Adoption of: J.A.U., Appeal of: J.A.U

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.A.U., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.A.U., FATHER :
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: No. 388 EDA 2020
Appeal from the Decree Entered November 19, 2019
In the Court of Common Pleas of Northampton County Orphans' Court at
No(s): No. A2019-0091
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 26, 2020
Appellant, J.A.U. (“Father”)1, appeals from the decree entered on
November 19, 2019, that involuntarily terminated his parental rights to his
daughter, J.A.U., born April 2009 (“Child”), pursuant to the Adoption Act.2
After careful review, we vacate the decree and remand for further proceedings
consistent with this memorandum.
B.D. (“Mother”) had two children with Father: Child, and a younger
sibling, J.U., born October 2010. N.T., 11/12/19, at 3-5. Father was convicted
of the murder of J.U. and is currently serving a twenty- to forty-year prison
sentence. Id. at 5. At some time in 2017, Mother filed a custody complaint
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* Retired Senior Judge assigned to the Superior Court.
1 Although Father filed his notice of appeal pro se, counsel was appointed on
January 16, 2020, and has filed a brief on his behalf in this Court.
2 23 Pa.C.S. §§ 2101-2938.
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in the Northampton County courthouse. Id. at 4-5. Father was served with
the custody complaint, but did not respond; Mother was awarded sole legal
and physical custody of Child. Id. at 5. Since the death of her younger child
and Father’s incarceration, Mother has married, and her current husband,
J.E.C. (“Stepfather”), is providing parental care to Child. Id. at 5-6; see also
Pet. For Involuntary Termination of Parental Rights, Ex. A. Stepfather desires
to adopt Child. N.T., 11/12/19, at 6.
On October 18, 2019, Mother filed a petition seeking the involuntary
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1)
and (b). On November 12, 2019, the same day as the termination hearing,
Mother filed an affidavit of service, averring that Mother attempted service of
the petition upon Father via first class and certified mail at SCI-Huntingdon.
See Affidavit of Service, 11/12/19, at 1. The affidavit included United States
Postal Service (“USPS”) tracking information, which provided that the petition
was delivered on November 1, 2019, to SCI-Huntingdon. Id.
The court held a hearing on the petition on November 12, 2019. At the
hearing, Mother, represented by counsel, testified that Father has not made
any attempts to perform parental duties or care for Child since birth. N.T.,
11/12/19, at 4-5. Father was not represented by counsel and did not appear
to testify on his own behalf. Following the hearings, on November 19, 2019,3
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3The decree was initially entered on November 12, 2019; however, due to a
spelling error, the final decree was entered on November 19, 2019.
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the orphans’ court entered a decree terminating Father’s parental rights
pursuant to Section 2511(a)(1), (2), (9), and (b) of the Adoption Act.
On November 22, 2019, Father filed, pro se, a document entitled
“Petition to Set Aside, Strike, Open, or Vacate the Judgment Entered on
November 12, 2019.” See Petition, 11/22/19, at 1. Father averred that he
had not been served with the petition to terminate his parental rights or any
notice of the hearing. Id. at 1-3. Father averred that had he been aware of
the petition, he would have requested counsel both for himself and to
represent Child’s best interests. Id. Father contended that he first received
notice on November 16, 2019, when he was sent a copy of the court’s
November 12, 2019 decree. Id.
Father pro se timely filed his notice of appeal and statement of errors
complained of on appeal. On January 16, 2020, the court appointed counsel
to represent Father on appeal.
On appeal, Father raises the following issue for our review:
1. Did the [orphans’ court] err in finding that [Father] had been
properly served with the Petition seeking involuntary termination
of his parental rights?
2. Did the [orphans’ court] err in involuntarily terminating
[Father’s] parental rights without him having been properly
served with the Petition requesting termination of his parental
rights?
3. Was the [orphans’ court’s] entry of an Order of Court
terminating [Father’s] parental rights without the opportunity to
be heard a violation of [Father’s] due process rights?
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4. Did the [orphans’ court] err in failing to appoint counsel to
represent [Father] and [Father’s] interests at the hearing
regarding the Petition to terminate his parental rights?
