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

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2021 PA Super 153IN THE INTEREST OF: N.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: BUCKS COUNTY :
CHILDREN AND YOUTH SOCIAL :
SERVICES AGENCY :
:
: No. 2076 EDA 2020
Appeal from the Order Entered October 30, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-DP-0000023-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
OPINION BY NICHOLS, J.: FILED AUGUST 3, 2021
Bucks County Children and Youth Social Services (CYS) appeals from
the dependency review order regarding N.B. (Child), born in June of 2007,
who is the daughter of Q.B. (Father) and Am.B. (Mother) (collectively,
Parents), pursuant to 42 Pa.C.S. § 6351 of the Juvenile Act.1 CYS contends
that the trial court erred by requiring it to acquire and pay for the costs of a
Soberlink alcohol monitoring device2 for Father and by striking a provision in
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 6301-6365.
2 As described by the trial court,
Soberlink is an alcohol monitoring system used in several courts
to monitor a person’s sobriety at any time and in almost any
location. A person blows into the device, and the device measures
a person’s blood alcohol concentration (BAC). The Soberlink
device has facial-recognition technology to ensure the person
blowing into the breathalyzer is the intended individual. Once
Soberlink measures the person’s BAC, results are electronically
(Footnote Continued Next Page)
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the order at issue requiring Father to pay for the Soberlink costs once he
secures employment. We affirm.3
On January 19, 2018, CYS filed a dependency petition regarding N.B.,
which it subsequently amended on March 1, 2018. After an adjudicatory and
dispositional hearing on March 1, 2018, the trial court entered an order of
adjudication and disposition finding Child dependent pursuant to 42 Pa.C.S. §
6302(1), because Parents were abusing, among other things,
methamphetamine and alcohol. Thereafter, on March 2, 2018, the trial court
entered an amended order of adjudication and disposition. On March 6, 2018,
the trial court appointed a guardian ad litem (GAL) for Child, and, on June 13,
2018, the trial court appointed legal counsel for Child. A series of permanency
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sent to designated recipients. The Soberlink website states daily
testing plans cost between $149 and $249 per month. In the
family law arena, Soberlink is used to ensure a custodial parent
with a history of alcohol abuse is sober when supervising the
children.
Trial Ct. Op., 12/2/20, at 2 (formatting altered).
3 This case had a companion case, In the Interest of A.B., No. CP-09-DP-
24-2018, involving Child’s dependent, female sibling, A.B. (born in December
of 2005) (we refer to N.B. and A.B. collectively as Children), in which CYS also
filed an appeal.
On March 2, 2021, CYS filed a motion to discontinue the appeal at docket
number 2077 EDA 2020, stating that on February 5, 2021, the trial court
entered an order that terminated CYS supervision over A.B., and closed that
case, and, thus, the appeal was moot. We discontinued the appeal regarding
A.B. on March 26, 2021. Therefore, as the appeal at docket number 2077
EDA 2020 has been discontinued and closed, the two appeals are no longer
consolidated, and only 2076 EDA 2020 remains for disposition herein.
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review hearings and hearings regarding modifications to Child’s placement and
orders thereon followed.4
On October 14, 2020, the trial court held a status review hearing
regarding CYS’s most recent petitions for permanency review and modification
of Child’s placement, at which CYS, through its counsel, Brad M. Jackman,
Esq. (CYS’s Counsel), presented the testimony of its social worker, Ms. Lee
Wiggins. At the hearing, Sarah Tucker, Esq., represented Child as her GAL,
and Christine McMonagle, Esq., represented Child as her legal interest
counsel. Francine W. Kaplan, Esq., represented Father, who testified that
alcohol was his “biggest problem,” but that he has been “alcohol free for about
two months now.”5 N.T., 10/14/20, at 5. The trial court construed Father’s
testimony as the “largest hurdle in reunifying [Child] with” Parents. Trial Ct.
Op. at 1-2.
The trial court then ordered Father to get Soberlink and “test[ himself]
four times a day. It’s a machine that [CYS] will purchase for the purpose of
the test.” N.T., 10/14/20, at 6-7 (formatting altered). The trial court
estimated that the cost of Soberlink would be approximately $400, and the
monthly monitoring fee would be approximately $200 per month.6 Id. at 8.
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4 It does not appear that Parents and Child were close to reunification.
5 Attorney Jennifer Pierce, Esq., represented Mother.
6 Meanwhile, the trial court had explained the Soberlink device to Father. N.T.,
10/14/20, at 6-8.
