J-S54030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ADOPTION OF                 IN THE SUPERIOR COURT OF
L.K.                                                   PENNSYLVANIA




APPEAL OF: J.K., NATURAL FATHER

                                                     No. 397 WDA 2016


                   Appeal from the Decree February 18, 2016
                  In the Court of Common Pleas of Erie County
                  Orphans' Court at No(s): 60 in Adoption 2014


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                             FILED AUGUST 15, 2016

       J.K. (“Father”) appeals from the decree entered February 18, 2016, in

the Court of Common Pleas of Erie County, which involuntarily terminated

his parental rights to his minor daughter, L.K. (“Child”), born in November of

2010.1 After a careful review, we affirm.

       This appeal arises from the petition for involuntary termination of

parental rights filed by R.K.1 and R.K.2 (“Paternal Grandparents”) on

September 17, 2014.           The record reveals that Child has resided with

Paternal Grandparents since approximately September 12, 2011. See N.T.,

____________________________________________


1
  Child’s biological mother, C.K. (“Mother”), voluntarily relinquished her
parental rights on November 4, 2015. Mother has not filed a brief in
connection with the instant appeal, nor has she filed her own separate
appeal.
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2/17/2016, at 7-9.          Paternal Grandparents obtained custody of Child

following a domestic violence incident during which Mother shot Father. Id.

at 7.     In addition, both parents were arrested after police discovered a

marijuana-growing operation in the family’s home. Id.

        An involuntary termination hearing originally was scheduled for

December 5, 2014, but the proceedings were continued on several occasions

at the request of both Father and Mother.          Father filed a petition to

voluntarily relinquish his parental rights on November 13, 2015, but Father

indicated at the relinquishment hearing that he felt as though he was being

forced to give up his parental rights, and the matter was continued again.

See N.T., 11/23/2015, at 3-4.

        An involuntary termination hearing finally took place on February 17,

2016.     However, the orphans’ court was unable to reach Father on the

phone.2     After discussing the numerous prior continuances in this matter,

the court announced that it would proceed with the hearing in Father’s

absence. N.T., 2/17/2016, at 3-4. Father’s counsel asked whether the court

would deny a request for an additional continuance, and the court replied,

“Denied. Denied.” Id. at 4-5. Following the hearing, on February 18, 2016,

the court entered its decree involuntarily terminating Father’s parental rights
____________________________________________


2
  Father was incarcerated at the time of the hearing. It appears from the
record that Father was released from incarceration following his arrest in
2011, and later was reincarcerated due to a different offense. See N.T.,
2/17/2016, at 10-11.



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to Child.   Father timely filed a notice of appeal on March 14, 2016, along

with a concise statement of errors complained of on appeal.

       Father now raises the following issues for our review.

       1. Whether the orphans’ court committed an abuse of discretion
       and/or error or law by denying counsel’s request for a
       continuance when [] Father was unavailable for participation by
       telephone by the prison system, after a request for telephone
       participation was duly scheduled[?]

       2. Whether the constitutional rights of [Father], pursuant to the
       14th Amendment to the U.S. Constitution, due process clause
       and guarantee of equal protection were violated when the
       [orphans’] court failed to afford [Father] the right to be heard,
       defend oneself and confront adverse witnesses[?]

       3. Whether [] Father’s rights under the Pennsylvania
       Constitution to due process and equal protection were violated
       by the failure of the [orphans’] court to continue the hearing so
       [] Father would have the opportunity to be heard and participate
       in the hearing to involuntarily terminate his parental rights[?]

Father’s brief at 3 (unnecessary capitalization and orphans’ court answers

omitted).

       Father’s issues on appeal are interrelated, so we address them

together.    Father argues that the orphans’ court violated his right to due

process under both the United States and Pennsylvania Constitutions by

failing to grant him an additional continuance on February 17, 2016.3
____________________________________________


3
   While Father asserts in his statement of questions involved that the
orphans’ court violated both his right to due process and his right to equal
protection, the argument section of Father’s brief focuses solely on his right
to due process. Father does not develop any argument with respect to his
right to equal protection, nor does he cite to any relevant authority. Thus,
Father has waived any claim that the orphans’ court violated his right to
(Footnote Continued Next Page)


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Father’s brief at 6-9. Father insists that he was unable to participate in the

involuntary termination hearing due to a medical appointment, and that the

court’s decision prevented him from hearing the evidence presented against

him, and from presenting evidence on his own behalf. Id. at 7.

