In the Int. of: E.C., Appeal of: J.A.C., Father ( 2021 )

J-S10002-21
2021 PA Super 88IN THE INT. OF: E.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.A.C., FATHER :
:
:
:
:
: No. 1289 MDA 2020
Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Northumberland County Juvenile
Division at No(s): CP-49-DP-0000088-2018
IN THE INT. OF: L.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.A.C., FATHER :
:
:
:
:
: No. 1290 MDA 2020
Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Northumberland County
Juvenile Division at No(s): CP-49-DP-0000089-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
OPINION BY MURRAY, J.: FILED: MAY 6, 2021
J.A.C. (Father) appeals from the September 15, 2020 permanency
review orders which maintained the foster placement of his sons, E.C., born
in September of 2017, and L.C., born in July of 2016 (collectively, the
Children). After careful review, we quash as interlocutory.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10002-21
The Children were adjudicated dependent on August 3, 2018.1
Northumberland County Children and Youth Services (CYS) initially placed the
Children in kinship care. However, the first and second foster placements
asked that the Children be removed due to their behaviors and/or special
needs, and at the request of CYS, the court changed the Children’s foster
placements by orders dated August 24, 2018, September 13, 2018, and
January 10, 2019.
Father and the Children’s mother (Mother) have a history of domestic
violence and drug and alcohol abuse. Juvenile Court Opinion, 11/25/20, at 1.
For example, CYS substantiated reports Father “hit E.C. leaving scratches on
his neck and had struck . . . L.C. with a hammer. Additionally, Father had
taken a can of gasoline into the bedroom and Mother was consuming alcohol.”
Id. The court stated:
Perhaps even more concerning was the referral that Father had
threatened to beat Mother and the child over the head with a
Playstation. When agency personnel discussed this with Father,
he told them he was going to “break her f------ face”, [and] “f---
-- beat the s--- out of her[.]” [Father also stated,] “diesel covers
the evidence” and last, but not least, “wife needs smacked the f-
-- up.”
Id. at 1-2.
____________________________________________
1 The Honorable Hugh A. Jones has presided throughout the dependency
proceedings.
-2-
J-S10002-21
The court established reunification as the Children’s permanency goal,
with adoption as the concurrent goal. The court ordered, in part, that Father
and Mother “enroll in and successfully complete the following parenting
classes: Building Your Family, Active Parenting, SAFE ACT parenting,
Discipline Strategies and Toddler Basics.” Order of Adjudication and
Disposition, 8/3/18, at 4, ¶ 8. The court further ordered Father to submit to
random drug testing, and both Father and Mother to successfully complete
individual counseling to address their domestic violence and drug and alcohol
issues. Id. at ¶¶ 11-12.
Permanency review hearings were conducted on January 10, 2019, July
11, 2019, October 7, 2019, January 10, 2020, March 12, 2020, June 11, 2020,
and September 10, 2020. On July 11, 2019, the court found Father to be in
moderate compliance with his permanency plan. In the June 11, 2020
permanency review orders, the court stated that Father was “in moderate
compliance with [the] permanency plan, in that [he] is making progress and
needs to continue to follow through with the recommended services in order
to assure a successful reunification.” Order, 6/11/20, at 1. The June 11, 2020
permanency orders maintained the Children’s permanency and concurrent
placement goals and their foster placement. In addition, the June 11, 2020
orders provided Father and Mother with “no less than weekly supervised
visitation with the frequency and level of supervision to be altered at the
discretion of the Agency. The Agency will develop a 60 day transition plan to
-3-
J-S10002-21
commence as soon as possible.” Id. at 3. The court scheduled the next
permanency review hearing for September 10, 2020.
On August 18, 2020, Father filed a “petition to return legal custody.” 2
Father averred that after the June 11, 2020 hearing, “the Agency provided the
parents a transition home plan that was not within the sixty day order.”
Petition, 8/18/20, at ¶ 6. Father stated, “Sixty days have elapsed and physical
custody of the minor children has not been returned to the natural parents.”
Id. at ¶ 7. Father requested the court return physical custody of the Children
to him and Mother. Id. at ¶ 9.
The court considered Father’s request for physical custody of the
Children at the next permanency review hearing, which was held by
videoconference on September 10, 2020. See N.T., 9/10/20, at 6-7. Father
and Mother were present, along with their respective counsel. The Children
were represented by their guardian ad litem (GAL).
