorney in Pennsylvania has been disciplined for not having an email address or, even minimally, a fax machine. I can only speculate that it is a matter of time before a client – having become frustrated by being limited to either in person visits, phone calls, or “snail mail” letters – finds a new attorney or worse, files a disciplinary complaint against them.