J-S01041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.A.B., A       :   IN THE SUPERIOR COURT OF
    MINOR J.M.R., A MINOR
                                        :         PENNSYLVANIA

                                        :

                                        :
    APPEAL OF: S.D., MOTHER
                                        :   No. 1341 MDA 2018



                Appeal from the Decree Entered July 24, 2018
     In the Court of Common Pleas of Lancaster County Orphans' Court at
                       No(s): 2018-00842, 2018-00843

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED MARCH 19, 2019

        S.D. (Mother) appeals from a decree of the Court of Common Pleas of

Lancaster County Orphans’ Court granting the Lancaster County Children

and Youth Social Service Agency’s (CYS) petition to terminate Mother’s

parental rights to her sons, J.A.B. and J.M.R. (Children). 1 For the reasons

below, we vacate the decree and remand for a new hearing.

        Preliminarily, we address our jurisdiction.    In Commonwealth v.

Walker, 185 A.3d 969, 971 (Pa. 2018), our Supreme Court held that “where

a single order resolves the issues arising on more than one docket, separate



1 The proceedings involved four children: the two at issue here, plus two
others not at issue in this appeal. As will be discussed below, the orphans’
court had scheduled dependency review hearings for the other children in
addition to these termination proceedings.



* Retired Senior Judge assigned to the Superior Court.
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notices of appeal must be filed for each case.” Here, Mother filed one notice

of appeal listing the two lower court docket numbers – one for each child –

in violation of Walker. This Court held in Matter of M.P., 2019 PA Super

55 (Pa. Super. Feb. 22, 2019), that Walker applies in all types of cases,

“and shall be applied prospectively and uniformly by this Court.” Id. The

appellant in M.P. failed to comply with Walker, which “compels quashal.”

Id. (footnote omitted).

      Notwithstanding, we decline to quash because the orphans’ court

entered a single decree of termination for both children listing both docket

numbers.2    Continuing to treat this as one matter, the Notice of Appeal

Rights contained in the Decree provides:

      YOU HAVE THE RIGHT TO APPEAL THIS DECREE TO THE
      SUPERIOR COURT OF PENNSYLVANIA. YOUR APPEAL MUST BE
      FILED WITHIN THIRTY (30) DAYS OF THIS DECREE FILING WITH
      THE CLERK OF THE ORPHANS’ COURT. YOU MAY LOSE THE
      RIGHT TO APPEAL UNLESS YOU FILE YOUR APPEAL ON TIME
      AND IN CONFORMANCE WITH THE APPLICABLE PENNSYLVANIA
      RULES OF APPELLATE PROCEDURE.
Decree, 7/24/18, at 3.

      As can be seen, the orphans’ court’s notice misled Mother that she

only had to take one appeal from its decree that was captioned with two

docket numbers.    In this situation, where the orphans’ court misinformed



2 M.P. addressed in the alternative the merits. As we decline to apply
Walker on other grounds, we need not decide whether M.P. itself applies
only to notices of appeal filed on or after its publication date of February 22,
2019.


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Mother that only one appeal needed be taken, Walker does not and was not

meant to apply. We therefore proceed to the merits.

                                      I.

     CYS filed a petition to terminate Mother’s parental rights to the

Children.   Mother appeared at the initial termination hearing on May 14,

2018, but the matter was postponed due to inadequate notice to the legal

father. The termination hearing was rescheduled for July 16, 2018, at 8:30

a.m. A dependency hearing concerning her other children was scheduled for

1:30 p.m. that same day.


     On the date of the termination and dependency hearings, the orphans’

court called the case at 10:30 a.m., but Mother was not present. Despite

her appearance at the previous hearing and stated desire to contest the

termination of rights to the Children, the transcript does not indicate that

any meaningful attempt was made to determine her whereabouts prior to

the judge permitting Mother’s counsel to withdraw. Mother’s former counsel

remained present at the morning termination hearing, but did not speak or

otherwise take any steps to represent her interests.3


3  The Adoption Act grants parents a right to counsel in involuntary
termination proceedings. See 23 Pa.C.S. § 2313(a.1). Permitting counsel
to withdraw in this case violated this requirement and arguably constituted a
structural error which affected the entire termination hearing. A structural
error is an error “that affects the framework within which the trial proceeds,
rather than simply an error in the trial process itself. Structural errors are
not subject to harmless error analysis.” In re Adoption of L.B.M., 161
A.3d 172, 183 (Pa. 2017) (OAJC). “Generally, denial of counsel is a
(Continued on next page)

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      The termination hearing commenced without Mother in attendance or

her interests being represented by counsel.     The only witness was a CYS

supervisor, who testified about the mental and physical development of the

Children as well as Mother’s progress in eliminating the circumstances which

required their placement in CYS’s care. The orphans’ court entered a decree

at 11:16 a.m. terminating Mother’s parental rights.           The court then

addressed the matters concerning Mother’s other two children who are not

at issue in this appeal, and separate orders were entered regarding their

status.4




structural error.” Id. However, Mother has not raised this issue in her
appeal. The question is thus whether we can raise the issue sua sponte.

