Opinion
195 EDA 2022 196 EDA 2022 J-S12031-22
07-29-2022
IN THE INTEREST OF: N.D., A MINOR APPEAL OF: J.R., MOTHER IN THE INTEREST OF: K.W.-R.., A MINOR APPEAL OF: J.R., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 27, 2021 In the Court of Common Pleas of Montgomery County Juvenile Division at No(s): CP-46-DP-0000107-2021, CP-46-DP-0000108-2021
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM
DUBOW, J.
Appellant, J.R. ("Mother"), appeals from the December 27, 2021 Orders entered in the Montgomery County Court of Common Pleas that denied the Petition for Contempt filed by the Montgomery County Office of Children and Youth ("the Agency") and, inter alia, reordered supervised visitation between her children, eight-year-old N.D. and two-year-old K.W.-R. (collectively, the "Children"). Upon review, we dismiss this appeal because Mother's argument is substantially underdeveloped.
The orders are dated December 23, 2021, but appear on the docket December 27, 2021.
A detailed procedural and factual history is unnecessary to our review. Briefly, in May 2021 the Agency obtained emergency custody of the Children after Mother was incarcerated and Mother's friend was no longer able to care for the Children. While in foster care, N.D. disclosed that Mother physically abused him. On June 8, 2021, the trial court adjudicated N.D. dependent and ordered N.D. to remain in foster care. The court dismissed the Agency's initial dependency petition regarding K.W.-R. and returned her to the care of Mother.
Upon further investigation, the Agency filed a second dependency petition regarding K.W.-R. and commenced an adjudicatory hearing on August 6, 2021. The parties were unable to conclude the hearing that day, and the court scheduled a second hearing date on August 20, 2021. However, in the interim, the court ordered Mother to make K.W.-R. available for supervised visitations with N.D., and the court prohibited Mother from participating in these visits. Order, dated 8/6/21. Mother filed a Motion for Reconsideration, which the trial court denied. Mother timely appealed. This Court quashed the appeal, concluding that the August 6, 2021 order was neither final nor collateral. Interest of K.W.-R., No. 1709 EDA 2021 (Pa. Super. filed May 13, 2022) (unpublished memorandum).
On August 20, 2021, the trial court adjudicated K.W.-R. dependent, ordered physical and legal custody to remain with Mother, and ordered Mother to cooperate with Agency services. The court ordered Mother to, inter alia, undergo a psychiatric evaluation, arrange for K.W.-R. to be evaluated by the CHOP SCAN team, and cooperate with sibling visitation between K.W.-R. and N.T. for bi-weekly in person visits and weekly virtual visits. Order, dated 8/20/21.
The CHOP Scan Team identifies whether a child has been the victim of abuse.
On November 8, 2021, the Agency filed Motions for Contempt of Court as to both Children, alleging that Mother refused to comply with court-ordered sibling visitation and has not complied with the court's order to arrange a CHOP Scan Team evaluation for K.W.-R. On December 8, 2021, the Agency filed a Motion to Appoint Educational Decisionmaker for N.D. On December 9, 2021, the Agency filed a Motion for Finding of Aggravated Circumstances in N.D.'s case. During this time, Mother moved to New Jersey with K.W.-R. and refused to disclose her address to the Agency or her attorney.
On December 14, 2021, the court conducted a permanency review hearing and held hearings on the contempt, educational decisionmaker, and aggravated circumstances motions. The trial court granted the aggravated circumstances motion regarding N.T. and held the motions for contempt and educational decisionmaker in abeyance to give Mother time to comply with the court orders. The court scheduled a hearing for December 23, 2021 to take additional evidence. In the interim, the trial court ordered siblings to have an in-person visit between December 20-23, 2021, Mother to schedule an appointment for K.W.-R. with the CHOP Scan team by December 17, 2021, Mother to cooperate with an Agency safety assessment by December 17, 2021, and Mother to cooperate with the New Jersey department of human services once the Agency made a referral.
