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Parties in Dependency: Proper Notice and Participation Is Essential

The stakes in a dependency matter are extremely high.  Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate.  The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child.  Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS.  A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.

The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone.  CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration.  In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.

The trial court agreed with CYS and denied the continuance.  CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability.  The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.

The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order.  Mother subsequently filed a timely notice of appeal of the above-described court orders.  Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process.  Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.

On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation.  In making her argument, pointed out three procedural rules.  First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331.  Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.”  Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition.  Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….”  Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court.  Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.”  Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”

Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above.  First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order.  Obviously Mother could not have received service of the Petition per Rule 1331.  Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331.  Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361.  Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363.  As a result, there is nothing in the record suggesting Mother was properly served with the summons.  Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)).  To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself.  Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.

Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above.  Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate.  Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.

Originally published in The Legal Intelligencer on July 11, 2017 and can be found here and republished in the Pennsylvania Family Lawyer in its October 2017 issue and can be found here.

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NBI Seminar: Family Law From A to Z – Roundup

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Listed below is the complete list of the materials I wrote for my portions which can be read here on this blog.

Thanks!

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NBI Seminar: Ethics

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”

Thanks!

__________

 Client/Lawyer Relationship

The client/lawyer relationship in a family case is unlike that relationship in any other case.  A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life.  A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these.  When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life.  As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.

There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case.  Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider.  For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value.  Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse.  Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).

Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues.  A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms.  The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items.  Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.

Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation.  Understandably, clients become extremely emotional when dealing with the custody of their children.  Sometimes clients simply cannot accept that the other parent has entered into a new relationship.  Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have.  Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent.  It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view.  The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client.  It often takes more than mere legal analysis to help a client recognize what is best for his children.

Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes.  A child will take with him for the rest of his life how his parents interacted with him and with one another.  Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely.  So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.

Attendance at Client Conferences by Friends or Family of Client

The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies.  Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality.  Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.

As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?

As a threshold matter, the client must grant permission for anyone to be present at any conference.  The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege.  The other factors listed above are tactical in nature.  Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting.  Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence.  Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child.  The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves.  As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.

Finally, a person who finds himself in a custody case is often in a compromised position in his life.  In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child.  Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support.  While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties.  It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren.  An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants.  Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.

Attorneys’ Fees

An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client.  This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.

The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client.  Obviously there are no contingency in custody matters either.

Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.

Communication With Adverse Party

Communication with an adverse party, if represented, is like any other sort of case.  Communication ought to be timely, civil, and professional.  When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues.  While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests).  As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.

Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party.  It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party.  A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters.  It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client.  So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney.  The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment.  Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client.  Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.

Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed.  As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.

Malpractice Concerns

Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board.  All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct.  The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.

When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board.  Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline.  As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.

The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation.  This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.

In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.

The potential discipline an attorney could receive is either private or public.  Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment.  A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management.  A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.

A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline.  Public discipline is typically imposed after a hearing.  Public discipline can only be imposed by the Supreme Court of Pennsylvania.  If an attorney is disbarred, the attorney cannot practice law at all in any way.  A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar.  Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential.  Another public discipline is suspension.  While suspended, an attorney cannot practice law.  Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply.  Finally, an attorney may be publicly censured.

The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.

As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision.  Instead, the Counsel allows for an internal review process which can be requested by a Complainant.  If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.

It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.

NBI Seminar: UCCJEA: Uniform Child Custody and Enforcement Act

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”

Thanks!

__________

Parents and children are more mobile than ever.  It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order.  The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case.  The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).

The UCCJEA is divided into four basic parts.  The first part consists of the general provisions (e.g.: definitions).  The second part deals with jurisdiction.  Part three regards enforcing out-of-state custody orders.  Finally, the fourth part contains miscellaneous provisions.

The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.

Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue.  The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth).  If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.”  Mere physical presence, however, is not required or sufficient to make a custody determination.  Standard notice requirements apply to cases under UCCJEA.  If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed.  A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”

Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child.  When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication.  A record of this communication, regardless of the participation of the parties, must be created and kept.  As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.

A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum.  In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;  and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.

Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change.  The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.

An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware.  The father remains in Pennsylvania.  The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there.  At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.:  Pennsylvania).  In response, the mother attempts to transfer jurisdiction of the case to Delaware.  The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.

