In re Interest of C.V.

270 A.3d 1130 (Table)

In the INTEREST OF: C.V., a Minor

Appeal of: J.R.V., Father

No. 1071 EDA 2021

Superior Court of Pennsylvania.

Filed December 09, 2021

MEMORANDUM BY BOWES, J.:

J.R.V. ("Father") appeals from the April 29, 2021 decree terminating his parental rights to his minor son, C.V. We affirm.

C.V. was born to Father and C.B. ("Mother") in November 2014. Father is currently imprisoned at SCI Frackville, having been incarcerated since March 2015 for a heinous assault that he committed against C.V.¹ Father has not had any contact with C.V. since the incident. He has neglected his duty to pay child support and failed to send the child gifts or letters.

During October 2018, Mother married A.B. ("Stepfather"), who C.V. has known since he was approximately two years old. On March 5, 2021, Mother and Stepfather filed a petition for the involuntary termination of Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and a contemporaneous petition seeking Stepfather's adoption of C.V.

On March 29, 2021, Father was served with both petitions while at SCI Frackville and received the scheduling order notifying him of the ensuing hearing. As it relates to the crux of Father's appeal, the petition for adoption included the following warning:

IMPORTANT NOTICE-NATURAL FATHER

....

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.

Monroe County Bar Association Find a Lawyer

913 Main Street, PO Box 786

Stroudsburg, PA 18360

570-424-7288

Petition for Adoption, 3/5/21, unnumbered at 3.

Similarly, the face of the orphans’ court's scheduling order contained the following paragraph informing Father of his right to counsel and instructing him how to request it. The order provided:

The parent of the child subject to the Involuntary Termination of Parental Rights/ Adoption is entitled to legal counsel and should contact a lawyer immediately. If the parent cannot afford a lawyer, one will be appointed by the Court at no cost if so requested. Such requests for legal counsel must be made by motion filed with the Clerk of the Orphans’ Court .

Order, 3/8/21 (emphasis added). Father did not request counsel, respond to the notice, or attend the evidentiary hearing.

As discussed further infra , at the outset of the hearing, the orphans’ court confirmed the affidavit of service and noted that Father had not communicated with the court about the hearing. Accordingly, the hearing proceeded in Father's absence. After Mother and Stepfather each presented evidence, the orphans’ court announced its decision to terminate Father's parental rights.² The court memorialized that determination in a decree and opinion entered the following day, April 29, 2021.

Thereafter, acting pro se , Father filed a timely notice of appeal. He failed to file a contemporaneous concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) ; however, subsequent to an order of this Court and the appointment of counsel, Father complied with our directive to file a Rule 1925(b) statement by July 30, 2021.³ The orphans’ court issued a statement pursuant to Pa.R.A.P. 1925(a), that relied upon the rationale outlined in the opinion that accompanied the April 29, 2021 decree.

With the assistance of counsel, Father raises the following issues for our review:

1. Whether the court violated ... Father's right to due process by not allowing him to partic[i]pate in the hearing for termination of parental rights?

2. Whether the court erred in finding that petitioner proved the elements of [ 23 Pa.C.S. § 2511(a)(1) ] and [ 23 Pa.C.S. § 2511(b) ] through clear and convincing evidence?

Father's brief at 4 (unnecessary capitalization omitted).

Father's first argument asserts that the trial court violated his due process right by terminating parental rights in absentia and without providing counsel.⁴ We have stated, "A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary." S.T. v. R.W. , 192 A.3d 1155, 1160 (Pa.Super. 2018) (quoting Commonwealth v. Tejada , 161 A.3d 313 (Pa.Super. 2017) ) (internal citation omitted).

