J-S61013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.J.F.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

L. AND C. (W.) K.

                           Appellees                  No. 1923 WDA 2015


                   Appeal from the Order November 18, 2015
               In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD No. 13-003356


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                        FILED SEPTEMBER 20, 2016

         R.J.F. (“Father”) appeals from the order entered November 18, 2015,

in the Court of Common Pleas of Allegheny County, which denied Father’s

request for telephonic and video communication with his minor child, C.F.

(the “Child”). Father murdered his wife, Child’s mother. He is serving a

sentence of life without the possibility of parole. We affirm.

         The trial court summarized the relevant facts and procedural history as

follows.

               On November 7, 2014, [Father] was convicted of first-
         degree murder in the 2013 poisoning death of [A.K.], his wife
         and the mother of [the Child]. [Father] was sentenced to life
         imprisonment without the possibility of parole on February 4,
         2015. He is presently imprisoned in Clearfield County,
         Pennsylvania.

              [The Child] was six years old when [Father] murdered her
         mother. She was placed into her maternal grandparents’
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     custody. In April 2014, prior to his conviction, [Father] and the
     [g]randparents, through counsel, arrived at a Consent Order
     which permitted [Father] to write letters to the Child. The Order
     required his letters to be submitted to the Child’s therapist for
     review to ensure appropriateness for delivery to the Child. No
     other form of contact was permitted.

            After conviction, [Father] petitioned for telephone and
     video contact with Child. After argument and briefing, that
     petition was denied on November 18, 2015.

Trial Court Memorandum, 2/19/16, at 2-3. This timely appeal followed.

     Father raises eight issues on appeal. Specifically, Father alleges that:

     1) The [t]rial [c]ourt erred in applying 23 Pa.C.S.A. § 5329, a
     statute which only addresses custody, not communication
     between parent and child.

     2) The [t]rial [c]ourt erred in interpreting 23 Pa.C.S.A. § 5329 in
     a manner which produces a de facto termination of Father’s
     parental rights without the accompanying due process required
     of a termination proceeding.

     3) The [t]rial [c]ourt interpreted 23 Pa.C.S.A. § 5329 in a
     manner that treats one class of incarcerated parents differently
     tha[n] all others without a rational reason for doing so.

     4) The [t]rial [c]ourt’s interpretation of 23 Pa.C.S.A. § 5329
     allows an improper disregard for an analysis [of] the child’s best
     interest.

     5) The [t]rial [c]ourt improperly ignored the child’s own wishes.

     6) The [t]rial [c]ourt improperly ignored the law’s preference
     that children have the opportunity to visit and contact non-
     custodial parents.

     7) No valid penological [sic] concerns preclude the relief
     requested.

     8) The [t]rial [c]ourt’s decision sets Father up for having his
     parental rights terminated.


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Appellant’s Brief, at 5-26.

       As a preliminary matter, we must address Appellees’ (“Maternal

Grandparents”) request, filed via a “Petition for Dismissal of Appeal,”1 to

dismiss Father’s appeal due to the untimely filing of his appellate brief, as

well as Maternal Grandparents’ “Petition for Dismissal of Claims,” requesting

the dismissal of Father’s constitutional claims based upon his failure to notify

the Pennsylvania Attorney General.

       Father sought an extension of time in which to file his appellate brief,

which this Court granted on April 13, 2016. The order mandated that Father

file the brief by April 20, 2016, warning “NO FURTHER EXTENSIONS OF

TIME SHALL BE GRANTED, and this appeal shall be subject to immediate

dismissal by this Court without further notice to the parties if appellant’s

brief is not filed by the newly established due date.” Order, 4/13/16. Father,

through his counsel, Wendy Lynne Williams, Esquire, filed the brief late on

April 28.

       In their appellate brief, Maternal Grandparents assert that Father’s

appeal should be dismissed as the late filing of his appellate brief denigrates

the integrity of the judicial system. “If an appellant fails to file his … brief …

within the time prescribed by these rules, or within the time as extended, an

____________________________________________


1
 A motions panel of this Court entered an order denying this motion without
prejudice to raise the matter before the merits panel. See Order, filed
6/6/16.



