July 19, 2013
C.A.F., n/b/m C.A.D., Appellee B.S.H., Appellant
C.A.F., n/b/m C.A.D., Appellee
Appeal from the Order Entered October 12, 2012, In the Court of Common Pleas of Lancaster County, Civil Division, at No. Cl-11-08670.
Appeal from the Order Entered December 14, 2012, In the Court of Common Pleas of Lancaster County, Civil Division, at No. Cl-11-08670.
BEFORE: SHOGAN, MUNDY and COLVILLE [*] , JJ.
B.S.H. ("Father"), appeals from the order entered October 12, 2012, that dismissed his petition for contempt against C.A.F., now known by marriage as C.A.D. ("Mother"), after a custody conciliation conference on Father's custody contempt petition against Mother scheduled for September 18, 2012, at which Father failed to appear. Father also appeals from a second order entered on December 14, 2012, that dismissed, with prejudice, Father's second custody contempt petition against Mother, after a custody conciliation conference scheduled for December 4, 2012, at which Father again failed to appear. After careful review, we vacate and remand for further proceedings.
Due to the numerous court filings, letters, improperly dated documents, and Father's transfer between the Berks County and Lancaster County jails, the certified record and factual history are muddled. The parties are the parents of two daughters, D.E.H., born in February of 2005, and E.P.H., born in November of 2007 ("the Children"). On August 15, 2011, the Lancaster County Court of Common Pleas entered an order, directing the Berks County Court of Common Pleas to transfer the existing custody case between the parties to Lancaster County.
On October 4, 2011, Mother filed a petition to modify the existing custody order in Lancaster County, alleging, inter alia, that Father had a history of violating protection from abuse ("PFA") orders and criminal offenses. In the petition, Mother requested a criminal history hearing pursuant to 23 Pa.C.S.A. §§ 5329 and 5330 of the Child Custody Act. Mother also requested the suspension of Father's partial custody, visitation, and/or contact with the Children until the court could ascertain whether Father could have any contact without harm to Mother or the Children.
The trial court explained the subsequent procedural history as follows:
The Court held a Criminal History Hearing on March 13, 2012, pursuant to 23 Pa.C.S.A. § 5329(c) and § 5330(b) to determine whether the Plaintiff (hereinafter, "Father") poses a threat of harm and/or risk of harm to the children of the parties. An Order was entered on March 14, 2012, which found that Father does not pose a threat of harm and/or a risk of harm to the Children. The Order also provided that Father must engage in anger management counseling. [Paragraph (a) of the] Order granted shared legal custody of the children to Father and the Defendant (hereinafter, "Mother"). [At paragraph 3(a), Mother] was granted sole physical custody of the Children pending Father's completion [of] his counseling regarding anger management.
Trial Court Opinion, 1/29/13, at 1-2.
Father alleges that, on July 26, 2012, he placed two handwritten documents in the United States Mail at the Lancaster County Prison, where he was incarcerated. Father's Brief at 5. The first document was a petition for contempt, alleging Mother's failure to comply with paragraph two of the March 14, 2012 order, and the second document was a motion to proceed in forma pauperis. The trial court entered Father's custody contempt petition on its docket on July 31, 2012, and entered Father's motion to proceed in forma pauperis on August 1, 2012. In an order entered on August 9, 2012, the trial court granted Father's motion to proceed in forma pauperis.
The record reflects that the trial court entered an order to appear with regard to Father's custody contempt petition, and it provided notice of the order pursuant to Pa.R.C.P. 236 on August 15, 2012. In the notice, the court scheduled the custody conciliation hearing to occur on September 18, 2012, before Custody Conference Officer Daneen L. Miller-Smith. The notice reflects that the trial court sent a copy of the notice to Father, and an envelope included in the certified record, with a return address of the Lancaster County Prothonotary's Office, reveals that it was sent to Father at the Lancaster County Prison. However, the notice was returned to the Lancaster County Prothonotary's Office because Father was no longer incarcerated in Lancaster County. Certified Record at #11.
