In the Int. of: T.T., Appeal of: T.T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.T., MINOR :
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:
:
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: No. 1657 EDA 2022
Appeal from the Order Entered May 12, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
CP-15-DP-0000053-2008
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 19, 2022
Shannon K. McDonald, Esquire (McDonald), counsel for Appellant T.T.,
a minor (born February 2005), appeals from the order entered in the Court of
Common Pleas of Chester County. In the order, the court granted both
mothers (Parents), and Chester County Department of Children, Youth and
Families (Agency), the right to intervene in an application for a private
dependency action,1 filed by McDonald on April 20, 2022, and sua sponte
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1 While the Juvenile Act provides that any person may file a dependency
petition, see 42 Pa.C.S.A. § 6334, our Supreme Court subsequently
suspended that portion of the Juvenile Act “insofar as the Act is inconsistent
with Pa.R.J.C.P. 1320, 1321, and 1330, which provide that the county agency
may file a petition and any other person shall file an application to file a
petition.” See Pa.R.J.C.P. 1800(8) (emphasis added). Thus, where the
would-be petitioners are individuals, they must first obtain permission under
Rule 1320 to file a private dependency petition.
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transferred venue to Dauphin County,2 where T.T. was in psychiatric care.3
After our review, we quash in part and affirm in part.
T.T. was first declared dependent in 2008, when she was three years
old. T.T.’s natural mother’s parental rights were terminated,4 and, in 2011,
at age six, T.T. was adopted by Parents/Intervenors.5 T.T.’s dependency case
was closed, Agency custody was discharged, and court supervision was
terminated. See Order, 7/10/12. T.T. lived with Parents in West Chester,
Pennsylvania, for approximately eleven years.
In 2018, T.T. was hospitalized at Devereux Residential Facility
(Devereux) for an extended period of time due to concerns for her mental
health. In 2021, Devereux made a therapeutic recommendation that T.T. be
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2 See 42 Pa.C.S.A § 6321(c)(1) (“If the child resides in a county of this
Commonwealth and the proceeding is commenced in a court of another
county, the court, on motion of a party or on its own motion made after the
adjudicatory hearing or at any time prior to final disposition, may transfer the
proceeding to the county of the residence of the child for further action.”).
3 T.T. has an extensive history of mental health treatment, having attempted
suicide at age 6. See Application for Leave to File Private Dependency
Petition, 4/20/22, at ¶ 9. At the time McDonald filed the application, T.T. was
in a medically necessary Community Residential Rehabilitation (CRR) host
home, with a foster mother. At the CRR host home, T.T. was doing well,
attending school daily, taking medications, participating in all recommended
therapy and medication management appointments, and progressing socially.
Id. at ¶ 18-19.
4 T.T.’s natural father’s whereabouts were unknown.
5 Parents also adopted T.T.’s natural brother at age three.
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discharged to a mental health CRR host home, and on December 7, 2021 T.T.
entered the CRR host home.
On April 20, 2022, McDonald petitioned for leave to file an application
for a private dependency petition pursuant to Pa.R.J.C.P. 1320, 1321, and
1330.6 In her petition, McDonald averred Parents were neglecting and
obstructing T.T.’s healthcare and education matters, that McDonald had
contacted Chester County Mental Health Department in February 2021
because Devereux was trying to discharge T.T. and Parents would not consent
to T.T. coming home, and that T.T. had expressed to McDonald that she did
not feel safe at Parents’ home. See Application for Leave to File Private
Dependency Petition, 4/20/22, at ¶¶ 12-16.7
Both the Agency and Parents filed petitions to intervene. The court
scheduled a hearing for May 3, 2022. Following the hearing, which occurred
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6Rules 1320 and 1321 of the Pennsylvania Rules of Juvenile Court Procedure
govern the procedural requirements for filing an application to file a private
dependency petition and require the court hold a hearing within fourteen days
of the filing of the application. See Pa.R.J.C.P. 1320, 1321. Rule 1330
governs the procedure and requirements for the filing of the dependency
petition. See Pa.R.J.C.P. 1330 If the application is granted, “the county
agency shall be joined as a party in any further proceedings upon filing and
service of a private petition pursuant to Rules 1330 and 1331.” Pa.R.C.J.P.
