J-A25037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.R. :
:
:
:
: No. 296 WDA 2022
Appeal from the Order Entered February 28, 2022
In the Court of Common Pleas of Erie County Civil Division at No(s): 225
of 2021
IN THE INTEREST OF: A.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.V. :
:
:
:
: No. 297 WDA 2022
Appeal from the Order Entered February 28, 2022
In the Court of Common Pleas of Erie County Civil Division at No(s): 224
of 2021
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 28, 2022
A.R. and A.V. (the Children),1 by Steven George, Esquire, their guardian
ad litem (GAL), appeal from the February 28, 2022, orders entered in the Erie
County Court of Common Pleas, which adjudicated them dependent and
____________________________________________
1A.R. was born in March 2021 and A.V. was born in August 2017. See
Dependency Ct. Op., 4/19/22, at 1.
J-A25037-22
conditioned A.C.’s (Mother) visitation with them based on her drug test
results. The Children assert, inter alia, that the dependency court erred by
conditioning Mother’s visits on her drug test results without clear and
convincing evidence that the condition was in their best interests or that the
visits posed a grave threat to the Children. Erie County Office of Children and
Youth (OCY) has filed a motion to dismiss the appeal for mootness because
Mother’s parental rights were recently involuntarily terminated. Based on the
following, we quash the appeal and deny OCY’s motion as moot.
The dependency court set forth the following relevant background
concerning this case:
[The Children] were removed from Mother’s care by
Emergency Protective Order on October 12, 2021,[2] and on
October 26, 2021, an Adjudication and Disposition Hearing was
held. Initially, Mother did not appear for the Hearing, and after
testimony presented by [OCY], the Hearing Officer found the
allegations set forth in the Dependency Petition were
substantiated. Mother then appeared at the conclusion of the
Hearing, and the following treatment plan was put in place:
1. Participate in an agency-approved, hands-on parenting
program, and follow all recommendations until successfully
completed;
2. Participate in a mental health evaluation and follow all
recommendations to include therapy and medication
management if deemed therapeutically appropriate.
Further, [Mother] will sign all necessary releases from the
provider and [OCY] in order for [OCY] to obtain the
evaluation and verify services;
____________________________________________
2The Children were then placed in the same foster home. See Dependency
Ct. Op. at 2.
-2-
J-A25037-22
3. Participate in a Drug and Alcohol Assessment through Erie
County Offices of Drug and Alcohol and follow all
recommendations. [Mother] will sign a release of
information from the provider and [OCY] in order for [OCY]
to obtain the assessment and recommended services;
4. Participate in domestic violence counseling and follow all
recommendations. Further, [Mother] will sign all necessary
releases from the provider and [OCY] in order for [OCY] to
verify services and participation;
5. Refrain from the use of drugs and alcohol and participate
in random urinalysis through Esper Treatment Center;
6. Obtain and/or maintain safe and secure housing,
including residing with appropriate individuals, and provide
[OCY] with a signed lease;
7. Obtain and/or maintain gainful employment or another
form of legal income in order to meet the needs of the
[C]hildren. Further, [Mother] will provide [OCY] with
verifiable proof of income, and;
8. Maintain weekly contact with the caseworker and attend
any and all scheduled meetings with the caseworker in order
to provide and receive updates.
[The court also ordered Mother to have supervised visitation at an
agency approved location. The court stated the visitation could
increase with frequency and duration and decrease in supervision
according to Mother’s progress with the court-ordered services
and her ability to demonstrate stability. The court further stated
that if Mother appeared to be under the influence at the time of
the visitation, it would be cancelled.]
The first Permanency Review Hearing was held on January
26, 2022, before the [dependency c]ourt. Mother was present
and represented by Attorney Emily Merski, and Attorney Amy
Jones represented [OCY]. [The Children] were not present;
however, they were represented by their [GAL].
Upon [her] arrival at the Hearing, the [c]ourt sent Mother
to the Erie County Adult Probation Department to submit to
-3-
J-A25037-22
urinalysis testing; Mother tested positive for Fentanyl. The
urinalysis results were provided to Mother and the parties on the
record. Despite the results, Mother denied using Fentanyl and
denied knowing how it got into her system.
Additionally, the [c]ourt heard testimony that Mother was
not engaging in the services identified in her treatment plan or
was not keeping in regular contact with [OCY]. Despite behavioral
issues, at the onset, [the Children] were doing well in their foster
home. Ultimately, the [c]ourt found that Mother had been
minimally compliant with the permanency plan and had made
minimal progress towards alleviating the circumstance which
necessitated [the Children’s] original placement. At the
conclusion of the Hearing, the goal remained reunification, and
the second Permanency Review Hearing was scheduled for May
2, 2022.
