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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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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J. S38001/14 & J. S38002/14
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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4
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)______
23 Pa.C.S.A. § 2513(b).
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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