In Re: Adoption of J.J.J., Appeal of: E.L.H.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2014
• Docket: 536 EDA 2014
• Status: Unpublished

Opinion

J. S38001/14 & J. S38002/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.J.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: E.L.H., BIOLOGICAL : MOTHER, : : No. 536 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0190

IN RE: ADOPTION OF M.L.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: E.L.H., BIOLOGICAL : MOTHER, : : No. 537 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0191

IN RE: ADOPTION OF G.M.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: E.L.H., BIOLOGICAL : MOTHER, : : No. 538 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0192 J. S38001/14 & J. S38002/14

IN RE: ADOPTION OF J.J.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: M.J., BIOLOGICAL : FATHER, : : No. 539 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0190

IN RE: ADOPTION OF M.L.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: M.J., BIOLOGICAL : FATHER, : : No. 540 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0191

IN RE: ADOPTION OF G.M.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: M.J., BIOLOGICAL : FATHER, : : No. 541 EDA 2014 Appellant :

Appeal from the Decree, November 6, 2013, in the Court of Common Pleas of Montgomery County -A0192

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.

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MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 17, 2014

and entered November 6, 2013, that granted the petitions filed by the

involuntarily terminate their parental rights to their dependent, male child,

J.J.J., born in November of 2009, and dependent, twin female children,

Section 2511(a)(2), (8), and (b) of the Adoption Act, 23 Pa.C.S.A.

§ 2511(a)(2), (8), and (b).1 We affirm.

On October 3, 2013, OCY filed petitions seeking to involuntarily

terminate the parental rights of Mother and Father to the Children. The trial

court held a hearing on the petition on November 6, 2013. The preliminary

decrees entered on October 8, 2013, provided that the hearing for the

petition for termination was scheduled for November 6, 2013, at 1:30 p.m.

in Courtroom 15 at One Montgomery Plaza, 4th Floor, Norristown,

Pennsylvania. The preliminary decrees reflect that the trial court served the

notice of the hearing on Mother and Father, and on their respective counsel.

Attorney Edward Danelski, indicated that he had communicated with Mother

regarding the case, and was requesting a continuance because Mother was

1 On November 6, 2013, the trial court also changed the permanency goal for the Children to adoption. Mother and Father have not filed notices of appeal challenging the goal change, however.

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not present. (Notes of testimony, 11/6/13 at 3.) Counsel for OCY,

Attorney Christina Terebelo, stated that OCY had mailed the notice to Mother

and Father at their last known address, _ _ _ Astor Street,2 Norristown,

Pennsylvania, via first class and certified mail. (Id.) Attorney Terebelo

further stated that OCY did not receive a green card indicating that Mother

or Father received the certified mail, but neither the certified mail nor the

first class mail had been returned to OCY. (Id. at 3-4.) Attorney Terebelo

further stated that Mother had contacted OCY on Monday, November 4,

and was reciting information from the petition. (Id. at 4.) Additionally,

Attorney Terebelo testified that OCY had no reason to believe that Mother

was no longer residing at the address where OCY sent the notice or had not

received the notice. (Id.)

Attorney Thomas Carroll, joined in the request for a

continuance, stating that his last contact with Father had been in September

of 2013, via telephone. (Id.) Attorney Carroll explained that he had left

messages for Father, at the only telephone number Father had provided,

and requested Father call him to discuss the termination hearing, but Father

had not responded. (Id. at 4-5.) Attorney Carroll stated that he had not

2 We note that the address on Astor Street was the same as that reflected on the certified mail receipts, but we have deleted the street number for privacy purposes.

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communicated with Father regarding the termination matter since early

September. (Id. at 5.)

The guardian ad litem, Attorney Craig Bluestein, agreed with

Attorney Terebelo, and added that, on August 26, 2013, Mother appeared

for a permanency hearing for which notice had been sent to the same

Astor Street address used for the termination hearing notice. (Id.) Counsel

for Mother and Father agreed that they had no other address for their

clients. (Id. at 5-6.) The trial court found the notice sufficient, and denied

the continuance requests. (Id.)

After a brief recess, OCY presented the testimony of Lisa Mongan, the

ongoing caseworker assigned to the family. (Id. at 8-9.) Counsel for

Mother and Father cross-examined Ms. Mongan, as did the guardian

ad litem. Counsel for OCY conducted re-direct examination, and counsel for

Mother, Father, and the guardian ad litem conducted re-cross examination

of the witness.

