In the Int. of: E.C., Appeal of: J.A.C., Father

2021 Pa. Super. 88, 251 A.3d 1277

• Court: Superior Court of Pennsylvania
• Decided: May 6, 2021
• Docket: 1289 MDA 2020
• Status: Published

Opinion

J-S10002-21

2021 PA Super 88

IN THE INT. OF: E.C., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.A.C., FATHER : : : : : : No. 1289 MDA 2020

Appeal from the Order Entered September 15, 2020 In the Court of Common Pleas of Northumberland County Juvenile Division at No(s): CP-49-DP-0000088-2018

IN THE INT. OF: L.C., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.A.C., FATHER : : : : : : No. 1290 MDA 2020

Appeal from the Order Entered September 15, 2020 In the Court of Common Pleas of Northumberland County Juvenile Division at No(s): CP-49-DP-0000089-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

OPINION BY MURRAY, J.: FILED: MAY 6, 2021

J.A.C. (Father) appeals from the September 15, 2020 permanency

review orders which maintained the foster placement of his sons, E.C., born

in September of 2017, and L.C., born in July of 2016 (collectively, the

Children). After careful review, we quash as interlocutory.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S10002-21

The Children were adjudicated dependent on August 3, 2018.1

Northumberland County Children and Youth Services (CYS) initially placed the

Children in kinship care. However, the first and second foster placements

asked that the Children be removed due to their behaviors and/or special

needs, and at the request of CYS, the court changed the Children’s foster

placements by orders dated August 24, 2018, September 13, 2018, and

January 10, 2019.

Father and the Children’s mother (Mother) have a history of domestic

violence and drug and alcohol abuse. Juvenile Court Opinion, 11/25/20, at 1.

For example, CYS substantiated reports Father “hit E.C. leaving scratches on

his neck and had struck . . . L.C. with a hammer. Additionally, Father had

taken a can of gasoline into the bedroom and Mother was consuming alcohol.”

Id. The court stated:

Perhaps even more concerning was the referral that Father had threatened to beat Mother and the child over the head with a Playstation. When agency personnel discussed this with Father, he told them he was going to “break her f------ face”, [and] “f--- -- beat the s--- out of her[.]” [Father also stated,] “diesel covers the evidence” and last, but not least, “wife needs smacked the f- -- up.”

Id. at 1-2.

1 The Honorable Hugh A. Jones has presided throughout the dependency proceedings.

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The court established reunification as the Children’s permanency goal,

with adoption as the concurrent goal. The court ordered, in part, that Father

and Mother “enroll in and successfully complete the following parenting

classes: Building Your Family, Active Parenting, SAFE ACT parenting,

Discipline Strategies and Toddler Basics.” Order of Adjudication and

Disposition, 8/3/18, at 4, ¶ 8. The court further ordered Father to submit to

random drug testing, and both Father and Mother to successfully complete

individual counseling to address their domestic violence and drug and alcohol

issues. Id. at ¶¶ 11-12.

Permanency review hearings were conducted on January 10, 2019, July

11, 2019, October 7, 2019, January 10, 2020, March 12, 2020, June 11, 2020,

and September 10, 2020. On July 11, 2019, the court found Father to be in

moderate compliance with his permanency plan. In the June 11, 2020

permanency review orders, the court stated that Father was “in moderate

compliance with [the] permanency plan, in that [he] is making progress and

needs to continue to follow through with the recommended services in order

to assure a successful reunification.” Order, 6/11/20, at 1. The June 11, 2020

permanency orders maintained the Children’s permanency and concurrent

placement goals and their foster placement. In addition, the June 11, 2020

orders provided Father and Mother with “no less than weekly supervised

visitation with the frequency and level of supervision to be altered at the

discretion of the Agency. The Agency will develop a 60 day transition plan to

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commence as soon as possible.” Id. at 3. The court scheduled the next

permanency review hearing for September 10, 2020.

On August 18, 2020, Father filed a “petition to return legal custody.” 2

Father averred that after the June 11, 2020 hearing, “the Agency provided the

parents a transition home plan that was not within the sixty day order.”

Petition, 8/18/20, at ¶ 6. Father stated, “Sixty days have elapsed and physical

custody of the minor children has not been returned to the natural parents.”

Id. at ¶ 7. Father requested the court return physical custody of the Children

to him and Mother. Id. at ¶ 9.

The court considered Father’s request for physical custody of the

Children at the next permanency review hearing, which was held by

videoconference on September 10, 2020. See N.T., 9/10/20, at 6-7. Father

and Mother were present, along with their respective counsel. The Children

were represented by their guardian ad litem (GAL).

CYS presented the testimony of caseworker Melissa Eisenhour, who

stated:

[W]e started a transition home after the last hearing. They began with long days, and then we went to a couple single overnights. And then we have been doing Friday morning to Monday morning, and Wednesday all day for the last couple weeks. . . .

Every time somebody from our agency goes out to the home things appeared okay. However, we have gotten several referrals by ChildLine, and we’ve had some concerns, and therefore the [Children] have not completely gone home yet. ____________________________________________

2 Despite the wording, Father sought physical, not legal custody.

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N.T., 9/10/20, 4-5. Ms. Eisenhour described four referrals between July 12

and August 7, 2020 which alleged incidents involving domestic violence, the

Children’s safety, and Father’s illegal marijuana use. Id. at 7-12.

At the conclusion of the evidence, the court stated: “I commend the

parents for they have in fact made strides. But I am greatly concerned about

the marijuana issue3. . . . Then the other issues of domestic violence I don’t

think they’ve totally left, and therefore I’m going to approve the agency’s

recommendation not to return the children at this time.” N.T., 9/10/20, at

33.

