In Re: C.R., Appeal of: S.R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.R., MOTHER :
:
:
:
:
: No. 373 WDA 2021
Appeal from the Order Entered February 17, 2021
In the Court of Common Pleas of Somerset County Orphans' Court at
No(s): No. 19 ADOPTION 2020
IN RE: L.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.R., MOTHER :
:
:
:
:
: No. 374 WDA 2021
Appeal from the Order Entered February 17, 2021
In the Court of Common Pleas of Somerset County Orphans' Court at
No(s): 18 Adoption 2020
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 12, 2021
In these consolidated appeals,1 S.R. (Mother) appeals from the orders
granting the petitions of Somerset County Children and Youth Services (the
Agency) and involuntarily terminating her parental rights to L.R., born in
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1 This Court consolidated the appeals at 373 WDA 2021 and 374 WDA 2021
sua sponte on April 7, 2021, pursuant to Pa.R.A.P. 513. See Order, 4/7/21.
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February 2012, and C.R., born in April 2015 (collectively Children).2 We are
constrained to affirm.
Children had previously been placed in kinship foster care from
September of 2016 until September of 2017. N.T., 2/12/21, at 50. Children
were subsequently returned to Mother’s custody. The Agency received several
referrals concerning Mother and Children, including incidents on January 28
and 30, 2019, when C.R., then three years old, left Mother’s residence and
walked to the Somerset County Courthouse. Id. at 57-59. The Agency
received another referral raising, among others, concerns with Mother’s
substance abuse on February 28, 2019. Id. at 60. In total, the Agency
received seven referrals concerning Mother and Children between October of
2018, and March 22, 2019. Id. at 61. On March 22, 2019, the Agency filed
dependency petitions. Id. at 54-55.
The trial court adjudicated Children dependent on May 7, 2019. Id. at
52, 54. This was the third time L.R. was adjudicated dependent 3 and the
second time C.R. was adjudicated dependent.4 Id. at 52. Following the
adjudication of dependency, Children remained in Mother’s care. Id. at 52,
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2 Children’s natural father, C.R. IV (Father), died in January of 2015. N.T.,
2/12/21, at 51-52; Pet. for Termination of Parental Rights, 9/1/20, Ex. B.
3 L.R. had previously been adjudicated dependent on August 5, 2012, and on
June 18, 2015. N.T., 2/12/21, at 53; see also Petitioner’s Ex. A at 3;
Petitioner’s Ex. D at 1.
4 C.R. had previously been adjudicated dependent on November 3, 2015.
N.T., 2/12/21, at 54.
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54-55, 61-62. After adjudicating Children dependent, the trial court ordered
a number of goals for Mother: maintain a stable and safe home; maintain
financial stability, which included consistent payment of her bills; complete an
Agency-approved parenting program and demonstrate the skills learned;
complete drug and alcohol treatment as recommended and random drug
screens; participate in recommended services for L.R. and C.R. to promote
their well-being and development; and ensure that L.R. and C.R. attend school
daily. Id. at 62; Order, CP-56-DP-18-2012, 5/14/19, at 3; Order, CP-56-DP-
41-2015, 5/13/19, at 2-3.
On May 20, 2019, Mother submitted to an Agency-ordered drug test,
and she tested positive for methamphetamine.5 N.T., 2/12/21, at 65-67, 81;
Petitioner’s Ex. G. The trial court then granted emergency custody of Children
to the Agency on May 23, 2019. N.T., 2/12/21, at 55, 62. The Agency placed
Children back in the same kinship foster home. Id. at 49-50. After the
Children were placed in foster care, visitation with Children was added to
Mother’s goals. Id. at 62.
On March 10, 2020, Children’s permanency goal was changed to
adoption. Id. at 51. The Children had not been returned to Mother’s care
since their removal to foster care on May 23, 2019. Id. at 55, 70. On
September 1, 2020, the Agency filed petitions to involuntarily terminate
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5 Mother submitted another sample for an Agency-ordered drug test on May
23, 2019; while the preliminary test result was positive for amphetamine, the
final laboratory results came back as negative for amphetamine. N.T.,
2/12/21, at 68; Petitioner’s Ex. H.