An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey.  As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order.  Instead, the state where the children reside with at least one parent would likely have jurisdiction.

Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) .  Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice.  Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order.  The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties.  The petition requires representations as to jurisdiction.  A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”)  A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party.  Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction.  If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party.  The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.

Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection.  Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection).  Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction.  The emergency order will remain in effect unless and until the “home state” enters a custody order.  If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect.  Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.

American Airlines Flight Attendants To Appeal Facebook Harassment Ruling

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “American Airlines Flight Attendants To Appeal Facebook Harassment Ruling,” in Savvy Stews b published on September 2, 2018, which can be found here.

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We’ve all read company policy regarding employee conduct on social media sites. Although one would assume that these policies are there to put a stop to and even prevent workplace bullying, they are only useful if companies enforce them.

In a blow to two American Airlines flight attendants this week, Judge Eduardo C. Robreno ruled that the evidence of workplace bullying and harassment brought forth by flight attendants Melissa Chinery and Laura Medlin was insufficient and untimely. The harassment was also experienced by several additional women who issued affidavits but were not part of the lawsuit itself.

The worst part, American Airlines didn’t do a thing to stop it in the first place.

“The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem” – Chinery

Faye Riva Cohen, the law firm that represents the plaintiffs, issued the following statement:

“We are disappointed by the Judge’s decision.  Our clients were victims of gender-based discrimination. Given the unique nature of social media, the harassment our clients experienced was all-pervasive and impossible to escape. We believe that the Judge failed to adequately consider the power of social media and its impact on the workplace.

Additionally, we believe that American Airlines acted improperly. American Airlines maintains a social media policy that is used to police the online conduct of its employees. Nevertheless, American Airlines failed to take our clients’ complaints seriously. Until employers treat online bullying with the severity that it deserves, women will continue to be at a disadvantage in the workplace. Our clients are weighing their options to appeal the decision.”

Ms. Chinery shares, The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem. No apologies from anyone, just an escalated attack.”

RINGLEADER EMBOLDENED BY RULING

Jim Brown, one of the flight attendants accused of the harassment, began gloating on Facebook immediately following the judge’s ruling. He may have spoken too soon since the plaintiffs are planning to appeal the judge’s decision which could legally expose him and American Airlines.

Jim Brown, accused of harassment, has been given cushy positions in the Purser program and others.

In his deposition, Jim Brown admitted to sending a complaint to the company about Chinery that he thought would be anonymous. He also admitted fabricating a story regarding referring to Chinery as “flipper” (slang for “whore”) “to cover my tracks by creating another post and a fake person” (from Brown’s deposition). Despite lying about his words, Brown remains a member of several committees and in the training department and to date has not been investigated. He continues to publicly post on social media, on the day of Judge Robreno’s ruling, saying he was, “Feeling delighted… My message is about Karma working it’s [sic] judicious magic!”

BROWN-NOSING HAS ITS PRIVILEGES?

American Airlines has yet to investigate the harassment claims internally and the men named in the lawsuit remain on special projects, in training positions, and continue to be rewarded with promotions as they are paid and deployed to publicize company messaging to their coworkers. Rewards even included invitations to the wedding of American’s Chief Financial Officer, creating the appearance of special treatment and selective enforcement of company policy.

One may wonder who is responsible for the selection of these individuals to serve in special assignment and training positions. What consequences may they eventually face?

ONLINE WORKPLACE HARASSMENT GROWING PROBLEM

There is a lawsuit against United Airlines for failing to intervene in a pilot’s harassment of a flight attendant. American’s failure to put a stop to the bullying that took place against Ms. Chinery may eventually end up opening a Pandora’s box of liability for the carrier as others step forward to share their experiences and American’s lack of support.

In his memorandum, Judge Robreno writes, “Medlin details only a handful of instances of alleged sexual harassment between 2012 and 2015…including…the general use of sexually-oriented profanity.” Judge Robreno further stated that “insults in the workplace do not constitute discrimination ‘merely because the words used have sexual content or connotations.’” Judge Robreno also contends the alleged harassment was not physically threatening despite the litigants having complained to American Airlines about threats of physical harm.