On December 23, 2021, the trial court held a hearing on the outstanding contempt motions. At the conclusion of the hearing, the trial court denied the contempt motions and "issued a detailed order containing thirteen (13) numbered paragraphs summarizing the court's most recent directives" on the docket for each child. Trial Ct. Op., dated 2/7/22, at 11. Specifically, the identical orders denied the contempt petitions and ordered Mother to submit to a parenting capacity evaluation, cooperate with sibling visitation, have no contact with N.D., cease recording persons without their consent, cooperate with the Agency and service providers, and cooperate with the child protective service agency in New Jersey. Orders, filed 12/27/21. The court also retained jurisdiction over the matter, ordered the Agency to submit a referral to the State of New Jersey, scheduled the next permanency review hearing within thirty days, and ordered specific protocols for the Children's appearance at permanency review hearing as well as sibling visitation during the hearing. Id.
Mother timely appealed the orders denying the Agency's contempt motions. Both Mother and the trial court complied with Pa.R.A.P. 1925.
This Court sua sponte consolidated the appeals for review.
It is well settled that the denial of a civil motion for contempt is an appealable order. N.A.M. v. M.P.W., 168 A.3d 256, 261 (Pa. Super. 2017); MacDougall v. MacDougall, 49 A.3d 890, 892 n.2 (Pa. Super. 2012); Basham v. Basham, 713 A.2d 673, 674 (Pa. Super. 1998).
Mother raises the following issue for our review: "Whether the trial court's December [27], 2021 order[s] went beyond the scope of relief sought by the movants in the contempt motion and the procedural posture of the case." Mother's Br. at 8 (some capitalization and punctuation omitted). We find Mother's claim of error waived because her argument is substantially underdeveloped.
"The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority." Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020) (citation and bracketed language omitted). See Pa.R.A.P. 2111 (listing briefing requirements for appellate briefs) and Pa.R.A.P. 2119 (listing argument requirements for appellate briefs). When issues are not properly raised and developed in briefs with arguments that are sufficiently developed for our review, we may dismiss the appeal or find certain issues waived. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) See Pa.R.A.P. 2101 (explaining that substantial briefing defects may result in dismissal of appeal). It is not the role of this Court to develop an appellant's argument where the brief provides mere cursory legal discussion. Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).
In her five-sentence argument, Mother fails to identify what, if any, portions of the orders in question are beyond the scope of relief sought in the contempt motions. See Mother's Br. at 13-14. Moreover, Mother cites to legal authority to support one legal proposition, but fails to analyze and apply the cited case law to the facts of this case. See id.
Mother's failure to provide any legal framework to develop and support the issue she raises on appeal not only violates our briefing requirements, but more importantly, precludes this Court from effectuating meaningful appellate review. We decline to act as counsel. Accordingly, we dismiss this appeal.
Appeal dismissed.
President Judge Emeritus Bender concurs in result.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
I respectfully dissent. While my learned colleagues dismiss these consolidated appeals after finding that Mother's argument is substantially underdeveloped, I would address the merits of Mother's challenge and affirm.
The majority summarized the family's involvement with the Montgomery Officer of Children and Youth ("OCY"). Hence, I only reiterate the key facts and procedural history as they relate to the decision to dismiss these appeals. Mother has two children: N.D., born June 2013, and K.W.-R., born September 2018. The juvenile court adjudicated N.D. dependent on June 8, 2021, based, in part, on allegations of physical abuse and neglect. Mother was subsequently indicated as a perpetrator of abuse against N.D. The juvenile court entered a finding of aggravated circumstances against Mother, who, in turn, asserted that N.D.'s mental health problems posed a physical threat to K.W.-R.
Although the juvenile court had previously dismissed OCY's prior dependency petition relating to K.W.-R., as N.D.'s allegations of abuse also implicated the safety of K.W.-R, OCY revived it petitions on July 9, 2021. While that petition was pending, the juvenile court ordered, inter alia, that Mother cooperate with OCY in scheduling supervised sibling visitation between the children. Trial Court Order, 8/6/21. The juvenile court reiterated similar directives in a permanency review order concerning N.D. See Permanency Review Order, 6/20/21, at 3. The court adjudicated K.W.-R. dependent on August 20, 2021, restating the prior visitation requirement and directing Mother to arrange for K.W.-R. to be evaluated by the Children's Hospital of Philadelphia Suspected Child Abuse and Neglect ("CHOP SCAN") team. Adjudication and Disposition, 8/20/21, at 3.
