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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION OF IN THE SUPERIOR COURT OF
L.K. PENNSYLVANIA
APPEAL OF: J.K., NATURAL FATHER
No. 397 WDA 2016
Appeal from the Decree February 18, 2016
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 60 in Adoption 2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016
J.K. (“Father”) appeals from the decree entered February 18, 2016, in
the Court of Common Pleas of Erie County, which involuntarily terminated
his parental rights to his minor daughter, L.K. (“Child”), born in November of
2010.1 After a careful review, we affirm.
This appeal arises from the petition for involuntary termination of
parental rights filed by R.K.1 and R.K.2 (“Paternal Grandparents”) on
September 17, 2014. The record reveals that Child has resided with
Paternal Grandparents since approximately September 12, 2011. See N.T.,
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1
Child’s biological mother, C.K. (“Mother”), voluntarily relinquished her
parental rights on November 4, 2015. Mother has not filed a brief in
connection with the instant appeal, nor has she filed her own separate
appeal.
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2/17/2016, at 7-9. Paternal Grandparents obtained custody of Child
following a domestic violence incident during which Mother shot Father. Id.
at 7. In addition, both parents were arrested after police discovered a
marijuana-growing operation in the family’s home. Id.
An involuntary termination hearing originally was scheduled for
December 5, 2014, but the proceedings were continued on several occasions
at the request of both Father and Mother. Father filed a petition to
voluntarily relinquish his parental rights on November 13, 2015, but Father
indicated at the relinquishment hearing that he felt as though he was being
forced to give up his parental rights, and the matter was continued again.
See N.T., 11/23/2015, at 3-4.
An involuntary termination hearing finally took place on February 17,
2016. However, the orphans’ court was unable to reach Father on the
phone.2 After discussing the numerous prior continuances in this matter,
the court announced that it would proceed with the hearing in Father’s
absence. N.T., 2/17/2016, at 3-4. Father’s counsel asked whether the court
would deny a request for an additional continuance, and the court replied,
“Denied. Denied.” Id. at 4-5. Following the hearing, on February 18, 2016,
the court entered its decree involuntarily terminating Father’s parental rights
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2
Father was incarcerated at the time of the hearing. It appears from the
record that Father was released from incarceration following his arrest in
2011, and later was reincarcerated due to a different offense. See N.T.,
2/17/2016, at 10-11.
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to Child. Father timely filed a notice of appeal on March 14, 2016, along
with a concise statement of errors complained of on appeal.
Father now raises the following issues for our review.
1. Whether the orphans’ court committed an abuse of discretion
and/or error or law by denying counsel’s request for a
continuance when [] Father was unavailable for participation by
telephone by the prison system, after a request for telephone
participation was duly scheduled[?]
2. Whether the constitutional rights of [Father], pursuant to the
14th Amendment to the U.S. Constitution, due process clause
and guarantee of equal protection were violated when the
[orphans’] court failed to afford [Father] the right to be heard,
defend oneself and confront adverse witnesses[?]
3. Whether [] Father’s rights under the Pennsylvania
Constitution to due process and equal protection were violated
by the failure of the [orphans’] court to continue the hearing so
[] Father would have the opportunity to be heard and participate
in the hearing to involuntarily terminate his parental rights[?]
Father’s brief at 3 (unnecessary capitalization and orphans’ court answers
omitted).
Father’s issues on appeal are interrelated, so we address them
together. Father argues that the orphans’ court violated his right to due
process under both the United States and Pennsylvania Constitutions by
failing to grant him an additional continuance on February 17, 2016.3
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3
While Father asserts in his statement of questions involved that the
orphans’ court violated both his right to due process and his right to equal
protection, the argument section of Father’s brief focuses solely on his right
to due process. Father does not develop any argument with respect to his
right to equal protection, nor does he cite to any relevant authority. Thus,
Father has waived any claim that the orphans’ court violated his right to
(Footnote Continued Next Page)
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Father’s brief at 6-9. Father insists that he was unable to participate in the
involuntary termination hearing due to a medical appointment, and that the
court’s decision prevented him from hearing the evidence presented against
him, and from presenting evidence on his own behalf. Id. at 7.
We consider Father’s claims mindful of our well-settled standard of
review.
This Court has noted that a trial court has broad discretion
regarding whether a request for continuance should be granted,
[and] we will not disturb its decision absent an apparent abuse
of that discretion. An abuse of discretion is more than just an
error in judgment and, on appeal, the trial court will not be
found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the
result[ ] of partiality, prejudice, bias, or ill-will.
In re K.J., 27 A.3d 236, 243 (Pa. 2011) (citations and quotation marks
omitted).
“Procedural due process requires, at its core, adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case.” Garr v. Peters, 773
A.2d 183, 191 (Pa. Super. 2001) (citation and quotation marks omitted).
