"Father Has Held Himself Out as 'the Father,' … But Father Has Also Referred to Himself as 'the Mother'"

Of course, as usual, the resolution of this questions turns on a question of procedure.

From In re Adoption of L.U., decided Friday by the Pennsylvania Superior Court (in an opinion by Judge Deborah Kunselman, joined by Judges Carolyn Nichols & Daniel McCaffery):

S.U. (Father), pro se, appeals the orders issued by the Westmoreland County Orphans' Court, which dismissed his petition to terminate the parental rights of C.J. (Mother) regarding three of their Children. Father sought termination, arguing that Mother was merely a "gestational surrogate," who lacked the parental rights guaranteed by the Fourteenth Amendment of the United States Constitution. The orphans' court found that Father, a nonresident, turned to the Pennsylvania judiciary in order to attack the parties' operating custody order, which had been issued in West Virginia, where Mother and the Children reside. The orphans' court concluded it lacked jurisdiction to adjudicate the termination petition under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). After careful review, we affirm….

The parties' first child was conceived through intrauterine insemination (IUI) and is not the subject of this appeal. The remaining three Children were conceived through in-vitro fertilization (IVF). Mother carried the embryos and gave birth to them. Mother was listed as the mother on all three birth certificates, while Father was listed as the father. Mother believed Father's sperm was used to conceive the Children, until she learned during the West Virginia custody litigation that this was not the case. "Before the parties met, Father underwent surgeries to correct unspecified 'anomalies' [….]"

During the West Virginia litigation, Mother became aware that the eggs used in the birth of the parties' Children actually came from Father, who had his own eggs harvested and stored years prior. {During the West Virginia litigation, Father had "testified that he was not a binary male or female at birth, although he has always considered himself to be male." A court granted Father's petition to change the name on his birth certificate to his current name in 2002. Although we are careful not to speculate, the record suggests Father was born with male and female reproductive organs.}

In the record before this Court, Father has held himself out as "the father" in this matter. But Father has also referred to himself as "the mother"—because his eggs were used to conceive the Children—to advance his legal position.

Father's position is that Mother has no parental rights, because the Children were conceived using his eggs, not hers, and because he was listed as the father on the Children's birth certificate. Thus, Father appears to argue that he is the mother in fact, and the father by law. Ultimately, Father's gender and biology is immaterial to our disposition. We highlight these facts only insofar as they clarify Father's legal position and the historical background of this case, which the orphans' court set forth in great detail:

Father is a registered nurse and nurse practitioner. It is unclear where Father currently resides, but Father previously resided in West Virginia.

Mother resides in West Virginia. The parties, who were never married, were in a relationship for approximately 12 years, although the exact nature of their relationship is unclear.

The parties have four children together, all of which were conceived nontraditionally. Father did not discuss his gender but testified that Father had his eggs harvested and stored.

The parties first child, G.U., was born in 2011 and is not subject to these proceedings. This child was conceived through intrauterine insemination of Mother, which was performed by Father. While Mother believed that [Father] was the sperm donor for this procedure, Father did not provide sperm and an unidentified sperm donor was used. The parties' second child, L.U.[1], was conceived through IVF at Fertility Center in New York in 2014. The twins, Z.U. and L.U.[2], born in 2016, were conceived also through IVF.

Mother is listed as the legal mother and Father is listed as the legal father on all three of the Children's birth certificates.

On Father's Termination Petition, Father alleges that he is seeking to terminate the parental rights of a "Gestational Surrogate."

A hearing on Father's Termination Petition was scheduled for August 18, 2021. Mother was represented by [by counsel],while [Father] appeared pro se.

Father indicated that he had initially filed Petitions in Allegheny County in 2020. The Allegheny Court of Common Pleas found that Father needed to provide Mother with notice or obtain her consent. Since Father did neither, the Allegheny County Court of Common Pleas dismissed the case without prejudice and the Superior Court of Pennsylvania affirmed.

Father testified about the events which led to a custody order from Mason County, West Virginia. When L.U.[1] was born, the parties had no issues in their relationship. During Mother's pregnancy with the twins, Z.U. and L.U.[2], there were medical issues which caused her to be placed on bedrest. During this time, L.U.[1] became ill and had to be hospitalized for weeks. Father stayed with L.U.[1] while Mother was recovering.

For various reasons, the parties' relationship deteriorated during this time in which Mother was hospitalized. Shortly before the twins were born, Father filed a Petition for Declaration of Parentage and Motion to Seal Record in the Circuit Court of Kanawha County, West Virginia attempting to prevent Mother's name from being placed on the twins' birth certificates.

Following a two-day hearing in October 2017, the Family Court of Mason County, West Virginia entered a Final Allocation Order on February 6, 2018, detailing the custodial responsibilities of the parties. Mother was designated as the primary residential and custodial parent of the Children. Father was initially ordered to have custody every-other weekend.

Father has filed a multitude of actions and petitions since the custody order was entered awarding Mother primary custody. The Family Court of Mason County entered an Order prohibiting Father from making further pro se filings as the court believed Father was continuously attempting to undermine Mother's ability to parent the Children.