THEY GANGED UP

Jim Brown wasn’t the only one allowed to get away with behavior that conflicted with the American Airlines social media policy:

[From evidence submitted to the court]

Rick Haskins, a male flight attendant, writing regarding coworkers who voted against a union contract proposal, “Those sixteen people should be shot.”

Daniel Datzer another flight attendant wrote, “I do not respect the 51 percent…… And I NEVER will…. Clowns, fools, morons… This will drastically come back to bite them in their uneducated, bilious, petty, small-minded, redneck lazy tired asses…. I will NEVER stop asking how people voted each time I fly and they will be treated accordingly… This is not a joke…. My anger and deep seated frustration WILL have a place to go… Directly at the enemy. I will maintain the level of professionalism that I have for myself…. But make no mistake…. They will know my discontent and pure disgust at their selfish inhumane actions… And it will NOT be cozy for them….I have this fantasy where the 49 percent goes off and forms its own base…… Because frankly, that is the only way the 51% are going to be able to escape what is coming.”

Victor Dunson wrote, “this is war… If you f**k with my friends you f**k with me and I don’t like being f**ked with: (.”

Judge Robreno also contended in his ruling that “Datzer used coarse sexual language” but that it “does not amount to severe or pervasive sexual harassment.” a picture of a “bedazzled vagina,” repeatedly used the word “c**t,” called a coworker a “sow,” referred to coworkers as “harpies and shrews,” and wrote “have any of them LOOKED in a mirror? Tuck your shirt in fat ass… Fix your hair… How bout a tie? A little lipstick?”

AMERICAN DID NOT LIFT A FINGER

Ana Burke-Leon, AA Human Resources

Despite the legal ruling, according to its policies, US Airways / American Airlines failed to follow its own rules and did not investigate multiple complaints brought to Human Resources by many women. Ana Burke-Leon, AA Human Resource Specialist, tasked with examining Chinery and Medlin’s claims states in her deposition, “Discrimination, unlawful harassment and retaliation in the workplace will not be tolerated.”  She stated the policy included derogatory posts, jokes, letters, e-mail or graffiti that denigrate or show hostility toward an individual or group based on but not limited to race, color, religion, gender, or gender identity.

FROM THE DEPOSITION OF AMERICAN’S HUMAN RESOURCE SPECIALIST, ANA BURKE-LEON

If ever there was an instance to back up employee mistrust in human resource departments, the responses given by American’s HR representative to questions from the plaintiff’s attorney would justify their suspicions.

In her deposition, Burke-Leon repeatedly evades the questions brought forth by Chinery and Medlin’s counsel about whether or not the “c-word,” when used by a male employee to refer to a female employee, would be tolerated:

 Q. Do you consider the word, the use of the C-U-N-T to be an epithet, derogatory comment or slur?

A. Yes.

Q. What’s your understanding as to what that word means?

A. It’s a derogatory word used to describe a female.

Q. So if a male employee refers to a female employee as —

A. You can say it. I understand.

Q. I will say the “C” word. If a male employee refers to a female employee as the “C” word, does that fall within these bullet points list of the type of conduct that will not be tolerated?

A. It will depend on the context. It would depend on if it’s directly related or specific name, a person is involved. It will depend on the context.

Q. If a male employee refers to a female employee as the “C” word, do you consider that to be a derogatory comment?

A. It depends on the way it’s stated. It depends on the content. It depends on the content.

Q. Do you consider a male employee referring to a female employee as the “C” word to be a slur?

A. A slur? I don’t know.

Ana Burke-Leon was tasked with interviewing one of the men named in the lawsuit but in her deposition says she did not because on the scheduled day of her flight to meet him, she “went to the wrong gate” and missed the flight. The matter was later looked into by another member of HR. Burke-Leon went on to say, “Daniel stated that his Facebook page was compromised and that he does not believe he made those comments.”

Another senior Human Resource investigator, Dan Cleverly, admitted under oath that he did not-at-all investigate Medlin’s harassment complaints and concerns. She repeatedly emailed him requesting assistance but was ignored.  When questioned, Cleverly’s response in his deposition was “Because it got lost in my shuffle.” That was towards the end of October. I went on vacation, Thanksgiving, Christmas crazy.”  The evidence provided by American Airlines revealed Cleverly’s apparent bias from personal notes to Burke-Leon where he referred to Chinery as “exhibiting a whole new side of crazy” when she attempted to follow up with him about her concerns. His response, when asked why he said that was “Because this was an overwhelming time.”

