In the Int. of: B.T., Appeal of: B.S. ( 2020 )

J-S53002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: B.S., MOTHER :
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:
:
:
: No. 1334 EDA 2019
Appeal from the Order Entered May 3, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002481-2018
IN THE INTEREST OF: B.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.S., MOTHER :
:
:
:
:
: No. 1338 EDA 2019
Appeal from the Order Entered May 3, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002482-2018
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2020
The Learned Majority vacates the trial court’s orders directing B.S.
(“Mother”) to refrain from all contact with her sister, L.B. (“Maternal Aunt”),
following an incident in which Mother aggressively confronted Maternal Aunt
in the hallway outside of a courtroom after a dependency hearing. 1 The
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1 Maternal Aunt serves as a kinship foster resource placement for Mother’s
two children (collectively, “the Children”).
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Majority takes this action because it concludes that the trial court denied
Mother notice and opportunity to be heard, failed to develop a record
pertaining to the order, and exercised a power that was not expressly granted
by statute or case law. As I believe the court properly and permissibly
exercised its power to address contemptuous conduct which threatened the
orderly administration of courtroom proceedings, I would affirm the orders
Mother challenges on appeal.
The orders in question were entered on May 3, 2019, after a May 2,
2019 status review hearing. Toward the conclusion of the hearing, the trial
court learned that, “Mother [exhibited] aggressive behavior towards Maternal
Aunt. In response, Maternal Aunt returned to the courtroom and requested a
[p]rotective [o]rder against Mother.” Trial Court Opinion, 7/9/19, at 3. The
trial court, without notifying Mother or ensuring that notes of testimony were
prepared, granted Maternal Aunt a stay-away order lasting one year from its
date of entry. The order did not restrict Mother’s contact or visitation with the
Children, nor did it restrict Mother’s right to engage in employment-related
activities. Instead, the order simply directed that Mother refrain from all
contact with Maternal Aunt, and further directed Mother to avoid Maternal
Aunt’s residence, for a one-year period. The order warned that a violation of
its terms may result in a fine, imprisonment, or prosecution pursuant to 18
Pa.C.S.A. § 4952 (prohibiting intimidation of witnesses or victims). Mother’s
appeal followed.
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Mother argues that the trial court violated her right to due process by
granting Maternal Aunt a protective order ex parte without a hearing within
ten days, thus making the order final. See Mother’s Brief at 8-9
(unpaginated). Additionally, Mother contends that the court violated her right
to due process by failing to record or transcribe the hearing that proceeded
entry of the challenged order. Id. Essentially, Mother seeks to apply the
standards set forth in the Protection From Abuse (“PFA”) Act, 23 Pa.C.S.A.
§ 6101, et seq., to the instant matter, and argues that the trial court’s
application of In re M.B., 869 A.2d 542 (Pa. Super. 2005), was in error. See
Mother’s Brief at 8-10. Rather, Mother contends that In re Penny R., 509
A.2d 338 (Pa. Super. 1986), controls. See Mother’s Brief at 8-10.
With regard to dependency cases:
[t]he standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an
abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
Initially, I agree with the Majority that the “dependency court protective
order” is not a statutory creation. The court points to the Juvenile Act, 42
Pa.C.S. §§ 6301, 6351, as the source of its authority. Amongst the Act’s
stated purposes are to provide for the care, protection, safety, and wholesome
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mental and physical development of children. See 42 Pa.C.S. § 6301. Section
6351 of the Act governs the disposition of dependent children and grants the
court wide latitude in its powers to make determinations that best serve the
child’s health, safety, and welfare. Nothing in the text of this statutory scheme
expressly grants authority to address contemptuous conduct within the
presence of the court.
While Mother argues that the stay-away order should be treated like a
PFA order, with all of the due process rights which that entails, there is no
authority to support this assertion. The main case she cites in support of her
position, In re Penny R., concerns a matter where a PFA order was entered
pursuant to a petition filed under the former version of the Protection From
Abuse Act, 35 P.S. §§ 10181 to 10190.2, repealed by 1990, Dec. 19, P.L.
1240, No. 206, § 6. Penny R., 509 A.2d at 339. Similarly, I would reject the
trial court’s reliance on In re M.B., 869 A.2d 542, 546 (Pa. Super. 2005), a
case in which a protective order was issued to preserve the confidentiality of
certain written records, and its reasoning that Mother’s liberty interests were
not violated because the best interests of the Children take precedent over
Mother’s liberty interests. See Trial Court Opinion, 7/9/19, at 4-7. Although
the instant order prohibits Mother’s contact with Maternal Aunt and her
residence, it is not a protection from abuse order and it is not aimed at the
preservation of confidential records. Accordingly, neither In re Penny R. nor
M.B. are entirely pertinent.
