In the Int. of: K.R., Appeal of: M.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.S. : No. 669 EDA 2019
Appeal from the Order Entered February 13, 2019
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No: CP-51-DP-0002088-2015
BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 15, 2020
M.S. (“Appellant”) appeals pro se from the permanency review order
entered February 13, 2019, in the dependency case of her former foster child,
K.R. (“Child”), a female born in July 2015. She challenges the portion of the
order concluding that she lacked standing to participate in Child’s dependency
proceeding and that it was appropriate to remove Child from her care. After
careful review, we affirm.
The circumstances leading to Child’s placement in foster care are not
relevant to our resolution of this appeal. Briefly, the Philadelphia Department
of Human Services (“DHS”) obtained protective custody of Child on July 27,
2015. The trial court entered a shelter care order on July 29, 2015, and
adjudicated Child dependent on August 6, 2015. The court entered an order
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* Retired Senior Judge assigned to the Superior Court.
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on February 16, 2016, directing that DHS place Child in a pre-adoptive foster
home. On July 26, 2016, the court changed Child’s permanent placement goal
from return to parent or guardian to adoption. While termination decrees do
not appear in the certified record, the court indicates that it terminated the
parental rights of Child’s mother and father at or near the same time. N.T.,
5/31/18, at 2.
It is not clear from the record when DHS placed Child in Appellant’s care.
As best we can discern, Child’s placement had occurred by at least July 2016,
based on a statement by the trial court that Appellant was Child’s foster parent
at the time it terminated the parental rights of Child’s mother and father. N.T.,
7/17/18, at 11-12. Importantly, although Child remained in Appellant’s care
until November 2017, there is no indication in the record that she ever had
legal custody. DHS removed Child from Appellant’s care after it received
allegations that members of Appellant’s family assaulted her two adopted
children while she was present. N.T., 2/13/19, at 12-13. DHS conducted an
investigation and deemed Appellant an indicated perpetrator of abuse.1 Id.
at 14.
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1 The current status of the indicated report also is unclear. While DHS
presented testimony on February 13, 2019, that it had deemed Appellant an
indicated perpetrator of abuse, DHS also filed a brief prior to the hearing
explaining that Appellant appealed her indicated status to the Board of
Hearings and Appeals, that the matter was stayed for a period of time, and
that DHS “filed a Notice of Non-Pursuit as to [Appellant’s] appeal, as [her
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The trial court held a permanency review hearing on May 31, 2018, at
which time counsel for DHS requested that the court schedule a “formal
judicial removal” hearing to address Child’s removal from Appellant’s care.2
N.T., 5/31/18, at 3. The court attempted to hold a hearing on July 17, 2018,
but Appellant arrived late and her privately-retained counsel was not present.
Thus, the court continued the matter to August 21, 2018. The court attempted
to hold a hearing on that date, but then continued the matter again,
apparently to give Appellant’s counsel the opportunity to respond to the brief
that counsel for DHS had filed. Appellant’s counsel did not file a response and
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adopted son] indicated that he was unwilling to testify against [her].” DHS’s
Prehearing Brief, 8/9/18, at 2 (unnumbered pages).
2 Our Rules of Juvenile Court Procedure provide that a county agency may
remove a foster child from his or her current placement without trial court
approval in an emergency situation. Pa.R.J.C.P. 1606(A)(1)(a). However, the
agency must notify the court and file a motion or stipulation for modification
of the child’s dispositional order. Pa.R.J.C.P. 1606(A)(1)(b)-(c). The court
may then “schedule a prompt hearing to determine whether there will be a
modification of the child’s placement[.]” Pa.R.J.C.P. 1606(D)(1). In situations
that are not emergencies, the agency must “seek approval of the court . . .
prior to the removal of the child from the placement by the filing of a motion
or a stipulation for modification of the dispositional order[,]” after which the
court may schedule a hearing. Pa.R.J.C.P. 1606(A)(2), (D)(1). In addition,
an administrative process exists through which a foster parent may appeal the
removal of a child from his or her care, unless certain exceptions apply. See,
e.g., 55 Pa. Code § 3700.73(a)(5) (providing that a foster parent may not
appeal if “[a]n investigation of a report of alleged child abuse indicates the
need for protective custody removal to protect the child from further serious
physical or mental injury, sexual abuse or serious physical neglect[.]”).
Because the procedure that the trial court employed in this case has not been
challenged, we offer no opinion on it in this memorandum.
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failed to appear at the hearing on January 8, 2019, although Appellant herself
was present, resulting in yet another continuance.
Finally, the judicial removal hearing took place on February 13, 2019.
