In the Int. of: B.G.J., Appeal of: M.S.J. ( 2021 )

J-S18031-21
J-S18032-21
J-S18033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.G.J. A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S.J., MOTHER :
:
:
:
: No. 2263 EDA 2020
Appeal from the Order Entered October 29, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000868-2019,
CP-51-DP-0001598-2018
IN THE INTEREST OF: B.G.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S.J., MOTHER :
:
:
:
: No. 258 EDA 2021
Appeal from the Order Entered October 29, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000868-2019
IN THE INTEREST OF: B.G.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S.J., MOTHER :
:
:
:
: No. 259 EDA 2021
Appeal from the Order Entered October 29, 2020
J-S18031-21
J-S18032-21
J-S18033-21
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001598-2018
IN THE INTEREST OF: B.G.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: B.N.S., FATHER :
:
:
:
: No. 2264 EDA 2020
Appeal from the Order Entered October 29, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000868-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 29, 2021
Appellants, M.S.J. (“Mother”) and B.N.S. (“Father”), appeal from the
decrees and orders entered on October 29, 2020, in the Philadelphia County
Court of Common Pleas, granting the petitions filed by the Philadelphia
Department of Human Services (“DHS”) and involuntarily terminating their
parental rights to their minor, female child, B.G.J.,1 born in June 2018
(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b), and changing Child’s permanency goal from reunification to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Child was formerly known as A.J.
-2-
J-S18031-21
J-S18032-21
J-S18033-21
adoption, pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.2 Upon review, we
quash the pro se appeals filed by Mother and Father, respectively, at Docket
Nos. 2263 and 2264 EDA 2020, for lack of jurisdiction; dismiss as moot
Mother’s motion to consolidate her pro se appeal with the consolidated appeals
that her counsel filed on her behalf at Docket Nos. 258 and 259 EDA 2021;
and quash Mother’s counseled appeals at Docket Nos. 258 and 259 EDA 2021
as untimely and duplicative.
We briefly summarize the facts and procedural history of this case. At
the time of Child’s birth, Child came to the attention of DHS because of the
hospital’s concerns regarding Mother and Father. N.T., 10/29/20, at 22-23.
Specifically, Mother refused a Caesarean-section, and Child was born and
remained unresponsive for a few minutes. Id. at 41. Mother and Father then
refused a cooling procedure for Child, despite the doctors’ insistence, and, as
a result, Child spent a week in the intensive care unit for newborns. Id. at
41-43. Mother also attempted to sneak Child out of the hospital after her
birth. Id. at 44-45. DHS provided Mother and Father single case plans. Id.
at 23 and 32. Mother’s and Father’s compliance with their plans was minimal.
Id. at 29 and 34. Neither Mother nor Father participated in Child’s early
intervention services. Id. Child was placed in foster care soon after her birth
____________________________________________
2 We have addressed Mother’s and Father’s appeals in one Memorandum for
ease of disposition. We note that Mother attached to her notice of appeal the
termination decree relating to the termination of Father’s parental rights, and
not the termination decree relating to the termination of her parental rights.
-3-
J-S18031-21
J-S18032-21
J-S18033-21
and she has remained in the same foster care placement, where she is doing
well developmentally. Id. at 36. Her relationship with her foster mother is
“positive.” Id. The Community Umbrella Agency (“CUA”) case manager
testified that she did not believe Child would suffer irreparable harm if
Mother’s and Father’s rights were terminated. Id. at 37-38.
On July 9, 2018, the trial court adjudicated Child dependent, and
established Child’s permanency goal as reunification with Mother and Father.
The trial court conducted regular permanency review hearings and maintained
Child’s placement and goal.
On November 26, 2019, DHS filed a petition for the termination of
Mother’s and Father’s parental rights. On October 29, 2020, the trial court
held a hearing on goal change and the termination petitions. At the hearing,
Attorney Robin Winthrop Banister represented Mother, and Attorney Lindsay
Palmer Demas represented Father. The Support Center for Child Advocates
represented Child as her guardian ad litem (“GAL”) and legal interest counsel.