With regard to the notice issue, Ms. Mongan testified on direct

examination that, in December of 2012, she received a copy of the lease of

Mother and Father for their home, and that she had not received anything

regarding an eviction since that time. (Notes of testimony, 11/6/13 at 20.)

Ms. Mongan further stated that she had mailed numerous letters to Mother

and Father to their residence, and that they had referenced her letters in

text messages to her, so she believed they still resided at the same home.

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(Id.) On cross-

when Mother contacted OCY earlier in the week of the termination hearing,

she asked to speak to the OCY director because the director had signed the

Id. at 47-48.) Moreover, on

cross-examination by the guardian ad litem, Ms. Mongan testified that she

sent a letter dated October 16, 2013, to Mother and Father, and that she

believed that they received the letter because she received text messages

and e-mail from Mother, and a telephone call from Father, with regard to it.

(Id. at 63-65; GAL-Exhibit 1.)

At the close of the hearing, the trial court, on the record, terminated

the parental rights of both Mother and Father to the Children, and changed

the permanency goal for the Children to adoption. Thus, on November 6,

2013, the trial court entered the decrees involuntarily terminating the

parental rights of Mother and Father to the Children pursuant to

Section 2511(a)(2), (8), and (b) of the Adoption Act.

Thereafter, the trial court appointed Attorney Henry S. Hiles, II, as

counsel for both Mother and Father. On December 6, 2013, Mother and

Father, through Attorney Hiles, filed three appeals, one notice of appeal, and

one statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b) on behalf of both parties for each of the

Children. On January 6, 2014, Mother and Father filed three amended

notices of appeal, along with three concise statements of errors complained

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of on appeal on behalf of both parties. On January 24, 2014, this court,

acting sua sponte, quashed the appeal as being improperly filed from

multiple decrees, without prejudice to the rights of Mother and Father to

seek permission in the trial court to file separate appeals nunc pro tunc.

On January 31, 2014, Mother and Father filed separate petitions for

allowance of appeal nunc pro tunc. On that same date, the trial court

entered orders granting the relief, directing the parties to file their notices of

appeal and concise statements within 14 days of that order. Mother and

Father complied on February 12, 2014, with each parent filing a separate

notice of appeal and concise statement with regard to the decree for each

child. On March 13, 2014, this court, acting sua sponte, consolidated the

six appeals.3

Mother and Father, through Attorney Hiles, have filed separate briefs

on appeal, in which they both raise the following:

DID THE HONORABLE TRIAL COURT COMMIT ERROR BY (i) RULING THAT THE APPELLANTS, WHO DID NOT APPEAR FOR TRIAL, HAD RECEIVED SUFFICIENT NOTICE AND (ii) DENYING THE

CONTINUE THE TRIAL SO THAT THE APPELLANTS COULD APPEAR AND APPROPRIATELY CONTEST THE PROCEEDINGS[?]

3 eview of this matter was protracted because of our delayed receipt of the complete certified record from the trial court, after the quashal of the initial appeals and return of the certified record, despite our best efforts to obtain it in a timely fashion. See In re: T.S.M., 71 A.3d 251, 261 n.21 (Pa. 2013).

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Mother and Father argue that the trial court erred in finding that OCY

afforded them notice of the termination hearing, and in denying the

continuance and holding the hearing in their absence.5 Mother and Father

claim they failed to appear at the hearing because they did not receive

Moreover, Mother and Father contend that the trial court violated their

Constitutional guarantee to due process of law in refusing to continue the

matter, because they were not present to confront the OCY witness and

evidence against them, and to testify and present any counter evidence.

Mother and Father request this court to vacate the orders and remand the

4 We could consider the issue waived for failure of Mother and Father to include a statement of questions involved in their briefs. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that we will not ordinarily consider any issue not

any issue not raised in a concise statement of errors complained of on appeal is waived). We will consider the issue preserved for our review, however, as Mother and Father clearly raised the issue in the argument section of their brief before proceeding to discuss the issue. 5 In their concise statements of errors complained of on appeal, and in their statements of questions involved in their briefs on appeal, Mother and Father do not challenge the merits of the underlying termination decrees, nor do they challenge the goal change orders, as they focus on the threshold notice issue. They, therefore, waived any challenge to the merits of the terminations and goal change as part of this appeal, and we will not review those matters. See Krebs, supra, 893 A.2d at 797.