On February 18, 2022, [OCY] filed a Motion for Change in
Visitation, averring that since the January 28, 2022 Permanency
Hearing, Mother had seven (7) urinalysis tests scheduled; two (2)
were positive for Fentanyl, one (1) was presumed positive (could
not produce), two (2) were no show positives, and two (2) were
negative.1 Based on Mother’s continued use of Fentanyl, [OCY]
requested that the [c]ourt condition Mother[’]s visitation on clean
urinalysis results. The GAL filed a written response on behalf of
[the Children], objecting to [OCY]’s request. The [c]ourt granted
[OCY]’s Motion, indicating as follows:
The [c]ourt is not limiting Mother’s visitation, just
conditioning the visits on Mother’s sobriety. It is not
in [the Children’s] best interest to have visits with Mother
while she is repeatedly testing positive for Fentanyl.
Specifically, the [o]rder stated, “in the event that a positive
urine result is received, the mother shall not have a visit
until the next clean urine.” Thereby, conditioning the visits on
Mother’s own actions. . . .
____________________________
1 Prior to filing this Motion, Mother’s last visit with [the
Children] was on 02/02/2022. It [was] unknown to the
[c]ourt why no visits occurred between February 2, 2022,
and the filing of the Motion.
-4-
J-A25037-22
Dependency Ct. Op. at 1-3 (record citations omitted; some emphases in
original and some added).
The Children filed timely notices of appeal and Pa.R.A.P. 1925(a)(2)(i)
concise statements of errors complained of on appeal.3 The dependency court
filed a Rule 1925(a) opinion on April 19, 2022.
Subsequently, this Court issued a rule on the Children to show cause
why the order was, as they claimed, appealable under Pa.R.A.P. 313. See
Order, 3/30/22, citing Interest of J.M., 219 A.3d 645 (Pa. Super. 2019)
(order, continuing the dependency permanency review hearings for court
administration to determine location and time of future hearings and directing
that no home passes will be granted if any child or parent tests positive for
drugs, was quashed as interlocutory and not collateral). The Children’s GAL
filed a response. This Court thereafter discharged the rule to show cause but
referred the matter to the merits panel. See Order, 4/13/22.
Meanwhile, a permanency review hearing was held before the
dependency court on May 2, 2022. The court ordered that [the Children’s]
permanency goal be changed to adoption and OCY move forward with filing
petitions to terminate parental rights. Eight days later, OCY filed petitions for
the involuntary termination of Mother’s parental rights. An evidentiary
hearing was held on July 14, 2022, before the orphans’ court. On August 11,
____________________________________________
3 This Court consolidated the Children’s appeals sua sponte on April 13, 2022.
-5-
J-A25037-22
2022, the orphans’ court issued decrees involuntarily terminating Mother’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), and (b).4
See Orphans’ Ct. Docket Nos. 28A In Adoption 2022 & 28 In Adoption 2022.
As mentioned above, on October 5, 2022, OCY filed a motion to dismiss
the appeal for mootness pursuant to Pa.R.A.P. 1972(a)(4) (any party may
move to dismiss for mootness).5 We note, with disapproval, the Children’s
GAL has not filed a response.
The Children raise the following issues before this Court:
1. Whether the [dependency] court’s February 25, 2022 order
regarding visitation is appealable pursuant to Pa.R.A.P. 313 and
the collateral order doctrine[?]
2. Whether the [dependency] court erred by tying all of the
[C]hildren’s visitation with Mother to Mother’s drug test results[?]
The Children’s Brief at 3.
In the Children’s first argument, they claim the February 28th orders
are appealable pursuant to collateral order doctrine. Appealability implicates
this Court’s jurisdiction to review controversies. See Kulp v. Hrivnak, 765
A.2d 796, 798 (Pa. Super. 2000) (“[Since we] lack jurisdiction over an
____________________________________________
4 The court also terminated the rights of the Children’s father, A.R. As
indicated supra, the appeal before us only relates to Mother.
5 OCY filed a previous motion to dismiss the appeal for mootness on May 27,
2022, which followed entry of the goal change order but before the termination
decrees were issued. This Court issued an order on June 27, 2022, denying
the application “without prejudice” to be raised again. Order, 6/27/22.
-6-
J-A25037-22
unappealable order, it is incumbent on us to determine . . . 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).
“‘An appeal lies only from a final order, unless permitted by rule or
statute.’ Generally, a final order is one that disposes of all claims and all
parties. See Pa.R.A.P. 341(b).” Interest of L.B., 229 A.3d 971, 975 (Pa.
Super. 2020).6
The “collateral order doctrine” exists as an exception to the finality
rule and permits immediate appeal as of right from an otherwise
interlocutory order where an appellant demonstrates that the
order appealed from meets the following elements: (1) it is
separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the
question presented is such that if review is postponed until final
judgment in the case, the claimed right will be irreparably lost.
See Pa.R.A.P. 313.
