In the Int. of: N.J., Appeal of: B.P. ( 2021 )

J-A21039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.P., MATERNAL AUNT :
:
:
:
:
: No. 1046 EDA 2021
Appeal from the Order Entered April 16, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-1000097-2016
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2021
B.P. (“Maternal Aunt”) appeals pro se from the order entered in the
Court of Common Pleas of Philadelphia County Juvenile Division denying her
motion to appeal nunc pro tunc the court’s prior protective order of July 1,
2019, which prohibited her and her sisters from attending visitations between
their minor niece (“Child”) and Child’s siblings and from contacting in any
manner Child or Child’s resource parent/caregiver. After careful review, we
affirm.
In this Court’s recent memorandum decision Interest of N.J., 1722
EDA 2020 (Pa.Super. filed April 9, 2021), in which Maternal Aunt’s sister B.P.
(“Sister B.P.”) challenged the same underlying order of July 1, 2019 presently
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* Former Justice specially assigned to the Superior Court.
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at issue, we set forth the following facts and procedural history that are
equally pertinent to the matter now before this panel:
[Maternal Aunt’s and Sister B.P.’s] niece, N.J., born in October
2015 (“Child”), was adjudicated dependent on July 22, 2016.
Subsequently, Child's permanency goal was changed to adoption
and Mother's and Father's parental rights were terminated on
September 19, 2018.[Lower Court Footnote (“LC”)] 1
[LC]1 Both Father and Mother separately appealed such
determinations, which panels of this Court affirmed. See
Superior Court Docket Nos. 3044-3045 EDA 2018, and
3086 & 3093 EDA 2018.
On July 1, 2019, [Sister B.P.], through counsel, filed a Motion to
Intervene and sought sibling visitation as she has custody of
Child's siblings.[LC]2 In an order entered that same day, the
dependency court entered a dependency court protective order in
favor of Child and her resource parent. Specifically, the court
ordered [Sister B.P., Maternal Aunt, and their sister D.P.] to
“refrain from any contact directly or indirectly with the above-
named person(s)/witness(es) to be protected (i.e., no telephone
contact, no verbal contact, no third party contact, no eye contact,
no written contact and no physical contact) and to refrain from
any and all intimidation personally [or] by family and/or friends.”
Dependency Court Protective Order, 7/1/19. This protective order
was valid until July 1, 2020. Id.[1]
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1 Judicial review addressed Maternal Aunt’s and her two sisters’ three-year-
long history of filing serial unfounded reports of abuse and neglect occurring
in the resource parent’s home. The dependency court held a permanency
review hearing at which it made a finding of fact that such reports were both
false and, consequently, injurious to the stability of Child’s placement, as they
unfairly endangered resource parent’s ability to retain custody of the children
entrusted to their care.
The court, therefore, entered its dependency protective Order of July 1, 2019,
directing Maternal Aunt and her sisters B.P. and D.P. to “stay away” from Child
(Footnote Continued Next Page)
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[LC]2 This motion was denied on August 19, 2020. See
Permanency Review Order, 8/19/20.
[Over one year later,] [o]n August 11, 2020, [Sister B.P.] filed her
Motion to File Nunc Pro Tunc, pro se, seeking to appeal the
dependency court's July 1, 2019, protective order. [Sister B.P.]
averred she was not given notice of the July 1, 2019, hearing and
did not receive the order until after the appeal period expired.
Motion for Nunc Pro Tunc, 8/11/20. By order dated and entered
August 12, 2020, the court denied [Sister B.P.’s] motion.
Thereafter, on September 10, 2020, [Sister B.P.] filed a pro se
notice of appeal, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b). The dependency court filed a Rule 1925(a) Opinion on
November 4, 2020.
Int. of N.J., 177 EDA 2020, at *1.
Acknowledging that Sister B.P. timely appealed from the lower court’s
final and appealable order of August 12, 2020 denying nunc pro tunc relief,
we observed that the issues she raised on appeal related not to the denial of
nunc pro tunc relief but, instead, to the underlying protective order of July 1,
2019. Specifically, she claimed her due process rights of notice and an
opportunity to be heard were violated when she received no notice of the
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and all others in Child’s household, as their behavior had a destabilizing effect
on the household. The order also contained a visitation order calling for Child
to resume supervised visitation with her siblings, over whom Sister B.P.
possessed custody, but without the attendance of Maternal Aunt and her
sisters. Finally, the order mandated that the dependency court judge be
notified directly if any hotline calls were received regarding Child and the
resource parent.
