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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: B.M.P., MATERNAL :
AUNT :
:
:
:
: No. 1722 EDA 2020
Appeal from the Order Entered August 12, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-1000097-2016
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 9, 2021
Appellant, B.P. (“Maternal Aunt”), appeals the order entered on August
12, 2020, in the Philadelphia County Court of Common Pleas, denying her
motion to appeal nunc pro tunc the dependency court’s July 1, 2019,
Dependency Court Protective Order. After review, we affirm the dependency
court’s order.
Maternal Aunt’s niece, N.J., born in October 2015 (“Child”), was
adjudicated dependent on July 22, 2016. Subsequently, Child’s permanency
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* Former Justice specially assigned to the Superior Court.
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goal was changed to adoption and Mother’s and Father’s parental rights were
terminated on September 19, 2018.1
On July 1, 2019, Maternal Aunt, through counsel, filed a Motion to
Intervene and sought sibling visitation as she has custody of Child’s siblings.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 Maternal Aunt 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.
On August 11, 2020, Maternal Aunt filed her Motion to File Nunc Pro
Tunc, pro se, seeking to appeal the dependency court’s July 1, 2019,
protective order. Maternal Aunt averred she was not given notice of the July
1, 2019, hearing and did not receive the order until after the appeal period
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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.
2 This motion was denied on August 19, 2020. See Permanency Review Order,
8/19/20. Notably, Maternal Aunt further indicates she currently has an
adoption petition for Child pending.
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expired. Motion for Nunc Pro Tunc, 8/11/20. By order dated and entered
August 12, 2020, the court denied Maternal Aunt’s motion.
Thereafter, on September 10, 2020, Maternal Aunt 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, 2020.3, 4
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3 We observe that other family members, namely Maternal Grandmother, were
involved in litigation in this matter throughout its pendency. See Docket.
4 On November 5, 2020, the dependency court forwarded the certified record.
The court notes the limited nature of the documents contained therein in order
to prevent unauthorized access. See Letter, 11/5/20 (stating, in part, “In
accordance with statute, rule, sealing order of the trial court, or Public Access
Policy of the Supreme Court of Pennsylvania, I have only attached limited
documents, in order to prevent unauthorized access.”). Review of related
appeals surrounding this matter, in particular that of Maternal Grandmother
from a denial of a motion to intervene, reveal that unauthorized access to
record documents presented an issue. In that appeal, this Court entered the
following order,
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.
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On appeal, Maternal Aunt raises the following issues for our review:
1. Did the court err and violate the basic tenets of due process by
not providing [Maternal Aunt] notice of the hearing, the
opportunity to prepare a proper defense, to secure legal
representation and the opportunity to be heard?
2. Did the Judge err by denying [Maternal Aunt] the right to a
relationship with her biological relative who filed an adoption
petition against the child’s best interest?
Maternal Aunt’s Brief at 2 (unnumbered).
Prior to reaching the merits of Maternal Aunt’s claims on appeal, we
examine the timeliness of Maternal Aunt’s appeal and whether we
appropriately have jurisdiction. On this topic, the dependency court stated,
On September 10, 2020, Maternal Aunt filed a Pro Se appeal
for an Order denying a Nunc Pro Tunc Motion relating to an order
entered on July 1, 2019. . . . The underlying appeal filed by
Maternal Aunt is untimely and should be quashed. In the instant
matter, the July 1, 2019 Order was entered on the trial court
docket the same date. Thus, the appeal was required to be filed
within thirty (30) days of July 1, 2019. Since the Maternal Aunt
filed the appeal on September 10, 2020[,] the Superior Court is
divested of jurisdiction as to the July 1, 2019 Order and the appeal
must be quashed.
Dependency Court Opinion, 11/4/20, at 1 (citations omitted).
Pursuant to Pennsylvania Rule of Appellate Procedure 903, “the notice
of appeal required by Rule 902 . . . shall be filed within 30 days after the entry
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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.
