Opinion
J-A07015-17 No. 1520 WDA 2016
06-21-2017
IN THE INTEREST OF: Z.P., A MINOR, APPEAL OF: L.P. and J.P.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 8, 2016
In the Court of Common Pleas of Cambria County
Civil Division at No(s): CP-11-DP-004-2016/FID; 11-FN-008-2016 BEFORE: OLSON, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
L.P., ("Mother") and J.P. ("Father") (collectively, "Parents") appeal from the order dated September 7, 2016, and entered on September 8, 2016, denying their motion for the recusal of the trial court judge presiding over the juvenile proceedings involving their dependent child, Z.P. ("Child") (born in September 2015). We affirm.
In its opinion dated November 3, 2016, and entered on November 4, 2016, the trial court ably set forth the factual background and procedural history of this appeal, which we incorporate herein. Trial Court Opinion, 11/4/16, at 1-5. Importantly, this Court previously addressed Parents' appeal from the trial court's order entered on March 8, 2016. The order adjudicated Child dependent under 42 Pa.C.S.A. § 6302, as a victim of physical abuse under the Child Protective Services Law, 23 Pa.C.S.A. § 6303(b.1)(8)(iii) (regarding forcefully shaking a child under one year of age), with Father identified as the perpetrator under 23 Pa.C.S.A. § 6303, and set forth the court's disposition. In the Interest of: Z.P., a Minor , Appeal of: L.P. and J.P., Natural Parents , ___ A.3d ___ (Pa. Super. 2016) (unpublished memorandum) at 1-10.
On September 22, 2016, we affirmed the adjudication and dispositional order of the trial court. Id. at 10. The fourth issue in this prior appeal was, "Whether the trial judge, Judge Tamara R. Bernstein, should have recused, and whether [Parents'] counsel was ineffective for failing to file a motion for recusal." Id. at 8. The panel found the recusal issue, as part of an ineffectiveness claim, was meritless. The panel stated: "We agree with the court's analysis in its opinion that Parents' contention that Judge Bernstein was [not] impartial because she had, in her former position as a prosecutor, prosecuted a shaken-baby case is indeed the 'start of a quick slide down a very slippery slope[.]'" Id. at 10 (citing Trial Court Opinion, 5/6/16, at 15). On October 14, 2016, this Court denied reargument/reconsideration of our order, and, on December 30, 2016, our Supreme Court denied allowance of appeal.
The trial court noted that no motion for recusal had been filed on behalf of Parents. Trial Court Opinion, 5/6/16, at 14-15.
In the meantime, on August 15, 2016, Parents filed a motion to recuse with respect to Judge Bernstein captioned "Motion of [Parents] to Disqualify the Honorable Judge Tamara Bernstein from Presiding Over this Matter Due to Judge Bernstein's Service as Chairwoman of Cambria County's Children and Youth Services['] Near Death Review Team, as a Member of the Cambria County Coroner's Office Death Review Team." On September 7, 2016, the trial court heard argument on the motion to recuse prior to the permanency review hearing held on that date. Subsequently, on September 8, 2016, the trial court entered the order, dated September 7, 2016, denying the motion for recusal. On October 6, 2016, Parents timely filed a notice of appeal, along with a concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The scheduling order provided separate times for the two hearings to allow for the recusal of Judge Bernstein, if appropriate.
On September 14, 2016, the trial court entered the permanency review order, which, inter alia, scheduled a further review hearing to occur on November 23, 2016. The trial court's docket does not reflect a separate order scheduling the next permanency review hearing to occur on November 23, 2016, however. Parents do not challenge the September 14, 2016 permanency review order in this appeal, nor does the trial court docket or this Court's docket reflect that they challenged the permanency review order in a separate appeal. As the permanency review order was dated and entered subsequent to the order on appeal, it is not part of the certified record for the present appeal. See Commonwealth v. Preston , 904 A.2d 1, 6 (Pa. Super. 2016) (en banc) (stating that matters which are not of record cannot be considered on appeal). We note, for purposes of reviewing the denial of the recusal motion, that the trial court scheduled further proceedings in the dependency matter via that permanency review order, such that further dependency proceedings are contemplated.
On appeal, Parents raise one issue:
Whether the Honorable Trial Court erred and abused its discretion in failing to recuse herself from this matter, thereby denying Appellants the right to due process, where the cumulative effect of the Trial Court's recent campaign representations, and conduct and conclusions at the dependency and abuse hearing in this matter showed her bias and also revealed an appearance of partiality in actions involving alleged child abuse[?]Parents' Brief at 2.
Parents' concise statement is lengthier and more complex than the statement of questions involved portion of their brief. However, we find that they have preserved the challenge to the denial of their motion for recusal of the trial court judge. Cf. Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the statement of questions involved in his brief on appeal). --------
In their brief, Parents argue as follows:
The importance for Appellants to have a fair trial cannot be understated. The Trial Judge's decision finding abuse and dependency of their infant son will follow them throughout their son's childhood, necessitating, among other things, a "founded" report of child abuse, which is placed on the Commonwealth's Childline & Abuse Registry. Due to their names appearing on the registry, Appellants will forever be barred from volunteering for their son's school or organization activities.
However, the evidence shows that, less than a year before these hearings, the Trial Judge campaigned for the bench by highlighting her experience and pride in prosecuting alleged child
abusers. Her nondisclosures and her conduct and conclusions at the hearings of this matter, which were not based on evidence in the record, further evidence her bias.Parent's Brief at 13.
All of these factors, taken together, created the appearance that Judge Bernstein prejudged this case and was biased against alleged perpetrators of child abuse, such as Appellants. A reasonable person looking at these facts would question the judge's impartiality and the fairness of the hearing.
