In the Interest of C.J.L.K., a Minor ( 2015 )

J-S65002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.J.L.K., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.L., FATHER
No. 1426 EDA 2015
Appeal from the Order and Decree Entered April 28, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000075-2015
CP-51-DP-0000395-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2015
C.L. (“Father”) appeals from the decree entered April 28, 2015, in the
Court of Common Pleas of Philadelphia County, which involuntarily
terminated his parental rights to his minor daughter, C.J.L.K. (“Child”), born
in September of 2004. Father also appeals from the order entered that
same day, which changed Child’s permanency goal to adoption.1 We affirm.
Child was adjudicated dependent on April 12, 2013, due to, inter alia,
drug use by Mother and her boyfriend, A.C. Additionally, Father was
incarcerated. Father had been convicted of rape by forcible compulsion, and
currently is serving a sentence of approximately fifteen to thirty years’
incarceration, with a minimum release date in 2026.
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1
The parental rights of Child’s mother, J.K. (“Mother”), were terminated by
a separate decree entered on February 18, 2015. Mother is not a party to
the instant appeal.
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On January 30, 2015, DHS filed a petition to involuntarily terminate
Father’s parental rights to Child, as well as a petition to change Child’s
permanency goal to adoption. A termination and goal change hearing was
held on April 28, 2015. At the start of the hearing, at approximately 10:52
a.m., the trial court attempted to place a phone call to Father. N.T.,
4/28/2015, at 3-4. However, a prison counselor informed the court that
Father was not available, because he left to attend a medical appointment.
Id. The court announced that the hearing would proceed without Father,
and Father’s counsel objected. Id. at 4. Father’s counsel reported that she
had “two voice mails . . . confirming that my client would be available from
ten-thirty to eleven-thirty,” and that Father wanted to participate in the
hearing. Id. at 4-5. The court then permitted Father’s counsel to ask the
prison counselor a series of follow-up questions. Id. at 5. The prison
counselor explained Father’s absence, as follows.
[FATHER’S COUNSEL]: So, you’re telling me that he was there
and he choose [sic] to leave or had to leave?
COUNSELOR GOKENHAUER: No ma’am. He had been called by
the medical department. He was waiting expecting [sic] the call.
He was here from ten fifteen until around ten forty-five.
And he had said that he thought the call wasn’t going to
come and he had already been called to the appointment twenty
minutes prior.
[FATHER’S COUNSEL]: Is he sick?
COUNSELOR GOKENHAUER: So he choose [sic] – ma’am I’m not
sure.
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***
THE COURT: All right. So, sir, [Father is] unable to come back
at all, right? As far as you know he’s not able to come back,
right?
COUNSELOR GOKENHAUER: Yes, sir.
Id. at 5-6.
The court stated that it would take testimony without Father, and
Father’s counsel again objected. Id. at 6, 9. The court noted the objection,
but proceeded with the hearing. Id. Following the hearing, the court
entered its decree terminating Father’s parental rights, as well as its order
changing Child’s permanency goal to adoption. Father timely filed a notice
of appeal on May 13, 2015, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).2
Father now raises the following issue for our review.
Was Father deprived of a fair hearing when the [c]ourt denied
his request for continuance where Father was available at the
time the case was scheduled, where the trial [c]ourt’s
management of its list caused the [c]ourt to call the case after
Father was required to attend a medical appointment, and where
the same problem had occurred a month prior?
Father’s brief at 8.
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2
We note that Father improperly filed only one notice of appeal from both
the termination decree and the change of goal order. See Pa.R.A.P. 341,
Note (“Where, however, one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate notices of
appeal must be filed.”). However, we decline to quash Father’s appeal, as
we discern no prejudice stemming from Father’s procedural misstep.
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Father contends that he was denied his right to due process because
the trial court failed to grant his counsel’s request for a continuance during
the April 28, 2015 hearing. According to Father, he was unable to
participate in the hearing, “[t]hrough no fault of his own,” because he “had
to attend a medical appointment he was called to.” Father’s brief at 12, 14.
Father also suggests that he missed the trial court’s call because the court
was “behind schedule.” Id. at 12, 16.
We consider Father’s claim mindful of our well-settled standard of
review.
This Court has noted that a trial court has broad discretion
regarding whether a request for continuance should be granted,
[and] we will not disturb its decision absent an apparent abuse
of that discretion. An abuse of discretion is more than just an
error in judgment and, on appeal, the trial court will not be
found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the
result[ ] of partiality, prejudice, bias, or ill-will.
In re K.J., 27 A.3d 236, 243 (Pa. Super. 2011) (citations and quotation
marks omitted).
“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.” Garr v. Peters, 773
A.2d 183, 191 (Pa. Super. 2001) (citation and quotation marks omitted).
Due process does not require that an incarcerated parent must be physically
present at a termination hearing. In re Adoption of J.N.F., 887 A.2d 775,
781 (Pa. Super. 2005). “However, if the incarcerated parent desires to
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contest the termination petition, the trial court must afford the incarcerated
parent the ability to participate meaningfully in the termination hearing
through alternate means.” Id.
Instantly, the trial court found that Father was not denied due process,
because he willingly failed to participate in the April 28, 2015 hearing. Trial
Court Opinion, 7/17/2015, at 6-7. The court reasoned that Father was given
notice, the opportunity to be heard, and the chance to defend himself, and
that “it [was] Father’s own actions and lack of good judgment” that
prevented him from participating. Id. We agree.
While Father contends that he had no choice but to attend a medical
appointment during the April 28, 2015 hearing, there is simply no support in
the record for Father’s claim. To the contrary, Counselor Gokenhauer
informed the trial court that Father was available from 10:15 until about
10:45, but that he “thought the call wasn’t going to come” and chose to
attend his medical appointment instead. N.T., 4/28/2015, at 5. Moreover,
the record confirms that Father did not miss the trial court’s call because the
court was behind schedule. Father’s counsel acknowledged that Father was
supposed to be available from 10:30 a.m. until 11:30 a.m. Id. at 4. The
court called well-within the allotted time, at approximately 10:52 a.m. Id.
Thus, the record supports the court’s conclusion that Father willingly
forfeited his right to participate in the hearing.
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Accordingly, because we conclude that Father was not denied due
process, we affirm the court’s decree involuntarily terminating Father’s
parental rights to Child, and the court’s order changing Child’s permanency
goal to adoption.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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