In the Interest of: K.I.T.W., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.I.T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 3594 EDA 2017
Appeal from the Decree September 28, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000502-2017,
FID: 51-FN-000654-2016
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JUNE 04, 2018
D.W. (Father) appeals from the decree which involuntarily terminated
his parental rights to his minor son, K.I.T.W. (Child), born in December 2013.1
For the reasons that follow, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
S.C.S., is the “Mother” of K.M-A., L.M-A. and [(Child) (collectively,
Children)].
D.I.W. is the “Father” of [Child], and is listed as the [f]ather on
the Child’s birth certificate.
On March 23, 2016, the Department of Human Services (DHS)
received a General Protective Services (GPS) Report alleging that
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1 The September 28, 2017 termination decree also terminated the parental
rights of S.C.S. (Mother). Mother did not appeal that determination, nor is
she a party to this appeal.
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* Former Justice specially assigned to the Superior Court.
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[Child] was found inside the home alone; that Community
Umbrella Agency (CUA) Turning Points for Children (TPFC)
attempted to contact the Mother, S.C.S., and Maternal Great
Uncle, B.W.; that B.W. answered the telephone and stated that he
had left the home and that Mother was with [Child]; that the police
were contacted and an officer observed [Child] in the home alone;
and that B.W., arrived at the home after the police. The [r]eport
further alleged that an [Order of Protective Custody (OPC)] was
requested to place [Child]. This Report was substantiated.
On March 23, 2016, DHS received a supplemental report alleging
that the police were called after [Child] was found at home alone,
and he tried to open the door of the home and was calling for his
Mother. The report further alleged that Maternal Great Uncle,
B.W., arrived before the police and stated that he believed Mother
was in the home with the Child. B.W. stated he did not see Mother
in the home and that he heard her on the telephone. The report
alleged that B.W. left the home at approximately 11:35 a.m. on
3/23/2016, and returned at 12:05 p.m. on 3/23/2016; and that
[Child] was unsupervised for approximately 30 minutes. The
report further alleged that the front door was barricaded on the
inside, and that Mother may have barricaded the door to prevent
the Child from opening the door. [Child’s] Maternal Aunt, T.N.,
who was listed on the Safety Plan as the responsible party, was
contacted and she stated that she was in New York.
On March 23, 2016, DHS went to the home of Mother. When DHS
approached the home, Mother arrived and asked why DHS was
there. DHS informed Mother about the GPS Report. DHS entered
the home and observed the Agency Representative of TPFC and
B.W. with the Child. B.W. stated that he did not know that Mother
was not in the home when he left. B.W. further stated that he
takes medication which can make him drowsy. DHS explained to
Mother that DHS would plan for [Child’s] placement. Mother
became irate and stated she would not allow DHS to remove
[Child] from the home. DHS and TPFC Representative stepped
outside of the home to call for police assistance and when the
police arrived, Mother closed the front door and would not allow
DHS to enter the home again. When they got inside the home, it
was discovered that Mother had left through the back door with
the Child. DHS left the home and waited for the police to locate
Mother. The police subsequently contacted DHS and stated that
Mother was at a police station with the Child and that [Child] was
safe. DHS went to the police station and retrieved the Child.
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On March 23, 2016, DHS obtained an OPC for [Child] and placed
him in Foster Care through Progressive Life.
A Shelter Care Hearing was held on March 25, 2016 for the Child
before Juvenile Court Hearing Officer, Theodore Vigilante. The
Court OPC was lifted, [with] temporary legal custody to remain
with DHS, and placement of Child to remain in Foster Care through
Progressive Life. DHS to explore Paternal Grandfather as a
placement resource and conduct all appropriate clearances. Child
may be moved prior to the next court date.
An Adjudicatory Hearing was held for the Child on April 4, 2016,
before the Honorable Allan L. Tereshko. Legal Custody of the Child
to transfer to the Guardian, Paternal Grandfather, G.J., and
physical custody of the Child shall also transfer to Guardian
Paternal Grandfather, G.J. Child to continue to receive speech
therapy through Child Link. CUA to provide clothing voucher to
foster mom. CUA to explore prison visits with the Father, and to
create a visitation schedule between Father and Child if
appropriate.
Trial Court Opinion, 1/11/18, at 3-5 (internal citations omitted).