The harassment claims brought forth against Jim Brown, to this day, have not been investigated by American Airlines. In his testimony, Brown states he has not had any interviews regarding the complaints made against him. At least four women complained to HR about Brown’s harassment. The outcomes of such investigations would determine whether or not there would be disciplinary action, and, according to AA’s policies, if an employee were in violation, it “would not be tolerated.” How is it possible that American Airlines, for years, has ignored women who came forward to complain along with those who provided affidavits testifying that they witnessed harassment by Brown?

The complaints against Brown, Datzer, Allen, and others, date back to 2012 and continue through 2016.  Despite the claims, since that time, three of the men have been promoted to various positions that include lucrative “special projects” committee work and training positions. Flight attendants are required to requalify annually in training to ensure he or she meets the FAA and company requirements to maintain continued employment. Both women have feared retaliation and for their jobs as the men they have accused of harassment have been placed in positions of authority where they potentially can pass or fail them.

AN APPEAL MAY BE FORTHCOMING

“American offered me a monetary settlement, but this has never been about money. It’s about employees suffering when policies created to protect them are ignored or selectively enforced by the company. These colleagues should be held to the same accountability that everyone else is held to. People should never be rewarded for engaging in workplace bullying and harassment” says Chinery.

The Democrats Abandon Catholics

If you value religious education or life’s sanctity, you’re not welcome in the party.

Last Saturday’s feast of St. Patrick, the patron saint of our cathedral and archdiocese, reminded me of Archbishop John Hughes. As the first archbishop of New York (1842-64), “Dagger John” displayed dramatic reverence for the dignity of Irish immigrants. Thousands arrived daily in New York—penniless, starving and sometimes ill—only to be met with hostility, bigotry and injustice.

An immigrant himself, Hughes prophetically and vigorously defended their dignity. Because the schools at the time were hostile to these immigrants, he initiated Catholic schools to provide children with a good education sensitive to their religion and to prepare them as responsible, patriotic citizens. The schools worked. Many remain open to this day, their mission unchanged.

The second event was the recent funeral of a great African-American woman, Dolores Grier. A convert to Catholicism, she was named vice chancellor of the archdiocese three decades ago by Cardinal John O’Connor; she was the first layperson and first woman to hold the prestigious position. Grier was passionate about civil rights, especially the right to life of babies in the womb. She never missed an opportunity to defend, lovingly but forcefully, their right to life.

Grier attributed her pro-life sensitivity to the Rev. Jesse Jackson, who preached that abortion was an act of genocide against minorities. No wonder, she often observed, abortuaries were clustered in poor black and brown neighborhoods. The statistics today confirm her observation: In 2013 there were more black babies aborted in New York City (29,007) than were born here (24,758), according to a report from the New York City Department of Health and Mental Hygiene.

The values Archbishop Hughes and Dolores Grier cherished—the dignity and sanctity of human life, the importance of Catholic schools, the defense of a baby’s civil rights—were, and still are, widely embraced by Catholics. This often led Catholics to become loyal Democrats. I remember my own grandmother whispering to me, “We Catholics don’t trust those Republicans.”

Such is no longer the case, a cause of sadness to many Catholics, me included. The two causes so vigorously promoted by Hughes and Grier—the needs of poor and middle-class children in Catholic schools, and the right to life of the baby in the womb—largely have been rejected by the party of our youth. An esteemed pro-life Democrat in Illinois, Rep. Dan Lipinski, effectively was blacklisted by his own party. Last year, Democratic National Committee Chairman Tom Perez insisted that pro-life candidates have no place in the modern Democratic Party.

It is particularly chilly for us here in the state Hughes and Grier proudly called their earthly home. In recent years, some Democrats in the New York state Assembly repeatedly blocked education tax credit legislation, which would have helped middle-class and low-income families make the choice to select Catholic or other nonpublic schools for their children. Opposing the bill reduces the ability of fine Catholic schools across the state to continue their mission of serving the poor, many of them immigrants.