      We consider Father’s claims 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. 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
                       _______________________
(Footnote Continued)

equal protection. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011),
appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884,
897 (Pa. Super. 2010)) (“‘[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”’).



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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

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, in its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the

orphans’ court explained that Father was not entitled to an additional

continuance. Orphans’ Court Opinion, 4/6/2016, at 4-6. The court reasoned

that the proceedings had already been continued on numerous occasions,

and that Father’s court-appointed counsel participated in the termination

hearing even if Father himself did not. Id.   The court stressed that Father

had the opportunity to participate in the hearing if he chose to do so, and

that Father’s “unavailability because of a doctor appointment in prison

appeared to be manufactured to further delay the trial.”      Id. at 3.   We

agree.

      At the conclusion of the termination hearing, the orphans’ court and

Father’s counsel engaged in the following discussion concerning their

inability to reach Father on the phone.

            THE COURT:       . . . . You apparently talked to him
      yesterday?

            [Father’s counsel]: Well, I didn’t speak to him. I spoke to
      his counselor.

          THE COURT: Were you given any indication at all that
      communicating with him would be a problem today?


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          [Father’s counsel]: No. None.

           THE COURT: Did anybody say anything to you about
     doctor appointments?

          [Father’s counsel]: No.

           THE COURT: When is the last time you communicated or
     heard from your client, either speaking to him in person or
     writing?

           [Father’s counsel]: Okay. Well, I had written him a letter,
     January 25, 2016, advising him that I presented a motion with
     Your Honor requesting permission to participate in a hearing by
     telephone.    Because he’s at Camp Hill, he could not be
     transported here.

           And I further advised him that if he had any evidence that
     he wished me to present, that he needed to get that to me. I
     received a letter from him from Camp Hill that was postmarked
     February 9, 2016, where he enclosed a copy of a speech that he
     wanted to give today. He requested that I assist him with
     making that happen when he had the opportunity to talk. And I
     have a speech.

           THE COURT: Okay. I’ll let you read it in, but that’s-- that
     was the last time you heard from him?

            [Father’s counsel]: Well, then I attempted-- you know, I
     contacted Camp Hill a number of times, and I had great difficulty
     getting through to anyone who would call me back, and then
     finally was successful yesterday when I kind of went up the
     chain of command, because I said this hearing’s tomorrow. I
     need to get this scheduled. I actually spoke to Mr. Phelps, and
     he advised me that 9:30 would be good, that he would have
     [Father] available, that he would only have a half an hour to
     talk, but indicated nothing as far as a doctor appointment.

          THE COURT: All right.

          [Father’s counsel]: And I think he’s the pod counselor.

           THE COURT: All right. And the record should reflect he’s
     the gentleman that we talked to on the phone this morning--

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             [Father’s counsel]: Correct.

            THE COURT: --and told us that when he arrived, that
      [Father] was already gone to the appointment, that he couldn’t
      give us any indication how long he would be or when he might
      return. . . .

N.T., 2/17/2016, at 43-45.

      Thus, the record confirms that Father had notice, the opportunity to be

heard, and a chance to defend himself during the involuntary termination

hearing on February 17, 2016.       Father was aware that the hearing was

scheduled for that day, and Father’s counsel went to significant lengths in

order to ensure that Father would be able to testify via telephone. However,

Father forfeited his right to participate in the hearing by leaving for an

unanticipated medical appointment without notifying the court, his attorney,

or his prison counselor. While Father suggests that he had no choice but to

attend the medical appointment that day, there is simply no support in the

record for Father’s claim.

      Further, Father’s counsel was able to participate meaningfully in the

termination hearing despite Father’s absence.        Father’s counsel cross-

examined witnesses, and presented the court with several exhibits, including

certificates indicating that Father had completed anger management,

domestic violence, and dual diagnosis programs while incarcerated.        See

Father’s Exhibits 2-3, 5-6. Father’s counsel also presented the court with a

“speech” prepared by Father, which the court reviewed prior to making its

decision.   Father’s “speech” is contained in the certified record as Father’s


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Exhibit 1, and includes Father’s explanation as to why he believes that his

parental rights should not be terminated. Cf. In re Adoption of Dale A.,

II, 683 A.2d 297, 300-01 (Pa. Super. 1996) (holding that the appellant

father’s right to due process was not violated, where he was represented by

counsel during the termination hearing, and where his testimony was

presented to the court using interrogatories and an affidavit).

      Accordingly, because we conclude that the orphans’ court did not

deprive Father of his right to due process, we affirm the decree terminating

Father’s parental rights.

      Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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