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matter for a new termination hearing.6 In support of their argument, Mother

and Father rely on In re Maynard, 473 A.2d 1084 (Pa.Super. 1984), and

Adoption of Walker, 360 A.2d 603 (Pa. 1976).

We review an appeal from the termination of parental rights in

accordance with the following standard.

[A]ppellate courts must apply an abuse of discretion

determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

....

6 This court has stated that, where a parent or his/her attorney enters an appearance and participates in the termination hearing without objection to the sufficiency of notice, the parent waives any subsequent claim of insufficient notice. In re Adoption of W.C.K., 748 A.2d 223, 228 (Pa.Super. 2000), overruled on other grounds, In re Adoption of Z.S.H.G., 34 A.3d 1283, 1289-1290 (Pa.Super. 2011). Thus, we find that counsel for Mother and Father did adequately preserve an objection to the sufficiency of the notice by requesting the continuance.

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[E]ven where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and l conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

Further, in Krull v. Krull, 344 A.2d 619, 620 (Pa.Super. 1975), this

will not be disturbed absent an abuse of discretion. Thus, we will apply an

abuse of discretion standard to this matter.

It is well settled that termination of parental rights implicates a natural

See In the Interest

of A.P., 692 A.2d 240, 242 (Pa.Super. 1997) (stating that natural parents

. . in the care, custody, and

managem Santosky v. Kramer, 455 U.S. 745,

753 (1982). An individual whose parental rights are to be terminated must

be given due process of law, as the termination of parental rights is a

constitutionally protected action. See In re Interest of K.B., 763 A.2d

436, 439 (Pa.Super. 2000), citing Santosky, supra. OCY bears the burden

to prove proper service by its affirmative act. In re Interest of K.B., 763

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A.2d at 439, citing Leight v. Lefkowitz, 615 A.2d 751, 753 (Pa.Super.

1992).

notice shall be given to the parents, by personal service or registered mail,

to their last known address, or by such other means as the court may

require. Further, the section provides that the notice shall state certain

language, including the right to representation and how to obtain counsel if

the parents cannot afford counsel. Additionally, the statutory language

requires a warning that, upon failure to appear, the hearing will go on

See

23 Pa.C.S.A. § 2513(b).

Section 2513(b) of the Adoption Act provides, in pertinent part:

(b) NOTICE.-- 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. . . . The notice shall state the following:

filed asking the court to put an end to all rights you have to your child (insert name of child). The court has set a hearing to consider ending your

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rights to your child. That hearing will be held in (insert place, giving reference to exact room and building number or designation) on (insert date) at (insert time). You are warned that even if you fail to appear at the scheduled hearing, the hearing will go on without you and your rights to your child may be ended by the court without your being present. You have a right to be represented at the hearing by a lawyer. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help.

(Name)________________ (Address) ______________ (Telephone number)______

Whenever notice of the intention to do any act is required, such notice shall be given at least ten days prior to the doing of the act, unless a different period is specified by a rule adopted by the Supreme Court or by an Act of Assembly.

provides that notice of the involuntary termination petition must be given to

each parent. See

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Rule 15.4(d) provides:

(d) Notice and Hearing. Notice of the hearing on the petition shall be given, in accordance with Rule 15.6 hereof, to the parent or parents whose rights are sought to be terminated, including the parent of a child born out of wedlock, to any intermediary named in a Report of Intention to Adopt, if one has been filed, and to the guardian of the person or guardian ad litem of any parent or parents who is or are under the age of 18 years. Each petitioner, each person whose joinder or consent is attached to the petition and any intermediary named in a Report of Intention to Adopt shall be examined under oath at the hearing unless they are excused by the court.

Further, Rule 15.6 sets forth the manner of service, as follows:

(a) Notice to every person to be notified shall be by personal service, service at his or her residence on an adult or 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:

(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

Court. If, after reasonable investigation, the identity of a person to be notified is unknown, notice to him or her shall not be required.

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parent, at his or her correct address, of a hearing that may result in the

t In re Adoption of K.G.M.,

Appeal of J.T.M., 845 A.2d 861 (Pa.Super. 2004), citing Adoption of

Walker, 360 A.2d 603, 607 (Pa. 1976); In re Maynard, 473 A.2d 1084,

1086 (Pa.Super. 1984).