More sobering, what is already the most radical abortion license in the country may soon be even more morbidly expanded. For instance, under the proposed Reproductive Health Act, doctors would not be required to care for a baby who survives an abortion. The newborn simply would be allowed to die without any legal implications. And abortions would be legal up to the moment of birth.

I’m a pastor, not a politician, and I’ve certainly had spats and disappointments with politicians from both of America’s leading parties. But it saddens me, and weakens the democracy millions of Americans cherish, when the party that once embraced Catholics now slams the door on us.

To Archbishop Hughes, Dolores Grier, and Grandma Dolan, I’m sorry to have to write this. But not as sad as you are to know it is true.

Cardinal Dolan is archbishop of New York.

Appeared in the March 22, 2018, print edition of The Wall Street Journal and can be found here.

American Airlines Flight Attendants Will Appeal Ruling On Facebook Sexual Harassment

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “American Airlines Flight Attendants Will Appeal Ruling On Facebook Sexual Harassment,” in Forbes b published on September 12, 2018, which can be found here.

___________________________________

Two flight attendants who sued American Airlines, alleging that they were sexually harassed by male co-workers in Facebook postings, say they will appeal after a Philadelphia judge dismissed their cases.

Faye Riva Cohen, the Philadelphia attorney who represents flight attendants Melissa Chinery and Laura Medlin, said Tuesday that she will file in the Third Circuit Court of Appeals in about a week.

“American Airlines is [generally] proactive in disciplining employees who do things that negatively impact the airline, but is dragging its heels in trying to enforce social media [policy] for their employees,” Cohen said.

“I feel [American] has no interest in social media policy,” Cohen said. “They just hang it out there.”

Cohen said the court did not adequately consider the new norms of the modern-day workplace, where social media has replaced lunchrooms and water coolers as sites where workers congregate, but bullying cannot be addressed face-to-face. “People are being bullied [and] there should be repercussions when that occurs,” she said, noting that flight attendants, who work with varying sets of co-workers, are particularly vulnerable.

The two flight attendants filed their case in March 2017 in U.S. District Court in Philadelphia.  At the time, Chinery was based in Philadelphia while Laura Medlin was based in Charlotte. Chinery has since transferred to the Phoenix base. Their cases were consolidated.

The insults were posted within a Facebook group, whose membership is limited to American flight attendants, by a group of four to five Philadelphia-based male flight attendants.

Medlin said she was harassed with insulting terms including “sow,” while Chinery said she was referred to as “flipper,” a synonym for prostitute. Both women said the harassment was related to union activities in support of leaders whom their harassers opposed.

U.S. District Court Judge Eduardo Robreno dismissed the cases on August 27, when he granted American’s motions for summary judgement.

In Chinery’s case, Robreno ruled, “Looking at all of the complained of behavior objectively, even that which does not appear connected to gender and instead appears to be related to Chinery’s stance on union issues, the behavior does not amount to severe or pervasive sexual harassment.”

He cited behavior by the four men including posting a photograph of a broken record; referring to Chinery as “flipper,” saying the defendant “did not present a good appearance to passengers [and] allegedly posting a picture of a bedazzled vagina.”

“The court concludes that the complained-of conduct was not so objectively severe or pervasive that it would unreasonably interfere with an employee’s work performance,” wrote Robreno. He was nominated for his post in 1991 by President George H.W. Bush.

Regarding Medlin’s case, Robreno wrote that she alleged sexual harassment on Facebook, between 2012 and 2015, including calling her a “sow” and a “mean girl.”

“While there are a number of serious questions that are raised by Medlin’s claims, including whether the alleged harassment over Facebook was due to her sex rather than her opinions regarding labor unions and whether it actually occurred in a work environment, it is clear that the alleged instances of harassment were not adequately severe or pervasive to establish American’s liability,” Robreno ruled.

American spokesman Matt Miller said the carrier, “is proud to foster a work environment in which all team members are respected.

“When American receives reports of alleged harassment in the workplace, those complaints are investigated and appropriate action is taken,” Miller said.