Father testified that he wished to terminate Mother's rights to allow for Father's Wife (C.U.) ("Stepmother"), to adopt the Children, as Father has consistently identified Mother as nothing more than a gestational surrogate who carried the Children to birth. Father testified that the Petition to Terminate Mother's rights is a "collateral attack" on the orders from West Virginia.

Father offered few details about his residency but stated that he had been a resident of Pennsylvania since 2020. Father indicated that he signed a monthly lease. The court was provided with a copy of the receipt from Airbnb which indicated that Father rented the unit from June through August 2021. Father provided the court with a notice from PennDOT stating that Father had changed his address on June 1, 2021. Father provided the court with a receipt indicated that he had physical therapy sessions for his shoulder thorough the summer in Pennsylvania.

Counsel for Mother alleges that Father is a vexatious litigator who attempts to present petitions in front of any court that will allow it.

Mother's counsel spoke to the Postmaster of the Post Office for Smithton, Pennsylvania, which indicated that the office would reject any mail sent to Father's address. Mother doubted the legitimacy of Father's residency, as the address Father provided was located above a bar that was listed on Airbnb as a rental unit which could be rented daily.

The orphans' court scheduled an additional hearing for October 8, 2021, to discuss any outstanding issues.

At the time of the second hearing, the court was made aware of a filing by Father in Ohio regarding this case. Father stated that he was unaware of this filing, while Mother argued that the filing was a further attempt by Father to initiate termination or custody proceedings in another jurisdiction.

At the time of the second hearing, Father had an appeal pending in Putnam County, West Virginia, regarding the custody order.

Father did not provide credible testimony regarding his residences. Father claimed that he was allowed to have two residences at once and he exhausted all of his remedies in West Virginia. Father acknowledged that the pending West Virginia appeal regarded the same issues complained of in the termination petition.

Father incredibly testified that the West Virginia Custody Order was created "out of thin air" without Father's consent. Father did not agree with Mother's recitation of the West Virginia Orders and continuously said the orders were void because they were unconstitutional.

Father said multiple times in the hearing that Mother "kidnapped" the Children from him. Mother credibly testified that she was in a relationship with Father and the couple spent twelve years together. During the relationship, the two would attend events and family gatherings as a couple. The West Virginia Courts found Mother's testimony regarding the relationship to be credible.

Father argued that West Virginia incorrectly determined Mother to be credible and that Mother was nothing more than a "court-created psychological parent." Father maintained that the courts of West Virginia relied on an unconstitutional statute which makes the entire custody order void.

Mother testified that she lives in constant fear that Father will find a court that terminates her parental rights. She is constantly worried that the police will show up at her home and take the Children from her.

Father indicated that he had at least six appeals pending in West Virginia in addition to filings in other states. Stepmother also has appeals pending in West Virginia regarding adoption of the Children.

Father did not offer further testimony regarding their employment but stated that Pennsylvania is where their desired employment was located. Father did not state if he actually works in Pennsylvania.

In November 2021, the court was made aware that Father filed a petition for adoptions in the Superior Court of the District of Columbia. The court and the Superior Court of the District of Columbia had correspondence regarding the nature of the case. The D.C. Superior Court indicated that Father fraudulently claimed that the Children had lived with him since birth and the "gestational surrogate" was not involved in the Children's lives. Father provided an address in Washington, D.C., which was the address of a packing and shipping company. The D.C. Court was unaware of the custody proceedings in West Virginia and termination proceedings in Pennsylvania. The D.C. Court was unaware that Mother was granted primary physical custody and that Father's custodial rights have been suspended.

A short hearing was held February 11, 2022, to discuss the proceedings that had occurred in the D.C. Court.

Father indicated that he began living in Washington, D.C., approximately one month before filing their D.C. petition. Father's D.C. petition was filed on November 2, 2021. Father indicated that he no longer lives in Westmoreland County, Pennsylvania at the time of the hearing and was temporarily living in West Virginia….

Father dedicates a large portion of his Brief to argue that Mother has no parental rights under the Fourteenth Amendment, because she is not a biological parent. Father cites a considerable amount of case law, which is mostly inapposite to the matter at hand. The matter before us does not concern Mother's status as a parent, nor the legal implications of the same. Those issues were resolved by the West Virginia courts. We will not address them. We only address the portion of Father's argument that involves the orphans' court decision to decline jurisdiction….

[T]he courts in West Virginia have adjudicated the parties' custody litigation for years…. Pennsylvania was never the Children's home state; nor was it that case that no other state had jurisdiction (West Virginia plainly had jurisdiction); nor was it the case that West Virginia declined to exercise its jurisdiction on the ground that Pennsylvania was a more convenient forum…. [And] no one in this family lives in Pennsylvania….

In short, the orphans' court did not error or abuse its discretion when it concluded that it lacked jurisdiction under the UCCJEA to adjudicate Father's termination petition….