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Mother’s parental rights to Children pursuant to 23 Pa.C.S. § 2511(a)(8) and
(b).
On February 12, 2021, the trial court conducted an evidentiary hearing
on the petitions. Mother was incarcerated at the time of the termination
hearing. Id. at 70, 92. Mother was present for the hearing and acted pro se,
after previously discharging her counsel. Id. at 4-5. Kimberly Hindman, Esq.,
represented Children as their guardian ad litem, and Jaclyn M. Shaw, Esq.,
represented Children as their legal interest counsel. At the start of the
hearing, Mother made an oral motion requesting that the presiding judge, the
Honorable D. Gregory Geary, recuse himself because he also presided over
criminal matters where Mother was the defendant. Id. at 11. President Judge
Geary denied that motion. Id. The Agency presented the testimony of Carol
Patterson, a psychologist, and Leigha Pruett, an Agency caseworker. Id. at
17-97. Mother did not testify or present any evidence on her behalf. Id. at
97-98.
On February 17, 2021,6 the trial court entered orders involuntarily
terminating Mother’s parental rights to Children pursuant to Section
2511(a)(8) and (b). At Mother’s request, the trial court appointed counsel to
represent her on appeal. On March 12, 2021, Mother timely filed notices of
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6 The orders were dated February 12, 2021, but were date-stamped,
docketed, and served on the parties on February 17, 2021. Under our
appellate rules, the date of entry of an order as “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b).
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appeal and concise statements of errors complained of on appeal pursuant to
Pa.R.A.P 1925(a)(2)(i) and (b) at each trial court docket number.7
The trial court filed two opinions pursuant to Rule 1925(a) on March 31,
2021, one at each docket number, in which the trial court explained its findings
and conclusions under Section 2511(a)(8) and (b).
On appeal, Mother raises a single issue:
Should the presiding judge have disqualified himself based on
information and actual knowledge obtained from presiding over
criminal cases involving [Mother] that are at issue in the foregoing
matter?
Mother’s Brief at 6.
Mother argues that the trial court judge abused his discretion and erred
when he denied Mother’s motion to recuse. Id. at 13-17 (citing Code of
Judicial Conduct Rule 2.11). Specifically, Mother claims that because
President Judge Geary had personal knowledge of Mother’s criminal
proceedings, he could not preside impartially over Mother’s termination
proceedings. Id. at 15-16. Mother requests that we reverse the trial court’s
orders terminating her parental rights and remand for a new termination
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7 Mother complied with our Supreme Court’s decision in Walker by filing
separate notices of appeal under each trial court docket number. See
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018).
Further, Mother filed identical Rule 1925(b) statements at each trial court
docket number. Therefore, we shall refer to mother’s 1925(b) statement in
the singular throughout.
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hearing before a judge who has not previously heard any civil or criminal
matters involving Mother. Id. at 17.
Children, through their legal interest counsel, and the Agency both
argue that Mother has waived this issue because she did not include it in her
Rule 1925(b) statement. Children’s Brief at 18-19; Agency’s Brief at 19-22.
The trial court did not address Mother’s recusal motion in its opinions.
Issues not raised in an appellant’s Rule 1925(b) statement are waived.
See Pa.R.A.P. 1925(b)(4)(vii) (stating that issues not included in a Rule
1925(b) statement are waived); see also In re R.W., 855 A.2d 107, 112 (Pa.
Super. 2004) (holding that the Commonwealth waived its claim on appeal that
the trial court should have recused itself because the Commonwealth failed to
raise that claim in its Rule 1925(b) statement). Therefore, we conclude that
because Mother did not raise her recusal claim in her Rule 1925(b) statement,
it is waived. See Pa.R.A.P. 1925(b)(4)(vii); R.W., 855 A.2d at 112.
