In Re: T.R.R. Appeal of: B.C.C.Y.C.S.A.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2015
• Docket: 1614 EDA 2014
• Status: Unpublished

Opinion

J-A06044-15 and J-A06045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: T.R.R. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: THE BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICES AGENCY AS TO FATHER, L.R., JR.

No. 1614 EDA 2014

Appeal from the Order Entered April 29, 2014 In the Court of Common Pleas of Bucks County Orphans’ Court at No(s): 2014-9008-36

APPEAL OF: THE BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICES AGENCY, AS TO MOTHER, H.J.W.

No. 1838 EDA 2014

Appeal from the Order Entered May 9, 2014 In the Court of Common Pleas of Bucks County Orphans’ Court at No(s): 2014-9008-36 J-A06044-15 and J-A06045-15

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 13, 2015

H.J.W. (“Mother”) and L.R. (“Father”) are the mother and putative

father,1 respectively, of T.R.R., a minor child. Bucks County Children and

Youth Services (“CYS”) filed petitions seeking termination of Mother’s and

Father’s parental rights over T.R.R. In separate decrees, the Orphans’ Court

granted CYS’ petition for voluntary termination of Father’s parental rights

and confirmed Mother’s voluntary relinquishment of her parental rights.

Both parents wrote letters to the Orphans’ Court requesting reconsideration

of the decrees terminating their respective rights. In response, the Orphans’

Court entered decrees (“Vacatur Decrees”) which (1) vacated the decrees

terminating Father’s and Mother’s parental rights and (2) permitted CYS to

file new petitions for involuntary termination of each parent’s parental rights.

CYS filed two appeals at the above caption numbers objecting to the

Vacatur Decrees. CYS contends that Father’s and Mother’s change of

position is nothing more than gamesmanship, and that the Orphans’ Court

should have enforced their voluntary relinquishments of parental rights. We

quash both appeals as interlocutory.

T.R.R. was born on May 7, 2008 and was adjudicated dependent on

December 27, 2010. He has remained in placement since that date. CYS

____________________________________________

1 Alleged biological father.

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asserts that T.R.R. was “a mess” when he went to his current foster home in

2011 but has thrived in the care of his foster parents. Brief For CYS, 1614

EDA 2014, pp. 8-9. CYS further claims that T.R.R.’s visits with both parents

are “concerning,” particularly his visits with Father. Id.

On June 14, 2013, Mother executed a consent to voluntarily relinquish

her parental rights over T.R.R. On January 14, 2014, CYS filed a petition

seeking involuntary termination of Father’s parental rights and a petition to

confirm Mother’s voluntary consent to T.R.R.’s adoption.

During an evidentiary hearing on March 28, 2014, the Orphans’ Court

found that Mother gave valid consent to voluntary relinquishment of her

parental rights. On the same date, based on CYS’ unopposed motion, the

Orphans’ Court granted leave for CYS to amend its petition to seek Father’s

voluntary relinquishment of parental rights. Father testified that he desired

to relinquish his parental rights voluntarily. At the conclusion of the hearing,

the Orphans’ Court held that Father voluntarily, freely and without coercion

consented to termination of his parental rights.2

On April 4, 2014, the Orphans’ Court entered a decree granting CYS’

amended petition for voluntary termination of Father’s parental rights.

2 CYS also filed a petition for involuntary termination of the parental rights of another individual, J.W. On April 29, 2014, the Orphans’ Court entered a decree terminating J.W.’s parental rights. The Orphans’ Court never vacated this decree. Nor has any party appealed this decree.

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On April 17, 2014, the Orphans’ Court received a letter from Father

stating in pertinent part: “I would like to appeal my decision.” The Orphans’

Court determined that this “appeal” was Father’s attempt to withdraw his

voluntary relinquishment of parental rights. On April 29, 2014, the Orphans’

Court entered a Vacatur Decree vacating its April 4, 2014 decree granting

CYS’ amended petition for voluntary termination of Father’s parental rights.

The court granted CYS permission to move for a hearing concerning

involuntary termination of Father’s parental rights within thirty days, and the

court stayed any adoption petition filed in this matter pending resolution of

Father’s parental rights.3

On April 29, 2014, the Orphans’ Court entered a decree granting CYS’

petition to confirm Mother’s consent to T.R.R.’s adoption. On May 8, 2014,

the Orphans’ Court received a letter from Mother seeking to revoke her

voluntary relinquishment of parental rights. On May 9, 2014, the Orphans’

Court entered a Vacatur Decree vacating its April 29, 2014 decree granting ____________________________________________

3 The Vacatur Decree pertaining to Father provides:

AND NOW, this 29th day of April, 2014, our Decree of April 4, 2014 granting the Agency's Petition for Voluntary Termination of [Father]'s parental rights, is hereby VACATED. The April 16, 2014 ‘appeal’ of [Father], seeking to withdraw his voluntary relinquishment of parental rights within thirty (30) days of said relinquishment is GRANTED. The Bucks County Children and Youth Agency is directed if the Agency so desires, to file for an Involuntary Termination of parental Rights hearing, within thirty (30) days of the date of this Order. If an Adoption Petition has been filed in this matter, it shall be Stayed, pending resolution of the Involuntary Termination of Parental Rights.

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CYS’ petition to confirm Mother’s consent to T.R.R.’s adoption. The court

granted CYS permission to move for a hearing concerning involuntary

termination of Mother’s parental rights within thirty days, and the court

stayed any adoption petition filed in this matter pending resolution of

Mother’s parental rights.4

On May 29, 2014, CYS appealed both Vacatur Decrees to this Court.

