In Re: M.K., a Minor ( 2022 )

J-S34034-21
2022 PA Super 7IN RE: M.N.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.J.K., FATHER :
:
:
:
:
: No. 929 MDA 2021
Appeal from the Decree Entered June 16, 2021
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 818-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION BY McCAFFERY, J.: FILED JANUARY 06, 2022
R.J.K. (Father) appeals from the decree entered on June 16, 2021, in
the Lancaster County Court of Common Pleas, Orphans’ Court Division,
involuntarily terminating his parental rights to his daughter, M.N.K. (Child),
born in December of 2006. Father now argues the orphans’ court erred by
finding that the respective county’s Children and Youth Social Service Agency
(CYS) provided Father with proper legal notice of the underlying termination
of parental rights (TPR) proceeding pursuant to 23 Pa.C.S. § 2513 and
Pennsylvania Orphans’ Court Rule 15.6. After careful review, we affirm.
Based on the nature of Father’s claim, the underlying facts that led to
Child’s removal from Father’s care are not pertinent to this appeal and we
need not recite them in detail herein. CYS has been involved with the family
since 2009. For much of Child’s life, Father has resided in Ohio. In November
J-S34034-21
2018, the court adjudicated Child, who was 12 years old at the time,
dependent pursuant to 42 Pa.C.S. § 6302(1), and later approved a
permanency plan setting forth the reasons for placement and the objectives
the parents had to achieve for Child to be returned to parents’ care.
Subsequently, on March 29, 2021, CYS filed a petition for involuntary
termination of Father’s parental rights in accordance with 23 Pa.C.S. §
2511(a)(1), (2) and (b).1 CYS alleged that Father failed to complete the
permanency plan, and termination would best serve the needs and welfare of
Child. See Petition to Terminate Parental Rights of Parents, 3/29/2021, at 2-
3.
Based on the petition, the orphans’ court scheduled a TPR hearing for
June 2021. In the meantime, a permanency review hearing was held on April
26, 2021, during which Father was present by video conference. The date of
the TPR hearing was stated twice during the permanency review video
conference. The court subsequently held the TPR hearing on June 14, 2021.
Father was not present, but his counsel at the time did appear at the
proceeding. See N.T., 6/14/21, at 3. Father’s absence was discussed at
____________________________________________
1 CYS also filed a petition to involuntarily terminate the parental rights of
Child’s mother (Mother). Like Father, the court terminated Mother’s rights to
Child. Mother is not a party of this appeal. Moreover, Mother’s counsel sent
a letter to this Court, indicating that Mother agreed with the decision of the
orphans’ court and did not intend to file a brief in support of the appeal. See
Letter from Caprice Hicks Bunting, Esquire, to Superior Court of Pennsylvania,
10/15/2021.
-2-
J-S34034-21
length, as well as what type of notice was provided to him. Id. at 4-6, 14-
16. Father’s counsel also tried to contact him during the proceeding. See id.
At the conclusion of the hearing, the court indicated it wanted to review the
transcript from the April 26, 2021, permanency review hearing to confirm
Father was given proper notice. See id. at 16, 36. Two days later, the court
entered a decree, terminating Father’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2) and (b). This timely appeal followed.2
Father raises the following issue on appeal.
1. Whether the Orphans’ Court erred in its Decree dated June 16,
2021 that [CYS] had met its burden in proving that [F]ather’s
parental rights should be terminated when the Court erred as
a matter of law when it concluded that [F]ather had been
adequately served with the petition for involuntary termination
under Pa.O.C.R. 15.6 and/or The Adoption Act under Section
2513(a)-(b), thus violating his right to due process.
Appellant’s Brief at 11.3
Initially we note that while the issue in his statement of question
involved concerns the matter of whether he had been adequately served with
the petition, his argument addresses whether he was properly served notice
of the TPR hearing. As such, we confine our analysis to the issue addressing
____________________________________________
2 Concomitant with his notice of appeal, Father filed a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) (requiring
appellant to attach concise statement to notice of appeal in family fast track
appeals).