Superior Court Ruling Gives Hope to Custody-Seeking Grandparents

Pursuant to 23 Pa.C.S. Section 5324, grandparents and great-grandparents, if they meet the statutory criteria, may be awarded legal and physical custody of their grandchild(ren) (or great-grandchildren). Typically, grandparents assert their potential custodial rights in opposition to the rights of the parents of the children. In some situations, however, more than one set of grandparents may seek to exercise their custodial rights at the same time. How is that conflict resolved? The recent Pennsylvania Superior Court case of G.A.P. v. J.M.W. v. S.J. and R.J., 2018 Pa.Super. 229 sheds some light on how such a matter could be handled.

In G.A.P., the father of the child has a history of substance abuse and also a criminal history, and was alleged to have committed sexual abuse against the child. Similarly, the mother of the child also has a history of substance abuse. The child has lived, from time to time, with the maternal great-grandparents over the course of his entire life, and has lived continuously with them since 2015.

In the summer of 2016 the great-grandparents filed for custody of the child on the basis that he had been living with them continuously since October 2015 and asserted that he was unsafe when in the custody of the father. The trial court, on an emergency basis, awarded the great-grandparents sole physical custody of the child and suspended the father’s partial physical custody, and an agreement was reached with the mother awarding her supervised physical custody of the child. At the end of 2016 the trial court awarded the great-grandparents and the father shared legal custody, the great-grandparents primary physical custody, and the father supervised physical custody. The mother was not awarded anything as she failed to appear for the hearing.

In the spring of 2017 the great-grandparents filed a petition for special relief requesting the father be drug tested and have his custody modified to supervised visits only, on the basis that he allegedly had relapsed into drug use. As a result, the trial court suspended the father’s unsupervised partial physical custody and replaced it with supervised physical custody.

Not long after the father’s custody was reduced, the paternal grandparents filed a petition to Intervene and requested physical custody of the child. The grandparents asserted that their petition was filed pursuant to 23 Pa.C.S.A. Section 5324(3)(iii)(B) which permits grandparents to file for custody of their grandchildren if “the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.”

In response, the great-grandparents filed preliminary objections against the grandparents’ petition to Intervene, asserting that the grandparents did not have standing as, allegedly, the child was not “currently” at substantial risk. The trial court agreed and dismissed the grandparents’ petition to Intervene for lack of standing, leading them to file an appeal to Pennsylvania Superior Court.

During the litigation of the petition to Intervene, the great-grandparents conceded that the grandparents had a relationship with the child that began with the consent of a parent, and were willing to assume parental responsibility over the child. In other words, the great-grandparents admitted that the grandparents essentially met the other requirements of Section 5324 except, in their view, the requirement that the child be currently substantially at risk.

The grandparents argued that the risk to the child, by the plain language of the statute cited above, is due to “parental abuse” specifically and, therefore, the claim that the great-grandparents are not a source of risk is irrelevant. Furthermore, the “grandparents also argued that the purpose of the statute is to grant grandparents standing in custody matters, not ‘to create a situation where grandparents are essentially in a race to file to receive standing’ because the grandparent who files first is the only one able to obtain standing in a custody matter.”

The Superior Court agreed that Section 5324 confers standing upon grandparents when the child is substantially at risk “due to parental abuse, neglect, drug or alcohol abuse or incapacity.” In its view, these words are clear and unambiguous and make no exception for a child’s potential custodial situation at a given time. In the court’s words “the plain language of the statute confers standing to grandparents when a child is substantially at risk due to ongoing parental behaviors.”

Upon review of the trial court record, Superior Court noted that the conditions required by Section 5325—including the risk factors—were present to grant the great-grandparents standing. Superior Court determined that there was nothing to suggest that the risk created by the parents had changed or somehow subsided. Significantly, the court observed, as the parental rights of father and mother have not been terminated or relinquished, either or both father and mother could seek (additional) custody of the child at any time. As a result, the ongoing risk from the parents is still ongoing.

Finally, it is in Superior Court’s opinion that the General Assembly did not intend, by its adoption of the specific language in the statute, to create a so-called race-to-the-courthouse standard by which the (great) grandparent who files first gets awarded custody at the expense of the others. Instead, the Superior Court reasoned, the court should have the opportunity to consider all possible or viable options in order to decide how to allot custodial rights according to the best interests of the child at issue. As a result, Superior Court reversed the trial court’s sustaining of the great-grandparents’ preliminary objections and remanded the case back to the trial court.

