Interest of: A.R. Appeal of: D.R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
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APPEAL OF: D.R., FATHER : No. 488 EDA 2019
Appeal from the Decree Entered January 14, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000010-2018,
FID: 51-FN-002198-2015
BEFORE: OLSON, J., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2019
D.R. (Father) appeals from the decree entered January 14, 2019, which
terminated involuntarily his parental rights to his daughter, A.M.R. (Child),
born in May 2008.1 We affirm.
A prior panel of this Court summarized the facts and procedural history
of this matter as follows.
In October 2015, [the Philadelphia Department of Human
Services (DHS)] received a report alleging that Child had been the
victim of sexual abuse by Mother’s ex-paramour and that Mother
had stopped sending Child to school for fear that Child would
disclose the abuse to staff. The report was determined to be valid,
and Child was removed from Mother’s home. Following a shelter
care hearing, DHS was granted temporary legal custody of Child.
At that time, Father was not involved in the care of Child. Child
was placed in foster care and DHS subsequently filed a
dependency petition. Child was adjudicated dependent on
October 26, 2015, with full legal custody granted to DHS. Father
did not attend the dependency hearing.
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1The trial court confirmed the consent of E.C. (Mother) and terminated her
parental rights by decree entered April 10, 2018. Mother did not appeal.
* Retired Senior Judge assigned to the Superior Court.
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The court conducted permanency review hearings between
November 2015 and January 2018. Father met with Community
Umbrella Agency (CUA) representatives, where permanency goals
were identified for him at a single case plan (SCP) objective
meeting. These goals were to cooperate with supervised
visitation; attend Achieving Reunification Center (ARC) for
parenting classes; and obtain appropriate housing. In early 2016,
Child, who had been previously placed with paternal grandmother,
was removed from the home after alleging that grandmother hit
her. Child was placed in a pre-adoptive foster home, where she
has resided since. As of September 2017, Father was not
compliant with his SCP objectives. He visited Child only twice, in
July 2017, had not attended ARC, and had not obtained
appropriate housing.
On January 8, 2018, DHS filed a petition seeking to
involuntarily terminate Father’s parental rights and change Child’s
permanency goal to adoption. On April 10, 2018, the court held
a hearing on the termination and goal change petitions. Child was
represented by Melanie Silverstein, Esquire, as legal counsel and
Kathleen Taylor, Esquire, as guardian ad litem. Neither Attorney
Silverstein nor Attorney Taylor presented witnesses or
participated in cross examination. Neither attorney made
argument regarding Child’s best interests or legal interests, and
they joined DHS’s argument. Father was represented by counsel
and testified on his own behalf. Cynthia Marcano, the CUA case
manager, testified for DHS, and opined that it was in Child’s best
interests for Father’s parental rights to be terminated and her goal
changed to adoption. Following the conclusion of DHS’s case in
chief, the court granted the petition pursuant to 23 Pa.C.S.[]
§ 2511(a)(1), (2), and (b), and entered a decree terminating
Father’s parental rights.
Father timely filed a notice of appeal and a concise
statement of errors complained of on appeal from the termination
docket….
In the Interest of A.M.R., 201 A.3d 833 (Pa. Super. 2018) (unpublished
memorandum at 1-3) (citations to the record and quotation marks omitted).
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On appeal, a prior panel of this Court vacated the termination decree
without prejudice pursuant to In re Adoption of L.B.M., 161 A.3d 172, 183
(Pa. 2017), and its progeny, finding that Child’s legal interests were not
apparent from the certified record and that it was not clear whether Attorney
Silverstein performed her duties as Child’s legal counsel.2 This Court directed
the trial court to reappoint legal counsel in order to ascertain Child’s legal
interests. We further instructed as follows.
Once counsel identifies Child’s preferred outcome, counsel shall
notify the trial court whether termination of Father’s parental
rights is consistent with Child’s legal interests. If Child’s preferred
outcome is consistent with the result of the prior termination
proceedings, the trial court shall re-enter its April 10, 2018
termination decree as to Father. If the preferred outcome is in
conflict with the prior proceeding, the trial court shall conduct a
new termination/goal change hearing as to Father only, to provide
Child’s legal counsel an opportunity to advocate on behalf of
Child’s legal interests.