Father explains that on July 27, 2012, he was transferred from the Lancaster County Prison to the Berks County Prison. Father's Brief at 6. Father claims that he requested information regarding the forwarding of his mail on numerous occasions but did not receive a response. Id. In fact, the record reflects that on August 16, 2012, the trial court received a letter from Father, dated August 9, 2012, stating that he had been transferred to Berks County Prison, that he was having difficulty receiving his mail from the Lancaster County Prison, and that he had been informed his mail was being returned to sender without a forwarding address. In the letter, Father requested the trial court to forward information regarding his documents to the Berks County Prison. Certified Record at #12.
Father alleges that, out of concern that his first petition was unacceptable for filing, he typed a second petition for contempt, dated October 1, 2012, including copies of the March 14, 2012 order. Father's Brief at 6. He sent the second custody contempt petition and a second motion to proceed in forma pauperis to the Lancaster County Prothonotary's Office. Id. The trial court entered the documents on its docket on October 16, 2012. Id.
The record reflects that in an order dated October 22, 2012, and entered on November 5, 2012, the trial court granted Father's second motion to proceed in forma pauperis. The record also reflects that on November 9, 2012, the trial court issued a notice and order to appeal, scheduling a custody contempt conciliation before Custody Conference Officer Daneen L. Miller-Smith on December 4, 2012. The trial court sent a copy of the notice to Father, and the trial court's Court Administration Office Scheduling Cover Sheet (CAOSCS) lists Father's address as the Berks County Prison.
On October 12, 2012, the trial court entered the order dated October 10, 2012, dismissing Father's first custody contempt petition. This order mistakenly reflected a date of August 10, 2012, and a handwritten correction appears on the face of the document. It is unclear who made the correction or when the correction was made. The order states that the earlier custody order dated March 14, 2012, would remain in full force and effect. The record further reveals a custody conference summary, dated September 18, 2012, which states: "The petition for contempt is dismissed as [Father] failed to pursue such petition & did not contact the court regarding his absence." The custody conference officer and Mother signed the summary.
Father claims that, on October 18, 2012, he received the order dated August 10, 2012 that was altered to October 10, 2012. Father's Brief, at 6. Father also states that the order included an entry date with the Prothonotary of Lancaster County of October 11, 2012. Id. Father attached a copy of the original order, dated August 10, 2012, as an exhibit to his notice of appeal. In actuality, this is the October 12, 2012 order from which Appellant appeals.
Father explains that he then sent written correspondence dated October 29, 2012, to the chambers of Judge Jeffrey J. Reich, inquiring about appealing the order entered on October 12, 2012. Id. at 7. Father states that he received notice, dated October 24, 2012, of a custody contempt conciliation conference on his second petition that was scheduled to occur on December 4, 2012. Id.
Father's October 29, 2012 letter to the trial court is not in the certified record. Father, however, attached to his notice of appeal entered on November 26, 2012, a copy of the two-page letter that he allegedly received from the trial judge's law clerk on the judge's court letterhead stationery, dated November 6, 2012. The letter references Father's "Correspondence to Judge Reich dated October 29, 2012." The letter also states that a corrected copy of the order dismissing Father's first contempt petition is enclosed. Further, the letter provides:
It should be noted that the Prothonotary's Office had the original corrected prior to mailing the Order out but they forgot to change the copies. We are sorry for any confusion this has caused.
With regards to the rest of your questions, this office cannot give any legal advice and is prohibited from assisting with the completion of any legal document. I suggest you contact an attorney for any remaining concerns you have.
Further, you should note that if you wish to participate in any future conferences pending before this Court, it is your responsibility to make the arrangements.
Attachment to the notice of appeal entered on November 26, 2012 (emphasis added).
Father maintains he then took the following action with regard to proceeding on his petition for contempt.
Father promptly submitted a typed request to custody conference officer Daneen L. Miller-Smith via first class mail to the address of the Lancaster County Courthouse that the notice of hearing was mailed from, asking that he be provided with information of any requirement not yet fulfilled by him in order to participate in the custody conference A.S.A.P. due to Father not having Internet service to obtain a court administration office scheduling cover sheet (CAOSCS) required to request to change the hearing as stated in the notice of court appearance. Father also requested Ms. Miller-Smith confirm her contact information which had not been provided to date.
