In Re: C.R., Appeal of: S.R.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2021
• Docket: 373 WDA 2021
• Status: Unpublished

Opinion

J-A18026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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. J-A18026-21

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, ____________________________________________

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 ____________________________________________

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 ____________________________________________

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

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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