In re J.W.

578 A.2d 952, 396 Pa. Super. 379, 1990 Pa. Super. LEXIS 1768
CourtSuperior Court of Pennsylvania
DecidedJuly 27, 1990
DocketNo. 2775
StatusPublished
Cited by98 cases

This text of 578 A.2d 952 (In re J.W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re J.W., 578 A.2d 952, 396 Pa. Super. 379, 1990 Pa. Super. LEXIS 1768 (Pa. Ct. App. 1990).

Opinion

KELLY, Judge:

In this case we are called upon to determine the effect of various procedural defaults upon appellant’s appeal from an order granting a petition for involuntary termination of parental rights. We find quashal or dismissal on procedural grounds inappropriate, and reach the merits of the appeal. Nonetheless, we affirm the termination of appellant’s parental rights.

Facts and Procedural History

This case involves the fate of four children and their natural mother. Two of the children had been sexually abused by their father who committed suicide while charges were pending against him. The wife had known of the [384]*384abuse for a period of ten months but had taken no steps to protect her children from her husband’s sexual abuse.1

The mother suffered from schizophrenia and also attempted suicide. She was treated as an inpatient at a mental hospital during involuntary commitment, followed by a brief voluntary commitment.

In the five years since her release, her employment and residence have changed erratically. Her employment changed ten times. Her residence changed thirteen times. None of the residences were suitable for a family of five.

Despite continued need for out-patient treatment, her participation in free counselling/mental health services was so sporadic that it was terminated by the provider. She subsequently failed to avail herself of other available mental health services. She ascribed her unwillingness to participate in such services to her belief that Children and Youth Services was plotting against her. The court ascribed her behavior to paranoia.

Finally, and perhaps most importantly, by the time of the last hearing in this matter she was visiting only one of her four children, and him only once every four to six weeks. She was originally authorized to visit with each of her four children twice a month.2 Her three daughters, J.W. (dob 10/1/72), A.W. (dob 12/8/73) and Y.W. (dob 9/14/76), specifically testified in favor of termination of their mother’s parental rights. The fourth and youngest child, J.W. (dob 10/25/81), expressed no opinion on termination of parental [385]*385rights but noted that he enjoyed “the hamburgers and toys” his mother gave him during visits.

The trial court specifically found that “the foster families have provided a stable and secure environment for the Werkheiser children for the past seven years.” Trial Court Opinion at 2. Nothing in appellant’s brief to this Court casts the least doubt on that evaluation; rather, it is readily apparent that the children have been quite fortunate in developing nurturing ties to their foster parents.

Jurisdiction

When notice of appeal was filed in this case, a final decree had not yet been entered. Rather than exercise our discretion to quash the appeal, this panel caused the following Per Curiam Order to be entered:

ORDER

This appeal taken from an order dismissing exceptions to a decree nisi terminating the appellant’s parental rights. An appeal will not lie from an order denying exceptions. Entry of a final decree is necessary for appellate review. Kopchak v. Springer, 292 Pa.Super. 441, 437 A.2d 756 (1981) (where appellant failed to have a final decree entered on the docket, but instead appealed from order dismissing exceptions to decree nisi, appeal would be quashed). The appellant is, therefore, directed to praecipe for the entry of a final decree. Pa.R.A.P. 301. If the appellant does not submit proof of entry of a final decree on the trial court docket, within fifteen days of the date of this order, this appeal shall be dismissed.

Order of April 5, 1990.

When an order is interlocutory and unappealable, an appeal taken from the order may be quashed. In many cases, however, an order quashing an appeal only serves to unnecessarily delay review by causing the parties to go back to the start, praecipe a final order, and then repeat correctly completed procedures with no discernable benefit [386]*386derived over simply directing the appellant to praecipe the final order without quashing. When, as here, the case involves parental rights and the swiftly passing childhoods of four individuals, any unnecessary delay ought be avoided when practicable alternatives exist. Hence, we elected to exercise our discretion to direct appellant to perfect our jurisdiction by filing a praecipe for entry of a final decree. See Pa.R.A.P. 301; Pa.R.A.P. 905(a).

In response to our order of April 5, 1990, a final decree was entered April 10, 1990. Our jurisdiction was thereby perfected. See Pa.R.A.P. 905(a).

Preservation of Issues

Review of the record reveals that appellant’s exceptions were not timely filed. Failure to file timely exceptions may result in waiver of challenges on appeal. Pa.R.C.P. 227; Pa.R.C.P. 1501; cf. Sipowicz v. Sipowicz, 358 Pa.Super. 319, 517 A.2d 960 (1986), appeal denied, 516 Pa. 642, 533 A.2d 713 (1987). Thus, a second stumbling block is set in the path to review on the merits.

When, as here, however, an issue presented on appeal was raised, briefed, argued, and considered in the trial court, we may decline to dismiss the claim on waiver grounds. Cf. Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989). Moreover, if the untimeliness of the exceptions were to result in denial of the present claim, such would constitute a procedural default, which presumably would be redressable in a subsequent collateral proceeding alleging ineffective assistance of counsel. See In re Adoption of T.M.F., 392 Pa.Super. 598, 573 A.2d 1035 (1990) (en banc, plurality, discussing ineffective assistance of counsel in the termination of parental rights context).

There are times when reason commands that a procedural knot be swiftly severed, rather than require the parties to suffer the delay in reaching the same ultimate disposition which unravelling the knot might require. Such a time is now.

[387]*387“Childhood is a small stretch of time in which events and changes can alter a life to its last day.” Karis v. Karis, 518 Pa. 601, 607, 544 A.2d 1328, 1332 (1988). Because we cannot alter the past, we must be all the more careful of the present, which all too soon in the life of a child passes into the irretrievable past. Id.

In Karis, our Supreme Court dealt with the interest of children who were “the victims of conflicting loves” in the context of a divorce/custody dispute. Justice McDermott’s cogent observations in Karis, of course, apply with all the more importance and urgency to children who are victims of neglect and/or abuse in the context of parental rights termination cases.

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Bluebook (online)
578 A.2d 952, 396 Pa. Super. 379, 1990 Pa. Super. LEXIS 1768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jw-pasuperct-1990.