IN THE INTEREST OF: J.M., A MINOR APPEAL OF: L.M.-M., MOTHER IN THE INTEREST OF: D.M., A MINOR APPEAL OF: L.M.-M., MOTHER IN THE INTEREST OF: A.M., A MINOR APPEAL OF: L.M.-M., MOTHER
from the Order Entered December 27, 2018 in the Court of
Common Pleas of Montgomery County Juvenile Division at No(s):
176-2017, 177-2017, 178-2017.
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.
(Mother) appeals from the December 27, 2018 orders the
juvenile court entered in the dependency matters of
Mother's minor children: J.M., A.M., and D.M.
(collectively, Children; born in July 2003, April 2002, and
February 2001, respectively). Mother's counsel has filed a
petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Because the December
27, 2018 orders are not appealable orders, we quash
Mother's appeals and deny counsel's petition as moot.
provide an overview of the procedural history only, as the
substantive factual history is not relevant to our
determination. On June 20, 2017, Children were adjudicated
dependent pursuant to 42 Pa.C.S. § 6302(1) and (6) of
the Juvenile Act. Initially, Mother retained legal and
physical custody of Children. On December 13, 2017, the
juvenile court removed Children from Mother's care and
transferred legal and physical custody to the Montgomery
County Office of Children and Youth (the
Agency). The juvenile court set Children's
permanency goal as reunification. In furtherance of that
goal, the juvenile court permitted Mother to visit with
Children at their placements and occasionally at her home.
December 27, 2018, the case was scheduled for a permanency
review hearing before the juvenile court. There were also two
pending motions: one filed by the Agency to modify J.M.'s
placement from Bethany Children's Home Residential
Program to George Junior Republic and two filed by Mother,
which sought return of Children and a home pass during
Children's holiday break. Because there was not
sufficient time to hear all of the Agency's evidence, the
juvenile court continued the hearing to another date. The
parties agreed that in the meantime, Children could visit
Mother in her home for several days around the New Year
holiday, provided that Mother and Children all submitted to a
drug screen and tested negative for any illegal substances.
N.T., 12/27/2018, at 2-4 (description of agreement by the
Agency's solicitor, followed by assent to agreement by
Children's guardian ad litem, Children's
legal counsel, and Mother's counsel).
an off-the-record sidebar discussion, the juvenile court
announced that Mother and two Children tested positive for
THC. Id. at 5. The juvenile court ruled that home
passes would only be permitted if all four screens were
negative. Id. at 5. The juvenile court judge then
informed the parties that "the home visit issue can be
revisited, but I need to see clean urines. … I'm
not shutting it down. I want the family to hear me on that,
but we need to meet each other, a meeting of the minds with
clear heads." Id. at 7. The juvenile court
continued the permanency review hearing for approximately one
month to January 23, 2019. Id. Following the
hearing, the juvenile court entered a written order
prohibiting visits at Mother's home if Mother or Children
tested positive for drugs. Order, 12/27/2018, at 1 ("The
[juvenile court] will not grant home passes if any child or
parent tests positive for drugs.").
from this order that Mother appeals. Both Mother and the
juvenile court complied with Pa.R.A.P. 1925. In this Court,
Appellant's counsel filed both an Anders brief
and a petition to withdraw as counsel. In the Anders
brief, the issue of arguable merit set forth by counsel is
whether the juvenile court abused its discretion by
conditioning home passes for Children on a negative drug
screen by Appellant. Anders Brief at 6.
Appealability of Order
we may address counsel's petition to withdraw and any
substantive issues, we must determine whether the orders from
which Mother appealed are appealable, because appealability
implicates our jurisdiction. In Interest of N.M., 186
A.3d 998, 1006 (Pa. Super. 2018) (quoting Kulp v.
Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)
("[Since 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.")). "Jurisdiction is purely a
question of law; the appellate standard of review is de
novo and the scope of review plenary." Barak v.
Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (citation
order to be appealable, the order must be: (1) a final order,
Pa.R.A.P. 341-42; (2) an interlocutory order appealable by
right or permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P.
311-12; or (3) a collateral order, Pa.R.A.P. 313.
Appealability Pursuant to Final Order
begin our analysis with the first category: final orders.
"Pennsylvania's Rules of Appellate Procedure place
great importance on the concept of 'final orders' to
establish jurisdiction to hear an appeal."