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The following exchange then occurred between CYS’s Counsel and the trial
court:
[CYS’s Counsel]: Your Honor, you’re directing [CYS] to pay for the
monthly [Soberlink] fee as well?
THE COURT: Father’s laid off and unemployed, so yes. At some
point in time when [Father] gets employment, he will take
over responsibility for it.
[CYS’s Counsel]: Understood.
THE COURT: That’s the reason. If [CYS], when [Father] gets a
job, wants to put him on a payment plan to reimburse them, that’s
fine, too. I want to start it. Do you understand, [Father]?
[FATHER]: Yes, sir.
THE COURT: Is that going to present any issues for you?
[FATHER]: No.
THE COURT: If you fail, it will present some issues for me.
I believe you have a contract -- last I knew they required a two-
month contract for the tests, an agreement that you would do it -
- you don’t pay for the number of tests because they don’t care.
You pay by the contract.
So you will do this for at least two or three months, and we’ll get
every one of those tests instantaneously.
If [CYS] sees a pattern they don’t like, they can always file
immediately for whatever it is you wish to seek. But this has been
proven in Family Court, Criminal Court and other courts around
the country as an effective way to keeping [sic] track of clients
who are difficult clients or want to be tracked to make sure they
maintain their sobriety. . . .
Id. at 8-10 (emphases added). CYS did not object.
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Following the Soberlink discussion, the court heard testimony from Child
and Ms. Wiggins. See id. at 15-34. When the trial court asked if “[a]nybody
else [had] anything to add” at the end of the hearing, CYS’s Counsel did not
raise any objections. Id. at 33.
Although not memorialized at the hearing or in the record, the trial court
apparently ordered CYS to prepare a written order for the trial court to sign.
At some point in time, CYS submitted a proposed written order, which included
the following statement: “Once [Father] secures employment, he shall be
responsible for all costs.” Order, 10/30/20. CYS’s proposed order also stated
that the written order “confirms the verbal order entered in court on 10-14-
20.” Id. at 2 (formatting altered).
On October 30, 2020, the trial court entered an order that directed CYS
to pay for the costs “of acquiring and monitoring” a Soberlink alcohol
monitoring device for Father.7 Id. at 1. However, the trial court struck the
statement providing that Father would be responsible for the costs associated
with the alcohol monitoring device after he secured employment. Id. The
order also instructed Parents to be drug-tested on twenty-four hours’ notice
and did not otherwise reference any other costs. Id.
On November 10, 2020, CYS filed a timely notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On January 29, 2021, Parents filed a motion to quash
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7 There were no other references to costs in the order.
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CYS’s appeal with this Court, which was subsequently deferred to this panel
for disposition.
On appeal, CYS raises the following issues:
1. Did the [trial] court err and abuse its discretion by directing
[CYS] to obtain and maintain an alcohol monitoring device for
[Father]?
2. Did the [trial] court err and abuse its discretion by failing to
include in its written order a provision made in its verbal order
in court and on the record?
CYS’s Brief at 4.
CYS objects to the trial court’s sua sponte decision to order Soberlink
for Father, because (1) the record does not establish Father required such a
device, and (2) CYS should not have to pay for it for various reasons. Id. at
11-12. CYS suggests it was caught off-guard by the trial court’s decision and
therefore had no opportunity to propose alternatives to Soberlink to the trial
court. Id. at 13. CYS also states that the trial court erred by not correcting
CYS’s proposed written order with accurate language reflecting the trial court’s
verbal order regarding when Father could assume payment for the Soberlink
device. Id. at 14.
Parents’ Motion to Quash
Initially, we must address Parents’ motion to quash. Parents argue that
CYS’s appeal is based on an interlocutory order that is not otherwise
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appealable.8 In support of their claim, Parents cite In the Interest of J.M.,
219 A.3d 645 (Pa. Super. 2019).
“Jurisdiction is purely a question of law; the appellate standard of review
is de novo and the scope of review plenary.” J.M., 219 A.3d at 650 (citation
and quotation marks omitted). “In order to be appealable, the order must be:
(1) a final order, Pa.R.A.P. 341-42; (2) an interlocutory order appealable by
right or permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-12; or (3) a
collateral order, Pa.R.A.P. 313.” Id. (footnote omitted).
