In re A.P.

692 A.2d 240, 1997 Pa. Super. LEXIS 597
CourtSuperior Court of Pennsylvania
DecidedApril 10, 1997
DocketNo. 03284
StatusPublished
Cited by53 cases

This text of 692 A.2d 240 (In re A.P.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.P., 692 A.2d 240, 1997 Pa. Super. LEXIS 597 (Pa. Ct. App. 1997).

Opinion

OLSZEWSKI, Judge:

This is an appeal from the decree of the Court of Common Pleas of Philadelphia County, Family Division, involuntarily terminating appellant’s parental rights to his minor daughter. We affirm.

On March 3, 1990, A.P. was born to E.P. (mother) and J.P. (father), appellant herein.1 At the time, both of the parents were juveniles and were unable to provide continuous care for the child. As a result, A.P. resided with her maternal grandparents, who were able to provide a stable and nurturing environment for her. Although both parents had contact with A.P., mother moved quite frequently, occasionally living with her parents and the child. Appellant, J.P., briefly resided with E.P. before A.P.’s birth, but never resided with E.P. or the child thereafter.

In February of 1992, A.P.’s maternal grandparents filed an emergency petition seeking custody of A.P. Although temporary custody was awarded to the grandparents, their effort to gain permanent custody was encumbered by a joint counterclaim filed in April of 1992 by mother and appellant.

On January 1,1993, prior to a final custody disposition, appellant was arrested and, subsequently, convicted of third-degree murder. In November of 1993, after being moved several times throughout our state prison system, appellant was incarcerated at SCI Waymart, in Northeastern Pennsylvania.2

In the spring of 1995, mother visited appellant in prison and attempted to have him sign a consent form to permit her parents to adopt A.P. Mother had already signed a consent form. Appellant refused, and an involuntary termination hearing was scheduled for January 4, 1996, in Philadelphia.

Instead of attempting to secure appellant’s presence at the hearing, the court employed a method by which appellant participated at the hearing through a telephone conference call. Citing past difficulties with arranging prisoners’ transportation, such as delay and lack of resources, the court stated that it believed that the best interests of the child would be served by a quick resolution of the custody question.

Recognizing appellant’s interest in the proceedings, however, the court employed the following safeguards: (1) appellant was appointed counsel in advance of the hearing; (2) counsel met with appellant in advance at SCI Waymart to discuss the impending hearing; (3) on the date of the hearing, appellant was able to hear, and be heard, at the proceeding by way of a telephone conference call; and, (4) after each witness testified on direct examination, appellant was able to speak privately with his attorney.

On the day of the hearing, appellant protested that he had a right to attend the hearing in person. Nonetheless, the hearing proceeded as scheduled. Testimony was taken from mother, appellant, and the maternal [242]*242grandparents. On August 13, 1996, Judge Esther Sylvester ordered and decreed that appellant’s parental rights to A.P. were terminated and that permanent custody of A.P. was awarded to the maternal grandparents. This appeal follows.

In challenging the decree terminating his parental rights, appellant raises the following issues: (1) whether the procedures adopted by the trial court violated appellant’s sixth amendment right to confront witnesses; (2) whether the procedures adopted by the trial court violated appellant’s fourteenth amendment right to due process;3 (3) whether the procedures adopted by the trial court violated attomey/client confidentiality privileges; and, (4) whether the trial court erred in determining that appellant’s parental rights should be terminated.

Initially, appellant argues that his sixth amendment right to confront witnesses against him was violated because he was not allowed to be physically present at the termination hearing. We find that appellant is misguided in hinging this argument upon the sixth amendment, for it is well-settled that “constitutional rights in a termination proceeding are not derived from the sixth amendment; rather, they are derived from the due process clause of the fourteenth amendment.” In re V.E., 417 Pa.Super. 68, 81, 611 A.2d 1267, 1274 (1992) (emphasis original); see also In re Adoption of T.M.F., 392 Pa.Super. 598, 609-10, 573 A.2d 1035, 1041 (1990). The rationale for this is that the sixth amendment affords protections to the criminal defendant and seeks to ensure fairness in criminal proceedings. A termination of parental rights hearing, however, is a civil action, thus making sixth amendment guarantees inapplicable. Id.

Next, for the same reasons as stated above, appellant avers that his fourteenth amendment right to due process was violated. After careful consideration, we find that appellant’s due process rights were not compromised and we therefore affirm the order of the trial court.

The fourteenth amendment provides, in pertinent part, “nor shall any State deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In assessing whether one has been unlawfully deprived of a protected right, a two-part inquiry must be undertaken.

As a threshold, it must be established that the claimed right is guaranteed protection under the fourteenth amendment. That is, that the state has deprived an individual of a liberty or property interest within the meaning of the fourteenth amendment.

Once this has been established, a determination must be made regarding the adequacy of the procedures employed by the state to deprive a person of that right. In essence, a determination must be made as to what minimal protections are mandated and whether the state’s actions rose to that level of minimal protection. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

In the instant matter, it cannot be questioned that the right in question is a liberty interest protected by the fourteenth amendment. Indeed, the Supreme Court has explicitly held that natural parents have a “fundamental liberty interest ... in the care, custody, and management of their child[ren].” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982). See also Ken R. on Behalf of C.R. v. Arthur Z., 546 Pa. 49, 56, 682 A.2d 1267, 1271 (1996); Cardamone v. Elshoff, 442 Pa.Super. 263, 274-76, 659 A.2d 575, 581 (1995) (biological parents have a prima facie right to custody).

This is not to say, however, that the state may never deprive an individual of the parental right to custody. Rather, this determination fulfills the threshold inquiry only, and allows a court to consider the fairness of the procedures implemented to terminate the parent’s right.

When making this determination, we are guided by the seminal ease of Mathews v. [243]*243Eldridge, supra, wherein the United States Supreme Court held that in considering what process is due in a given situation, three factors must be assessed.

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Bluebook (online)
692 A.2d 240, 1997 Pa. Super. LEXIS 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ap-pasuperct-1997.