J-S05029-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: M.R. : No. 1451 WDA 2018
Appeal from the Order Entered September 17, 2018
in the Court of Common Pleas of Lawrence County Civil Division at
No(s): CP-37-DP-0000095-2013
IN THE INTEREST OF K.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: M.R. : No. 1452 WDA 2018
Appeal from the Order Entered September 17, 2018
in the Court of Common Pleas of Lawrence County Civil Division at
No(s): CP-37-DP-94-2013
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED MAY 23, 2019
If I were to reach the merits, I would agree with the Majority that the
orders should be vacated and the case remanded to address the Children’s
appearance at the hearing. However, I do not think the orders are
appealable. The Majority holds that the permanency review order from
which Mother appeals is a final order pursuant to In re H.S.W.C.-B., 836
A.2d 908 (Pa. 2003). For the reasons that follow, I disagree and would
quash this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-S05029-19
In H.S.W.C.-B., our Supreme Court examined whether a party should
be permitted to appeal from an order that denied petitions to terminate
parental rights and change the permanency goal. This Court had quashed
the appeal of the child welfare agency that filed the petitions because the
order denying the petitions maintained the status quo. The child welfare
agency appealed to our Supreme Court. 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. H.S.W.C.-B., 836 A.2d 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 ALD, [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.
H.S.W.C.-B., 836 A.2d at 911.
In the years following H.S.W.C.-B., our Court has wrestled with how
far to extend our Supreme Court’s holding. The first precedential decision
following H.S.W.C.-B. considered whether H.S.W.C.-B. should be extended
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to a delinquency dispositional review hearing order maintaining a child’s
commitment to a treatment facility. In re M.D., 839 A.2d 1116, 1122 (Pa.
Super. 2003). Our Court observed that as in H.S.W.C.-B., a determination
that the order was interlocutory meant that a child’s improper commitment
could be shielded from appellate review, but it nevertheless declined to
extend broadly H.S.W.C.-B.’s holding when doing so would have
implications for Pa.R.A.P. 1701 and the authority of a trial court to proceed
in matters on appeal. Id. This Court concluded that such an extension is “a
task [] best left to the state Supreme Court or its Rules Committee.” Id.
This Court exercised similar restraint in In re J.S.C., 851 A.2d 189
(Pa. Super. 2004), when considering whether to extend H.S.W.C.-B. to a
child welfare agency’s appeal of a permanency review order granting
expanded visitation to a dependent child’s parent. After reviewing
H.S.W.C.-B. and M.D., we concluded
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.[] § 6301, et. seq.[1] See, e.g., M.D., 839 A.2d at 1122.
1 Although I am bound to follow precedential decisions of this Court, I
disagree with the panel’s assessment in J.S.C. that our Supreme Court’s
statement in H.S.W.C.-B. must have been limited only to orders entered
pursuant to the Adoption Act. It is unclear how the panel in J.S.C. arrived at
that holding considering H.S.W.C.-B. involved orders entered pursuant to
the Adoption Act and Juvenile Act.
(Footnote Continued Next Page)
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Therefore, as was the case in M.D., we decline to consider
prospectively whether the Pennsylvania Supreme Court would
extend the holding of H.S.W.C.-B. [] to a case such as the one
before us, where a children and youth agency appeals from an
order granting visitation to the parent of a dependent child. Id.,
839 A.2d at 1122. This question is best left to our Supreme
Court or its Rules Committee. Id., 839 A.2d at 1122.
Accordingly, we conclude that the order in the present case is
not a “final order.”
J.S.C., 851 A.2d at 191.
Conversely, this Court justified the appealability of a permanency
review order in In re C.M., 882 A.2d 507 (Pa. Super. 2005) by reasoning
that the order was reviewable because it “involved a change in C.M.’s
placement status, in that it determined which of two potential adoptive
homes would be selected for C.M.’s permanent placement” and was “the
type of order, discussed by the Court in H.S.W.C.-B., which “could put the
needs and welfare of the child at risk” if it were not reviewable on appeal.”
(Footnote Continued) _______________________
Moreover, a close reading of H.S.W.C.-B. reveals that when our Supreme
Court referred to visitation orders, it is most likely that the Court was
referring to visitation orders entered under the Child Custody Act. Right
after the Court references visitation and custody orders, the Court compares
and contrasts the appealability of a denial of “custody modification” with the
denial of “proposed goal change or petition for termination of parental
rights.” H.S.W.C.-B., 836 A.2d at 911. Thus, the context of the statement
causes me to question whether the Court really meant to hold that any order
in any context relating to visitation or custody is final and immediately
appealable when entered. However, a panel of this Court recently
interpreted the Court’s statement in H.S.W.C.-B. in just that fashion. See
In the Interest of N.M., 186 A.3d 998, 1006 (Pa. Super. 2018) (citing
H.S.W.C.-B. for the proposition that all orders dealing with visitation or
custody, with exception of enforcement or contempt proceedings, are final
when entered).
