In the Int. of: B.M., a Minor Appeal of: D.M.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2015
• Docket: 211 MDA 2015
• Status: Unpublished

Opinion

J-S31001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.M., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: D.M. No. 211 MDA 2015

Appeal from the Order Entered January 20, 2015 In the Court of Common Pleas of Berks County Juvenile Division at No(s): CP-06-CR-0000252-2013

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2015

This is an appeal by D.M., a non-party to the underlying dependency

proceedings involving B.M., a minor child who is the biological relative of

D.M. D.M. seeks to appeal from the trial court’s January 20, 2015 order

denying her request for a transcription of a hearing conducted in the

dependency case. For the following reasons, we conclude that the court’s

January 20, 2015 order is not a final, appealable order. It is also not a

collateral order that is appealable as of right under Pa.R.A.P. 313.

Accordingly, we quash this appeal.

A brief history of the dependency proceeding involving B.M. is

necessary to understand the order from which D.M. seeks to appeal. Berks

County Children and Youth Services (BCCYS) became involved with B.M.’s

family in August of 2013 and, ultimately, B.M. was placed into foster care.

In September of 2013, B.M. was adjudicated dependent and temporary legal

custody was awarded to BCCYS with a primary goal of reunification, and a

concurrent goal of adoption. J-S31001-15

Beginning in October of 2014, D.M., who is an aunt of B.M.’s biological

father (Father), began seeking visitation with B.M., as well as placement of

B.M. in her home. However, on November 24, 2014, B.M.’s Guardian ad

Litem (GAL) filed an “Emergency Motion to Suspend Visitation” between B.M.

and D.M., as well as between B.M. and other biological family members. 1

On November 21, 2014, the trial court temporarily suspended visitation

between B.M. and certain family members, including D.M. On November 26,

2014, following a hearing, the court issued an order directing that the

primary permanency goal for B.M. was adoption.

On December 12, 2014, BCCYS filed a “Motion for Determination of

Visitation,” requesting that the trial court “make a determination regarding

whether visitation with [D.M. and other family members] is in the best

interests of [B.M.] and whether [B.M.] should remain in the home of [her

foster parents].” BCCYS Motion for Determination of Visitation, 12/12/14, at

3-4 (unnumbered). On January 8, 2015, the trial court conducted a hearing

on BCCYS’s motion (hereinafter “visitation hearing”). Ultimately, the court

issued an order concluding that it was in B.M.’s “best interest that all

____________________________________________

1 The record indicates that the impetus behind the GAL’s filing of the emergency motion was her concern for the safety of B.M. and her foster parents, after family members of B.M. created a Facebook page displaying photographs of B.M. and a post that seemingly threatened B.M.’s foster parents.

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visitation between the child and [her] biological family members remain

suspended at this time….” Trial Court Order, 1/13/15.2

On January 20, 2015, D.M. filed an “Order for Transcription,”

requesting the transcripts of the visitation hearing. That same day, the

court issued an order denying D.M.’s petition on the basis that “parts of this

[j]uvenile hearing were closed upon motion and safety issues weigh against

generating a transcript in these particular circumstances….” Trial Court

Order, 1/20/15. D.M. filed a timely notice of appeal from the court’s January

20, 2015 order. On February 23, 2015, this Court issued a per curiam order

directing D.M. to show cause why her appeal should not be quashed as

having been taken from an interlocutory, non-appealable order. D.M. filed a

timely response, arguing that the trial court’s January 20, 2015 order

qualified as a collateral order, appealable as of right under Rule 313. On

March 20, 2015, this Court issued a second per curiam order, discharging

our February 23, 2015 show cause order and stating that, “the merits panel

may revisit the issue and may find that the appeal is defective.” Per Curiam

Order, 3/20/15.

2 In suspending visitation, the court cited “safety concerns for the foster family and child, … the high level of conflict and stress between the biological family and the foster family, [the fact that] visitation and contact negatively impact the child in tangible ways, and [because] it is clearly necessary for her health and well-being that [the child] experience a period of quiescence at this time….” Id.

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In light of this procedural history, we will first consider whether the

trial court’s January 20, 2015 order is appealable.

The general rule is that, unless otherwise permitted by statute, only appeals from final orders are subject to appellate review. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544- 45 (1978). A final order is one that disposes of all claims or all parties. Pa.R.A.P. 341(b). This principle, designed to prevent piecemeal appeals, is subject to a narrowly construed exception known as the collateral order rule. See Commonwealth v. Johnson, 550 Pa. 298, [306], 705 A.2d 830, 834 (1998); Watson v. City of Philadelphia, 665 A.2d 1315, 1317 (Pa. Cmwlth. 1995). The collateral order rule, first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and now set forth in Pennsylvania Rule of Appellate Procedure 313, provides that appeals may be taken from orders that are “[1] separable from and collateral to the main cause of action [2] where 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 claim will be irreparably lost.” Pa.R.A.P. 313(b). This third prong has also been interpreted to mean that the matter must be effectively unreviewable on appeal from final judgment. Johnson, supra, 705 A.2d at 832, citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

Commonwealth v. Sartin, 708 A.2d 121, 122-123 (Pa. Super. 1998).

