Opinion
J-S02032-18 No. 931 EDA 2017 No. 932 EDA 2017 No. 933 EDA 2017 No. 1033 EDA 2017 No. 1034 EDA 2017 No. 1035 EDA 2017
07-25-2018
IN THE INTEREST OF: R.C.-E., A MINOR APPEAL OF: J.C., MOTHER IN THE INTEREST OF: G.C.-E., A MINOR APPEAL OF: J.C., MOTHER IN THE INTEREST OF: A.M., A MINOR APPEAL OF: J.C., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002538-2015 Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002539-2015 Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0001077-2013 BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J. MEMORANDUM BY BOWES, J.:
Retired Senior Judge assigned to the Superior Court.
J.C. ("Mother") appeals the orders entered on February 21, 2017, wherein the juvenile court denied her request to remove her three children, A.M., R.C.-E., and G.C.-E., from foster care and place them with L.F. ("Grandmother"). The orders also denied Mother's request for the juvenile court to recuse itself from future dependency proceedings involving this family. We quash the appeals docketed at 1033, 1034, and 1035 EDA 2017, and affirm the orders that are the genesis of the appeals docketed at 931, 932, and 933 EDA 2017.
The court entered a separate order for each child. Other than the captions and identifying information, the three orders are identical.
A.M., R.C.-E., and G.C.-E. were born during 2004, 2012, and 2013, respectively. In October 2015, the children were adjudicated dependent, and the Philadelphia Department of Human Services ("DHS") placed them in foster care. Since May 2016, all three children have resided together in their current foster home, which is a pre-adoptive resource. Mother and Grandmother each were granted supervised visitation. While Grandmother was not a party, she attended the dependency hearings. DHS previously explored Grandmother for kinship placement, but it ultimately determined that her housing was not appropriate. Mother disputed the agency's decision, but the juvenile court declined to provide immediate relief. Instead, it held the matter in abeyance and continued argument over the following two permanency review hearings.
On February 21, 2017, the juvenile court held a permanency review hearing that addressed, inter alia, 1) Grandmother's petition to intervene formally in the dependency proceedings; and 2) Mother's petition to place the three children with Grandmother. The court ultimately deemed Mother's entreaty as a request for judicial removal of the children from their pre-adoptive foster home. During the ensuing proceeding, Mother proffered several requests for the juvenile court judge to recuse himself. The recusal requests were denied, and at the close of the evidentiary proceeding, the juvenile court denied Mother's motion to remove the children from their pre-adoptive foster care. Additionally, the court excluded Grandmother from attending the children's future appointments. In pertinent part, the juvenile court directed,
The juvenile court also denied Grandmother's petition to intervene. In a separate, consecutively-listed appeal to this Court, the instant panel reviewed the merits of the juvenile court's determination and affirmed the February 21, 2017 permanency review order denying her request to intervene in the dependency proceedings. In re A.M., 2018 WL 1979123 (unpublished memorandum filed April 27, 2018).
THE COURT FURTHER ORDERS: Maternal Grandmother's motion to intervene, and Mother's . . . request of judge recusal are denied. Judicial removal denied. Maternal grandmother is not allowed to attend child's appointments. Child to remain as committed. Next court date must be tried contested goal change [and] termination [of Mother's parental rights].Permanency Review Order, 2/21/17, at 2.
. . . .
Such disposition having been determined to be best suited to the protection and physical, mental and moral welfare of the child.
On March 17, 2017, Mother filed timely notices of appeal from the permanency review orders, wherein she challenged "the appropriateness of the [children's] permanency plan" generally. Notice of Appeal, 3/17/17. The concomitantly filed Pa.R.A.P. 1925(b) statement raised issues relating to, inter alia, the denial of her request to remove the children from their current foster home and Grandmother's exclusion from the children's appointments. On March 23, 2017, we docketed Mother's appeals consecutively at 931, 932, and 933, EDA 2017.
On the same date that we docketed the foregoing appeals, the thirtieth day of the appeal period, Mother filed in the juvenile court three additional notices of appeal referencing only the portion of the February 21, 2017 permanency review order that denied her requests for recusal. We listed those appeals on the docket at 1033, 1034, and 1035 EDA 2017, and consolidated all six appeals for disposition.
Mother presents the following questions for review:
1. Whether the lower court committed an error of law and abuse of discretion in denying Mother['s]request for a permanency hearing pursuant to 42 Pa.C.S. § 6351 (e).
2. Whether the lower court committed an error of law and abuse of discretion in establishing and/or maintaining a concurrent plan for adoption without a hearing pursuant to 42 Pa.C.S. § 6351 (e). See also , Interest of Z.V., ___ A.3d ___ (Pa. Super. March 23, 2017).
