In the Interest of: E.B., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.B., A MINOR :
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: No. 1182 EDA 2016
Appeal from the Order Entered February 24, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000319-2015
BEFORE: GANTMAN, P.J., MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 07, 2016
E.B. (“Child”), through her child advocate/guardian ad litem, appeals
from the order entered February 24, 2016, in the Philadelphia County Court
of Common Pleas. This order, in part, vacated the appointment of the Court
Appointed Special Advocate (“CASA”) and directed no contact with potential
adoptive parents, the Ls, and that their home no longer be considered as a
placement resource until further order of court.1 In addition, in vacating the
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1
This order maintained Child’s placement in general foster care and
the goal of reunification, and provided for visitation between Child and her
sibling. In addition, the court instructed that the case not be transferred
from the Department of Human Services (“DHS’”) to the Department of
Public Welfare (“DPW”), Child not to be taken out of the jurisdiction, the
Interstate Compact on the Placement of Children (“ICPC”) process be
discontinued, and Adoptions from the Heart no longer be involved. DHS was
further ordered to conduct a home evaluation of Child’s former kinship
provider, C.G., within thirty days. Permanency Review Order, 2/24/16.
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CASA appointment, the court declined to allow the CASA to be called as a
witness and denied admission of the CASA report. After review, we quash
Child’s appeal.
The trial court summarized the relevant procedural and factual history
as follows:
[In October, 2014], [DHS] received a General Protective
Services Report (“GPS”) alleging that when E.O. (“mother”) gave
birth to E.B., E.B. tested positive for methadone and opiates;
that E.B. had a high Neonatal Abstinence Scoring and had to be
admitted to the Neonatal Intensive Care Unit (“NICU”) of a
hospital. Further, it was alleged that mother was unaware that
she was pregnant until August 2014 and had been using heroin
throughout the summer. The report was substantiated.
On the aforementioned date, when DHS visited Einstein
Medical Center Montgomery (“hospital”), where E.B. was born,
DHS learned it would still be a few more weeks before E.B. could
be discharged.
It was further reported to DHS that mother had been
previously arrested on September 8, 2014, and was, at the time
of the GPS report, incarcerated at the Montgomery County
Correctional Facility (“correctional facility”) for violating the
terms of her probation; that she was scheduled for release from
that facility some time in November 2014; that upon her release,
mother was to reside with M.B. (“father”), who was to provide
for E.B. until mother’s release.
On October 25, 2014, mother was discharged [from] the
hospital and transported back to the correctional facility.
Subsequently, on October 29, 2014, per a telephone
conversation with the hospital staff, DHS learned that E.B. had
been moved to NICU; that hospital staff had administered
morphine to E.B. to alleviate the symptoms of her withdrawal;
and that there was no anticipated date of discharge for E.B.
Subsequently, DHS learned that father was the perpetrator
in a substantiated GPS report and that father had numerous
arrests for driving under the influence.
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On October 29, 2014, DHS telephoned father to inform
him that he would be unable to care for E.B. until DHS
implemented the appropriate services in his home. Father
agreed to accept services and provided DHS with the name of
[C.G.], a paternal cousin, as a possible placement source for E.B.
On November 5, 2014, DHS learned that E.B. would be
ready for discharge from the hospital the following week.
On November 6, 2014, DHS visited [C.G.]’s home and
conducted a successful home assessment and obtained the
appropriate clearances.
On November 16, 2014, E.B. was discharged from the
hospital to [C.G.]’s care with a safety plan implemented by DHS.
On December 4, 2014, DHS implemented In-Home
services through Community Umbrella Agency (“CUA”) and
Catholic Social Services.
On December 11, 2014, a Family Support Conference was
held where father disclosed that he had a history of taking pills;
that he drank excessively; that he was currently attending
meeting[s] to address his drinking problems; and that he did not
believe his drinking would interfere with his ability to care for
E.B.
On January 14, 2015, mother informed DHS via telephone
that she was released from the correctional facility two days
prior; that she was currently on probation; and that she was
residing with father. At that time, DHS informed mother that
she needed to complete parent training and drug and alcohol
treatment.
Thereafter, on February 6, 2015, DHS filed a dependency
petition on behalf of E.B., based on mother and father’s present
inability to care for E.B.
