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.

Welcome Gift for Coming to PA and Violating a Restraining Order
Welcome Gift for Coming to PA and Violating a Restraining Order

Like many border areas of states, living in eastern Pennsylvania commonly results in legal issues which “span the river” into New Jersey, New York, Maryland, or Delaware (for our colleagues in the central and western part of the state, you can add West Virginia and Ohio); states with distinct laws and procedures from each other. Jurisdictional issues, choice of law issues, and standing can become important considerations for cases. For an action like a Protection from Abuse (“PFA”) or, in New Jersey, a Final Restraining Order (“FRO”), it is not uncommon for parties to live in each state and for incidents to occur in each jurisdiction.

Such is the recent Bucks County case on appeal to the Pennsylvania Superior Court. In this case, the issue arose as to whether Pennsylvania Courts had jurisdiction to enforce a New Jersey FRO. The FRO was entered against two individuals in New Jersey in 2009. Later, in 2012 and 2013, the protected party had interactions with the defendants which rose to violations of the FRO. He brought contempt actions in Bucks County after a series of incidents with the defendants in Pennsylvania.

The Bucks County wrote this opinion after the defendants sought appeal on three different grounds based on a due process claim, insufficiency of evidence, and, the one relevant for this discussion, that Bucks County did not have jurisdiction to adjudicate the contempt action against the defendants.

The Bucks County court relies on 23 Pa.C.S. § 6114.1 of the PFA Act which allows a plaintiff to file a petition for civil contempt with the issuing court or on a foreign protection order. As defined by 18 U.S.C. § 2266, a foreign protection order covers any order or injunction in civil or criminal court which prevents violent or threatening acts or harassment against sexual violence, contact or communication with or physical proximity to the protected person. In other words, if any jurisdiction issues a restraining order or something comparable, Pennsylvania will enforce it provided the violating act occurred in Pennsylvania.

The logic behind this section of the PFA code is obvious: what good does a restraining order do if its effectiveness stops at the state line? By allowing for the enforcement of the order in Pennsylvania’s courts, the goal – the protection of an individual from harm by others – is accomplished. Furthermore, by limiting the enforcement to incidents happening in Pennsylvania, there is no opportunity for forum shopping or abuse of the system by plaintiffs looking for a favorable jurisdiction.

The Bucks County opinion strongly argues that jurisdiction exists to consider the Pennsylvania incidents for contempt of the New Jersey FRO. What this cases serves to demonstrate, however, is that restraining orders travel in Pennsylvania; the Courts will not deny someone an opportunity to enforce that protection simply because the restraining order was issued by a court in another state. The emphasis should be on the protection of the individual.

Smithers v. Stanton, C.P. Bucks County, Family Division, No. A06-09-61861-A-36; 2014 BCBA, 87 Bucks Co. L. Rep. 286 (2013).

(Image: www.wisegeek.com)

_____________________________________________________________

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.

The Pennsylvania Superior Court recently rendered an Opinion in the case of Ferko-Fox v. Fox, 2013 Pa.Super 1888. This Opinion is important from the standpoint that it affirms the requirement listed under 23 Pa.C.S.A. §6107(b)(1) that a Protections From Abuse petition requires an ex parte hearing to determine if there is immediate and present danger requiring immediate, temporary relief.

In the Fox case, the wife obtained a temporary Protection From Abuse evicting the husband from the marital residence, as well as prohibiting any communication between the two of them. The husband challenged the temporary PFA on the basis that § 6107(b) requires that the trial court conduct an ex parte hearing for the purpose of protecting the respondent’s due process rights. Specifically, the court found that when the PFA Act permits trial courts to temporarily suspend a “respondent’s rights and liberties based upon the petitioner’s demonstration of an immediate and present danger of abuse at an ex parte proceeding.”  As husband argues, what this essentially means is that a basic review of the verified Petition is insufficient to grant temporary relief without an ex parte hearing being done by the Court. 

 

The ex parte hearing is important in the PFA process because it gives the trial court the opportunity to examine the petitioner in person and under oath; this face-to-face examination of the individual allows the Court to explore facts and circumstances beyond that of the contents of the Petition. The petitioner’s motive may be examined and discerned by an in-person examination and questioning by a Judge. It would also give the presiding Judge the opportunity to examine physical evidence (or the absence thereof) of violence such as, “scratches, wounds and bruises.”

 

Consequently, the Superior Court found that Lancaster County’s informal practice of an in-camera review of the Petition prior to the entry of a temporary order was insufficient to protect the respondent and to ensure justice in the application of the act. The Superior Court’s Opinion conclusively holds that “absent an exigent circumstance that prevents a petitioner’s appearance, due process mandates a trial court convene an ex parte hearing prior to entering a temporary PFA pursuant to §6107(b)”. 

