J-A20038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ELIZABETH ENCARNACION AND LUIS : IN THE SUPERIOR COURT OF RAUL RIVERA : PENNSYLVANIA : : v. : : : DIANNE VANESSA REYES-RIVERA, : RAMON RIVERA AND BERKS COUNTY : No. 25 MDA 2023 CHILDREN AND YOUTH SERVICES : : : APPEAL OF: BERKS COUNTY : CHILDREN AND YOUTH SERVICES : AND ASHLEY ESPOSITO, ESQUIRE :
Appeal from the Order Dated November 28, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 18-16831
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 16, 2023
Berks County Children and Youth Services (“CYS” or “the Agency”) and
Ashley Esposito, Esquire (collectively, “Appellants”), appeal the November 28,
2022, order imposing sanctions for contempt and ordering CYS to mediate a
custody or visitation schedule between Elizabeth Encarnacion
(“Grandmother”), Luis Paul Rivera (“Grandfather”) (collectively,
“Grandparents”) and three of Grandparents’ grandchildren, L.R.R., born in
January 2008, A.R.R., born in December 2008, and C.A.R.R., born in July 2013
(collectively, “the Children”). After a careful review, we reverse.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A20038-23
Although this controversy is before us on the narrow issue of contempt
stemming from a custody matter, the case also inextricably touches upon
related dependency and adoption proceedings. The certified record reflects
the following relevant facts and procedural history: CYS has been involved
with this family in some capacity since 2007.1 See Encarnacion v. Berks
County Children & Youth, 284 A.3d 935 (Pa.Super. 2022) (unpublished
memorandum). The Children were removed from their biological parents’
custody in July 2017 due to allegations of domestic violence, inappropriate
parenting, mental health issues, and substance abuse. See N.T., 9/6/19, at
9-10, 18-19. The Children were adjudicated dependent and placed with a
foster family (“Adoptive Parents”) beginning in December 2017.2 See
Encarnacion, supra, at 2-3.
In October 2018, Grandparents initiated the instant custody action,
wherein they sought “physical and legal custody” of the Children or,
1 The Agency’s involvement did not begin with the Children but concerned three children that resided in a kinship placement with Grandparents between September 2007 and May 2011. See N.T., 9/6/19, at 26-27. During this time, the Agency detailed concerns about Grandfather using drugs and driving without a license, unpaid truancy fines, pest infestations, incidents of domestic violence, and allegations of criminal behavior involving weapons and narcotics. See id. at 27-30. Ultimately, the children were removed from Grandparents’ custody in May 2011. See id. at 29-30. Thereafter, Grandparents unsuccessfully sought to be a foster resource in eight cases involving seventeen of their children or grandchildren. See id. at 31-38.
2 The Children have remained exclusively in Adoptive Parents’ care since that time, save for a period from August 2018 to June 2019, when they resided with a different, non-familial foster family. See N.T., 9/6/19, at 14-15.
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alternatively, visitation rights. See Amended Complaint for Custody, 2/17/19,
at ¶ 19; Pre-Trial Memorandum, 2/17/19, at 3. The custody case was
assigned to the Honorable James M. Bucci, who ordered it be held in abeyance
after noting the Children were subject to parallel dependency proceedings
overseen by the Honorable Jeffrey K. Sprecher. See Order, 3/1/19.
In April 2019, Grandparents petitioned the dependency court for
standing to participate in those proceedings. See N.T., 4/12/19, at 9-12. The
Agency opposed the request and noted that Grandparents had twice applied
to be foster parents to the Children, had been denied on both occasions, and
had not appealed those findings.3 See id. The dependency court did not
grant Grandparents standing; however, the court directed that they be
afforded a “third chance” to establish themselves as a suitable kinship
placement for the Children. Id. at 16-17. At the same hearing, the Children’s
permanency goal was changed from reunification to adoption. See id. at 17-
18. At Grandparents’ request, the custody court reconsidered its earlier
directive and scheduled a hearing on their custody petition for October 2019.