At the conclusion of the hearing on October 29, 2020, the trial court entered
separate decrees on the Family Court, Juvenile Division, docket involuntarily
terminating Mother’s and Father’s parental rights (Trial Court Docket No. CP-
51-AP-0000868-2019). On that same date, the trial court also entered an
order changing Child’s permanency goal to adoption on the Family Court,
Juvenile Division, docket (CP-51-DP-0001598-2018).
-4-
J-S18031-21
J-S18032-21
J-S18033-21
MOTHER’S APPEALS (DOCKET NOS. 2263 EDA 2020, 258 EDA
2021 AND 259 EDA 2021)
Mother, although she was still represented by Attorney Banister, on
November 25, 2020, acting pro se, timely filed a single notice of appeal from
both the termination decree and goal change order, noting both trial court
docket numbers for the termination matter (CP-51-AP-0000868-2019) and
the goal change matter (CP-51-DP-0001598-2018), and a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother attached to her notice of appeal the decree that terminated Father’s
parental rights and did not attach the decree that terminated her parental
rights.
On November 25, 2020, this Court entered Mother’s pro se notice of
appeal on our docket, however, and assigned her appeal docket number 2263
EDA 2020, as required by our case law.3
____________________________________________
3 Our Supreme Court has stated that individuals have “no constitutional right
to hybrid representation either at trial or on appeal
. . . .” Commonwealth v. Ellis, 626 A.2d 1137, 1339 (Pa. 1993);
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (emphasizing that hybrid
representation is forbidden on appeal). Our Supreme Court has instructed
that the pro se filing of a counseled defendant is “a legal nullity.”
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). See Commonwealth
v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (stating that, while hybrid
representation is generally not permitted on appeal, this Court is required to
docket a pro se notice of appeal “even in instances where the pro se appellant
(Footnote Continued Next Page)
-5-
J-S18031-21
J-S18032-21
J-S18033-21
On December 31, 2020, Attorney Banister filed a motion for
supersedeas requesting that we permit Mother to have visitation with Child
during the pendency of the appeal. On January 21, 2021, we denied the
motion for supersedeas.
In the meantime, on January 8, 2021, we entered an order directing
Attorney Banister to file an amended concise statement on or before January
19, 2021. On January 17, 2021, Attorney Banister filed a typed amended
____________________________________________
was represented by counsel in the trial court.”) (emphasis and internal
brackets omitted) (citation omitted).
Further, in S.C.B. v. J.S.B., 218 A.3d 905, 911 n.4 (Pa. Super. 2019),
this Court stated:
. . . As a general matter, our courts prohibit pro se filings by
represented appellants, and we treat those filings as legal
nullities. See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282,
293 (Pa. 2010). However, pro se notices of appeal are an
exception to this rule. In Commonwealth v. Cooper, 611 Pa.
437, 27 A.2d 944 (Pa. 2011), our Supreme Court held that a pro
se notice of appeal, filed while Cooper was represented by
counsel, was not a legal nullity, but was simply “premature.” More
recently, this Court observed that pro se notices of appeal filed by
represented appellants are distinguishable from other forms of
hybrid representation, because they protect the appellants’ right
to appeal as set forth in the Pennsylvania Constitution.
Commonwealth v. Williams, 2016 PA Super 262, 151 A.3d 621,
624 (Pa. Super. 2016) (“Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings . . . .
We thus hold that this Court is required to docket a pro se notice
of appeal despite Appellant being represented by counsel[.]”).
Therefore, we do not treat Mother’s pro se notice of appeal as a
legal nullity.
Id. at 911 n.4.
-6-
J-S18031-21
J-S18032-21
J-S18033-21
concise statement at Docket No. 2363 EDA 2020, listing only the termination
case, CP-51-AP-0000868-2019, and raising four issues, all relating to the
termination decree regarding Mother. Cf. Mudge v. Mudge, 6 A.3d 1031(Pa. Super. 2011) and J.M.R. v. J.M., 1 A.3d 902 (Pa. Super. 2010) (stating
that a failure to file a Rule 1925(b) statement of errors complained of on
appeal, when ordered by the Superior Court, will result in a waiver of all issues
on appeal).
