J-S33015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.C.-F.                                   :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 M.P.                                      :   No. 843 MDA 2018

                Appeal from the Order Dated March 28, 2018
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                             2017-CV-3925-CU


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 08, 2019

      M.C.-F. (Father) appeals pro se from the trial court’s “Parenting Plan”

order setting forth an agreement between Father and Appellee M.P. (Mother)

with regard to their physical and legal custodial responsibilities of their minor

son, M.C.F., Jr. (Child) (born 9/2013). We affirm.

      In January 2018, Father filed a petition to modify the parties’ existing

custody order. On March 23, 2018, in accordance with Pa.R.C.P. 1915.4-3

and in response to Father’s petition, a non-record custody conference was

held before Custody Conference Officer Jennifer Lehman, Esquire. Both Father

and Mother participated in the proceeding.           At the conclusion of the

conference, the officer entered a proposed custody order that was

subsequently forwarded to the trial judge, the Honorable Jeannine Turgeon.

See Pa.R.C.P. 1915.4-2(d)(4). The order reflected the following agreement

between the parties:
J-S33015-19


                     ORDER OF COURT - PARENTING PLAN

      AND NOW, this 28 day of March, 2018, M[.]C[.] (Father) and
      M[.]P[.] (Mother) together with counsel Patrick Daniels, Esquire
      for Mother having appeared[] for a custody conference on March
      23, 2018[,] before Jennifer L. Lehman, Esquire[,] and having
      reached an agreement regarding the above-captioned parents’
      physical and legal custodial responsibilities of M[.]C[.] (DOB
      09/2013[),] hereinafter referred to as “child[,]” it is hereby
      ORDERED and DECREED in the child’s best interests that the
      “Parenting Plan” shall be as follows:

      THE ORDERS OF JULY 5, 2017 AND OCTOBER 31, 2017 ARE
      AMENDED AS FOLLOWS:

         1. Father will call the child between 1:00 pm and 2:00 pm
         on Saturdays. On sporadic occasions when either parent is
         unavailable for this call, Father will then call on Sunday
         between 1:00 pm and 2:00 pm.

         2. If Paternal Grandparents have something they want the
         child to have, Father will tell Mother on the weekend.
         Mother will then call Grandparents and make arrangements
         to get the items from Grandparents within two weeks.

         3. Mother will take a drug test upon written request from
         Father. Father will pay for the test and make arrangements
         with a local lab. Mother will sign a release authorizing the
         lab to provide the test results to Father.

         4. All other provisions of the Orders of Court dated July 5,
         2017 and October 31, 2017 shall remain in effect.

Order of Court, 3/28/18 (emphasis added).              Judge Turgeon signed the

recommended order; Father failed to file any objections or exceptions to the

order.

      On appeal, Father’s one-page argument claims the trial court “denied

[him his] visitation rights[,] failed to consider the [appropriate] standards

[for] visitation . . . in light of the fact that Mother . . . was found . . . to be in




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J-S33015-19



contempt of the court by not honoring the agreement agreed upon on June

26, 2017.”1 Appellant’s Brief, at 6.

       Before we reach the merits of Father’s appeal, we must address a

procedural hurdle that may prevent this Court from reviewing Father’s issues.

Although Father filed a timely notice of appeal from the trial court’s March 28,

2018 order, he failed to comply with Pa.R.A.P. 1925(a)(2),2 which requires an

appellant, in a children’s fast track appeal,3 file and serve a concise statement

of errors complained of on appeal with his notice of appeal, as required by

Pa.R.A.P. 905(a)(2). Instantly, Father failed to file a contemporaneous Rule

1925(a)(2) statement with his notice of appeal in the trial court. Our Court

recognized this procedural deficiency and entered an order with the following

directives:


____________________________________________


1 On November 30, 2017, the trial court found Mother in contempt for failing
to abide by a prior custody order that required her to attend a “Families in
Change and Conflict” seminar, sending Father photographs of Child, and not
initiating phone calls between Father and Child. As a result, Mother was
sentenced to six months’ imprisonment with eligibility for work release. Order,
11/30/17.

2 Unlike Pa.R.A.P. 1925(b) where “judge may enter an order directing the
appellant to file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal,” an appellant “shall” file a
concise statement under Rule 1925(a)(2) with the notice of appeal. See
Pa.R.A.P. 1925(a)(2)(i).

3 See Pa.R.A.P. 102 (defining Children’s fast track appeal as “[a]ny appeal
from an order involving dependency, termination of parental rights, adoptions,
custody or paternity.”). See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511
et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S.
§§ 5102 et seq.

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J-S33015-19


              [By July 20, 2018, Father is t]o file a [s]tatement of errors
               complained of on appeal pursuant to Pa.R.A.P. 1925 in the
               trial court,

              [Father shall] serve the Statement on the trial judge and
               other parties, and

              [Father shall] file a copy of the Statement with the
               Prothonotary of the Superior Court.

              Any issue not properly included in the Statement
               timely filed and served shall be deemed waived.

Order, 7/12/18 (emphasis in original and added). See Pa.R.C.P. 1925(c)(2).

       The record reflects that Father filed a Rule 1925 Statement with our

Court on July 23, 2018 – three days after the mandated filing date in our

Court’s July 12, 2018 order. Moreover, there is no evidence that Father timely

filed and served the Statement on the trial judge as directed by our order.

Thus, in accordance with the dictates of Rule 1925 and our Court order, we

find Father’s claims waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii). See

also In re: K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that

failure of appellant in children's fast track case to file contemporaneous

concise statement and notice of appeal pursuant to rules 905(a)(2) and

1925(a)(2) results in defective notice of appeal).4

____________________________________________


4 We recognize that disposition of “the defective notice of appeal” when an
appellant fails to file a timely Rule 1925(a)(2) statement shall “be decided on
a case by case basis.” K.T.E.L., 983 A.2d at 747. However, here Father was
given ample opportunity to file his statement in the trial court and failed to do
so. Cf. id. (where appellant-mother filed her statement only three days after
notice of appeal, Court declined to dismiss or quash the appeal). We also note
that our Court was more than generous in offering him the opportunity to file
the Statement nunc pro tunc without Father first applying and showing good



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J-S33015-19



       Order affirmed.5


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/08/2019




____________________________________________


cause as to why our Court should grant him such relief.      See Pa.R.A.P.
1925(c)(2).

5 Even if we were able to reach the merits of Father’s appeal, we agree with
the trial court that Father should have sought to vacate the March 28, 2019
order if he had objections to the terms of the parties’ agreement.

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