After hearing argument from counsel for Appellant and DHS, the trial court
ruled that Appellant lacked standing to participate in the hearing, in terms of
presenting evidence and cross-examining witnesses, but that she had the right
to notice and the opportunity to be heard. N.T. 2/13/19, at 4-12. DHS then
presented testimony regarding the propriety of its decision to remove Child
from Appellant’s care and Appellant responded with a brief statement. Id. at
12-20. Ultimately, the court ruled that Child’s removal was appropriate. Id.
at 23.
Following the hearing, the trial court entered the permanency review
order complained of on appeal. The order stated, in relevant part, “Court rules
that former pre-adoptive foster parent, [Appellant,] have [sic] no standing in
this case. Court rules that the removal of the child, [Child,] from former pre-
adoptive foster parent, [Appellant,] was appropriate.” Order, 2/13/19, at 1.
Despite retaining private counsel, Appellant timely filed a pro se notice of
appeal on February 25, 2019, as well as a pro se concise statement of errors
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complained of on appeal.3, 4 This Court entered an order on April 2, 2019,
directing Appellant’s counsel to file a concise statement by April 12, 2019.
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3 We conclude that the February 13, 2019 order is appealable as a collateral
order. See Pa.R.A.P. 313(b) (“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.”). The question of Appellant’s standing is separable from and
collateral to the main cause of action in this dependency case and involves a
right too important to be denied review. See In re J.S., 980 A.2d 117, 122
(Pa. Super. 2009) (“[T]he issue of Foster Parents’ standing to intervene in the
dependency proceedings is separable from the central issue during the current
stage of the dependency proceedings, facilitating permanency. . . . Foster
Parents’ putative right to intervene in the ongoing dependency proceedings is
too important to be denied review.”). In addition, Appellant’s standing claim
will be irreparably lost if we postpone review until final judgment. If Appellant
waits to appeal the February 13, 2019 order until the trial court enters a final
order, her appeal will be untimely. Because of the court’s determination that
Appellant lacks standing, she will also be unable to appeal whatever final order
the court enters. See K.W. v. S.L., 157 A.3d 498, 502 (Pa. Super. 2017)
(discussing K.C. v. L.A., 128 A.3d 774 (Pa. 2015)).
4The fact that Appellant filed a pro se notice of appeal while retaining private
counsel does not impede our review of this appeal. As we have explained:
. . . . As a general matter, our courts prohibit pro se filings by
represented appellants, and we treat those filings as legal
nullities. However, pro se notices of appeal are an exception to
this rule. In Commonwealth v. Cooper, 27 A.3d 994, 1007 (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,
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
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Counsel filed a concise statement on April 12, 2019, but failed to serve the
trial court. As a result, this Court entered another order on April 15, 2019,
directing counsel to serve the trial court by April 19, 2019. Counsel complied
by filing the concise statement in the trial court on April 16, 2019, along with
a certificate of service indicating that he had served the trial court. Counsel
then filed an application to withdraw in this Court on April 27, 2019. This
Court denied counsel’s application on May 8, 2019, without prejudice to his
right to seek relief in the trial court. Counsel filed the application to withdraw
in the trial court on May 30, 2019, which the court granted on June 7, 2019.
Appellant has proceeded pro se since that time.
On appeal, Appellant appears to argue (1) that DHS removed Child from
her care without a necessary court order, (2) that DHS presented insufficient
evidence in support of its abuse allegations against her, and (3) that the trial
court violated her right to due process by concluding that she lacked standing,
and by prohibiting her from presenting evidence or cross-examining witnesses
during the judicial removal hearing on February 13, 2019. Appellant failed to
include her first and second claims in her counseled concise statement. Thus,
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pro se notice of appeal despite Appellant being represented by
counsel[.]”). . . .
S.C.B. v. J.S.B., 218 A.3d 905, 911 n.4 (Pa. Super. 2019) (citation omitted).
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they are waived.5 See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.
2017) (“[I]t is well-settled that issues not included in an appellant’s . . .
concise statement of errors complained of on appeal are waived.”).
Appellant’s pro se brief also fails to comply with our Rules of Appellate
Procedure. Appellant’s brief is a mere two-page document, followed by a table
of contents and a series of exhibits. Appellant did not divide her brief into the
appropriate sections and largely fails to explain and develop her arguments
with citation to relevant legal authority. See Pa.R.A.P. 2111(a) (listing the
requisite sections of an appellant’s brief); see also M.Z.T.M.W., 163 A.3d at
465 (“It is well-settled that this Court will not review a claim unless it is
developed in the argument section of an appellant's brief, and supported by
citations to relevant authority.”). This Court has emphasized that an
appellant’s pro se status does not excuse him or her from compliance with our
Rules. See S.S. v. T.J., 212 A.3d 1026, 1032 (Pa. Super. 2019) (“[P]ro se
status confers no special benefit upon the appellant. To the contrary, any
person choosing to represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and legal training will be
his undoing.”) (quotation marks and citations omitted).