3 Notably, Father did not raise a claim regarding the court’s termination of
Father’s parental rights pursuant to Sections 2511(a)(1), (2) and (b).
-3-
J-S34034-21
the TPR hearing notice. Any argument concerning the petition will be deemed
abandoned, and consequently waived, for purposes of appellate review. See
Interest of D.N.G., 230 A.3d 361, 363 n.2 (Pa. Super. 2020).
Father’s claim “presents a question of law requiring us to interpret the
notice requirements of the Adoption Act and our Rules of Orphan Court
Procedure. Thus, our standard of review is de novo and our scope of review
is plenary.” In re Adoption of K.M.D., __ A.3d __, 2021 WL 3671701, *3
(Pa. Super. Aug. 19, 2021) (citation omitted).
The “termination of parental rights implicates a parent’s Fourteenth
Amendment right to due process.” In Interest of A.N.P., 155 A.3d 55, 66
(Pa. Super. 2017) (citations omitted). “Due process requires . . . adequate
notice, an opportunity to be heard, and the chance to defend oneself in an
impartial tribunal having jurisdiction over the matter.” Id. (citation and some
punctuation omitted). Although “[d]ue process is flexible and calls for such
procedural protections as the situation demands[,]” this Court is “unwilling to
allow the termination of parental rights . . . without strict compliance with the
procedures set forth by the Legislature[.]” Id., at 66, 68 (citations and some
punctuation omitted). “As in all civil cases, the petitioner . . . bears the burden
to prove proper service by its affirmative acts.” In re K.B., 763 A.2d 436,
439 (Pa. Super. 2000) (citation omitted).
-4-
J-S34034-21
Section 2513 of the Adoption Act addresses the hearing notice
requirement in matters concerning the involuntary termination of parental
rights:
(a) Time.--The court shall fix a time for hearing on a petition filed
under section 2512 (relating to petition for involuntary
termination) which shall be not less than ten days after filing of
the petition.
(b) Notice.--At least ten days’ notice shall be given to the parent
or parents . . . 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.
23 Pa.C.S. § 2513(a)-(b).
Moreover, Pennsylvania Orphans’ Court Rule 15.6 provides, in pertinent
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.
Pa.O.C. Rule 15.6(a).
Here, the trial court described the background relevant to the notice of
the TPR hearing as follows:
Notice of hearings in the Juvenile Court dependency action
for the Child have been sent to Father at 7519 Dorr Street,[4] in
____________________________________________
4 Both the court and CYS reference Father’s address as 7519 Dorr Street. In
Father’s brief, he points to a statement at the TPR hearing where a witness
testified that his address was at 7519 George Street. See Father’s Brief at
17; see N.T., 6/14/2021, at 19, 23. We find the “George Street” reference at
the hearing is either a misunderstanding or a scrivener’s error as the record
demonstrates Father’s address was at Dorr Street. See i.e., Petition to
(Footnote Continued Next Page)
-5-
J-S34034-21
Toledo, Ohio, for all hearings in the dependency action since
December 2019, when notice was mailed for a permanency review
hearing to be held in January 2020. Father was present in person
for the January 3, 2020, permanency review hearing, and by
telephone or video call for the four hearings held since then (three
permanency reviews and one placement modification hearing).
The [CYS] caseworker testified at the April 26, 2021, permanency
review hearing that she had spoken with Father in March 2021,
but he had refused to provide updates. In the permanency review
order issued on April 26, 2021, the court found that Father
“refuses to provide updates to the caseworker.” During the April
26, 2021, permanency review hearing, Father stated that he had
a residence in which he had been living for approximately two
years. Father did not indicate any change of address.
During the permanency review hearing on April 26, 2021,
the [CYS] caseworker stated during her testimony that the TPR
hearing was scheduled for June 14, 2021. Father was present
virtually at the permanency review hearing through the video
conferencing application Lifesize. Additionally, the [c]ourt
instructed Father during the permanency review hearing that he
needed to be physically present at the TRP hearing on June 14,
2021, at 9:00 a.m.