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hearing that preceded the July 1, 2019 protective order, but we noted that
she never raised this issue in an appeal to the protective order. We, therefore,
determined Sister B.P. had waived her issues directly challenging the
protective order of July 1, 2019. Id. at *2-3.
In addition, as the July 1, 2019 protective order had expired one year
later, on July 1, 2020, we found Sister B.P.’s issues moot and not subject to
the recognized exceptions to the mootness doctrine.2 Id. at *4.
Finally, even assuming that Sister B.P. had properly raised and
preserved her claims challenging the denial of nunc pro tunc relief and we had
found the underlying matter was not moot, we still concluded that there would
be no basis upon which to grant her nunc pro tunc relief.
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2 Specifically, we noted:
While [Sister B.P.] suggests that this case falls within an exception
“as a case that has important public policy considerations and yet
may escape review,” pointing to the temporary nature of stay
away orders that often evade review before expiration, we
disagree. [Sister B.P.’s] Brief at 7 (unnumbered). The July 1,
2019, protective order was valid for one year and, as indicated
above, [Sister B.P.] had counsel involved at or around the time of
its issuance. Also, other family members were involved with
litigation and [Sister B.P.] suggests she had access to record
documents. Cf. see Snyder v. Snyder, 629 A.2d 977, 980 n.1
(Pa.Super. 1993) (reviewing an expired six-month PFA order on
the basis that it fell “into the well-recognized exception to the
mootness doctrine of a case which has important public policy
considerations and yet may escape review.”).
Int. of N.J., 253 A.3d at *4 n.9.
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Specifically, in this regard, we noted that on July 1, 2019, she was
represented by counsel who, on that date, filed a Motion to Intervene on her
behalf and, subsequently in August, 2019, represented her in a related
hearing. The record further demonstrated that other family members were
engaged at the time in parallel litigation regarding Child, and that the family
members were sharing documentation from these proceedings. Given this
record, we concluded that Sister B.P.’s request for nunc pro tunc relief, filed
over one year after the order in question, was not filed within a reasonable
period of time and was, therefore, properly denied on the merits. Id. at *4
n. 10.
In the case sub judice, Maternal Aunt filed with the dependency court
on March 23, 2021 a motion to appeal nunc pro tunc the dependency court’s
July 1, 2019 visitation order that precluded her from having any contact with
Child. In this motion, she claimed that she first became aware of the order
on December 29, 2020, but she offered no explanation for either her delayed
awareness or her subsequent delay in filing her motion seeking a nunc pro
tunc appeal. Maternal Aunt also requested that the lower court grant her
request for visitation with Child and clarify the July 1, 2019 order intended
that she absent herself only from sibling visitations, as she maintained the
court inadvertently omitted the word “sibling” from its order.
On April 16, 2021, the dependency court denied Maternal Aunt’s motion
to appeal nunc pro tunc, finding she did not establish a basis for such relief
because she failed to explain the untimeliness of her appeal from the lower
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court’s July 1, 2019 order. Dependency Court Order and Opinion, 4/16/21 p.
1-2.
This timely appeal followed. In Maternal Aunt’s court-ordered Rule
1925(b) statement, she set forth three claims of “error” asserting,
respectively, that the visitation order’s exclusion of the word “sibling” when
referring to visitation left it ambiguous, the order worked an unconstitutional
deprivation of rights to a secure a stable family relationship, and the order
reflected the court’s bias against her. Concise Statement, 5/15/21. The
statement noted Maternal Aunt sought resumption of visits with Child.