Due process does not require that an incarcerated parent must be physically
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(Footnote Continued)
equal protection. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011),
appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884,
897 (Pa. Super. 2010)) (“‘[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”’).
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present at a termination hearing. In re Adoption of J.N.F., 887 A.2d 775,
781 (Pa. Super. 2005). “However, if the incarcerated parent desires to
contest the termination petition, the trial court must afford the incarcerated
parent the ability to participate meaningfully in the termination hearing
through alternate means.” Id.
Instantly, in its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the
orphans’ court explained that Father was not entitled to an additional
continuance. Orphans’ Court Opinion, 4/6/2016, at 4-6. The court reasoned
that the proceedings had already been continued on numerous occasions,
and that Father’s court-appointed counsel participated in the termination
hearing even if Father himself did not. Id. The court stressed that Father
had the opportunity to participate in the hearing if he chose to do so, and
that Father’s “unavailability because of a doctor appointment in prison
appeared to be manufactured to further delay the trial.” Id. at 3. We
agree.
At the conclusion of the termination hearing, the orphans’ court and
Father’s counsel engaged in the following discussion concerning their
inability to reach Father on the phone.
THE COURT: . . . . You apparently talked to him
yesterday?
[Father’s counsel]: Well, I didn’t speak to him. I spoke to
his counselor.
THE COURT: Were you given any indication at all that
communicating with him would be a problem today?
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[Father’s counsel]: No. None.
THE COURT: Did anybody say anything to you about
doctor appointments?
[Father’s counsel]: No.
THE COURT: When is the last time you communicated or
heard from your client, either speaking to him in person or
writing?
[Father’s counsel]: Okay. Well, I had written him a letter,
January 25, 2016, advising him that I presented a motion with
Your Honor requesting permission to participate in a hearing by
telephone. Because he’s at Camp Hill, he could not be
transported here.
And I further advised him that if he had any evidence that
he wished me to present, that he needed to get that to me. I
received a letter from him from Camp Hill that was postmarked
February 9, 2016, where he enclosed a copy of a speech that he
wanted to give today. He requested that I assist him with
making that happen when he had the opportunity to talk. And I
have a speech.
THE COURT: Okay. I’ll let you read it in, but that’s-- that
was the last time you heard from him?
[Father’s counsel]: Well, then I attempted-- you know, I
contacted Camp Hill a number of times, and I had great difficulty
getting through to anyone who would call me back, and then
finally was successful yesterday when I kind of went up the
chain of command, because I said this hearing’s tomorrow. I
need to get this scheduled. I actually spoke to Mr. Phelps, and
he advised me that 9:30 would be good, that he would have
[Father] available, that he would only have a half an hour to
talk, but indicated nothing as far as a doctor appointment.
THE COURT: All right.
[Father’s counsel]: And I think he’s the pod counselor.
THE COURT: All right. And the record should reflect he’s
the gentleman that we talked to on the phone this morning--
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[Father’s counsel]: Correct.
THE COURT: --and told us that when he arrived, that
[Father] was already gone to the appointment, that he couldn’t
give us any indication how long he would be or when he might
return. . . .
N.T., 2/17/2016, at 43-45.
Thus, the record confirms that Father had notice, the opportunity to be
heard, and a chance to defend himself during the involuntary termination
hearing on February 17, 2016. Father was aware that the hearing was
scheduled for that day, and Father’s counsel went to significant lengths in
order to ensure that Father would be able to testify via telephone. However,
Father forfeited his right to participate in the hearing by leaving for an
unanticipated medical appointment without notifying the court, his attorney,
or his prison counselor. While Father suggests that he had no choice but to
attend the medical appointment that day, there is simply no support in the
record for Father’s claim.
Further, Father’s counsel was able to participate meaningfully in the
termination hearing despite Father’s absence. Father’s counsel cross-
examined witnesses, and presented the court with several exhibits, including
certificates indicating that Father had completed anger management,
domestic violence, and dual diagnosis programs while incarcerated. See
Father’s Exhibits 2-3, 5-6. Father’s counsel also presented the court with a
“speech” prepared by Father, which the court reviewed prior to making its
decision. Father’s “speech” is contained in the certified record as Father’s
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Exhibit 1, and includes Father’s explanation as to why he believes that his
parental rights should not be terminated. Cf. In re Adoption of Dale A.,
II, 683 A.2d 297, 300-01 (Pa. Super. 1996) (holding that the appellant
father’s right to due process was not violated, where he was represented by
counsel during the termination hearing, and where his testimony was
presented to the court using interrogatories and an affidavit).
Accordingly, because we conclude that the orphans’ court did not
deprive Father of his right to due process, we affirm the decree terminating
Father’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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