Termination of Parental Rights

In re Adoption of L.A.K., 2021 WL 1157997 (Pa. Super. 2021) (unreported), allocatur granted June 29, 2021, appeal dockets 14 & 15 WAP 2021

This case arises from A.G. (Mother) and B.G. (Stepfather)’s petitions to involuntarily terminate C.K. (Father)’s parental rights pursuant to, inter alia, subsections 2511(a)(1) and (b) of the Adoption Act, which provides:

(a) General rule.–The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.


(b) Other considerations.–The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

Slip op. at 7 (quoting 23 Pa.C.S. § 2511(a)(1), (b)). Superior Court summarized the background of the case as follows:

Mother and Father are former spouses who separated in October 2015 and divorced in January 2017, due to Father’s debilitating alcoholism. N.T., 7/22/2020, at 8-9, 71. They had two children together, L.A.K., born in September 2012, and A.L.K., born in March 2015 (collectively, the Children). Children reside with Mother. Significantly, it is undisputed that Father has not had contact with the Children since January 2016. Id. at 9-14, 43, 48, 55, 63, 74, 87, 111-17, 120-25, 132-35. A March 2016 child custody order provided that Father could exercise supervised partial physical custody of the Children at his own expense, but he never exercised or requested custody pursuant to that order. Id. at 10-12, 34-35, 41-42, 103.

Following her separation from Father, Mother began a relationship with Stepfather. Id. at 17, 35. Mother married Stepfather in July 2019. Id. at 7. Shortly thereafter, on October 23, 2019, Father filed a petition for modification of the March 2016 custody order. Id. at 94-95. Petitioners filed petitions to terminate involuntarily Father’s parental rights to the Children on October 31, 2019, proposing that Stepfather adopt the Children.1 A custody proceeding ensued, resulting in an order that Father could not reenter the Children’s lives pending the resolution of the termination proceeding. Id. at 38-39, 92-96; Respondent’s Exhibit D (December 18, 2019 custody order).

The orphans’ court conducted a hearing on the termination petitions on July 22, 2020, during which Petitioners, Father, and C.K. (Paternal Grandmother) testified. In relevant part, Petitioners detailed Father’s failure to contact the Children after January 2016, testifying that he did not see the Children in person, send letters, or call them on the phone. N.T., 7/22/2020, at 9-14, 43, 48, 55, 63. To Petitioners’ knowledge, Father did not even try to contact the Children prior to filing his petition for modification of custody. Id. Petitioners maintained that L.A.K. had only a vague recollection of Father, and that A.L.K. did not remember Father at all. Id. at 22-23, 58. In contrast, they reported that the Children view Stepfather as the sole paternal figure in their lives and refer to him as their father. Id. at 22-25, 55-56, 59.

Father acknowledged that he had not had contact with the Children since January 2016, and that he had not attempted to contact the Children. Id. at 74, 87, 111-17, 120-25, 132-35. Father offered various explanations for this failure, stating first that he did not attempt to call the Children on the phone because Mother “wouldn’t have addressed my calls anyway.” Id. at 74, 114-15. Father next stated that he did not attempt to contact the Children because he did not want to traumatize them by entering and exiting their lives due to his relapses, and that he wanted to achieve a year of sobriety before reaching out. Id. at 87-88, 115-17, 120-25, 132-34. He asserted that he became sober in October 2018 and filed his petition for modification of custody a year later, in October 2019. Id. at 75, 80, 94-95, 106. Finally, Father maintained that his alcoholism was financially devastating, and that he could not afford the cost of supervised partial physical custody of the Children, or even the cost of sending them a greeting card. Id. at 103-04, 116, 135. Father also presented the testimony of Paternal Grandmother to establish that he appeared to be sober, and that she babysat the Children and occasionally provided Father with pictures and information about them during the time he was absent from their lives. N.T., 7/22/2020, at 139-44.

Slip op. at 1-4. The orphans’ court denied the petitions to terminate Father’s parental rights, finding that Mother and Stepfather failed to meet their burden under subsection (a)(1), reasoning:

Before finding sufficient grounds to terminate parental rights under [subs]ection 2511(a)(1), the court must consider more than whether the parent has not maintained contact for a six-month period prior to the filing of the petition to terminate rights. [In re K.C.W., 689 A.2d 294 (Pa. Super. 1997).] Indeed, the court must also consider any barriers that a parent faced during said period and whether the parent exhibited reasonable firmness in his or her attempt to overcome those barriers. Id.