3. Whether the lower court committed an error of law and abuse of discretion by ordering Mother to prosecute a "Judicial Removal" hearing in lieu of a permanency hearing.Mother's brief at 4.
4. Whether the lower court committed an abuse of discretion by forbidding Maternal Grandmother, without cause, from continuing to attend the children's appointments for medical and special services.
5. Whether the lower court committed an error of law and abuse of discretion in denying Mother['s]request for Recusal under Rule 2.11 of the Pennsylvania Code of Judicial Conduct, on the basis that the Court should disqualify himself from further proceedings in this matter because his impartiality might reasonably be questioned.
6. Whether the lower court erred denying Mothers request for Recusal because of the appearance of bias and/or ill [will].
7. Whether the Superior Court should decline to consider the "Factual and Procedural History" contained in the lower court opinion because it is dependent upon statements not in evidence below.
We review the juvenile court orders for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). "[T]he standard of review in dependency cases 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." Id.
At the outset, we discuss the procedural posture of these overlapping appeals. First, as it relates to Mother's second, superfluous appeal challenging only the trial court's denial of her requests for recusal, those appeals should be quashed. Since the only appealable juvenile court docket entries in these cases were the February 17, 2017 permanency review orders, which Mother timely appealed at 931, 932 and 933 EDA 2017, the subsequent appeals listed at 1033, 1034, and 1035 EDA 2017 are redundant. Thus, we are obligated to quash those appeals. See , e.g., Neidert v. Charlie , 143 A.3d 384, 387 n.3 (Pa.Super. 2016) (summarily disposing premature and duplicative appeal); Gates v. Gates , 967 A.2d 1024, 1026 n.1 (Pa.Super. 2009) ("We quash the appeal listed on our docket at 1026 WDA 2008 because it is duplicative of the appeal Mother filed at 1023 WDA 2008."); Corbett v. Weisband , 551 A.2d 1059 (Pa.Super. 1988) (quashing one of two appeals filed from same judgment entered in favor of same defendant).
Moreover, assuming arguendo that Mother's first timely appeal subsumed her subsequent claim that the juvenile court erred in denying her various requests for the juvenile court judge to recuse from the dependency proceedings, we could not address that argument herein because issues relating to the denial of a motion to recuse are interlocutory. See Haviland v. Kline & Specter , P.C., 2018 PA Super 67 (March 22, 2018) (discussing settled principle that order denying motion to recuse judge from further proceedings is interlocutory). Mother's instant challenges to the trial court's decision to deny her entreaties to recuse are premature appeals that are neither appealable as of right under Pa.R.A.P. 311 nor collateral orders under Pa.R.A.P. 313. Accordingly, for both of the foregoing reasons, the appeals docketed at 1033, 1034, and 1035 EDA 2017 must be quashed. Hence, we do not address the merits of the fifth and sixth issues leveled in Mother's statement of questions involved.
The merits of the remaining appeals are reviewable. In H.S.W.C.-B., our Supreme Court addressed the finality of permanency review orders and concluded that dependency orders granting or denying status changes are considered final when entered, even though the dependency proceedings continue to progress. The pertinent facts of that case follow. The juvenile court denied the petition filed by Child and Youth Services ("CYS") to change the permanency goals of two children from reunification to adoption. We quashed CYS's ensuing appeal because the permanency review order was an interlocutory order that merely maintained the status quo. The High Court reversed, reasoning, "[m]aintaining the status quo could put the needs and welfare of a child at risk." Id. at 910. It further developed, "the denial of goal changes which are in the best interest of the child should not be sheltered, permanently, from independent review[.]" Id.
As it relates to the salient issue in the case at bar, the High Court continued, "[f]oster care may be the status quo, but to allow these children to languish in foster care not only defies common sense, but it is contradictory to the applicable law and to the best interest of the children. . . . Without appellate review, [a] scenario [where children grow up in an indefinite state of limbo] could be perpetuated, denying children much-needed permanency." Id at 910-11 (internal quotation marks and citation omitted). Hence, the Court concluded that, although the order denying CYS's request for a goal change maintained the status quo for the children in foster care, "an order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final when entered." Id. at 911. Thus, the High Court reversed our decision to quash the appeal.
Recently, in In Interest of N.M., 2018 PA Super 119 (filed May 4, 2018), this Court confronted the appealability of a juvenile court order that denied the parents' request to change their child's placement from foster care to kinship care with the paternal grandmother. In dicta, the N.M. Court cabined the application of H.S.W.C.-B. to goal change orders and purported to exclude from its scope orders altering foster placement. After quoting the relevant portion of the Supreme Court's discussion in H.S.W.C.-B., the N.M. Court simply stated, "[u]nlike the mother in H.S.W.C.-B., who requested a goal change, Parents here requested a placement change—from foster care to kinship care. Thus, we do not find H.S.W.C.-B. controlling." N.M., supra at * 7.