3 On October 25, 2017, Grandparents were denied foster placement status for the first time due to being unable to supply state police and child abuse clearances. See N.T., 4/12/19, at 11-13; N.T., 9/6/19, at 31. Grandparents’ second application was denied on January 4, 2018, after the Agency determined that they had failed to seek mandated mental health services. See id. Grandparents were required to appeal those determinations in writing within thirty days. See 55 Pa. Code § 3700.72 (“Foster family approval appeals.”).
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In August 2019, CYS referred Grandparents to an independent provider,
Diakon, for their third fitness evaluation in these matters. Ultimately, Diakon
declined to approve Grandparents as an adoptive home for the Children due
to concerns about their lack of truthfulness during the evaluation. See Brief
in Support of Petition to Vacate, 11/10/21, at Exhibit A. The record does not
reflect that Grandparents appealed that determination in any fashion.
Instead, Grandparents renewed their request for “due process” rights in
the dependency proceedings. See N.T., 9/6/19, at 15-17. The trial court
devoted the entirety of a September 6, 2016, hearing to conducting extensive
fact-finding concerning Grandparents’ relationship with the Children and their
history with the Agency. See id. at 8-116. Richard F. Small, Ph.D., a
stipulated expert in psychology who had conducted foster fitness evaluations
of Grandmother and Grandfather, opined that they both required mental
health evaluations and treatment for domestic violence issues before the
Children could be committed to their custody. See id. at 82, 91. Dr. Small
also reported that Grandparents were evasive and contradictory during their
evaluations. See id. at 85-86. Along similar lines, Joyce Riche of Diakon
confirmed that Grandparents had been rejected as an adoptive resource due
to their lack of candor during their third fitness evaluation. See id. at 96.
Ultimately, the dependency court adjourned the dependency
proceedings and afforded Grandparents an opportunity to undergo mental
health evaluations and domestic violence treatment. See id. at 106-16.
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On October 31, 2019, Judge Bucci recused himself from the custody
proceedings without having held a hearing.4 Thereafter, the matter was
assigned to a second judge who took no action. In February 2020, the custody
case was reassigned to Judge Sprecher, who was now overseeing both the
custody and dependency dockets. See Order, 2/6/20.
No custody hearing was held within this time frame. Between January
and February 2020, the parental rights of the Children’s biological parents
were terminated. See Encarnacion, supra, at 2-3. Thereafter, the COVID-
19 pandemic precluded the custody proceedings from progressing further.
Between February 2020 and July 2020, the parties unsuccessfully attempted
to negotiate an amicable resolution to Grandparents’ custody claims.
In December 2020, the dependency court credited a psychological
evaluation of the Children and ordered that their contact with their “birth
family” be suspended due to concerns about “past trauma” negatively
influencing the Children’s behavior. See Brief in Support of Petition to Vacate,
11/10/21, at Exhibit B. See also N.T., 2/10/21, at 7. Thus, Grandparents’
contact with the Children ceased in December 2020.
Ultimately, the custody court scheduled a hearing on Grandparents’
complaint for February 10, 2021. Prior to the hearing, Attorney Esposito was
reassigned to represent the Agency in the custody proceedings following the
4 The reason for Judge Bucci’s recusal is not evident in the certified record.
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sudden departure of one of her colleagues. On February 9, 2021, she applied
for a continuance. At the hearing the next day, she explained that she needed
additional time to review the extensive filings and records in the case since
she had only recently taken over the matter. See N.T., 2/10/21, at 8-9. In
seeking this continuance, Attorney Esposito also advised opposing counsel and
the court: “[B]y way of full disclosure, the [a]gency is continuing to move
forward with permanency for these children.” Id. at 10. The court granted
the request, and the hearing was rescheduled for March 4, 2021.
On February 16, 2021, however, the custody court was informed, for
the first time, that adoption decrees with respect to the Children had been
finalized by President Judge Thomas G. Parisi of the Berks County Court of
Common Pleas on that same day. See N.T., 2/17/21, at 5; N.T., 8/31/21, at
6. Specifically, it came to light that Adoptive Parents had filed a petition to
adopt the Children on February 3, 2021, through their private counsel, Susan
Denaro, Esquire. Although Attorney Esposito did not participate in the
adoption proceedings, she was aware of the pending adoption when she
sought a continuance in the custody court. See N.T., 2/17/21, at 5-7.