CYS presented the testimony of caseworker Melissa Eisenhour, who
stated:
[W]e started a transition home after the last hearing. They began
with long days, and then we went to a couple single overnights.
And then we have been doing Friday morning to Monday morning,
and Wednesday all day for the last couple weeks. . . .
Every time somebody from our agency goes out to the home
things appeared okay. However, we have gotten several referrals
by ChildLine, and we’ve had some concerns, and therefore the
[Children] have not completely gone home yet.
____________________________________________
2 Despite the wording, Father sought physical, not legal custody.
-4-
J-S10002-21
N.T., 9/10/20, 4-5. Ms. Eisenhour described four referrals between July 12
and August 7, 2020 which alleged incidents involving domestic violence, the
Children’s safety, and Father’s illegal marijuana use. Id. at 7-12.
At the conclusion of the evidence, the court stated: “I commend the
parents for they have in fact made strides. But I am greatly concerned about
the marijuana issue3. . . . Then the other issues of domestic violence I don’t
think they’ve totally left, and therefore I’m going to approve the agency’s
recommendation not to return the children at this time.” N.T., 9/10/20, at
33.
By orders dated September 10, 2020 and docketed September 15,
2020, the court maintained the Children’s permanency goal of reunification
and the concurrent goal of adoption. The court again found Father in
moderate compliance with his permanency plan; the orders specified Father
“needs to continue to follow through with the recommended services in order
to assure a successful reunification.” Permanency Review Order, 9/10/20, at
2. Thus, the court maintained legal and physical custody of the Children with
CYS, with the Children to remain in foster placement. Id. at 3. Regarding
visitation, the court directed Father and Mother “be provided no less than
weekly supervised visitation with the frequency and level of supervision to be
____________________________________________
3 The court expressed “concern over the fact that [C]hildren were being
exposed to smoke whether tobacco or marijuana and belie[f] this is not
appropriate.” Juvenile Court Opinion, 11/25/20, at 3-4.
-5-
J-S10002-21
altered at the discretion of the Agency. The Agency will continue to follow the
transition plan unless deemed unsafe.” Id. The court scheduled the next
permanency review hearing for December 3, 2020.
On September 28, 2020, Father filed notices of appeal and concise
statements of errors complained of an appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), which this Court consolidated sua sponte. On appeal,
Father presents the following question:
Whether the [Juvenile] Court erred/abused its discretion in
determining that physical custody of the minor children should not
be return to the natural parents?
Father’s Brief at 16.
Both CYS and the GAL assert Father’s appeal is interlocutory because
the September 15, 2020 orders are not final or collateral. CYS argues:
There is no appeal of right from the Permanency Order entered by
the Court in this matter pursuant to either Pa.R.A.P. 311 or
Pa.R.A.P. 313. The ruling on a decision as to whether or not
children should be returned home to a parent cannot be a final
order subject to appeal. To allow such an appeal would allow
appeals following every permanency review hearing where
reunification is the goal.
***
In all dependency matters where the parents oppose placement,
it follows that every permanency order would be a final order.
This would mean that an appeal could be taken from every review
and would essentially tie up cases in the appellate courts.
Allowing such an appeal would also result in the need for every
attorney to file an appeal [from orders] to remain in placement;
otherwise, a failure to appeal would be considered waiving the
issue.
CYS Brief at 3-4.
-6-
J-S10002-21
The GAL additionally asserts:
Father’s claims will not be irreparably lost if postponed, as Father
may make the same request to return his children to him at each
and every hearing yet to come.
GAL Brief at 4.4
CYS and the GAL cite In re N.M., where we found a permanency review
order denying the parents’ request to remove their child from foster care and
place her in kinship care to be interlocutory and unappealable. We reiterated
“we lack jurisdiction over an unappealable order, [and] it is incumbent on us
to determine, sua sponte when necessary, whether the appeal is taken from
an appealable order.” In re N.M., 186 A.3d 998, 1006 (Pa. Super. 2018)
(citing Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)). We
explained:
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). Generally, a final order is one
that disposes of all claims and all parties. See Pa.R.A.P. 341(b).
Moreover, with regard to dependency matters, “[a]n order
granting or denying a status change, as well as an order
terminating or preserving parental rights, shall be deemed final
when entered.” In re H.S.W.C.-B., 836 A.2d 908, 910 (Pa.
2003).
Id.5
____________________________________________
4 Father has not responded with a reply brief.
5“In order to be appealable, the order must be: (1) a final order, Pa.R.A.P.