We observe that the N.M. Court omitted from its discussion any considerations regarding the risk of harm associated with failing to confront the order on appeal without delay, and it neglected to provide a cogent explanation regarding why an order relating to a child's safety in foster placement should be viewed differently from an order granting or denying a goal change when both orders affect the status quo. As set forth in H.S.W.C.-B., a dependency order is immediately reviewable if waiting for the entry of a final order will cause a child to languish in a potentially unsafe condition. The N.M. Court's analysis ignores this reality. More importantly, it espouses a distinction between goal change orders and placement orders without engaging in even a superficial inquiry regarding the effect of maintaining the status quo on the child's best interest, which is the paramount consideration in dependency proceedings.
Significantly, however, notwithstanding its discussion of H.S.W.C.-B., the N.M. Court proceeded to the merits of the order denying the parents' placement request and affirmed it. We reasoned that, since this Court had consolidated the parent's initial appeal with their subsequent appeal from the goal change order, it could review the orders collectively. Thus, the N.M. Court's brief analysis of our Supreme Court's holding in H.S.W.C.-B. is dicta insofar as it was not essential to its ultimate decision to uphold the merits of the order declining to alter the child's foster placement. As our High Court reiterated, "dicta is an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision." Castellani v. Scranton Times , L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015) (emphasis added) (quoting Valley Twp. v. City of Coatesville , 894 A.2d 885, 889 (Pa.Cmwlth. 2006)). As dicta has no precedential value, we are not bound the N.M. Court's brief rationale. Id. Accordingly, pursuant to H.S.W.C.-B., we review the merits of Mother's remaining arguments that challenge (1) the manner that the juvenile court conducted the February 2017 hearing; and (2) the court's decision to maintain the status quo with respect to the children's foster placement.
The N.M. Court's discussion concerning the reviewability of interlocutory dependency orders was inaccurate insofar as it referenced the termination of parental rights, rather than the goal change order, as the cornerstone of what it styled as the "permanency appeals." The Court plainly conflated goal change orders with decrees terminating parental rights. As we have previously explained, goal change proceedings under the Juvenile Act and the involuntary termination of parental rights under the Adoption Act are distinct actions asserted under the authority of different statutes and argued in different divisions of the Court of Common Pleas. In re Adoption of B.R.S., 11 A.3d 541, 545 n.3 (Pa.Super. 2011). Thus, dependency matters are not incorporated into termination of parental rights appeals by design, and this Court does not mechanically review a dependency record as part of an appeal from the termination of parental rights. Indeed, unless a concomitant goal change order is specifically appealed and consolidated with the termination of parental rights appeal, we do not address dependency matters in termination of parental rights cases.
We address collectively the first, third, and fourth issues that Mother raised in her questions presented for review, and after a thorough review of the certified record, the parties' briefs and the pertinent law, we affirm the February 21, 2017 orders on the basis of the cogent and well-reasoned opinion entered on May 24, 2017, by the distinguished Judge Joseph Fernandes. Specifically, the certified record supports the juvenile court's conclusion that "[t]he court heard testimonial evidence that overwhelmingly supported that the Children should not be removed from the care of the foster family." Trial Court Opinion, 5/24/17, at 11. Similarly, the record supports the juvenile court's determination that precluding Grandmother from attending the children's appointments in Mother's stead promotes the children's best interest. See id. at 12 ("In order to ensure that Mother took responsibility for attending the Children's appointments, [Grandmother] was ordered not to attend any further appointments for the Children.").
Mother's final issue relates to the juvenile court's recitation of fact in the "Factual and Procedure Background" section of the Rule 1925(a) opinion. As this issue necessarily was omitted from the Rule 1925(b) statement that Mother filed concomitant with the notices of appeal, it is unreasonable to find the argument waived in these circumstances. Nevertheless, Mother's complaint is unavailing. Stated plainly, regardless of any purported deficiencies with the juvenile court's recitation of the factual and procedural histories, our review of the certified record confirms that the evidence supports the court's decision to deny Mother's request to alter the children's foster placement. Thus, we do not disturb the orders denying the requested relief.
Thus, for all of the foregoing reasons, we quash the appeals listed at 1033, 1034, and 1035 EDA 2017, review the merits of the issues that relate to the appeals docketed at 931, 932, and 933 EDA 2017, and affirm the juvenile court's orders based upon Judge Fernandes's comprehensive opinion entered in these cases on May 24, 2017.
Orders affirmed.
Judge Nichols concurs in the result.
Judge Ransom did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/25/18
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