The next day, Grandparents’ counsel and Attorney Esposito appeared
before the custody court to address the circumstances that had effectively
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pre-empted Grandparents’ custody complaint.5 See id. at 6. Specifically, the
custody court expressed concern that Attorney Esposito had sought a
continuance in an act of gamesmanship to ensure that Grandparents’ custody
case was not heard on the merits. Id. at 5-7.
Attorney Esposito explained her actions as follows:
Respectfully, Your Honor, I did not ask for the continuance knowing that the adoption – I asked for the continuance because I genuinely needed time to actually understand and figure out what the case was. I didn’t even know that it was anticipated that the date would be set for a full hearing with witnesses, and I was not prepared to proceed not knowing the history of the case.
Id. She also explained that the circumstances posed by these intersecting
cases had placed her and the Agency in a “precarious” position since adoption
proceedings are deemed to be “confidential” under Pennsylvania law. Id. at
6-7. The custody court took no immediate action.
In March 2021, Grandparents filed a petition in the adoption proceedings
seeking to intervene, requesting that the decrees be vacated, and asking that
5 Pursuant to 23 Pa.C.S.A. § 5326, any “rights to seek physical custody or legal custody rights and any custody rights that have been granted…to a grandparent…prior to the adoption of the child by an individual other than a stepparent, grandparent or great-grandparent shall be automatically terminated upon such adoption.” 23 Pa.C.S.A. § 5326. As this Court has observed, “a decree of adoption terminates forever all relations between a child and his biological parents and severs the child entirely from its own family tree and engrafts it upon its new parentage.” E.T.S. v. S.L.H., 54 A.3d 880, 883 (Pa.Super. 2012) (concluding that any rights arguably based upon an assertion of in loco parentis “prior to the adoption of the [c]hildren was terminated at the time of their adoption”) (citing 23 Pa.C.S.A. § 5326)). See Faust v. Messinger, 497 A.2d 1351, 1353-54 (Pa.Super. 1985) (same).
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the adoption be transferred to Judge Sprecher. See N.T., 8/31/21, at 28-32.
Following an unrecorded conference that took place in President Judge Parisi’s
chambers on April 6, 2021, Grandparents voluntarily withdrew the
intervention petition without further proceedings. Id.
On May 26, 2021, Grandparents submitted a petition for special relief in
the custody court seeking, inter alia, to hold Appellants and Attorney Denaro
in contempt of court. On August 31, 2021, the custody court held a hearing
on the petition, wherein Attorney Denaro testified extensively regarding the
events that took place in the adoption proceedings.
Attorney Denaro reported that President Judge Parisi had been made
fully aware of Grandparents’ pending custody matter, and he had declined to
order that notice of the adoption proceedings be provided to Grandparents.6
See id. at 5-39. In opposing Grandparents’ allegations, Appellants reiterated
that they had been effectively precluded from alerting the custody court
regarding the adoption proceedings by the provisions of 23 Pa.C.S.A. § 2910,
which criminalizes disclosure of “confidential information relating to an
6 We note that 23 Pa.C.S.A. § 2721 only requires that notice of an adoption hearing be provided to “all persons whose consents are required and to such other persons as the court shall direct.” 23 Pa.C.S.A. § 2721. Grandparents are not identified as parties whose consent is necessary to adopt. See 23 Pa.C.S.A. § 2711(a)(1)-(5). Furthermore, this Court has opined that “[t]he limited, transitory nature of grandparental visitation privileges…convinces us that the privileges may be terminated in an adoption, just as all familial ties between an adoptee and other blood relatives are severed, without notice and without hearing.” Faust, 497 A.2d at 1353 (emphasis added).
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adoption” by “[a]ny officer or employee of the court, other than a judge[.]”
23 Pa.C.S.A. § 2910.
On October 18, 2021, the trial court filed an order providing as follows:
AND NOW, this 15th day of October, 2021, in accordance with the attached [o]pinion setting forth the procedural and substantive defects in the above captioned custody case and the related adoptions, it is hereby ORDERED that all parties, counsel, and the adoptive parents shall appear in Courtroom 9 on November 19, 2021, at 11:30 A.M. to work on an agreed visitation schedule between [Grandparents] and the [Children].