Father's Brief at 8.
Father's notice of appeal from the order entered on October 12, 2012, was dated November 12, 2012. Father erroneously filed that notice of appeal to the Commonwealth Court. Father concurrently filed a motion to proceed on the appeal in forma pauperis. In an order dated November 26, 2012 and entered on November 28, 2012, with Pa.R.C.P. 236 notice issued on that date, the trial court granted Father's motion.
The Commonwealth Court, by order dated December 3, 2012, transferred the appeal to this Court. See Trial Court Opinion, 12/28/12, at 2 n.2. On November 28, 2012, the trial court entered an order dated November 26, 2012, directing Father to file a Concise Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) within twenty-one days. Father filed his Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) with the trial court on December 14, 2012. Id.
On December 4, 2012, Father failed to appear at the scheduled custody conciliation conference on his second petition. Similar to the September 18, 2012 summary referenced above, on December 4, 2012, the custody conference officer, Ms. Miller-Smith, recommended dismissal of the contempt petition because "[Father] failed to pursue such petition & did not contact the court regarding his absence." Further, the custody conference officer recommended that Mother "may participate in future conferences via telephone if she chooses to do so. She shall call the Court Administration Office to notify them that she intends to exercise such option & make arrangements." The custody conference officer and Mother signed the Summary, which lists Father's address as the Berks County Prison.
In an order entered on December 14, 2012, the trial court approved the custody conference officer's recommendation and dismissed Father's second custody contempt petition with prejudice, directing that the March 14, 2012 order shall remain in full force and effect.
On December 27, 2012, Father timely filed a notice of appeal from the order entered on December 14, 2012, along with a concise statement of errors complained of on appeal. Father also filed a motion to proceed on the appeal in forma pauperis with the notice of appeal. In an order dated January 9, 2013 and entered on January 10, 2013, with Rule 236 notice issued on that date, the trial court granted Father's motion.
In his brief on appeal, Father raises one issue:
Was the courts dismissal of Fathers petition for contempt a denial of due process when court knew Father was incarcerated in Berks County Prison and was not served notice of first hearing, and after having requested to participate upon notice of second hearing was not provided opportunity to do so?
Father's Brief at 4 (verbatim).
Preliminarily, we observe that Father, a prisoner, is proceeding in this appeal pro se. Although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Strawn v. Strawn, 664 A.2d 129, 132 (Pa.Super. 1995).
As the custody conciliation conferences in this matter were held in September and December of 2012, the new Child Custody Act is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super. 2012) (holding that, if the custody evidentiary proceeding commences on or after the effective date of the new Child Custody Act, January 24, 2011, the provisions of the Act apply).
Our standard of review in custody cases follows:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
C.R.F., 45 A.3d at 443 (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).
Regarding the definition of an abuse of discretion, this Court has stated: "[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused." Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007). With any custody case under the Act, the paramount concern is the best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338.
On appeal, Father explains his failure to appear at the custody conciliation conference scheduled for September 18, 2012, asserting that he did not receive the notice from the court at the Berks County Prison, as his mail was not forwarded from the Lancaster County Prison after his transfer. With regard to the second contempt petition, Father admits that he received the notice of the hearing. Father requested, in writing, that the custody conference officer inform him of any requirement in order to participate in the hearing, but he did not receive any reply. Additionally, Father asserts that the notice of the hearing on his second petition did not contain any information that would have enabled him to participate. In support of his argument that he was entitled to notice of the contempt hearing and an opportunity to participate, Father quotes Vanaman v. Cowgill, 526 A.2d 1226 (Pa.Super. 1997), and 23 Pa.C.S.A. § 5425 (explaining the applicability of notice and the opportunity to be heard in custody matters).
Accordingly, Father contends that the trial court abused its discretion in adopting the custody conference officer's recommendations to dismiss both of his contempt petitions. He requests this Court to remand these cases to the trial court to issue a writ of habeas corpus ad testificandum or equivalent means to allow Father to present physical evidence of contempt.