[CYS] sent notice of the June 14, 2021, TPR hearing to
Father at the address at which he had been receiving his mail, and
[CYS] received a receipt showing that the mail was delivered to
Father’s address of record. Notice was sent by certified mail, the
receipt for which indicated that it had been delivered on May 14,
2021, and left with an individual at Father’s home address. The
court heard on June 14, 2021, that Father had not been in contact
with [CYS] or with his court-appointed counsel since April 2021.
Father did not notify [CYS] or his attorney of any change in his
address.
Orphans’ Ct. Op., 8/10/21, at 2-3.
____________________________________________
Terminate Parental Rights of Parents, 3/29/2021, at 2; TPR Exhibit 3, Letter
from Sue Hickey to Lancaster County Children and Youth Social Services
Agency, 11/16/2020.
-6-
J-S34034-21
As noted above, Father complains that he did not receive adequate
notice of the TPR hearing. See Father’s Brief at 15. First, he states that even
though the date of the TPR hearing was mentioned twice at the April 26th
permanency review hearing, “this did not meet the required notice standard
nor the contents and instructions of the notice required for the seriousness of
a TPR hearing.” Id. Father maintains that although the date and time were
mentioned at the permanency review hearing and “could possibly be
construed as actual notice,” it is irrelevant because a parent’s “actual
knowledge of the hearing does not remedy defective service noticing the
hearing and making a parent aware of the hearing is not the same as affording
the parent the necessary information mandated by the law – to defend in such
a hearing.” Id. at 18-19.
Second, he contends that the circumstances surrounding the delivery of
the notification that was sent by certified mail were lacking since “it was not
signed by a receiving individual, [but] merely a handwritten assertion by the
[United States Postal Service] worker that it was delivered.” Father’s Brief at
16. He states that “without a signature, the letter could have been tracked to
the address, or placed at the address, almost like a first class letter, without
actual delivery of the certified letter to an adult individual residing at the
-7-
J-S34034-21
address.” Id. Moreover, he alleges an assumption “that someone at that
address did receive the certified letter” should not be deemed sufficient. 5 Id.
Father concludes that the “first method of service contemplated by the
rule and statute is personal service[,]” and here, there was no evidence that
CYS “attempted to engage the services of anyone to personally serve the
notice to [F]ather in Ohio.” Father’s Brief at 19. Father then states the next
method of service is “service at his residence on an adult member of the
household[,]” and here, “there is no signature identifying who, if anyone,
received the certified mail, let alone actual service to anyone in the
household.” Id. (emphasis omitted).
The orphans’ court maintains notice of the TPR hearing was properly
served on Father in accordance with Section 2513(b) and Orphans’ Court Rule
15.6 based on the following:
Notice of the June 14, 2021, TPR hearing was sent by
certified mail to the Dorr Street address, which was where notices
for the previous six hearings in the dependency action had been
sent. The Agency received a return receipt card indicating that
the notice had been delivered to that address. Father had the
contact information to reach out to the Agency caseworker or to
his attorney to let them know if he changed addresses, but he
failed to do so. Because the Dorr Street address was Father’s last
known address, notice was properly sent in accordance with the
requirements of [Section] 2513. In addition, Father was informed
of the TPR hearing date when he was present through video
____________________________________________
5 Father also states: “It is not contested that the caseworker never received
anything by mail from [him], nor anything confirming his present address,
landlord or lease. [Father] also did not provide any updates concerning any
addresses he might have to his caseworker[.]” Id. at 17 (citations omitted).
-8-
J-S34034-21
conference at the permanency review hearing on April 26, 2021,
when [the orphans’ court] instructed Father specifically that he
would need to be present in person for the TPR hearing on June
14, 2021, at 9:00 a.m.
Orphans’ Ct. Op. at 4.
We discern no error of law or abuse of discretion in the orphans’ court’s
analysis. First, the record supports the court’s determination. At the TPR
hearing, Counsel for CYS established that notice had been sent by certified
mail:
We have a green card returned, Your Honor, that indicates
that it was delivered, which was handwritten by the postal service
worker. But we have a tracking history also indicating that it was
delivered and left with an individual on May 14th. Obviously, a
month ago at this point and the time it had been delivered.
