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In re Int of A.D.

Superior Court of Pennsylvania

June 9, 2014

IN THE INT OF: A.D., A MINOR, APPEAL OF: D.R.D., II, Appellant; IN THE INTEREST OF: C.D., A MINOR CHILD, APPEAL OF: D.R.D., II, FATHER, Appellant; IN THE INTEREST OF: K.R.D., A MINOR, APPEAL OF: D.R.D., II, FATHER, Appellant

Submitted February 18, 2014.

Page 889

Appeal from the Orders of the Court of Common Pleas, Franklin County, Orphans' Court, No(s): 31 Adopt 2013, 32 Adopt 2013 and 33 Adopt 2013. Before KROM, J.

Ann M. Rotz, Hagerstown, MD, for appellant.

Brian C. Bornman, Chambersburg, for appellee.

Kristen B. Hamilton, Chambersburg, for Guardian Ad Litem, appellee.

Jeffrey B. Engle, Harrisburg, for J.M.D., appellee.

BEFORE: BOWES, OLSON, and FITZGERALD,[*] JJ. OPINION BY BOWES, J. CONCURRING STATEMENT BY FITZGERALD, J.

OPINION

Page 890

BOWES, J.:

D.R.D., II (" Father" ) appeals from the order entered on September 19, 2013, wherein the orphans' court involuntarily terminated his parental rights to his three minor children, K.R.D., A.D., and C.D. We affirm.

On December 13, 2011, Franklin County Children and Youth Services (" CYS" or " Agency" ) placed K.R.D., A.D., and C.D in its legal and physical custody after it received information that J.M.D. (" Mother" ) and Father had relocated with the children from Texas to Franklin County, Pennsylvania, in violation of an active safety plan drafted by a social service agency in Texas. Among other things, the Texas safety plan prohibited Father from contacting the children due to allegations that he sexually abused A.D. and a finding by the Texas agency of " reasons to believe," the evidentiary equivalent of the preponderance of the evidence, that the abuse occurred. On January 19, 2012, the juvenile court adjudicated K.R.D., A.D., and C.D. dependent. The initial permanency goal was reunification. Despite the court's finding of aggravated circumstances as to both parties, it directed the agency to establish reunification services for Mother. However, due to pending criminal charges in Texas and a no-contact order, the trial court relieved CYS from an obligation to provide Father reunification services. Father was incarcerated in Pennsylvania briefly and eventually returned to Texas where he awaits trial for his sexual abuse of A.D. The three children, K.R.D., A.D., and C.D., currently reside together in a pre-adoptive foster home. At the time of the termination proceedings, the respective ages of K.R.D., A.D., and C.D. were eight, seven, and two years old.

Father contacts CYS about the children approximately three to four times a month. Pursuant to the no-contact order, he is prohibited from sending the children gifts. Since November 2012, Father has provided the children with medical insurance.

Page 891

On June 18, 2013, CYS filed a petition to terminate Mother's and Father's parental rights and to change the permanency goal for K.R.D., A.D., and C.D. from reunification to adoption. During the ensuing hearings, CYS presented testimony from the caseworker assigned to the family, two psychologists, the children's therapist, and the foster parents. K.R.D. and A.D. also testified in camera. [1] As it related to this appeal, the foster parents testified that while K.R.D. and A.D. have been in their home, they have both disclosed additional incidents of sexual abuse perpetrated against them by Father while the family lived in Texas. The foster parents also testified that the two children indicated that they informed Mother about the additional incidents and said that she failed to stop the abuse. At the close of CYS's case-in-chief on July 29, 2013, the trial court convened a hearing in chambers to (1) determine the propriety of terminating only one parent's parental rights and (2) discuss the sua sponte dismissal, in the nature of a compulsory nonsuit, of CYS's petition against Mother. During the conference, the trial court concluded that the evidence CYS adduced during its case-in-chief to support terminating Mother's parental rights was insufficient to proceed. Therefore, the court announced its intention to dismiss that petition and, accordingly, it immediately entered an order that formally dismissed CYS's petition to terminate Mother's parental rights. In reference to Mother's putative testimony concerning the yet unresolved permanency and goal change issues, the trial court advised Mother's counsel, " the worst thing [he] could do is put [Mother] on the stand and say that this [additional abuse] did not happen." [2] N.T., 8/2/13, at 13.

