J-S49033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: K.M.N. & G.W.N., MINORS                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: N.N. & R.N.                          No. 413 MDA 2015


               Appeal from the Decree entered January 27, 2015,
          in the Court of Common Pleas of Lancaster County, Orphans’
                  Court, at No(s): 1731 of 2014, 1732 of 2014

BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 21, 2015

      N.N. (“Mother”) and R.N. (“Father”) appeal from the decree entered on

January 27, 2015, which granted the petition filed by the Lancaster County

Children and Youth Social Service Agency (“Agency”) seeking to involuntarily

terminate the parental rights of Mother and Father to their children, G.W.N.,

a boy born in June of 2006, and K.M.N., a girl born in July of 2004.     We

affirm.

      The trial court set forth the factual background and procedural history

of this appeal as follows:

          [… Mother] and [Father] are the parents of four children,
          namely – [R.M.N.] and his twin, [R.L.N.], both born [in
          January of 1998], [G.W.N.] ..., and [K.M.N.]. . . . On July
          13, 2011, the ... Agency received a report that [R.M.N.] had
          had sexual contact with [K.M.N.] while he was babysitting.
          An investigation was conducted by the regional office of the
          Office of Children, Youth and Families (CY&F).         (N.T.
          11/10/14, 14)1 The case was unfounded. Another referral
          was received on May 22, 2012. CY&F again investigated
          allegations of sexual abuse of [K.M.N.] by the two older
          brothers[,] and[,] this time[,] [R.L.N.] was indicated for
          sexual abuse of both [G.W.N.] and [K.M.N.]. CY&F told the
          parents that [R.L.N.] was not permitted to be with the other
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       children unsupervised. (Id[.] at 16) The next report,
       received on May 28, 2013, informed the Agency that
       [Mother] was overwhelmed by care of the four children, and
       that [R.L.N.] was acting out at school by hallucinating and
       was threatening to kill other students. Additional reports in
       May described [R.M.N.] and [R.L.N.] as being sexually
       active with each other and [R.M.N.] setting up fake dating
       sites, sexting and looking at pornography. (Id. [a]t 17)
       Mother denied that any sexual activity was occurring[,] and
       informed the Agency that she supervised the children[,] and
       that they were not left alone. The Agency determined by
       way of a telephone call to the [] home by a caseworker that
       all four children were home alone. (Id. at 19) On July 26,
       2013, Mother called the Agency and told them that[,] when
       she walked in on the children watching a movie in the living
       room[,] they told her that [R.M.N.] was “doing stuff to
       [K.M.N.”]. He had asked [K.M.N.] to touch his genitals,
       which she did. (Id. at 20) The Agency filed a petition for
       temporary custody on July 26, 2013, the children were
       removed from the home[,] and custody was given to the
       Agency after a shelter care hearing on July 29, 2013. After
       their placement, [K.M.N.] and [G.W.N.] described ongoing
       sexual activity between the children, as well as physical
       mistreatment by Mother. (Id. at 22) A forensic interview
       was performed and recorded on videotape at the Lancaster
       Children’s Alliance. In the interview, which was shown in
       court, both children described the sexual abuse and said
       that they had informed Mother about it on more than one
       occasion, but that she had not taken any action to stop the
       abuse.

       The parents’ visitation with [K.M.N.] and [G.W.N.] was
       stopped on September 5, 2013, because of inappropriate
       behavior by [the] parents during visits.

       After the Shelter Care hearing on July 29, 2013[,]
       approximately twenty hearings were held, many of which
       consisted mainly of repetitious argument by [A]ppellant[s’]
       counsel on the irrelevant issues contained in [A]ppellant[s’]
       [Rule] 1925(b) statement; there were also an unusually
       large number of continuances; most, if not all, were at the
       request of Mother and Father. The final adjudication and
       disposition hearing was held on June 26, 2014[,] after
       which the [trial court] found the children to be dependent

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       and abused. The final order was issued by the [trial court]
       on June 26, 2014. [R.M.N.] and [R.L.N.] were found to be
       perpetrators of sexual abuse.2 The parents were found to
       be perpetrators of abuse by omission. The [trial court]
       found aggravated circumstances relative to both parents.
       No reunification plan was provided.       Neither parent
       appealed the adjudication or disposition to the appellate
       court.

