In the Interest of: T.M., a Minor

J-S44003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.S., MOTHER
No. 2665 EDA 2016
Appeal from the Order Entered July 26, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001713-2015
IN THE INTEREST OF: T.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.S., MOTHER
No. 2669 EDA 2016
Appeal from the Order Entered July 26, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001714-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 29, 2017
Appellant, T.S. (“Mother”), appeals from the July 26, 2016
permanency order, entered by the Court of Common Pleas of Philadelphia
County, that continued the dependency and foster care placement of
Mother’s two minor children, T.M. (“Child 1”) and T.M. (“Child 2”)
(collectively, “the Children”). On appeal, Mother claims that certain
provisions of that order violated her constitutional rights. After careful
review, we conclude that Mother’s issues are waived and, therefore, we
affirm.
The court summarized the facts and procedural history of this case, as
follows:
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On June 24, 2015, a dependency petition was filed as to … [the]
[]Children[] alleging that the Children had been sexually abused
in Mother’s home. Following a hearing on August 31, 2015, the
court adjudicated the Children dependent. The Children were
with Mother but the court order provided that they be removed
imminently. The Children were not removed, so the Philadelphia
Department of Human Services (“DHS”) obtained an Order for
Protective Custody. At a September 3, 2015[] hearing[,] the
Children were fully committed to DHS’s care, removed from
Mother and placed in foster care. Mother attended regularly-
scheduled permanency review hearings every three months, but
has not completed objectives set for her by DHS.
At a July 26, 2016[] permanency hearing, the DHS specialist
(“Specialist”) testified that the Children had been in care for
eleven months. Specialist had called Mother by telephone to
review Mother’s compliance with her objectives. Mother was not
completing any of her objectives. Mother told Specialist that she
wanted someone else named “Tina” to join in on the call.
Specialist told Mother that if Mother did not complete her
objectives, Mother could lose her Children forever. Mother told
Specialist that she would not complete her objectives or comply
with court orders. Specialist testified that Mother was recording
the call, and had done so before. Specialist testified that Mother
had vowed to record all calls and court proceedings. [At the
start of the July 26, 2016 hearing,] [t]he court had instructed all
parties to turn off their cell phones. The court questioned
Mother as to whether her phone was off, and Mother told the
court that it was. A sheriff looking over Mother’s shoulder told
the court that the phone was on. The court asked Mother if she
was recording the hearing secretly. Mother would not answer.
The court ordered Mother to erase the recording, then surrender
her phone to the sheriff for the duration of the hearing.
Specialist then informed the court that Mother had a second
phone in her bag. This phone was also on. The sheriff took the
bag and both phones. Mother told the court she was not
recording, but apologized for recording the hearing. Specialist
testified that during a meeting[,] Mother had suggestively asked
what Specialist would do if she found her [own] children dead.
Mother posted Specialist’s work email and address to the
websites and Facebook pages of the African National Women’s
Organization (“ANWO”) encouraging people to bombard
Specialist with emails demanding that Specialist give the
Children back to Mother. Mother also threatened to release
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Specialist’s home address online. This posting by Mother
resulted in Specialist[’s] receiving seventy-five to eighty emails
using similar language, holding Specialist personally responsible
for separating the Children from Mother. Specialist now feared
for her own safety. Mother uses the alias “Bonny Clyde” to post
on ANWO-related pages. The Community Umbrella Agency
(“CUA”) case manager testified that Mother had threatened her
family, and [she] feared for her personal safety. Mother refused
to sign consents for the Children to engage in therapy, even
though therapy was in their best interests. Mother refuses all
services and frequently states that she will not complete her
objectives. In order to enroll the Children in school, Mother was
ordered to write a letter explaining that she did not wish them to
be vaccinated. Mother produced a letter, but it was from 2014
and would not suffice to enroll the Children in school. The court
ordered that Mother stay away from Specialist, and that Mother
not harass or threaten DHS or CUA employees in person or
online. The court ordered that when Mother arrives for
supervised visitation at the agency, Mother is to surrender all
phones and recording devices for the duration of the visit.
Security at the agency was authorized to search Mother’s bag
and hold phones and recording devices if found. The court
further ordered that Mother was not to discuss the case with
persons other than her attorney and assigned DHS or CUA
employees online. Mother was also ordered not to use any
aliases to circumvent these orders. Specialist had to be escorted
from the hearing by a sheriff, because Mother had brought a
number of people from ANWO, who were waiting outside the
courtroom, to harass Specialist. On August 23, 2016, Mother
acting pro se … filed this appeal.
Juvenile Court Opinion, 10/11/16, at 1-3 (citations to the record omitted).
Attached to Mother’s pro se notice of appeal was a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Her attorney, who
petitioned to withdraw but was denied that request, also filed a
supplemental Rule 1925(b) statement on September 1, 2016. The court
issued its Rule 1925(a) opinion on October 11, 2016. Herein, Mother (now
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represented by new counsel) raises the following three claims for our
review:
1. Did the court below err in entering an overly broad “Gag
order[,”] in violation of the rights protected by the Constitutions
of the United States and of the Commonwealth of Pennsylvania?
2. Did the court below err in entering an order authorizing
agency “security” to search and seize Appellant’s bag and
personal possessions, in violation of rights protected by the
Constitutions of the United States and of the Commonwealth of
Pennsylvania?
3. Did the court below err in denying Due Process and Equal
Protection of Law to [Mother], as guaranteed by the
Constitutions of the United States and of the Commonwealth of
Pennsylvania?