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Rather, I would find the current situation more analogous to one in
which a court has acted to address contemptuous conduct that transpired in
or near the courtroom. We are free to affirm a trial court’s decision on any
basis supported by the record and our rationale is not dependent upon our
agreement with the trial court’s reasoning. Ario v. Ingram Micro, Inc., 965
A.2d 1194 (Pa. 2009). I note that
[i]n Pennsylvania, “[t]his Court has long upheld a court’s power
to maintain courtroom authority” by the imposition of summary
punishment for contempt in appropriate cases. Behr v. Behr,
[695 A.2d 776, 778 (Pa. 1997)]. “[A] summary proceeding to
protect the orderly administration of justice is perfectly proper[.]
... The court must be able to control those appearing before it,
and must be able to use its power summarily to avoid interference
with the principal matter before the court.” Commonwealth v.
Africa, [353 A.2d 855, 865 (Pa. 1976)] (plurality). “Summary
proceedings for contempt of court are those in which the
adjudication omits the usual steps of ‘the issuance of process,
service of complaint and answer, holding hearings, taking
evidence, listening to arguments, awaiting briefs, submission of
findings, and all that goes with a conventional court trial.’”
Commonwealth v. Stevenson, [393 A.2d 386, 392 (Pa. 1978)]
(quoting Sacher v. United States, [72 S.Ct. 451 (1952)]). Thus,
“the summary contempt power has been upheld against due
process attacks[.]” Id. (citations omitted). Respecting due
process, this Court has candidly acknowledged summary
punishment for criminal contempt is a “drastic departure from our
traditional view of due process[.]” Commonwealth v. Marcone,
[410 A.2d 759, 763 (Pa. 1980)].
Commonwealth v. Moody, 125 A.3d 1, 8 (Pa. 2015).
Our Supreme Court has long recognized that “acts such as jury
tampering and witness intimidation that occur outside the physical presence
of the court, but that interfere with its immediate business, are punishable as
contempt.” Commonwealth v. Falana, 696 A.2d 126, 129 (Pa. 1997). Put
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another way, “[m]isconduct occurs in the presence of the court if the court
itself witnesses the conduct or if the conduct occurs outside the courtroom but
so near thereto that it obstructs the administration of justice.” Id. In Falana,
the defendant threatened a witness who had testified against him after the
conclusion of proceedings. Id. The Supreme Court held that not sanctioning
the defendant would allow him to use the courtroom to intimidate his victim
which would, in turn, potentially deter future testimony and obstruct the
efficient administration of justice and demean the court’s authority, even if
the proceeding had concluded. Id. In Moody, the Supreme Court of
Pennsylvania additionally noted that while there is a right to counsel in
contempt proceedings, the court, where required to act immediately to restore
order and vindicate its authority, may do so as long as the assistance of
counsel is secured prior to actual imprisonment for contempt. Moody, 125
A.3d at 14-15.
As noted, above, this is not a situation in which Mother faced immediate
imprisonment or other imminent harsh sanction for her aggressive conduct
toward Maternal Aunt. Hence, the case law cited above supports the
conclusion that the trial court properly exercised its inherent power to
maintain courtroom authority, as well as to impose moderate sanctions for
actions that occurred outside of the physical presence of the court but which
threatened to interfere with its immediate business. See, e.g., Falana, 696
A.2d at 129. Where such unfortunate situations arise, the law also permits
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the imposition of sanctions for conduct committed after the conclusion of a
proceeding. Id.
Here, the court entered the challenged orders following the conclusion
of a status review hearing, at which it was empowered both to make decisions
and enter orders to secure and safeguard the Children’s health, safety, and
welfare, and to maintain the authority of the court. The court found Maternal
Aunt’s statements regarding Mother’s actions credible, and acted to prevent
Mother from continuing to engage in threatening behavior toward Maternal
Aunt, who was then serving as a kinship foster placement resource for the
Children and who was a likely witness in future proceedings. There can be
little doubt that a foster parent’s personal knowledge and impressions are
probative of the Children’s health, safety, and welfare and that her continuing
and unfettered participation in the dependency proceedings would be of
utmost importance to the court and worthy of its protection. Moreover, the
orders issued by the trial court were extremely limited in both scope and
severity, as it imposed no incarceration, no fines, no prohibition or restriction
on Mother’s employment, no impairment of Mother’s visitation rights with the
Children, and no restriction on Mother’s movement other than to stay away
from Maternal Aunt. Although Mother’s outburst toward Maternal Aunt
occurred in a hallway, and not in the courtroom, the misbehavior was “so near
[the courtroom] as to interfere with the immediate business of the court.”
Marcone, 410 A.2d at 762. Hence, I would hold that the trial court acted
within its discretion in finding that Mother’s conduct posed a significant
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disruption to ongoing dependency proceedings since her aggressive behavior
toward Maternal Aunt, a key witness in the dependency litigation, clearly
undermined the court’s authority and the administration of orderly
proceedings. See Falana, 696 A.2d at 129. In analogous contempt
proceedings, a court may enter such orders even after the proceedings
conclude, and without the usual due process concerns of a review hearing or
trial. Moody, 125 A.3d at 8-15; Falana, 696 A.2d at 129. Accordingly, I find
Mother’s arguments to be unavailing and would affirm the trial court’s orders.
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