J-S34044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  C.R.                                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
  D.H.                                         :   No. 258 WDA 2018

                      Appeal from the Order January 5, 2018
                in the Court of Common Pleas of Clearfield County
                      Civil Division at No(s): 2017-1923-CD

BEFORE:      BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                           FILED JULY 24, 2018

       C.R. (Father) appeals pro se from the order entered January 5, 2018,

dismissing his complaint for custody of his minor daughter, C.H. (Child), after

a custody conference during which he did not have the opportunity to

participate. After careful review, we are constrained to vacate that order and

remand for further proceedings consistent with this memorandum.

       We glean the factual and procedural history of this matter from the

certified record and the trial court’s opinion. Child was born in January 2010

to Father and D.H. (Mother).          Father and Mother were never married.   In

September 2013, Father was convicted of a variety of sexual offenses,

including rape, involuntary deviate sexual intercourse, sexual assault,

statutory sexual assault, indecent assault, aggravated indecent assault, and


____________________________________________


* Retired Senior Judge assigned to the Superior Court.
J-S34044-18



indecent exposure. He is incarcerated at State Correctional Institution (SCI)

Greene, in Greene County, Pennsylvania.

       On December 13, 2017, Father pro se filed a complaint for custody, in

which he requested partial physical custody and shared legal custody of Child.

Father attached to his complaint a criminal record/abuse history verification

acknowledging his convictions. The trial court scheduled a custody conference

for January 4, 2018. Mother appeared at the conference. However, due to

problems with the court’s teleconferencing system, the court could not make

contact with Father at SCI Greene. After an ex parte discussion with Mother,

the court concluded that it would not award custody to Father. The court

entered an order dismissing Father’s complaint on January 5, 2018.

       Father pro se timely filed a notice of appeal.1 On March 20, 2018, this

Court ordered Father to file a concise statement of errors complained of on


____________________________________________


1  Because the trial court entered its order on January 5, 2018, Father’s notice
of appeal was due by Monday, February 5, 2018. Upon review, it appears that
Father’s notice of appeal was timestamped February 5, 2018, but that the
original timestamp was covered with correction tape and replaced with a
timestamp indicating February 15, 2018. There is no explanation in the record
for this alteration. Additionally, we observe that Father dated his notice of
appeal January 31, 2018. Pursuant to the prisoner mailbox rule, Father’s
notice of appeal would be timely filed if he presented it to prison officials for
mailing on or before February 5, 2018. Thomas v. Elash, 781 A.2d 170, 176
(Pa. Super. 2001) (“[A] legal document is deemed filed by an incarcerated
litigant, proceeding pro se, on the date it is delivered to the proper prison
authority or deposited in the prison mailbox.”). Accordingly, under the
circumstances presented here, we deem Father’s notice of appeal to be timely
filed.



                                           -2-
J-S34044-18



appeal in accordance with Pa.R.A.P. 1925(a)(2)(i) by April 2, 2018. Father

timely complied.2

       Father now presents the following question for our review. “Did the trial

court error [sic] when it denied [Father’s] fourteenth amendment right to due

process when the court denied [Father] a hearing in respect to his custody

complaint for visitation and meaningful communication [with] his daughter?”

Father’s Brief at 6 (unnumbered).

       Father’s due process challenge presents a pure question of law. As such,

our standard of review is de novo and our scope of review is plenary. Wirth

v. Commonwealth, 95 A.3d 822, 836 (Pa. 2014).

       It is well established that parents have a fundamental liberty interest in

the care, custody, and control of their children. Hiller v. Fausey, 904 A.2d

875, 881 (Pa. 2006). As such, parents have a right to procedural due process

in all child custody proceedings. Everett v. Parker, 889 A.2d 578, 580 (Pa.

Super. 2005). Procedural due process requires that parents receive formal

notice and an opportunity to be heard at a meaningful time and in a

meaningful manner. Id.
     In this case, Father contends that the trial court committed legal error

when it dismissed his complaint for custody because the court failed to provide


____________________________________________


2 We have accepted Father’s concise statement pursuant to In re K.T.E.L.,
983 A.2d 745, 748 (Pa. Super. 2009) (holding that the appellant’s failure to
comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her
claims, as there was no prejudice to any party).


