In Re: S.W., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.W., A MINOR : IN THE SUPERIOR COURT
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APPEAL OF: S.S., MOTHER : No. 815 EDA 2019
Appeal from the Order Entered February 14, 2019
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0001332-2017
IN RE: L.J.-S., A MINOR : IN THE SUPERIOR COURT
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APPEAL OF: S.S., MOTHER : No. 816 EDA 2019
Appeal from the Order Entered February 14, 2019
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0001333-2017
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 10, 2019
S.S. (“Mother”) appeals from the permanency review orders entered
February 14, 2019, which suspended temporarily her visitation with her minor
daughters, S.W., born in July 2010, and L.J.-S., born in July 2013 (collectively,
“the Children”). After review, we quash the appeals.
The record reveals that the Philadelphia Department of Human Services
(“DHS”) filed dependency petitions with respect to the Children on May 16,
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* Former Justice specially assigned to the Superior Court.
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2017. In its petitions, DHS averred that it became involved with this family
in July 2015, due to concerns regarding the Children’s siblings, who are not
relevant to this appeal. Regarding the Children, DHS averred that Mother did
not enroll S.W. in school during the 2015-2016 school year and that S.W. had
forty-three unexcused absences during the 2016-2017 school year thus far.
When S.W. did attend school, she appeared dirty and unkempt. Among other
things, DHS averred that Mother had a history of marijuana use, that she
failed to attend meetings with the Community Umbrella Agency (“CUA”), and
that she failed to comply with services at the Achieving Reunification Center,
resulting in her repeated discharge. The trial court adjudicated the Children
dependent on June 21, 2017. In its orders, the court did not remove either
of the Children from Mother’s home.
Although the details are not entirely clear from the record, Mother was
incarcerated less than two months after the adjudication of dependency. The
trial court entered permanency review orders on September 14, 2017, in
which it transferred custody of the Children to their maternal grandfather and
provided Mother with supervised visitation, apparently contingent upon her
release. The court entered orders formally committing the Children to DHS’s
custody for placement with the maternal grandfather on December 21, 2017.1
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1The trial court entered permanency review orders on February 15, 2018, in
which it reiterated the directives from the orders of December 21, 2017. The
permanency review order regarding S.W. also indicated that the court would
be changing the child’s permanent placement goal to placement with a fit and
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Subsequently, according to permanency review orders entered June 14,
2018, Mother was released from incarceration and began exercising visitation
with the Children. It appears that the Children were no longer residing with
their maternal grandfather, as the orders indicated that they were in foster
care through different agencies. In addition, the record contains a copy of a
psychological evaluation of S.W., dated June 26, 2018, stating that the child
was residing with a foster mother. The trial court entered permanency review
orders on July 19, 2018, limiting Mother to line-of-sight/line-of-hearing visits
with the Children only.
The instant appeal arises from a permanency review hearing which took
place on February 14, 2019. During the hearing, DHS presented the testimony
of CUA case manager, Jazzmine Mowatt. In relevant part, Ms. Mowatt testified
that Mother continued to receive line-of-sight/line-of-hearing visits at CUA.
N.T., 2/14/19, at 10. Since the preceding court date, Mother had attended
only seventeen out of twenty-six possible visits. Id. Ms. Mowatt expressed
concern that Mother made inappropriate statements to the Children during
visits, which appeared to cause severe negative reactions. Id. at 10-11. She
stated, “[t]here are conversations that she has with the [C]hildren, where she
does not hold them accountable for some of the behaviors that does [sic]
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willing relative. Oddly, however, the court stated in every permanency review
order thereafter that S.W.’s permanent placement goal remained return to
parent or guardian.
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occur, which then triggers them to go back in the foster homes and either get
into fights, issues, needing to be 302’d,[2] removed.”3 Id. Specifically, Ms.
