L.S.H., II v. P.J.B.-C.
L.S.H., II v. P.J.B.-C. No. 373 EDA 2017
| Pa. Super. Ct. | Jul 31, 2017Background
- Father (incarcerated) filed for joint legal custody of his daughter in 2007; conciliator recommended joint legal custody with Mother primary custodian; temporary orders followed and Father’s partial physical custody was later suspended while he was imprisoned.
- Mother petitioned to modify custody in January 2016 seeking sole legal custody; conciliator recommended sole legal custody for Mother and reasonable phone/mail contact for Father; Father filed a Request for a de novo hearing from prison.
- Pretrial conference occurred June 3, 2016 (Father participated by phone); court indicated a de novo hearing likely in November and that Father would receive mailed notice.
- At a November 17, 2016 contempt hearing, the court denied Father’s contempt claim but set a phone schedule; court later (after ending a telephone call with Father) announced the de novo hearing date to counsel; Father did not receive clear written notice of the December 14, 2016 de novo hearing.
- Father did not appear at the December 14 hearing; the court contacted the prison, learned Father had not arranged participation, spoke briefly and contentiously with him, then dismissed Father’s Request by order dated December 16, 2016 for failure to appear or secure attendance via writ/habeas or prison telephone arrangements.
- Father appealed, arguing lack of adequate notice and denial of due process; the Superior Court vacated the dismissal and remanded for a new de novo hearing with proper notice and instructions for prison participation.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother / Trial Court) | Held |
|---|---|---|---|
| Whether Father was denied due process by lack of adequate notice of the de novo hearing | Father said he knew a hearing was pending but received no specific date notice and expected telephone/video participation as before | Trial court asserted it mailed certified notice in June and return receipt signed at prison; Father failed to arrange to attend | Court held notice was inadequate; dismissal was an abuse of discretion and vacated |
| Whether trial court improperly engaged in ex parte communication by revealing hearing date to counsel after ending call with Father | Father claimed court gave date to Mother’s counsel ex parte and did not inform him | Trial court did not dispute announcement but relied on mailed notice | Court found the timing supported concern about notice; required proper notice and opportunity to appear |
| Whether dismissal without taking evidence or ensuring Father’s participation was permissible | Father argued denial of opportunity to be heard and best-interests evidence absent | Trial court dismissed for procedural nonappearance (no writ or phone arrangements) | Court ruled procedural dismissal without confirming notice violated due process for incarcerated litigant |
| What procedural protections are required for incarcerated parents in custody proceedings | Father contended he was entitled to writ/habeas instructions and assistance to appear | Trial court claimed it provided instructions by certified mail in June (record lacks copy) | Court applied precedent requiring explicit notice of right to file writ for transport or arrangements to appear by phone and directed trial court to provide such notice on remand |
Key Cases Cited
- C.R.F. v. S.E.F., 45 A.3d 441 (Pa. Super. 2012) (scope and standard of review in custody appeals)
- Vanaman v. Cowgill, 526 A.2d 1226 (Pa. Super. 1987) (incarcerated litigant must receive notice including right and procedure to seek writ to attend hearing)
- Everett v. Parker, 889 A.2d 578 (Pa. Super. 2005) (notice and meaningful opportunity to be heard are fundamental in custody cases)
- Sullivan v. Shaw, 650 A.2d 882 (Pa. Super. 1994) (incarcerated petitioners in visitation actions entitled to Vanaman notice protections)
- Garr v. Peters, 773 A.2d 183 (Pa. Super. 2001) (procedural due process requires adequate notice and opportunity to defend)
- Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006) (appellate courts may not consider documents not certified as part of the record)