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C.M., 882 A.2d at 513; see also In re C.B., 861 A.2d 287, 289 n.1 (Pa.
Super. 2004) (applying H.S.W.C.-B. without discussion to hold that
permanency review order suspending parent’s visits was a final appealable
order); In re M.J.S., 903 A.2d 1, 2 (Pa. Super. 2006) (reviewing an appeal
from vacation of an adoption decree despite contemplation of further
proceedings because otherwise the needs and welfare of child were at risk).
In more recent years, the cases regarding a question of finality
involved a change to the permanency goal, i.e., a change in status in the
case. See In Interest of Z.V., 158 A.3d 665, 668 (Pa. Super. 2017)
(holding permanency review order was final and appealable because the
order added a concurrent goal of adoption and made a finding that
reunification had been ruled out as to Mother as a viable goal); In Interest
of R.W., 169 A.3d 129, 130–31 (Pa. Super. 2017) (deeming permanency
goal to have changed implicitly because juvenile court ordered agency to file
termination of parental rights petition; thus, permanency review order was
final and appealable because it involved a status change).
This past year, however, this Court examined H.S.W.C.-B. to
determine whether a permanency review order that did not affirmatively
change the status of the case was appealable. In N.M., supra, the
permanency review order maintained the child’s placement in foster care
with a permanency goal as reunification, but denied the parents’ request to
change the child’s placement from foster care to kinship care. To begin, a
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panel of this Court distinguished the case from H.S.W.C.-B. According to
the N.M. panel, unlike H.S.W.C.-B., the trial court in N.M.’s case “did not
grant or deny a status change; the goal remained reunification throughout
and [N.M.’s p]arents never asked for it to be changed.” N.M., 186 A.3d at
1006. Because N.M.’s parents requested only a placement change, this
Court did not find H.S.W.C.–B. to be controlling.2 Id. Thus, this Court
appears to have interpreted the term “status change” narrowly to refer to a
change in permanency goal status, not a change in the type of placement.
But see C.M. supra (holding permanency review order was reviewable
because it involved a permanency review order deciding which of two pre-
adoptive families was in CM’s best interest, and therefore was a change in
C.M.’s “placement status”). Id.
Although the issue is not free from doubt, based upon the existing
case law and the factual circumstances of this case, I believe the Majority is
incorrect in holding that H.S.W.C.–B. controls the instant case. This case is
an appeal from a permanency review order that maintained the permanency
2 Ultimately, the N.M. panel determined that the permanency review order
was reviewable because the trial court had terminated the parental rights to
N.M. According to the N.M. panel, this meant “the entire record from the
permanency hearings, including that from the [permanency review hearing
at issue, was] now reviewable on appeal from the court’s termination
decrees.” Id. In other words, the entry of the TPR order acted to finalize
the interlocutory permanency review orders. The panel’s ultimate holding in
N.M. does not impact our analysis in the instant case because according to
the record in the instant case, the petition to terminate parental rights is still
pending.
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goal as reunification with a concurrent goal of adoption. See generally
Permanency Review Orders, 9/17/2018. The children’s placement did not
change. Id. The children still do not wish to visit with Mother and the
juvenile court ordered no change in visitation. Id. Although the record for
the termination matter is not before us, I discern from the record that the
juvenile court has been presiding over simultaneous goal change and
termination of parental rights hearings, approximately eight hearings have
occurred over an extended period of time, and the decision regarding the
agency’s request to change the goal and the agency’s petition for
termination of parental rights was pending.
During the hearing, Mother testified that she had completed all
requested programs except obtaining a second parental capacity evaluation
from an agency-approved provider; she would like to be reunified with
Children; she desires reunification therapy with Children; she desires visits
with Children; and she had requested visits from the agency repeatedly.
N.T., 9/17/2018, at 15-16. At the conclusion of the hearing, Mother’s
counsel argued the agency did not prove that reunification could not occur.
See id. at 17. Even if we construed Mother’s testimony as an affirmative
request for return of Children, visitation with Children, and a particular
service, it appears that these are not new requests from Mother. Nor were
the requests from Mother based upon a change in circumstances or new
information.
