J.E.C. v. C.C.C. ( 2016 )

J-A22007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.E.C. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
C.C.C.
Appellant No. 435 MDA 2016
Appeal from the Order Entered February 19, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): Cl-12-15695
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 06, 2016
C.C.C. (“Father”) appeals pro se from an order in this child custody
proceeding directing him to undergo a psychological evaluation to determine
whether he poses a risk of harm to the parties’ children. The ultimate
determination of custody remains pending. For the reasons articulated
below, we quash this appeal.
J.E.C. (“Mother”) and Father married in 2004 but later divorced. The
parties have two minor children. On October 17, 2012, Mother filed a
custody complaint against Father. On May 6, 2013, the court ordered the
parties to share legal custody but gave primary physical custody of the
children to Mother and partial physical custody to Father pursuant to a
defined schedule. Father appealed the custody order, and on May 12, 2015,
this Court affirmed at 1387 MDA 2014.
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On October 23, 2015, Mother filed a petition to modify custody
alleging that the trial court had entered a Protection From Abuse (“PFA”)
against Father on September 23, 2015 for abusing his girlfriend. Due to this
PFA order and prior PFA orders entered against Father in 2012 and 2015, the
court scheduled a Risk Of Harm hearing.
On January 22, 2016, the court held a Risk Of Harm hearing. The
court ordered Father to undergo and pay for a psychological evaluation by a
licensed and qualified professional to determine whether he posed a risk of
harm to the children. The prothonotary mistakenly docketed the order in
the divorce docket instead of in the custody docket. Upon discovering this
error, the court issued an amended order on February 18, 2016 at the
correct docket number. Father appealed from this order, and both Father
and the court complied with Pa.R.A.P. 1925.
Father raises eight issues in this appeal:
1. Was the court’s initial misfiling of the Risk of Harm Order a
violation of Pa.R.Civ.P. 1915.4(d), pertaining to prompt
disposition in custody trials?
2. Whether the court erred in holding the hearing and entering
the order pursuant to 23 Pa.C.S. § 5329?
3. Whether the court’s decision that the children’s testimony was
not necessary prevented the father from presenting a full
defense?
4. Whether the court’s decision that the children’s testimony was
not necessary violated [their] right to testify on their own
behalf?
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5. Whether the court erred by not granting Father’s request to
obtain Children and Youth records of the mother?
6. Whether the court exhibited bias or prejudice, failed to
maintain judicial impartiality, and improperly apply the law as a
result?
7. Whether the overriding concern of the court was the
scheduling/weather related issue?
8. Where the Order and the statements made by the court in the
Reconsideration Hearing exhibits the court’s poor attention to
detail, thus causing the competence and diligence of the court to
be questioned?
Brief For Father, at 6-7. None of these issues are appealable at this
juncture.
An appeal may be taken from: (1) a final order or an order certified as
a final order (Pa.R.A.P. 341); (2) an interlocutory order as of right (Pa.R.A.P.
311); (3) an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
Pa.C.S. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313). We briefly
summarize the nature of each order.
An order is final and appealable if it dismisses all the claims or parties
or includes the express determination that an immediate appeal would
facilitate resolution of the case. Pa.R.A.P. 341(b-c).
An order is a collateral order, immediately appealable as of right, if:
(1) the matter is separable from and collateral to the main cause of action;
(2) it involves a right too important to be denied review; and (3) is such that
the claimed right would be irreparably lost if review is postponed until final
judgment in the case. Pa.R.A.P. 313.
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An interlocutory (non-final) order is appealable as of right if it falls
within specific categories of orders delineated within Pa.R.A.P. 311.
Lastly, an interlocutory order is appealable by permission if the
appellant seeks and obtains permission to appeal the order under the strict
requirements prescribed within Pa.R.A.P. 1311 and 1312.
In his first argument on appeal, Father contends that the court
violated his right under Pa.R.Civ.P. 1915.4(d) to prompt disposition of his
custody case by filing the order directing psychological testing on the divorce
docket instead of the custody docket. Rule 1915.4(d) provides that the
court shall decide a custody case within 15 days after conclusion of trial. Id.