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appellee may move for dismissal of the matter.” Pa.R.A.P. 2188. Maternal

Grandparents, however, fail to allege prejudice, other than prejudice caused

by delay. The delay was just eight days. And addressing the appeal on the

merits does not count as prejudice. See Stewart v. Stewart, 743 A.2d

955, 956 n.4 (Pa. Super. 1999). Therefore, we decline to dismiss this

appeal. We do, however, condemn Attorney Wiliams’s tardy filing of the

brief.

         In their “Petition for Dismissal of Claims,” Maternal Grandparents also

argue that Father’s failure to notify the Pennsylvania Attorney General of his

constitutional challenges to a statute, as mandated by Pa.R.C.P. 235 and

Pa.R.A.P. 521, must result in the dismissal of Father’s constitutional claims.

See Pa.R.C.P. 235 (requiring party who raises constitutional challenges to

any existing law to provide written notice and appropriate service to

Pennsylvania Attorney General); Pa.R.A.P. 521 (requiring appellant to

provide written notice and appropriate service to Pennsylvania Attorney

General if appellant raises constitutional challenges to a statute on appeal).

An appellant’s failure to follow proper notification procedures results in the

waiver of all constitutional challenges. See Hill v. Divecchio, 625 A.2d 642,

648-49 (Pa. Super. 1993). Father admits that he did not notify the

Pennsylvania Attorney General pursuant to Rules 235 and 521, but asserts

that he did not mount facial challenges to the constitutionality of the statute

and was therefore not required to notify the Pennsylvania Attorney General.


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       Father is correct that only facial challenges to the constitutionality of a

statute automatically require notice to the Pennsylvania Attorney General.

The crux of Father’s argument hinges on the fact that the trial court’s

application of 23 Pa.C.S.A. § 5329 differentiates between classes of

incarcerated parents. See Appellant’s Brief, at 13. However, it is clear that

the entire purpose of the statute itself is to differentiate between parents

convicted of murders, see § 5329(b), and other criminal parents, see id., at

(a). As the statute makes this distinction, Father’s challenge is clearly, in

actuality, a facial challenge, which required notification under Rules 235 and

521. See Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011)

(“A facial attack tests a law’s constitutionality based on its text alone and

does not consider the facts or circumstances of a particular case.”)

Therefore, we are constrained to find Father’s constitutional challenge to the

differentiation between criminal parents under § 5329 waived on appeal.

See Hill, 625 A.2d at 649. Thus, we grant, in part, Maternal Grandparents’

“Petition for Dismissal of Claims.”2

       Next, we must determine whether Father has otherwise preserved the

remaining seven issues for our review. Our review of the record indicates
____________________________________________


2
  Maternal Grandparents’ “Petition for Dismissal of Claims” seeks to dismiss
two of Father’s constitutional claims. However, as discussed below, we find
Father’s second constitutional claim, that the trial court’s actions resulted in
a de facto termination of his parental rights without the requisite due
process of law, waived due to Father’s failure to raise the issue in his Rule
1925(b) statement. Therefore, we do not address that issue here.



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that Father has waived the right to raise alleged errors two, five, six, and

eight on appeal by failing to include these challenges in his Rule 1925(b)

statement. Any issues not raised in a Rule 1925(b) statement will be waived

for purposes of appeal. See Commonwealth v. Castillo, 888 A.2d 775,

780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will

be deemed waived.”).

      Here, Father provided a Rule 1925(b) statement to the trial court

containing six alleged errors. However, we are unable to construe any of the

alleged errors in his Rule 1925(b) statement as claims that the trial court’s

order constituted a de facto termination of parental rights, improperly

ignored the child’s own wishes, ignored the law’s preference for non-

custodial parents to receive visitation, or biases Father towards having his

parental rights terminated. Therefore, we conclude that Father waived issues

two, five, six, and eight.

      Turning to the first of Father’s three remaining issues on appeal,

Father challenges the trial court’s application of § 5329 to Father’s request

for video or telephone communication with the Child. Father contends that

§ 5329 does not apply to his request for video or telephone contact with the

Child, because that type of communication is not considered “custody.”