As a threshold matter, we must decide whether the Vacatur Decrees

are appealable. We lack jurisdiction over an appeal unless the order in

question is appealable. Estate of Considine v. Wachovia Bank, 966 A.2d

1148, 1151 (Pa.Super.2009). This Court “has the power to inquire at any

time, sua sponte, whether an order is appealable.” Id. If the order is not

appealable, we must quash the appeal. Malanchuk v. Sivchuk, -- A.3d --,

2014 WL 7157105, *4-6 (Pa.Super., Dec. 17, 2014) (quashing appeal;

partial summary judgment order which was appealed without permission of

trial court, and which involved single plaintiff bringing identical allegations

against separate defendants, was interlocutory; order was not final and

appealable because it did not dispose of all claims and all parties, thus

Superior Court did not have jurisdiction to hear the appeal).5 ____________________________________________

4 The Vacatur Decree pertaining to Mother is identical in form to the Vacatur Decree pertaining to Father. 5 The Orphans’ Court timely entered each Vacatur Decree well within thirty days of the original decree. See 42 Pa.C.S. 5505 (“except as otherwise provided or prescribed by law, a court upon notice to the parties may modify (Footnote Continued Next Page)

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The law is clear that “an appeal may [only] be taken from: (1) a final

order or an order certified as a final order (Pa.R.A.P. 341); (2) an

interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by

permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral

order (Pa.R.A.P. 313).” Stahl v. Redcay, 897 A.2d 478, 485

(Pa.Super.2006).

The Vacatur Decrees are not final orders, since they neither “dispose[]

of all claims and of all parties” nor are “expressly defined as. . .final order[s]

by statute.” Pa.R.A.P. 341(b)(1), (2) (defining “final order”). Instead, these

Decrees merely have the effect of transforming the proceedings from

voluntary to involuntary termination proceedings.6

_______________________ (Footnote Continued)

or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed”). 6 We agree with Mother that In Re H.S.W.C.-B., 836 A.2d 908 (Pa.2003), is distinguishable from this case. In that decision, our Supreme Court held that an order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final and appealable when entered. Id., 836 A.2d at 911. Even an order which preserves the status quo by denying a goal change or termination of parental rights is appealable, because

maintaining the status quo could put the needs and welfare of a child at risk by permanently sheltering goal change and termination petitions from appellate review. . .[As a practical matter], these petitions go to the same trial judge. If a trial judge erroneously denies these motions and improperly maintains the status quo, and keeps doing that on periodic review, (Footnote Continued Next Page)

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Nor did the Orphans’ Court certify these Decrees as final orders.

Pa.R.A.P. 341(c) defines the certification procedure as follows: “The trial

court. . .may enter a final order as to one or more but fewer than all of the

claims and parties only upon an express determination that an immediate

appeal would facilitate resolution of the entire case. Such an order becomes

appealable when entered.” Id. Neither Vacatur Decree states that it is a

“final order” or that “an immediate appeal [will] facilitate resolution of the

entire case.”

The Vacatur Decrees are not appealable interlocutory orders as of

right, because they do not fall within the categories of appealable

interlocutory orders identified within Pa.R.A.P. 311, e.g., orders refusing to

open, vacate or strike judgments; orders refusing to dissolve attachments or

such an improper order will never be subject to appellate review.

Id. at 910.

The Vacatur Decrees do not preserve the status quo indefinitely and therefore are not final orders under H.S.W.C.-B. The effect of the Vacatur Decrees is merely to convert these termination proceedings from voluntary to involuntary termination. If CYS timely files involuntary termination petitions following quashal of this appeal, the Orphans’ Court’s decrees in response to the petitions will be final and appealable, regardless of whether they grant or deny involuntary termination. Id. The Vacatur Decrees do not thwart finality, as was the case in H.S.W.C.-B., but merely select another pathway toward achieving finality.

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receiverships; orders granting or denying most injunctions; or orders

awarding new trials. See, e.g., Pa.R.A.P. 311(a)(1), (2), (4), (6).

Nor are the Vacatur Decrees appealable interlocutory orders by

permission under Pa.R.A.P. 312, which states: “An appeal from an

interlocutory order may be taken by permission pursuant to Chapter 13

(interlocutory appeals by permission).” CYS did not request or receive

permission to appeal pursuant to Chapter 13 of the Rules of Appellate

Procedure.

Lastly, the Vacatur Decrees are not appealable as collateral orders.

Pa.R.A.P. 313 defines a collateral order as “an order separable from and

collateral to the main cause of action where 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.” Pa.R.A.P. 313(b). The Vacatur Decrees are not “separable

from and collateral to the main cause of action.” Id. To the contrary, they

are directly related to the main cause of action (termination of Mother’s and

Father’s parental rights) by permitting further proceedings on the question

of termination.

In short, the Vacatur Decrees do not fit within any category of

appealable orders. They are, plainly and simply, non-appealable

interlocutory orders which we lack jurisdiction to review. See In Re Estate

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of Quinn, 805 A.2d 541, 542 (Pa.Super.2002) (general rule prohibits the

appeal of most interlocutory orders in order to prevent piecemeal, protracted

litigation). Therefore, we cannot reach the merits of CYS’ arguments that

the Orphans’ Court erred by entering the Vacatur Decrees.

Appeals quashed. Motion of amicus curiae to participate in oral

argument denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2015

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