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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.S.H., II, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
P.J.B.-C : No. 373 EDA 2017
Appeal from the Order entered December 16, 2016
in the Court of Common Pleas of Delaware County,
Domestic Relations Division, No(s): 2007-11143
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017
L.S.H., II (“Father”), pro se, appeals from the Order dismissing his
Request for a Hearing De Novo (“Request”), after Father failed to appear for
the scheduled de novo custody hearing. We vacate and remand.
On August 24, 2007, Father filed a Complaint against P.J.B.-C.
(“Mother”),1 seeking joint legal custody of their minor daughter, L.H.
(“Child”), born in July 2007. Pursuant to Delaware County local rules, a
custody conciliator was appointed to make a recommendation to the trial
court regarding custody. The conciliator conducted a hearing in October
2007, and recommended that Mother and Father be granted joint legal
custody, with Mother retaining primary physical custody, and Father
receiving partial physical custody of Child. On October 12, 2007, the trial
1
Father and Mother are not married.
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court adopted the conciliator’s recommendation and entered a Temporary
Custody Order.
The conciliator conducted a hearing in January 2009, and
recommended that Father’s partial custody be suspended without prejudice,
as Father was serving a prison term in an unrelated case. On January 12,
2009, the trial court adopted the conciliator’s recommendation and entered a
Temporary Custody Order.
Mother filed a Petition to Modify Custody on January 29, 2016,
pointing to her difficulty asserting her right to legal custody while Father is in
prison. On April 1, 2016, the conciliator conducted a hearing, and
recommended that Mother be granted sole legal custody of Child. The
conciliator also recommended that Father have reasonable phone and mail
contact with Child. On the same date, Father sent the trial court his Request
from prison.2 The trial court adopted the conciliator’s recommendation and
entered a Temporary Custody Order on April 4, 2016.
The trial court conducted a pretrial hearing on June 3, 2016, in which
Father participated via telephone. During the pretrial hearing, the trial court
stated that the de novo hearing would likely take place in November, and
that Father would receive notice of the hearing in the mail.
On September 13, 2016, Father filed a Petition for Civil Contempt
against Mother, alleging that Mother had disconnected her phone and failed
2
Father’s Request was entered on the docket on April 11, 2016.
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to give Father her new phone number, so he could contact Child. The trial
court conducted a hearing on November 17, 2016, and denied Father’s
Petition based on its conclusion that Mother had not willfully prevented
Father from having phone contact with Child. The trial court also established
a schedule for Father’s phone contact. Additionally, during the contempt
hearing, the trial court advised Father that he would have to petition to be
present at the de novo hearing. However, the trial court did not specify the
hearing date on the record until after it had ended the phone call with
Father.
On December 14, 2016, the trial court conducted the de novo hearing.
Father did not appear for the hearing. The trial court called the prison, and
was informed that Father had not made arrangements to participate in the
hearing. When the trial court spoke to Father on the phone, Father insisted
that he had not received notice of the hearing. The trial court ended the
phone call after arguing with Father for several minutes, and stated that
Father’s Request would be dismissed. By Order dated December 16, 2016,
the trial court dismissed Father’s Request, noting that Father had failed to
appear in person, file a writ of habeas corpus, or make arrangements to
participate using the prison’s telephone system.
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Father filed a timely3 Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.4
On appeal, Father raises the following question for our review:
Did [the t]rial [c]ourt err and abuse its discretion in dismissing
[the R]equest for [a] de novo trial[,] when [Father] told the
[c]ourt that he did not receive the notice for trial[,] and when
the [c]ourt engaged in an ex parte conversation with the counsel
for [Mother,] then did not convey the information to [Father?]
Brief for Appellant at 4.5
We observe the following scope and standard of review in evaluating
custody cases:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
3
Father’s Notice of Appeal was docketed on January 18, 2017. Although the
Order was entered on the docket on December 16, 2016, the docket reflects
that notice of the Order was provided on December 19, 2016. See Pa.R.A.P.
108(b) (providing that the date of entry of a civil order “shall be the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given”). Additionally, Father attached to his brief a copy of a
prisoner cash slip, indicating that he deposited his Notice of Appeal with the
prison authorities on January 10, 2017. See Pa.R.A.P. 121(a) (providing
that “[a] pro se filing submitted by a prisoner incarcerated in a correctional
facility is deemed filed as of the date it is delivered to the prison authorities
for purposes of mailing …, as evidenced by a properly executed prisoner
cash slip….”).
4
Father did not file a concise statement with his Notice of Appeal, as
required by Pa.R.A.P. 1925(a)(2). However, on January 24, 2017, the trial
court ordered Father to correct the defect by filing a concise statement by
February 14, 2017, and Father complied. See In re K.T.E.L., 983 A.2d
745, 748 (Pa. Super. 2009) (declining to quash appeal where mother did not
file her concise statement contemporaneously, and late filing did not
prejudice other parties).
5
Mother did not file an appellate brief.
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evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Further, “[i]n custody … cases, the paramount concern is the best interests
of the child. A determination of where those interests lie can only be made
on the basis of a reasonably complete record….” Vanaman v. Cowgill, 526
A.2d 1226, 1227 (Pa. Super. 1987) (citation omitted).