 

The practical application of this holding is that each and every Protection From Abuse requesting temporary relief that is filed in Pennsylvania will now have an initial ex parte hearing on the record before a determination as to whether a Temporary Order will be entered. This will certainly increase the work load of court reporters since the Protection From Abuse Act requires entry of a final Order within ten (10) days of the filing of the Petition (except where a continuance is granted) and thus requiring significant turnaround of the transcript of the hearing for use at trial. 

From a practice perspective, counsel for PFA Petitioners and Respondents will need to be vigilant in obtaining the record from the Court and it is fair to assume that pro se litigants will not have the knowledge or wherewithal to either know about the necessity of having a transcript, nor how to go about obtaining it. Like any change to a standard practice, there will be some adjustment to this new procedure, but I would assume that the courts, court reporters, and counsel will develop as efficient a process as possible to address the added requirement of an ex parte hearing and transcript. An unintended consequence of this rule may also be that temporary orders will be much more judiciously entered in some Counties than perhaps they were before. The requirement of an immediate and present danger of abuse will be much more closely scrutinized in situations in which the facts are much less clear than in more obvious situations.

(Image by Bettman/CORBIS) – Lunch at 800 feet only seems normal if you are used to it.

I recently took a phone call from an individual who wanted to learn about the laws related to the emancipation of a minor.  This person would not identify herself, but described herself as a “case worker” who was calling for a family friend who wished to remain anonymous: a fifteen year old girl who wanted to become emancipated from her parents due to what she described to the case worker as abusive conditions. 

My immediate response was to ask whether the police or Children and Youth Services had been called.  The caller did not know, but did not think so.  Since the caller was a “case worker” who described working with pregnant teens and “at risk” kids, my next question was simple: if there is abuse, don’t you have a duty to report the case to CYS and the police?

Pennsylvania’s laws for mandatory reporting can be found under 23 Pa.C.S.A. § 6311, which is the statute controlling Child Protective Services.  Section 6211(a) broadly states that anyone who comes in contact with children “in the course of their employment, occupation or practice of a profession shall report or cause a report to be made…when the person has reasonable cause to suspect…that the child under the care, supervision, guidance or training of that person is a victim of child abuse.” 

This section identifies the basic procedure for mandatory reporters to bring allegations of abuse to the attention of Child Protective Services.  Not surprisingly, this section of Pennsylvania’s code received quite a lot of attention in the midst of the Jerry Sandusky/Penn State scandal and criminal case.    

The caseworker’s response to my question was slow and contemplative: “Yeah. I guess I do have an obligation to report.”  This was clearly the first time she had put her friend’s situation into the context of her profession.  When it comes to deeply personal issues such as abuse, divorce, or addiction, the personal and professional line can be easily blurred and it made me wonder whether she “missed” connecting her friend’s personal experience with her job’s duties was due to the context of how it was presented.  Had this situation been presented to her at an intake session with a teen, the case worker would have likely seen the abuse and notified the authorities.  When the facts were taken out of that context and she was addressing them as a friend with personal knowledge of all the people involved, her judgment clouded and her professional instincts were not triggered.

Most any job eventually desensitizes a person to the unusual circumstances of their profession.  What is strange and fascinating to one person is the job description someone else finds routine.  Someone free climbs a tower at 1,700 feet to change a light bulb; the Louisville basketball player who suffered the terrible broken leg last week was a shocking sight, but I bet that was not the first – or worst – open fracture of a leg his orthopedic surgeon has seen in his career.  A client’s divorce will always be the worst one they can experience, but often the attorney has had to deal with even more difficult facts.

In this instance, the social worker who deals with kids in broken homes, addiction, teen pregnancy and bullying may not view her abused friend as being someone to whom she has a duty to report this to the authorities.  She tried to be a friend, instead, and called an attorney.  This is not an excuse for the case worker, but it could indicate a loss of perspective of what is normal and where her duty to report begins and ends under Pennsylvania law.

My call with the case worker was short; perhaps no more than a minute.  I would like to think she hung up with me and immediately called CYS; possibly the police department.  Hopefully not another attorney to ask about Pennsylvania’s emancipation laws.

v:* {behavior:url(#default#VML);}
o:* {behavior:url(#default#VML);}
w:* {behavior:url(#default#VML);}
.shape {behavior:url(#default#VML);}

Normal
0

false
false
false

st1:*{behavior:url(#ieooui) }

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

In July of this year USA Today published an article by Kim Painter, highlighting a report published by the American Academy of Pediatrics, which identified psychological “maltreatment” as being just as harmful as other types of abuse.  “Maltreatment” or “Abuse” is more easily recognized as being physical or sexual in nature, however, the American Academy of Pediatrics has found that psychological abuse is linked to such difficulties as mental illness, delinquency, aggression, school troubles and life long relationship problems among those who were abused.  The Academy recognized the difficulty in identifying abuse, but defined it as “when an interaction between a parent and child inflicts harm and causes difficulty with the child’s emotional well being and development.”

