In the Int. of: K.W.-R., Appeal of: J.R. ( 2022 )

J-S09016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.W.-R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.R., MOTHER :
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: No. 1709 EDA 2021
Appeal from the Order Entered August 6, 2021,
in the Court of Common Pleas of Montgomery County,
Civil Division at No(s): CP-46-DP-0000108-2021.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 13, 2022
Appellant J.R. (Mother) appeals from the August 6, 2021 order issued
by the juvenile court, which “bifurcated” its adjudicatory dependency hearing
as to Mother’s two-year-old daughter, K.W.-R. (the Child). See 42 Pa.C.S.A.
§ 6351. The August 6 order was essentially a continuance order, which
scheduled the next date and outlined the interim responsibilities of Mother
until the adjudicatory hearing could be completed on August 20, 2021.
Specifically, the August 6 order stated that Mother shall cooperate with the
Montgomery County Office of Children and Youth (OCY) to schedule
supervised visitations between K.W.-R., and her older 8-year-old brother
N.D., who had been previously adjudicated dependent and placed in foster
care; the order also prohibited Mother from participating in these sibling visits.
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* Former Justice specially assigned to the Superior Court.
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Mother appealed the August 6 order, because she alleged that N.D. posed a
safety risk to K.W.-R. Because the August 6 order is interlocutory, we quash
Mother’s appeal.
The relevant factual and procedural history is as follows: The family
came to the attention of the OCY in May 2021. A friend of Mother’s had agreed
to watch the Children while Mother was incarcerated.1 But after three days,
the friend was unable to care for the Children, and without knowing when
Mother would be released, the friend alerted the local police department.
The police discovered that Mother’s home was unkempt. N.D. reported
that he did not have a bed and slept in the hallway. N.D. also disclosed that
Mother beat him with a belt and an extension cord. The juvenile court granted
OCY’s request for emergency protective custody, and the Children were placed
in foster care. The foster parents took the Children to the emergency room.
N.D. had multiple scars on his body, and K.W.-R. had a scab abrasion on her
right forearm.
OCY filed dependency petitions on June 1, 2021, and Mother was
released on bail on June 3. On June 5, the juvenile court held an adjudicatory
hearing as to both Children. The court adjudicated N.D. dependent and
ordered that he remain in foster care. As part of its adjudicatory order, the
court mandated that N.D. have supervised visits with K.W-R. However, the
court determined that OCY did not establish dependency regarding K.W.-R.’s
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1 The whereabouts of the Children’s respective fathers are unknown.
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case. The court dismissed her petition, and she was returned to Mother’s
care.
Over the next several weeks, Mother refused to cooperate with OCY.
She would not make herself available for a home inspection and declined to
sign releases. Meanwhile, N.D. disclosed that Mother had physically abused
him and K.W.-R. He claimed that Mother pushed K.W.-R. down the stairs,
that she made the Children climb into a dog cage in their backyard, that she
left him to care for K.W.-R., that she choked him while he slept, and that he
witnessed Mother hitting K.W.-R. Also during this time, Mother reportedly left
K.W.-R. unattended with a neighbor’s child on the front porch. K.W.-R. was
sprayed with Raid bug spray and had to go to the emergency room. Based
upon the ongoing concerns with Mother’s mental health and the safety risks
she posed, OCY decided to re-open its investigation and filed a second
dependency petition on K.W.-R.’s case.
On August 6, 2021, the juvenile court began its adjudicatory hearing.
The court heard testimony from the attending emergency room physician, who
examined the Children back in May. The doctor testified that she thought N.D.
was abused, and that since one child was abused there was potential for K.W.-
R. to be abused. The doctor also observed that N.D. was very protective of
his sister, and that K.W.-R. responds affectionately toward N.D. The juvenile
court also heard testimony from N.D.’s foster mother, who testified that he is
terrified of Mother. He had one virtual visit with Mother, but became so
scared, that he excused himself from the computer screen and hid under a
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table. The foster mother also reported that N.D. has not been able to see his
sister, despite requesting the same.
The adjudicatory hearing was not concluded on August 6, 2021. The
court issued an order scheduling a second date for August 20. 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.