This case should provide practitioners the justification, and potential custodial grandparents hope, that they can pursue potential custodial rights over their grandchildren even if others who are in a similar state of life or situation (e.g., another set of grandparents) seemingly have done so already.

Originally published in The Legal Intelligencer on October 2, 2018 and can be found here and republished in the December 2018 Pennsylvania Family Lawyer and can be seen here.

NBI Seminar: The Rights of Grandparents and Other Relatives

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “The Rights of Grandparents and Other Relatives.”

Thanks!

__________

Grandparents’ (and other relatives) rights to have custody of children is governed by 23 Pa.C.S.A. §5324 which states as follows:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:

(1) A parent of the child.

(2) A person who stands in loco parentis to the child.

(3) A grandparent of the child who is not in loco parentis to the child:

(i) whose relationship with the child began either with the consent of a parent of

the child or under a court order;

(ii) who assumes or is willing to assume responsibility for the child; and

(iii) when one of the following conditions is met:

(A) the child has been determined to be a dependent child under 42 Pa.C.

S.Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or

alcohol abuse or incapacity; or

(C) the child has, for a period of at least 12 consecutive months, resided

with the grandparent, excluding brief temporary absences of the child from

the home, and is removed from the home by the parents, in which case the

action must be filed within six months after the removal of the child from

the home.

 

23 Pa.C.S.A. §5325 supplements §5324 and states the following:

In addition to situations set forth in §5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2) [Unconstitutional]

(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after he removal of the child from the home.

Failure to secure standing serves to bar grandparents from pursing the custody of the child-at-issue.  If they do have standing, grandparents may file for custody like a parent can, however, when litigating against a parent, the scales are always tipped heavily toward the biological parent and away from the grandparent.  Of course, the best interests of the child are always paramount.  When two parents are litigating against one another, the burden of proof is shared equally, however when the case is between a biological parent and a third party (e.g.: a grandparent), the burden of proof is not equally balanced.  In this case, the biological parent has a prima facie right to custody which can only be forfeited only if “convincing reasons” appear that the best interests of the child are better met by the third party.

Resources:

  • 23 Pa.C.S.A. §5324
  • 23 Pa.C.S.A. §5325
  • Jordan v. Jackson, 876 A.2d 443 (Pa.Super.2005)
  • K.B. v. C.B.F., 833 A.2d 767 (Pa.Super.2003)

NBI Seminar: Child Custody and Visitation Rights: Termination of Parental Rights

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Termination of Parental Rights.”

Thanks!

__________

The termination of a parent’s rights over his children nearly always occurs in one of two circumstances: voluntary adoption and dependency.

When termination is an issue, the court must appoint an attorney to represent the child when one or both parents contest the termination.  Of course, the court is always free to appoint counsel and/or guardian ad litem for the child.  A lawyer may not represent both the child and one of the parents.  As far as the parents facing possible parental termination are concerned, the court may, upon petition, also appoint an attorney for one or both of them in the event he or she is unable to pay for an attorney.

There are times when parents are willing to voluntarily terminate their rights to their children, typically called relinquishment, say in the context of adoption.  Another option, besides relinquishment, is signing a consent. A parent can sign a consent for their child to be adopted and not have to appear at future hearings.  23 Pa.C.S. § 2504.  Upon receipt of a petition to relinquish parental rights, as mentioned above, a hearing will be scheduled, at least ten days from the filing of the petition, in order for the court to review and rule upon the petition.  Relinquishment is under 23 Pa.C.S. § 2501-2502 and requires a hearing wherein a judge should make sure the parent understands the consequences of relinquishment and is fully aware of his right to trial.  Usually there is a colloquy by the judge or by the parent’s attorney to establish their understanding.

It should be noted that if there is a putative father, which is to say a man who has not been formally legally established to be a child’s father, he may have his rights terminated if he had not filed an acknowledgment of paternity or a claim for paternity and fails to appear at the termination hearing.

Perhaps one of the most compassionate sections of the applicable law toward the parents subject termination is the fact that the court has the obligation to inquire into whether those parents have received counseling.  If not, the court can refer him or her to a qualified counselor.  In the alternative, a parent subject to termination may apply for a referral to counseling as well.  To help facilitate counseling, the state has established a counseling fund pursuant to 23 Pa.C.S.A. §2505(e) to help those who are not in a financial position to afford counseling on their own.