In K.B., the issue before this court was whether the parents had been

properly served with notice of the hearing to terminate their parental rights.

The panel in K.B. held that the personal service by the process-servers, as

evidenced by their affidavits, complied with the requirements of the

Adoption Act and the Pennsylvania Rules of Civil Procedure by affording the

K.B., 763 A.2d at 440.

On November 5, 2013, OCY filed a verification of service in relation to

each matter. Each verification of service had attached to it, as Exhibit A, a

copy of the return receipt requested, indicating that the petitions were

mailed to Mother and Father at _ _ _ Astor Street, Norristown, PA 19401, by

certified mail, return receipt requested, and first class mail. The verifications

of service also included the notices attached to the petitions for involuntary

termination of the parental rights of Mother and Father to the Children. The

notices provided as follows:

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I am writing to notify you that a petition has been filed asking the Court to put an end to all rights you have to your children, [G.], [M.], and [J]. In addition, a petition has been filed requesting that

combined termination of parental rights and goal change hearing child [sic] has been scheduled for Wednesday, November 6, 2013 at 1:30 p.m., in

Swede and Airy Streets, Norristown, Pennsylvania. Enclosed are copies of the scheduling order, the Petition for Involuntary Termination of Parental Rights, and Petition for a Goal Change.

Please be advised that you have the right to be represented at the hearing by a lawyer. You should take this notice to your court appointed lawyer at once. Our records indicate that you are still represented by Legal Aid, 625 Swede Street, Norristown, PA 19401, phone number 610-275- 5400.

You are warned that even if you fail to appear at the scheduled hearing, the hearing will go on without you and your rights to your children may be ended by the Court without you being present.

Notice, 10/11/13.

At the hearing on the termination petition, the trial court found that

Mother and Father had received the notices of the hearing, because the first

class mail was not returned, acknowledging that the certified mail return

receipts were not returned to OCY. (Notes of testimony, 11/6/13 at 6.) The

trial court also found, from the record, that Mother and Father had attended

the permanency review hearing in September of 2013, for which the notice

was sent to the same address as the termination hearing. (Trial court

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opinion, 1/6/14 at 2.) The trial court noted that the preliminary decrees for

the termination hearing directed Mother and Father to arrive at the

courtroom on November 6, 2013, at 1:30 p.m. (Notes of testimony,

11/6/13 at 6.) Accordingly, the trial court found that notice was properly

served and denied the continuance requests. The trial court allowed a brief

recess and commenced the hearing more than a half-hour after the

scheduled 1:30 p.m. provided in the preliminary decrees, and Mother and

Father still did not appear. (Id. at 6-7.)

We agree with the trial court that the service of the notice on Mother

and Father, via first class mail and certified mail, return receipt requested, to

their last known address was proper. The notices in the certified record

reflect the requisite warning to Mother and Father regarding the termination

of their parental rights in their absence.

Mother and Father also assert that a scheduling order that they

received with regard to another matter possibly created confusion as to the

date of the termination hearing. They have attached a copy of a summons

to appear for a November 25, 2013 permanency review hearing, dated

October 25, 2013, to their briefs on appeal as Exhibit D, but fall short of

claiming that they were actually confused by this summons, arguing only

that there possibly was confusion as to the court date. This summons was

not before t

confusion with the trial court at the hearing on November 6, 2013, nor do

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they assert any actual confusion in their briefs. Thus, we find this argument

lacks merit.

We discern no abuse o

Mother and Father were provided appropriate notice of the termination

hearing and their corresponding right to an attorney, and the risk of having

their parental rights terminated in their absence if they failed to appear. As

sufficiency of the notice, we will not disturb them on appeal. In re

Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (stating an appellate

court must defer to the trial judges as long as the factual findings are

of an error of law or an abuse of discretion).

Additionally, we find no violation of due process in the trial court

proceeding in the absence of Mother and Father, with their counsel actively

representing them, conducting cross-examination of Ms. Mongan.

Accordingly, we find no merit to the argument regarding the denial of the

due process guarantee of Mother and Father by the trial court proceeding at

the hearing. This court, therefore, affirms the termination decrees

challenged on appeal.

Decrees affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2014

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