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5 Because Appellant filed her pro se concise statement while she still retained
private counsel, it was arguably a legal nullity. S.C.B., 218 A.3d at 911 n.4.
However, even if Appellant’s pro se concise statement was not a legal nullity,
we would conclude that she waived her first and second issues by failing to
include them there as well.
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However, Appellant’s noncompliance does not require that we quash or
dismiss her appeal automatically. Rule 2101 specifies that this Court “may”
quash or dismiss an appeal “if the defects are in the brief . . . of the appellant
and are substantial[.]” Pa.R.A.P. 2101. In addition, this Court has explained
that we will quash or dismiss an appeal due to a defective brief only when we
are unable to discern the issues that the appellant wishes to raise on appeal,
or when the defective briefly impedes appellate review. See Kern v. Kern,
892 A.2d 1, 6 (Pa. Super. 2005), appeal denied, 903 A.2d 1234 (Pa. 2006)
(“[A]s a practical matter, this Court quashes appeals for failure to conform to
the Rules of Appellate Procedure only where the failure to conform to the Rules
results in the inability of this Court to discern the issues argued on appeal.”);
Bennett v. Bennett, 168 A.3d 238, 244 (Pa. Super. 2017), appeal denied,
181 A.3d 1081 (Pa. 2018) (“Although this Court is authorized to quash a
nonconforming brief, Husband’s procedural missteps do not substantially
impede our ability to perform appellate review, and we shall address the
merits of the arguments that have been preserved for review in the Rule
1925(b) statement.”).
Here, although Appellant failed to comply with our briefing rules, her
noncompliance does not impede our ability to discern her issues on appeal or
to conduct appellate review. Appellant’s only preserved claim on appeal, in
which she challenges the trial court’s conclusion that she lacked standing, and
its decision to prohibit her from presenting evidence or cross-examining
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witnesses during the judicial removal hearing, is readily discernible. It also is
a relatively straightforward issue, requiring only a brief review of the record
and the relevant law. Thus, we decline to quash or dismiss Appellant’s appeal
and we proceed to address her claim on the merits.6
Appellant’s standing challenge presents a question of law. As such, this
Court applies a de novo standard of review and a plenary scope of review. In
re S.H.J., 78 A.3d 1158, 1160 (Pa. Super. 2013), appeal denied, 81 A.3d
78 (Pa. 2013).
The Juvenile Act governs dependency proceedings. See 42 Pa.C.S.A.
§§ 6301-6375. Generally, only a “party” possesses standing to participate in
a child’s dependency proceeding, which includes the right to present evidence
and cross-examine witnesses, as well as the right to counsel. In the Interest
of M.R.F., III, 182 A.3d 1050, 1055-56 (Pa. Super. 2018). The Juvenile Act
does not specify who qualifies as a party to a child’s dependency proceeding.
However, this Court’s case law limits party status to only three classes of
persons, “(1) the parents of the juvenile whose dependency status is at issue;
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6 The record reveals one further complication. Specifically, Appellant’s counsel
appeared to concede during the hearing on August 21, 2018, that Appellant
did not have standing. Counsel stated, “I just want to put on the record this
one point we’re not seeking legal standing, this is a judicial removal hearing.
. . . we’re not seeking legal standing.” N.T., 8/21/18, at 3. However, counsel
argued that Appellant did have standing during the judicial removal hearing
on February 13, 2019. N.T., 2/13/19, at 4-6. The trial court directed that the
purpose of the hearing was to determine whether Appellant had standing and
ultimately ruled that she did not. Id. at 4, 10-11. Therefore, we decline to
find waiver on that basis.
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(2) the legal custodian of the juvenile whose dependency status is at issue, or
(3) the person whose care and control of the juvenile is in question.” In re
L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006).
Neither the Juvenile Act nor our case law provides that a dependent
child’s foster parent qualifies as a party. The Juvenile Act provides as follows
regarding the rights of a foster parent to participate in hearings during the
dependency proceedings:
(a) General rule.--The court shall direct the county agency or
juvenile probation department to provide the child’s foster parent,
preadoptive parent or relative providing care for the child with
timely notice of the hearing. The court shall provide the child's
foster parent, preadoptive parent or relative providing care for the
child the right to be heard at any hearing under this chapter.
Unless a foster parent, preadoptive parent or relative
providing care for a child has been awarded legal custody
pursuant to section 6357 (relating to rights and duties of legal
custodian), nothing in this section shall give the foster
parent, preadoptive parent or relative providing care for
the child legal standing in the matter being heard by the
court.
42 Pa.C.S.A. § 6336.1(a) (emphasis added).
In this case, the trial court explained its conclusion that Appellant lacked
standing as follows, in relevant part:
In the instant matter, [Appellant] cannot be afforded
standing in the dependency proceeding because she was not a
parent of [Child] nor did she have custody of [] Child.