It is well settled that "[p]rocedural 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) (internal quotation marks and citations omitted). "Due process is flexible and calls for such procedural protections as the situation demands." In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa.Super. 1996) (citing Mathews v. Eldridge, 424 U.S. 319, 334, (1976)).
To the extent that Father cites 23 Pa.C.S.A. § 5425 in support of his due process argument, we observe that section 5425 is part of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), 23 Pa.C.S.A. §§ 5401-5482. We note that the present case does not invoke the UCCJEA. See Prefatory Note to UCCJEA (stating that the UCCJEA revisits the problem of interstate child custody). Nevertheless, as there is no specific statutory section regarding notice and an opportunity to be heard in the Child Custody Act, we take guidance from section 5425 of the UCCJEA as to the applicability of the concept of due process to custody cases in this Commonwealth. See P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.Super. 2012) (applying the definition of modification set forth in the UCCJEA to a custody case under the Child Custody Act, in the absence of other governing authority, based on rules of statutory construction).
The panel in P.H.D. relied on 1 Pa.C.S.A. § 1921(c)(5), which states in relevant part:
When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(5) [t]he former law, if any, including other statutes upon the same or similar subjects).
1 Pa.C.S.A. § 1925(c)(5). P.H.D., 56 A.3d at 706.
The provision from the UCCJEA addressing due process upon which Father relies provides:
§ 5425. Notice; opportunity to be heard; joinder
(a) General rule.—Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of section 5408 (relating to notice to persons outside Commonwealth) must be given to all persons entitled to notice under the laws of this Commonwealth as in child custody proceedings between residents of this Commonwealth, any person whose parental rights have not been previously terminated and any person having physical custody of the child.
(b) Lack of notice or opportunity to be heard.—This chapter does not govern the enforceability of a child custody determination made without notice or any opportunity to be heard.
23 Pa.C.S.A. § 5425(a), (b) (emphasis added). Thus, the due process concepts of notice and opportunity to be heard are part of the custody proceedings among residents of this Commonwealth.
Moreover, in Vanaman, a panel of this Court addressed the deprivation of the due process guarantees of a prisoner in a custody matter. Therein, the mother of the subject child, whose father was incarcerated, filed a petition for custody. The trial court held a hearing on the petition, but the father failed to appear in person or through his counsel. The trial court held the hearing ex parte and did not take any evidence after it became aware of the father's absence. As a result, there was no record of the hearing.
Although the father was not present at the hearing, the trial court issued an order denying the father any visitation with the child. Subsequently, the father filed an appeal with this Court, arguing that he had a constitutional right to be present at the hearing and to present evidence at any proceeding that affected his status as a parent.
The panel in Vanaman ruled that the trial court erred in reasoning that the father had failed to explain or excuse the absence of counsel or to request a continuance of the hearing, after having received proper and sufficient notice of its impending occurrence. We stated,
This principle, while perfectly sound in regard to persons at liberty to protect their own interests, requires considerable revision in the context of this and similar cases. The fact of [a party's] incarceration places an obligation on the court to safeguard his due process rights, a responsibility here ignored.
Although we have uncovered neither procedural rule nor appellate authority which speaks directly to his issue, lower courts have in the past concluded that not only notice of a (civil) hearing is due an imprisoned person, but also specific advisement of his right to attend. See Jones v. Jones, 1 Pa. D. & C. 3d 401 (1974) (citing cases). The court in Jones prescribed a method of implementing exercise of this right based on the issuance of a writ of habeas corpus ad testificandum. This use of the writ is based on the definition given it in Commonwealth ex rel. Fraley v. Rotan, 82
Pa.Super. 172 (1923) as equivalent, in dealing with persons in custody, to a subpoena. The steps listed in Jones, although composed in reference to a divorce hearing, are equally applicable here: where the respondent/defendant in an action is incarcerated, notice must contain, as well as the usual particulars of the hearing, the statement that respondent/defendant may, if he wishes to attend, request the court by means of a habeas petition and writ to make arrangements for transportation to and presence at the hearing. Such a request must be made within 10 days prior to the scheduled date.