If the parties enter into an agreement prior to the hearing date, the parties shall submit the agreement and proposed order, and this court will cancel the hearing. This court’s goal is to allow contact as can be arranged by the adopting parents and [G]randparents.
Failing the above, this court will move forward with sanctions and a full custody hearing in the custody action, as previously scheduled on February 10, 2021, which hearing was circumvented by [the Agency] and counsel for [Adoptive Parents].
Order, 10/18/21. Appellants filed a petition to vacate the purported findings
of contempt, which was granted with respect to Attorney Denaro but denied
as to Appellants. See Order, 1/19/22.
Appellants filed an appeal from the January 19, 2022, order denying
their petition to vacate, which was quashed by this Court after we determined
that the order was not final and appealable since future proceedings were still
contemplated, i.e., a hearing concerning the imposition of sanctions. See
Encarnacion, supra, at 3-4. On remand, the custody court held a hearing
on sanctions, wherein the parties largely reiterated their earlier arguments
concerning contempt and confidentiality. See N.T., 11/10/22, at 2-25.
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On November 28, 2022, the trial court filed the following order:
AND NOW, this 23rd day of November, 2022, after argument of counsel and review of the record, it is hereby ORDERED as follows regarding the sanctions of [Appellants]:
1. This court has jurisdiction of the parties in this case due to the court’s finding of contempt. Courts retain jurisdiction to enforce orders.
2. At the time of the original custody trial, [the Agency] had legal custody of the [C]hildren and the ability to enter into custody agreements, which prior counsel for [the Agency] had agreed to do. [The Agency] did not execute any agreement and gave no reason why a custody agreement was not forthcoming. [The Agency] shall mediate a custody/visitation schedule of the subject children between plaintiffs and adoptive parents within 30 days of the date of this order.
3. In the event that no mediation order is entered by January 2, 2023, this court will be entering an order for custody/visitation upon praecipe of plaintiff’s counsel. The parties shall each submit a proposed order of visitation of this court no later than January 13, 2023.
4. [The Agency] shall pay plaintiffs’ attorney fees as stated in court by [Grandparents’ counsel] in the amount of $7,500.00 within 45 days of the date of this [o]rder.
5. Attorney Esposito shall pay a sanction in the amount of $250 payable to the County of Berks and delivered and filed in the Berks County Prothonotary Office within 45 days of the date of this order.
Order, 11/28/22, at 1-2.
On December 22, 2022, Appellants filed a timely notice of appeal along
with a concise statement of errors complained of on appeal pursuant to
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Pa.R.A.P. 1925(a)(2)(i) and (b).7 The custody court filed a responsive opinion
explaining the court’s reasoning pursuant to Rule 1925(a)(2)(ii).
Appellants have raised the following issues for our consideration:
1. Whether the trial court erred in finding that the evidence warranted a finding of civil contempt against [Appellants] where [Grandparents] failed to present sufficient evidence that there was contemptuous conduct?
2. Whether the trial court erred when it issued monetary sanctions against [Attorney Esposito] where [Grandparents] failed to present any evidence of monetary damages and where the amount ordered was inappropriate and unnecessarily burdensome?
3. Whether the trial court erred when it ordered [the Agency] to pay [Grandparents’] counsel fees where [Grandparents] failed to present invoices, bills, or other evidence of attorneys’ fees?
4. Whether the trial court erred in ordering [the Agency] to mediate a custody/visitation schedule where the trial court had no jurisdiction over the subject children given that they had already been adopted?
Appellants’ Brief at 4-5.
7 Given this Court’s earlier disposition in Encarnacion v. Berks County Children & Youth, 284 A.3d 935 (Pa.Super. 2022) (unpublished memorandum), we note that the trial court’s November 28, 2022, order imposing sanctions in connection with its earlier finding of contempt was final for the purposes of appealability. See Glynn v. Glynn, 789 A.2d 242, 248 (Pa.Super. 2001) (“[F]or a contempt order to be properly appealable, it is only necessary that the order impose sanctions on the contemnor and that no further court order be required before the sanctions take effect.”); Pa.R.A.P. 341(a). Instantly, the financial sanctions imposed upon Appellants took immediate effect, thereby rendering the order final and appealable. Furthermore, the mere fact that the order also contained a purge condition does not impact its finality in this context. See Glynn, 789 A.2d at 248 (“[T]he purge conditions did not render the [o]rder interlocutory.”).