Consequently, [Appellant’s] right’s [sic] during the hearing on
February 13, 2019 were limited to timely notice of a hearing to
determine if removal was appropriate and the opportunity to be
heard. . . . In the instant case, [Appellant] was not only provided
notice of the hearing but she was represented by counsel.
[Appellant] attended a hearing on July 17, 2019. [Appellant] was
subsequently represented by counsel during hearings on August
21, 2019 and February 13, 2019. During the hearing on February
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13, 2019, the [Community Umbrella Agency] [r]epresentative
Shannon Tarlton testified that Child [] was removed from
[Appellant’s] home as a result of an ongoing child abuse
investigation related to the beating of [Appellant’s] biological [sic]
[c]hildren. During the hearing on February 13, 2019, [Appellant]
along with her attorney present was given the opportunity to
participate in the hearing. [Appellant] testified that she tried to
avoid chaos in her household and that her [c]hildren were never
abused. Although, [sic] [Appellant] alleges that there was an
inherent bias against her in the proceedings the record clearly
reflects that she was afforded representation and the opportunity
to be heard during the hearing on February 13, 2019.
Trial Court Opinion, 6/12/19, at 3-4 (citations to the record omitted).
We agree with the trial court’s analysis. It is clear that Appellant is not
a party to this dependency proceeding pursuant to L.C., II, supra. Appellant
is not Child’s parent, legal custodian, or the person whose care and control of
Child is in question. Moreover, because Appellant has never had legal custody,
the plain language of Section 6336.1(a) confirms that her status as Child’s
former foster parent does not entitle her to standing. See In re N.S., 845
A.2d 884, 887 (Pa. Super. 2004) (concluding that a former foster parent
lacked standing, explaining, “[n]ot only had [she] not been awarded legal
custody of the children, at the time she filed her petition seeking visitation or
custody, she was no longer a licensed foster care provider”); L.C., II, 900
A.2d at 382 (“To achieve statutory standing under [Section 6336.1(a)], a
foster parent, preadoptive parent or relative providing care must have legal
custody of the child[.]”). Section 6336.1(a) provides that Appellant was
entitled to notice and the right to be heard at the February 13, 2019 judicial
removal hearing, and nothing more. The court complied with the statute by
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providing Appellant notice and permitting her to make a statement. Thus, she
is not entitled to relief.7
Based on the foregoing, we conclude that the trial court did not commit
an error of law by concluding that Appellant lacked standing to participate in
Child’s dependency proceeding. Accordingly, we affirm the court’s February
13, 2019 order.
Order affirmed.
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7 Prior to the enactment of Section 6336.1(a), our case law provided that a
“prospective adoptive parent” possessed standing for the limited purpose of
challenging the removal of a child from his or her care. See Mitch v. Bucks
County Children and Youth Social Service Agency, 556 A.2d 419 (Pa.
Super. 1989), appeal denied, 571 A.2d 383 (Pa. 1989); In re Griffin, 690
A.2d 1192 (Pa. Super. 1997), appeal denied, 700 A.2d 441 (Pa. 1997),
certiorari denied, 523 U.S. 1004 (1998). Because Section 6336.1(a) plainly
changes this prior case law, we conclude that a foster parent is not entitled to
any form of standing in a dependency proceeding absent an award of legal
custody, regardless of his or her “prospective adoptive” status. See N.S., 845
A.2d at 887 (“Mitch, supra, relied upon by appellant, was decided prior to
the enactment of [Section 6336.1(a)] and involved foster parents who had
entered into a preadoptive placement agreement with the county agency
involved.”). We acknowledge that this Court suggested in M.R.F., III, supra,
that the “prospective adoptive parent” exception remains in place. However,
our discussion in M.R.F., III, was not essential to that opinion’s holding and
was, therefore, dicta. See Castellani v. Scranton Times, L.P., 124 A.3d
1229, 1243 n.11 (Pa. 2015) (quoting Valley Twp. v. City of Coatesville,
894 A.2d 885, 889 (Pa. Cmwlth. 2006)) (“[D]icta is ‘an opinion by a court on
a question that is directly involved, briefed, and argued by counsel, and even
passed on by the court, but that is not essential to the decision. Dicta has no
precedential value.’”). In M.R.F., III, we indicated that the appellants were
“prospective adoptive parents,” but that they lacked standing nonetheless, as
they were not seeking to intervene for the purpose of challenging the removal
of their foster child from their care. 182 A.3d at 1059. Accordingly, we held
that the appellants were without standing under any prior rationale. Id. Thus,
we conclude that M.R.F., III., is not applicable to our resolution of this issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2020
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