5. Did the [orphans’ court] err in failing to appoint an attorney to
represent [Child] at the hearing regarding the request to
terminate [Father’s] parental rights?
6. Did the [orphans’ court] err in failing to appoint a guardian ad
litem to represent [Child’s] best interests at the hearing regarding
the request to terminate [Father’s] parental rights?
Father’s Brief at 6 (suggested answer omitted).
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether
the decision of the trial court is supported by
competent evidence. Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to
involuntarily terminate parental rights, this Court
must accord the hearing judge’s decision the same
deference that we would give to a jury verdict. We
must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s
decision is supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In
re S.H., 879 A.2d 802, 805 (Pa. Super. 2005)). Moreover, we
have explained that:
The standard of clear and convincing evidence is
defined as testimony that is so “clear, direct, weighty
and convincing as to enable the trier of fact to come
to a clear conviction, without hesitance, of the truth
of the precise facts in issue.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa.
Super. 2003)). The trial court is free to believe all, part, or none
of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence. In
re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If competent
evidence supports the trial court’s findings, we will affirm even if
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the record could also support the opposite result. In re Adoption
of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
In re B.J.Z., 207 A.3d 914, 921 (Pa. Super. 2019).
Initially, we note that appellate briefs must materially conform to the
briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. Chapter 21. Pursuant to Pa.R.A.P. 2101, when a
brief fails to conform to the Rules of Appellate Procedure and the defects are
substantial, an appellate court may, in its discretion, quash or dismiss the
appeal. See Pa.R.A.P. 2101. Specifically, as to the argument section of an
appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
Se Pa.R.A.P. 2119(a). Although Father’s brief raises several issues in his
statement of questions involved, he does not divide his argument into parts
corresponding to those questions. However, because we may discern the
issues Father seeks to raise, we do not quash his appeal.
Father’s first, second, and third issues are intertwined and, accordingly,
we address them together. Father contends that the court erred in finding
that he was properly served with the termination petition, and, further, that
the court erred in terminating Father’s parental rights when he was not
properly served with the petition. See Father’s Brief at 14-17. Father
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contends that “it is clear from his appeal that, had he been served with the
Petition . . . he would have contested same.” Id.
As in all civil cases, the petitioner in a termination matter bears the
burden to prove proper service by its affirmative acts. In re K.B., 763 A.2d
436, 439 (Pa. Super. 2000).
23 Pa.C.S. § 2513 provides, in relevant part:
(a) Time.--The court shall fix a time for hearing on a petition filed
under section 2512 (relating to petition for involuntary
termination) which shall be not less than ten days after filing of
the petition.
(b) Notice.--At least ten days’ notice shall be given to the parent
or parents, putative father, or parent of a minor parent whose
rights are to be terminated, by personal service or by registered
mail to his or their last known address or by such other means as
the court may require. A copy of the notice shall be given in the
same manner to the other parent, putative father or parent or
guardian of a minor parent whose rights are to be terminated. A
putative father shall include one who has filed a claim of paternity
as provided in section 5103 (relating to acknowledgment and
claim of paternity) prior to the institution of proceedings . . .
23 Pa.C.S. § 2513.
With regard to the involuntary termination of parental rights, the
Pennsylvania Code provides that notice of the hearing on the petition shall be
given, in accordance with Rule 15.6, to the parent whose rights are sought to
be terminated. 231 Pa. Code Rule 15.4(d). Rule 15.6 provides that,
(a) Notice to every person to be notified shall be 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. If such service is unobtainable and the registered
mail is returned undelivered, then:
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(1) no further notice shall be required in proceedings under
Rules 15.2 or 15.3, and
(2) in proceedings under Rules 15.4 and 15.5, further notice
by publication or otherwise shall be given if required by
general rule or special order of the local Orphans' Court. If,
after reasonable investigation, the identity of a person to be
notified is unknown, notice to him or her shall not be
required.