On January 20, 2021, this Court entered a rule to show cause order
stating that Mother had filed only one notice of appeal from both the
termination decree and the goal change order, and that the amended concise
statement addressed only issues regarding the termination of Mother’s
parental rights, and, thus, this Court was requesting a response as to why we
should not quash the appeal pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (requiring a separate notice of appeal for each order on
appeal).
On January 29, 2021, Attorney Banister filed a notice of appeal from the
October 29, 2020 termination decree regarding Mother. She attached to the
notice of appeal Mother’s pro se concise statement listing only CP-51-AP-
0000868-2019 (the termination matter), and attached the October 29, 2020
termination decree regarding Mother. We assigned this counseled notice of
appeal from the termination decree regarding Mother our Docket No. 258 EDA
-7-
J-S18031-21
J-S18032-21
J-S18033-21
2021. On that same date, Attorney Banister also filed a notice of appeal from
the October 29, 2020 goal change order. She attached Mother’s pro se concise
statement, listing only CP-51-DP-0001598-2018 (the goal change matter),
and attached the October 29, 2020 termination decree regarding Mother
instead of the goal change order. We assigned this counseled notice of appeal
Docket No. 259 EDA 2021. Also on January 29, 2021, Attorney Banister filed
a response to our rule to show cause, stating that she had filed a corrected
notice of appeal with a concise statement for the termination decree (Docket
No. 258 EDA 2021), and a separate notice of appeal from the goal change
order (Docket No. 259 EDA 2021), and requesting that we not quash the
appeal.
On March 17, 2021, at Docket Nos. 258 EDA 2021 and 259 EDA 2021,
Attorney Banister filed a motion to withdraw as counsel. On that same date,
this Court denied the motion, without prejudice for counsel to file a request
for relief in the trial court. Also on March 17, 2021, acting sua sponte, this
Court consolidated the appeals at Docket Nos. 258 and 259 EDA 2021.
On April 13, 2020, we remanded the matter to the trial court, retaining
our jurisdiction, for the trial court to determine whether Attorney Banister had
abandoned Mother by failing to file a brief on Mother’s behalf. On April 15,
2021, Mother filed a motion to consolidate the appeal at Docket No. 2263 EDA
2020 with the appeal at Docket No. 259 EDA 2021, asserting that the appeal
-8-
J-S18031-21
J-S18032-21
J-S18033-21
at Docket No. 259 was a new number that replaced the appeal at Docket No.
2263. This Court did not rule on Mother’s motion; we did not consolidate
Mother’s pro se notice of appeal with her consolidated counseled appeals.
Thus, we listed Mother’s appeals, counseled and pro se, to be decided
consecutively.
In the meantime, on April 19, 2021, the trial court, after a hearing,
determined that Attorney Banister had not abandoned Mother, and directed
Attorney Banister to file a brief on behalf of Mother by close of business on
May 3, 2021. Subsequently, Attorney Banister filed the brief and proofs of
service indicating that she timely filed the brief on May 3, 2021.
FATHER’S APPEAL (DOCKET NO. 2264 EDA 2020)
Father, although still represented by Attorney Palmer Demas, on
November 30, 2020, acting pro se, timely4 filed a single notice of appeal from
both the October 29, 2020 termination decree relating to him, and the October
29, 2020 permanency goal change order. We docketed this appeal at our
Docket No. 2264 EDA 2020, per Williams. See note 3, supra. Father failed
to accompany his notice of appeal with a concise statement, however. On
December 28, 2020, this Court directed Father’s counsel, Attorney Palmer
Demas, to file a concise statement by January 4, 2021. On January 4, 2021,
Father’s counsel, Attorney Palmer Demas, filed a single notice of appeal, which
____________________________________________
4 See 1 Pa.C.S. § 1908 (regarding computation of time).
-9-
J-S18031-21
J-S18032-21
J-S18033-21
we assigned Docket No. 106 EDA 2021, from both the termination decree
relating to Father and the goal change order, attaching both the decree and
the order, and a concise statement raising both the termination decree and
the goal change order.