1321(C).
7 Parents dispute the factual averments in McDonald’s application and
proposed dependency petition. See Appellees’/Parents’ Brief, at 3.
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on May 5, 2022, the court granted Parents’ and Agency’s petitions to intervene
and transferred the case to Dauphin County.8
McDonald filed this appeal. She raises the following issues for our
review:
1. Did the trial court err in allowing [P]arents to intervene in the
application proceedings?
2. Did the trial court err in allowing the [Agency] to intervene in
the application proceedings?
3. Did the trial court err in finding venue appropriate in Dauphin
County and transferring the application to file a dependency
petition, and therefore the dependency action itself, to Dauphin
County?
4. Did the trial court err in allowing [P]arents, who had not been
made [parties] to the matter, to object to a hearing officer
hearing the matter, thereby delaying the matter beyond the
14-day period required for the application hearing?
Appellant’s Brief, at 11 (reordered for ease of disposition).
In her first two issues, McDonald challenges the court’s decision to allow
Parents and the Agency to intervene. An order granting intervention in an
ongoing dispute is an interlocutory order and cannot be immediately appealed
without permission. See Step Plan Servs., Inc. v. Koresko, 12 A.3d 401,
417 n.4 (Pa. Super. 2010) (citations omitted); 20 West’s Pa. Practice,
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8 At the hearing, the Honorable Bret Binder first considered the motions to
intervene filed by the Agency and Parents, noting that neither the parties nor
the court was aware of case law with respect to intervention at the application
stage. See N.T. Hearing, 5/5/22, at 7, 10, 25. To clarify, here, the trial court
granted both Parents’ and the Agency’s petitions to intervene in the
application stage; no court has yet ruled on the application to file a private
dependency petition.
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Appellate Practice § 312:30 (2017); see also Beltan v. Piersody, 748 A.2d
715, 718-19 (Pa. Super. 2000) (holding order granting intervenor status in
ongoing child custody case was interlocutory and unappealable); In re
Manley, 451 A.2d 557, 559 (Pa. Super. 1982) (order granting intervention is
interlocutory and unappealable). Pursuant to Pa.R.A.P. 341, an order denying
intervention may be appealable as a collateral order under Pa.R.A.P. 313.
McDonald, however, has made no claim or argument with respect to
appealability. Cf. In re J.S., 980 A.2d 1172 (Pa. Super. 2009) (where court
granted foster parents’ petition to intervene, Mother and agency appealed,
asserting order was appealable as collateral order).
We conclude, therefore, that the court’s order granting Parents’ and the
Agency’s petitions to intervene is interlocutory and not appealable.9 Thus, we
quash that portion of the appeal.
Next, McDonald argues the court erred in finding venue appropriate in
Dauphin County and transferring the application to file a dependency petition
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9 A collateral order is defined as “an order [1] separable from and collateral to
the main cause of action [2] where the right involved is too important to be
denied review and [3] 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). In this case, even assuming that the first and second prongs
of Rule 313 are met, McDonald cannot satisfy the third prong of the collateral
order doctrine—that the requested remedy sought by McDonald (permission
to file an application for a private dependency petition) would be lost if review
of the order is postponed. From our review of the record, the trial court’s
order merely allowed Parents and the Agency to participate in the hearing on
McDonald’s application to file a private dependency petition, which will
ultimately be held before the Dauphin County Court. See N.T. Hearing, supra
at 15, 25.
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to Dauphin County. See Pa.R.A.P. 311(c) (“An appeal may be taken as of
right from an order in a civil action or proceeding changing venue, transferring
the matter to another court of coordinate jurisdiction, or declining to proceed
in the matter on the basis of forum non conveniens or analogous principles.”).