Accordingly, the Trial Judge erred in refusing to grant the motion for disqualification.
At the outset, we address the procedural posture of the appeal before us. In their recusal motion, Parents assert the cumulative effect of the trial court's rulings in the adjudicatory and dispositional orders is indicative of the trial court's inability to preside over the periodic permanency review hearings in an impartial, unbiased fashion. 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. S.E. Pa. Transp. Auth., 489 A.2d 1291, 1300-1303 (Pa. 1985). The question of whether Parents' counsel was ineffective for failing to file a motion for recusal prior to the adjudication and disposition of Child as dependent has been ruled upon by this Court and our Supreme Court has denied allowance of appeal. Further, the adjudication of dependency and the disposition at the time of that adjudication have been conclusively decided. Therefore, it might appear that the question of whether the trial court judge should have recused herself in this matter is now moot.
The legal principles that guide our review of whether to apply the mootness doctrine are well settled:
As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. In re Duran , PA Super 52, 769 A.2d 497 (Pa. Super. 2001). "An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law," In re Cain , 527 Pa. 260, 263, 590 A.2d 291, 292 (1991). In that case, an opinion of this Court is rendered advisory in nature. Jefferson Bank v. Newton Associates , 454 Pa. Super. 654, 686 A.2d 834 (Pa. Super. 1996). "An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect." Johnson v. Martofel , 2002 PA Super 79, 8; In re T.J., 699 A.2d 1311 (Pa. Super. 1997).In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002).
. . .
Nevertheless, this Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court. Erie Insurance Exchange v. Claypoole , 449 Pa. Super. 142, 673 A.2d 348 (Pa. Super. 1996); Commonwealth v. Smith , 336 Pa. Super. 636, 486 A.2d 445 (Pa. Super. 1984).
Here, the adjudication of dependency and the disposition at the time of that adjudication have been conclusively decided, as this Court denied reargument/reconsideration of our September 22, 2016 decision, and our Supreme Court denied allowance of appeal. However, the dependency case is ongoing, with periodic permanency review hearings. Accordingly, we find the question of whether the trial court judge should have granted the motion to recuse herself from the dependency case is not moot, as any proven bias would be capable of repetition yet evading review.
In turning to the merits of Parents' claim, we note that we review a trial court's decision to deny a motion to recuse for an abuse of discretion. Vargo v. Schwartz , 940 A.2d 459, 471 (Pa. Super. 2007). Our review of a trial court's denial of a motion to recuse allows for deference to the trial court's decision on the matter. Id. ("we extend extreme deference to a trial court's decision not to recuse"). In Commonwealth v. Harris , 979 A.2d 387, 391-392 (Pa. Super. 2009), this Court stated, "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 [her]self is best qualified to gauge [her] ability to preside impartially." Harris , 979 at 391-392 quoting, in part, Commonwealth v. Bonds , 890 A.2d 414, 418 (Pa. Super. 2005). Thus, a trial court judge should grant the motion to recuse only if a doubt exists as to his or her ability to preside impartially or if his or her impartiality can be reasonably questioned. In re Bridgeport Fire Litigation , 5 A.3d 1250, 1254 (Pa. Super. 2010).
In order to prevail on a motion for recusal, the party seeking recusal must "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., 879 A.2d 802, 808 (Pa. Super. 2005) quoting Arnold v. Arnold , 847 A.2d 674, 680-681 (Pa. Super. 2004).
To the extent that Parents allege bias on the part of the trial court judge with regard to the adjudication and disposition, we have already reviewed and rejected such claim in In the Interest of: Z.P., a Minor , Appeal of: L.P. and J.P., Natural Parents , 494 WDA 2016 (Memorandum filed September 22, 2016), at 9-10. We have denied reargument and reconsideration, and our Supreme Court has denied allowance of appeal. We will not revisit that decision.
To the extent that Parents are alleging that bias on the part of the trial court judge necessitates her recusal in the ongoing permanency review proceedings subsequent to the adjudication and disposition, again, we reject the claim.
We agree with the trial court judge that Parents failed to satisfy their burden of production. Our Supreme Court has stated, "[a] jurist's former affiliation, alone, is not grounds for disqualification." Commonwealth v. Abu-Jamal , 720 A.2d 79, 90 (Pa. 1998). In this appeal, Parents are not challenging the permanency review order that resulted from the permanency review hearing held on September 7, 2016. We discern no bias from the "cumulative effect" of the trial court judge presiding over the prior adjudicatory and dispositional hearing, and the subsequent permanency review hearings. The fact that the trial court judge knows a court-appointed special advocate ("CASA") professionally, or has been involved in shaken baby syndrome matters and committees as an assistant district attorney does not warrant recusal. See id. (holding that a judge's affiliation with the Fraternal Order of Police was not grounds for disqualification); City of Pittsburgh v. DeWald , 362 A.2d 1141, 1143-1144 (Pa. Cmwlth. 1976) (holding that the trial judge was not required to recuse herself based on her having practiced law with the attorney for one of the parties). Parents' bias argument does not warrant reversal in this instance. "It has long been held that trial judges, sitting as factfinders, are presumed to ignore prejudicial evidence in reaching a verdict." Commonwealth v. Irwin , 579 A.2d 955, 957 (Pa. Super. 1990).
Accordingly, our review of the record in this matter supports the trial court's factual findings and conclusions. As we find that the record supports the trial court's assessment, we will not disturb the trial court judge's decision that her recusal was not required. We, therefore, affirm the trial court's September 8, 2016 order denying Parent's Motion to Disqualify the Honorable Judge Tamara Bernstein on the basis of the discussion in the trial court's opinion entered on November 3, 2016. Trial Court Opinion, 11/4/16, at 7-17. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Bernstein's opinion.
Order affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/21/2017
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