On January 7, 2021, this Court entered a second order directing
Attorney Palmer Demas to file an amended concise statement at appeal
Docket No. 2264 EDA 2020 by January 14, 2021. On January 12, 2021,
Attorney Palmer Demas filed an amended concise statement at each trial court
docket number, and, in the concise statement, challenging both the
termination and goal change. Cf. Mudge v. Mudge, 6 A.3d 1031 (Pa. Super.
2011) and J.M.R. v. J.M., 1 A.3d 902 (Pa. Super. 2010) (stating that failure
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, when
ordered by the Superior Court, will result in a waiver of all issues on appeal).
Subsequently, on March 22, 2021, upon the failure of Father’s counsel
to respond to our rule to show cause, this Court, acting sua sponte, dismissed
Father’s counseled appeal at No. 106 EDA EDA 2021 as untimely and
duplicative of his appeal at No. 2264 EDA 2020.5
QUASHAL FOR LACK OF COMPLIANCE WITH WALKER
____________________________________________
5 We note that the proper terminology would have been quashed as untimely
and duplicative. See Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 601
n.3, 782 A.2d 996, 1001 n.3 (2001)) (explaining that the proper term when
an appeal is untimely and this Court lacks jurisdiction is quashal, and not
dismissal).
- 10 -
J-S18031-21
J-S18032-21
J-S18033-21
Recently, in In the Interest of S.D., 2021 WL 2521629, 2021 PA Super
126, ___ A.3d. ___, (Pa. Super. 2021) (filed June 21, 2021), we addressed a
situation in which the trial court terminated the father’s and mother’s parental
rights to their children on the adoption docket and changed the children’s
permanency goal from reunification to adoption on the dependency docket.
The father and mother filed single notices of appeal as to each child that listed
two separate docket numbers, both the dependency and adoption docket
numbers. In S.D., we stated:
In June 2018, our Supreme Court filed its decision in
Walker disapproving of the practice of filing a single notice of
appeal from one or more appealable orders on more than [one]
docket number. See generally Walker, 646 Pa. 456, 185 A.3d
969 [(2018)]. The Court clarified that the 2013 amendment to
the official comment to Pa.R.A.P. 341(a) provides a “bright line
requirement for future cases . . . ‘[w]here ... one or more orders
resolves issues arising on more than one docket or relating to
more than one judgment, separate notices of appeals must be
filed.’” Id. at 468, 185 A.3d at 976 (quoting Pa.R.A.P. 341, Official
Note).
In Walker, the Commonwealth filed a single notice of
appeal from the trial court’s order that disposed of four separate
suppression motions filed by four defendants at four different
docket numbers. The Supreme Court found that “[g]iven the
clarification provided by the amendment to the Official Note, the
proper practice under Rule 341(a) is to file separate appeals from
an order that resolves issues arising on more than one docket.
The failure to do so requires the appellate court to quash the
appeal.” Walker, 646 Pa. at 469, 185 A.3d at 977. The Walker
court held that its ruling would apply prospectively to any notice
of appeal filed after its June 1, 2018 ruling. Id. at 469-70, 185
A.3d at 977
- 11 -
J-S18031-21
J-S18032-21
J-S18033-21
Thereafter, in an appeal involving the termination of
parental rights, this Court interpreted Walker to require quashal
when an appellant files a single notice of appeal from both the
dependency docket and adoption docket as separate notices of
appeal are required for discrete challenges to the permanency
goal change order and termination order. In the Matter of M.P.,
204 A.3d 976, 981 (Pa. Super. 2019).
This Court also has found that the holding in Walker is
subject to exceptions:
This Court has declined to quash a defective notice
of appeal when the defect resulted from an appellant’s
acting in accordance with misinformation from the trial
court, deeming the situation a breakdown in court
operations. See Commonwealth v. Larkin, 235 A.3d
350 (Pa. Super. 2020) (en banc)[.] In Larkin, an
appellant filed a pro se notice of appeal seeking relief
relating to more than one docket after the order informing
appellant of his appellate rights provided “Petitioner has
[30] days from the date of this order to file an appeal.”