Mowatt explained that S.W. had been “302’d” four times and that L.J.-S. had
engaged in “[f]ighting with peers, fighting with the staff, throwing desks, [and
was] not able to express herself in a -- in an appropriate way[.]” Id. at 27,
43, 65. With regard to L.J.-S., Ms. Mowatt testified that the child witnessed
particularly troubling behavior by Mother during a recent visit. She explained
that L.J.-S. alleged during the visit that her foster parent had hit her, and that
Mother “became pretty aggressive. . . . And the cops were called. And the --
Mom . . . refused to let the child leave.” Id. at 67. In light of these concerns,
as well as Mother’s noncompliance with services, Ms. Mowatt recommended
that the trial court suspend Mother’s visits with the Children. Id. at 11, 27,
72-73.
Ultimately, the trial court announced that it would suspend Mother’s
visits, but only temporarily, stating that it would reach a final decision once it
received a recommendation from a therapist. The court explained as follows:
In this case, I need to determine whether or not there’s a -
- a cause and effect between the [m]other’s visitation and [S.W.]
given the extreme history of her behavior. I need to objectively
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2 Being “302’d” is a colloquial term referring to an involuntary mental health
commitment pursuant to Section 302 of the Mental Health Procedures Act, 50
P.S. § 7302.
3 The testimony indicates that S.W. also become upset because of an incident
during which her father, D.W., told her that her sibling, who is not involved in
this appeal, was not her sibling. N.T., 2/14/19, at 48, 56.
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verify whether or not the mother’s interaction with the child is the
cause of any of her behavior issues. So, temporarily suspend.
***
All right. Regarding the visitation, Mother is to remain
suspended. . . . until I get a recommendation from [S.W.’s]
therapist that visitation . . . would be in the best interest of the
child.[4] This also includes no phone contact. It’s a no-contact
order.
And once I -- once the child is interviewed with her
therapist, then the therapist is -- can give me a recommendation
one way or the other. I believe to protect the child and protect
the child’s psychological interests, given the very dramatic history
she has had in contact with the mental health system, that
isolating the child and give her -- giving her a safe space and
giving her an opportunity to speak with her therapist and then the
therapist can make recommendations. . . .
***
Again, I’m going to -- taking all the circumstances into
consideration and considering the behavior of this mother with the
other children, there is a likely connection between her behavior
at these visitations and the subsequent behavior of the [C]hildren.
So, in the best interest of [L.J.-S.], I’m going to suspend the
visit[s].
And I will reinstate once we get information from a therapist
regarding the viability of such and whether or not there is any
connection between the mother’s behavior and the -- the resulting
behavior of the child. I can’t take this one child’s case in isolation.
And I -- regarding the facts and the potential disruptive,
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4Despite referring solely to the Children’s best interests during its explanation,
the trial court acknowledges in its opinion that the “grave threat” standard
controls whether it may deny Mother visitation. Trial Court Opinion, 5/7/19,
at 12; see In re C.J., 729 A.2d 89, 94 (Pa. Super. 1999) (“[B]ecause of the
constitutionally protected liberty interest parents have to such visitation,
parental visitation is usually not denied or limited unless visitation with the
parent poses a grave threat to the child.”).
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maladapted behavior of the child subsequent to contact with the
mother, I have to protect this child going forward.
And if it turns out that there is no connection, I will be very
quick to reinstate the visits. But, for now, for the safety and
mental best interest of the child, I’m going to suspend with the
same requirement that a therapist be assigned and begin therapy
and then make a recommendation at some point.
Id. at 46-47, 61-62, 73-74.
Following the hearing, the trial court entered permanency review orders
suspending Mother’s visits temporarily, “until a recommendation is received
from the child’s therapist.”5 Permanency Review Order (S.W.), 2/14/19, at 1;
Permanency Review Order (L.J.-S.), 2/14/19, at 1. In addition, the orders
scheduled a goal change hearing as to both Children for May 9, 2019. Mother
timely filed notices of appeal on March 14, 2019, as well as concise statements
of errors complained of on appeal.