Mother’s Brief at 4.
After carefully reviewing the record in this case, we conclude that
Mother has failed to preserve any of her three claims for our review. For
instance, in her first issue, Mother challenges the following portion of the
court’s July 26, 2016 order:
Mother is to refrain from threatening any of the social workers[.]
Mother is not to talk about this case to anyone[.] Mother is not
to place any pictures of social workers, judges, [attorneys], any
[court] personnel[] on Facebook, or social media[.] Mother is
not to use any other names[.]
Juvenile Court Order, 7/26/16, at 2 (unnecessary capitalization omitted).
Mother avers that the court’s order constitutes an “overbroad restriction” on
her right to free speech under the First Amendment of the United States
Constitution. Mother’s Brief at 16. She also complains that the court made
“no attempt to draft the ‘gag order’ as narrowly as needed.” Id.
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The record confirms that Mother did not preserve this claim before the
juvenile court. At the permanency review hearing on July 26, 2016, the
court explicitly informed Mother of the restrictions it was placing on her
speech, stating as follows:
THE COURT: … I’m going to issue a gag order against [M]other.
[Mother], you’re not to talk about this case to anyone.
That means you’re not to comment with any organization outside
of this courtroom…. And [you’re not to] threaten the workers,
any of the workers. You’re not to put any pictures on Facebook
and you’re not to allow anybody else to disparage the workers or
put their pictures on Facebook or any other social media.
You’re not to threaten any judge. Put [on social media]
pictures of any judges, of any court personal [sic]….
N.T. Hearing, 7/26/16, at 51-52. Mother at no point objected to the court’s
directives, or stated the constitutional concerns she presents herein. Mother
also did not file a motion for reconsideration after the court set forth these
restrictions on her speech in the written order issued after the hearing.
Instead, it is clear that Mother is attempting to raise her argument that the
court’s order violates her First Amendment rights for the first time on
appeal. Accordingly, that issue is waived for our review. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).1
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1
Additionally, we also point out that Mother did not present the specific
argument she asserts herein in either her pro se Rule 1925(b) statement, or
the supplemental Rule 1925(b) statement filed by her attorney. In those
documents, Mother simply asserted, without elaboration, that the court’s
order violated her First Amendment right to free speech. See Mother’s Pro
(Footnote Continued Next Page)
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Likewise, Mother’s second issue is waived for the same reason.
Therein, Mother challenges the following portion of the July 26, 2016 order:
Mother to continue supervised visits at the Agency…[.] Mother
[will] provide her cell phones and any recording devices to the
Agency worker/security at the visits[.] [S]ecurity is authorized
to search Mother’s bag, and after the visit, security is to return
Mother’s property to her[.]
Juvenile Court Order, 7/26/16, at 2 (unnecessary capitalization omitted). In
attacking this portion of the order, Mother seemingly takes issue only with
the fact that the court permitted the search and seizure to be conducted by
“private individuals,” i.e. ‘Agency’ security personnel.2 Mother’s Brief at 18.
Mother complains that the security personnel may not “have … training” or
“understanding of law and constitutional rights….” Id. Thus, Mother claims
that the court’s empowering these security guards to seize and search her
property was “beyond the court’s authority.” Id.
Again, Mother is asserting this argument for the first time on appeal.
At the July 26, 2016 hearing, the court explained to Mother that the security
_______________________
(Footnote Continued)
Se Rule 1925(b) Statement, 8/23/16, at 1; Supplemental Rule 1925(b)
Statement, 9/1/16, at 1-2 (unnumbered). Mother at no point identified her
specific claim that the court’s order was not narrowly tailored to the needs of
this case. As such, the juvenile court did not discuss this argument in its
Rule 1925(a) opinion. Consequently, we would deem Mother’s first issue
waived on this basis, as well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).
2
We presume that the ‘Agency’ security personnel refers to DHS security
guards.
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guard at the Agency would be searching her bags prior to her visits with the
Children, and the guard would be “keep[ing] the cellphone, [and] any
recording devices[,] with him until [Mother] completes her visitation.” N.T.
Hearing at 48. While Mother lodged a timely objection to this portion of the
court’s order, that objection was as follows:
[Mother’s Counsel]: Your Honor, respectfully, on behalf of my
client please note the objection for this reason. [Mother] uses
her phone for [the Children] to play different games and to
watch television with the phone.
Id. at 48-49. At no point did Mother object to the search and seizure
component of the court’s order on the basis that it infringed on her Fourth
Amendment rights, generally, nor raise the more specific claim that the
court lacked authority to empower the Agency security personnel to conduct
those searches and seizures. Consequently, Mother cannot present this
argument for the first time on appeal. See Pa.R.A.P. 302(a).3
Finally, Mother’s third issue is merely a short reiteration of her first
two claims, neither of which were preserved below. Consequently, her third
issue is waived, as well. See Pa.R.A.P. 302(a).
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3
Additionally, Mother has waived the specific argument presented in her
second issue by failing to raise it in her Rule 1925(b) statement. Therein,
Mother stated that the court’s order violated her Fourth Amendment rights;
however, she did not allege, nor in any way suggest, her specific claim that
the court lacked authority to empower the Agency security personnel to
conduct the search and seizure. Thus, the juvenile court did not discuss this
issue in its Rule 1925(a) opinion. Accordingly, Mother has waived her
argument for this reason, as well. See Pa.R.A.P. 1925(b)(4)(vii).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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