Monday, July 16, 2018

custody - incarcerated parents - due process


S.T. v. R.W. – Pa. Super. – June 29, 2018 – reported decision

Held: Incarcerated mother denied due process when lower court rejected her request for contact with the parties’ 9 year-old daughter, with whom mother, formerly a physician, had not had contact since her incarceration.  The trial court conducted an ex parte hearing without affording mother either notice that she could ask to be present or giving her an alternate meaningful opportunity to be heard.  The lower court also misapplied the current cutody law.

From the opinion:

Standard of review -  A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary. Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super 2017) (quoting Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015)

Custody cases involve fundamental rights protected by due process - In custody hearings, parents have at stake fundamental rights: namely, the right to make decisions concerning the care, custody, and control of their child. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). . . .and see also generally D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016). Due process must be afforded to parents to safeguard these constitutional rights. “Formal notice and an 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) (emphasis added). It is well settled that “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.” Id., at n. 5 (citing Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005); see also Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process is flexible and calls for such procedural protections as the situation demands”

Right of parent to appear in person – writ of habeas corpus ad testificandum -  Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994) - “Incarcerated prisoners who petition the court for visitation rights are entitled to a hearing, to notice of this hearing, and to notice of their right to request that they be present at the hearing, by means of a writ of habeas corpus ad testificandum.” Id. (Citing Vanaman v. Cowgill, 526 A.2d. 1226 (Pa. Super. 1987)). This holding has since been codified in both the Pennsylvania Rules of Civil Procedure and in the Schuylkill County Local Rules of Procedure.  The note to Pa.R.C.P. 1930.4(a)(“Service of Original Process in Domestic Relations Matters”) provides: “Original process served on an incarcerated person in a domestic relations action must also include notice of any hearing in such action and specific notice of the incarcerated [parent’s] right to apply to the court for a writ of habeas corpus ad testificandum.”  See also,  Rule 1930.3, which gives courts a means to accommodate any party or witness who may not be available to attend a hearing in person. The rule provides: “With the approval of the court J-S20012-18 - 12 - upon good cause shown, a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.” Pa.R.C.P. 1930.3. Neither telephonic, nor audiovisual, nor electronic communication was even mentioned by the court in Sullivan. Rule 1930.3 now provides courts with a previously unavailable option.

The court’s solution in Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994), which allowed an incarcerated parent to file an “informal brief” is “outdated” and inadequate to address due process concerns -- An “informal brief” or “written statement” submitted prior to the trial cannot possibly equate a meaningful opportunity to be heard under the current state of our substantive and procedural laws.   Notice ensures that each party is provided adequate opportunity to prepare and thereafter advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment. Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005).   Parties cannot expose all the relevant factors if they cannot advocate for themselves in real time, i.e., cross-examine witnesses of the other party and respond to arguments.

The Etter factors -  In M.G. v. L.D. 155 A.3d 1083, 1093 (Pa. Super. 2017), we found the trial court should have considered factors unique to prison cases which were previously delineated in Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. 1996).”   Without specifically stating so, in M.G. we acknowledged the Etter factors are now assimilated into § 5328(a) analysis under § 5328(a)(16). See P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27, 2018) (holding that the shared custody factors set forth in Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to the Custody Law, assimilated into the custody factors set forth in 23 Pa.C.S.A. § 5328(a)).

The Etter presumption did not survive the statutory amendments – Although the Etter factors have assimilated into our current Custody Law, the presumption set forth in Etter – that incarceration alone “is a basis for creation of a presumption, to be rebutted by the prisoner parent, that such visitation is not in the best interest of the child-- did not survive the amendments to the custody statutes.   The legislature, in amending our Custody Law, provided no such presumption in incarceration cases.  Our legislature contemplated when a presumption would arise, as well as how to treat parents’ criminal histories; it provided no such presumption against incarcerated parents. Indeed, not only is this presumption absent from our statutes, but any such presumption would run afoul of the advances our courts have made in proceedings conducted under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency Court Benchbook references the Pennsylvania State Roundtable Dependent Children of Incarcerated Parents 2013 Workgroup Report. The report states: [I]n most cases, children benefit from visitation and contact with a parent who is incarcerated. Children feel enormous grief and loss when they are unable to maintain contact with a parent. It is almost the same when a parent has died. Children also worry about a parent that they cannot see or talk to on a regular basis. […] Visitation and contact can reduce some of their worries and sad feelings.

Held:  Because Mother was not notified of her right to request to be present, Mother’s was deprived her right to due process. Additionally, Mother was deprived her right to have her modification petition adjudicated under the current Custody Law’s analyses for physical and legal custody. Therefore, we vacate the trial court’s order in this matter and remand for a new hearing.
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