It is well-settled that infringement on parental rights implicates a parent's Fourteenth Amendment right to due process. See In the Interest of A.P. , 692 A.2d 240, 242 (Pa.Super. 1997) (stating that natural parents have a "fundamental liberty interest ... in the care, custody, and management of their children") (citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) ). "It has long been established that the right to make decisions concerning the care, custody, and control of one's children is one of the oldest fundamental rights protected by the Due Process Clause of the United States Constitution." In re S.H. , 71 A.3d 973, 979–80 (Pa.Super. 2013) (citing Hiller v. Fausey , 904 A.2d 875, 885 (Pa. 2006) ). As we have explained, "[d]ue process requires nothing more than adequate notice, an opportunity to be heard, and the chance to defend oneself in an impartial tribunal having jurisdiction over the matter." In re J.N.F. , 887 A.2d 775, 781 (Pa.Super. 2005). Essentially, "[d]ue process is flexible and calls for such procedural protections as the situation demands." In re Adoption of Dale A., II , 683 A.2d 297, 300 (Pa.Super. 1996) (citing Mathews v. Eldridge , 424 U.S. 319, 334 (1976) ).

As to the appointment of counsel for parents in involuntary termination proceedings, 23 Pa.C.S § 2313(a.1) provides, "[t]he court shall appoint counsel for a parent whose rights are subject to termination in an involuntary termination proceeding if, upon petition of the parent , the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship." 23 Pa.C.S. § 2313(a.1) (emphasis added).

In support of his challenge to due process, Father contends that it is unknown whether he knew how to file a motion for an attorney and what attempts he made, if any, in this regard. See Father's brief at 8, 10-12. He further questions the procedures regarding communication with inmates in the Commonwealth's correctional facilities during the COVID-19 pandemic, as well as the limited amount of time afforded to retain an attorney. Id . at 10-11. Moreover, Father maintains that, to protect his interest, the orphans’ court could have arranged for him to participate in the hearing virtually, something which is not burdensome and now normal. Id . at 11.

Notwithstanding the foregoing protestations, Father concedes, "[c]ase law in this area seems to tell us that as long as a parent is notified[,] he has a right to participate in the hearing and to have an attorney, then the right to due process has not been violated."Id . at 11. He, nonetheless, attempts to distinguish his case from that precedent, In re J.N.F. , 887 A.2d 775 (Pa.Super. 2005) and In re Adoption of Dale A., II , 683 A.2d 297 (Pa.Super. 1996), because the agency-triggered proceedings in those cases suggested the presence of counsel during at least the adjudications of dependency. Id . at 11-12. Father's argument is not persuasive.

While Father was entitled to counsel during the orphans’ court proceedings, as expressly stated in § 2313(a.1) of the Adoption Act, the right to appointed counsel is not self-executing. See 23 Pa.C.S. § 2313(a.1). Indeed, a parent must request the appointment of counsel "upon petition of the parent, [where] the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship." Id . Furthermore, despite Father's arguments to the contrary, nothing in the Adoption Act or our pertinent jurisprudence suggests that the mere fact that Mother, rather than a child service agency, sought to terminate his parental rights rendered Father's statutory right to counsel automatic. Plainly, where a parent receives notice of the termination proceeding and neglects to request counsel, the orphans’ court does not err in declining to appoint counsel sua sponte . See In re J.N.F. , supra at 780-81 (finding court's failure to appoint counsel and arrange for an incarcerated father's participation in a termination hearing was not error where the unrepresented father did not file a motion or attempt to communicate with the court as to the appointment of counsel and did not communicate his desire to contest the petition to the court).

Instantly, Stepfather's petition for adoption, which was appended to the petition for the involuntary termination of parental rights, advised Father of his right to be represented by counsel and who to contact for legal assistance. Likewise, the face of the scheduling order contained notice that Father concedes tracked 23 Pa.C.S. § 2313(a.1). See Father's Brief at 10. Moreover, the affidavit of service, filed April 12, 2021, reflects personal service of the petitions and scheduling order on Father on March 29, 2021.⁵ See Affidavit of Service, 4/12/21.

Furthermore, at the commencement of the hearing on April 28, 2021, the orphans’ court paused and addressed Father's lack of communication with the court. The orphans’ court observed that "an Affidavit of Service ... was served March 29, 2021, at SCI Frackville" and it concluded that it had "not been notified of any requests by [Father] for counsel, or to participate in any way." N.T., 4/28/21, at 3.

Father received notice of the hearing and was informed of his right to counsel. Yet, he took no action to request counsel or signal his desire to contest the petitions and participate in the hearing. Prior to proceeding with the evidentiary hearing, the orphans’ court confirmed there was no contact from, or interaction with, Father. Any arguments by Father as to his knowledge of how to request counsel,...