[Larkin, 235 A.3d at 354] (emphasis in original). An en
banc panel of this Court held that this Court may “overlook
the requirements of Walker where . . . a breakdown occurs
in the court system, and a defendant is misinformed or
misled regarding his appellate rights.” Id. . . .
In the Int. of K.M.W., 238 A.3d 465, 469 (Pa. Super. 2020) (en
banc).
In K.M.W., a mother filed a timely single notice of appeal
from the decree that both terminated her parental rights on the
adoption docket and changed her child’s permanency goal to
adoption on the dependency docket. [The m]other argued that
her appeal should not be quashed pursuant to Walker as (1) she
only intended to appeal the termination on the adoption docket,
(2) included both docket numbers to mirror the trial court’s
caption, and (3) no party suffered prejudice. Id. at 469-70.
This Court rejected the mother’s claim that she solely
intended to challenge the termination order on the adoption
docket as she raised an issue on appeal challenging the trial
- 12 -
J-S18031-21
J-S18032-21
J-S18033-21
court’s goal change on the dependency docket when she argued
that CYS had not provided adequate reunification services prior to
filing the petition to terminate her parental rights. Id.
However, this Court declined to quash the mother’s appeal
due to a breakdown in court operations that occurred when the
trial court informed the mother that she could “seek relief from
this Court by filing a singular appeal from multiple lower court
docket numbers.” Id. at 470 (emphasis added).
Even though quashal was not necessary due to the
breakdown in court processes, the en banc panel in K.M.W.
acknowledged that this Court previously held that in a children’s
fast track case that, “we should overlook a technical defect in a
Notice of Appeal and avoid the ‘extreme action of dismissal’ when
the defect does not prejudice any party.” Id. at 470 n.2 (quoting
In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (declining
to quash appeal when appellant failed to comply with procedural
rules requiring an appellant to file a concise statement pursuant
to Pa.R.A.P. 1925 along with the notice of appeal)).
Nevertheless, this Court noted in K.M.W. that the decision
in Walker, in requiring quashal of an appeal that fails to comply
with Rule 341, did not provide an exception for children’s fast
track cases. K.M.W., 238 A.3d at 470. This Court asked the
Supreme Court to consider creating an exception to the Walker
holding to excuse a technical violation of Rule 341 in a children’s
fast track case when the violation “does not prejudice the parties,
and does not hamper our ability to review the appeal.” Id. at 470
n.2.
Here, the factual circumstances are not identical to those in
Walker as the trial court issued separate goal change orders as
to each child listing their dependency docket number and entered
termination orders as to each child listing their adoption docket
number. See Walker, 185 A.3d at 971 (“where a single order
resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case”) (emphasis added).
Nevertheless, to the extent that Father and Mother wished
to challenge both the termination orders on the adoption docket
and the goal change orders on the dependency dockets, they were
- 13 -
J-S18031-21
J-S18032-21
J-S18033-21
required to file a notice of appeal from each order for each child.
See Pa.R.A.P. 341, official comment (“[w]here . . . one or more
orders resolves issues arising on more than one docket or
relating to more than one judgment, separate notices of
appeals must be filed”) (emphasis added). Consistent with the
holding in Walker, the Supreme Court has confirmed, prospective
to its June 1, 2018 decision, the filing of a notice of appeal that
fails to comply with Rule 341 and its Note shall result in quashal
of the appeal. See Walker, supra.
As such, this Court issued Rules to Show Cause on January
6, 2021 for Father and Mother to clarify the orders being appealed
and to demonstrate that they were not appealing two separate
orders under one notice of appeal in violation of the official note
to Rule 341 and Walker. In response, Father and Mother
indicated that they only intended to challenge the order that
terminated their parental rights, and inclusion of the dependency
docket numbers was in error.
However, we note that in their Rule 1925(b) statement and
appellate brief, Father and Mother claim CYS failed to show it
made reasonable efforts to assist in reunification of the Children
with Father and Mother prior to filing the termination petitions. In
making this argument, they cite to portions of the Juvenile Act.