Moreover,
[t]he collateral order doctrine exists as an exception to the finality
rule and permits immediate appeal as of right from an otherwise
interlocutory order where an appellant demonstrates that the
order appealed from meets the following elements: (1) it is
separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the
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8 Parents’ motion to quash raises two additional grounds for “quashing” CYS’s
appeal: (1) CYS’s brief and reproduced record do not conform to numerous
rules of the Pennsylvania Rules of Appellate Procedure, and (2) CYS failed to
preserve the issues on appeal. Parents’ Brief at 12-23.
Our jurisprudence has not always been clear as to the grounds for quashing
an appeal. “An appeal is ‘quashed’ when the court lacks jurisdiction over the
appeal in the first instance. When the appellant has failed to preserve issues
for appeal, the issues are waived, and the lower court’s order is more properly
‘affirmed.’” In the Interest of K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007)
(citations omitted). Similarly, an appellant’s violations of the Rules of
Appellate Procedure may result in waiver of the issue. Terletsky v.
Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 687-88 (Pa. Super. 1994).
Therefore, Parents’ remaining two arguments are more properly framed as
arguments for waiver and not arguments for quashing the appeal. We address
Parents’ waiver arguments below.
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question presented is such that if review is postponed until final
judgment in the case, the claimed right will be irreparably lost.
Id. at 655 (citations omitted and formatting altered).9
In In re J.R., 875 A.2d 1111 (Pa. Super. 2005), the Philadelphia
Department of Human Services (DHS) appealed from an order that directed
DHS to provide home telephone service to the dependent child’s father. J.R.,
875 A.2d at 1114. The child’s father was required to call DHS and confirm in
advance his attendance for supervised visits with the child. Id. at 1113. If
the father did not call DHS in advance, DHS would cancel the father’s visits.
Id. After DHS informed the trial court that Father did not own a telephone,
the trial court sua sponte ordered DHS to provide Father with home telephone
service so that he could make the requisite attendance calls. Id. DHS
objected and suggested alternatives that the trial court did not entertain. Id.DHS filed a post-trial motion for reconsideration, which the trial court denied,
and DHS appealed. Id.In resolving the appealability of the trial court’s order, the J.R. Court
held that the interlocutory order was appealable under the collateral order
doctrine for the following reasons:
First, the order for telephone service is separable from and
collateral to the main cause of action, which is the dependency
determination and disposition. Second, the right involved is DHS’s
discretion to determine allocation of limited resources. This is a
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9 The J.M. Court addressed whether an order prohibiting visits at the mother’s
home was an appealable order. J.M., 219 A.3d at 649-50. The J.M. Court
quashed the appeal because the order was not a final order or a collateral
order. Id. at 649, 661.
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right too important to be denied review. Third, if review is
postponed and DHS ultimately prevails, it is unlikely that the
agency will be able to recoup the funds paid out pursuant to the
court order.
Id. at 1114 (citations omitted). Thus, the Court held that the order was
appealable under the collateral order doctrine, and we had jurisdiction to
review the merits of the appeal. Id.
Based on the foregoing, we agree with Parents that the order on appeal
is not a final order or an interlocutory order appealable by right or permission.
42 Pa.C.S. § 702(a), (b); Pa.R.A.P. 311-312, 341; see generally J.M., 219
A.3d at 650-55. However, the instant order instructing CYS to pay for
Soberlink is similar to the J.R. order instructing DHS to pay for home
telephone service. Cf. J.R., 875 A.2d at 1113-14. Like the J.R. Court, we
find that (1) the order at issue is separable from and collateral to the main
cause of action, i.e., Child’s dependency and disposition; (2) the right involved
is CYS’s “discretion to determine allocation of limited resources,” i.e., paying
for Father’s Soberlink monitoring device and the costs of monitoring Father’s
alcohol usage with that device; and (3) the question presented is such that if
review is postponed until final judgment in the case, the claimed right will be
irreparably lost, i.e., CYS will have already paid for the acquisition of the
device and the monitoring and will be unlikely to recoup the funds from Father.
Cf. id. For these reasons, we conclude that the order appealed from is an
appealable collateral order. See id. Therefore, we deny Parents’ motion to
quash.
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Parents’ Waiver Claims
Parents also argue that we should affirm the trial court’s ruling because
CYS filed a brief that contained numerous violations of the Pennsylvania Rules
of Appellate Procedure, including Rule 2119. Parents’ Brief at 12-13. Because
CYS’s violations do not substantially impede appellate review, we decline to
find waiver. See In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010)
(declining to find waiver because the court was able to identify claim in the
brief). For example, CYS’s failure to cite to the record does not impair our
review.10 See Pa.R.A.P. 2119(c). Therefore, we will address the merits of
CYS’s claims.