In the lower court’s responsive Pa.R.A.P. 1925(a) Opinion of June 14,
2021, it explained that the same reasons of untimeliness and mootness that
required denial of Sister B.P.’s previous nunc pro tunc motion applied to
Maternal Aunt’s present motion. The court also entered a concurrent Order
granting a Motion to Change Visitation, in which it provided for unsupervised
sibling visitation with the continuing limitation that Maternal Aunt and her
sisters shall neither attend said visits nor contact the caregiver, with the
stipulation that any violation of this provision shall be reported to the court
and require the entry of an order directing all future sibling visits be supervised
at the agency.
In Maternal Aunt’s pro se appellate brief, she raises the following
Statement of Question Presented (verbatim):
The actions of the trial court errors resulted in an inability to be
fair and impartial with a miscarriage of justice, punishing and
inhibiting a mandated reporter to not follow Child Protective
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Service reporting law with [sic] by stating via July 1, 2019
transcript page 11 the court "If they make another call to the
hotline alleging some abuse of this child, then I will hold a
contempt hearing. I want to know about it. And march them all
in here and I'll throw them in jail." and in the absence of such
errors a more favorable result would have been reached in the
best interest of the child. The issues reflect on whether it was an
error of law or abuse of process for the trial court to prevent
contact with a minor to avoid a mandating reporting of suspected
child abuse and/or neglect by denying the motion for visitation
and refusal to allow visits after a stay away order issued expired.
To present mandated reporters from reporting endangers
children. All violators can face a misdemeanor and as a recently
as on July 8, 2021 Luzerne Children and Youth director was
arrested and charged with endangering children for terminating
reports of child abuse.
Brief for Appellant, at 2-3 (unpaginated).
This Court reviews a trial court's denial of an appeal nunc pro tunc under
an abuse of discretion standard. Raheem v. University of the Arts, 872
A.2d 1232, 1234 (Pa.Super. 2005). An abuse of discretion is not merely an
error of judgment but is found where the law is “overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will as shown by the evidence or the record.” Freeman
v. Bonner, 761 A.2d 1193, 1194–95 (Pa.Super. 2000) (quoting Union
Electric Corporation v. Board of Property Assessment, Appeals, &
Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000)). An appeal
nunc pro tunc is intended as a remedy to vindicate the right to appeal where
that right has been lost due to extraordinary circumstances involving fraud or
its equivalent, duress, or coercion. Id. at 584.
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Initially, we must address whether Maternal Aunt has standing to appeal
nunc pro tunc from the dependency court’s July 1, 2019 permanency review
order, as the issue of standing implicates our jurisdiction. “When a statute
creates a cause of action and designates who may sue, the issue of standing
becomes interwoven with that of subject matter jurisdiction. Standing then
becomes a jurisdictional prerequisite to an action.” K.B. II v. C.B.F., 833 A.2d
767, 774 (Pa.Super. 2003) (citation, quotation, and emphasis omitted).
A party seeking to appeal must, as a prerequisite, establish that they
have standing to appeal. In Interest of Garthwaite, 619 A.2d 356, 357
(Pa.Super. 1993). “An issue regarding standing to participate in dependency
proceedings is a question of law warranting plenary review, and our scope of
review is de novo.” In re C.R., 111 A.3d 179, 182 (Pa. Super. 2015). “[T]he
question of standing is whether a litigant is entitled to have the court decide
the merits of the dispute or of particular issues.” In re B.L.J., Jr., 938 A.2d
1068, (quoting Silfies v. Webster, 713 A.2d 639, 642 (Pa. Super. 1998)).
In Maternal Aunt’s brief, she does not address whether she has standing
to appeal from the order in question, nor did the dependency court sua sponte
address the issue of standing either while it possessed jurisdiction below or in
preparing its Pa.R.A.P. 1925(a) opinion for the present appeal.
Appellee Child, however, represented by the Child Advocacy Unit of the
Defender Association of Philadelphia, maintains for the first time on appeal
that Maternal Aunt lacks standing because she is not a party to the
dependency proceeding in question and has never filed a motion to intervene
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in the matter. Brief for Appellee, N.J., at 14 (citing In re J.S., 980 A.2d 117,
122 (Pa.Super. 2009) (“Only a ‘party’ has the right to participate, to be heard
on his or her own behalf, to introduce evidence, and/or to cross-examine
witnesses.”)).
Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.A.