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Our standard of review regarding a trial court’s finding of contempt is
“very narrow” and “limited to a determination of whether the trial court abused
its discretion.” Gross v. Mintz, 284 A.3d 479, 489 (Pa.Super. 2022). In this
context, an abuse of discretion occurs where the trial court, “in reaching its
conclusion, overrides or misapplies the law or exercises judgment which is
manifestly unreasonable, or reaches a conclusion that is the result of
partiality, prejudice, bias, or ill will as shown by the evidence of record.” Id.
Preliminarily, we note that the custody court did not explicitly identify
the nature of its contempt finding. Under Pennsylvania law, “[c]ontempt
proceedings may be criminal or civil in nature.” County of Fulton v.
Secretary of Commonwealth, ___ Pa. ___, 292 A.3d 974, 1027 (2023).
This distinction is not merely formalistic, but it is “extremely important” since
it determines both “the due process rights of the alleged contemnor” and the
relevant burdens of proof. Id. (cleaned up). There is no “bright line
distinction” drawn between the two basic varieties of contempt, since civil and
criminal contempt each share “common attributes.” Id. However, “the
decisions of our Supreme Court agree that the fundamental and controlling
difference between civil and criminal contempt proceedings is the ‘dominant
purpose’ of the sanctions that are to be imposed.” Id. (emphasis in original).
This determination “depends on whether the core purpose of the
sanction imposed is to vindicate the authority of the court, in which case the
contempt is criminal, or whether the contempt is to aid the beneficiary of the
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order being defied, in which case it is civil.” Id. at 1028. See Knaus v.
Knaus, 387 Pa. 370, 127 A.2d 669, 672 (1956) (“[W]here the act of contempt
complained of is the refusal to do or refrain from doing some act ordered or
prohibited primarily for the benefit of a private party, proceedings to enforce
compliance with the decree of the court are civil in nature.”). Additionally,
our Supreme Court has enumerated five additional factors that, if present,
suggest that a contempt proceeding is civil rather than criminal:
(1) Where the complainant is a private person as opposed to the government or a governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where the relief requested is primarily for the benefit of the complainant; and (5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion.
County of Fulton, supra, at 1028 (citation and quotation marks omitted).
Upon review, we readily conclude that the “dominant purpose” of the
custody court’s final contempt order of November 28, 2022, was to benefit
Grandparents by coercing Appellants into securing Grandparents legal custody
or visitation rights with respect to the Children. Accordingly, the basic thrust
of the contempt in the instant matter is civil in nature. See County of Fulton,
supra, at 1027-28. Furthermore, Grandparents are private litigants who
petitioned for a contempt finding in the instant case as a means of securing
relief, i.e., custody rights as to the Children. See id. at 1028. Finally, there
is no allegation or suggestion that the actions of Appellants were criminal, in
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and of themselves. Accordingly, we hold that the instant case concerns civil
contempt.
In order to sustain a finding of civil contempt,
the complainant must prove certain distinct elements by a preponderance of the evidence: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent. Moreover, a court may exercise its civil contempt power to enforce compliance with its orders for the benefit of the party in whose favor the order runs but not to inflict punishment. A party must have violated a court order to be found in civil contempt.
Gross, 284 A.3d at 489. In this context, “the general rule is that in civil
contempt proceedings the burden is on the complaining party to prove
noncompliance by a preponderance of the evidence, but that present inability
to comply is an affirmative defense which must be proved by the alleged
contemnor.” Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616, 621 (1977).
Appellant’s first claim for relief asserts that the custody court’s finding
of civil contempt was not supported by sufficient evidence. See Appellants’
Brief at 17 (“Despite this lack of evidence, the trial court opined that Attorney
Esposito committed fraud upon the court by omission when she failed to
inform the [custody] court, at the time she requested a continuance in the
custody matter, that the adoption hearing was scheduled a week later.”).