See In the Interest of N.J., A Minor, 2066 EDA 2019 (Pa.Super. April
15, 2020) (unpublished memorandum at 3).
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of the order from which the appeal is taken.” Pa.R.A.P. 903(a); see also
Pa.R.A.P. 108(b) (“The date of entry of an order . . . shall be 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 also Valley Forge
Center Assoc. v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa.Super. 1997) (this
Court is without jurisdiction to excuse the failure to file a timely notice of
appeal as the 30-day period for appeal must be strictly construed; untimely
appeal divests this Court of jurisdiction).
Further, it is well-settled that, “[a]n appeal lies only from a final order,
unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468,
471 (Pa.Super. 2013); see also In the Interest of J.M., 219 A.3d 645, 650
(Pa.Super. 2019). Generally, a final order is one that disposes of all claims
and all parties. See Pa.R.A.P. 341(b). In the context of dependency, this
Court has further stated,
“. . .[D]ue to dependency’s unique nature, the fact that further
proceedings are contemplated is not dispositive of the finality of
the order. In the Interest of J.L., 216 A.3d 233, 2019 WL
3295100, at 3 n.1 (Pa.Super. 2019). In the dependency context,
the court “must examine the practical consequences of the order
to determine if the party challenging it has effectively been put
out of court.” In re Interest of M.B., 388 Pa.Super. 381, 565
A.2d 804, 806 (1989).
J.M., 219 A.3d at 652.
Instantly, we decline to quash Maternal Aunt’s appeal as untimely. We
find that Maternal Aunt appealed the August 12, 2020, order denying nunc
pro tunc relief in a timely manner. An appeal of the order dated and entered
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August 12, 2020, was required to be filed by September 11, 2020. See
Pa.R.A.P. 903(a); see also Pa.R.A.P. 903 Note (Pa.R.A.P. 107 incorporates
by reference the rules of the Statute Construction Act of 1972, 1 Pa.C.S. 1901-
1991. 1 Pa.C.S. 1908(2) provides for the omission of the last day on time
which falls on a Saturday, Sunday, or legal holiday). Hence, Maternal Aunt
filed a timely notice of appeal on September 10, 2020. Moreover, as the order
denied nunc pro tunc relief, we further determine that it was a final,
appealable order. Notwithstanding, we find the issues Maternal Aunt has
raised on appeal relate to the protective order of July 1, 2019, and are
waived.
Maternal Aunt initially asserts her due process rights with regard to the
July 1, 2019, order have been violated due to her lack of notice of the hearing
and her inability to secure counsel, prepare a defense, and be heard. Maternal
Aunt’s Brief at 7-9 (unnumbered). Maternal Aunt further maintains that the
dependency court denied the constitutional right to a secure and stable family
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relationship.5, 6 Id. at 9-14 (unnumbered). Maternal Aunt, however, failed to
appeal the July 1, 2019 order.7 Such order was a final, appealable order;
thus, Maternal Aunt’s issues on appeal as they relate to that order are waived.
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5 Maternal Aunt argues, in part, that the dependency court was by its own
admission improperly entering orders due to pending adoption. Maternal
Aunt’s Brief at 11-12 (unnumbered). Notably, an appeal of a denial of
Maternal Grandmother’s motion to intervene was remanded at the request of
the dependency court as the matter was under the jurisdiction of the adoption
court at the time. See In the Interest of N.J., A Minor, 2066 EDA 2019
(Pa.Super. April 15, 2020) (unpublished memorandum at 2, 4). The docket
reflects that the dependency court has been holding various proceedings and
issuing various orders since remand in April 2020. The status of the adoption
proceeding at the current time is unknown.
6 We observe that Maternal Aunt’s arguments are disorganized, disjointed and
rambling, and at times mingled. For this reason alone we could find waiver.
It is axiomatic that:
[a]ppellate briefs ... must materially conform to the requirements
of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101.