A.M.R., 201 A.3d 833 (unpublished memorandum at 6) (citation omitted).
Following remand, the trial court conducted a hearing on January 14,
2019. Father’s counsel, Jay Stillman, Esquire, appeared at the hearing, but
Father did not. At the beginning of the hearing, Attorney Stillman requested
a continuance. N.T., 1/14/2019, at 4. Attorney Stillman explained that he
spoke with Father and informed him of the hearing. Id. at 5. Father “was to
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2 The author of this memorandum dissented, arguing that there was nothing
in the record suggesting that Attorney Silverstein failed to perform her duties
as legal counsel.
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be here,” Attorney Stillman added, but was unable to attend because “he has
car trouble.” Id. The court interjected, asking Attorney Stillman to confirm
that Father was aware of the court date. Id. at 6. Attorney Stillman answered
in the affirmative and the court denied his request for a continuance.3 Id.
Attorney Silverstein then discussed Child’s legal interests on the record.
She stated that she met with Child twice, on November 16, 2017, and January
2, 2019, and that on both occasions Child informed her that she wanted to be
adopted by her current foster parents. Id. at 7. Child also informed her that
she does not want to live with Father or have any contact with him. Id. Based
on Attorney Silverstein’s statements, the court announced that it would once
again terminate Father’s rights. Id. at 8. The court re-entered its termination
decree that same day. Father timely filed a notice of appeal on February 8,
2019, along with a concise statement of errors complained of on appeal.
Father now raises the following claim for our review. “Whether the Trial
Court erred in denying [Attorney Stillman’s] ‘Motion for Continuance;’ and
absent the presence of [Father], proceeding forward with the termination of
[Father’s] parental rights (previous Notice of Appeal, Concise Statement
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3 In its opinion, the trial court states that it denied Attorney Stillman’s request
for a continuance because Father was aware of the court date and because it
had continued the matter once before on January 4, 2019. Trial Court Opinion,
3/28/2019, at 12. It is not clear from the record why the court ordered the
previous continuance.
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Pursuant to 1925[(b)], and Appellant’s Brief, having already been submitted
regarding all substantive issues)[?]”4 Father’s Brief at 5 (italics omitted).
We apply an abuse of discretion standard of review when considering
the denial of a continuance request. In the Interest of D.F., 165 A.3d 960,
965 (Pa. Super. 2017). “‘An abuse of discretion is more than just an error in
judgment and, on appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the results of partiality, prejudice, bias, or ill-
will.’” Id. (quoting In re J.K., 825 A.2d 1277, 1280 (Pa. Super. 2003))
(citations omitted).
In his sole issue on appeal, Father contends that the trial court erred by
denying Attorney Stillman’s request for a continuance because he had a due
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4 Father does not explain his parenthetical reference to the filing of a previous
notice of appeal, concise statement, and appellate brief. It appears that he
may be attempting to incorporate the claims from his previous appeal into the
current appeal. However, Father failed to develop those claims in his current
brief and failed to preserve them in his current concise statement. This Court
will not review claims that an appellant has failed to develop in the argument
section of his or her brief and/or has failed to preserve in his or her concise
statement. See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017)
(“It is well-settled that this Court will not review a claim unless it is developed
in the argument section of an appellant’s brief, and supported by citations to
relevant authority…. Further, it is well-settled that issues not included in an
appellant’s … concise statement of errors complained of on appeal are
waived.”). It is apparent that this case law refers to the brief and concise
statement filed in the appeal presently before the Court. We will not go back
and review claims that an appellant raised in a previous appeal when he or
she has failed to raise them in the current appeal, which stemmed from a new
order and new notice of appeal.
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process right to be present at the hearing and because he did not receive
proper notice of the hearing pursuant to the Adoption Act.5 Father’s Brief at
8-10.