On May 3, 2017, DHS filed a petition to terminate Father’s parental
rights to Child. The trial court conducted a hearing on the petition on
September 28, 2017. At the conclusion of the hearing, the trial court delivered
its decision from the bench, ordering that Father’s parental rights to Child be
terminated. It entered the written order on the same date. On October 30,
2017, Father timely filed his notice of appeal, along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
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(b).2 The trial court issued its opinion pursuant to Pa.R.A.P. 1925(a) on
January 11, 2018.
On appeal, Father raises the following issue:
I. WHETHER THE TRIAL COURT ERRED IN TERMINATING
FATHER, [D.W.’S], PARENTAL RIGHTS WHERE FATHER WAS
NOT PERSONALLY SERVED WITH NOTICE OF THE HEARING
TERMINATING HIS PARENTAL RIGHTS?
Father’s Brief at 2.
We review an appeal from the termination of parental rights in
accordance with the following standard:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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2 Generally, a party must file his or her notice of appeal within 30 days after
the entry of the order being appealed. Pa.R.A.P. 903(a). Here, 30 days after
September 28, 2017 was October 28, 2017. Because October 28, 2017 was
a Saturday, Father timely filed his notice of appeal on Monday, October 30,
2017. See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall
fall on Saturday or Sunday . . . such day shall be omitted from the
computation.”).
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Father’s sole issue is whether he was properly served with notice of the
hearing to terminate his parental rights. Initially, we note Father does not
argue that he did not receive notice of the termination proceeding. Father’s
Brief at 6-7. Instead, Father generally asserts that DHS’s notice via certified
mail was insufficient because Father did not personally sign for the delivery.
In essence, Father asks this Court to interpret the notice provisions as they
relate to involuntary termination matters, to require restricted delivery.3
The Adoption Act governs involuntary termination of parental rights
proceedings. See 23 Pa.C.S.A. §§ 2101-2938. Section 2513(b) of the Act
provides as follows:
(b) Notice.—At least ten days’ notice shall be 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. A
putative father shall include one who has filed a claim of paternity
as provided in section 5103 (relating to acknowledgment and
claim of paternity) prior to the institution of proceedings. The
notice shall state the following:
“A petition has been 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 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
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3Restricted delivery is mail “delivered only to the addressee or the person [ ]
specifically authorize[d] in writing to receive [the] restricted delivery mail.”
Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223, 226 (Pa.
Cmwlth. 2015).
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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) (emphasis added).
Likewise, our Orphans’ Court Rules provide the following guidance, in
relevant part:
(a) Notice to every person to be notified shall be by personal
service, service at his or her residence on an adult 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:
***
(2) in [involuntarily termination and adoption proceedings],
further notice by publication or otherwise shall be given if required
by general rule or special order of the local Orphans’ Court. If,
after reasonable investigation, the identity of a person to be
notified is unknown, notice to him or her shall not be required.
Pa.R.O.C. 15.6(a)(2) (emphasis added). As in all civil cases, the petitioner –
in this case DHS – bears the burden of proving proper service by its affirmative
acts. Leight v. Lefkowitz, 615 A.2d 751, 753 (Pa. Super. 1992).
Appellee, DHS, argues that Father’s issue is waived because it differs
significantly from the issues raised in his Rule 1925(b) statement. We agree.
See Dietrich v. Dietrich, 923 A.2d 461, 463 (Pa. Super. 2007) (stating that
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when an appellant files a Rule 1925(b) statement, any issues not raised in
that statement are waived on appeal). Accordingly, we are constrained to
conclude that Father has waived all issues on appeal.
However, even had Father not waived this claim, the record confirms
that he received adequate notice of the hearing. At the beginning of the
September 28, 2017 termination hearing, DHS addressed the service and
notice on Father as follows:
Just regarding the service and notice on [Father], the father of
[Child], he is currently incarcerated at PIC. And he was sent
notice by certified mail of this hearing as well as the petitions . . .
. And that was effectually delivered at the prison on June 10,
2017.
N.T., 9/28/17, at 10-11. The record also includes a copy of the subpoena sent
to Father, a certified mail tracking receipt, and USPS tracking results that
indicate service was effectuated on June 10, 2017. See DHS Ex. 3. Such
service complied with the requirements of both Section 2513(b) of the
Adoption Act and Pennsylvania Rule of Orphans’ Court 15.6(a), giving Father
sufficient notice of the termination hearing. For these reasons, we conclude
that Father’s issue does not merit relief. Therefore, we affirm the decree
involuntarily terminating Father’s parental rights to Child.
Decree affirmed.
Judge Panella joins the memorandum.
P.J.E. Stevens concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/18
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