CYS’s Claim – Cost for Soberlink
CYS argues that the trial court abused its discretion by ordering CYS to
obtain and maintain a Soberlink device for Father. CYS’s Brief at 8. In
support, CYS argues that requiring it to pay for the Soberlink device was
inappropriate because (1) CYS has limited funds; (2) Soberlink was not a
necessary expense related to protecting Child; and (3) the record did not
establish that Father needed Soberlink to maintain his sobriety. Id. at 8-10.
CYS also argues that the trial court’s order was sua sponte in nature and that,
although CYS did not object to this requirement at the dependency hearing,
[t]he fundamental flaw of [the trial court’s ruling] is that, as noted
above, the [trial] court’s mandate of [CYS] funded [Soberlink]
monitoring came like a bolt out of the blue. Such proposition had
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10 We do not approve of CYS’s violations. See Commonwealth v. Briggs,
12 A.3d 291, 343 (Pa. 2011).
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not been proposed by the court nor by the any of the parties.
When the lower court issued such direction, [CYS] was left flat
footed and dumbfounded. There simply was no opportunity to
consider and present other alternatives.
There is nothing in the record as to the purpose of the mandate
to permit the Appellant to think about other options. The first
time that [CYS] was able to understand why the [trial] court did
what it did was when the [trial] court judge issued his opinion.
Id. at 13.
In response, Parents assert that “there was no attempt [by CYS] to
preserve the issue[s] on appeal” regarding payments for Soberlink at the
October 14, 2020 hearing. Parents’ Brief at 16. Parents emphasize that
instead of objecting, CYS’s Counsel answered that he “understood” the trial
court’s directive that CYS would pay for the monthly Soberlink fee. Id. at 17.
Further, Parents challenge the assertions made by CYS that the trial court’s
ruling “left [it] flat footed and dumbfounded,” arguing that “[i]f that becomes
a valid excuse for a failure to object, the contemporaneous objection rule will
lose all its teeth.” Id.
It is well settled that “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In In
the Interest of L.V., 209 A.3d 399 (Pa. Super. 2019), this Court found the
mother of a dependent child waived one of her issues for the following
reasons:11
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11 In L.V., the mother contended the trial court erred by delaying the
scheduling of the dependency hearing. L.V., 209 A.3d at 418.
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In order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court’s attention at a time when any error
committed could have been corrected. In this jurisdiction one
must object to errors, improprieties or irregularities at the earliest
possible stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.
209 A.3d at 418 (citation omitted and formatting altered); see also In re
A.W., 187 A.3d 247, 252-53 (Pa. Super. 2018) (holding that because the
parents’ counsel failed to timely object before the trial court, the parents
waived their issue that the trial court violated their right to due process
because, among other reasons, “the juvenile court’s interruptions made it
impossible [for the parents’] counsel to ‘make any argument which the court
would entertain’” (formatting altered)).
With respect to the requirement for a contemporaneous objection, our
Supreme Court has explained:
Appellate court consideration of issues not raised in the trial court
results in the trial becoming merely a dress rehearsal. This
process removes the professional necessity for trial counsel to be
prepared to litigate the case fully at trial and to create a record
adequate for appellate review. The ill-prepared advocate’s hope
is that an appellate court will come to his aid after the fact and
afford him relief despite his failure at trial to object to an alleged
error. The diligent and prepared trial lawyer—and his client—are
penalized when an entire case is retried because an appellate
court reverses on the basis of an error opposing counsel failed to
call to the trial court’s attention.
Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 116 (Pa. 1974).
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Here, at the October 14, 2020 hearing, CYS did not object when the trial
court ordered Soberlink and stated that CYS would purchase the Soberlink
device for Father. See N.T., 10/14/20, at 6-7. Moreover, CYS did not object
when the trial court explained Soberlink to Father. See id. at 7-8. CYS’s
Counsel then questioned the trial court as to whether CYS would pay for
Soberlink. The court estimated an initial cost of $400, along with the monthly
monitoring fee, which the court approximated as $200 per month. See id. at
8. When the trial court stated that Father would take over responsibility for
paying the costs when he “gets employment[,]” CYS’s Counsel acknowledged
that he understood the court’s directive. Id. at 9. Subsequently, the hearing
continued as the trial court heard testimony from Ms. Wiggins and Child,
without any objection by CYS regarding Soberlink. See id. at 15-34. At the
end of the hearing, the trial court asked the parties if “[a]nybody else [had]
anything to add” and CYS’s Counsel did not respond or object. Id. at 33.