Mother did not comply with the aforementioned directives, OCY filed the parallel petitions for contempt that are the genesis of this appeal, and Mother moved with K.W.-R to New Jersey, refusing to disclose the child's location. The contempt petitions alleged that Mother failed to comply with supervised sibling visitation or schedule the child abuse assessment. In addition to sanctions, OCY sought a further directive from the juvenile court requiring Mother to comply with "the Court's Order to have [K.W.-R.] assessed at CHOP by the SCAN team, allow [K.W.-R] to have visitation with her sibling, and cooperate with the Montgomery County Office of Children & Youth." Motion for Contempt, 11/8/21, at 2.
The juvenile court held the motions for contempt in abeyance to provide Mother an opportunity to comply with the court-ordered directives and, in light of Mother's surreptitious relocation, it added instructions for Mother to cooperate with agency caseworkers in both New Jersey and Montgomery County. Mother scheduled K.W.-R.'s child abuse assessment for January 2022, and the New Jersey agency completed a home visit on Mother's residence. Although Mother scheduled the supervised sibling visitation, the visit did not occur because Mother insisted on overseeing the visit, ostensibly for the protection of K.W.-R., and N.D. countered that "he did not feel comfortable or safe having Mother in the room with him." Trial Court Opinion, 2/7/22, at 10. As the juvenile court later characterized the situation, "The visit did not occur because there was no way to facilitate the visit where both Mother and N.D. felt comfortable." Id.
The juvenile court ultimately denied OCY's motions for contempt. Significantly, the trial court determined that Mother substantially complied with the pertinent orders by scheduling the abuse assessment, home visit, and supervised sibling visitation, but Mother's obdurate behavior during the visitation required further action. "Accordingly, the court issued an order providing specific and detailed directives." Id. at 12.
These timely appeals followed, wherein Mother challenges the inclusion of the additional directives in the order denying the motion for contempt. That is, she asserts the order exceeded the scope of relief that OCY sought in the motion for contempt. As noted, the majority dismisses the appeals after finding that Mother's argument is substantially underdeveloped. For the following reasons, I disagree.
The majority accurately observes that our rules of appellate procedure require appellants to support his or her argument with legal analysis and citation to pertinent authority. Majority memorandum at 5 (quoting Commonwealth v. Martz, 232 A.3d 801, 811 (Pa.Super. 2020)). Likewise, it correctly notes, that where an issue is insufficiently developed in briefs, this Court may dismiss the appeal or find the issue waived. Id., citing Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007). Instantly, the majority found Mother failed to identify the specific portion of the contempt orders that she believed exceeded the scope of relief that Montgomery County Office of Children and Youth sought. Id. at 6. It further reasoned that, while Mother did, in fact, cite authority to support her legal proposition, she failed to "analyze and apply the cited case law to the facts of this case." Id. I disagree that waiver is warranted in this case.
While Mother dedicated the bulk of her brief to establishing justiciability, it is clear that she challenged the trial court's contempt order because it allegedly exceed the court's scope of relief by addressing twelve substantive matters that she asserts did not relate to her contumacious conduct. See Mother's brief at 13-14. Whereas the majority finds that Mother's failure to identify the twelve directives precluded this Court from effectuating meaningful appellate, those enumerated directives are obvious from the face of the contempt order, a copy of which is attached to Mother's brief. Indeed, the majority deftly summarizes the following conditions in setting forth the procedural history of this appeal. See Majority Memorandum at 4.
In denying the OCY's motion for contempt, the juvenile court ordered as follows:
1. Mother shall undergo a parenting capacity evaluation by Dr. Stephen Miksic.
2. Mother shall take child K.W.-R. to the scheduled CHOP Scan on January 6, 2022.
3. Siblings N.D. and K.W.-R. shall have in-person supervised visitation biweekly. Mother shall cooperate with OCY to schedule a visit once every two weeks. Mother may transport K.W.-R. to the visit or transportation for the child may be provided by OCY. Visits shall be supervised by the Office of Children and Youth or any other OCY approved supervisor. Under no circumstances is Mother permitted to be present with the children for the visits.
4. Mother shall have no contact with N.D.
5. Mother shall cooperate with Montgomery County OCY and all service providers.
6. Mother shall cooperate with any child protective service agency in the State of New Jersey, where she moved while under the jurisdiction of this Court.
7. Since the children were adjudicated dependent by this court and Mother moved out of state without approval or notice, Montgomery County Juvenile Court shall retain jurisdiction over this matter. OCY shall retain jurisdiction over the children for the court to determine all matters in relation to custody, supervision, care and disposition of the children until they are adopted, reach majority, become self-supporting or are discharged with the concurrence of the appropriate authority in the State of New Jersey. Such Jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. OCY shall continue to have financial responsibility for support and maintenance of the child during the period of the placement in the State of New Jersey.