       In In re X.J., we reviewed a petition to withdraw under Anders v.
California, 386 U.S. 738 (1967), and we raised the same representation
issue as structural error via an independent review of the record. In In re
K.J.H., 180 A.3d 411 (Pa. Super. 2018), we extended the rationale outside
the Anders context to hold that where an orphans’ court failed to appoint
counsel to represent a child’s interests, we could raise that issue sua sponte.
We reasoned that the analysis in In re X.J. naturally extended to such a
failure. However, Judge Judith Olson dissented, noting that Anders requires
independent examination of the record, and that without such a
requirement, an appellate court cannot address an issue unless the parties
raise it. Moreover, Judge Olson noted that the presence of a structural error
simply means that harmless error analysis does not apply; the aggrieved
party must still preserve an issue to raise it on appeal. Because of the way
we have resolved the present appeal, we need not address whether we may
sua sponte raise a structural error based on Mother’s lack of representation.

4 Those children were not discussed during the morning session and their
dockets do not appear on the transcript’s cover sheet. A separate hearing
was presumably held.



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      Mother appeared later that same day.      At 5:01 p.m., a hearing was

held where CYS requested that the orphans’ court vacate its orders

concerning the two children not at issue in this appeal. CYS conceded that

the hearings for those children were, in fact, scheduled for the afternoon:

      [Mother] is now present before the [c]ourt this afternoon, Your
      Honor. She has indicated that she was – she – her notice for the
      dependency review hearing indicated that the hearings were
      scheduled for the afternoon, and, in fact, in looking at the
      record, that is accurate.

      We are requesting that this [c]ourt vacate its previous orders
      and continue those matters with status reviews in order for
      those to be rescheduled before the [c]ourt.

      There were also termination of parental rights hearings which
      were scheduled for this morning regarding [the Children]. . . .
      [CYS] is of the position at this time, since the decree has been
      issued, the only appropriate measure is for [Mother] to take an
      appeal to the Superior Court[.]


N.T., 7/16/18 (p.m.), at 3-5 (emphasis added).

      The orphans’ court agreed. “I would tend to agree with [CYS] though

in respect to the termination cases . . . there was appropriate notice

given[.]” Id. at 6. Mother’s former counsel was then informally reappointed

to represent Mother.    Counsel called Mother, who told the court that she

believed all the hearings involving her four children were scheduled for the

afternoon. She stated that it was inconceivable that she would appear for a

status review for two children but opt not to appear for the instant

termination hearing.




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      CYS did not dispute that Mother’s absence was inadvertent – “Well,

I’m not saying, ma’am, that you intentionally didn’t come[.]”      Id. at 10.

CYS only maintained that Mother received written notice at the conclusion of

the initial hearing in May and was personally served following that hearing.5

      The judge credited CYS’s testimony and the affidavit stating that

Mother had been personally served with notice of the termination hearing

and would not reopen the hearing for Mother’s evidence. This appeal

followed.

      On appeal, Mother now asks this Court to vacate the termination

decree and permit the reception of “testimony and evidence on behalf of

Mother.” Mother’s brief at 19. She argues that she is entitled to this relief

because CYS failed to give her adequate notice of the termination hearing.

Mother also claims that the orphans’ court abused its discretion when it

denied her a chance to testify on her own behalf at the afternoon hearing.

                                     II.

      Mother contends that her due process rights were violated because she

did not receive notice of the morning hearing.        “Formal notice and an


5 Remarkably, CYS alluded to the effort expended in the morning proceeding
as a basis for not disturbing the termination decree. Assuming that a
parent’s justifiable failure to appear must be balanced against some type of
prejudice to CYS, we note that the proceeding took 45 minutes.
Furthermore, the hearing was not adversarial as Mother had no
representation. Finally, it is obvious on its face that less than an hour’s
worth of time pales in comparison to Mother’s permanent loss of parental
rights.



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opportunity to be heard are fundamental components of due process when a

person may be deprived in a legal proceeding of a liberty interest, such as

physical freedom, or a parent’s custody of her child.”    J.M. v. K.W., 164

A.3d 1260, 1268 (Pa. Super. 2017) (en banc) (quoting Everett v. Parker,

889 A.2d 578, 580 (Pa. Super. 2005)). Termination of parental rights is a

drastic measure that should not be taken lightly.    Not only are [Mother’s]

rights at stake here, but [the Children’s] right to a relationship[.]”   In re

Adoption of K.G.M., 845 A.2d 861, 864 (Pa. Super. 2004) (citation

omitted).