In the instant case, the Court notes that, although Father did not visit with the [C]hildren for a substantial amount of time, his act of distancing himself from the [C]hildren was done with an eye towards what was in their best interest. Even though Father was not present to perform traditional parental duties, he testified that rebuilding a relationship with [the C]hildren was the main motivating factor in his quest to obtain sobriety. As of the date of the hearing, Father was reportedly paying $600.00 per month in child support to Mother. Father was able to maintain contact with the [C]hildren via Paternal Grandmother … until Mother forbade her from sharing any pertinent information with Father in September 2019. Shortly after this change in circumstances, Father petitioned the court for modification of custody and attempted to make contact with the children himself.

Slip op. at 9-10. As to whether terminating Father’s parental rights would serve the Children’s needs and welfare pursuant to subsection 2511(b), orphans’ court concluded:

Finally, although the second-half of the bifurcated analysis is not required unless the Court finds that a particular ground under [subs]ection 2511(a) is met, [ ] [P]etitioners would nonetheless need to prove that the [C]hildren’s developmental, physical and emotional needs and welfare would be served by termination.

[Petitioners] asserted that the [C]hildren do not have a relationship or a necessary and beneficial bond that needs to be preserved. Testimony revealed that [L.A.K.], the older child, refers to Father as “Old Dad,” which is evidence of at least some kind of relationship between the two of them. Continuing to develop a relationship between Father, and by extension the parental side of the family tree, and the [C]hildren may serve the[ir] emotional well-being in the long run. To that end, the custody order following the Custody Conciliation Conference recognized this important fact by encouraging the family to be reintroduced to Father in a therapeutic setting. The Court did not find that sufficient evidence was produced to demonstrate that the developmental, physical and emotional needs of the [C]hildren would be served by termination of Father’s parental rights.

Slip op. at 14-15. Mother and Stepfather appealed.

Superior Court overturned orphans’ court dismissal based on subsection (a)(1), reasoning that:

The finding of the orphans’ court that Father maintained contact with the Children via Paternal Grandmother is not supported by the record. It is undisputed that Father has had no contact with the Children since January 2016. N.T., 7/22/2020, at 9-14, 43, 48, 55, 63, 74, 87, 111-17, 120-25, 132-35. Paternal Grandmother testified that she merely provided him with pictures and information about the Children. Id. at 144. Father has not seen the Children in person, has not called them on the phone, and has not sent letters or gifts. Id. at 74, 87, 111-17, 120-25, 132-35. Father admitted this during his testimony. Id. More significantly, Father admitted that he did not even make any attempts to see the Children in person, call them on the phone, or send letters or gifts. Id. It appears that Father’s only contribution to the Children’s lives during this time was his payment of child support. However, Father admitted that even that was inconsistent. He explained, “[m]y employment was so spotty. There were so many stretches of, you know, I might have been able to pay a little bit and nothing for a while.” Id. at 98-99, 129-30.

While Father filed his petition for modification of custody on October 23, 2019, shortly before Petitioners filed the termination petitions on October 31, 2019, that does not excuse his failure to maintain contact with the Children. As we have explained, “[a]lthough it is the six months immediately preceding the filing of the petition that is most critical to the analysis, the [orphans’] court must consider the whole history of a given case and not mechanically apply the six-month statutory provision.” B.,N.M., 856 A.2d at 855. The fact that Father made one attempt to make contact after over three-and-a-half years of doing nothing does not demonstrate the sort of good faith interest and effort that the Adoption Act requires. Therefore, we conclude Father refused or failed to perform his parental duties during the six months preceding the filing of the termination petitions pursuant to subsection 2511(a)(1). See id. (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)) (“There is no simple or easy definition of parental duties. … This affirmative duty encompasses more than a financial obligation; it requires continuing interest … and a genuine effort to maintain communication and association with the child.”).