As noted in K.M.W., this particular argument challenges the
trial court’s decision to change the Children’s permanency goal on
the dependency docket. K.M.W., 238 A.3d at 470. As a result,
we reject Father[’s] and Mother’s claim that they only intended to
appeal the lower court’s termination order on the adoption docket
and not the goal change order on the dependency docket.
In addition, Father and Mother do not claim that the trial
court mistakenly directed them to file a single notice of appeal to
challenge both the dependency and adoption dockets. In
reviewing the record, we find no evidence that Father and Mother
were misinformed or misled regarding their appellate rights.
While there are specific rules of criminal procedure
(Pa.R.Crim.P. 704, 720) that require the trial court to inform a
defendant of his appellate rights, there is no such requirement on
a trial court to provide a similar notification to parents concerning
- 14 -
J-S18031-21
J-S18032-21
J-S18033-21
their appellate rights after entering an order terminating their
parental rights. We decline to impose such a duty on the trial
court without applicable authority. Here, the silence of the trial
court with respect to giving guidance to the parents as to the
procedure for filing appeals does not constitute a breakdown in
the court processes. As such, we cannot excuse Father[’s] and
Mother’s non-compliance with Rule 341 and Walker due to a
breakdown in court processes.
Moreover, consistent with the decisions in K.M.W. and
M.P., we acknowledge that we have no authority to make an
exception in a children’s fast track case to the precedent in
Walker holding that quashal is required when an appellant fails
to file separate appeals pursuant to Rule 341. As this Court noted
in M.P.,
[w]e recognize the harsh – perhaps draconian –
consequence of quashing any appeal, and in particular an
appeal involving a party’s parental rights. However, our
role as an intermediate appellate court is clear. “It is not
the prerogative of an intermediate appellate court to
enunciate new precepts of law or to expand existing legal
doctrines. Such is a province reserved to the Supreme
Court.” Moses v. T.N.T. Red Star Exp., 725 A.2d 792,
801 (Pa. Super. 1999). It is well-settled that “the Superior
Court is an error correcting court and we are obliged to
apply the decisional law as determined by the Supreme
Court of Pennsylvania.” Commonwealth v. Montini, 712
A.2d 761, 769 (Pa. Super. 1998).
M.P., 204 A.3d at 981, n.2.
While Father and Mother filed a single notice of appeal to challenge
distinct rulings on two separate trial court docket numbers, they
were required to file separate notices of appeal for each docket.
Father and Mother filed their notices of appeal well after Walker
and M.P. were issued. The decisions in Walker and M.P. are
controlling precedent, and thus, we are constrained to quash
these appeals.
S.D., ___ A.3d at ___; 2021 WL 2521629, 2021 PA Super 126.
- 15 -
J-S18031-21
J-S18032-21
J-S18033-21
Here, as in S.D., Mother and Father each filed a single notice of appeal
to challenge distinct rulings, a termination decree and a permanency goal
change order, on two separate trial court docket numbers. They were required
to file separate notices of appeal for each docket. Additionally, as in S.D.,
Mother and Father do not claim that the trial court mistakenly directed them
to file a single notice of appeal to challenge both the dependency and adoption
dockets. After our review of the record, we do not find anything that would
suggest that the trial court misinformed or misled Mother and/or Father
regarding their appellate rights. As in S.D., Mother and Father filed their
notices of appeal well after the decisions in Walker and M.P. were filed. The
decisions in Walker and M.P. are controlling precedent. Thus, based on this
Court’s holding in S.D., we find we are constrained to quash Mother’s and
Father’s appeals for lack of compliance with Walker.
MOTHER’S MOTION TO CONSOLIDATE APPEALS AT DOCKET NOS.
2263 EDA 2020 AND 259 EDA 2021
Next, we consider Mother’s motion to consolidate her pro se appeal at
Docket No. 2263 EDA 2020 with her counseled appeals at Docket Nos. 258
and 259 EDA 2021. As we have quashed the appeal at Docket No. 2263,
supra, we find the motion is moot. However, we would find that, because
Counsel Banister untimely filed the appeals on behalf of Mother, for the
following reasons, we are constrained to dismiss those appeals, and could not
consolidate them with the appeal at Docket No. 2263 EDA 2020 in any event.