       On August 25, 2014, the Agency filed a petition to
       terminate the parental rights of Mother and Father to
       [K.M.N.] and [G.W.N.]. A Preliminary Decree was issued on
       August 27, 2014[,] scheduling a hearing for September 22,
       2014. Father did not appear at that hearing. After Mother’s
       counsel objected to the form of service on Father[,] the
       [trial court] held that service on Father was appropriate,
       since Father’s petition had been served on Mother, an adult
       individual, at Father’s residence, pursuant to [Pennsylvania]
       Rule of Civil Procedure 402(a)(2).         The matter was
       continued and rescheduled to November 10, 2014. (N.T.
       9/22/2014) On November 10, 2014[,] the Agency presented
       a petition to incorporate the Juvenile Court proceedings into
       the termination proceedings[,] and the [trial court] issued
       an order to that effect on November 13, 2014, which order
       also continued the matter to January 5, 2015, because
       testimony was not completed on November 10. On January
       5, 2015, Mother and her counsel appeared at the scheduled
       hearing to ask for a continuance because Father was in
       another state helping an emancipated son of the parties.
       Neither the Agency nor [the court appointed guardian ad
       litem] objected to the request for continuance. Another
       hearing date had already been set for January 26, 2015.

       On January 26, 2015, Father again did not appear. Neither
       did Mother’s counsel, who had telephoned earlier and had
       faxed a letter to request a continuance and to inform the
       judge that she lived in an out-of-county area where there
       was snow predicted[,] and she would not be able to reach
       the courthouse. Mother read the letter into the record at
       the hearing that afternoon. The continuance was refused
       after the court inquired into local weather predictions and
       the status of all of the courthouses in counsel’s area; all
       courthouses were open and functioning. All other necessary
       individuals appeared at the hearing. Mother attended the

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       hearing, explaining Father’s absence by again contending
       that Father had not been properly served with notice. After
       reviewing the service procedure and hearing testimony from
       the process server, the [trial court] decided that service had
       been appropriate. (N.T. 1/26/15 et seq.) Mother’s counsel
       never arrived and Mother represented herself. She cross-
       examined Agency witnesses, but specifically declined the
       opportunity to testify or to present witnesses on her own
       behalf.   A Final Decree terminating both Father’s and
       Mother’s parental rights to [G.W.N.] and [K.M.N.] was
       issued on January 27, 201[5].

       On February 26, 2015, Mother filed an appeal pro se from
       the Final Decree, although she still had a lawyer of record.
       She included Father as an appellant in the appeal, but
       nowhere in the document did Father or his attorney
       acknowledge his participation through placement of their
       signatures, and [the trial c]ourt ha[d] been informed that
       Father was[,] therefore[,] not considered to be an appellant
       by the Superior Court. When Mother filed her [Pa.R.A.P.]
       1925(a)(2)(i) statement [on March 20, 2015], she attached
       a cover sheet titled “Amended Notice of Appeal for
       Involuntary Termination of Parental Rights and Concise
       Statement of Errors.”      This document contained both
       Mother’s and Father’s signatures. [The trial c]ourt ha[d] no
       current information as to whether this second filing w[ould]
       serve to reinstate Father as an [a]ppellant, but believe[d]
       that it ma[de] no difference to the processing of [its]
       opinion, since all of the arguments […wer]e relevant to
       Father as well as to Mother.3

