S.T. v. R.W.

192 A.3d 1155

S.T., Appellant

v.R.W.

No. 1748 MDA 2017

Superior Court of Pennsylvania.

Submitted March 26, 2018

Filed June 29, 2018

S.T., appellant, pro se.

Lori A. S. Guzick, Pottsville, for appellee.

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.:

In this matter, we decide whether the trial court afforded sufficient due process to an incarcerated parent who seeks contact with her child. In reaching our conclusion, we determine what forms of custody incarcerated parents retain under the 2011 revisions to Pennsylvania Custody Law.¹ And finally, we decide whether the trial court properly analyzed the statutory factors when considering whether to allow an incarcerated parent to retain any form of physical or legal custody.

An incarcerated Mother, S.T., appeals the order denying her request for telephone communication with the parties' nine-year-old daughter. The trial court conducted an ex parte custody hearing with Father, R.W., without affording Mother either notice that she could request to be present, or a meaningful opportunity to be heard. The trial court then misapplied the current Custody Law. We hold that the court's procedure constituted a violation of Mother's rights to due process. We vacate the order and remand for a new hearing.

The pertinent facts are these: The parties are parents to a nine-year-old daughter.

Father resides with the daughter in Schuylkill County where he is a corrections officer at State Corrections Institute ("SCI") Mahanoy. At the time of the hearing, Mother was incarcerated approximately 90 minutes away at SCI Muncy in Lycoming County.² She is a former physician who is serving a prison term of 5 to 10 years for crimes relating to her practice.³

Although the exact dates remain somewhat disputed, it is uncontested that Mother had not seen, nor spoken with her daughter since before she began serving her sentence in March 2014. See N.T., 8/10/17, at 11–12; see also Mother's Brief, at 6. Lately, however, Father testified that he has encouraged and facilitated written correspondence between the child and Mother. Id. , at 13. Mother's earliest possible release is March 2019.

In August 2017, Mother filed a "Motion for Contact via Telephone and Correspondence." Upon receiving this pleading, the trial court entered an order scheduling a hearing on the matter. The order notified Mother of the time, place and location of the hearing, but limited Mother's participation in the hearing to a mere written statement. The court ordered Mother to provide in a written statement the following information: a) her place of incarceration; b) her crimes and their circumstances; c) date of incarceration; d) the sentencing orders; e) the earliest possible date of her release; f) her requested involvement regarding frequency, times and circumstances of her requested telephone contact and correspondence; g) her assertions as to how her proposed contact will serve the best interests of the child; and h) any other pertinent material Mother feels will support her request.

Critically, the trial court did not notify Mother that she had a right to request to be present at the hearing. In the interim, the court sua sponte suspended Mother's physical custody. The court made no arrangements for her transportation to the hearing, nor for her participation by telephone or video conference. Mother complied with the court's order, and submitted a pre-trial letter with the information the court requested.

On October 10, 2017, the court held what can only be called an ex parte hearing, which lasted a matter of minutes judging by the length of the certified transcript. Father's counsel began with a brief summary before eliciting Father's testimony through direct examination. The court engaged in a brief interrogation of Father before the matter was adjourned. Neither Father's counsel nor the court addressed Mother's statement except to acknowledge its existence. The court did not interview the child.

On the same day, the court issued a brief opinion and order. The court cited to both repealed custody statutes⁴ and corresponding case law. See Trial Court Opinion ("T.C.O."), 10/10/17, at 2–3. The court also included an analysis of the current custody statute's 16 enumerated factors. See 23 Pa.C.S.A. § 5328(a). Although neither parent sought to modify legal custody, the court awarded sole legal custody to Father after it determined that Mother was "not able to participate effectively in parenting decisions." See T.C.O., at 3. The court denied Mother's request for telephone contact based on Father's testimony that telephone access for prisoners is irregular and that the child would become upset if Mother failed to call at a prearranged time. Although it denied Mother's request for telephone communication, the trial court allowed Mother to continue to send letters to the parties' daughter.

On appeal, Mother presents this question, which we restate verbatim:

Did the pro se Appellant [Mother] suffer extreme prejudice through the deprivation of due process rights when she was prevented from fully participating in a custody hearing where [the trial court] ordered her participation to be limited to entering a pre-hearing written statement to support her "Motion for Contact" with minor child, but permitted [Father] to participate with testimony, which resulted in an unfair and unjust ruling and a loss of parental rights?

Mother's Brief, at 4.

Like Father, we construe Mother's presented question as two discrete issues. See Father's Brief, at 7. First, Mother challenges the trial court's procedure and substantive decision that resulted in the denial of her request for telephone contact. Second, Mother challenges the procedure and substantive decision that resulted in her loss of shared legal custody.⁵

Our scope and standard of review of child custody orders are settled:

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 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).

Our review differs when an appellant presents a due process challenge:

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.

Commonwealth v. Tejada , 161 A.3d 313 (Pa. Super. 2017) (quoting Commonwealth v. Smith , 635 Pa. 38, 131 A.3d 467, 472 (2015).

I.

In custody hearings, parents have at stake fundamental rights: namely, the right to make decisions concerning the care, custody, and control of their child. See Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; see also U.S.C.A. Const. Amends. 5, 14 ; and see also generally D.P. v. G.J.P. , 636 Pa. 574, 146 A.3d 204 (2016).

Due process must be afforded to parents to safeguard these constitutional rights. "Formal 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 her child ." J.M. v. K.W. , 164 A.3d 1260, 1268 (Pa. Super. 2017) (en banc ) (quoting Everett v. Parker , 889 A.2d 578, 580 (Pa. Super. 2005) (emphasis added). It is well settled that "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." Id. , at n. 5 (citing Everett v. Parker , 889 A.2d 578, 580 (Pa. Super. 2005) ; see also Garr v. Peters , 773 A.2d 183, 191 (Pa. Super. 2001). "Due process is flexible and calls for such procedural protections as the situation demands." See, e.g., In re Adoption of Dale A., II , 453 Pa.Super. 106, 683 A.2d 297, 300 (1996) (citation omitted).

Having established that both formal notice and an opportunity to be heard are due protections, we decide what the situation demands when a parent is incarcerated. In Vanaman v. Cowgill , 363 Pa.Super. 602, 526 A.2d 1226 (1987), we found that the trial court deprived an incarcerated father of his due process rights in a custody hearing initiated by the mother. The father could not attend the hearing while in prison, but the trial court held an ex parte hearing anyway. The resulting custody order similarly denied the incarcerated parent any visitation. In defending its decision to proceed with the hearing, the trial court reasoned that father, upon receiving notice of the hearing date, had failed to explain or excuse the absence of counsel or to request a continuance. On appeal, we stated that the trial court should have done more, and we explained why:

This principle, while perfectly sound in regard to persons at liberty to protect their own interests, requires considerable revision in the context of this and similar cases. The fact of [a party's] incarceration places an obligation on the court to safeguard his due process rights, a responsibility here ignored.

Although we have uncovered neither procedural rule nor appellate authority which speaks directly to his issue, lower courts have in the past concluded that not only notice of a (civil) hearing is due an imprisoned person, but also specific advisement of his right to attend . SeeJones v. Jones , 1 Pa. D. & C.3d 401 (1974) (

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