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In my view, it is unclear how far our Supreme Court desired the
holding in H.S.W.C.-B. to extend. Read strictly, “[a]n order granting or
denying a status change” could apply to every permanency review hearing
where a request relating to the state or condition of a child or parent’s
circumstances was made.
While I disagree with the N.M. panel that a placement change could
never constitute a status change and render an order appealable, I also do
not believe our Supreme Court intended to permit immediate review of each
permanency review order. Even with our special expedited rules for cases
designated as children’s fast track cases, the wheels of appellate review turn
too slowly to address effectively the vast majority of issues in dependency
matters. While a juvenile court’s decisions should not be shielded from
review forever,3 permitting appeals from each permanency review order runs
3 Indeed, I think this Court should decide the appealability in status quo
permanency review cases on a case by case basis, lest an “improper order”
be permanently shielded from appellate review. See H.S.W.C.-B., 836 A.2d
at 910–11. There are some cases where the goal remains the same for an
extended period, no party is seeking to change the goal, and the trial court
continually orders or refuses to order something that is or is not in the best
interest of the child. Consider, for example, the case of a child for whom
adoption or guardianship with a family member is not a feasible prospect.
Some children remain in foster or congregate care for years, with the only
truly final order being the last one before they age out of the system. There
needs to be a balance between avoiding interference with the permanency
review process on the one hand and permitting the trial court to have
unfettered discretion by not reviewing orders on the other hand. I do not
believe this case presents a situation like H.S.W.C.-B. where “[m]aintaining
the status quo” for the time being is putting “the needs and welfare of a
(Footnote Continued Next Page)
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counter to the pursuit of expeditious permanency for children. Were we to
permit appeals from each six-month permanency review hearing (or in some
counties, each three-month permanency review hearing), it would be
impossible for the juvenile court to maintain regular reviews of the case
without running afoul of Pa.R.A.P. 1701. Our Supreme Court in H.S.W.C.-B.
was able to bypass that problem by instructing juvenile courts to continue to
conduct regular permanency reviews while the goal change denial or grant is
on appeal. However, as an error-correcting court, it would be outside our
authority to impose such a directive were we to permit appeals of all
permanency review hearings. Further, the detriment of delay is not
outweighed by the benefits of prompt review, as most decisions by the
Juvenile Court are reviewed only for an abuse of discretion, and we often
must defer to the assessments of the juvenile court, which has firsthand
experience with the family.
By permitting review of this permanency review order, which occurred
following a permanency review hearing in which no new evidence or
requests were made and which occurred in the midst of ongoing hearings 4
_______________________
(Footnote Continued)
child at risk,” id., since appealable orders (i.e., the orders from the
termination and goal change hearings) were pending.
4 It is concerning that the termination and goal change hearings have
stretched out for such an extended period, leaving the children and Mother
in a state of limbo. Obviously, it is imperative to come to the correct result
after careful examination of all of the relevant evidence, and in some cases,
multiple hearings are warranted. However, “courts must keep the ticking
(Footnote Continued Next Page)
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designed to review the history of the case, I believe the Majority’s holding
opens the door to rendering all permanency review orders immediately
appealable. In short, if this order is appealable, it is difficult to fathom a
permanency review order that would not be immediately appealable.5
Therefore, I would quash this appeal because the order appealed from is an
interlocutory order.6
(Footnote Continued) _______________________
clock of childhood ever in mind. Children are young for a scant number of
years, and we have an obligation to see to their healthy development
quickly.” In re T.S.M., 71 A.3d at 269. Accordingly, our Supreme Court
expects “trial courts to control these proceedings, focus the issues, direct the
testimony, and decide matters[, because p]ermanency for the children
demands no less.” Id. at 260 n.19. I note, however, that the trial court’s
failure to move along the termination of parental rights process is not an
issue Mother raises in this appeal.
5 If all permanency review hearings were immediately appealable, the
eloquent words of Justice (later Chief Justice) O’Brien would certainly ring
true: “The bifurcated appeal foisted upon the courts can only be termed a
judicial Hydra. Would that a Hercules could appear … to slay this monster.”
Hession Condemnation Case, 242 A.2d 432, 437 (Pa. 1968) (O’Brien, J.,
dissenting). Suffice it to say that I agree with Justice O’Brien that “[i]t is
more important to prevent the chaos inherent in bifurcated, trifurcated, and
multifurcated appeals than it is to correct each mistake of a trial court the
moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236,
238 (Pa. 1968) (O’Brien, J., dissenting).
6
The order is also not a collateral order pursuant to Pa.R.A.P. 313, because
it deals with matters at the heart of the proceeding.
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