Opinion
J-S26018-18 No. 3327 EDA 2017
10-10-2018
IN RE: R.J.J. NAME CHANGE FOR A.J.M. NAME CHANGE TO A.J.J. APPEAL OF: T.M.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 14, 2017
In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2017-C-1727 BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E. MEMORANDUM BY BOWES, J.:
Former Justice specially assigned to the Superior Court.
T.M. ("Father") appeals from the order that granted the petition to change the surname of his daughter to that of the child's mother, R.J.J. ("Mother"). We affirm.
Mother and Father have minor children: a daughter, A.J.M., and son, J.J.M., who were aged sixteen and seventeen respectively at the time of the name-change petition. Father currently is serving a thirteen-to-twenty-six-year sentence for his sexual abuse of his stepdaughter, the older half-sibling of A.J.M. and J.J.M. Citing the children's desire to cease use of Father's surname and to instead take their Mother's last name, Mother filed petitions at separate docket numbers to change the surnames of both A.J.M. and J.J.M. The court scheduled a hearing, at which time Mother and the children were questioned by the court. Father did not appear, and the court confirmed that Mother had served the petitions upon Father in prison, but had not received proof of his receipt. Accordingly, the trial court issued upon Father a rule to show cause why the petitions should not be granted, and specified that Father could respond in person, by telephone, or in writing by mail.
The publicly-available docket indicates that Father entered a negotiated plea whereby, inter alia, the Commonwealth withdrew charges of rape and sexual assault, and Father pled guilty to sexual abuse of children (for possessing child pornography and photographing his victim engaged in sex acts) and endangering the welfare of children.
Father filed a written response indicating his opposition to the name change. He stated that he loved all of his children, but of them all A.J.M. was closest to him. He maintained that his incarceration had no bearing on his father-daughter relationship with her. Father further contended that the petition is a result of Mother's "last[-]ditch effort in totally alienating my daughter," and that, as she was sixteen years old, the court should wait and allow A.J.M. "to make her own decision as to whether or not she desires a name change." Response to Rule to Show Cause, 9/5/17, at ¶¶ 4-5.
The trial court granted the petitions as to both children by orders of September 15, 2017. Father filed a timely notice of appeal in daughter's case only. Both Father and the trial court complied with Pa.R.A.P. 1925.
Father presents two questions for our review.
I. Did the court below err when [Father] was denied his right to object, appear and be heard pursuant to 54 Pa.C.S. § 701(a)(4)(i)?Father's brief at 4 (unnecessary capitalization omitted).
II. Did the court below err when [A.J.M.] is a juvenile and was not given the right to make her own decision?
We begin with a review of the applicable law. "Our scope of review is limited to the question of whether the evidence is sufficient to support the decision reached by the hearing court. If we find the evidence sufficient we must affirm, even if based on the same evidence we would have reached a different conclusion." In re Miller , 824 A.2d 1207, 1210 (Pa.Super. 2003).
When considering a petition to change the name of a minor child, the best interest of the child should be the standard by which a trial court exercises its discretion. This Court has further held:
In re E.M.L., 19 A.3d 1068, 1069 (Pa.Super. 2011) (citations omitted).the party petitioning for the minor child's change of name has the burden of coming forward with evidence that the name change requested would be in the child's best interest, and that where a petition to change a child's name is contested, the court must carefully evaluate all of the relevant factual circumstances to determine if the petitioning parent has established that the change is in the child's best interest.
Father first contends that the trial court erred by not permitting him to appear and be heard as required by 54 Pa.C.S. § 701(a)(4)(i) ("At the hearing, the following apply: (i) Any person having lawful objection to the change of name may appear and be heard."). His contention is belied by the record.
As noted above, when Father did not appear at the initial hearing on the petitions, the trial court issued its rule to show cause for the purpose of allowing Father to raise any objections he might have to the change of name. The Court expressly invited Father to appear before the court to do so, giving him the option of appearing in person, by telephone, or by mail, on the rule- return date of September 13, 2017. Rule to Show Cause and Scheduling Order, 8/18/17. Father opted to respond in writing, and the court considered his objections. Hence, the record shows that Appellant was afforded the opportunity to be heard and, in fact, was heard. As such, Father's first issue warrants no relief.
Father included in his response a request that there be "a video conference to speak in person if further proceedings are necessary." Response to Rule to Show Cause, 9/5/17, at ¶ 6. However, the trial court's notice made it clear that the hearing was scheduled for 9:30 a.m. on September 13, 2017, and provided the telephone number for the chambers if Father wished to participate contemporaneously in the hearing. Father neglected to utilize that option, and makes no claim that the prison authorities denied him access to a telephone. Father cites no authority for the proposition that the trial court was required to provide a greater opportunity than it did for Father to present his objections.
Father's argument on his second issue, in its entirety, is as follows.
The court below abused its discretion when it ordered the name change for the above named minor child and due to the fact that the child was born [in 2001] the final order below should be reversed and the minor child should be permitted to request a name change on or after [her eighteenth birthday].Father's brief at 9 (unnecessary capitalization omitted).
We are not convinced that the trial court committed reversible error. This Court has held that children do not have to wait until the age of majority to obtain a name change, and even have standing to file a petition to do so themselves. In re E.M.L., supra at 1071. Further, the record shows that the trial court considered the wishes and the maturity of the children.
At the time of the hearings, the daughter was sixteen years of age and the son was seventeen years of age. Both children
testified at both hearings. They expressed their desire to change their surname from that of Father to that of Mother because people ask them questions about why their father was incarcerated and what he had done. Such inquiries, they said, made them uncomfortable. Both children responded appropriately to the Court's questions. They intellectually and rationally understood, and clearly expressed, their wishes. There was no indication either of them was impaired or coerced in any way.Trial Court Opinion, 12/27/17, at 2.
Moreover, the record supports the trial court's finding that the name change is in the best interests of A.J.M., as well as her brother. The children expressed their concern that their name connected them with the heinous acts Father committed upon their sister. See , e.g., Petition for Name Change, 6/1/17, at Exhibit A ("I want to change my name because [M.] is the name of my biological father and I won't want to live with the reminder of what he did to my sister. I just don't want to have nightmares because I am [a] 24/7 reminder of him. . . . Ever[y] time I here [sic] that name I get sick to my stomach so pl[ease] change my name."). Nothing in the record suggests that the decision was not made in earnest by the children, or in any way the product of Mother's coercion.
Accordingly, there is no basis for us to conclude that the trial court abused its discretion in granting the petition to change A.J.M.'s name. See , e.g., E.M.L., supra at 1073 (finding no abuse of discretion in grant of change of name to fifteen-year-old boy to that of his foster parents where the birth mother's opposition to the change the name change was based upon the argument that the child was too young to make the decision and that she believed "the name change would somehow negatively impact her other children").
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/18