       A [Rule] 1925(a)(2)(i) concise statement of errors
       complained [of] on appeal, which should have accompanied
       the appeal, was not filed by Appellant[s] until March 20,
       2015, although no extension of time was provided. None of
       the twenty-four “errors” listed are [sic] relevant to the
       termination hearing, but complain mainly about the
       adjudication hearing, which was not appealed by
       Appellant[s] after that order was issued on June 26, 2014.
       In any event, Appellant[s’] issues are flawed in various
       ways, such as not being supported by the record, by being
       based on hearsay outside of the record, by stemming from
       the Appellant[s’] lack of understanding of the juvenile
       statute and the rules of evidence and civil procedure, by

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        claims of duress and coercion, by claims that are
        inconsistent with what is properly on the record, by claims
        relevant only to the child support order, and by assertions
        that constitute personal invective directed against the court,
        the [A]gency[,] and other Lancaster County officers and
        personnel. Because of this, the [c]ourt finds it impossible to
        deal with what [A]ppellant[s] deem[] to be the operative
        issues, but presents this opinion on the issues as it sees
        it[,] and the reasoning behind its decision in this case.
      ___________________________________________________
        1
           CY&F did the investigation because the Agency already
        had a relationship with the family because the children were
        adopted.
        2
          [R.M.N.] and [R.L.N.] were indicated as perpetrators of
        sexual abuse against [K.M.N.] and [G.W.N.]. [R.M.N.] was
        criminally charged[,] and pleaded guilty in a delinquency
        action.   [R.L.N.] was not charged because of his low-
        functioning disability.
        3
          Father did not appear at the termination hearings, blaming
        his absence on what Mother mistakenly asserted was
        defective service of the hearing notice. He and Mother had
        the same attorney for the juvenile dependency matter[,]
        and thereby share the problems, procedure[,] and demands
        made during that case.

Trial Court Opinion, 3/27/2015, at 1-6 (footnotes in original).

      On appeal, Mother and Father raise the following issues:

     1. Whether the lower court erred in finding that R.N. [Father]
        was properly served prior to the September 22, 2014 initial
        involuntary termination proceeding?

     2. Whether the lower court erred in proceeding without N.N.
        [Mother] and R.N.’s [Father’s] counsel on January 26, 2015
        termination proceeding?

Brief for Mother and Father at 4. The issues do not challenge the sufficiency

of the evidence with regard to the termination, only the propriety of the



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service on Father, and proceeding without Mother’s counsel, who had

requested a continuance of the hearing on January 26, 2015.

     In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
     A.3d 1179, 1190 (Pa. 2010).           If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. Id.; R.I.S., [614
     Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
     As has been often stated, an abuse of discretion does not result
     merely because the reviewing court might have reached a
     different conclusion. Id.; see also Samuel Bassett v. Kia
     Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.
     2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
     630, 634 (Pa. 2003). Instead, a decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., [608 Pa. at
     28-30], 9 A.3d at 1190. Therefore, even where the facts could
     support an opposite result, as is often the case in dependency
     and termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion. In re Adoption of
     Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).


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In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

     First, we find that Father is not a proper party to this appeal.     On

February 26, 2015, Mother, acting pro se, filed the original notice of appeal

in the trial court, purportedly on behalf of Father and herself. The original

notice of appeal was signed by Mother, but included the names of both

Mother and Father. The original notice of appeal did not serve to preserve

Father’s appeal from the order entered on January 27, 2015. Mother, a non-

attorney, could not include him in a notice of appeal that only she signed.

See Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130

(Pa. Cmwlth. 2001) (holding that non-attorneys may not represent parties

before the Pennsylvania courts).     Moreover, although both Mother and

Father signed the amended notice of appeal, which they filed on March 20,

2015, acting pro se, the amended notice of appeal was untimely with respect

to Father.    See Pa.R.A.P. 903(a) (providing that a notice of appeal,

generally, must be filed within 30 days after the entry of the order from

which the appeal is taken).

     Second, Mother’s pro se documents are not properly before this Court.