Initially, the trial court’s January 20, 2015 order is not ‘final,’ as

defined by Rule 341(b).3 Thus, we must assess whether it satisfies the three

3 Rule 341(b) states:

(b) Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) is expressly defined as a final order by statute; or (Footnote Continued Next Page)

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prongs of the ‘collateral order rule.’ In regard to the first prong of that test,

the January 20, 2015 order denying D.M. the transcript of the visitation

hearing implicates an issue that is separable from the underlying

dependency action. Namely, the dependency proceeding involves

“substantive decisions affecting the child’s best interests, which is the

polestar of all dependency proceedings.” In re J.S., 980 A.2d 117, 121 (Pa.

Super. 2009). More specifically, the January 8, 2015 visitation hearing was

conducted to determine whether visitation with D.M., as well as other family

members, was in the best interests of B.M. See BCCYS “Motion for

Determination of Visitation,” 12/12/14, at 3-4 (unnumbered). That issue,

and the overarching question of B.M.’s dependency, are distinct and

separable from D.M.’s claim that she has a right to the transcript of the

visitation hearing. Therefore, the first prong of the collateral order doctrine

is satisfied.

Next, we determine if the right involved in D.M.’s claim is too

important to be denied review. D.M. avers (in her answer to our order to

show cause why her appeal should not be quashed) that she has a

constitutional “right to judicial records” as a member of the public, and as an

_______________________ (Footnote Continued)

(3) is entered as a final order pursuant to subdivision (c) of this rule.

Pa.R.A.P. 341(b).

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“interested party.” Answer of Appallant [sic] to Order Filed by Superior

Court, 3/6/15, at 3.

In Sartin, a nearly identical right was asserted in an attempt to satisfy

the collateral order rule. There, local newspapers appealed from a court

order that “partially unsealed the transcript of a previously held in camera

hearing….” Sartin, 708 A.2d at 121.4 In arguing that the order satisfied the

second prong of the collateral order test, the newspapers “identified only the

public’s right of access to judicial proceedings as the right too important to

be denied review….” Id. at 123 (citation omitted). We disagreed that this

right met the collateral order test, reasoning:

Admittedly, Pennsylvania courts have recognized the existence of the right of the public to observe the functioning of the criminal justice system. PG Publishing Co. v. Commonwealth, 532 Pa. 1, 5, 614 A.2d 1106, 1108 (1992); Commonwealth v. Fenstermaker, supra, at 508, 530 A.2d at 417 (1987). This right is not absolute, however, and it may be weighed against circumstances warranting closure of the record to public inspection. PG Publishing Co., supra; Fenstermaker, supra, at 513, 530 A.2d at 420. At the discretion of the trial judge and in the interest of protecting public as well as private interests, the public may be excluded, temporarily or permanently, from being present at certain judicial proceedings or examining the records of such proceedings. PG Publishing Co., supra; Hutchison v. Luddy, 417 Pa. Super. 93, 611 A.2d 1280, 1290 (1992); Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, 1377 (1986). Thus, although we concede that the right of access is an important right, in light of the fact that it can be delayed or denied under

4 The newspapers sought to challenge the court’s order because it directed that the transcript be redacted of all proper names. Id. at 122.

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certain circumstances, we cannot conclude that the Newspapers' appeal is too important to be denied immediate review.

Sartin, 708 A.2d at 123.

In light of Sartin, we reject D.M.’s claim that the public’s right of

access to judicial records is too important to be denied review at this time.

Additionally, D.M.’s assertion that she has a “personal interest” in attaining

the record of the visitation hearing does not warrant immediate review. This

Court has stated that “[i]n order to satisfy the second prong of the collateral

order doctrine, it is not sufficient that the issue be important to the

particular parties.” Spanier v. Freeh, 95 A.3d 342, 346 (Pa. Super. 2014)

(citation omitted). “Rather, the issue must involve rights deeply rooted in

public policy going beyond the particular litigation at hand.” Id. (citation

omitted). Accordingly, the second prong of the collateral order doctrine is

not satisfied in this case.

We need not go on to examine whether the third prong of the

collateral order test has been met, because “[a]bsent the satisfaction of all

three prongs of [that] test, this Court has no jurisdiction to consider an

appeal of an otherwise non-final order.” Spanier, 95 A.3d at 345 (citation

omitted). Therefore, we quash D.M.’s appeal.

Appeal quashed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2015

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