Unfortunately, the custody court’s Rule 1925(a) opinion is not responsive to
the issue of civil contempt. Instead, it discusses topics such as fraud and
culpability with the obvious object of convincing this Court to vacate the
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adoption decrees entered with respect to the Children. See Custody Court
Opinion, 2/27/23, at 26 (“To assure there is real access to the legal system,
the administration of justice, and confidence in the rule of law and the justice
system in our democracy, I am forced to ask for the only relief that still
remains, that the adoption hearing be vacated.”).
The custody court argues that such extraordinary relief is mandated due
to “the [a]gency’s intractable position that it does not have to facilitate any
visitation between the [C]hildren and Grandparents.” Id. at 11. Overall, the
custody court seems to believe that these custody proceedings should have
taken priority over the adoption proceedings. Id. at 22 (“If the adoption
hearing was stayed, I could have made the right decision with this information
and...avoided destroying Grandparents’ case by pulling the carpet out from
under them without any reason to do so. That would have been the right
thing.”). In support, the trial court has invoked In re Adoption of R.J.S.,
889 A.2d 92 (Pa.Super. 2005), wherein this Court affirmed a trial court’s
vacatur of an adoption decree based upon flagrant misrepresentations that
occurred during the underlying adoption proceedings.
In R.J.S., a maternal aunt and uncle had primary physical custody of a
child, while the child’s paternal grandparents had partial physical custody,
pursuant to an order entered following a “comprehensive custody evaluation”
and hearing. See id. at 93-94. Without providing notice to the grandparents,
the aunt and uncle filed a petition to adopt the child. During the ensuing
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proceedings, the maternal aunt and uncle made key omissions in their
representations to the adoption court, which resulted in the court never
learning of the paternal grandparents’ ongoing custody rights or relationship
with the child. Id. at 94-95. Although an adoption decree was entered, the
adoption court vacated it after concluding that the paternal grandparents “had
been entitled to notice of the adoption proceedings[.]” Id. at 95.
On appeal, this Court affirmed the vacatur of the adoption decree after
finding that the misrepresentations during the adoption proceedings had
effectively deprived the adoption court of an opportunity to determine what
parties were entitled to notice pursuant to 23 Pa.C.S.A. § 2721. R.J.S., 889
A.2d at 97. Furthermore, this Court held the failure to ensure that paternal
grandparents had an opportunity to participate in the adoption proceedings
had implications with respect to the “best interests” of the child, which
undermined confidence in the validity of the adoption determination. Id. at
98.
Concomitantly, we also must acknowledge that Pennsylvania precedent
provides that, in the context of adoption, “‘a child’s interests are best served
when all those who demonstrate an interest in the child’s welfare are allowed
to be heard.’” In re Adoption of J.E.F., 864 A.2d 1207, 1211 (Pa.Super.
2004) (quoting In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10, 15
(1992)). To that end, this Court has vacated adoption decrees where parties
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with custody interests are denied an opportunity to participate in the
proceedings. See R.J.S., supra, at 98-99; J.E.F., supra, at 1211.
There is a critical distinction, however, between these cases and the
instant controversy – any arguable question concerning the validity of the
adoption decrees pertaining to the Children are not presently before this Court
for adjudication.8 Rather, this appeal lies exclusively from the custody court’s
November 28, 2022, order, which imposed immediate sanctions upon
Appellants in connection with civil contempt. As recited above, neither of the
contempt-related orders entered in this case contained any directive that
purported to alter the validity or legal effect of the adoption decrees.
Indeed, the custody court acknowledged as much during the November
10, 2022, sanctions hearing, as follows:
THE COURT: [T]his is a contempt proceeding. I’ve tried to – I tried to make this that I could adjust proceeding where the right thing would be done to give someone the opportunity to give [Grandparents] visitation, to allow that to happen, and we could avoid contempt.
[GRANDPARENTS’ COUNSEL]: Right.
THE COURT: That didn’t happen. So, it’s simply a contempt petition, a contempt proceeding….
8 As discussed in the factual summary supra, Grandparents filed a petition in the adoption court seeking to intervene, vacate the adoption decrees, and transfer the adoption proceedings to the custody court. See N.T., 8/31/21, at 28-32. This motion, presumably, provided a potential avenue for the relief suggested by the custody court. However, Grandparents voluntarily withdrew it. See id.