Mother now raises the following claims for our review:
1. Whether the trial court abused its discretion when it terminated
[M]other’s visitation when there was no evidence that [M]other
presented a grave threat to the [C]hildren?
2. Whether the trial court abused its discretion when it terminated
[M]other’s visits when there existed a practicable continuation of
line[-]of[-]sight or therapeutic visits could have been afforded?
Mother’s Brief at 3 (proposed answers omitted).
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5 In its opinion, the trial court requests that we affirm its orders “temporarily
suspending Mother’s visitation with her Children until a therapist can
incorporate Mother into the Children’s trauma therapy[.]” Trial Court Opinion,
5/7/19, at 16. The court’s description of its orders appears to be erroneous,
as it contradicts the actual text of the orders, as well as the court’s statement
of its intent during the hearing on February 14, 2019.
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Before reaching the merits of Mother’s issues, we must consider whether
we possess jurisdiction over the instant appeal. “‘[S]ince we lack jurisdiction
over an unappealable order it is incumbent on us to determine, sua sponte
when necessary, whether the appeal is taken from an appealable order.’”
Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505, 508
(Pa. Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super.
2000)).
It is clear 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). Generally, a final order is one that disposes of all claims and all parties.
See Pa.R.A.P. 341(b). In this case, the February 14, 2019 orders fail to satisfy
the requirements of Rule 341(b). The orders did not dispose of all claims and
all parties, and contemplated further proceedings in the form of a goal change
hearing scheduled for May 9, 2019. Therefore, they are not final orders.
In reaching this conclusion, we observe that this Court has described,
at times, orders like this one as final and appealable. Specifically, this Court
has stated that orders involving custody and visitation in dependency matters
are final when entered. See, e.g., In re C.B., 861 A.2d 287, 289 n.1 (Pa.
Super. 2004), appeal denied, 871 A.2d 187 (Pa. 2005) (indicating that the
order on appeal, suspending visitation, “is a final, appealable order”). In doing
so, we have relied on language from our Supreme Court’s decision in In re
H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003), wherein the Court held that
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orders denying goal changes in dependency cases are final. See, e.g., C.B.,
861 A.2d at 289 n.1; In the Interest of N.M., 186 A.3d 998, 1006 (Pa.
Super. 2018), reargument denied (June 7, 2018) (citing H.S.W.C.-B. in a
dependency case for the proposition that “all orders dealing with visitation or
custody . . . are final when entered”).
However, in this Court’s most recent opinion addressing the subject, we
rejected entirely the notion that our Supreme Court intended in H.S.W.C.-B.
to render all orders in dependency matters dealing with custody and visitation
final when entered. See In the Interest of J.M., 2019 Pa. Super. LEXIS 914(Pa. Super. filed Sept. 13, 2019). J.M. involved orders that prohibited the
appellant mother from visiting with her children at her home unless both she
and the children tested negative for illegal substances. Id. at *3. Following
a careful analysis of the language in H.S.W.C.-B., this Court concluded that
our Supreme Court’s statement in that case “regarding the finality of ‘orders
dealing with . . . visitation’ was a mere observation and interpretation of
existing law pursuant to the Child Custody Act, not a binding prospective
holding regarding orders dealing with visitation pursuant to the Juvenile Act.”
Id. at *13 (quoting H.S.W.C.-B., 836 A.2d at 911). This Court concluded
that the orders at issue in J.M. were not final, observing, in relevant part, that
the trial court intended to revisit the issue of visits at the mother’s home at a
later court date, and that “the practical consequences of the orders do not put
Mother out of court in effect.” Id. at *14.
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We find this Court’s analysis in J.M. equally applicable to the instant
matter. As was the case in J.M., the trial court in this appeal expressed its
intent to revisit the issue of Mother’s visitation at a later hearing. Moreover,
the practical consequences of the court’s orders do not put Mother out of court.