      Adequate notice satisfies due process. The Adoption Act provides that

a failure to appear following good service of notice is grounds to proceed

with the hearing. See 23 Pa.C.S. § 2513(b). CYS bears the burden to prove

proper service. See In re Interest of K.B., 763 A.2d 436, 439 (Pa. Super.

2000).   To prove that Mother received proper notice, CYS presented an

affidavit indicating that service was made.

      In her brief, Mother does not discuss the affidavit or the court’s

credibility determinations. Instead, she submits that the notice was legally

defective because, as she testified, “The only paperwork I received is what I

brought today and that was to be here at 1:30.” N.T., 7/16/18 (p.m.), at

8.6 Mother argues that CYS gave notice of the hearing regarding her other

children, but not the termination hearing.    “Mother does not contend that

6 This document was not marked as an exhibit and the record does not
indicate whether CYS and/or the orphans’ court examined the paperwork.


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[CYS] deliberately failed to give her notice.    However, she contends that

[CYS] is mistaken that they provided notice[.]” Mother’s brief at 17.

         The orphans’ court found otherwise based on substantial evidence.

CYS entered a notarized affidavit indicating that personal service was made

upon Mother informing her of the hearing, along with a copy of the petition

to terminate parental rights. The certified record includes the petition, which

clearly indicates that the termination hearing would take place at 8:30 a.m.

These materials were sufficient for the trial court to make its determination

that Mother received notice of the termination hearing. See In re Interest

of K.B., 763 A.2d 436, 440 (Pa. Super. 2000) (two affidavits stating

personal service was made supported finding that parent received notice).

While Mother may have testified to the contrary, we are bound by the

orphans’ court’s credibility determination on that point.

                                      III.

         Mother next contends that the orphans’ court abused its discretion by

not permitting her to offer evidence why her parental rights should not be

terminated.     She contends that her appearance in the afternoon for the

proceedings regarding her other children – which were not termination

proceedings – supported Mother’s testimony that she mistakenly believed

that all matters concerning her children were scheduled for the afternoon.

On this point, we agree with Mother and vacate the subject decree on that

basis.




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      “The general rule is that ‘a court may, in its discretion, reopen the

case after a party has closed for the taking of additional testimony, but such

matters are peculiarly within the sound discretion of the trial court[.]’” In re

J.E.F., 409 A.2d 1165, 1166 (Pa. 1979) (quoting Commonwealth v.

Deitch Co., 295 A.2d 834 (Pa. 1972)). “This Court has previously found it

proper to reopen a case to allow the introduction of additional evidence

where the evidence has been omitted by accident, inadvertence, or even

because of mistake as to its necessity[.]”      Id. at 1166.    The refusal to

reopen a case for additional testimony may constitute an abuse of discretion

if the testimony is critical to a fair and accurate ruling. See Beneshunas v.

Indep. Life & Acc. Ins. Co., 512 A.2d 6, 10 (Pa. Super. 1986) (“[T]he

significance of the witness’ testimony and the contribution which it would

have made to an accurate adjudication suggest most strongly that the trial

court should have heard it.”).

      What exactly was scheduled, and at what times, seems to have been a

source of confusion for all parties in this case. In fact, the orphan’s court

and CYS proceeded on the other children’s petition in the morning rather

than in the afternoon when they were scheduled. Both the court and CYS

realized at the afternoon setting that the error required those dependency

orders to be vacated. Importantly, the orphans’ court also appreciated that

Mother could have been similarly confused about the scheduling of the

proceedings: “And, [Mother], I’m sure you could understand that very often

people in your position perhaps don’t understand the dual aspect of the

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hearing in that reviews . . . occur basically simultaneously, one after the

other.” N.T., 7/16/18 (p.m.), at 12. Even CYS seemed to indicate that it

would have consented to a motion to vacate the orders at issue here except

for its mistaken belief that the orphans’ court had no jurisdiction to do so.

Id. at 5.

      Additionally, there is no allegation that Mother’s failure to appear was

part of a pattern of improper behavior.           She had appeared in all prior

proceedings, as well as the afternoon dependency hearing held on the date

of the termination proceedings.           Both the orphans’ court and CYS

demonstrated their own confusion about what was scheduled on that date.
    Given all that, the orphans’ court abused its discretion by refusing to

permit Mother to testify in opposition to parental termination once it became

clear that her failure to appear at the morning hearing was an honest

mistake.      Mother’s   significant   parental    interests,   as   well   as   her

understandable absence, should have entitled her to dispute CYS’s petition

for termination when she appeared at the afternoon hearing.             To remedy

that error, we vacate the decree terminating parental rights as to the

Children and remand for an evidentiary hearing.

      Decree vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/19/2019




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