In the Int. of: S.Y., Appeal of: T.M.S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.M.S., MOTHER :
:
:
:
:
: No. 1453 EDA 2018
Appeal from the Order Entered April 3, 2018
In the Court of Common Pleas of Delaware County Domestic Relations at
No(s): CP-23-DP-0000009-2014
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 23, 2019
Appellant, T.M.S. (“Mother”), appeals from the April 3, 2018 Order that
dismissed with prejudice Mother’s Petition for Modification of Placement of S.Y.
(“Child”).1, 2 Upon careful review, we quash this appeal as untimely filed.
A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Relevant to this appeal, Child was born in July of 2013. On
March 4, 2014, the juvenile court adjudicated Child dependent and placed
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1 In her Notice of Appeal, Mother purports to appeal from the April 10, 2018
denial of the Motion for Reconsideration. However, an appeal does not lie
from the denial of a motion for reconsideration. See Karschner v.
Karschner, 703 A.2d 61, 62 (Pa. Super. 1997). Rather, the appeal properly
lies from the April 3, 2018 Order that dismissed with prejudice Mother’s
Petition for Modification of Placement. See Pa.R.A.P. 1701(b)(3); Pa.R.C.P.
1930.2. We have corrected the caption accordingly.
2 This order is a final, appealable order. See In re D.S., 102 A.3d 486, 487
n.1 (Pa. Super. 2014) (explaining that an order granting or denying a change
in placement in a dependency proceeding is a final, appealable order).
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Child in medical foster care after hearing evidence that Child sustained severe
brain injuries while in the care of Mother and R.Y., Child’s father.
On March 8, 2018, Mother filed a Petition for Modification of Placement
requesting that the Appellee, Delaware County Children and Youth Services
(“CYS”), move Child from the medical foster care placement to a kinship
placement with his maternal grandparents. After hearing oral argument, on
April 3, 2018, the juvenile court dismissed Mother’s Petition with prejudice.
On April 6, 2018, Mother filed a Motion for Reconsideration of the April 3, 2018
Order. On April 10, 2018, the juvenile court denied Mother’s Motion for
Reconsideration.
On May 8, 2018, Mother filed a Notice of Appeal and a Statement of
Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On July 24, 2018, the trial court filed a Pa.R.A.P. 1925(a) Opinion.
On May 30, 2018, CYS filed a Motion to Quash Appeal with this Court
contending that that Mother’s appeal was untimely. On June 22, 2018, this
Court denied CYS’s Motion to Quash without prejudice to CYS’s right raise the
issue again before this panel of the Court. In the Order, this Court reasoned
that the juvenile court docket did not include a notation indicating that the
prothonotary gave notice of the April 3, 2018 Order to the parties as required
by Pa.R.C.P. 236(b).3 Because of the prothonotary’s failure to enter the Rule
236 notice on the juvenile court docket, this Court concluded that the appeal
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3Rule 236 states, in relevant part, that “[t]he prothonotary shall note in the
docket the giving of the notice[.]” Pa.R.C.P. 236(b).
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“appears to be deemed timely filed.” See Order, 6/22/2018. On September
25, 2018, CYS filed a Notice to Correct Reproduced Record with the juvenile
court requesting that the Office of Judicial Support correct the record to
include Rule 236 Notice for the April 3, 2018 Order dismissing Mother’s
Petition. In its Brief on appeal, CYS again raises the issue of untimeliness and
cites to a corrected record which contains Rule 236 Notice for the April 3, 2019
Order. CYS’s Brief at 5-7.
Mother raises the following issues on appeal:
1. Did the [juvenile] court err and/or abuse its discretion in
denying Mother’s Petition for Modification of Placement of []
Child from foster care to kinship care by failing to consider the
nature and depth of the relationship between Child and his
maternal grandparents, the bond with his only sibling who
resides with maternal grandparents as well as additional
relevant and substantial factors?
2. Did the [juvenile] court err and/or abuse its discretion in
denying Mother’s Petition for Modification of Placement by not
holding a full evidentiary hearing on this important issue
thereby denying due process?
Mother’s Brief at 4.
As an initial matter, we must first determine whether we have
jurisdiction over Mother’s appeal. In order to preserve the right to appeal
from a final order of the Court of Common Pleas, an appellant must file a
notice of appeal within 30 days after the date of entry of that order. Pa.R.A.P.
903(a). It is well settled that this Court must strictly construe the 30-day
period and is without jurisdiction to excuse a failure to file a timely notice. In
re Griest, 636 A.2d 193, 195 (Pa. Super. 1994). An untimely appeal divests
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this Court of jurisdiction and must be quashed. See Valley Forge Center
Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 245 (Pa. Super. 1997)
(citation omitted); Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521
(Pa. Super. 1999).
Importantly, the 30-day appeal period may be tolled if the trial court
expressly grants a motion for reconsideration. See Valley Forge, supra at
245; Pa.R.A.P. 1701(b)(3). If a trial court fails to expressly grant
reconsideration within the 30-day appeal period, the trial court loses its power
to act upon the reconsideration motion. Schoff v. Rickter, 562 A.2d 912,
913 (Pa. Super. 1989). “Therefore, as the comment to Pa.R.A.P.
1701 explains, although a party may petition the court for reconsideration,
the simultaneous filing of a notice of appeal is necessary to preserve appellate
rights in the event that either the trial court fails to grant the petition expressly
within 30 days, or it denies the petition.” Valley Forge, supra at 245; see
Pa.R.A.P. 1701 cmt.
Finally, an order is not appealable until the prothonotary enters it on the
docket with the required notation that the prothonotary has given appropriate
notice to the parties. In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007). Under
Pennsylvania Rule of Appellate Procedure 108(b), the date of entry of an order
is the day on which the clerk makes the notation in the docket that notice of
entry of the order has been given as required by Pa.R.C.P.
236(b). See Pa.R.A.P. 108(b).
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In the instant case, our review of the corrected docket reveals that on
April 3, 3018 the prothonotary entered the final, appealable order denying
Mother’s Petition for Modification of Placement on the docket with the required
notation that the prothonotary gave appropriate notice to all parties.4 The
trial court’s April 10, 2018 Order denying reconsideration did not toll the 30-
day appeal period. Therefore, Mother needed to file an appeal by May 3, 2018
in order for this Court to deem it timely filed. However, Mother did not file a
Notice of Appeal until May 8, 2018, rendering the Notice of Appeal untimely.
As Mother did not file her Notice of Appeal in a timely manner, this Court
is without jurisdiction to consider the merits of the appeal. Accordingly, we
quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/19
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4The fact that Mother filed a Motion for Reconsideration on April 6, 2018 also
demonstrates that Mother had appropriate notice of the April 3, 2018 Order.
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