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In re S.H.

Superior Court of Pennsylvania

July 3, 2013

IN RE: S.H., O.H., and N.H. APPEAL OF: S.H., O.H., and N.H.

Appeal from the Orders entered June 15, 2011 in the Court of Common Pleas of Philadelphia County Juvenile Division, at No. CP-15-DP-0065893-2006 CP-15-DP-0065894-2006, and CP-15-DP-0065895-2006




In a matter of first impression, and one which we are told has significant statewide ramifications, we must decide whether an order for Permanent Legal Custody entered pursuant to the Juvenile Act prohibits a parent from later seeking primary custody. This question necessitates review of issues surrounding the interpretation of key provisions of the Juvenile Act; the best interests of children; the historic and statutory right of parents to enjoy the companionship and custody of their children; and correlation of the permanency policies set forth in the federal Adoption and Safe Families Act as well as the Juvenile Act.

The Court of Common Pleas of Philadelphia County permitted the father of the children in issue to challenge the permanent legal custody order previously entered by the trial court. This was the first step in Father's pursuit of primary custody of the children. Rather than granting the motion to quash filed by the Support Center for Child Advocates (Child Advocates), the trial court granted father a hearing on his petition to vacate the orders granting permanent legal custody (PLC) of the children to their maternal grandmother. For the reasons stated below, we affirm the well-reasoned decision of the Honorable Kevin Dougherty. We also deny the motion to dismiss this matter as moot filed by the Department of Human Services of the City of Philadelphia (DHS).

The facts of this case are not in dispute. The children were adjudicated dependent and committed to the custody of DHS on July 13, 2006. On November 4, 2009, after three years of periodic permanency hearings, DHS petitioned the trial court to award permanent legal custody of the children to Maternal Grandmother, their kinship foster parent. After a hearing on February 5, 2010, the trial court granted DHS' petition and discharged the children from Juvenile Court supervision.

Only one week later. Father filed an ill-advised petition for primary physical custody of the children, which the trial court summarily dismissed. Father filed a second petition on Inarch 31, 2010. The trial court deemed that petition a motion to vacate the order granting permanent legal custody to Maternal Grandmother, and, on January 4, 2011, issued a rule on DHS to show cause why Father's motion should not be granted. On May 6, 2011, the Child Advocates, on behalf of the children, filed a motion to quash Father's petition for lack of jurisdiction. The trial court heard the two motions at a hearing on May 25, 2011, and denied Father's motion to vacate permanent legal custody and the Child Advocates' motion to quash Father's motion. See NT. 5/25/11, at 9. The trial court entered its order denying Father's motion to vacate permanent legal custody on May 25, 2011. On June 15, 2011, the trial court entered orders denying the Child Advocates' motion to quash, and certifying the matter for immediate interlocutory appeal.

On August 19, 2011, this Court denied the Child Advocates' petition for an interlocutory appeal and, instead, ordered the Prothonotary of this Court to assign a direct appeal number pursuant to Pa.R.A.P. 1316(a)(1). DHS filed with this Court a motion to dismiss the matter as moot on January 23, 2012. In an order entered on February 22, 2012, this Court denied DHS' motion, without prejudice to raise the issue in its brief.

Although the Child Advocates present two formal issues in their brief, their position is that an order for permanent legal custody bars a parent from contesting primary custody at a later date. Ancillary to this contention is their argument that the trial court lacks statutory authority or jurisdiction to entertain a parent's request for modification of a permanent legal custody order. The justification for their position is well-meant and conscientious in light of their advocacy for children:

Across the Commonwealth, hundreds of families who have assumed Permanent Legal Custody of children, provided them with needed permanency, and saved them from a life in foster care, are being forced back into court, under circumstances where the petitioners have no valid cause of action. . . .

Child Advocates' Brief, at 1.

To answer tine Cliild Advocates' questions we must interpret sections of tine Juvenile Act and the Adoptions and Safe Families Act, 42 U.S.C. §§ 671-675. As statutory interpretation implicates a question of law, our scope of review is plenary and our standard of review is de novo. See D.R.C. v. J.A.Z., 31 A.3d 677, 681 (Pa. Super. 2011). Our goal in interpreting a statute is to ascertain and effectuate the intent of the legislature. See 1 Pa.Cons.Stat.Ann. §1921(a). "The statute's plain language generally offers the best indication of legislative intent." Martin v. Commonwealth, Dept. of Transportation, Bureau of Driver Licensing, 588 Pa. 429, 438, 905 A.2d 438, 443 (2006).

We must first address the issues raised by DHS in its motion to quash this appeal as moot. DHS claims that the Child Advocates' issues on appeal are not reviewable because the consequence of the order entered June 15, 2011, is that there is no longer an actual claim or controversy for this Court to address. "If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot." J.S. v. Wtietzel, 860 A.2d 1112, 1118 (Pa. Super. 2004). This Court has stated, however, that even if a claim becomes moot, we may still reach its merits if "the question presented is capable of repetition and apt to elude appellate review. . . ." Orfield v. Weindel, 52 A.3d 275, 278 (Pa. Super. 2012).

The Child Advocates argue persuasively that the issues they raise are capable of repetition and, if we permit the mootness doctrine to apply to them, will evade appellate review. It is clear that the issues presented here are capable of repetition; this is demonstrated by the fact that the filing that triggered this appeal is at least the third such filing by the parents, as well as the possibility that every child subject to an order of permanent legal custody represents a potential filing of just such a petition. For this reason alone, we find that the questions presented for our review are not moot, and, therefore, we must review them.

Turning then to the contentions of the Child Advocates, they initially argue that, once a child is the subject of an award of permanent legal custody, the Juvenile Act, specifically Section 6351(a)(2.1), limits the jurisdiction of the trial court to issues of support and visitation, and forecloses the trial court from considering the issue of primary custody.[1] Section 6351(a)(2.1) provides:

(a) General rule.—If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the safety, protection and physical, mental, and moral welfare of the child:
(2.1) Subject to conditions and limitations as tine court prescribes, transfer permanent legal custody to an individual resident in or outside this Commonwealth, including any relative, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child. A court order under this paragraph may set forth the temporary visitation rights of the parents. The court shall refer issues related to support and ...

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