Even if Mother properly preserved her recusal claim for appeal, she is
not entitled to relief.
This Court has explained:
In reviewing the denial of a motion to recuse, our standard is
abuse of discretion. Recognizing that our judges are honorable,
fair and competent, we extend extreme deference to a trial court’s
decision not to recuse. It is the burden of the party requesting
recusal to produce evidence establishing bias, prejudice or
unfairness which raises a substantial doubt as to the jurist’s ability
to preside impartially.
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Vargo v. Schwartz, 940 A.2d 459, 471 (Pa. Super. 2007) (citations omitted
and formatting altered); see also Arnold v. Arnold, 847 A.2d 674, 680-81
(Pa. Super. 2004) (holding that the party requesting recusal has the burden
to establish the jurist cannot preside impartially, and a judge’s denial of
request to recuse is reviewed for an abuse of discretion).
Similarly, this Court has held that a judge who presides over a
dependency and dispositional hearing for a child does not have to recuse from
the termination of parental rights hearing involving the same child. In re
Quick, 559 A.2d 42, 46 (Pa. Super. 1989) (stating “[i]t is unsupportable that
an experienced trial judge is incapable of making factual determinations and
legal findings in regard to the same child at different hearings . . . without
being subject to bias or prejudice”).
This Court has explained that “a trial judge should grant the motion to
recuse only if a doubt exists as to his or her ability to preside impartially or if
impartiality can be reasonably questioned.” In re A.D., 93 A.3d 888, 892
(Pa. Super. 2014) (citation omitted).
Further, when judges serve as the finder of fact, the law presumes they
will disregard inadmissible and/or prejudicial evidence. See, e.g.,
Commonwealth v. Fears, 836 A.2d 52, 71 n.19 (Pa. 2003) (holding “a
judge, as fact finder, is presumed to disregard inadmissible evidence and
consider only competent evidence” (citation omitted)); In re J.H., 737 A.2d
275, 279 (Pa. Super. 1999) (noting that in a proceeding where the judge is
the fact finder, he or she is presumed to consider evidence for its proper
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purpose and “is equipped, through training and experience, to assess the
competency and relevance of proffered evidence and to disregard that which
is prejudicial” (citation omitted)).
Therefore, even if Mother had not waived this issue, we find no abuse
of discretion. There is no support in the record for Mother’s contention that
the trial court could not be an impartial finder of fact because he had
previously presided over criminal cases against Mother. Mother failed to
establish any bias, prejudice, or unfairness that would raise a substantial
doubt as to the trial court’s ability to preside impartially. See Vargo, 940
A.2d at 471; Arnold, 847 A.2d at 680-81. The trial judge is presumed to
disregard inadmissible evidence including any he might have gained while
presiding over Mother’s criminal proceedings. See Fears, 836 A.2d at 71
n.19; J.H., 737 A.2d at 279. Cf. Quick, 559 A.2d at 46. We conclude that
the trial court did not abuse its discretion in denying Mother’s request to
recuse. See Vargo, 940 A.2d at 471; Arnold, 847 A.2d at 681.
Further, Mother raised challenges to the trial court’s termination of her
parental rights and the granting of the emergency custody order following her
failed drug test in her Rule 1925(b) concise statement. See Mother’s Rule
1925(b) Statement, 9/11/20. However, Mother does not argue these claims
in her appellate brief, therefore, we are constrained to conclude that these
issues are also waived. See Interest of D.N.G., 230 A.3d 361, 363 n.2 (Pa.
Super. 2020) (stating “an issue identified on appeal but not developed in the
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appellant’s brief is abandoned and, therefore, waived” (citation omitted and
formatting altered)).
For these reasons, we conclude that Mother has waived all of her claims
for relief, either by not raising them in her Rule 1925(b) statement or by not
arguing them in her appellate brief. As Mother has not preserved any issues
for this Court to review, we are constrained to affirm the orders terminating
Mother’s parental rights to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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