Emotional abuse is an allegation occasionally heard in the context of custody cases.  As the American Academy of Pediatrics points out, it can be difficult to identify, particularly by parents, attorneys, and the Court who may not be trained to interpret and evaluate whether emotional abuse is occurring.  Nonetheless, such allegations should be treated seriously and may be identified through a custody evaluation. 

Depending upon the County in which you reside, custody evaluations may be required or they may require the permission of the Court to occur.  The facts of the case will dictate whether an evaluation or some type of counseling is necessary for the child.  Notwithstanding an abusive situation, it is fair to say that a child going through divorce may benefit from counseling in some way.

Emotional abuse can be extremely damaging to a child and, as demonstrated by the American Academy of Pediatrics, lead to life-long problems for its victims.  The hope is that by focusing on this form of abuse, that awareness may be raised and at-risk children identified earlier and appropriate caregivers and professionals can intercede on the child’s behalf.

Montgomery County is fortunate to have MCAP ("Montgomery County Child Advocacy Project") to provide legal representation and protection to abused children.  You can learn more about MCAP and what you can do to help their mission at

Normal
0

false
false
false

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

http://www.mcapkids.org/.

 

 

A British think-tank recently published a study on excessive alcohol consumption which found a correlation between the children of divorce and what they defined as “problematic drinking behaviors.”  As reported by James Hall, the Consumer Affairs Editor of The Telegraph, the group, Demos, found that sixteen year olds who had “disengaged parents” and were subjected to the instability and stress of divorce and/or separation were eight times more likely to drink excessively compared to those kids whose parents were engaged in their lives. The results could help shape the alcohol policy of United Kingdom’s Department of Health.

Demos further found that parents who put strict parameters on their children’s lives (“tough love”) made a major difference in a variety of outcomes for the children, including how they handled and addressed their consumption of alcohol as teens.

Not surprisingly, but worth reinforcing, was the conclusion that strong support networks (or the absence thereof) had a major impact on how children recovered and prospered after a divorce.  The connection between an individual’s relationship towards alcohol and their home life not surprising and the outcome of the Demos study demonstrates how important it is for parents to set aside their personal problems related to a divorce and create a stable environment for their children.

Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

Not surprisingly, the two year rule has been coming under fire in Congress with the introduction of legislation by presidential candidate and Minnesota Representative Michele Bachmann, as well as a demand by Senate Finance Committee Chairman Max Baucus that the IRS review the two year deadline.

With respect to divorce, particularly in Pennsylvania where two years of separation is not an uncommon occurrence, people could easily sign a joint tax return as a routine action, without taking the time to carefully review the contents of the filing. Factor in abuse, fear, and intimidation and it is not a surprise that truly "innocent spouses" are being denied the right to raise that defense due to the two year limitation.

For most families, filing joint taxes is a routine affair – seldom is the time when filing under a different designation other than "married filing jointly" place a family in the most advantageous tax position. For couples who are separated, continuing to file jointly may continue to make the most sense.

There are times, however, when one spouse has no knowledge of the family’s financial affairs. If the situation warrants it, that spouse could claim relief from the IRS under the "innocent spouse" rule. This rule is designed to protect taxpayers who should not be responsible for the tax liability incurred by the culpable spouse, even in situation where a joint return was signed by the "innocent spouse."

A recent article, however, highlighted how the IRS has persistently struck down appeals by "innocent spouses" due to their failure to seek relief within two years of their receipt of an IRS tax collection notice. What makes these decisions particularly difficult to accept is that they are being made against battered spouses or other parties who were not in a position to know about the tax liability due to abuse or estrangement from the other spouse.  Consequently, they often do not even know there is a problem before the two year limit lapses.

Though this blog typically addresses current issues in Pennsylvania family law, I thought it was worth noting the passing of a long standing member of the Pennsylvania Senate, Senator Michael A. O’Pake.

Among his many accomplishments and legislative efforts, he authored or helped spear-head many laws pertaining to family law, including the adoption of no-fault divorces, the passage of the Children’s Protective Services law and Protection from Abuse Act, and Children’s Health Insurance Program (CHIP), which we discussed in a previous entry.

 

Senator O’Pake has had a lasting impact on the lives of Pennsylvanians and legal community.