§ 6301 et seq. The Juvenile Act provides that all parties to a dependency
proceeding are entitled to counsel, to present evidence, and to cross-examine
witnesses. 42 Pa.C.S.A. §§ 6337, 6338; see also In re L.C. II, 900 A.2d
378, 380-81 (Pa. Super. 2006).
This Court has repeatedly held that in a dependency proceeding, “party”
status is limited to three classes of persons: (1) the parents of the juvenile
whose dependency status is at issue; (2) the legal custodian of the juvenile
whose dependency status is at issue, or (3) the person whose care and control
of the juvenile is in question. In re J.S., 980 A.2d at 120.
Other caregivers, including relatives, are not automatically considered
parties to a dependency proceeding. Absent legal custody, a non-parent's
right to participate in a dependency proceeding is governed by Section
6336.1(a) of the Juvenile Act, which states:
The court shall direct the county agency or juvenile probation
department to provide the child's foster parent, pre[-]adoptive
parent or relative providing care for the child with timely notice of
the hearing. The court shall provide the child's foster parent, pre[-
]adoptive parent or relative providing care for the child the right
to be heard at any hearing under this chapter. Unless a foster
parent, pre[-]adoptive parent or relative providing care for
a child has been awarded legal custody pursuant to section
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6357 (relating to rights and duties of legal custodian),
nothing in this section shall give the foster parent, pre[-]
adoptive parent or relative providing care for the child legal
standing in the matter being heard by the court.
42 Pa.C.S.A. § 6336.1(a) (emphasis added).
Our review of the record and consideration of controlling authority lead
us to conclude that Maternal Aunt lacks standing to challenge the dependency
court’s July 1, 2019 order, as she does not come within any of the foregoing
definitions of a “party” under the Juvenile Act. On this basis, alone, may we
affirm the order entered below.
Were we to address the timeliness of Maternal Aunt’s appeal from the
July 1, 2019 order, we would find an alternate basis for affirmance. The
“[t]imeliness of an appeal, whether it is an appeal to an appellate court or a
de novo appeal in common pleas court, is a jurisdictional question. Where a
statute fixes the time within which an appeal may be taken, the time may not
be extended as a matter of indulgence or grace.” Blucas v. Agiovlasitis,
179 A.3d 520, 525 (Pa. Super. 2018). Pursuant to Pa.R.A.P. 903, an
aggrieved party must file a Notice of Appeal within 30 days after entry of the
order from which the appeal is taken. Pa.R.A.P. 903(a). Smithson v.
Columbia Gas of PA/NiSource, --- A.3d ----, 2021 PA Super 157 (Aug. 9,
2021).
[A]n appeal nunc pro tunc may be granted in some cases
where an appeal was untimely filed because of non-negligent
circumstances related to appellant, appellant's counsel, or an
agent of appellant's counsel. For an appeal nunc pro tunc to be
granted on that basis, the appellant must prove that: (1) the
appellant's notice of appeal was filed late as a result of
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nonnegligent circumstances, either as they relate to the appellant
or the appellant's counsel; (2) the appellant filed the notice of
appeal shortly after the expiration date; and (3) the appellee was
not prejudiced by the delay. The exception for allowance of an
appeal nunc pro tunc in non-negligent circumstances is meant to
apply only in unique and compelling cases in which the appellant
has clearly established that she attempted to file an appeal, but
unforeseeable and unavoidable events precluded her from
actually doing so.
Fischer v. UPMC Northwest, 34 A.3d 115, 120 n.2 (Pa. Super. 2011).
Absent from both the “Question Presented” and “Argument” sections of
Maternal Aunt’s brief is any discussion of whether the dependency court’s
Order of April 16, 2021 erroneously denied her motion to appeal nunc pro tunc
from the court’s prior Order of July 1, 2019 on the basis of untimeliness. It
follows that Maternal Aunt has not shown there were compelling, non-
negligent circumstances causing such great delay in her seeking to file notice
of appeal from the July 1, 2019 order that nunc pro tunc relief was in order.
Therefore, in light of the above-discussed authority requiring an appellant to
make such a showing, we would discern no reason to disturb the lower court’s
order denying Maternal Aunt’s motion to file an appeal nunc pro tunc.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2021
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