In the Interest of: M.L.M-F., Appeal of: D.F. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.L.M-F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.F., MOTHER :
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: No. 1121 WDA 2022
Appeal from the Decree Entered August 26, 2022
In the Court of Common Pleas of Beaver County Orphans' Court at
No(s): No. 3005 of 2022
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 27, 2023
D.F. (“Mother”) appeals from the decree terminating her parental rights
as to her minor child, M.L.M.-F. Mother contends the trial court denied her due
process rights by denying her motion for a continuance of the termination
hearing. We affirm.
A termination hearing was scheduled for August 25, 2022 and August
26, 2022 in Beaver County. At the time of the hearing, Mother was
incarcerated at the Allegheny County Jail. Mother is Spanish-speaking and is
a Limited English Proficient (“LEP”) person. Three days before the termination
hearing, the court issued an order directing the Allegheny County Jail to
transport Mother to the hearing. The next day, Mother filed an emergency
motion for a continuance. Mother stated that her prison would not transport
her to the hearing and would only allow her to participate via audio/video
conference. See Emergency Motion for Continuance, 8/23/22, at ¶ 5. Mother
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alleged that “[w]hile audio/video conference has been used in previous
proceedings in this case, the procedure requires Mother to utilize two devices
due to Spanish interpreters which, upon information and belief, is not available
through [Allegheny County Jail’s] systems.” Id. at ¶ 6. Mother requested that
the hearing be postposed to a date after her anticipated release date of
September 22, 2022. Id. at ¶ 2. The court denied the motion but stated that
it would reconsider if Mother was not transported to the hearing.
At the commencement of the termination hearing, on August 25, 2022,
the court noted that Mother was not present. Instead, she was participating
via a live audio/video feed from Allegheny County Jail. N.T., 8/25/22, at 8. A
Spanish interpreter was provided for Mother. The court administered the oath
for interpreters and ensured the interpreter was current with her required
certifications and did not have a conflict of interest. Id. at 6-7. The court
tested the quality of the audio feed and noted there was a delay in Mother
hearing the proceedings in the courtroom, but determined the delay was short
and not disruptive. Id. at 10-11, 13-14. The court also had an Allegheny
County corrections officer test the methods of communication. Id. at 40. The
court instructed Mother that she was able to speak to her counsel privately at
any time by raising her hand and the courtroom would be emptied so she
could converse with her counsel. Id. at 33.
Mother’s counsel asked for a continuance because Mother was not
brought to the hearing, in contravention of the court’s order. Id. at 19-20.
Counsel argued that using an interpreter through audio-visual means was an
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extraordinary circumstance that warranted Mother being present in person.
Id. at 21-22. After verifying with counsel that he was able to adequately
converse with Mother and prepare for the termination hearing, the court
denied the continuance, and the hearing proceeded. Id. at 24, 39-40.
Mother’s counsel renewed the request for a continuance following the hearing.
Id. at 174. The court again denied the request and stated:
With regard to the issue, the issue again raised by [Mother’s
counsel], I look back over our records, and on, at our disposition
hearing in April of 2020 and at the next permanency review
hearing of July 1 of that same year, right in the mi[d]st of the
pandemic, [M]other appeared via, via video under circumstances
that were much worse than this when we were learning how to
use the system, and there has been no complaints of those
hearings, and since those hearings, or during those hearings, and
I would also note that on the 19th of January of this year, the 12th
of April of this year, [Mother] also appeared via video, and once
again, the video that we utilized at that time was not of the quality
that we used today, finally. The [c]ourt was mindful of any time
that [Mother] may have been interrupted, had a question, been
speaking to somebody, and I also provided any opportunity that
[Mother] needed to, to speak with her lawyer confidentially and
closed the courtroom to anybody else.
Id. at 178-79.
The court ultimately terminated Mother’s parental rights. This appeal
followed. Mother raises a single issue:
Did the trial court err as a matter of law and abuse its discretion
by depriving [Mother] of due process and equal access to a judicial
proceeding by denying her request for a continuance when the
court did not ensure her attendance at the hearing and appointed
an interpreter to interpret through a telephone for the duration of
the hearing?
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Mother’s Br. at 5.1
The decision of granting or denying a continuance is within the discretion
of the trial court. In the Interest of D.F., 165 A.3d 960, 964 (Pa.Super.
2017), appeal denied, 170 A.3d 991 (Pa. 2017). We will not disturb a trial
court’s decision absent an abuse of discretion. Id. at 965. “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.” In re J.K., 825 A.2d 1277, 1280
(Pa.Super. 2003) (quoting Corrado v. Thomas Jefferson Univ. Hosp., 790
A.2d 1022, 1035 (Pa.Super. 2001)).