* * *
We attempted to serve him at this address. I have no idea
with [the COVID-19 pandemic] why it didn’t even get -- whether
somebody refused to sign it or how it was delivered, but I am
satisfied with the tracking history indicating that it was left with
an individual. Somebody who was an adult would have received
it.
And since [Father] has not provided [CYS] with a new
address and has failed to communicate, I am assuming he is, at
this point, no longer interested in participating in this proceeding.
N.T., 6/14/21, at 4-5. Moreover, it merits mention that counsel for Father
was present at the hearing. He could not explain his client’s absence, nor
could he get in contact with his client. Nevertheless, counsel did not ask for
a continuance based on a lack of notice or Father’s failure to appear.
-9-
J-S34034-21
Second, we observe Father does not argue that he never received notice
of the TPR hearing via certified mail; rather, he asserts that the circumstances
surrounding the delivery were insufficient to demonstrate he actually received
service because the USPS employee handwrote on the green verification card
that the document was delivered and not an adult individual residing at the
home. Without more, we conclude the court was permitted to find that notice
of the TPR hearing was properly sent in accordance with the requirements of
Section 2513 and Orphans’ Court Rule 15.6. Furthermore, the fact that Father
was informed of the TPR hearing date twice at the April 26, 2021,
permanency review hearing supports the court’s conclusion that he was on
notice about the hearing. Therefore, Father has not established that his due
process rights were violated.
Lastly, we note Father cites to Adoption of K.M.D., supra, in his brief.
See Father’s Brief at 19. We note that case is distinguishable from the present
matter. In K.M.D., the court held a termination hearing via videoconference
and the parents were not in attendance. Adoption of K.M.D., 2021 WL
3671701, *2. The parents’ address was known by the agency, and the agency
admitted that neither personal service or service by certified mail were
accomplished or even attempted. See id. at 4. Instead, the agency had sent
notification of the TPR hearing via email based on its interpretation of the
Pennsylvania Supreme Court’s and local common pleas court’s emergency
orders issued during the COVID-19 pandemic, which authorized the use of
- 10 -
J-S34034-21
“advanced communication technologies.” Id. at *6. There was also evidence
that the parents had actual knowledge of the TPR hearing because the mother-
appellant texted her caseworker immediately prior to the hearing to say that
she and father-appellant would not be attending due to internet issues and
because of dissatisfaction with their attorneys. See id. at *4. Therefore, the
question on appeal was “whether the [a]gency effectuated proper service via
email, or in the alternative, whether the Parents’ actual knowledge of the
proceedings excuses the otherwise defective service.” Id.
A panel of this Court concluded the statewide and local emergency
orders “primarily referenced ‘advanced communication technologies’ as
means to hold remote hearings, conferences, and the like.” Adoption of
K.M.D., 2021 WL 3671701, *6. The panel opined that “insofar as the judicial
emergency orders even pertained to [a]gency business, the [a]gency’s use of
email was still subject to constitutional constraints,” and the agency was
required to make a good faith effort to properly serve notice to the parents.
Id. The panel further determined:
[T]he [a]gency’s email to the Parents constituted defective
service, where the [a]gency did not attempt service under Pa.O.C.
Rule 15.6(a) and Section 2513(b) of the Adoption Act. Neither
the judicial emergency orders, nor [p]arents’ actual knowledge of
the hearing, negates the [a]gency’s circumvention of these
procedures. Consequently, without proper service, the [p]arents’
rights to due process were violated.
Id. at *7.
- 11 -
J-S34034-21
Here, contrary to Adoption of K.M.D., CYS did attempt — and
successfully effectuated — service on Father via certified mail. Accordingly,
we affirm the court’s decree involuntarily terminating Father’s parental rights
to Child.
Decree affirmed.
Judge Dubow joins the Opinion.
Judge McLaughlin Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2022
- 12 -