Father argues that he did not receive notice of the December 14, 2016
hearing. Brief for Appellant at 11-12, 13. Father claims that he knew that a
hearing was pending, but he had not been provided with a specific date. Id.
at 13. Father asserts that he believed the trial court would schedule a
telephone or video conference for him, as they had done for previous
hearings. Id. at 12. Additionally, Father contends that the trial court
engaged in ex parte communications with Mother’s counsel during the
November 17, 2016 contempt hearing, wherein the trial court provided the
December hearing date to Mother and her counsel after ending telephone
contact with Father. Id. at 13. Father argues that the trial court did not
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allow him to present evidence, and failed to consider the best interests of
Child. Id. at 14, 15 n.1.
Father’s claim is, in effect, an argument that he was denied due
process because the trial court failed to provide him notice of the de novo
hearing. This Court has stated that
[f]ormal notice and an opportunity to be heard are fundamental
components of due process when a person may be deprived in a
legal proceeding of a liberty interest, such as physical freedom,
or a parent’s custody of [his] child. Both notice and an
opportunity to be heard must be afforded at a meaningful time
and in a meaningful manner. … Notice, in our adversarial
process, ensures that each party is provided adequate
opportunity to prepare and thereafter properly advocate its
position, ultimately exposing all relevant factors from which the
finder of fact may make an informed judgment.
Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (citations and
quotation marks omitted).
We are guided by this Court’s decision in Vanaman, wherein this
Court addressed the deprivation of due process guarantees of a prisoner in a
custody matter. In Vanaman, the subject child’s father, who was in prison,
failed to appear for a custody hearing, and the trial court, without taking any
evidence, denied the father the right to visitation. Vanaman, 526 A.2d at
1226-27. In reversing the trial court’s order, this Court held that
where the respondent/defendant in an action is incarcerated,
notice must contain, as well as the usual particulars of the
hearing, the statement that respondent/defendant may, if he
wishes to attend, request the court by means of a habeas
petition and writ to make arrangements for transportation to and
presence at the hearing. Such request must be made within 10
days prior to the scheduled date.
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Id. at 1227. This Court reasoned that “[t]he fact of appellant’s incarceration
places an obligation on the court to safeguard his due process rights,” and
concluded that the father’s rights had been ignored. Id. Although not
directly analogous to the instant case, we are persuaded by the Vanaman
Court’s reasoning, and conclude that Father, in challenging the conciliator’s
legal custody determination, was entitled to these protections. See id.; see
also Sullivan v. Shaw, 650 A.2d 882, 884 (Pa. Super. 1994) (concluding
that an incarcerated petitioner in visitation action is entitled to the notice
requirements set forth in Vanaman).
Here, the trial court acknowledges that Father was entitled to request
a de novo hearing following the entry of the Temporary Custody Order based
upon the custody conciliator’s recommendation. See Trial Court Opinion,
3/2/17, at 3. The trial court stated in its Opinion that it sent notice of the
December 14, 2016 de novo hearing to Father by certified mail on June 6,
2016, and notified Father that, if he wished to attend the hearing, he would
have to file a Petition for writ of habeas corpus ad testificandum at least ten
days prior to the hearing. See id. at 3-4. The trial court also stated that it
received the return receipt, signed by D. Hine at the prison, on June 8,
2016. See id. at 3. Additionally, the trial court indicated that its method of
notice to Father was consistent for every hearing in the instant matter, and
that each prior return receipt had also been signed by D. Hine at the prison.
See id. at 3-4.
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Nevertheless, based upon our review of the record, we cannot
conclude that Father received adequate notice of the December 14, 2016 de
novo custody hearing. Here, the trial court did not enter a scheduling order
for the de novo hearing on the docket. Also absent from the certified record
is a copy of the notice sent to Father, informing him of the date and time of
the de novo hearing, as well as his right to file a writ of habeas corpus ad
testificandum in order to personally appear at the hearing, or to make
arrangements to participate via telephone.6 See Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) (stating that if a
document is not certified by the trial court as part of the official record, we
may not consider it). Moreover, although the trial court stated during the
November 17, 2016 contempt hearing that the de novo hearing would take
place on December 14, 2016, it did so after ending the phone call with
Father. See N.T., 11/17/16, at 65-66. Based upon the foregoing, we are
constrained to conclude that the trial court abused its discretion in
dismissing Father’s Request without confirming that Father received notice of
the hearing and instructions regarding how to make arrangements to appear
in person or via telephone. See Vanaman, 526 A.2d at 1227; see also
Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001) (stating that
6
Father attached to his brief a copy of an “Inmate’s Request to Staff
Member,” wherein he requested a list of dates he received and signed for
legal mail, and specifically asked whether he received legal mail in June
2016. See Brief for Appellant, Exhibit 2. To the extent that we consider this
document, we observe that the responding staff member indicated that
Father received legal mail in April and October 2016.
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“[p]rocedural due process requires, at its core, adequate notice, opportunity
to be heard, and the chance to defend oneself….” (citations and quotation
marks omitted)).
We therefore vacate the Order dismissing Father’s Request, and
remand for a de novo hearing, for which Father is to be afforded appropriate
notice and an opportunity to be heard. The trial court is directed to ensure
that its notice instructs Father regarding the necessary actions he must take
to ensure his participation either in person or by telephone, and provide him
ample time to file any required motion regarding his appearance in person or
via telephone.
Order vacated. Case remanded for further proceedings consistent with
this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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