- 16 -
J-S18031-21
J-S18032-21
J-S18033-21
Although Attorney Banister attempted to file two separate notices of
appeal for Mother, one from the termination decree and one from the
permanency goal change order, in response to this Court’s direction to file a
concise statement, since that action came after Mother had filed her notice of
appeal and after the time for filing a notice of appeal had run, we did not
mislead Attorney Banister to file late appeals on behalf of Mother. Rather, our
January 20, 2021 rule to show cause directed Attorney Banister to file a
response showing cause why we should not quash Mother’s appeal pursuant
to Walker. Attorney Banister responded by filing, on January 29, 2021, the
separate notices of appeal from the October 29, 2020 termination decree
regarding Mother and the October 29, 2020 permanency goal change order.
Attorney Banister’s counseled appeals were untimely filed.
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
of the order from which the appeal is taken.” Pa.R.A.P. 903(a). We have
stated:
Additionally, this court can raise jurisdictional issues sua sponte.
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
2001). An appellant must file a notice of appeal “within 30 days
after the entry of the order from which the appeal is taken.”
Pa.R.A.P. 903(a). This court “may not enlarge the time for filing
a notice of appeal. . . .” Pa.R.A.P. 105(b). Absent a breakdown
in the operations of the court, “[t]ime limitations on the taking of
appeals are strictly construed and cannot be extended as a matter
of grace.” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002), appeal denied, 578 Pa. 716, 854 A.2d 967 (2004)
- 17 -
J-S18031-21
J-S18032-21
J-S18033-21
(internal citations omitted). See also Commonwealth v.
Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc).
Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). The
thirty-day appeal period is jurisdictional in nature, and an untimely appeal
divests this Court of jurisdiction. In re J.M.P., 863 A.2d 17, 19 (Pa. Super.
2004). See also In re: K.P., 872 A.2d 1227, 1230 (Pa. Super. 2005) (stating
that the appellate jurisdiction of this Court is invoked when the appellant files
an appeal within thirty days after the entry of the appealable order). Hence,
this Court has no jurisdiction to excuse a failure to file a timely notice of
appeal. In re Greist, 636 A.2d 193, 193-194 (Pa. Super. 1994). We are not
empowered to extend the thirty-day appeal period. See Pa.R.A.P. 105(b).
Thus, just as this Court dismissed Father’s counseled appeal at No. 106
EDA as untimely and duplicative, we must quash Mother’s counseled appeals,
which we previously consolidated, as untimely and duplicative.6 Accordingly,
although Mother’s motion to consolidate her pro se appeal with her
consolidated, counseled appeals is moot, we are constrained to dismiss those
appeals because Counsel Banister untimely filed the appeals on behalf of
Mother, and they are duplicative of Mother’s pro se appeal. We could not have
____________________________________________
6 See note 5, supra, (citing Sahutsky, 566 Pa. at 601 n.3, 782 A.2d at 1001
n.3 (explaining that the proper term when there is a lack of jurisdiction is
quashal and not dismissal).
- 18 -
J-S18031-21
J-S18032-21
J-S18033-21
consolidated the two counseled appeals with the pro se appeal at Docket No.
2263 EDA 2020 in any event.
For the reasons set forth above, we are constrained to quash Mother’s
and Father’s pro se appeals, respectively, at Docket Nos. 2263 and 2264 EDA
2020 under Walker; and we dismiss as moot Mother’s motion to consolidate
her appeals. Further, we quash Mother’s counseled appeals at Docket Nos.
258 and 259 EDA 2021 as untimely and duplicative of Mother’s pro se appeal
at Docket No. 2263 EDA 2020.
Appeals at Docket Nos. 2263 EDA and 2264 EDA 2020 quashed;
Mother’s motion to consolidate appeals dismissed as moot; appeals at Docket
Nos. 258 and 259 EDA 2021 quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2021
- 19 -