At the time when she filed both the original notice of appeal on February 26,

2015, and the amended notice of appeal with her concise statement on

March 20, 2015, Mother was represented by privately-retained counsel,




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Attorney Carol Herring.1 Subsequently, on March 23, 2015, Attorney Herring

filed a praecipe to withdraw her appearance as counsel in the matter.

      On April 30, 2015, new counsel purportedly representing both Mother

and Father, Attorney Michael E. McHale, filed a first request for an extension

of time to file a brief on behalf of Mother and Father. Attorney McHale did

not file an amended notice of appeal and concise statement of errors

complained of on appeal, however. This Court granted the extension of time

until May 15, 2015. On May 18, 2015, Attorney McHale filed with this Court

a second request for an extension of time to file a brief on behalf of Mother

and Father.   This Court granted the extension until May 29, 2015, and

indicated that no further extensions would be granted. Attorney McHale filed

the brief and reproduced record on behalf of Mother and Father on June 4,

2015. On June 22, 2015, CYF and the guardian ad litem filed a joint request

for an extension of time to file their respective briefs.   This Court granted

1
   Mother failed to file a concise statement of errors complained of on appeal
file along with her original notice of appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). We will not find Mother’s appeal defective because of
her late filing of her concise statement as neither the trial court nor this
court entered an order directing her to file the concise statement, and no
party is prejudiced by the late filing of the statement. See In re K.T.E.L.,
983 A.2d 745, 747 (Pa. Super. 2009), in which we addressed a late-filed
concise statement and Pa.R.A.P. 905(a)(2), and observed that there is no
per se rule mandating quashal or dismissal of a defective notice of appeal in
children’s fast track cases, i.e., when the concise statement does not
accompany the notice of appeal, and no party is prejudiced thereby. Cf.
J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010) (holding that mother waived
her issues on appeal by failing to file a concise statement in compliance with
a trial court order); J.M.R. v. J.M., 1 A.3d 902, 907 (Pa. Super. 2010)
(holding, prospectively, that an appellant waives his issues on appeal by
failing to file a concise statement in compliance with an order of this Court).
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the extension until June 30, 2015. The guardian ad litem filed her brief on

July 2, 2015.

      Our Supreme Court held in Commonwealth v. Ellis, 534 Pa. 176,

626 A.2d 1137, 1139 (1993) (“Ellis II”) that there is no right to hybrid

representation either at trial or on appeal.     See also Commonwealth v.

Jette,   611    Pa.   166,   173,   23    A.3d   1032,   1036   (2011)    quoting

Commonwealth v. Reid, 537 Pa. 167, 642 A.2d 453, 462 (1994), cert.

denied, 513 U.S. 904, 115 S.Ct. 268, 130 L.Ed.2d 186 (1994). Moreover,

even if this Court were to accept Mother’s notice of appeal, amended notice

of appeal, and concise statement as valid and not a legal nullity under the

rule against hybrid representation, we would find that the issues raised in

Mother’s counseled brief on appeal were not presented in her concise

statement.     Thus, Mother waived all issues on appeal in any event.        See

Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797

(Pa. Super. 2006) (holding that an appellant waives issues that are not

raised in both his or her concise statement of errors complained of on appeal

and the statement of questions involved in his or her brief on appeal).

      Regardless, if the issues in the brief filed by Attorney McHale were

properly before this Court, we would find that they lack merit.          Attorney

McHale argues on behalf of Mother and Father that the trial court violated his

clients’ constitutional rights by failing to provide proper notice to Father, and

by refusing the request of their trial counsel for a continuance and


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proceeding in her absence. Father did not attend the scheduled hearings on

September 22, 2014, November 10, 2014, or January 5, 2015. The matter

was continued three times.           At the commencement of the hearing on

January 26, 2015, the trial court heard the request of the parents’ trial

counsel, presented by Mother, for a continuance based on the weather, and

on Mother’s representation that Father lacked proper notice of the hearing.