As Father observes, it is beyond cavil that a parent possesses the right
to procedural due process in any proceeding to terminate his or her parental
rights involuntarily. In the Interest of A.N.P., 155 A.3d 55, 66 (Pa. Super.
2017). However, that right is not without limitations. “Due process requires
nothing more than adequate notice, an opportunity to be heard, and the
chance to defend oneself in an impartial tribunal having jurisdiction over the
matter. Due process is flexible and calls for such procedural protections as
the situation demands.” Id. (citations and quotation marks omitted).
The Adoption Act instructs that a parent must receive written notice of
an involuntary termination hearing ten days in advance, by either personal
service, registered mail, or “by such other means as the court may require.”
23 Pa.C.S. § 2513(b); see also Pa.O.C.R. 15.4, 15.6 (providing for notice of
involuntary termination hearings “by personal service, service at his or her
residence on an adult member of the household, or by registered or certified
mail to his or her last known address”). While a parent must receive the
opportunity to be heard and the chance to defend himself or herself at the
hearing, a parent’s presence is not required for the termination of parental
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5 23 Pa.C.S. §§ 2101-2938.
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rights. D.F., 165 A.3d at 965. Thus, a parent may not prevent termination
by simply failing to appear at a hearing for which he or she received notice.
Id.
Once a trial court concludes that an absent parent has received notice
of an involuntary termination hearing, our case law provides that the court
must balance “the evidence submitted in support of the request against other
relevant factors, such as a parent’s response and participation, or lack thereof,
in prior proceedings and appointments important to the welfare of the child.”
Id. We have stated that the court’s analysis “necessarily will include
consideration of the amount of time that will lapse before it is able to schedule
another hearing, and the impact that that further delay will have on the child’s
security and welfare.” Id. at 965 n.4.
After careful review of the relevant law and the record in the instant
case, we discern no error of law or abuse of discretion by the trial court in its
decision to deny Attorney Stillman’s request for a continuance. The record
reveals that Father received written notice of the original termination hearing
scheduled for January 24, 2018. The record contains a rule directing that
Father receive notice at least ten days in advance by both regular and certified
mail, or by personal service. The court later entered an order continuing the
hearing to April 10, 2018. Father appeared at the April 10, 2018 hearing and
testified without raising any objection regarding notice.
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The record does not reveal that Father received additional written notice
of the post-remand hearing on January 14, 2018. However, it is clear that
Attorney Stillman did receive notice. The trial court entered a continuance
order on January 4, 2019, which indicated that Attorney Stillman was present
and that all parties had been served. The record also contains a file copy of
notice for the hearing, accompanied by a recipient list, which included
Attorney Stillman. Attorney Stillman confirmed at the start of the hearing that
Father had actual notice. He did not attempt to produce evidence in support
of his request for a continuance, nor did he attempt to explain why Father was
unable to arrange transportation despite his alleged car trouble. Notably, the
record indicates that Father has a lengthy history of apathy toward Child and
her dependency proceedings, in that he visited her only twice and sent her a
single letter after she entered foster care. N.T., 4/10/2018, at 21-24, 32. In
accordance with D.F., the trial court was free to balance Father’s bald claim
of car trouble against his history of abandonment and Child’s need for
permanency, and to conclude that Attorney Stillman’s request for a
continuance was unwarranted. It is also significant that the sole purpose of
the hearing was for Attorney Silverstein to inform the court of Child’s legal
interests, so that the court could perform the largely mechanical task of either
re-entering its prior termination decree or ordering a new hearing in
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accordance with our directive on remand. Thus, Father’s presence or absence
on January 14, 2019 was inconsequential.6
Based on the foregoing, we conclude that the trial court did not err or
abuse its discretion by denying Attorney Stillman’s request for a continuance.
Therefore, we affirm the January 14, 2019 decree terminating involuntarily
Father’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/19
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6As noted supra, Father was present and represented by counsel at the April
8, 2018 termination hearing and testified on his own behalf.
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