231 Pa. Code Rule 15.6.
In support of his assertion that he was incorrectly served, Father argues
that, pursuant to 231 Pa. Code Rule 403, “if a rule of civil procedure authorizes
original process to be served by mail, a copy of the process shall be mailed to
the defendant by any form of mail requiring a receipt signed by the defendant
or his authorized agent.” 231 Pa. Code Rule 403; see Father’s Brief at 17.
Father contends that because no return receipt card was received, and
because there was no testimony as to whether the first class mail was returned
to the sender, Mother could not offer proof that he was served. Id. at 17-18.
It is unclear, from the Rules of Civil Procedure, whether an involuntary
termination is an action covered by those rules. See, e.g., Pa.R.C.P. 1001-
1042.12.
Regardless, Father points out, correctly, that the Affidavit of Service
indicates that notice was addressed to him as follows:
[Father’s Name]
c/o SCI Huntingdon
P.O. Box 999
1120 Pike Street
Huntingdon, PA 16652
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See Affidavit of Service, 11/12/19, at 1. The USPS tracking information,
included with the affidavit, indicates solely that the mail was delivered on
November 1, 2019, and left with “an individual.” Id. at 2.
We take judicial notice of the fact that the Pennsylvania Department of
Corrections’ website indicates that legal mail to inmates must be mailed in the
following format:
Business Office —Inmate Name/Inmate Number
Address Line 1
City, State Zip Code
See Department of Corrections: Mail (Jul. 31, 2020),
https://www.cor.pa.gov/Pages/Mail.aspx. Additionally, inmates may be
served by sheriff, constable, or process server. See Department of
Corrections: Frequently Asked Questions (Jul. 31, 2020),
https://www.cor.pa.gov/Inmates/Pages/Frequently-Asked-Questions-
(FAQ's).aspx. Based on the above, the mail addressed to Father did not
include his inmate number. It is unclear whether Father would have received
incorrectly addressed mail and, thus, it is equally unclear whether Mother met
her burden of proving by affirmative acts that she served Father with notice
of the hearing. K.B., 763 A.2d at 439.
We note, briefly, In re Adoption of J.N.F., 887 A.2d 775, 780 (Pa.
Super. 2005), where the panel discussed the appointment of counsel for
indigent parents in termination proceedings:
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The appointment of counsel for indigent parents in termination
proceedings is controlled by 23 Pa.C.S.A. § 2313(a.1), which
states, in pertinent part, the following:
(a.1) PARENT.—The court shall appoint counsel for a
parent whose rights are subject to termination in an
involuntary termination proceeding if, upon petition
of the parent, the court determines that the parent
is unable to pay for counsel or if payment would result
in substantial financial hardship.
(emphasis added).
J.N.F., 887 A.2d at 780. The court emphasized that it is the parent’s burden
to request counsel. Id. Ultimately, the court concluded that the notice
provided to Father regarding his responsibility to petition the court for
appointment of counsel was sufficient, and that Father’s failure to file a
petition meant that the court did not abuse its discretion in failing to appoint
counsel for Father. Id. However, in the instant case, as it is unclear whether
Father actually received notice of the hearing and petition, he cannot be per
se faulted for failing to request the appointment of counsel.
Similarly, if this was a contested termination, we would be required to
remand for the appointment of counsel for Child, pursuant to In re Adoption
of L.B.M., 161 A.3d 172, 174 (Pa. 2017) and In re T.S., 192 A.3d 1080, 1081
(Pa. 2018). However, it is unclear whether this is or is not a contested
termination, as we cannot determine, from the record, whether Father
received notice of the hearing.
Accordingly, we vacate the decree and remand the matter for the
orphans’ court to conduct an evidentiary hearing for the purpose of
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determining whether Father was served with proper notice pursuant to 23
Pa.C.S. § 2513. If the orphans’ court determines that Father was properly
served, it may re-enter the termination decree as originally entered. If the
orphans’ court determines that Father was not properly served, the court is
directed to schedule another termination hearing forthwith, appoint counsel
for Child in accordance with L.B.M., 161 A.3d at 174 and T.S., 192 A.3d at
1081, and appoint counsel for Father.
Decree vacated. Case remanded. Jurisdiction relinquished.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2020
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4 Based upon our disposition of the matter, we need not discuss Father’s
remaining issues.
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