Opinion
J-S05029-19 No. 1451 WDA 2018 No. 1452 WDA 2018
05-23-2019
IN THE INTEREST OF J.A., A MINOR APPEAL OF: M.R. IN THE INTEREST OF K.R., A MINOR APPEAL OF: M.R.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 17, 2018
In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-0000095-2013 Appeal from the Order Entered September 17, 2018
In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-94-2013 BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J. MEMORANDUM BY NICHOLS, J.:
Retired Senior Judge assigned to the Superior Court.
M.R. (Mother) appeals from the permanency review orders regarding her two minor daughters, K.R. (born November 2001) and J.A. (born January 2005) (collectively, the Children). We vacate the orders appealed from and remand for a determination of whether good cause exists for the Children's absence from the hearing.
C.A. (Father) has not appealed these orders.
We adopt the facts and procedural history set forth in the trial court's opinion, which are supported by the record. See Trial Ct. Op., 11/2/18, at 1-8. On April 11, 2017, CYS caseworkers filed petitions to involuntarily terminate the parental rights of Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(2), (8), and (b), and motions to change the Children's permanency goals to adoption. Further permanency review hearings were convened in September 2017, March 2018, and September 2018.
The termination petitions remain pending at the time of the instant appeal.
At the conclusion of the permanency review hearings, the court entered an order finding (1) continued placement of the Children was necessary and appropriate; (2) that the Children had been consulted and wished to remain in placement; and (3) that there was no compliance with the permanency plan as to Mother because the termination hearing had been completed, but that the court was awaiting briefs from counsel prior to making its decision. See Order, CP-37-DP-94-2013, 9/17/18, at 1; Order, CP-37-DP-95-2013, 9/17/18, at 1. The orders also noted that the Children did not wish to visit with Mother, due to the lack of resolution regarding Mother's understanding of abuse in their lives. Order, CP-37-DP-94-2013, 9/17/18, at 6; Order, CP- 37-DP-95-2013, 9/17/18, at 6. As of September 17, 2018, the Children's primary placement goal was reunification with parent, with a concurrent placement goal of adoption.
Although the Children's counsel was present, the Children were not.
Mother timely filed an appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues for our review:
[1]. Whether [CYS] failed to make children available to the [c]ourt as required and as mandated by the Child Protective Services Laws (CPSL)[?]Mother's Brief at xxi-xxii.
[2]. Whether [Mother] completed all services required by [CYS] and the [c]ourt failed to apply the law to the facts of the case and return the children to [Mother?]
[3]. Whether [CYS] failed to provide any type of reunification counseling and generate a service plan to reunify [Children] with [Mother] considering that all other required services were completed by [Mother?]
[4]. Whether [CYS] failed to provide visits between [Mother] and [C]hildren, based solely on the alleged belief that one of the two children voiced her desire to not see [Mother] and [CYS] failed to provide competent evidence that there was any basis to deny [M]other visitation[?]
[5]. Whether the [c]ourt failed to take testimony from both children regarding their individual desire to reunify with [Mother] thereby requiring the [c]ourt to make a decision as to both children based upon the unsubstantiated testimony of one child, while the other was withheld from the [c]ourt without justification[?]
Prior to reaching the merits of Mother's issues, we must determine whether we have jurisdiction to decide the instant appeal. In particular, we must determine whether the orders in question—the permanency review orders of September 17, 2018—are appealable orders. CYS filed a motion to quash the instant appeal, arguing that the orders were not final and appealable. On December 13, 2018, this Court denied CYS's motion without prejudice, to be re-raised before a merits panel or in a subsequent motion. As of the date of the filing of the instant memorandum, CYS has filed neither a brief nor a renewed motion to quash.
Because "we lack jurisdiction over an unappealable order[,] it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order.'" Gunn v. Auto. Ins. Co. of Hartford , Conn., 971 A.2d 505, 508 (Pa. Super. 2009) (citation and quotation marks omitted). It is well-settled that "[a]n appeal lies only from a final order, unless permitted by rule or statute." Stewart v. Foxworth , 65 A.3d 468, 471 (Pa. Super. 2013); see generally Pa.R.A.P. 341(b). Here, because an "order granting or denying a status change, as well as an order terminating or preserving parental rights, [is] deemed final when entered," we review the merits of the orders appealed from. See In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003). Accordingly, we review the merits of Mother's appeal.