Essentially, Father’s challenge is one of statutory interpretation.

      “Issues of statutory interpretation are questions of law where the

appellate standard of review is de novo and the appellate scope of review is


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plenary.” C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citations

omitted).

      The goal in interpreting any statute is to ascertain and effectuate
      the intention of the General Assembly. Our Supreme Court has
      stated that the plain language of a statute is in general the best
      indication of the legislative intent that gave rise to the statute.
      When the language is clear, explicit, and free from any
      ambiguity, we discern intent from the language alone, and not
      from the arguments based on legislative history or “spirit” of the
      statute. We must construe words and phrases in the statute
      according to their common and approved usage. We must also
      construe a statute in such a way as to give effect to all its
      provisions, if possible, thereby avoiding the need to label any
      provision as mere surplusage.

      Under Section 1921(c), the court resorts to consideration of
      ‘purpose’ and ‘object’ of the legislature when the words of a
      statute are not explicit. . . . Finally, it is presumed that the
      legislature did not intend an absurd or unreasonable result. In
      this regard, we. . . . are permitted to examine the practical
      consideration of a particular interpretation.

Id. (citations omitted).

      Here, the statute at issue provides:

      (b) Parent convicted of murder. – No court shall award
      custody, partial custody or supervised physical custody to a
      parent who has been convicted of murder under 18 Pa.C.S.
      §2502(a) (relating to murder) of the other parent of the child
      who is the subject of the order unless the child is of suitable age
      and consents to the order.

23 Pa.C.S.A. § 5329(a). The plain language of the statute provides that a

parent who has been convicted of murder of the other parent is prohibited

from retaining “custody,” “partial custody,” or “supervised physical custody,”

of the child at issue. Section 5323 of the Child Custody Act provides that the

only forms of custody that can be awarded to a party include shared physical

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custody, primary physical custody, partial physical custody, sole physical

custody, supervised physical custody, shared legal custody, and sole legal

custody. See 23 Pa.C.S.A. § 5323(a)(1)-(7). “Legal Custody” is defined as

the “right to make major decisions on behalf of the child, including, but not

limited to, medical, religious and educational decisions.” 23 Pa.C.S.A. §

5322. “Physical Custody” is defined as the “actual physical possession and

control of a child.” Id.

      While the statute and related statutory provisions do not specifically

enumerate telephone or video communication as a form of custody, we find

that reading the statute otherwise would lead to an absurd result. Through

the provisions of the Child Custody Act, it is clear that there are only two

types of “control” over a child, through physical and legal custody.

Practically, if neither physical nor legal custody included the right to

telephone communication with a child, the Child Custody Act would leave

open the possibility that parties without legal standing as defined in the

Child Custody Act could gain access to a child through telephone

communication. We do not believe that the legislature intended to leave this

type of loophole in the Child Custody Act. In order for all of the provisions of

the Child Custody Act to be effective, we must find that telephone

communication is included as either legal or physical custody. Therefore,

because we find that telephone communication is subsumed by the larger

definition of custody, Father’s argument that the trial court erred by applying


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§ 5329 because telephone communication does not constitute custody must

fail.

        Father’s final two arguments focus on the trial court’s failure to

consider the best interests of the child and to consider that there were no

valid prison related concerns before denying Father’s request for telephone

communication. However, the language of § 5329 provides that it is

mandatory for a trial court to restrict custody in the situation where one

parent has been convicted of murdering the other parent. A trial court does

not have the discretion to consider the best interests of the child or any

other factors that a party may believe to be important under the

circumstances. Father does not dispute that he was convicted of murdering

the Child’s mother. Therefore, under § 5329, the trial court was required to

deny Father custody of the Child, through telephone communication, without

conducting a hearing to determine the best interests of the Child or if there

were any valid prison related concerns. Consequently, Father’s final two

arguments on appeal are meritless.

        Order affirmed. Petition to Dismiss Claims granted in part and

dismissed as moot in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2016




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