Our standard of review in this matter is as follows:
A court’s decision to exercise or decline jurisdiction is subject to
an abuse of discretion standard of review and will not be disturbed
absent an abuse of that discretion. Under Pennsylvania law, an
abuse of discretion occurs when the court has overridden or
misapplied the law, when its judgment is manifestly unreasonable,
or when there is insufficient evidence of record to support the
court’s findings. An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law or
failed to follow proper legal procedures.
J.K. v. W.L.K., 102 A.3d 511, 513 (Pa. Super. 2014), quoting Lucas v.
Lucas, 882 A.2d 523, 527 (Pa. Super. 2005). “Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the evidence of
record.” V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012).
A dependency action may be commenced in the county in which the
child resides, see 42 Pa.C.S.A. § 6321(b)(1), or, if dependency is alleged, in
the county in which the child is present when it is commenced. See 42
Pa.C.S.A. § 6321(b)(3). Further, the statute provides that “the [juvenile
c]ourt may transfer proceedings to the county a child resides in on motion of
a party or on its own motion made after the adjudicatory hearing or at any
time prior to final disposition” Id. at § 6321(c)(1).
Section 6321(c) of the Juvenile Act provides:
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(c) Transfer to another court within this Commonwealth.—
(1) If the child resides in a county of this Commonwealth and
the proceeding is commenced in a court of another county,
the court, on motion of a party or on its own motion made
after the adjudicatory hearing or at any time prior to final
disposition, may transfer the proceeding to the county of
the residence of the child for further action. Like transfers
may be made if the residence of the child changes during
the proceeding. The proceeding may be transferred if the
child has been adjudicated delinquent and other
proceedings involving the child are pending in the court of
the county of his residence.
42 Pa.C.S.A. § 6321(c). See also Pa.R.J.C.P. 1300 (“A dependency
proceeding shall be commenced in: (1) the county in which the child is
present; or (2) the child’s county of residence.”).
In In Interest of J.S.M., 514 A.2d 899 (Pa. Super. 1986), this Court
addressed the issue of inter-county transfer in a dependency action, stating
that the term “residence” was not specifically defined for use in the Juvenile
Act, and thus, construed the term “according to its common and approved
usage.” Id. at 900, (citing Statutory Construction Act of December 6, 1972,
P.L. 1339, No. 290, § 3; 1 Pa.C.S.A. § 1903 and Commonwealth v.
Roberson, 444 A.2d 722 (Pa. Super. 1982)). In J.S.M., “residence” was
defined as: “Personal presence at some place of abode with no present
intention of definite and early removal and with purpose to remain for
undetermined period, not infrequently, but not necessarily combined with
design to stay permanently.” J.S.M., supra at 900 (quoting Black's Law
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Dictionary 1176 (rev. 5th ed. 1979)).10 There, for the purpose of transferring
custody and jurisdiction of a minor child from York County to Lancaster
County, we determined that since the agency failed to show the minor child
had formerly resided in Lancaster County, based on undisputed testimony
showing minor had resided in York County for at least four months prior to the
date the transfer hearing was conducted, jurisdiction was proper in York
County. Id. However, as this Court subsequently acknowledged in In re
G.B., 530 A.2d 496 (Pa. Super. 1987), J.S.M. should not be read to mean
that “child’s `residence’ is the only factor in determining which county should
bear responsibility for the child[,] and must, ultimately depend on a
determination of how to serve the best interests of the dependent child.”
G.B., 530 A.2d at 498.