341-42; (2) an interlocutory order appealable by right or permission, 42
Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P.
-7-
J-S10002-21
We also emphasized that “the trial court did not grant or deny a status
change; the goal remained reunification throughout and [the p]arents never
asked for it to be changed.” In re N.M., 186 A.3d at 1006. As such, we
concluded our Supreme Court’s decision in In re H.S.W.C.-B. was not
controlling because the mother in that case had requested a goal change. Id.
at 1007.
Following In re N.M., this Court in In re J.M. quashed as interlocutory
and unappealable permanency orders prohibiting visits at the mother’s home
if the mother or children tested positive for drugs. Referencing In re
H.S.W.C.-B., we stated:
The orders at issue in H.S.W.C.-B. denied a child welfare agency’s
petitions to terminate parental rights and to change the
permanency goal to adoption. This Court had quashed the
agency’s appeal because the order denying the petitions
maintained the status quo. The Supreme Court rejected the
holding of our Court, reasoning that “[m]aintaining the status
quo could put the needs and welfare of a child at risk” because if
the same trial judge repeatedly and erroneously denies requests
to change the permanency goal, the “improper order” would
always be shielded from appellate review. Id. at 910-11. The
Court further reasoned that
[a]ll orders dealing with custody or visitation, with the
exception of enforcement or contempt proceedings, are
final when entered. Pa.R.C.P. 1915.10. Such an order
may be modified at any time, provided the modification is
in the best interest of the child. See 23 Pa.C.S. §
5310; Karis v. Karis, 544 A.2d 1328, 1331-32. If denial
of a custody modification petition is final when entered, the
____________________________________________
313.” In re J.M., 219 A.3d 645, 650 (Pa. Super. 2019) (footnote omitted).
As to the second prong, the orders from which Father appeals in this case are
not appealable by right because Father did not seek permission to appeal.
-8-
J-S10002-21
denial of a proposed goal change or petition for termination
of parental rights should logically be deemed final as well.
... We now adopt the recent pronouncement in In re
A.L.D., [797 A.2d 326 (Pa. Super. 2002)], where the
Superior Court declared all orders in termination matters
final. An order granting or denying a status change, as
well as an order terminating or preserving parental rights,
shall be deemed final when entered. See id.[In re H.S.W.C.-B., 836 A.2d] at 911.
In re J.M., 219 A.3d at 652. Pertinently, we observed, “Although our
Supreme Court’s statement regarding the finality of visitation orders is broad
and sweeping, in context, we think that the Court merely was referring to
visitation orders entered under the Child Custody Act, 23 Pa.C.S. §§ 5321-
5340, as a point of comparison.” Id. at 653.
When examined closely, the Supreme Court’s discussion indicates
that instead of making a new sweeping pronouncement with its
statement that all orders dealing with custody and visitation
orders are final when entered, the Court appeared simply to be
making a correlation between custody actions pursuant to the
Child Custody Act, dependency actions pursuant to the Juvenile
Act, and termination of parental rights matters pursuant to the
Adoption Act. Indeed, immediately after citing law relating to
custody actions pursuant to the Child Custody Act, the H.S.W.C-
B. Court stated, “[i]f [a] denial of a custody modification petition
is final when entered, the denial of a proposed goal change or
petition for termination of parental rights should logically be
deemed final as well.” H.S.W.C-B., 836 A.2d at 911.
Id. at 653-654 (emphasis in original). Therefore, we determined the
“statement in H.S.W.C.-B. regarding the finality of ‘orders dealing with . . .
visitation’ was a mere observation and interpretation of existing law pursuant
to the Child Custody Act, not a binding prospective holding regarding orders
-9-
J-S10002-21
dealing with visitation pursuant to the Juvenile Act.” Id. at 654. We
reasoned:
All permanency review orders broadly deal with custody and
visitation. See 42 Pa.C.S. § 6351(e)-(f). If the H.S.W.C.-B.
Court intended to make a sweeping pronouncement regarding the
finality of all orders dealing with custody or visitation in all
contexts, it could have simply held that all orders entered
pursuant to the Juvenile Act are appealable, not only ones that
grant or deny a status change.
Id. (footnote omitted). We thus concluded that “placing location restrictions
on [the m]other’s visits with [the c]hildren until all were drug-free . . . is not
a ‘status change’ within the meaning of H.S.W.C.-B.” Id.