On February 25, 2015, a pre-hearing conference was held
and all parties agreed to adjudicate the child dependent based
on present inability and that the commitment to DHS should
stand.
Pursuant to the adjudication of E.B., a kinship care referral
was made for [C.G.] and supervised, liberal visits were to be
held at her home, supervised by her and observed by CUA once
a month.
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The matter was then listed on a regular basis before
judges of the Philadelphia Court of Common Pleas – Family Court
Division- Juvenile Branch pursuant to section 6351 of the
Juvenile Act, 42 Pa.C.S. § 6351, and evaluated for the purpose
of reviewing the permanency plan for the child.
Thereafter, on September 16, 2015, a permanency review
hearing was held before the Honorable Vincent L. Johnson.
Judge Johnson ordered that [the Ls] be explored as a pre-
adoptive resource for E.B., and counsel for mother and father to
explore signing voluntary relinquishment forms with them.
On October 27, 2015, a Petition for Order to Transfer Legal
Custody of Child From DHS to DPW Licensed Child Placement
Agency, filed by parents, was heard before the Honorable
Vincent L. Johnson.
On November 3, 2015, DHS filed its Answer to Parents’
Petition For Order To Transfer Legal Custody Of Child From DHS
T[o] DPW-Licensed Child Placement Agency.
Subsequently, on November 4, 2015, a permanency
review hearing was held before Judge Johnson who ordered that
the [Ls] have supervised visits twice a month at the agency and
that the [ICPC] be processed forthwith.
Then, on December 16, 2015, a permanency review
hearing was held before Judge Johnson who ordered that the
ICPC be processed forthwith. Judge Johnson further ordered
that New Jersey Department of Youth and Family Services
complete a home visit for the [Ls]. It was further ordered that if
the [Ls’] home was cleared and all parties were in agreement,
E.B. would go on an extended visit to the [Ls’] home in New
Jersey.[2]
On January 29, 2016, a permanency review hearing was
held before the Honorable Lyris Younge who found that CUA had
not made reasonable efforts to finalize E.B.’s permanency plan.
Judge Younge ordered the removal of CUA from the case and
that the extended visit with the [Ls] should be terminated; that
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2
On December 24, 2015, the Honorable Joseph Fernandes signed an
emergency order granting a 30-day extended visit with the Ls.
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E.B. should not be brought to New Jersey and there be no
further visits with the [Ls] at this time. Judge Younge further
ordered that the ICPC process could continue.[3]
On February 24, 2016, a contested permanency review
hearing was held before Judge Younge who ordered that the
ICPC be discontinued immediately; that the [Ls] have no further
contact with E.B.; that Adoptions from the Heart, the adoption
agency representing the [Ls], cease all involvement in this case;
and the home of the [Ls] was to be no longer considered as a
placement for E.B., until further order of the court.[4]
Corrected Opinion, 5/3/16, at 1-5 (unpaginated) (“1925(a) Op.”).
On March 28, 2016, Child, through her child advocate/guardian ad
litem, filed a notice of appeal,5 along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Child raises the following issues for our review:
1. Did the Juvenile Court err in refusing to permit the child
through her child advocate/guardian ad litem, and Court
Appointed Special Advocate to present evidence regarding her
permanency plan and best interests, thereby denying her due
process as well as failing to ascertain to the fullest extent
possible the views of the child as required by, inter alia, 42
[Pa.C.S. § 6351(e)(1)]?
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3
On February 5, 2016, DHS filed a motion for reconsideration of the
court’s January 29, 2016 order. The trial court denied this motion without
hearing by order dated February 5, 2016.
4
The trial court also removed the CASA from the case.
5
Thirty days from entry of the February 24, 2016 order was Friday,
March 25, 2016. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within
thirty days after the entry of the order from which the appeal is taken).
However, as Friday, March 25, 2016, was Good Friday, and the Philadelphia
County Court of Common Pleas was closed, Child filed this appeal on
Monday, March 28, 2016.
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2. Did the Juvenile Court err in vacating the Court Appointed
Special Advocate (CASA)?
3. Did the Juvenile Court err in refusing to allow the February
24, 2016 CASA report to be entered into the record despite
the Court, on the record, having announced that she had read
the report prior to the hearing?