Commonwealth v. Culsoir, 209 A.3d 433, 435 (Pa.
Super. 2019). The purpose of the rule regarding final orders
is to avoid "piecemeal appeals" and
"protracted litigation." Commonwealth v.
Bowers, 185 A.3d 358, 362 (Pa. Super. 2018). It
"maintains distinctions between trial and appellate
review, respects the traditional role of the trial judge, and
promotes formality, completeness, and efficiency."
Shearer v. Hafer, 177 A.3d 850, 855-56 (Pa. 2018).
It also represents a determination that "the cost of a
wrong decision by a trial judge is typically outweighed by
either the benefit of uninterrupted trial proceedings or the
assurance that the issue is adequately reviewable through
alternatives to an immediate appeal." Id.
(citing Michael E. Harriss, Rebutting the Roberts Court:
Reinventing the Collateral Order Doctrine Through Judicial
Decision-Making, 91 Wash. U. L. Rev. 721, 725 (2014)).
a final order is any order that disposes of all claims and
all parties. Pa.R.A.P. 341(b). Based upon the two-step
procedure contemplated by the Juvenile Act for declaring a
child dependent (i.e., an adjudication followed by a
disposition, see 42 Pa.C.S. § 6341(c)), this
Court has held that it is the dispositional order following a
dependency adjudication that is a final appealable order.
In Interest of C.A.M., 399 A.2d 786 (Pa. Super.
other types of cases, dependency matters do not end following
a child's disposition. See In re Tameka M., 534
A.2d 782, 784 (Pa. Super. 1987) (en banc)
(discussing unique ongoing nature of dependency matters),
aff'd, 580 A.2d 750, 752 (Pa. 1990) (approving
of the Superior Court's recognition of the juvenile
court's "continuing plenary jurisdiction in
dependency cases under 42 Pa.C.S. § 6351"). The
juvenile court is statutorily required to review the case
periodically and issue orders relating to a variety of
issues. 42 Pa.C.S. § 6351(e)(3), (f)-(g). The
purpose of the periodic review hearings is to
"determin[e] or review the permanency plan of the
child, the date by which the goal of permanency for the child
might be achieved[, ] and whether placement continues to be
best suited to the safety, protection and physical, mental
and moral welfare of the child." 42 Pa.C.S. §
6351(e)(1). In many cases, it may be months or years after
the dependency disposition before the Juvenile Court has
occasion to enter an order that truly disposes of all claims
and all parties, such as by return to parents and the
cessation of dependency, termination of parental rights and
adoption of the child, transfer of custody to family or kin,
or a child's aging out of the system.
due to dependency's unique nature, the fact that further
proceedings are contemplated is not dispositive of the
finality of the order. In the Interest of J.L.,
A.3d, 2019 WL 3295100, at 3 n.1 (Pa. Super. 2019). In the
dependency context, the court "must examine the
practical consequences of the order to determine if the party
challenging it has effectively been put out of court."
In re Interest of M.B., 565 A.2d 804, 806 (Pa.
Super. 1989). Thus, "this court acknowledges certain
crucial points of finality when review is appropriate despite
the fact that such determinations may later be modified by
the trial court after further statutorily[-]mandated review
hearings are held." Id. at 808. Specifically,
our Supreme Court has held that an "order granting or
denying a status change, as well as an order terminating or
preserving parental rights,  shall be deemed final when
entered." In re H.S.W.C.-B., 836 A.2d 908, 911
(Pa. 2003). This helps ensure that orders that improperly
prolong the status quo and harm children's needs
and welfare are not shielded from independent review
orders at issue in H.S.W.C.-B. denied a child
welfare agency's petitions to terminate parental rights
and to change the permanency goal to adoption. This Court had
quashed the agency's appeal because the order denying the
petitions maintained the status quo. The Supreme
Court rejected the holding of our Court, reasoning that
"[m]aintaining the status quo could
put the needs and welfare of a child at risk" because if
the same trial judge repeatedly and erroneously denies
requests to change the permanency goal, the "improper
order" would always be shielded from appellate review.