Our Supreme Court has directed that Rule 313 be interpreted
narrowly . . . . To invoke the collateral order doctrine, each of the
three prongs identified in the rule’s definition must be clearly
satisfied.
Interest of L.B., 229 A.3d at 975 (citations omitted).
Here, the Children contend that all three prongs of the collateral order
doctrine have been satisfied. First, they assert the first prong has been met
because their claim “presents a distinct legal issue ─ whether a trial court can
____________________________________________
6The Children did not dispute that the order at issue is not a final order for
appellate review purposes.
-7-
J-A25037-22
tie all contact between a child and a parent to the parent’s random drug tests.”
The Children’s Brief at 11 (emphasis omitted). The Children state that the
order at issue “is clearly separable from the main cause of action” as “analysis
of this issue does not require [this Court] to analyze the adjudication of
dependency or the disposition.” Id. at 13. As for the second prong, the
Children argue that this appeal involves the complete denial of visits, and
therefore, it is a right too important to be denied review. Id. at 13. They
allege that the court imposed a condition “that eliminates contact altogether”
and such an act can have a significant effect on them. Id. at 14. Furthermore,
the Children state that the dependency court’s “reliance on the assertion that
Mother theoretically controls whether visits occur is misplaced because [they,]
the children[,] do not control whether Mother has negative drug test results,
and [they], not Mother, [are] asserting a right to visitation.” Id. at 16. Lastly,
as to the third prong, the Children maintain that the denial of visitation can
“ultimately affect a custody determination or even the terminal of parental
rights[,]” and thus, it is a right too important to be denied review. Id. at 17.
They state that “if review of the . . . court’s order is deferred until the time of
goal change or termination of parental rights, then the damage will already
be done[,]” and that “the purported damage is the destruction of the child-
parent bond.” Id. at 18. In support of their argument, they rely on Interest
of L.B. as instructive, and distinguish Interest of J.M.
-8-
J-A25037-22
In Interest of L.B., the juvenile court issued a permanency review
order, which suspended the father’ s visitation pending a recommendation by
the child’s therapist, and set a date for a subsequent permanency review
hearing. Interest of L.B., 229 A.3d at 974-75. A panel of this Court
determined the order was appealable under the collateral order doctrine. Id.
at 976-77. The Court determined the first prong was satisfied, where the
father’s challenge — to “the juvenile court’s decision to outsource to a
therapist the determination of when his visits with [the child] may or may not
resume” — was “clearly separable from and collateral to the main cause of
action.” Id. at 977. The Court further reasoned:
[B]ecause this order resulted in the complete denial of visitation,
it is both a “right . . . too important to be denied review,” and “if
review is postponed until final judgment in the case, the claimed
right will be irreparably lost.” [See] Pa.R.A.P. 313(b).
Accordingly, . . . this order satisfies both the second and third
prongs of the collateral order doctrine.
Id. at 976.
In Interest of J.M., the trial court permitted the children to visit the
mother in her home “provided that [the m]other and [the c]hildren all
submitted to a drug screen and tested negative for any illegal substances.”
In the Interest of J.M., 219 A.3d at 649 (record citation omitted). The
mother and two of the children subsequently tested positive for drugs. The
court then issued an order prohibiting visits at the mother’s home, including
over winter holidays, if the mother or children tested positive for drugs. Id.
at 649-50. The mother then filed an appeal. Id. at 650.
-9-
J-A25037-22
As to the first prong, a panel of this Court acknowledged at length the
complicated nature of dependency matters, specifically visitation, and stated:
We leave for another day the resolution of what constitutes the
cause of action in a dependency matter, and whether a
permanency review order placing restrictions on a parent's
visitation is separable from the main cause of action, because the
instant case is dispositive on the last two prongs of the collateral
order test.
Interest of J.M., 219 A.3d at 660.
The Court then opined:
As noted above, the latter two prongs are importance of the
right and irreparable loss. Pa.R.A.P. 313(b) (providing that “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”). There
is no question that a parent’s “constitutionally protected liberty
interest” in visiting her dependent children is an important right;
this is reflected by the requirement that when the permanency
goal remains reunification, visitation should not be denied or
reduced unless it poses a “grave threat” to the children. See In
re C.J., 729 A.2d 89, 94 (Pa. Super. 1999). But the same cannot
be said of a parent’s right to visit with her dependent children in
her home regardless of the parent’s and/or children’s sobriety.
Because [the c]hildren have been adjudicated dependent and [the
m]other does not have custody of them, [the m]other does not
possess an unfettered right to visit with [the c]hildren under any
conditions. See In the Interest of T.D., Jr., 57 A.3d 650 (Pa.