4. Was it an abuse of judicial discretion for the lower Court, sua
sponte, without regard for the permanency plan approved by
her predecessor judge, and without permitting the Child
Advocate/Guardian Ad Litem to present evidence or testimony
on behalf of the child and the child’s needs to Order: the
removal of CASA; that the child cease all contact with kinship
and adoptive resources Mr. & Mrs. L.; that the ICPC process
be discontinued; and that Mr. & Mrs. L. no longer be
considered as a resource for Adoption until further order of
the court?
5. Does the Superior Court have jurisdiction to hear this appeal?
Child’s Br. at 5-6.
Before proceeding to a review of the merits, we must determine
whether we have jurisdiction. In particular, we must examine whether the
order in question, the permanency review order of February 24, 2016, is an
appealable order. 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.’”6 Gunn v. Automobile Ins. Co.
of Hartford, Connecticut, 971 A.2d 505, 508 (Pa.Super. 2009) (quoting
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Child was the only party at the permanency review hearing who filed
a brief with this Court. DHS submitted a letter stating that it “will not be
filing a brief in this matter.”
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Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa.Super. 2000)). 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). See also In re H.S.W.C.-B & S.E.C.-B., 836 A.2d 908,
911 (Pa. 2003) (With regard to dependency matters, “An order granting or
denying a status change, as well as an order terminating or preserving
parental rights, shall be deemed final when entered.”) (citation omitted).
Instantly, Child does not assert that the February 24, 2016
permanency review order is a final order, as it does not grant or deny a goal
change or terminate or preserve parental rights.7, 8 Rather, Child avers that
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7
A review of the record reveals that a petition to terminate parental
rights and for a goal change has not been filed.
8
While we recognize the expansion of those dependency orders which
are deemed final, appealable orders under In re H.S.W.C.-B. & S.E.C.-B.,
we find the instant matter distinguishable. Not only did the trial court
indicate that the order in question is not a final order, see 1925(a) Op. at 6
(unpaginated), Child does not dispute that the order is not a final order.
Moreover, the trial court also examined whether the order was collateral
and/or the appeal was interlocutory as of right or by permission and
concluded the appeal should be quashed. See 1925(a) Op. at 6-7
(unpaginated). Further, upon review, in disputing the court’s actions with
regard to the CASA, Child is essentially challenging the trial court’s actions
with regard to potential adoptive parents, the Ls, who importantly are not
parties to the matter. Critically, these actions, in particular, excluding the
Ls’ home from consideration as a placement resource, were qualified by the
court, see Permanency Review Order, 2/24/16, thus allowing the potential
for consideration in the future. The court, however, in an effort to not
circumvent the dependency process, explored the option of reunification and
(Footnote Continued Next Page)
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the order is appealable pursuant to the collateral order doctrine. See
Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a
collateral order of a lower court). “A collateral order is an order separable
from and collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b).
Child, through her child advocate/guardian ad litem, argues that the
February 24, 2016 order meets the requirements of the collateral order
doctrine. Child suggests that the removal of the CASA, which prohibited
Child from presenting evidence, is separate from, and collateral to, the
dependency itself. Child’s Br. at 34. Child further avers that the court
impinged upon her right “to meaningfully participate” in the dependency
hearing. Id. Lastly, Child posits that “this Constitutionally protected right
would be lost if the lower court continued to deny the child advocate the
opportunity to participate in the hearing.” Id. at 35.
Upon review, we conclude that that the trial court’s February 24, 2016
order does not meet the requirements of the collateral order doctrine. While
Child argues that the February 24, 2016 order is appealable because it
infringed upon her right to present evidence, the right to participate and
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(Footnote Continued)
further investigated Child’s former kinship provider, C.G. See 1925(a) Op.
at 8-9 (unpaginated); Permanency Review Order, 2/24/16.
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present evidence during dependency proceedings is not separate from, or
collateral to, those proceedings. In addition, Child’s right will not be lost if
postponed until final judgment. Child can raise the instant claims upon the
determination of a goal change/termination petition, if and when filed, or at
the conclusion of the dependency matter.
Accordingly, the February 24, 2016 order is not a collateral order
pursuant to Pa.R.A.P. 313(b). This Court lacks jurisdiction to consider
Child’s claims, and the appeal must be quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2016
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