In the Int. of: L.C.M., Appeal of: C.D.

• Court: Superior Court of Pennsylvania
• Decided: November 13, 2018
• Docket: 4076 EDA 2017
• Status: Unpublished

Opinion

J-A18015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.C.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.D., MOTHER : No. 4076 EDA 2017

Appeal from the Order Entered November 3, 2017 In the Court of Common Pleas of Monroe County Orphans' Court at No: 2015-00076

IN THE INTEREST OF: E.L.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.D., MOTHER : No. 4077 EDA 2017

Appeal from the Order Entered November 3, 2017 In the Court of Common Pleas of Monroe County Orphans' Court at No: 2017-00077

IN THE INTEREST OF: C.M.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.D., MOTHER : No. 4078 EDA 2017

Appeal from the Order Entered November 3, 2017 In the Court of Common Pleas of Monroe County Orphans' Court at No: 2015-00078

IN THE INTEREST OF: A.D.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.D., MOTHER : No. 4079 EDA 2017

Appeal from the Order Entered November 3, 2017 In the Court of Common Pleas of Monroe County Orphans' Court at No: 00079-2015 J-A18015-18

BEFORE: STABILE, J., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2018

C.D. (“Mother”) appeals from the orders entered on November 3, 2017,

in the Court of Common Pleas of Monroe County, denying her petitions, filed

pro se on August 28, 2017, requesting to appeal the orders involuntarily

terminating her parental rights to her four children, inter alia. Upon review,

we affirm.

By way of background, on November 18, 2015, the Monroe County

Children and Youth Services (“CYS”) filed petitions for the involuntary

termination of the parental rights of Mother and R.M. (“Father”) to their

daughters, L.C.M., E.L.M., and C.M.M., and their son, A.D.M. (collectively,

“Children”)1 pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). The

Honorable Jonathan Mark presided over the hearing on the petitions on March

14, 2016, during which Mother, who was then incarcerated in the Monroe

County Correctional Facility, was represented by court-appointed counsel.2

N.T., 9/27/17, at 11. By orders dated and entered on March 16, 2016, the

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* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court. 1 L.C.M., E.L.M., C.M.M., and A.D.M. were born in July 2011, March 2005, April

2010, and September 2006, respectively.

2 In addition, Judge Mark presided over the subject proceeding. -2- J-A18015-18

orphans’ court involuntarily terminated Mother’s and Father’s parental rights

to Children. Neither Mother nor Father filed notices of appeal.

On July 25, 2017, J.-A.D., Children’s maternal grandmother, filed

petitions for adoption of Children who have resided with her in kinship care

since January 2015. On August 28, 2017, one day prior to the adoption

hearing, Mother, acting pro se, filed petitions wherein she alleged that she

never received notice of the involuntary termination orders, inter alia. Mother

requested to appeal the orders involuntarily terminating her parental rights.

As such, the orphans’ court deemed her petitions as requests for permission

to appeal nunc pro tunc. An evidentiary hearing on Mother’s petitions

commenced on September 27, 2017, during which Mother, then represented

by counsel, testified on direct examination, but she neither concluded that

testimony nor was she subjected to cross-examination. The court continued

the hearing to November 2, 2017; however, Mother did not appear.

By orders dated November 2, 2017, and entered on November 3, 2017,

the orphans’ court denied Mother’s petitions. Mother filed notices of appeal

on December 4, 2017. On December 11, 2017, Mother filed concise

statements of errors complained of on appeal.3 The orphans’ court filed its

3Mother did not file her concise statements of errors complained of on appeal contemporaneously with her notices of appeal in contravention of Pa.R.A.P. 1925(a)(2)(i) and (b). Because neither CYS nor the Guardian ad litem (“GAL”) has objected to this procedural defect or claimed any prejudice, we will not

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Rule 1925(a) opinion on February 12, 2018. On February 13, 2018, this Court

consolidated Mother’s appeals sua sponte.

On appeal, Mother raises the following issue for our review:

1. Whether the [c]ourt abused its discretion and/or committed an error of law in terminating Mother’s parental rights pursuant to [23 Pa.C.S. §] 2511(a)(1), (2), (5) and (8) and [Section] 2511(b) of the Adoption Act and in failing to permit her nunc pro tunc appeal[?]

Mother’s brief at 2 (unpaginated).

We review orders denying an appeal nunc pro tunc pursuant to an abuse

of discretion standard. In the Interest of M.S.K., 936 A.2d 103, 104 (Pa.

Super. 2007). “An abuse of discretion is not merely an error of judgment but

is found where the law is ‘overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will

as shown by the evidence or the record.’” Id. (citation omitted).

Pa.R.A.P. 903(a) provides that a notice of appeal “shall be filed within

30 days after the entry of the order from which the appeal is taken.” Appellate

courts “may not enlarge the time for filing a notice of appeal. . . .” Pa.R.A.P.

105(b). However, nunc pro tunc relief may be granted

when a delay in filing [an appeal] is caused by extraordinary circumstances involving fraud or some breakdown in the court’s operation through a default of its officers. Where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a ____________________________________________

dismiss her appeals. See Bronson v. Kerestes, 40 A.3d 1253 (Pa. Super. 2012) (Strassburger, J., concurring and dissenting).

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short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.