                                           -3-
J-S34044-18


him with an opportunity to be heard in accordance with his due process rights.

Father’s Brief at 9-12. Father maintains that the court engaged in improper

ex parte communications with Mother, and dismissed his custody complaint

based on those communications. Id. at 9, 12. Father further maintains that

the court misapplied the portion of our child custody statute dealing with

consideration of criminal convictions by assuming that his convictions

prohibited him automatically from exercising any custody of Child. Id. at 9,

14-17 (discussing 23 Pa.C.S. § 5329).

      In its order dismissing Father’s complaint, the trial court provided the

following explanation for its decision.

            Th[e trial c]ourt has been made aware that [Father] is
      serving a lengthy period of incarceration following multiple
      criminal charges, including rape involving a child, and therefore
      the custody conference will not be rescheduled. Due to the sexual
      nature of [Father’s] offenses, he is to have no contact with minors,
      including his own biological children, and th[e trial c]ourt will not
      order otherwise. Thus, a custody conference is unnecessary.

Order, 1/5/2018.

      The trial court further explained its decision in its opinion pursuant to

Pa.R.A.P. 1925(a)(2)(ii).

      . . . . [The trial c]ourt is of the belief that, given the circumstances
      at play, [Father] was given a sufficient opportunity to be heard
      when th[e trial c]ourt took into consideration the information
      presented in [Father’s] [c]ustody [p]etition. In some instances,
      circumstances will call for a predetermination as to the
      reasonableness of the claims being made by a [p]etitioner seeking
      custody rights prior to the scheduling of an unnecessary hearing.
      The case at hand called for such a determination.

                                       ***

                                       -4-
J-S34044-18



              It is evident that Pennsylvania legislative and decisional law
      aims to provide every possible means for safeguarding a child
      against potential harms and ensuring that the best interests of the
      child, based on a subjective analysis of the factors at issue, is the
      [c]ourt’s chief concern. Thus, the facts as known to th[e trial
      c]ourt at the time the determination was made to dismiss
      [Father’s] [c]omplaint clearly establish that it is not within
      [C]hild’s best interests to continue with custody proceedings.
      First, every charge pled to by [Father] is listed under § 5329 and
      are the types of offenses that would lead any reasonable court to
      determine contact with [Father] poses a threat of harm to [C]hild.
      Second, [Father] is serving an extensive prison sentence, and he
      will likely be incarcerated until [C]hild [] is an adult. Therefore,
      all contact with [Father] would require [Mother] to travel the
      approximately 170 miles from Clearfield to [SCI Greene], one
      way, to allow [Father] to exercise his custody rights. While
      waiting for the custody conference to begin, [Mother] stated that
      [C]hild has been diagnosed on the autism spectrum and is
      confused as to why they were appearing at the courthouse
      because she does not know [Father] as her father. Additionally,
      [Mother] is in poor health and requires the use of a wheelchair,
      and she does not drive, so [C]hild would need alternative
      transportation to visit [Father]. Third, and most concerning to
      th[e trial c]ourt, is the fact that one of [Father’s] victims was
      approximately the same age at the time of the offense as [C]hild
      is at this time.

Trial Court Opinion, 4/6/2018, at 3-4 (footnote omitted).

      Upon review, we disagree with the trial court’s analysis. As discussed

above, Father has a fundamental liberty interest in the care, custody, and

control of Child. Hiller, 904 A.2d at 881. That means that Father has a right

to procedural due process in any proceeding where his custody of Child is at

issue, including notice and the opportunity to be heard. Everett, 889 A.2d at

580. Here, the court dismissed Father’s complaint without providing him any

such opportunity, in violation of his due process rights.