This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules
of Appellate Procedure. Id. Although this Court is willing to
liberally construe materials filed by a pro se litigant, pro se status
confers no special benefit upon the appellant. To the contrary, any
person choosing to represent [her]self in a legal proceeding must,
to a reasonable extent, assume that [her] lack of expertise and
legal training will be [her] undoing.
In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010), appeal denied, 20
A.3d 489 (Pa. 2011) (some citations omitted). See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of appellate brief).
7 While Maternal Aunt appeals the August 12, 2020, order denying her request
for nunc pro tunc relief, See Notice of Appeal, 9/10/20, the issues she raises
do not pertain to the merits of that underlying order. In fact, she states, “The
record confirms that this court and DHS did not notify me of the July 1, 2019
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Moreover, Maternal Aunt waived any challenge relating to the denial of
nunc pro tunc relief as she failed to raise and address this issue in her Rule
1925(b) statement, in the Statement of Questions Involved section of her
appellate brief, or the Argument portion thereof.8 See Krebs v. United
Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to
preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver of those issues); see also In re W.H., 25
A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364(2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”); see also In re M.Z.T.M.W., 163
A.3d 462, 465-66 (Pa.Super. 2017).
In addition, as the underlying July 1, 2019, protective order expired July
1, 2020, the matter is moot.
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stay away order that I am appealing,” Maternal Aunt’s Brief at 10
(unnumbered) (emphasis added).
8 Instead, Maternal Aunt merely states, “The record confirms that this court
and DHS did not notify me of the July 1, 2019 stay away order. . . . I received
a copy of the stay order on July 28, 2020. I filed this Nunc Pro Tunc appeal
on August 12, 2020. . . .” Maternal Aunt’s Brief at 10. Critically, this is stated
in passing in the context of Maternal Aunt’s claims in opposition to the July 1,
2019 order.
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As a general rule,
an actual case or controversy must exist at all stages of the
judicial process, or a case will be dismissed as moot. An issue
can become moot during the pendency of an appeal due to
an intervening change in the facts of the case or due to an
intervening change in the applicable law. In that case, an
opinion of this Court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court
cannot enter an order that has any legal force or effect.
In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002).
The dependency court reasoned, “By way of further response, the
underlying Order was valid until July 1, 2020. Consequently, the matter is
now moot.” Dependency Court Opinion, 11/4/20, at 1. We agree that
because the July 1, 2019, protective order expired July 1, 2020, there is no
longer a controversy and the matter is moot.
Nevertheless, this Court will decide questions that otherwise have been
rendered moot when one or more of the following exceptions to the mootness
doctrine apply: 1) the case involves a question of great public importance, 2)
the question presented is capable of repetition and apt to elude appellate
review, or 3) a party to the controversy will suffer some detriment due to the
decision of the trial court. Id. However, as none of the enumerated
exceptions to the mootness doctrine apply herein, we conclude that Maternal
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Aunt’s issues are moot and not subject to exception.9 Accordingly, there is no
controversy and we could not address the merits of Maternal Aunt’s claim.10
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9 While Maternal Aunt 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. Maternal Aunt’s Brief at 7
(unnumbered). The July 1, 2019, protective order was valid for one year and,
as indicated above, Maternal Aunt had counsel involved at or around the time
of its issuance. Also, other family members were involved with litigation and
Maternal Aunt 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.”).
10Even if Maternal Aunt had properly preserved her claims for appellate review
and the matter had not been rendered moot, they would not merit relief.
When examining the August 12, 2020, order denying nunc pro tunc relief, we
are mindful of the following:
Our Supreme Court has characterized the purpose of
nunc pro tunc restoration of appellate rights as follows:
Allowing an appeal nunc pro tunc is a recognized
exception to the general rule prohibiting the extension
of an appeal deadline. This Court has emphasized that
the principle emerges that an appeal nunc pro tunc is
intended as a remedy to vindicate the right to an appeal
where that right has been lost due to certain
extraordinary circumstances. Generally, in civil cases an
appeal nunc pro tunc is granted only where there was
fraud or a breakdown in the court’s operations through
a default of its officers.
Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals
& Review of Allegheny Cty., 560 Pa. 481, 746 A.2d 581,
584 (2000) (citations and internal quotation marks omitted).
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Our standard of review over an order denying nunc pro
tunc restoration of a petitioner’s appellate rights is
deferential:
The denial of an appeal nunc pro tunc is within the
discretion of the trial court, and we will only reverse for
an abuse of that discretion. Freeman v. Bonner, 761
A.2d 1193, 1194 (Pa.Super. 2000). In addition to the
occurrence of “fraud or breakdown in the court’s
operations,” nunc pro tunc relief may also be granted
where the appellant demonstrates that “(1) [his] notice
of appeal was filed late as a result of nonnegligent
circumstances, either as they relate to the appellant or
the appellant’s counsel; (2) [he] filed the notice of
appeal shortly after the expiration date; and (3) the
appellee was not prejudiced by the delay.” Criss v.
Wise, 566 Pa. 437, 781 A.2d 1156, 1159 (2001).
Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075
(Pa.Super. 2004) (citations modified). “An abuse of
discretion occurs when a trial court, in reaching its
conclusions, overrides or misapplies the law, or
exercises judgment which is manifestly unreasonable, or
the result of partiality, prejudice, or ill will.” U.S. Bank
N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009).
Vietri ex rel. Vietri v. Delaware Valley High School, 63 A.3d 1281, 1284
(Pa.Super. 2013); see also Fischer v. UPMC Northwest, 34 A.3d 115, 120
(Pa.Super. 2011). Further, “a petition to file an appeal nunc pro tunc must
be filed within a reasonable time,” regardless of the circumstance alleged.
Amicone v. Rok, 839 A.2d 1109, 1114 (Pa.Super. 2003) (citation omitted)
(upholding denial of petition to file appeal nunc pro tunc where lengthy delay
after expiration of the appeal period was coupled with the absence of a
satisfactory explanation for the delay).
As to the circumstances and reasonableness surrounding the delay of
Maternal Aunt’s appeal, the dependency court stated, “Finally, [Maternal Aunt]
alleges she received the Order after the appeal period ended. She does not
indicate when she actually learned of the Order and how long it actually took
to file the Nunc Pro Tunc Appeal. . . .” Dependency Court Opinion, 11/4/20,
at 2. Upon review, we would agree.
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For the foregoing reasons we affirm the order of the dependency court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/21
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In her Motion to File Nunc Pro Tunc, Maternal Aunt baldly stated, “I
received the order after the appeal period expired.” Motion to File Nunc Pro
Tunc, 8/11/2020. In her brief she further indicated, “The record confirms that
this court and DHS did not notify me of the July 1, 2019 stay away order. . .
. I received a copy of the stay order on July 28, 2020. I filed this Nunc Pro
Tunc appeal on August 12, 2020. . . .” Maternal Aunt’s Brief at 10; see also
Reply Brief at 1, ¶ 2 (stating that she “learned of” the order on July 28, 2020).
While the record suggests the dependency court did not send a copy of
the July 1, 2019, order to Maternal Aunt or her counsel at the time,10 see
Docket, Maternal Aunt notes that counsel who filed her July 1, 2019, Motion
to Intervene had been involved in and/or present for a hearing in some
capacity shortly thereafter, in August 2019, although the extent of counsel’s
involvement is unclear. See id. at 3 (unnumbered). Moreover, other family
members, notably, Maternal Grandmother, also have been involved in
litigation in this matter throughout the last several years. See Docket.
Significantly, in support of her opposition to the underlying July 1, 2019,
protective order, Maternal Aunt cites to notes of testimony of various hearings
in this matter as well as to other documents throughout her brief which
suggests that she gained access to certain record documents. See, e.g.
Maternal Aunt’s Brief at 6. Accordingly, the record does not support a finding
that Maternal Aunt’s request for nunc pro tunc relief, filed over one year later,
was filed within a reasonable period of time.
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