8. OCY shall submit a referral to the State of New Jersey under ICPC Article V - Retention of Jurisdiction.
9. Mother shall not record any person without their specific stated consent. Counsel for Mother shall advise her of the criminal statutes of the Pennsylvania Wiretap Act which makes recording another person without their consent a felony offense.
10. The next scheduled hearing for both children is a Permanency Review scheduled for January 12, 2022 at 3:00 PM before the Honorable Garrett Page. These hearing shall be held in-person at the Montgomery County Juvenile Court. Mother and daughter K.W.-R. shall arrive no later than 2:30 PM and the child shall have the opportunity to speak privately and confidentially with her attorney, Lara Kash, Esquire. Neither Mother, nor any other person on Mother's behalf, may be present when the child speaks with her counsel.
11 Both children shall be seen by the court and counsel prior to the commencement of the hearing. Mother shall not be
present. Thereafter the children may be excused from the courtroom for good cause.
12. In addition to the bi-weekly supervised in-person sibling visits scheduled with OCY, the siblings shall have a supervised visit in the secure children's waiting room at Juvenile Court while the hearing is underway. Mother shall not be permitted into the secured area or the children's waiting room.Trial Court Order, 12/23/21 at 1-2 (cleaned up).
As the conditions that Mother challenges are readily available from the order attached to her brief, I cannot countenance the majority's finding that Mother failed to identify those same conditions in asserting that the trial court exceeded the scope of the relief requested in OCY's motion for contempt. Further, she cited pertinent legal authority for the proposition that "A trial court generally exceeds its authority if it grants relief outside of that requested." Mother brief at 13 (citing Jones v. McGreevy, 270 A.3d 1, 22 (Pa.Super. 2022) ("We deem the trial court's declaration of all property being immune from attachment to be in error, as the order goes well beyond the scope of the relief sought by Appellant and the procedural posture of this case.")).
Accordingly, I would address the merits of Mother's assertion.
Our standard of review follows:
On appeal from an order [concerning] contempt of court, our scope of review is very narrow, and we place great reliance on the court's discretion. The court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking reason. Each court is the exclusive judge of contempts against its process. The contempt power is essential to the preservation of the court's authority and prevents the administration of justice from falling
into disrepute. Absent an error of law or an abuse of discretion, we will not disrupt [the order] if the record supports the court's findings.Thomas v. Thomas, 194 A.3d 220, 225-26 (Pa.Super. 2018) (quotations and internal citations omitted).
As noted, Mother asserts that the trial court abused its discretion by imposing various requirements upon the parties in the order denying OYC's motion for contempt. Mother's brief at 13-14. Specifically, she complains that the enumerated conditions exceeded the scope of the relief sought, which was simply to hold Mother in contempt of the August 2021 orders for, inter alia, allegedly failing to have K.W.-R. assessed for suspected child abuse and refusing to permit K.W.-R to participate in the court-ordered supervised visitation with N.D. Mother contends that the trial court's contempt orders require her to perform conditions that were neither related to the motion for contempt nor sought by OCY. Id. at 14.
Upon review of the certified record, I can discern no abuse of discretion or legal error in the juvenile court's decision to impose various conditions upon the parties in denying OCY's motions for contempt against Mother. First, contrary to Mother's protestations, OCY's motions specifically requested directives relating to sibling visitation and the child abuse assessment. See Motion for Contempt, 11/8/21, at 2. Hence, the inclusion of those conditions did not exceed the scope of the relief requested. Furthermore, as the juvenile court explained, the enumerated directives either reiterated the previously imposed conditions or provided clarification on those matters. Trial Court Opinion, 2/7/22, at 12. The court addressed each of the pertinent conditions, explained when it was originally imposed, and noted Mother's level of compliance. Id. at 12-17. Insofar as the juvenile court is required to serve the best interest of the children and ensure their continued safety, I believe that the inclusion of the enumerated conditions constitutes a reasonable exercise of discretion, particularly, in light of Mother's indicated finding of abuse as to N.D., unsanctioned move to New Jersey, reluctance to schedule the child abuse assessment for K.W.-R., and her persistent interference with the supervised sibling visitations between N.D. and K.W.-R.
For the foregoing reasons, I would affirm the juvenile court order.