Here, there is no dispute that T.T. has resided in Dauphin County since
December 7, 2021, and has indicated that she would like to remain in the CRR
home in Dauphin County. McDonald argues “all records relating to [T.T.] are
in Chester County” and “it [] is in the best interests of [T.T.] to have the
matter heard in Chester County.” Appellant’s Brief, at 20. McDonald’s
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10 In the most recent edition of Black’s Law Dictionary, “residence” is defined
as, “bodily presence as an inhabitant in a given place.” Black’s Law Dictionary
1176 (rev. 11th ed. 2019). “Residence” is compared and distinguished from
“domicile” in the following manner: “Residence usu[ally] just means bodily
presence as an inhabitant in a given place; domicile usu[ally] requires bodily
presence plus an intention to make the place one’s home. A person thus may
have more than one residence at a time but only one domicile. Sometimes,
though, the two terms are used synonymously.” Id.-8-
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argument regarding records is not convincing. T.T.’s educational and medical
records can be transferred to Dauphin County. Further, McDonald’s argument
that it is in T.T.’s best interest to have the matter heard in Chester County is
unsupported. As the trial court stated at the hearing, the court’s consideration
was “best interest of the child.” N.T. Hearing, supra at 38. In particular, the
court stated it was “most concerned about treatment moving forward.” Id.
The questions here are where venue properly lies and where T.T.’s best
interests can best be served. See In re G.B., supra; see also In re C.B.,
861 A.2d 287, 295 (Pa. Super. 2004) (“The amendments to the Pennsylvania
Juvenile Act[, 42 Pa.C.S.A. §§ 6301-6365,] prompted by the federal Adoption
and Safe Families Act (ASFA)[11] make clear that the health and safety of the
child supersede all other considerations.”). Here, McDonald acknowledges
that Parents would not consent to T.T. returning home, that T.T. has
expressed to McDonald that she does not feel safe at home, and, most
significantly, that T.T. is making progress at her CRR home in Dauphin
County.12 Both the Agency and Parents agree that the court properly
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11 42 U.S.C. § 671 et seq.
12 As the Agency points out, prior to October 1, 2020, a court had authority to
transfer a dependency case to another county “at any time.” Pa.R.J.C.P. 1302,
rescinded and replaced April 28 2020, effective October 1, 2020. The new
language provides:
Rule 1302. Intercounty Transfer
(Footnote Continued Next Page)
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transferred venue, noting that T.T. has resided in the same therapeutically-
recommended CRR host home in Dauphin County for four consecutive months
immediately prior to the fling of the application, T.T. continues to attend
school and participate in therapy and medication management in the CRR host
home, T.T.’s school and treatment resources are located in Dauphin County,
and T.T., who will be eighteen years old in a matter of months, appears to
have no intent to leave her residence in Dauphin County. See
Appellee/Agency Brief, at 7; Appellees/Parents’ Brief, at 10-11.
We are satisfied that the trial court did not abuse its discretion in
concluding that venue properly lies in Dauphin County and that T.T.’s best
interests will be served by a transfer of jurisdiction to Dauphin County. See
42 Pa.C.S.A. § 6321; Pa.R.J.C.P. 1300. See also J.K., supra.In her final issue, McDonald claims the court erred in holding a hearing
on her application to file a private dependency petition on day 15, which
Parents requested, when the rule requires a hearing be held “within 14 days.”
See Pa.R.J.C.P. 1321. This claim of error is waived. McDonald made no
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A. Best Interest of the Child. Any time after the adjudicatory
hearing, upon motion of a party or court, a court may consider the
transfer of a case to another county if the transfer is best suited
to the safety, protection, and physical, mental, and moral
welfare of the child.
Pa.R.J.C.P. 1302A (emphasis added). Though the procedural posture in the
instant case is distinct from that contemplated by the rule, the best interest
of the child remains, nonetheless, the foremost concern throughout
dependency proceedings.
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objection at the hearing but, rather, raised this claim for the first time in her
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). See also Davis v. Woxall Hotel,
Inc., 577 A.2d 636, 639 n.3 (Pa. Super. 1990) (citing Commercial Credit
Corp. v. Cacciatiore, 495 A.2d 540, 543 (Pa. Super. 1985) (“A party cannot
rectify the failure to preserve an issue by proffering it in response to a Rule
1925(b) order.”). Moreover, McDonald has failed to establish that she or T.T.
were prejudiced by the one-day delay. We find no error.
Appeal quashed in part. Order affirmed in part. The Dauphin County
Court shall proceed accordingly.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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