The court may extend the decision date for good cause but not for more
than 45 days after conclusion of trial. Id.
This issue is not appealable under Pa.R.A.P. 341, because there is no
final order disposing of all parties and issues in Father’s custody case, and
the court did not make an express determination that an immediate appeal
of this issue would facilitate resolution of this case. Nor is this issue
appealable under Pa.R.A.P. 313, because this issue does not satisfy any of
Rule 313’s three criteria. The brief delay in docketing the order properly (1)
is not separable from and collateral to the substance of the custody action;
(2) does not involve a right too important to be denied review; and (3) is
not a right that will be irreparably lost if review is postponed until final
judgment in the case.
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This is merely an interlocutory order that does not fall within any
category of appealable interlocutory orders with Pa.R.A.P. 311. Father did
not seek or obtain permission to appeal this interlocutory order under
Pa.R.A.P. 1311. Therefore, we lack jurisdiction to review this issue.
In his second argument on appeal, Father insists that the court abused
its discretion in ordering him to undergo psychological testing to determine
whether he poses a risk of harm to the children. This order is not a final
order under Pa.R.A.P. 341, because the court did not enter a final order
disposing of all custody issues or make an express determination that an
immediate appeal of this issue would facilitate resolution of this case. It
does not fall within any category of appealable interlocutory orders under
Pa.R.A.P. 311. Nor did Father seek or obtain permission to appeal this order
under Pa.R.A.P. 1311. Lastly, this order does not satisfy the collateral order
doctrine. See Miller v. Steinbach, 681 A.2d 775, 777 (Pa.Super.1996)
(order directing father to submit to and pay for psychological evaluations
before custody determination was not final order or otherwise appealable;
order was not appealable interlocutory order under Pa.R.A.P. 311, father
failed to invoke procedure for interlocutory appeal by permission, and order
was not collateral order because it was intertwined with custody
determination).
It is illuminating to distinguish two other decisions from the present
case. In one decision, we held that an order compelling a parent to undergo
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psychological testing is appealable under the collateral order doctrine
because the order implicated the parent’s privacy rights. Matter of T.R.,
665 A.2d 1260, 1263 (Pa.Super.1995), reversed on other grounds, 731
A.2d 1276 (Pa.1999) (order compelling testing appealable as collateral order
because parent’s privacy interests were separable from the main cause of
action, right of privacy was too important to be denied review, and
postponement of review until after final judgment would cause irreparable
harm to the parent’s privacy interests). On another occasion, we held that a
discovery order compelling a parent to produce allegedly privileged mental
health records to the other parent was an appealable collateral order. M.M.
v. L.M., 55 A.3d 1167, 1168 n. 1 (Pa.Super.2012). These decisions are
inapposite here, because Father does not contend that the order in question
violated his privacy rights or any privilege. He argues only that
psychological testing is unreasonable because he does not have any criminal
history. Brief For Father, at 18-21. Accordingly, we lack jurisdiction to
review Father’s argument.
We address Father’s third through eighth arguments together. Father
complains that the court erred in refusing to permit his children to testify;
denying his request for Mother’s CYS records; failing to remain neutral and
impartial; focusing unnecessarily on scheduling and weather-related issues;
and ignoring important evidence. Once again, these issues are not
appealable under Pa.R.A.P. 341, because the court did not enter a final order
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disposing of all custody issues or make an express determination that an
immediate appeal of these issues would facilitate resolution of this case.
These issues do not fall within any category of appealable interlocutory
orders under Pa.R.A.P. 311. Nor did Father seek or obtain permission to
appeal these issues under Pa.R.A.P. 1311. Finally, these issues do not
implicate the collateral order doctrine, because they are not separable from
the underlying custody issue, are not too important to be denied review, and
can await a final order without causing irreparable harm to Father.
In short, none of the issues raised by Father are appealable. We
therefore quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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