In its opinion, the orphans’ court justifies Father’s failure to perform his parental duties, reasoning that he faced “barriers” to maintaining contact with the Children and exhibited reasonable firmness in seeking to overcome those barriers by working to obtain sobriety. Orphans’ Court Opinion, 10/23/2020, at 4-5. We cannot agree. During the hearing, Mother testified that she lived in the former marital residence where Father himself used to live, that her phone number had remained the same since she was married to Father, and that she had not “blocked” Father on her phone. N.T., 7/22/2020, at 8, 13, 17. Father agreed that Mother’s phone number had not changed. Id. at 97. Moreover, the March 2016 custody order awarded Father supervised partial physical custody of the Children. Id. at 10-12, 34-35, 41-42. Father had every opportunity to maintain contact with the Children, but did not take even the most basic steps to do so, such as sending a card or calling them on the phone. Father’s claim that he planned to contact the Children eventually, after he achieved a year of sobriety, did not excuse him from taking advantage of these opportunities. As Petitioners have argued, “[p]arental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.” B.,N.M., 856 A.2d at 855. Thus, we conclude that the court committed an abuse of discretion by denying the petitions to terminate Father’s parental rights pursuant to subsection 2511(a)(1)

Slip op. at 12-13 (footnotes omitted). Superior Court further concluded that the court abused its discretion by denying the petitions to terminate Father’s parental rights pursuant to subsection 2511(b), explaining:

Once again, it is undisputed that Father has not had contact with the Children since January 2016. N.T., 7/22/2020, at 9-14, 43, 48, 55, 63, 74, 87, 111-17, 120-25, 132-35. A.L.K. was only ten months old at that time, and L.A.K. was three years old. Father acknowledged at the hearing that A.L.K. would not know who he is, given her age at the time she last saw him. Id. at 129. As for L.A.K., Petitioners testified that he had only a vague recollection of Father and could not even recognize a picture of him. Id. at 23, 58. The Children’s legal counsel and GAL agreed with Petitioners’ characterization. Id. at 151-52, 158. Indeed, both Mother and the GAL suspected that L.A.K.’s recollections of Father were a product of his imagination. See id. at 22-23, 158 (the GAL explaining, “[L.A.K.] told a couple stories that … didn’t seem to be based in reality. They weren’t flattering, but they were also slightly outlandish, so he brought no memories that seemed to be rational to the table.”). It was plainly unreasonable for the orphans’ court to conclude that L.A.K. and Father maintain a relationship under these circumstances, simply because L.A.K. knows Father exists and refers to him as “Old Dad.”

Moreover, the bond analysis that subsection 2511(b) prescribes is not whether a child has “at least some kind of relationship” with his or her parent. Orphans’ Court Opinion, 10/23/2020, at 6. The analysis is whether that relationship is “ ‘necessary and beneficial’ ” to the child, and whether severing that relationship would cause him or her “ ‘extreme emotional consequences.’ ” In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018) (quoting In re E.M., 620 A.2d 481, 484-85 (Pa. 1993)). It is apparent in this case, given Father’s dearth of contact with the Children, that no such relationship exists. In Father’s absence, Stepfather has provided the Children with consistent parental care. N.T., 7/22/2020, at 17-19, 22-25, 55-56, 59. The Children view Stepfather as their father, and he is the one with whom they have a meaningful relationship. Id. The finding by the orphans’ court that developing a relationship between the Children and Father “may serve the emotional well-being in the long run” is speculative and contrary to the Children’s need for security and stability. Orphans’ Court Opinion, 10/23/2020, at 6; see In re Adoption of J.M., 991 A.2d 321, 325 (Pa. Super. 2010) (“S[ubs]ection 2511(b) requires the trial court to determine what effect breaking an existing parent-child bond will have on the child currently, not speculating whether a bond may be formed in the future.”).

Slip op. at 15-17 (footnote omitted).

The Pennsylvania Supreme Court granted allocatur as to the following issues, as stated by Petitioner:

(1) Whether the Superior Court improperly substituted its judgment for that of the trial court in contravention of the well-settled standard of review applicable to termination of parental rights cases?

(2) Whether the Superior Court erred in concluding that successful efforts to enter into recovery for chronic alcoholism cannot be viewed as overcoming a barrier for purposes of exercising one’s parental rights?

For more information, contact Kevin McKeon or Dennis Whitaker.