Under these circumstances, we are constrained to conclude that CYS
failed to properly preserve its challenge to the provision requiring CYS to pay
for the acquisition and monitoring of Father’s Soberlink. Further, the CYS
argument that it “was left flat footed and dumbfounded,” is not an excuse
under Pennsylvania jurisprudence governing issue preservation and should
have prompted counsel to object for the record. See Dilliplaine, 322 A.2d
at 116. Therefore, CYS waived this issue and, accordingly, no relief is due.
See Pa.R.A.P. 302(a); L.V., 209 A.3d at 418; A.W., 187 A.3d at 252-53; see
generally Dilliplaine, 322 A.2d at 116.
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CYS’s Claim – Stricken Provision
In support of its second issue, CYS argues:
The [trial] court also addressed its striking of a provision in the
proposed order submitted to the court after the entry of the verbal
orders. It suggested that the language of the order did not
precisely dovetail the language of the verbal order. If the [trial]
court believed that the proffered provision was slightly inaccurate,
the [trial] court could have easily put the language in that it
believed to be accurate. The [trial] court failed to do so, which
was error on its part.
CYS’s Brief at 13-14 (formatting altered).
Before addressing the merits of this claim, we must examine whether
CYS preserved this issue for review. See Pa.R.A.P. 302(a). We note that CYS
could not have objected to the trial court’s striking of the challenged provision
until it saw the signed order. See Order, 10/30/20, at 1. Upon receiving the
signed order, however, CYS’s Counsel should have called the trial court’s
attention to the alleged error in the order so that the trial court could have
had the opportunity to correct the alleged error. See Dilliplaine, 322 A.2d
at 116; L.V., 209 A.3d at 418. Because CYS’s Counsel failed to do so, CYS
has waived this issue for appellate review. See Pa.R.A.P. 302(a).
In any event, even if CYS had preserved this claim for review, CYS would
not be entitled to relief. In reviewing an order in a dependency matter, our
standard of review requires us “to accept the findings of fact and credibility
determinations of the trial court if they are supported by the record, but does
not require the appellate court to accept the lower court’s inferences or
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conclusions of law. Accordingly, we review for an abuse of discretion.” In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
Here, the trial court addressed CYS’s claim as follows:
The trial court signed a [CYS]-prepared order. The reason for this
court’s strike of part of [CYS’s] proposed order was because the
[CYS]-prepared order did not accurately encapsulate this court’s
verbal order. During the hearing, this court stated, “At some point
in time when [Father] gets employment, he will take over
responsibility for the Soberlink payments.” This court never
stated Father will assume Soberlink payments the moment he
attains some form of employment; the verbal order only stated
“at some point in time” after Father attained employment. The
reasoning behind this is predictable—Father’s employment does
not necessarily mean he can afford the Soberlink device. Instead,
this court will make a fact-specific determination in deciding
whether Father has the means to pay for the Soberlink device.
Trial Ct. Op. at 6 (emphasis in original, footnotes omitted, some formatting
altered).
Based on our review of the record, we discern no abuse of discretion by
the trial court. See R.J.T., 9 A.3d at 1190. The CYS written order did not
reflect the condition that Father would resume responsibility “at some point in
time.” See Order, 10/30/20, at 1; N.T., 10/14/20, at 9. Instead, the written
order stated that Father would assume responsibility for the Soberlink
payments as soon as he regained employment, which differed from the terms
stated by the trial court at the initial hearing. See Order, 10/30/20, at 1;
N.T., 10/14/20, at 9. Therefore, we discern no abuse of discretion by the trial
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court in striking that directive. See R.J.T., 9 A.3d at 1190. Accordingly, even
if properly preserved, CYS would not be entitled to relief on this issue.12
For these reasons, we deny Parents’ motion to quash and affirm the trial
court’s October 30, 2020 order.
Motion to quash appeal denied. Order affirmed.
President Judge Panella joins the opinion.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2021
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12 We add that nothing in this decision or the trial court’s October 30, 2020
order prevents CYS from filing an appropriate motion with the trial court to
end CYS’s payment for Soberlink or to request that Father assume
responsibility for payment.
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