To the contrary, the court scheduled a forthcoming goal change hearing in its
permanency review orders. We conclude once again that these orders are not
final, and that nothing in H.S.W.C.-B. suggests otherwise.
We next consider whether the February 14, 2019 permanency review
orders are appealable pursuant to the collateral order doctrine. See Pa.R.A.P.
313(a) (permitting an appeal as of right from the collateral order of a lower
court). “A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P.
313(b).
Concerning the first prong of the collateral order doctrine, this Court
discussed in J.M. whether visitation is separable from and collateral to the
main cause of action of a dependency proceeding. 2019 Pa. Super. LEXIS 914at *16-26. Much of this Court’s discussion focused on the question of what
precisely is the main cause of action in a dependency proceeding. Id. While
this Court analyzed the relevant issues at great length, we ultimately declined
to reach a conclusion. We stated simply that the matter is “quite complicated”
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and best left “for another day,” since the orders on appeal in that case failed
with respect to the second and third prong of the collateral order doctrine, and
no analysis of the first prong was actually necessary. Id. at *27.
Similarly, we decline to consider in the instant matter whether the issue
of Mother’s visitation is separable from and collateral to the main cause of
action of the Children’s dependency. Even if we were to hold that this issue
does satisfy the first prong of the collateral order doctrine, we would conclude
that the February 14, 2019 orders are still not appealable. It is clear that this
issue satisfies the second prong of the collateral order doctrine, as Mother has
a constitutional right to visit with the Children. C.J., 729 A.2d at 94.
However, the February 14, 2019 orders fail to satisfy the third prong of
the collateral order doctrine, as Mother’s claims will not be irreparably lost if
we postpone review. See In re Estate of McAleer, 194 A.3d 587, 593 (Pa.
2018), appeal granted, 201 A.3d 724 (Pa. 2019) (“To satisfy the third factor,
an issue must actually be lost if review is postponed.”). As detailed above,
the trial court suspended Mother’s visitation with the Children temporarily,
pending a recommendation from a therapist. If, after receiving the therapist’s
recommendation, the court decides to suspend Mother’s visitation indefinitely,
she will have the opportunity to appeal and raise her claims at that time. By
requiring that Mother appeal after the court makes its ultimate decision as to
whether to suspend visitation, this Court will ensure that we receive a more
developed record, including the therapist’s recommendation, which will aid us
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in conducting appellate review. See J.M., 2019 Pa. Super. LEXIS 914 at *28-
29 (finding no irreparable loss where the trial court did not deny home visits
indefinitely, stated that it would revisit the issue later, and continued the case,
meaning that it “would have the opportunity to address the issue again after
hearing all of the most-up-to-date evidence . . . .”). Moreover, this will allow
us to avoid the possibility of expending time and resources considering the
merits of Mother’s appeal, only for the court to reinstate visits, rendering our
efforts inconsequential. By postponing review, this Court is not preventing
Mother from challenging the suspension of her visits. Rather, we are requiring
that Mother must appeal the suspension, if necessary, at a more appropriate
time.6
Based on the foregoing, the February 14, 2019 permanency review
orders are not final orders pursuant to Rule 341, nor are they collateral orders
pursuant to Rule 313.7 Therefore, this Court lacks jurisdiction to review the
temporary suspension of Mother’s visits and we must quash her appeal.
Appeals quashed.
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6 We also observe that the trial court scheduled a goal change hearing for May
9, 2019. It is beyond cavil that orders granting or denying a goal change are
final and appealable. H.S.W.C.-B., 836 A.2d at 911. Thus, if the court has
failed to reach a decision as to Mother’s visitation by the time it enters its goal
change order, assuming that it has not done so already, Mother may appeal
and challenge the suspension then as well.
7 We note as well that the permanency review orders are not interlocutory
orders appealable as of right, pursuant to Pa.R.A.P. 311, and that Mother did
not attempt to bring these appeals before the Court as interlocutory appeals
by permission pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/19
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