In situations such as the one before us, not only are the rights of the prisoner/respondent vulnerable to infringement, but those of the child as well since a determination of the child's best interests must have its basis in information. [The father's] rights were clearly ignored; whether his child's have been violated as well remains yet to be seen.
Vanaman, 526 A.2d at 1227. Thus, the panel in Vanaman reversed and remanded the matter to the trial court.
In the case before us, the trial court explained its analysis of Father's issue as follows:
Father is correct that he was transported for the March 13, 2012, Criminal History Hearing while he was incarcerated at the Lancaster County Prison. This was so because he was the "party of interest" in the Criminal History Hearing – the [c]ourt had to hear testimony in order to determine whether Father posed a threat and/or a risk of harm to his children before any order granting him any form of custody could issue.3
3 See 23 Pa.C.S.A. §§ 5329 and 5330.
The policy in Lancaster County for a custody conciliation conferences [sic] is that it is each party's responsibility to be available for a scheduled custody conciliation conference. If a party cannot attend in person, such as was the case with Father, that party may request, in advance, the opportunity to participate by telephone. Here, Father failed to pursue the available means to participate in the custody conciliation conference, and the responsibility for that failure is his alone. It is not the [c]ourt's job to make arrangements for a party's participation in a custody conciliation conference. Further, this [c]ourt has never made arrangements to transport a party to a custody conciliation conference from a prison, whether that prison is the Lancaster County Prison (which is some five blocks from the Courthouse) or the Berks County Prison (which would be a very costly proposition, given the distance involved).
Father alleges that the Custody Conciliation Officer abused her discretion specifically due to the fact that Father's Petition for Contempt was dismissed because he failed to appear, but Mother was granted the ability to participate by telephone at future conferences provided she contact Court Administration to notify them of her intention to participate by telephone. What Father alleges is error does not amount to an abuse of discretion. Father would have been afforded the opportunity to participate in the conference by telephone had he followed the established procedures by making a written request to do so in advance of the conference date. Father failed to do so. Father alleges that he wrote a letter to the Custody Conciliation Officer informing her in advance of the conference that he was incarcerated at Berks County Prison. Again, it was not the Court's nor [sic] the Officer's responsibility to arrange for Father to be present at the custody conciliation conference or to authorize participation by telephone when no request for such participation had been made. Father failed to take the appropriate action and should blame no one except himself for the Petition for Contempt being dismissed.
Trial Court Opinion, 1/29/13, at 3-4 (footnote in original) (emphasis added).
After review, we are constrained to conclude that the trial court abused its discretion in two regards. First, because of the timing of Father's transfer from the Lancaster County Prison to the Berks County Prison relative to the filing of his first custody contempt petition and the trial court's issuance of notice of the first custody conciliation conference, it does not appear that Father received notice. Father's letter to the court supports his allegation that he was not receiving mail. Because Father apparently did not receive notice of the first custody contempt petition, the trial court abused its discretion in dismissing it without first confirming Father's receipt of the notice and order to appear. See Vanaman, 526 A.2d at 1227 (regarding the requirement of due process for an incarcerated father in a custody proceeding); and see 23 Pa.C.S.A. § 5425 (setting forth the requirements of notice and an opportunity to be heard between residents in custody proceedings in this Commonwealth).
Second, we agree with Father that the November 9, 2012 notice and order to appear, which he admittedly received, did not include adequate notice regarding how to make arrangements to appear in person. There was insufficient notice that Father could participate in the conference via telephone but would have to make his own arrangements to do so. The notice Father was sent provided as follows:
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have willfully disobeyed an order of court for (custody) (partial custody) (visitation).
If you wish to defend against the claim set forth in the following pages, you may but are not required to file in writing with the court your defenses or objections.
Whether or not you file in writing with the court your defenses or objections, you must appear in person in court on the 4th day of December, 2012, at 11:00 a.m., in Conference Room 306, Lancaster County Courthouse, 50 North Duke Street, Lancaster, PA, before Custody Conference Officer Daneen L. Miller-Smith.