Of course, termination of parental rights is a critical element of adoption and dependency.  Termination in the context of adoption is pursuant to 23 Pa.C.S.A. §2511.  In order to petition to terminate in this context, the parent must (1) evidence a “settled purpose of relinquishing [a] parental claim” over a child or fail to perform parental duties for a period of six (6) months immediately prior to filing to terminate; or, (2) demonstrate repeated abuse or neglect or continued incapacity; or, (3) the parent is the presumptive but not natural father of the child; or, (4) the child is in the custody of an agency and the parent is unknown (and does not claim the child within three months after being found); or, (5) the child has been removed from the care of the parent by court or voluntary agreement for a period of at least six months and the circumstances which led to the removal still persist with no reasonable expectation to improve; or, (6) a newborn child where the parent knows (or should know) of the child but takes no action to be a parent (e.g.: reside with the child or marry the other parent) for a four month period; or, (7) the parent is a father of a child conceived through rape; or, (8) the parent has been convicted of a serious crime (as listed in the statute); or, (9) the parent has committed sexual abuse or is a registered sex offender,

If a parent exhibits no sign of interest in the child over an extended period – typically about six months – he will be at risk of termination.  The Court has made it clear that a child is not an “unwanted toy” for a parent to pick up and play with at his whim and set it down again when tired of it.  Relatedly, being the fun and occasional playmate is not the same as being an involved parent.  Additionally, parental involvement is more than merely paying support or paying for various expenses.  A parent is more than a benefactor.  Interestingly, absence due to incarceration does not necessarily provide sufficient grounds for termination.  Of course, the six month interval is not mechanically applied.  The Court is to fully analyze the underlying matter to determine why there has been such extended absence, and to view the totality of circumstances before ordering termination.

Those who may petition to terminate another person’s parental rights are limited to (1) either parent; (2) an agency; (3) the person who has custody and standing as in loco parentis and has filed a report of intention to adopt; and/or (4) a guardian ad litem of a dependent child.

The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the grounds listed in 23 Pa.C.S.A. §2511.  If the aforesaid evidentiary standard is met, then the court may consider whether the termination is for the best interests of the child.  As with virtually any other issue regarding the custody or placement of children, the best interests of the child are paramount.  The court is to give primary consideration to the developmental, physical, and/or emotional needs and welfare of the child.  See 23 Pa.C.S.A. § 2511(b)  The statute is clear that issues surrounding environmental factors will not be the sole basis of termination.  Environmental factors include housing, furnishings, income, clothing, medical care, and the like if they are beyond the control of the parent.  Finally, if a parent attempts to remedy the issues and conditions provoking the termination petition after the petition is filed, the court will likely not consider them.  See 23 Pa.C.S.A. §2511(b)

After the filing of a petition for termination, a hearing is held with at least ten days’ notice to the parents, putative father, and parent of a minor parent who has not been terminated.  Following termination, the terminated parent may not object to any adoption proceeding for the child.  Terminated parents nearly always have the right to file updates of his or her personal medical history information after termination.

Resources:

  • 23 Pa.C.S.A. §2313
  • 23 Pa.C.S.A. §2501
  • 23 Pa.C.S.A. §2502
  • 23 Pa.C.S.A. §2503
  • 23 Pa.C.S.A. §2505
  • 23 Pa.C.S.A. §2511
  • 23 Pa.C.S.A. §2512
  • 23 Pa.C.S.A. §2513
  • 23 Pa.C.S.A. §2521
  • In Re L.M., 923 A.2d 505 (Pa.Super. 2007)
  • Baby Boy A. v. Catholic Social Services, 517 A.2d 1244 (Pa.1986)
  • v. Arnold, 665 A.2d 836 (Pa.Super.1995)
  • In re Burns, 474 P. 615 (1977)
  • In re C.S., 761 A.2d 1197 (Pa.Super.2000)
  • In re J.L.C., 837 A.2d 124 (Pa.Super.2003)
  • In re T.F., 847 A.2d 738 (Pa.Super.2004)
  • In re K.K.R.-S., K.M.R. & K.A.R., 958 A.2d 529 (Pa.Super.2008)

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