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N.T., 11/10/22, at 22-23.
There is simply no dispute that the order in question in this appeal does
not touch upon the Children’s adoption decrees. To the extent the custody
court is now inviting this Court to reach beyond the scope of the order
appealed from by Appellants and sua sponte vacate the Children’s respective
adoption decrees, we must decline to do so as a matter of justiciability.9
Limiting our review, as we must, to the narrow question of civil contempt, we
will assess solely whether Grandparents adequately established the necessary
elements of civil contempt as to Appellants. See Gross, supra, at 489.
In discussing civil contempt, this Court has emphasized:
A court may exercise its civil contempt power to enforce compliance with its orders for the benefit of the party in whose favor the order runs but not to inflict punishment. A party must have violated a court order to be found in civil contempt. The ____________________________________________
9 Another crucial distinction between the cases cited above and the instant matter is that there are no indications that the adoption court was misled concerning the Grandparents’ status or existence. To the contrary, Attorney Denaro presented a summary of the procedural history concerning Grandparents’ involvement with the Children, which accurately apprised the adoption court that: (1) Grandparents had repeatedly sought to serve as a kinship placement for the Children and had been denied; (2) Grandparents’ visitations with the Children had been suspended in December 2020 based upon a therapeutic recommendation that was credited by Judge Sprecher; (3) Grandparents had initiated a custody action that was pending at the time of the adoption proceedings; and (4) although Grandparents were generally aware that the Agency was moving forward with the Children’s permanency goal, i.e., adoption, they had not been explicitly notified of the adoption proceedings instituted by Adoptive Parents. See CYS Exhibit 3 at 2; N.T., 8/31/21, at 5-39. Thereafter, the adoption court declined to direct that notice be provided to Grandparents as contemplated by Section 2721. Thus, there is no indication that the adoption court was unaware of the relevant circumstances.
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complaining party has the burden of proving by a preponderance of evidence that a party violated a court order[.]
Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001). See Marian Shop,
Inc. v. Baird, 670 A.2d 671, 673 (Pa.Super. 1996) (“In order to support a
finding of contempt, the order or decree which the contemnor has been held
to have violated must be definite, clear, and specific – leaving no doubt or
uncertainty in the mind of the contemnor of the prohibited conduct.”
(emphasis in original)).
As recited above, the two purported contempt orders issued in this case
were filed on October 18, 2021, and November 28, 2022, respectively. We
note that there is no allegation that Appellants were in violation of an existing
court order in October 2021, as required for a finding of civil contempt under
Pennsylvania law. See Garr, supra, at 189. In the absence of a colorable
violation of a court order, a finding of civil contempt would not be possible.
See id.; Baird, supra, at 673. Rather than a finding of contempt, we view
the custody court’s October 18, 2021, order as merely setting the stage for
future proceedings by ordering Appellants to negotiate and institute an
“agreed visitation schedule” that would award Grandparents some manner of
rights to the Children. See Order, 10/18/21, at 1. See also Encarnacion,
supra, at 3. Under this order, sanctions for contempt would only be
considered if the parties failed to execute such an agreement.
As detailed above, Appellants did not comply with this directive, and the
custody court made a finding of contempt and imposed monetary sanctions in
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the November 28, 2022, order. See Order, 11/28/22, at 1-2. From the
language in the order, it is clear that the custody court predicated its contempt
findings upon Appellants’ failure to comply with the October 18, 2021, order.
See id. at 1-2 (noting that these proceedings sounded in contempt and
Appellants had failed to negotiate a custody agreement with Grandparents as
ordered by the custody court).