In In re J.S., 795 A.2d 985 (Pa. Super. 2001), following a permanency review hearing, the trial court entered an order that "did not change the placement goal or order a change in custody." In re J.S., 795 A.2d at 986-87. This Court quashed the appeal because the order maintained the status quo and was a non-appealable interlocutory order. Id. at 987. The Pennsylvania Supreme Court explicitly disapproved the reasoning of In re J.S., holding, "orders that are not status-changing have been regularly reviewed not only by the Superior Court, but also by this Court." In re H.S.W.C.-B., 836 A.2d at 910 (citations omitted).
Initially, although her brief raises five issues, Mother's arguments are intertwined and may be grouped into three categories. We summarize the first category as follows. Mother argues that the court failed to make the Children available to testify in court regarding their individual desire to reunify with Mother; she also challenges CYS's alleged failure to provide competent evidence to that effect and CYS's improper attempts to shift the burden of proof to Mother. See Mother's Brief at 4-12. Mother claims that the Children's presence is required by the CPSL and Rules of Juvenile Court Procedure. Id. at 4. Mother also avers that because the Children did not testify, the trial court could not make a reasoned opinion regarding the well-being, needs, or desired course of reunification of the Children. Id. at 11. She asserts that because of the lack of the Children's testimony, CYS did not produce competent evidence that reunification was not an appropriate goal and that visitation should remain suspended. Id. at 4-11. In support, Mother cites to 237 Pa. Code 1128, Pa.R.J.C.P. 1128, Pa.R.J.C.P. 1129(a)(2), and the Pennsylvania Dependency Benchbook, revised in 2014, to support her arguments. Id. at i-ii.
Mother did not cite to the particular provision within the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6385, that she claims supports her argument.
The Pennsylvania Dependency Benchbook is a compendium on Pennsylvania dependency law that provides an overview of the subject for juvenile court judges to refer to while presiding over a case. It is not "intended to be construed as legal advice or considered a substitute for statutory, procedural or other legal authority." See Pennsylvania Dependency Benchbook, Office of Children and Families in the Courts, 2014; see also In Interest of L.T., 158 A.3d 1266, 1278 (Pa. Super. 2017) (noting that the Juvenile Act remains dispositive in dependency cases).
In dependency matters,
[t]he standard of review . . . requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
"Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion." In re R.T., 778 A.2d 670, 683 (Pa. Super. 2001) (internal quotation marks and citation omitted). During dependency proceedings,
the Juvenile Act permits broad discretion in the admission of evidence in dependency proceedings. Section 6341(d), Evidence on issue of disposition, allows the admission of "all evidence helpful in determining the questions presented," including oral and written reports, during a disposition review hearing.In re A.H., 763 A.2d 873, 880 (Pa. Super. 2000) (emphasis omitted).
The Juvenile Act provides that during permanency hearings and while fashioning a permanency plan, "the court shall consult with the child regarding the child's permanency plan, including the child's desired permanency goal, in a manner appropriate to the child's age and maturity." 42 Pa.C.S. § 6351(e). If the court does not personally consult with the child, then the court must ensure the child's views have been communicated to the court by the child's guardian ad litem or legal counsel. Id.
Rule of Juvenile Court Procedure 1128 provides that all "parties shall be present at any proceeding" unless one of two exceptions apply. Pa.R.J.C.P. 1128(A). In relevant part, the "court may proceed in the absence of a party upon good cause shown," except that no hearing can occur without the presence of the child's guardian ad litem or legal counsel, or both. Pa.R.J.C.P. 1128(B)(1). The comment to the rule provides that "unless good cause is shown, a child should appear in court. It is important that all children, including infants, appear in court so the court can observe the interaction between the caregiver and child and observe the child's development and health." Id. cmt. Indeed, Rule 1129(A)(2) provides that at "a minimum, a child shall appear in person at least every six months unless as otherwise provided by Rule 1128." Pa.R.J.C.P. 1129(A)(2).
Here, K.R. last appeared in court in May 2017, sixteen months before the permanency hearing at issue. See id. While the court may excuse the Children's appearance upon a showing of good cause, the trial court here did not justify their absence from the hearing. See generally Pa.R.J.C.P. 1128 cmt.; Pa.R.J.C.P. 1129. Under the circumstances, we vacate the orders and remand to have the juvenile court address the Children's non-attendance and render a finding of good cause to excuse the Children from attending, as needed.
M.R., the other child, last appeared in court on May 23, 2018, six months before the permanency hearing.
Nothing in our decision prevents the Juvenile Court from again entering the orders appealed from upon a determination of good cause or otherwise holding a new permanency review hearing at which the Children would be present. --------
Orders vacated. Case remanded. Jurisdiction relinquished.
President Judge Panella joins the memorandum.
Judge Strassburger files a concurring and dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/23/2019
Image materials not available for display.