N.T., 1/26/2015, at 4-7. The Agency opposed the continuance. Id. at 7.

      “It is well settled that the decision to grant or deny a request for a

continuance    is    within   the        sound      discretion    of   the    trial   court.”

Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009) (citation

omitted).     “Further a trial court's decision to deny a request for a

continuance will be reversed only upon a showing of an abuse of discretion.”

Id. As we have consistently stated, an abuse of discretion is not merely an

error judgment.        Id. Rather, discretion is abused when “the law is

overridden    or    misapplied,     or    the    judgment        exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown

by the evidence or the record.” Id.

      Here, Father contends that he was not given proper notice of January

26, 2015 hearing.      “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.” 23


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Pa.C.S.A. § 2513(b) (emphasis added).              This Court has previously

determined that personal service is effectuated by “handing copies” of the

“notice of the hearing to terminate their parental rights” to the parents. In

re K.B., 763 A.2d 436, 440 (Pa. Super. 2000). In this case, Lisa Dale, a

paralegal with Temp Design Resources contracted to the Agency, testified

that she personally served Father with notice of the termination proceeding

at the courthouse following his appearance at another hearing for support on

January 12, 2015. N.T., 1/26/2015, at 63-64. Ms. Dale testified that she

placed the notice “into [Father’s] right arm.” Id. at 63.    Father “dropped it

on the floor.” Id. at 68. Additionally, the January 26, 2015 hearing was the

fourth time that Father failed to appear for a termination hearing in this

matter claiming deficient notice. As the foregoing demonstrates, Father was

served personally with notice of the termination proceeding. Thus, having

been properly served, we discern the trial court did not abuse its discretion

in denying a continuance based on Father’s alleged lack of notice.

     The trial court found that the serial continuance request based on the

prevailing weather conditions in the area had no merit.       Mother’s counsel

claimed inclement weather necessitated another continuance, although

Mother was present, and an Agency witness traveled from a distance further

east than Attorney Herring’s location.       N.T., 1/26/2015, at 7.   The court

noted the fact that the local courthouses were open for business, and that

the matter had been scheduled for a long time. N.T., 1/26/2015, at 8-10.


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The trial court then proceeded with the termination hearing, with Mother

representing herself, and Father absent from the hearing. Based upon the

foregoing, the trial court did not abuse its discretion in denying a

continuance because of weather.

      Furthermore, as we stated in In re Z.P., 994 A.2d 1108, 1121 (Pa.

Super. 2010), a child’s life “simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting.”

Id. at 1125. Rather, “a parent’s basic constitutional right to the custody and

rearing of his child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B., N.M.,

856 A.2d 847, 856 (Pa. Super. 2004).

      In its opinion, the trial court considered the children’s permanency in

their present foster home, as follows:

      [G.W.N.] and [K.M.N.] are currently together in the same
      permanent resource home, where they were placed on June 13,
      2014.     They have a close and loving relationship with the
      parents and siblings of the family. They were provided with
      counseling for sexual assault[,] and are now involved in trauma-
      focused counseling with their resource family. (N.T. 1/26/15, p.
      39) The Court Appointed Special Advocate (CASA) for [K.M.N.]
      and [G.W.N.], who has spoken with the children on numerous
      occasions, told the court that the children were loving and happy
      in their current home. (Id. at 78 et seq. [sic]) She testified
      that [K.M.N.] told her, “I want to be here forever,” and that
      [G.W.N.] said, “I never, ever want to go back to my other home.
      I love it here. I want to be here.” (Id[.] at 81)

Trial Court Opinion, 3/27/2015, at 4-5.


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      We would find no abuse of the trial court’s discretion in refusing to

cause the children to suffer more delay in their permanency while their

parents and their trial counsel sought serial continuances of the termination

hearing. We, therefore, affirm the decree of the trial court.

      Decree affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 8/21/2015




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