See Order of Court, 8/6/20 at ¶¶ 1-3.
Mother filed a motion for reconsideration, wherein she requested that
the provision ordering sibling visits be rescinded, because N.D. had attempted
to have sex with K.W.-R. two years earlier when K.W.-R. was 14 months old.
Mother also claimed that N.D. was dangerous, that he killed two family pets,
and that he had used a kitchen knife to destroy his bed. The court denied
Mother’s motion for reconsideration, and Mother timely-filed this appeal.2, 3
Mother presents the following issues for our review:
1. Whether it was an abuse of discretion by the court to
order visits between the Children?
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2 Initially, Mother failed to comply with Pa.R.A.P.(a)(2)(i), obligating an
appellant to file a concise statement of errors complained of on appeal
contemporaneously with the notice of appeal. This Court issued a Rule to
Show Cause and ordered Mother to comply. Mother complied, and we
discharged our Rule.
3 The court resumed the hearing on August 20, 2021, and subsequently
adjudicated K.W.-R. dependent. The court kept K.W.-R. in Mother’s custody.
We observe that Mother has filed additional appeals, which have been
consolidated and set before a different panel of this Court. See Int. of N.D.,
(195 WDA 2022); see also In Int. of K.W.-R., (196 EDA 2022).
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2. Whether the Court had jurisdiction or power to order
said visits?
3. Whether it was an error, unconstitutional, and an
abuse of discretion for the court to order that Mother
shall not participate or be present during visits
between K.W.-R, female age 2 and N.D., male age
[8]?
Mother’s Brief at 8 (capitalization adjusted).4
Before we reach the merits of Mother’s appeal, we must decide whether
this matter is properly before this Court. For an 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. 313.” Interest of J.M., 219 A.3d 645, 650
(Pa. Super. 2019).
Anticipating this jurisdictional question, Mother contends that the order
is final, or in the alternative, that the order is still reviewable under the
collateral order doctrine. To argue that the August 6 order was final, Mother
relies on our Supreme Court’s decision In re H.S.W.C.-B., 836 A.2d 908, 911
(Pa. 2003). There, the issue was whether the denial of goal-change and
termination petitions constituted a final order, from which the local child and
youth services agency could directly appeal. The Court held that the denial
was a final order, even though the status quo did not change. In reaching its
decision, the Supreme Court analogized the dependency proceedings with
custody proceedings. The Court reasoned that, when a parent petitions for
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4 Rather astonishingly, neither OCY, nor the guardian ad litem for K.W.-R.
submitted a brief or otherwise responded to Mother’s appeal.
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custody modification, and that petition is denied, the denial also constitutes a
final order even though the status quo did not change.
Mother relies on H.S.W.C.-B. for one excerpt. When the Supreme Court
compared its dependency case with a custody action, the Court stated that
“all orders dealing with custody or visitation, with the exception of
enforcement or contempt proceedings are final when entered.” Id, 836 A.2d
at 911. Instantly, Mother extrapolates this quote to mean that any order that
references custody or visitation is per se final.
We find Mother’s argument to be rather disingenuous, given that Mother
also relies on J.M., supra, which explicitly rejected the very notion Mother
seeks to advance. In J.M., we explained:
When examined closely, the Supreme Court's discussion [in
H.S.W.C.-B.] 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.
J.M., 219 A.3d at 653-54
We concluded that the Supreme Court’s statement was a mere
observation and interpretation of the law pursuant to the Child Custody Act,
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not a binding prospective holding regarding all orders dealing with visitation
pursuant to the Juvenile Act. Id. at 654.
To put it charitably, Mother’s reliance on H.S.W.C.-B. is misplaced.
Here, the August 6 order merely continued the adjudicatory hearing for two
weeks. The order included a provision obligating Mother to facilitate the
sibling visitation in the interim. In no way did the August 6 order “dipose[] of
all claims and of all parties.” See Pa.R.A.P. 341(b) (relating to final orders).
Mother’s argument for appealability does not end there. She also
contends that we have jurisdiction to review the matter because the August 6
order was a collateral order. We have explained:
[t]he “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.
