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In re J.M.

Superior Court of Pennsylvania

September 13, 2019

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

          Appeal 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. [*]

          OPINION

          STRASSBURGER, J.

         L.M.-M. (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).[1] 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.

         I. Procedural History

         We 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).[2] 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.

         On 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).

         After 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.").

         It is 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.

         II. Appealability of Order

         Before 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.[3] 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 omitted).

         In 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;[4] or (3) a collateral order, Pa.R.A.P. 313.

         A. Appealability Pursuant to Final Order Doctrine

         We 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)).

         Generally, 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. 1979).

         Unlike 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[5] and issue orders relating to a variety of issues.[6] 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.

         Therefore, 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, [7] 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 permanently. Id.

         The 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.

Id. at 911.

         In 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.

         The 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.

         With 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.

         We 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."[8]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 ...


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