Instantly, the permanency review orders from which Father appeals do
not grant or deny a goal change, and the goal of reunification with the
concurrent goal of adoption remained unchanged. No party sought a goal
change before or during the September 10, 2020 hearing, and the court did
not address goal change. Rather, the court heard evidence about what
transpired in the three months since the prior review hearing on June 11,
2020, and addressed Father’s request to change the Children’s placement
from foster care to Mother and Father. Consistent with In re J.M., we find
the orders denying Father’s request do not constitute a “status change” as
contemplated in H.S.W.C.-B. Further, the orders do not dispose of all claims
and all parties. Accordingly, the orders are not final orders as set forth in
Pa.R.A.P. 341.
- 10 -
J-S10002-21
Likewise, the permanency review orders are not collateral orders under
Pa.R.A.P. 313(b). This Court explained:
The “collateral order doctrine” exists as an exception to the finality
rule and permits immediate appeal as of right from an otherwise
interlocutory order where an appellant demonstrates that the
order appealed from meets the following elements: (1) it is
separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the
question presented is such that if review is postponed until final
judgment in the case, the claimed right will be irreparably
lost. See Pa.R.A.P. 313.
Our Supreme Court has directed that Rule 313 be
interpreted narrowly so as not to swallow the general rule
that only final orders are appealable as of right. To invoke
the collateral order doctrine, each of the three prongs identified in
the rule’s definition must be clearly satisfied.
In re W.H., 25 A.3d 330, 335 (Pa. Super. 2011) (some citations
omitted).
In re J.M., 219 A.3d at 655 (emphasis added).
In In re N.M., we determined the permanency order was not separable
from or collateral to the main cause of action where the trial court denied the
parents’ request to change the placement of the child and the placement
remained the same. We also determined that review of the decision would
not be irreparably lost if we postponed it. Id. However, because the case
also involved the parents’ appeal from the court’s termination of their parental
rights, we found “the entire record . . . is now reviewable.” In re N.M., 186
A.3d at 1008. We stated:
. . . because the trial court has terminated Parents’ parental rights
to N.M., the entire record from the permanency hearings,
including that from the December 8, 2016 hearing, is now
- 11 -
J-S10002-21
reviewable on appeal from the court’s termination
decrees. See In the Interest of A.L.D., supra (all decrees in
termination of parental rights cases are considered final,
appealable orders). Procedurally, the entry of the orders
terminating Parents’ rights to N.M. acts to finalize the
interlocutory permanency review orders.
Id. (emphasis added).
In In re J.M., we determined that permanency orders did not constitute
collateral orders where the second and third prongs of the collateral order test
were not met. In re J.M., 219 A.3d at 660-61 (“Because [c]hildren have been
adjudicated dependent and [m]other does not have custody of them, [m]other
does not possess an unfettered right to visit with [c]hildren under any
conditions,” and mother’s right to home visits in general were not irreparably
lost.).
Consistent with the foregoing, we find the September 15, 2020
permanency orders are not separable from or collateral to the main cause of
action, where the court denied Father’s request for a change in the Children’s
placement and their foster placement remained the same, and Father did not
“irreparably lose” review.
For the reasons discussed above, we agree with CYS and the GAL that
the permanency review orders are interlocutory and unappealable.
Appeal quashed.
- 12 -
J-S10002-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/06/2021
- 13 -
Circulated 04/22/2021 12:24 PM
IN THE INTEREST OF:
JUVENILE COURT DIVISION
L.C., aminor child
Appeal of J.A.C., Natural Father
NO: CP-49-DP-0000089- 2018
1290 MDA 2020
1925 OPINION
Appellant, Natural Father, is appealing the decision of the Court keeping custody of the
children with Northumberland County Children and Youth rather that returning them to father.
Northumberland County Children and Youth Services first began receiving referrals
regarding the family in 2017. Concerns were domestic violence and drug and alcohol abuse.
The agency received referrals in April 2018, concerning multiple text messages from
natural mother that she and father had aphysical altercation leaving mother bruised. There were
also allegations that Father had hit E.C. leaving scratches on his neck and had struck the Minor
Child L.C. with ahammer. Additionally, Father had taken acan of gasoline into the bedroom
and Mother was consuming alcohol. These reports were substantiated by Children and Youth
Services.
There were several subsequent referrals in June and July of 2018. Among the numerous
concerns were that Mother was not mixing formula properly, that the children were experiencing
developmental delays and the Mother was uncooperative with areferral to pediatric neurology.