Super. 2012) (holding that juvenile court has discretion as part of
its dispositional powers under the Juvenile Act to direct a parent
to undergo a drug and alcohol evaluation before placing a
delinquent child with the parent). Moreover, there is no indication
in the record that [the m]other was denied the right to see [the
c]hildren in any fashion, or was denied the right to visit with [the
c]hildren in her home environment indefinitely. Accordingly, at
this juncture, we conclude the right involved is not too important
to be denied review.
Turning to the third prong, irreparable loss, we acknowledge
that the four days over the [winter] holiday at issue cannot be
- 10 -
J-A25037-22
recovered. But [the m]other’s right to home visits in general have
not been irreparably lost at this point. The juvenile court explicitly
told the parties at the hearing that it would revisit the issue. The
order itself did not deny home visits indefinitely; it simply required
[the m]other and [the c]hildren to be drug-free before visiting at
[the m]other’s home. Most significantly, the permanency review
hearing was continued for one month, meaning that the juvenile
court would have the opportunity to address the issue again after
hearing all of the most-up-to-date evidence in the case. Thus, we
conclude that even if the first prong of the collateral order test
could be met, the last two prongs are not met at the current time.
Interest of J.M., 219 A.3d at 660-61.
Turning to the present matter, the dependency court relied on Interest
of J.M., and found the following:
Under the second prong, the Court notes that Mother’s right
to visit with [the Children] is conditioned upon her own actions,
i.e., having clean urinalysis results. Thus, Mother can remedy the
circumstances surrounding her visits at any time. It is clear to the
Court that Mother is capable of doing so, as [OCY] submitted to
the Court two (2) negative urinalysis results that were produced
in addition to the five (5) positive urinalysis results. Therefore,
Mother has only been denied the right to see [the Children] if she
chooses to utilize controlled substances and/or alcohol prior to
urinalysis testing and visits. Additionally, this matter will again be
addressed at the next Permanency Review Hearing scheduled on
May 2, 2022. Given the circumstances and Mother’s unwillingness
to alleviate them, the right to visitation is not too important to be
denied review.
In turning to the third prong, while Mother may have missed
visits with [the Children] due to her drug use, her right to visits,
in general, has not been “irreparably lost.” Again, Mother can visit
with [the Children] whenever she chooses to abstain from utilizing
controlled substances and/or alcohol, specifically, in this instance,
Fentanyl. Additionally, at the time the Court signed the Court
Order in question, a Permanency Review Hearing was already
scheduled for May 2, 2022, whereby at this time, the Court would
again review Mother’s treatment plan, progress, and visitation.
- 11 -
J-A25037-22
Mother’s visits with [the Children] have not been eliminated.
They have merely been conditioned on her own actions. Thus, the
Court Order . . . does not constitute a final or collateral order for
purposes of [a]ppeal and should be dismissed.
Dependency Ct. Op. at 4-5 (citations omitted).
We agree with the court’s sound reasoning that Interest of J.M. is
controlling authority in this appeal. Contrary to the Children’s argument, the
court’s orders do not constitute a total suspension of visitation rights. Rather,
the court clearly stated that it “was not limiting Mother’s visitation, just
conditioning the visits on [her] sobriety” and “in the event that a positive urine
result is received, [M]other shall not have a visit until the next clean urine.”
Order, 2/28/22. While we sympathize with Children’s position, they had been
adjudicated dependent, and therefore, Mother did “not possess an unfettered
right to visit with [them] under any conditions.” See Interest of J.M., 219
A.3d at 661 (citation omitted.). Indeed, Mother tested positive for Fentanyl
at the time of the visits on multiple occasions. Moreover, the dependency
court pointed out that it did not deny the right to visitation indefinitely as it
stated it would revisit the issue at the next permanency hearing. As such, the
latter two prongs, importance of right and irreparable loss, have not been
met.7 See Interest of L.B., 229 A.3d at 975.
____________________________________________
7Like Interest of J.M., we decline to address the first prong of the collateral
order doctrine.
- 12 -
J-A25037-22
Furthermore, we note the instant order is distinguishable from the order
in Interest of L.B. In that case, there was a complete denial of visitation.
See Interest of L.B., 229 A.3d at 976-77. Accordingly, we conclude the
orders are not appealable pursuant to the collateral order doctrine, and thus,
we do not have jurisdiction to review Children’s appeal. See Pa.R.A.P. 313;
Interest of J.M., 219 A.3d at 661.8 Therefore, we quash Children’s appeal.
Lastly, we turn to OCY’s motion to dismiss the appeal on the ground that
Mother’s parental rights have been involuntarily terminated. Because we lack
jurisdiction in this case, we deny the motion as moot.
Appeal quashed. Motion to dismiss denied as moot.9
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2022
____________________________________________
8 Based on our disposition, we need not address the Children’s remaining
claim.
9In light of the foregoing, the Prothonotary’s Office is directed to remove this
case from the A25-22 argument list, which is set for November 2, 2022.
- 13 -