J.M., 219 A.3d at 655 (citation omitted).
In J.M., we thoroughly addressed the complicated task of determining
whether an order is “separable from and collateral to the main cause of action”
under the first prong of the collateral order doctrine. See id. at 655-60.
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Arguably, the issue of sibling visitation is separable from the issue of K.W.-
R.’s dependency. But we need not rule definitively under the first prong,
because Mother’s argument fails the second and third prongs.
The next question is whether the right involved is too important to be
denied review. In J.M., we observed that a parent’s “constitutionally
protected liberty interest” in the custody, care, and control of her child is “an
important right” for purposes of the collateral order doctrine. Id. at 660. But
the mere implication of this parental right does not automatically render the
right too important to be denied review. For instance, when a child has been
adjudicated dependent, a parent does not possess an unfettered right to
dictate the terms of visitation. Id. at 660-61. In J.M., the juvenile court
placed certain restrictions on the mother’s ability to visit the child. Although
the court’s restrictions implicated the mother’s parental rights, we did not
conclude that the mother’s right was too important to be denied review. Id.
This case is distinguishable from J.M. in some regard. Here, when the
juvenile court issued its August 6 order, K.W.-R. was neither adjudicated
dependent nor the subject of an emergency custody order. Thus, unlike the
case in J.M., Mother’s rights to K.W.-R. remained unabridged. Nevertheless,
we must also recognize the context surrounding the juvenile court’s August 6
order to determine whether the right is too important to be denied review.
Mother argues that a visitation would be contrary to K.W.-R.’s best
interests because N.D. posed safety risks to K.W.-R. Not only did the court
hear testimony to defeat this allegation, the August 6 order also ensured that
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any sibling visitation would be supervised. And given that the Court would
resume the adjudicatory hearing two weeks later, the August 6 order likely
anticipated that there would only be one or two sibling visits during the
interim. At that point, the court would revisit not only the visitation issue, but
the larger question of K.W.-R.’s best interests.5 Accordingly, at this juncture,
we conclude the right involved is not too important to be denied review.
Turning to the third prong, whether the claimed right would be
irreparably lost if review was postponed, we reiterate that the August 6 order
was in effect for merely two weeks and that any sibling visitation would be
supervised to ensure safety. The issue would also be addressed again on
August 20, and regularly during the Children’s subsequent permanency review
hearings. Mother’s challenge would not be irreparably lost. Thus, we conclude
that even if the first prong of the collateral order doctrine was met, the last
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5We also note that when the juvenile court ordered sibling visitation, the court
evidently meant to enforce its prior visitation directives from N.D.’s case. The
court had issued previous orders on N.D.’s docket in accordance with 42
PA.C.S.A. § 6351(b.1), (f)(10). Under Section 6351, the juvenile court was
required to ensure sibling visitation occurs no less than twice a month, except
when visitation would be contrary to the safety or well-being of the children.
Of course, Mother argues in her second appellate issue that the juvenile court
lacked authority to order visitation on K.W.-R.’s case, because this Child had
yet to be adjudicated dependent. Given our disposition, we do not reach the
merits of this issue. We mention it here only to explain that there was a basis
for the court’s August 6 order.
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two prongs are not met at this time. The August 6 was not a collateral order
under Pa.R.A.P. 313.6
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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6 Additionally, we also observe that because the August 6 order was a two-
week interim order, which has since been superseded by the August 20 order
adjudicating K.W.-R. dependent, we conclude that Mother’s challenge to the
August 6 order is now moot. See E.B. v. D.B., 209 A.3d 451, 461 (Pa. Super.
2019) (holding that the provisions of an interim custody order have been
rendered moot by the issuance of the final custody order); see also C.H.L. v.
W.D.L., 214 A.3d 1272, 1279-80 (Pa. Super. 2019) (holding that the
provisions of a temporary Protection From Abuse Order were rendered moot
by the issuance of a final Protection From Abuse Order). Put another way,
even if we agreed with Mother that the court erred, we could not issue an
order that would have any legal force of effect. See In re D.A., 801 A.2d 614,
616 (Pa. Super. 2002) (“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.”).
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