IF YOU DO NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST.
If thecourt finds that you have willfully failed to comply with its order for (custody) (partial custody) (visitation), you may be foundto be in contempt of court and committed to jail, fined, or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU
CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER SERVICES TO ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE.
LANCASTER BAR ASSOCIATION 28 EAST ORANGE STREET LANCASTER, PA 17602 717-393-0737
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Lancaster County is required by law to comply with the Americans [W]ith Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact the District Court Administrator. All arrangements must be made at least seventy[-]two hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing.
Notice and Order to Appear, 11/9/12, at 1-2.
This notice is for a defendant/respondent and was directed at Mother, with Father merely sent a copy as a party. There is nothing in the notice directed at Father's participation in person, via telephone from prison, or informing him of any obligation or rights in the matter.
As we have explained, notice and an opportunity to be heard are a crucial aspect of child custody proceedings.
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. Both notice and an opportunity to be heard must be afforded at a meaningful time in a meaningful manner. As previous panels of this Court have explained: [n]otice, in our adversarial process, ensures that each party is provided adequate opportunity to prepare and thereafter properly 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) (internal citations and quotation marks omitted) (emphasis added).
We recognize that the trial court may have a policy regarding the need for an incarcerated individual to make his own arrangements to participate in a custody conciliation conference, whether in person or via telephone, as stated by the trial court in its opinion. We have reviewed the Lancaster County Local Rules of Court, and we conclude that they do not make clear any such policy. The local rules also do not distinguish between the duty of the court, or lack thereof, to transport the prisoner to a conference depending on the procedural posture of the indigent prisoner, i.e., whether his presence is as the "party in interest, " and whether the indigent prisoner is incarcerated in a county other than Lancaster.
Additionally, while the trial court's law clerk may have advised Father to make his own arrangements to participate in the custody conciliation hearing, the letter was not entered on the docket. We, therefore, cannot deem it notice from the court to Father as to his duties and obligations to participate in the custody conciliation hearing. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc) (stating that, if a document is not certified by the trial court as part of the official record, we may not consider it). Moreover, we note that Father alleges that he contacted the custody conciliation conference officer about his participation, but he received no response. As the trial court did not hold a hearing in this matter, we have no factual finding on this allegation by Father.
We conclude that the trial court's determination that Father intentionally failed to appear at the custody conciliation conferences on his contempt petitions or request continuances is unsupported by clear and convincing evidence in the record. On the basis of the certified record, we conclude the trial court failed to provide Father notice and an opportunity to be heard and, thus, deprived him of his constitutional guarantee to due process of law. See Vanaman, 526 A.2d at 1228 ("stating [the father's] rights were clearly ignored; whether his child's have been violated as well remains yet to be seen"). See also 23 Pa.C.S.A. § 5425 (regarding notice and opportunity to be heard). Therefore, we conclude the trial court committed an abuse of discretion in dismissing Father's petitions.
Accordingly, we vacate the orders on appeal and remand the matter, directing the trial court, within twenty days of the filing of this Memorandum, to issue an order to Father affording him notice and an opportunity to participate in a custody conciliation conference on his contempt petitions, if he so desires. The trial court is directed to ensure that its notice to Father instructs him regarding the necessary actions he must undertake to ensure his participation, the means of participation which are permissible, i.e., in person or via telephone, and ample time for him to file any required motion regarding his appearing in person or via telephone.
Orders vacated. Cases remanded for further proceedings in accordance with this Memorandum. Jurisdiction relinquished.
MUNDY, J., Concurs in the Result.
COLVILLE, J., files a Dissenting Memorandum.
Father filed two petitions for contempt against Mother. The trial court dismissed both of the petitions due to Father's failure to appear at the hearings on the petitions.
On appeal, as to his first petition, Father claims that he did not "receive" notice of the hearing on that petition as per 23 Pa.C.S.A. § 5425. Father's Brief at 14. As the Majority notes, that statute has nothing to do with this case, as it is part of the UCCJEA. Majority Memorandum at 13.