However, it is well-established that “[t]o impose civil contempt the trial
court must be convinced beyond a reasonable doubt from the totality of
evidence presented that the contemnor has the present ability to comply with
the order” they are alleged to have violated. Garr, supra, at 189. Instantly,
it is beyond cavil that the Children implicated in these custody proceedings
had already been adopted when the custody court ordered Appellants to
negotiate a custody or visitation schedule with respect to Grandparents. As a
consequence of the Children’s adoption, Grandparents could no longer seek
any custody rights as to the Children as a matter of Pennsylvania law. See
23 Pa.C.S.A. § 5326 (providing that “[a]ny rights to seek physical custody or
legal custody rights” are “automatically terminated” upon adoption). As this
Court has explained, “[a] decree of adoption…severs the child entirely from
its own family tree and engrafts it upon its new parentage.” R.J.S., supra,
at 100 n.7. We also emphasize that a decree of adoption “terminates the
natural grandparents’ visitation rights[.]” Id.
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Thus, at the time Appellants were ordered to begin negotiations,
Grandparents had no legal basis under which they could be awarded custody
or visitation. Furthermore, following the adoption decree, the Agency no
longer had legal custody of the Children and possessed no ability to directly
control or impact custody of the Children in a meaningful way.
We discern that the only avenue by which Grandparents could arguably
obtain legal visitation with the Children is by the execution of a post-adoption
contact agreement (“PACA”), which provides “an option for adoptive parents
and birth relatives to enter into a voluntary agreement for ongoing
communication or contact[.]” 23 Pa.C.S.A. § 2731. However, it is a matter of
record that Adoptive Parents are unwilling to enter into such an agreement
with Grandparents. See N.T., 8/31/21, at 11 (Attorney Denaro reporting that
her clients, Adoptive Parents, refuse to consent to the execution of a PACA).
Given Adoptive Parents’ refusal to consent, any PACA that was prospectively
negotiated between Appellants and Grandparents in service to the custody
court’s October 18, 2021, order would not be approvable. See 23 Pa.C.S.A.
§ 2735(b)(1) (mandating that a PACA be “entered into knowingly and
voluntarily by all parties” as a prerequisite to its court approval). See also,
e.g., Faust v. Messinger, 497 A.2d 1351, 1353-54 (Pa.Super. 1985)
(“[A]doptive or natural parents should have the right to select the persons
with whom their child will associate as long as they properly perform their
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duties to the child. To take this right away from proper parents would not be
for the best interests of the child.”).
Based upon the foregoing, we find that the custody court abused its
discretion and legally erred by finding Appellants in civil contempt for violating
an order that was not capable of fulfillment. As discussed above, the record
is clear that Grandparents had no legal standing to seek custody in their own
right, and Adoptive Parents were not willing to gratuitously grant them any
analogous rights. See 23 Pa.C.S.A. § 5326; N.T., 8/31/21, at 11. Appellants
were effectively ordered to undertake what amounted to a fool’s errand – to
secure visitation rights for Grandparents in the absence of any legal
mechanism with which to do so.
Instantly, the custody court’s findings of civil contempt and imposition
of sanctions were predicated upon Appellants’ purported failure to comply with
this impossible provision of its order. See Order, 11/28/22, at 1-2.
Accordingly, we reverse the findings of contempt and the sanctions imposed
upon Appellants. See, e.g., Sinaiko v. Sinaiko, 664 A.3d 1005, 1009-10
(Pa.Super. 1995) (“[A] showing of non-compliance is not sufficient in itself to
prove contempt….A court cannot impose a coercive sentence conditioned on
the contemnor’s performance of an act which is incapable of performance.”
(citations and quotation marks omitted)).
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Based upon our resolution of Appellants’ first claim for relief, we need
not address the remainder of their issues.10
Order reversed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 10/16/2023
10 The custody court’s November 28, 2022, order contemplates further proceedings and essentially promises to enter an order in Grandparents’ favor. See Order, 11/28/22, at ¶ 3 (“In the event that no mediation order is entered by January 2, 2023, this court will be entering an order for custody/visitation upon praecipe of plaintiff’s counsel.”). We express no opinion on the potential validity of such an order, as it is not presently before us for consideration. However, we caution the custody court that “[i]t is settled that an adjudication of contempt is not a proper basis to modify an existing custody arrangement.” J.M. v. K.W., 164 A.3d 1260, 1267 (Pa.Super. 2017). Furthermore, an award of custody rights is not one of the enumerated sanctions permitted in the context of contempt proceedings. Cf. 23 Pa.C.S.A. § 5323(g)(1)(i)-(v).
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