In re T.T.

842 A.2d 962, 2004 Pa. Super. 26, 2004 Pa. Super. LEXIS 69
Superior Court of Pennsylvania·Decided February 4, 2004·Published·Cited by 2 cases

Opinion

MONTEMURO, J.

¶ 1 This is an appeal from an order denying Appellant’s requests that the court’s dependency adjudication of his step-daughter, T.T., be set aside. The same order granted Appellant’s simultaneous request that the founded report of child abuse against him be vacated. Appellant also challenges the goal change order placing T.T. for adoption. These decisions were handed down in the context of a dependency action to determine whether Cassie Mills, the child’s mother and Appellant’s wife, had provided proper care of her daughter.

¶ 2 Appellant has been married to the child’s mother since 1990. In July of 2001, the child’s aunt reported to police that Appellant had made sexual advances toward T.T. The child was taken into protective custody by Armstrong County Children and Youth Services (CYS) which brought the dependency petition based on lack of parental care and control, and later amended the petition to include allegations of sexual abuse.

¶ 3 After hearings, T.T. was adjudicated dependent on the basis of the finding that she had been sexually abused; her custody was transferred to CYS on January 8, 2002. No appeal was taken from the dis-positional order. Rather, 10 months later, on October 9, 2002, Appellant moved to intervene. After a hearing, intervention was granted in January of 2003 and counsel was appointed. Thereafter, Appellant moved to vacate and set aside the court’s prior orders,1 that is, the adjudication and disposition. After argument, Appellant’s motions were granted to the extent that the decision terming the abuse by Appellant to be founded was vacated on the basis that he had not first been made a party to the proceedings. After a further hearing on April 21, 2003, T.T.’s permanency placement goal was altered from reunification to adoption after it became clear that the child’s mother continued to demonstrate an unshakable disbelief that Appellant had perpetrated the abuse underlying the original removal of T.T. from her home. This appeal followed.

¶4 Appellant presents this Court with two issues. First he argues that having had his standing to intervene recognized, [964] he should have been made a party to proceedings from the beginning, and, because this was not done, the dependency finding and dispositional decision should be vacated and set aside. He also advances the argument in a one sentence paragraph, that because the dependency finding was erroneous, the goal change was prematurely entered.

¶ 5 Before reviewing either of these matters, we must decide whether Appellant’s claim is properly before us. We conclude that it is not. First and foremost, we note that the trial court is without jurisdiction to modify or rescind its order beyond the 30 day limitation set by 42 Pa.C.S.A. § 5505. See Freidenbloom v. Weyant, 814 A.2d 1253 (Pa.Super.2003).

¶ 6 Even were this not the case, other considerations would guide us to the same result. Although the trial court found, and we agree, that Appellant has standing to intervene in this matter, see In re M.K., 431 Pa.Super. 198, 636 A.2d 198 (1994), that determination would not end our inquiry. As CYS points out, Appellant’s stated reason for contending that he should have been joined as a party from the inception of the action is to contest the entry of orders concerning T.T. However, Appellant makes no claim that he.was unaware of the circumstances surrounding the petition for dependency; indeed, he apparently offered to remove himself from the house in August of 2001 after the charges of abuse were made in July.2 (N.T., 8/30/01, at 8; Motion to Intervene Evidentiary Memorandum at 13). Even more conclusively, the trial court states that he was present in the courtroom throughout these proceedings, and testified at the hearing held in December of 2001. (Trial Ct. Op., 11/8/02, at 3). Thus Appellant did not lack notice that CYS had taken action on the matter of T.T.’s allegations. However, Appellant himself took no action to exercise his rights until 10 months after the disposition order was entered in January of 2002, despite the previous dismissal by this Court of a premature appeal, taken after the dependency order but prior to entry of the disposition order, by Cassie Mills raising the same issue he now presents. In re: [T.T.]; Appeal of Cassie Mills, No. 190 WDA 2002, 2002 WL 32353723 (Pa.Super.2002)(unpublished memorandum). Relying on In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786, 787 (1979), we observed: “[ajfter a final disposition has been made, the entire proceedings will be subject to review, including the child’s stepfather’s rights and the effectiveness of the natural mother’s counsel (assuming these issues are properly preserved).” In re [T.T.], supra at 3 (emphasis added).

¶ 7 Pa.R.C.P. 2327 provides that “[a]t any time during the pendency of an action, a person not a party thereto shall be permitted to intervene” subject to certain rules, (emphasis added). However, 2329(3) provides that an application for intervention may be denied, inter alia, if “the petitioner has unduly delayed in making the application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.” The question of whether the putative intervener has been dilatory is one within the discretion of the trial court whose decision will not be disturbed absent a manifest abuse of that discretion. Jackson v. Hendrick, 498 Pa. 270, 446 A.2d 226, 228-29 (1982). But, as the Rule and this Court make clear, “[t]o [965] petition the court to intervene after a matter has been finally resolved is not allowed by our Rules of Civil Procedure. It is only during the pendency of an action that a court may allow intervention.” In re Estate of Albright, 376 Pa.Super. 201, 545 A.2d 896, 899 (1988), appeal denied, 522 Pa. 571, 559 A.2d 33 (Pa.1989). Moreover, “[e]specially where the party proposing its intervention has had ample notice and opportunity to protect its interests earlier, to allow intervention at such a late date would unduly prejudice the interests of a party in whose favor the matter has been resolved.” Id. The Court in Albright also observed that “where a court no longer has power to permit intervention because a matter has been finally adjudicated, a hearing on a petition to intervene would be pointless.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

In re T.T., 842 A.2d 962, 2004 Pa. Super. 26, 2004 Pa. Super. LEXIS 69 (Pa. Ct. App. 2004).

842 A.2d 962 (In re T.T.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In the Int. of: A.P., Appeal of: DHS
Superior Court of Pennsylvania, 2026
Selbovitz, M. v. Streamline Solutions
2025 Pa. Super. 45 (Superior Court of Pennsylvania, 2025)
In the Int. of: Z.S., Jr., Appeal of: T.S.
Superior Court of Pennsylvania, 2022