Id. at 910-11. The Court further reasoned that
[a]ll orders dealing with custody or visitation, with the
exception of enforcement or contempt proceedings, are final
when entered. Pa.R.C.P. 1915.10. Such an order may be
modified at any time, provided the modification is in the
best interest of the child. See 23 Pa.C.S. §
5310; Karis v. Karis,  544 A.2d 1328, 1331-32
([Pa.] 1988). If denial of a custody modification petition is
final when entered, the denial of a proposed goal change or
petition for termination of parental rights should logically
be deemed final as well. … We now adopt the recent
pronouncement in In re A.L.D., [797 A.2d 326 (Pa.
Super. 2002)], where the Superior Court declared all orders
in termination matters final. An order granting or denying a
status change, as well as an order terminating or preserving
parental rights, shall be deemed final when entered. See
Id. at 911.
In re J.S.C., 851 A.2d 189 (Pa. Super. 2004), this
Court considered the impact of H.S.W.C.-B. upon an
appeal by a child welfare agency from a dependency order
granting a parent visitation. In that case, we stated
that our Supreme Court's admonition in
H.S.W.C.-B.  that "[a]ll orders dealing with
custody or visitation, with the exception of enforcement or
contempt proceedings, are final when entered" referred
solely to orders entered pursuant to the Adoption Act, 23
Pa.C.S. § 2501, et. seq., and is not
controlling in our analysis of the finality of visitation
orders entered following adjudication under the Juvenile Act,
42 Pa.C.S. § 6, et. seq.
J.S.C., 851 A.2d at 191. Ultimately, our court
determined that H.S.W.C.-B.'s holding did not
extend to a case where a "children and youth agency
appeals from an order granting visitation to the parent of a
dependent child" and held that the order in question was
not a final order pursuant to Pa.R.A.P. 341. Id.
J.S.C. panel's interpretation of our Supreme
Court's statement in H.S.W.C.-B. as referring to
orders solely entered pursuant to the Adoption Act is
perplexing. H.S.W.C.-B. plainly involved orders
entered pursuant to the Adoption Act and
Juvenile Act. See H.S.W.C.-B., 836 A.2d at 909
("CYS filed petitions to change the goal from
reunification to adoption, and to involuntarily terminate
Mother's parental rights."); In re R.J.T.,
9 A.3d 1179, 1182 n.6 (Pa. 2010) (explaining that a
"goal change" is a term of art referencing the
juvenile court's decision to continue or change the
permanency plan goal and/or order to continue, modify, or
terminate the current placement pursuant to 42 Pa.C.S. §
6351(g) of the Juvenile Act); In re A.L.D.,
797 A.2d 326, 339-40 (Pa. Super. 2002) (noting that
jurisdiction of orphans' court to terminate parental
rights is derived from Adoption Act and juvenile court's
jurisdiction to change the permanency goal is derived from
Juvenile Act); In re Adoption of S.E.G., 901 A.2d
1017, 1026 (Pa. 2006) (observing that since the legislature
permits a juvenile court judge to be assigned to orphans'
court division to conduct a termination of parental rights
proceeding pursuant to 42 Pa.C.S. § 6351(i), in practice
one judge often hears the goal change and termination of
parental rights proceeding). Nevertheless, J.S.C.
expressly limited its holding to appeals by the agency,
see J.S.C., 851 A.2d at 191; so it is not
dispositive of the instant appeal, which is an appeal by a
parent from an order placing restrictions on visitation.
J.S.C. of limited assistance to our current
examination, we return to our Supreme Court's analysis in
H.S.W.C.-B. Although our Supreme Court's
statement regarding the finality of visitation orders is
broad and sweeping, in context, we think that the Court
merely was referring to visitation orders entered under the
Child Custody Act, 23 Pa.C.S. §§ 5321-5340, as a
point of comparison.
arrive at this conclusion from the following analysis. In
support of its statement that all custody and visitation
orders are final upon entry, the Court cited to Pa.R.Civ.P.
1915.10. H.S.W.C.-B., 836 A.2d at 911. Rule 1915.10
is contained in the rules that govern custody actions,
see Pa.R.Civ.P. 1915.1, as opposed to the rules of
juvenile procedure, which govern dependency actions,
see Pa.R.J.C.P. 1100(A). At the time
H.S.W.C.-B. was decided, Rule 1915.10 provided,
inter alia, that "[n]o motion for post-trial
relief may be filed to an order of custody, partial custody[,
] or visitation."See id. The Court then referenced
a statute and case in the custody context providing that as
long as the court had jurisdiction, it could ...