Father concedes that he received notice of the hearing regarding his second petition. Father's Brief at 16. In an undeveloped argument, Father relies on Vanaman v. Cowgill, 526 A.2d 1226 (Pa.Super. 1987), in asserting that the notice he received was inadequate because it "did not contain any notice of requirements in order to be able to participate." Father's Brief at 16. The Majority concludes that Vanaman (and 23 Pa.C.S.A. § 5425) required the trial court to provide more in its notices to Father. Majority Memorandum at 22. The Majority, therefore, vacates the orders dismissing the contempt petitions and remands to the trial court. The Majority instructs the court to issue an order to Father informing "him regarding the necessary actions he must undertake to ensure his participation[.]" Majority Memorandum at 23. I am unconvinced that Vanaman affords Father the relief the Majority provides to him.
In Vanaman, Vanaman filed a petition for custody against Cowgill. Cowgill was incarcerated at the time. Cowgill failed to appear at the hearing on the petition; yet, the trial court held a hearing ex parte and thereafter entered an order denying Cowgill the right of visitation with the parties' child. On appeal, Cowgill "claimed that he ha[d] a constitutional right to be present and to present evidence at any proceeding which affects his status as a parent. The corollary [wa]s that this right was violated when the [o]rder denying visitation was entered despite [his] non-attendance at the hearing." Vanaman, 526 A.2d at 1226-27.
This Court agreed with Cowgill. We reasoned as follows:
. . . [W]here the respondent/defendant in an action is incarcerated, notice must contain, as well as the usual particulars of the hearing, the statement that respondent/defendant may, if he wishes to attend, request the court by means of a habeas petition and writ to make arrangements for transportation to and presence at the hearing. Such request must be made within 10 days prior to the scheduled date.
In custody and visitation cases, the paramount concern is the best interests of the child. A determination of where those interests lie can only be made on the basis of a reasonably complete record, and the "hearing judge must by his Memorandum give the reviewing court the benefit of a thorough analysis of that record."
At the hearing on [Vanaman's] petition, no evidence was taken once [Cowgill's] absence became known to the court. In effect, no record exists. The reasons given for the decision to deny visitation are "[T]he serious moral deficiencies in [Vanaman's] character as indicated by his current incarceration for rape which is a particularly disgusting felony. Respondent's criminal record, the type of offense and his apparent disregard for legal process are sufficient reasons for denying him visitation with the child."
Visitation has been denied where the parents' mental or moral deficiencies pose a threat to the child, and [Cowgill] may well be unable to sustain his burden of demonstrating that it lies in the child's best interest that he be allowed access. However, this is a matter of proof to be demonstrated by means of evidence, testimonial and otherwise, at a hearing, not presumed.
In situations such as the one before us, not only are the rights of the prisoner/respondent vulnerable to infringement, but those of the child as well since a determination of the child's best interests must have its basis in information. [Cowgill's] rights were clearly ignored; whether his child's have been violated as well remains yet to be seen.
Id. at 1227-28 (citations and footnote omitted). For these reasons, the Court reversed the trial court's order and remanded for further proceedings.
Unlike Cowgill, Father was not a "respondent/defendant" in a child custody case. He was a petitioner in scheduled contempt proceedings. The focus of the contempt hearings would have been on whether Mother violated the custody order, not on Father's status as a parent or on the best interests of the parties' child. Further distinguishing this matter from Vanaman is the fact that, in Vanaman, the trial court entered an order altering Cowgill's custody rights to his child despite Cowgill's absence from the hearing. Here, the trial court did not enter an order altering Father's custody rights. To the contrary, the court simply dismissed Father's contempt petitions due to his absence from the hearings.
Father has failed to convince me that the holding in Vanaman placed duties on the trial court in the proceedings sub judice, let alone that the court breached any duty in violation of Father's right to due process. See Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007) ("An appellant also has the burden to convince us that there were errors and that relief is due because of those errors."). For these reasons, I would affirm the orders denying Father's contempt petitions.