Thereafter, the court adjourned until August 2, 2013, when it reconvened the hearing regarding the termination of Father's parental rights and the goal change proceedings as to both parents. In the interim, Father, CYS, and the guardian ad litem filed petitions requesting that the trial court recuse from the ensuing termination and permanency proceedings. The trial court denied Father's and CYS's motions by orders entered on August 1, 2013, and it denied the guardian ad litem's motion in open court the following day. Id. at 8.

During the August 2, 2013 hearing on the petition for termination of Father's parental rights, Father declined to present any evidence in defense of his position that his parental rights should not be terminated under § 2511(a) and (b). He declined to call Mother or the maternal grandmother to testify on his behalf, explaining that he believed " any evidence offered by them . . . likely would have been tainted by the Court's [statements]." Id. at 16. However, the guardian ad litem called Mother as a witness. After receiving additional evidence regarding the children's permanency goal, the trial court entered a decree on September 19, 2013, that terminated Father's parental rights pursuant to 23 Pa.C.S. § 2511(a) and (b). This timely filed appeal followed.[3]

Father complied with Pa.R.A.P. (a)(2)(i) and filed a Rule 1925(b) statement asserting

Page 892

two issues, which he reiterates on appeal as follows:

1. Whether the trial court's decision to terminate Father's parental rights was supported by clear and convincing evidence and did not constitute an abuse of discretion[.]
2. Whether the trial court's denial of [Father's] [m]otion to [r]ecuse did not constitute an abuse of discretion[.]

Fathers brief at 4-5. For judicial convenience, we address the latter issue at the outset.[4]

The denial of a motion to recuse is preserved as an assignment of error that can be raised on appeal following the conclusion of the case. Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291, 1300 (Pa. 1985). We review a trial court's decision to deny a motion to recuse for an abuse of discretion. Vargo v. Schwartz, 2007 PA Super. 402, 940 A.2d 459, 471 (Pa.Super. 2007). Indeed, our review of a trial court's denial of a motion to recuse is exceptionally deferential. Id. (" [W]e extend extreme deference to a trial court's decision not to recuse[.]" ). As we explained in Commonwealth v. Harris, 2009 PA Super. 160, 979 A.2d 387, 391-392 (Pa.Super. 2009) (quoting in part Commonwealth v. Bonds, 2005 PA Super. 432, 890 A.2d 414, 418 (Pa.Super. 2005)), " We recognize that our trial judges are 'honorable, fair and competent,' and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially." Hence, a trial judge should grant the motion to recuse only if a doubt exists as to his or her ability to preside impartially or if impartiality can be reasonably questioned. In re Bridgeport Fire Litigation, 2010 PA Super. 181, 5 A.3d 1250, 1254 (Pa.Super. 2010).

In order to prevail, Father, as the party seeking recusal, must satisfy the burden " to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." In re S.H., 2005 PA Super. 260, 879 A.2d 802, 808 (Pa.Super. 2005) (quoting Arnold v. Arnold, 2004 PA Super. 57, 847 A.2d 674, 680-81 (Pa.Super. 2004)). Herein, Father failed to satisfy his burden of production.

As it is leveled in his brief, Father's argument is predicated upon the trial court's indication during the in-chambers hearing that " good evidence" existed that he systematically abused the children. He also insinuates that the trial court announced its decision to terminate Father's parental rights before he had an opportunity to present his case. Finally, Father complains that the trial court's comment regarding the wisdom of Mother's proposed testimony denying the allegations that other abuse occurred was " likely to influence any testimony from Mother, who[m] (sic) [Father] expected to testify immediately after this in chambers conference."

Page 893

Father's brief at 23. For the following reasons, all of these arguments failed to establish any bias, prejudice, or unfairness that would raise a substantial doubt as to the trial court's ability to preside impartially.

In denying Father's motion to recuse, the trial court explained that, while it advised Father's counsel that " good evidence" existed to establish that the children were " systematically abused," it did not render a judgment on the petition but simply found that, unlike in Mother's case, CYS adduced sufficient evidence to survive a nonsuit. Specifically, before hearing any ...


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