In Re: Adopt. of W.R.S., Appeal of: L.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ADOPTION OF W.R.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.M., FATHER :
:
:
:
:
: No. 1036 WDA 2021
Appeal from the Decree Entered August 9, 2021
In the Court of Common Pleas of Indiana County Orphans' Court at
No(s): 32-20-0414
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
CONCURRING MEMORANDUM BY SULLIVAN, J.: FILED: April 20, 2023
While I agree that the orphans’ court’s decree should be vacated and
the matter remanded, I disagree with the Majority’s analysis and write
separately to explain the alternate basis on which I concur in the result of the
Majority’s decision.
The majority correctly notes that, in C.M., our High Court explained that
a parent’s efforts to enforce his or her legal custody rights unquestionably
establish the affirmative performance of a positive parental duty, and that
when such action is taken in the face of a custodial parent’s efforts to thwart
access to the child, the attempts to enforce custodial rights provide evidence
that is “highly relevant” to the question of whether the requirements of
subsection 2511(a)(1) have been met. In re Adoption of C.M., 255 A.3d
____________________________________________* Retired Senior Judge assigned to the Superior Court.
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343, 367 (Pa. 2021). In my view, the Court’s analysis and holding in C.M.
was dictated, in large part, by the fact that mother had erected barriers to
father’s relationship with child, and that father had been actively pursuing
a custody complaint for two months when mother and maternal
grandparents filed their termination petition. The C.M. Court highlighted
father’s legal efforts as follows:
In this case, two months prior to the April 15, 2019 filing of
the termination petition, Father attempted contact, Mother
refused, and in response, on February 28, 2019, Father initiated
and actively pursued a complaint for custody, seeking a
visitation arrangement that could gradually increase to shared
custody. . . . Father attended the court-ordered mediation
and conciliation proceedings, suggesting he begin contact
gradually, and complied with the court’s requirements in the
support case until Mother withdrew her complaint. . . . [B]efore
the custody matter and Father’s contact with C.M. could progress
any further, appellants filed their termination petition.
Thus, . . . despite Father’s prior lengthy absence, his
proactive participation in the custody court’s measured
requirements during the time the case was active
demonstrates affirmative performance of Father’s parental duties
to the maximum extent apparent at the time under these
circumstances, as well as an interest in and respect for the young
child’s safety and emotional needs. The orphans’ court's finding
Father “fail[ed] to take further action to have contact with his
child” is not supported by the record, and conflicts with the court’s
additional finding the action he did take to attempt contact — i.e.,
pursuing a legal proceeding to enforce his custodial rights
— was too late, which conclusion is not supported by the law. . . .
These determinations were therefore erroneous. Consequently,
because the record demonstrates Father continuously
exercised parental duties during the two months preceding
the filing of the petition, appellants did not meet their burden
to establish by clear and convincing evidence he failed or refused
to perform parental duties, or a settled purpose of relinquishment,
for a period of at least six months immediately preceding the filing
of the petition.
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C.M., 255 A.3d at 368 (internal citations and quotation marks omitted,
emphasis added).
However, a few months later, in In re Adoption of L.A.K., 265 A.3d
580, 594 (Pa. 2021), the High Court was faced with a mere one-week period
between the filing of the custody complaint and the filing of a termination
petition, which is an insufficient time period for any party to litigate a custody
complaint. Consequently, the L.A.K. Court was unable to employ the “actively
pursued” reasoning it used in C.M. See id. Moreover, the L.A.K. Court
distinguished C.M. on the basis that there were no attempts by mother to
dissuade father from having contact with his children. See id., 265 A.3d at
594. Thus, the L.A.K. Court was required to address a situation where, in the
critical six-month period prior to the filing of the termination petition, the non-
custodial father performed no parental duties but had nevertheless initiated
legal proceedings by filing a complaint for custody after working diligently to
overcome his own barrier of alcoholism.
In my view, the L.A.K. Court elected to refine its ruling in C.M. to hold
that the mere filing of a custody complaint in the six-month period prior to the
filing of the termination petition, without more, is sufficient to preclude the
involuntary termination of parental rights under section 2511(a)(1). The
L.A.K. Court stated:
As in C.M., this legal action constituted the affirmative
performance by father of a positive parental duty in the crucial
six-month period before appellees filed the termination petitions.
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Based upon our ruling in C.M., father must be credited for
his assertion of custody rights during the crucial six-month
period. Thus, appellees failed to provide clear and
convincing evidence that father failed or refused to
perform parental duties, or demonstrated a settled purpose
of relinquishment during the six-month period immediately
preceding the filing of the termination petitions.
Id. at 594-95 (footnote and unnecessary capitalization omitted, emphasis
added). The L.A.K. Court expressly determined that father’s initiation of legal
proceedings to enforce his custodial rights to his children prevented
termination under section 2511(a)(1). After unequivocally concluding that the
petitioners had not met their burden of proof under section 2511(a)(1), the
High Court went on to discuss the totality of the circumstances. Accordingly,
its discussion of the totality of the circumstances is dicta.
As I interpret C.M. and L.A.K., where it is undisputed that the non-
custodial parent has evidenced a settled purpose of relinquishing his or her
parental claim to a child or has refused or failed to perform parental duties
and no custody complaint has been filed, the trial court must still examine
the individual circumstances and any explanation offered by the parent to
determine if that evidence, in light of the totality of circumstances, clearly
warrants permitting the involuntary termination of parental rights pursuant to
section 2511(a)(1). C.M., 255 A.3d at 364; see also id. at 365 (requiring
consideration of the totality of the circumstances, including: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment contact between
the parent and child, if any, including any efforts made by the parent to
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reestablish contact with the child; and (3) the effect that termination of
parental rights would have on the child pursuant to subsection 2511(b)).
However, pursuant to L.A.K., where the non-custodial parent has
initiated legal proceedings to enforce his or her custodial rights in the critical
six-month period prior to the filing of the termination petition, the petitioners
are precluded from meeting their burden of proving by clear and convincing
evidence that the non-custodial parent failed or refused to perform parental
duties or demonstrated a settled purpose of relinquishment during the six-
month period immediately preceding the filing of the termination petition.
See L.A.K., 265 A.3d at 594-95.
In sum, I believe that the orphans’ court’s determination that Father
“has never performed any parental duties” and “fail[ed] to perform any
parental duties in the six-month period prior to the filing of the termination
petition” is not supported by the record. See Trial Court Opinion, 9/22/21, at
unnumbered 5. As instructed by our Supreme Court in L.A.K., Father must
be credited for his assertion of custody rights during the crucial six-month
period. See L.A.K., 265 A.3d at 594-95. Because the orphans’ court failed
to afford Father such credit, the record does not support the court’s
determination that Mother and Stepfather established by clear and convincing
evidence that Father failed or refused to perform parental duties or a settled
purpose of relinquishment for a period of at least six months immediately
preceding the filing of the termination petition. See id.; see also 23
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Pa.C.S.A. § 2511(a)(1). For this reason, I would vacate the termination
decree and remand for further proceedings in the custody action.
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