In the Interest of: N.J., Appeal of: D.P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: D.P., MATERNAL :
GRANDPARENT :
:
:
:
: No. 2066 EDA 2019
Appeal from the Order Entered June 20, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-1000097-2016
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: Filed: April 15, 2020
Appellant, D.P., the maternal grandparent of N.J. (“the Child”),1 appeals
from the order entered on June 20, 2019, that denied Appellant’s petition to
intervene in the Child’s dependency proceedings. After review, we remand
for further proceedings.
The dependency court summarized the relevant facts and procedural
history of this matter as follows:
On March 13, 2018, Appellant filed a Petition to Intervene
which was denied by the court. Appellant thereafter acquired new
counsel. Rather than filing a Notice of Appeal challenging the
March 13, 2018 Order, Appellant’s new counsel chose to file a
Petition for Reconsideration. The gist of this petition was to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1The Child was born in October of 2015. Docket Entries (Child Information),
at 1/59; Appellant’s Petition to Intervene, 6/11/19, at ¶3(a).
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request the court to reconsider its decision [from] March 13, 2018.
The court denied Appellant’s Petition for Reconsideration on June
11, 2018. Appellant’s counsel thereafter filed a Notice of Appeal
on September 14, 2018[,] after the court afforded the Appellant
Nunc Pro Tunc Relief permitting Appellant to file an appeal well
beyond the thirty[-]day deadline because the Philadelphia Family
Court administration never sent Appellant a copy of the June 11,
2018 Order. The Appellant was not afforded Nunc Pro Tunc Relief
in reference to the March 13, 2018 Order. This particular appeal
was styled as In the Interest of: N.M.J. a/k/a N.J., a Minor, 2724
EDA 2018[,] and [it] was dismissed without a decision by the
Superior Court on November 16, 2018, based upon Appellant’s
failure to [file a docketing statement pursuant to Pa.R.A.P. 3517].
Appellant subsequently filed a second Motion to Intervene
on July 11, 2019. Appellant’s arguments were identical to those
articulated in the year of 2018 so this court denied the Motion to
Intervene. It has come to the attention of the trial court that the
underlying Motion to Intervene should have been sent not to this
trial court but should have been ruled upon by Judge Gordon
because the matter was under the jurisdiction of the adoption
court at the time[,] despite the fact the underlying Motion to
Intervene was sent to this trial court and relates back to issues
that happened when the case was under its jurisdiction in 2018.
Consequently, it is requested that this matter be remanded to this
trial court so that the underlying order may be vacated and the
underlying Motion to Intervene be transferred to Judge Gordon for
review.
Dependency Court Opinion, 10/8/19, at 1-2.
Despite the dependency court’s request for remand, the Philadelphia
Department of Human Services (“DHS”) asserts that it was not required to
conduct “family finding” or investigate “kinship care” relative to Appellant’s
petition to intervene in the dependency proceedings because the Child is in
pre-adoptive placement, and court proceedings for adoption have begun.
DHS’s Brief at 13 (citing 67 Pa.C.S. § 3104). Therefore, DHS avers the
requirements of “family finding” and “kinship care,” which are set forth in 67
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Pa.C.S. §§ 3101-3103, are moot. DHS’s Brief at 13. Moreover, DHS states
that the dependency court’s initial denial of Appellant’s petition to intervene
is res judicata with respect to the second petition. Id. at 14.
In attempting to review the proceedings in this matter, we are faced
with a certified record that is meager. When this case was first appealed, DHS
filed an “Application: (1) to remand incorrectly transmitted trial court record;
(2) to strike Appellant’s brief; [and] (3) for an order directing Appellant to
return impermissibly obtained confidential child welfare records.” Application,
11/14/19. On December 4, 2019, this Court entered on order directing as
follows:
1. Appellant's brief is STRICKEN.
2. The briefing schedule is suspended.
3. Appellant is directed to return to the Philadelphia Court of
Common Pleas the confidential child welfare records, and copies
of any such records, including all transcripts in her possession.
4. The record is remanded to the trial court for (7) seven days for
removal of the confidential child welfare records and transcripts.
5. The Prothonotary of this Court is directed to send a copy of this
order to the Honorable Vincent W. Furlong and attach a copy of
this motion.
6. The briefing schedule shall be reset upon the filing of the proper
trial court record with this Court, at that time appellant is directed
to file a new brief that does not reference confidential information.
Order, 12/4/19. When the record was returned to this Court, it consisted of
a list of docket entries, a few documents that were filed by Appellant, a notice
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of appeal, and the dependency court’s October 8, 2019 opinion. The dearth
of information contained in this record precludes a decision on the merits.
We note that “the polestar of all dependency proceedings” is the best
interests of the child. In re J.S., 980 A.2d 117, 121 (Pa. Super. 2009).
Bearing that principle in mind, and in the interests of judicial economy, we
conclude that the most expeditious way to protect the rights of all parties is
to remand this matter as requested by the dependency court. Accordingly,
we hereby remand this matter to the dependency court for further
proceedings.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/20
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