                                      -5-
J-S34044-18



      We find instructive this Court’s recent holding in S.T. v. R.W., ___ A.3d

___, 2018 WL 3198393 (Pa. Super. filed June 29, 2018). In that case, an

incarcerated mother filed a custody petition requesting telephone calls with

her daughter. Id. at *1. The trial court conducted a hearing on the mother’s

petition, but only permitted her to participate by submitting a written

statement. Id. at *3. The court then denied her request for telephone calls

and awarded sole legal custody to the child’s father. Id. at *4. On appeal, a

panel of this Court concluded, among other things, that the court violated the

mother’s due process rights by failing to provide her with the opportunity to

participate in the hearing via telephone or video conference. Id. at *1-2, 13-

14. The Court explained as follows, in relevant part.

            In the instant matter, the trial court’s procedure afforded
      Mother no meaningful opportunity to advocate for herself during
      the hearing. She could not respond, nor cross-examine Father’s
      points. She could not call witnesses, nor introduce evidence. She
      could not make objections.

             For illustration, the trial court accepted all of Father’s
      testimony regarding his employment experience with prisoner
      visitation at SCI Mahanoy – namely its unsavory characteristics
      and the irregularity of telephone access. Because of the court’s
      limiting order, Mother did not have an opportunity to counter
      Father’s assertions and describe the visitation procedures and
      conditions at her facility. We cannot say the defect lies with [the]
      trial court’s scheduling order, which outlined for Mother what
      information she should submit to the court. Nor can we blame
      Mother for a written statement lacking in this detail. No matter
      how specific Mother made – or could have made – her pre-trial
      written statement, she could never fully defend her position if
      Father opposed it. Moreover, she could never fully advocate for
      her position if she could not oppose Father’s. But now that an
      incarcerated parent has the ability to advocate in real time, at a
      comparatively minimal cost on the courts, we conclude that the

                                     -6-
J-S34044-18


      same is necessary to guarantee a meaningful opportunity to be
      heard.

Id. at *14.

      Moreover, we express concern that the trial court in this case based its

decision in part on information it received during an ex parte discussion with

Mother. See Pa.C.J.C. Rule 2.9(A) (providing, with limited exceptions, that a

judge “shall not initiate, permit, or consider ex parte communications, or

consider other communications made to the judge outside the presence of the

parties or their lawyers, concerning a pending or impending matter ….”). The

court’s discussion with Mother was not transcribed, and there is no support in

the record for several of its findings. Specifically, the record lacks support for

the court’s findings that Father’s sentence prohibits him from having contact

with Child, that Child suffers from autism and is confused, that Mother is in

poor health and does not drive, and that one of Father’s victims was

approximately the same age as Child. See Eck v. Eck, 475 A.2d 825, 827

(Pa. Super. 1984) (“[A] trial court may not consider facts or evidence dehors

the record in making its determination.      Nor may this court uphold a trial

court’s order on the basis of off-the-record facts.”) (citations omitted).

      Finally, we agree with Father that his criminal offenses do not prohibit

him automatically from exercising any form of custody of Child. It is clear

that trial courts must consider the nature of an incarcerated parent’s criminal

conduct before making a custody award. See D.R.C. v. J.A.Z., 31 A.3d 677,

687 (Pa. 2011). Specifically, subsection 5329(a) requires courts to consider

criminal conduct if a parent has been convicted of certain enumerated

                                      -7-
J-S34044-18



offenses, and to determine whether a parent poses a threat of harm to the

child before awarding any form of custody.       See 23 Pa.C.S. § 5329(a).

However, a parent’s criminal conduct only prohibits an award of custody under

very limited circumstances, which are not relevant here.     See 23 Pa.C.S.

§ 5329(b), (b.1).

        We stress that our decision in this case does not mean that the trial

court must award Father with some type of custody. We conclude only that

the court cannot make its custody determination without first providing Father

an opportunity to be heard in accordance with his procedural due process

rights. Therefore, we vacate the order dismissing Father’s custody complaint,

and remand for the court to conduct a new custody conference, during which

Father must have an opportunity to be heard.      If this case advances to a

hearing, Father must have an opportunity to be heard at that proceeding as

well.

        Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.




                                     -8-
J-S34044-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2018




                          -9-
