Walter v. Whitmore
| Decision Date | 03 February 2023 |
| Docket Number | 973 WDA 2022,J-S01033-23 |
| Parties | FREDERICK WALTER, II Appellant v. CASSANDRA R. WHITMORE A/K/A CASSANDRA R. STOLTENBERG |
| Court | Pennsylvania Superior Court |
Frederick Walter, II ("Father")[1] appeals, pro se, from the order denying his motion for a hearing ("Motion for Hearing") pursuant to Sections 5329 and 5329.1 of the Child Custody Law, 23 Pa.C.S. §§ 5329, 5329.1, to assess whether he or Cassandra R. Whitmore ("Mother")[2] posed a threat of harm to their daughter, C.Y.W., born in 2008 ("Child"). Father also challenges two other orders in this appeal, the first of which denied his motion for recusal and the second of which denied his motion to vacate the appointment of counsel for Mother. For the reasons set forth below, we affirm.
On November 2, 2011, Father filed a complaint seeking custody of Child. On December 14, 2011, a custody order was filed granting Father shared legal and physical custody of Child. On April 19, 2018, Father filed a petition for modification of the custody order alleging that Mother had not allowed him to have contact with Child since 2013. After a custody conciliation conference, the trial court filed orders adopting the conciliator's report and recommendations, scheduling a hearing to be held pursuant to Section 5329,[3]and appointing legal counsel for Child.
A hearing was held on August 1, 2018, at which Father, Mother, and Child's advocate appeared. At the hearing, Father stated that he is currently incarcerated in a state correctional institution relating to his 2016 convictions for aggravated indecent assault relating to two victims. N.T., 8/1/18, at 6-8.[4]He identified one of the victims as the daughter of his ex-girlfriend and the other victim as a "stranger." Id. at 6. Father received an aggregate sentence of 14-to-30 years' imprisonment. Id. at 2, 8. He also was declared a sexually violent predator, and he is subject to lifetime registration under the Sexual Offender Registration and Notification Act.[5] Id. at 6-7. Father stated that he was listed to participate in sex offender treatment, but that the service is not usually offered until the prisoner is much closer to their release date. Id. at 7-8. Additionally, testimony was presented that Father was convicted of driving under the influence ("DUI") and possession of a controlled substance in 2009. Id. at 2. Mother also addressed an investigation of her and her husband for endangering the welfare of a child by the Venango County District Attorney, which Mother stated did not result in charges being filed pursuant to an agreement that Child maintain an open case with the Venango County Children, Youth, and Family Services ("CYFS") for a period of 6 months. Id. at 8-9.
On August 9, 2018, the trial court issued an order dismissing Father's petition to modify; the court found that Father poses a threat of harm to Child and no form of custody over Child should be awarded to Father pursuant to Section 5329. Order, 8/9/18, at 2. In addition, the court determined that Mother does not pose a threat of harm to Child and ordered that she be permitted to maintain custody pursuant to the previously operative custody order. Id. at 2-3.
On August 20, 2021, Father filed a petition for modification of the August 9, 2018 custody order, asserting that he did not receive service of the 2018 custody order, there was no evidence that he posed a threat of harm to Child, and that Mother had abused Child since the prior order was issued. After a conciliation conference at which both parents participated and upon the recommendation of the conciliator to deny Father's request for modification of custody, the trial court entered an order on January 21, 2022 denying the August 20, 2021 petition.
On January 28, 2022, Father filed the Motion for Hearing, in which he requested a hearing under Section 5329 to determine whether he continued to pose a threat of harm to Child; Father asserted that the trial court's August 9, 2018 order was not supported by any evidence of his danger to Child, and he did not have an opportunity to appeal that order because he was not served with it. In addition, Father claimed that a Section 5329 hearing should be held as to Mother based upon a 2020 DUI conviction and that a Section 5329.1[6] hearing should be convened based upon the CYFS investigation of Mother.
On February 9, 2022, the Honorable Thomas K. Kistler, Senior Judge of the trial court, scheduled a hearing on the Motion for Hearing, which was ultimately rescheduled to August 3, 2022. On April 19, 2022, the Honorable Marie T. Veon, President Judge of the trial court, entered an order appointing private counsel to represent Mother in this matter. On July 25, 2022, Mother, through counsel, filed a motion to quash Father's Motion for Hearing. In the motion to quash, Mother argued that (1) Father was seeking to relitigate the August 9, 2018 Section 5329 finding against him, which was barred by res judicata; (2) Mother was not convicted of a DUI offense as she entered into an accelerated rehabilitative disposition ("ARD") program to resolve the charges; and (3) there was no basis to have a Section 5329.1 hearing at that time as there was no pending custody action.
On July 27, 2022, Judge Veon granted Mother's motion to quash, denied Father's Motion for Hearing, and cancelled the scheduled hearing. On August 1, 2022, Father filed objections to the motion to quash and two additional motions: a motion seeking President Judge Veon's recusal and a motion to vacate the order appointing counsel for Mother. On August 5, 2022, Judge Veon issued an order denying the motion for recusal and the motion to vacate the appointment of counsel for Mother and ruling that Father's objections to the motion to quash were moot as they were filed after the court's rulings on the Motion for Hearing. Father thereafter filed a timely notice of appeal from the July 27, 2022 order denying his Motion for Hearing.[7]
Father raises the following issues on appeal:
This Court reviews trial court orders in custody matters under an abuse of discretion standard. Graves v. Graves, 265 A.3d 688, 693 (Pa. Super. 2021). We must accept the trial court's findings that are supported by competent evidence of record, as our appellate role does not include making independent factual determinations. Id. "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." Id. (citation omitted).
Father first argues that the trial court violated his due process rights by cancelling the already scheduled hearing concerning his Motion for Hearing and ruling on this motion without first reviewing Father's objections to Mother's motion to quash. Noting that custody orders are always subject to modification by the courts, Father argues that the question of custody has been raised in the present litigation, contrary to the trial court's reasoning in its Pa.R.A.P. 1925(a) opinion. Father contends that Section 5330 of the Child Custody Law, 23 Pa.C.S. § 5330, mandated that the trial court address the issue of Mother's recent ARD resolution of DUI charges under Section 5329, regardless of whether a conviction was obtained.[8] Father further asserts that the trial court violated due process by not holding a hearing to revisit its August 9, 2018 determination that he posed a threat of harm to Child as a result of his aggravated indecent assault convictions where that determination was not based upon evidence of record. Finally, Father argues that the court should have convened a hearing pursuant to Section 5329.1 as CYFS has only recently closed an investigation of potential abuse of Child by Mother.
"[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." S.T. v. R.W., 192 A.3d 1155, 1161 (Pa. Super. 2018) (citation omitted). "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) (citation omitted); see also S.T., 192 A.3d at 1161. "Due process is flexible and calls for such procedural protections as the situation demands." S.T., 192 A.3d at 1161 (citation omitted).
In its opinion, the trial court stated that dismissal of the Motion for Hearing was appropriate...
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