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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