Perhaps even more concerning was the referral that Father had threatened to beat the
Mother and the child over the head with aPlaystation. When agency personnel discussed this
with Father he told them he was going to "break her fucking face", "fuckin beat the shit out of
her" and also "diesel covers the evidence" and last but not least "wife needs smacked the fuck
up"
Mother sought and was granted aProtection from Abuse Order which she decided to
ignore and allow Father continuing contact.
Due to the numerous serious concerns, asafety plan was implemented pending ahearing
on the dependency petition. The children were adjudicated dependent and custody placed with
Northumberland County Children and Youth Services.
Regular permanency and Placement Review hearings were held. Father was ordered to
participate and complete various programs, including but not limited to, "Building Your Family"
and "Active Parenting and Discipline Strategies." Parents were to regularly visit with the
children, maintain housing and employment and submit to random drug testing. Additionally,
parents were to enroll in and complete counselling to address the domestic violence issues and
father was specifically required to attend his psychiatric appointments and remain medication
compliant.
A permanency review hearing and ahearing on father's Motion to return the children was
held September 10, 2020. At the conclusion of the hearing, the Court followed the Agency's
recommendation not to return the children to the parents' home. Counsel for Father filed the
instant appeal. The sole issue raised by Counsel is whether the Court abused its discretion in
determining that physical custody of the minor children should not be returned to the parents.
The standard for review of in dependency cases requires the appellate courts to review for
an abuse of discretion. Findings of facts and credibility determinations of the trial court are to be
accepted by the appellate court if supported by the record. However, the appellate court is not
required to accept the lower court's inferences or conclusions of law. See In re R.J.T. 608 Pa. 9,
9A.3d 1179 (Pa. 2010).
Melissa Eisenhour, permanency caseworker for Northumberland County Children and
Youth services was the sole witness at the hearing. She testified that they had started to
transition the children home after the last hearing. (N.T. Permanency Review Sept. 10, 2020 Pg.
4). She testified that there were several referrals from Child Line (N.T. Permanency Review
Sept. 10, 202 Pg. Slines 2-3). Ms. Eisenhour testified the first referral came July 12 th .This was
that the minor children had burns from handling fireworks at their parents' home. These
allegations were substantiated by Children and Youth.
A second referral came on July 22" dthat mother and father were in an argument and
father pushed mother to the ground. (N.T. Permanency Review Pg. 9, lines 9-16). The case
worker verified that there was an argument by talking to the minor child. During the visit to the
home to speak with the child the caseworker noticed astrong smell of marijuana in the home.
(N.T. Permanency Review Pg. 10, lines 13-17) The parents tried to say that the downstairs
neighbor was the source of the smell. The Court notes that on afollow up visit on August 7,
2020 the caseworker again noticed the smell of burnt marijuana. Father was tested and was
positive for THC at that time. The court has expressed it's concern over the fact that children
were being exposed to smoke whether tobacco or marijuana and believes this is not appropriate.
Additionally, given father's past penchant for domestic abuse and the fact the child reported such
abuse during the reunification period the court believes the family needs some additional time to
work on its issues.
Based upon the factors and the court's familiarity with the case, and the father's history
of alleged drug abuse and domestic violence the court did not approve the children's return to the
parents' home.
While we recognize that this case could be considered aclose call our knowledge of the
history of this case and the issues of the family led us to conclude to continue reunification but
not send the children home at the September 10, 2020 hearing. This sentiment has been noted by
our Supreme Court as follows:
"This case epitomizes why appellate courts must employ an abuse of
discretion standard of review, as we are not in aposition to make the close calls
based on fact-specific determinations. Not only are our trial judges observing
the parties during the hearing, but usually, as in this case, they have presided
over several other hearings with the same parties and have alongitudinal
understanding of the case and the best interests of the individual child involved.
Thus, we must defer to the trial judges who see and hear the parties and can
determine the credibility to be placed on each witness and, premised thereon,
gauge the likelihood of the success of the current permanency plan. Even if an
appellate court would have made adifferent conclusion based on the cold record,
we are not in aposition to reweigh the evidence and the credibility determinations
of the trial court." In re R.J.T. 608 Pa. 9,27, 9A.3d 1179, 1190 (Pa. 2010).
BY THE COURT:
V i' \1--1
I
Hugh A. Jones, JuVge
Dated: 11 I
-Z-4 Izo
cc: Ann Targonski, Esquire
Michael O'Donnell, Esquire
Justin Abel, Esquire
Cindy Kerstetter, Esquire
Children & Youth Services
Court