Mother argues that the court’s denial of her motion for a continuance
violated her rights to due process. She contends that her dual status as an
incarcerated parent and a LEP person necessitated that she appear in person
at the termination hearing. Mother’s Br. at 10. Mother concedes that the court
instituted several procedural safeguards, including appointing her counsel,
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1 In her Statement of Questions Presented, Mother raised two “secondary”
questions: “Did the trial court err as a matter of law and fact by finding the
clear and convincing evidence was presented to establish a legal basis for
terminating [Mother’s] parental rights pursuant to 23 Pa.C.S.[A.] §
2511(a)(2)?” and “Did the trial court err as a matter of law and fact by finding
that [Mother] contacted no service providers in contradiction to evidence
presented at trial resulting in an erroneous conclusion of law?” Mother’s Br. at
5. However, Mother later states in her brief that she “waives argument” on
these two issues. Id. at 19. She has therefore waived appellate review of
these issues. See Pa.R.A.P. 2119(a); Commonwealth v. Hunzer, 868 A.2d
498, 509, 516 (Pa.Super. 2005).
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who was present at the hearing, providing her with a means to confidentially
communicate with her counsel during the hearing, and appointing an
interpreter who appeared at the hearing. Id. at 13-14, 16. However, she
argues that she only was able to hear the interpreter and no other part of the
proceeding and was interrupted several times which may have caused her to
miss testimony against her. Id. at 16. Mother urges this Court to adopt a
“heightened” due process standard when considering a continuance request
from a person who is both incarcerated and not proficient in English. Id. at
10.
While a parent must receive notice of a termination hearing, a parent’s
presence is not required for the termination to proceed. In the Interest of
D.F., 165 A.3d at 965.
Once a court is satisfied that a parent has received notice of
the hearing, it is then entirely within the trial court’s
discretion to make a ruling on the continuance request
based on the evidence before it. As in all matters involving
parental rights, the best interests of the child are
paramount. Accordingly, the exercise of the trial court’s
discretion includes balancing 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. Most importantly, the trial court is in
the best position to factor in the impact that further delay
will have on the child’s well-being.
Id.Further, “[i]t is well-settled that a trial court is not required to transport
an incarcerated parent to a termination hearing in order to satisfy the needs
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of due process.” In re Adoption of J.N.F., 887 A.2d 775, 781 (Pa.Super.
2005) (emphasis in original). Rather, “if the incarcerated parent desires to
contest the termination petition, the trial court must afford the incarcerated
parent the ability to participate meaningfully in the termination hearing
through alternate means.” Id.Here, the court provided Mother with sufficient opportunity to meaningly
participate in the termination hearing and she was not deprived of her due
process rights. The court attempted to have Mother appear in person when it
issued an order that she be transported to the hearing. Unfortunately, that
did not occur due to the prison’s restrictions, so the court instead provided an
audio/visual means of communication, as well as a court-certified interpreter.
Mother also had court-appointed counsel, who was present at the hearing,
and she was able to confidentially communicate with him at any time.
Further, a review of the termination hearing transcript reveals that,
contrary to Mother’s assertions, the limited difficulties associated with the
technological issues were immediately resolved and inconsequential. Mother
claims there were issues with the technology “[s]everal times in the hearing”
and cites two occasions in the transcript. Mother’s Br. at 8 (citing N.T. at 76-
77, 80). However, upon review, in each of those instances, Mother lost
connection for a very brief time period and the issue was immediately detected
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and rectified.2 Mother further claims “there were occasions [Mother] requested
clarification or did not understand.” Id. (citing N.T. at 144). However, in the
two instances cited by Mother, she simply asked to repeat the question and
responded, “At that time?” to another question posed to her. N.T. at 144. This
is hardly evidence that Mother did not understand the questions.
In sum, Mother has not shown any evidence in the record that her due
process rights were violated. The court ensured that Mother was able to
meaningfully participate in the hearing, see In re Adoption of J.N.F., 887
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2 At pages 76-77, the transcript reads:
[FATHER’S INTERPRETER]: The interpreter just informed [Mother]
that she can’t be heard. Just be aware of that.
THE COURT: All right. Does she have a statement for her counsel?
She said something and, she stepped off camera and said
something.
[MOTHER’S INTERPRETER]: This is interpreter Arenas now.
THE COURT: Right. You were switching equipment around.
[MOTHER’S INTERPRETER]: I can hear you now is what she’s
saying.
THE COURT: Okay. All right. You can continue[.]
N.T. at 76-77. At page 80, the transcript reads:
[MOTHER’S INTERPRETER]: Excuse me. It just disconnected.
THE COURT: All right. So the interpreter, the interpreter has
informed the, the interpreter has informed the Court that they lost
the connection, and they’re reestablishing that connection now.
Id. at 80.
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A.2d at 781, and it did not abuse its discretion in denying Mother’s motion for
a continuance.3
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023
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3Mother urges this Court to adopt a novel, three-part test when a parent is
both incarcerated and a LEP person. See Mother’s Br. at 10, 17-18. We decline
Mother’s invitation to adopt her proposed test.
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