Our Supreme Court has made it clear that the circumstances occasioning the failure to file an appeal must not stem from counsel’s negligence or from a failure to anticipate foreseeable circumstances.

M.S.K., 936 A.2d at 105 (citations omitted); see also Towey v. Lebow, 980

A.2d 142, 144 (Pa. Super. 2009) (quoting Criss v. Wise, 781 A.2d 1156,

1159 (Pa. 2001)) (stating, in allowing an appeal nunc pro tunc, the appellant

must prove: “(1) the appellant’s notice of appeal was filed late as a result of

non-negligent circumstances, either as they relate to the appellant or the

appellant’s counsel; (2) the appellant filed the notice of appeal shortly after

the expiration date; and (3) the appellee was not prejudiced by the delay.”)).

Mother asserts on appeal that her prior counsel who represented her

during the involuntary termination proceeding was ineffective in failing to

provide her notice of the involuntary termination orders. Specifically, she

asserts that she transferred to a different prison after the hearing, and that

she did not receive notice of the orders at either prison.

Mother testified that she transferred from the Monroe County

Correctional Facility to the Northampton County Correctional Facility on a date

uncertain. To the best of her recollection, she transferred prisons “toward the

end of March [of 2016].” N.T., 9/27/17, at 11-12. Mother’s counsel

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introduced as an exhibit a letter from her prior counsel, dated March 25, 2016,

and addressed to Mother at the Monroe County Correctional Facility, that

notified her of the termination orders. Id. at 12; Trial Court Opinion, 2/12/18,

at 4, n. 3. Mother testified that she never received prior counsel’s letter at

either the Monroe or Northampton County Correctional Facilities. N.T.,

9/27/17, at 12.

Instantly, in its opinion accompanying the subject orders, the orphans’

court concluded that Mother did not meet her burden of proof for nunc pro

tunc relief because she never completed her testimony on direct examination,

and CYS and the GAL were denied the opportunity to cross-examine her.

Indeed, Mother did not appear on the second day of the hearing to continue

her testimony. The court stated, “No explanation for [Mother’s] absence was

given before or after the hearing and nothing indicating that the absence was

anything other than voluntary was ever presented to th[e] [c]ourt.” Trial

Court Opinion, 2/12/18, at 8.

The court found as follows.

[Mother] has not alleged[,] and nothing in the record even remotely suggests[,] fraud or a breakdown in the operations of [the c]ourt. Similarly, non-negligent reasons for the delay have not been established. If the allegations of [Mother’s] petition[s] are accepted as true, if her partial direct testimony is fully credited, and if cosmic inferences are drawn in her favor, [Mother] has[,] at best[,] established that the failure to timely file an appeal resulted from negligence -- hers or her attorney’s -- or, perhaps more accurately, her failure to take reasonable steps to determine the outcome of the termination proceedings or provide her attorney with updated contact information. . . . [S]uch negligence -6- J-A18015-18

or inattentiveness are not grounds for obtaining nunc pro tunc relief.

Id. at 13. Upon review, we discern no abuse of discretion. See Criss v.

Wise, supra at 1160 (stating, “The exception for allowance of an appeal nunc

pro tunc in non-negligent circumstances is meant to apply only in unique and

compelling cases in which the appellant has clearly established that she

attempted to file an appeal, but unforeseeable and unavoidable events

precluded her from actually doing so.”).

Further, Mother did not file petitions for permission to appeal nunc pro

tunc shortly after the expiration date for filing notices of appeal from the

termination orders, which was April 15, 2016. Rather, Mother filed the

petitions more than sixteen months after the expiration date.

The court found that Mother “offered no explanation as to when or how

she learned of” the involuntary termination orders or for the significant delay

in seeking to appeal. Trial Court Opinion, at 2/12/18, at 11. The court

reasoned,

When, as here, the health, safety, needs, welfare, permanency, and best interests of young children are involved, the failure of a party seeking leave to appeal out-of-time to establish when she learned of the order she seeks to appeal or to offer a full explanation for a delay that exceeds one year is even more significant.

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Id. at 11-12. We agree.4 Because the record reflects that Mother failed to

meet her burden of proof, we affirm the orders denying her petitions for nunc

pro tunc relief.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/18

4 In her brief, Mother addresses her significant delay in filing the petitions for nunc pro tunc relief by asserting that she “was in the throes of addiction. . . . [Mother] has since addressed her issues and has been in recovery. In fact, it was when she entered treatment that she immediately took steps not only to grab hold of her life challenges but in saving her relationship with her children.” Mother’s brief at 7 (unpaginated). Mother asserts, “that event coincides” with when she filed the petitions for permission to appeal nunc pro tunc. Id.

Mother testified that, in April 2016, she was paroled from Northampton County Correctional Facility. N.T., 9/27/17, at 14. She testified that she continued to struggle with her substance abuse issues, and, on January 12, 2017, she was re-incarcerated. Id. at 16, 18. Mother testified that she entered a “sober living program” in April 2017, where she resided at the time of the subject hearing. Id. at 9, 18.

To the extent Mother asserts that she failed to seek nunc pro tunc relief shortly after the expiration of the appeal period because of her substance abuse addiction, we conclude that Mother did not meet her burden of proof. Indeed, granting Mother nunc pro tunc relief more than sixteen months after the expiration of the appeal period would prejudice Children who have “the right to have proper parenting and fulfillment of [their] potential in a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted). -8-