By orders dated September 10, 2020 and docketed September 15,

2020, the court maintained the Children’s permanency goal of reunification

and the concurrent goal of adoption. The court again found Father in

moderate compliance with his permanency plan; the orders specified Father

“needs to continue to follow through with the recommended services in order

to assure a successful reunification.” Permanency Review Order, 9/10/20, at

2. Thus, the court maintained legal and physical custody of the Children with

CYS, with the Children to remain in foster placement. Id. at 3. Regarding

visitation, the court directed Father and Mother “be provided no less than

weekly supervised visitation with the frequency and level of supervision to be

3 The court expressed “concern over the fact that [C]hildren were being exposed to smoke whether tobacco or marijuana and belie[f] this is not appropriate.” Juvenile Court Opinion, 11/25/20, at 3-4.

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altered at the discretion of the Agency. The Agency will continue to follow the

transition plan unless deemed unsafe.” Id. The court scheduled the next

permanency review hearing for December 3, 2020.

On September 28, 2020, Father filed notices of appeal and concise

statements of errors complained of an appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b), which this Court consolidated sua sponte. On appeal,

Father presents the following question:

Whether the [Juvenile] Court erred/abused its discretion in determining that physical custody of the minor children should not be return to the natural parents?

Father’s Brief at 16.

Both CYS and the GAL assert Father’s appeal is interlocutory because

the September 15, 2020 orders are not final or collateral. CYS argues:

There is no appeal of right from the Permanency Order entered by the Court in this matter pursuant to either Pa.R.A.P. 311 or Pa.R.A.P. 313. The ruling on a decision as to whether or not children should be returned home to a parent cannot be a final order subject to appeal. To allow such an appeal would allow appeals following every permanency review hearing where reunification is the goal.

***

In all dependency matters where the parents oppose placement, it follows that every permanency order would be a final order. This would mean that an appeal could be taken from every review and would essentially tie up cases in the appellate courts. Allowing such an appeal would also result in the need for every attorney to file an appeal [from orders] to remain in placement; otherwise, a failure to appeal would be considered waiving the issue.

CYS Brief at 3-4.

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The GAL additionally asserts:

Father’s claims will not be irreparably lost if postponed, as Father may make the same request to return his children to him at each and every hearing yet to come.

GAL Brief at 4.4

CYS and the GAL cite In re N.M., where we found a permanency review

order denying the parents’ request to remove their child from foster care and

place her in kinship care to be interlocutory and unappealable. We reiterated

“we lack jurisdiction over an unappealable order, [and] it is incumbent on us

to determine, sua sponte when necessary, whether the appeal is taken from

an appealable order.” In re N.M., 186 A.3d 998, 1006 (Pa. Super. 2018)

(citing Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)). We

explained:

It is well-settled that “[a]n appeal lies only from a final order, unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b). Moreover, with regard to dependency matters, “[a]n order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final when entered.” In re H.S.W.C.-B., 836 A.2d 908, 910 (Pa. 2003).

Id.5

4 Father has not responded with a reply brief.

5“In order to be appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an interlocutory order appealable by right or permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P.

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We also emphasized that “the trial court did not grant or deny a status

change; the goal remained reunification throughout and [the p]arents never

asked for it to be changed.” In re N.M., 186 A.3d at 1006. As such, we

concluded our Supreme Court’s decision in In re H.S.W.C.-B. was not

controlling because the mother in that case had requested a goal change. Id.

at 1007.

Following In re N.M., this Court in In re J.M. quashed as interlocutory

and unappealable permanency orders prohibiting visits at the mother’s home

if the mother or children tested positive for drugs. Referencing In re

H.S.W.C.-B., we stated:

The orders at issue in H.S.W.C.-B. denied a child welfare agency’s petitions to terminate parental rights and to change the permanency goal to adoption. This Court had quashed the agency’s appeal because the order denying the petitions maintained the status quo. The Supreme Court rejected the holding of our Court, reasoning that “[m]aintaining the status quo could put the needs and welfare of a child at risk” because if the same trial judge repeatedly and erroneously denies requests to change the permanency goal, the “improper order” would always be shielded from appellate review. Id. at 910-11. The Court further reasoned that

[a]ll orders dealing with custody or visitation, with the exception of enforcement or contempt proceedings, are final when entered. Pa.R.C.P. 1915.10. Such an order may be modified at any time, provided the modification is in the best interest of the child. See 23 Pa.C.S. § 5310; Karis v. Karis, 544 A.2d 1328, 1331-32. If denial of a custody modification petition is final when entered, the ____________________________________________

313.” In re J.M., 219 A.3d 645, 650 (Pa. Super. 2019) (footnote omitted). As to the second prong, the orders from which Father appeals in this case are not appealable by right because Father did not seek permission to appeal.

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denial of a proposed goal change or petition for termination of parental rights should logically be deemed final as well. ... We now adopt the recent pronouncement in In re A.L.D., [797 A.2d 326 (Pa. Super. 2002)], where the Superior Court declared all orders in termination matters final. An order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final when entered. See id.

[In re H.S.W.C.-B., 836 A.2d] at 911.

In re J.M., 219 A.3d at 652. Pertinently, we observed, “Although our

Supreme Court’s statement regarding the finality of visitation orders is broad

and sweeping, in context, we think that the Court merely was referring to

visitation orders entered under the Child Custody Act, 23 Pa.C.S. §§ 5321-

5340, as a point of comparison.” Id. at 653.

When examined closely, the Supreme Court’s discussion indicates that instead of making a new sweeping pronouncement with its statement that all orders dealing with custody and visitation orders are final when entered, the Court appeared simply to be making a correlation between custody actions pursuant to the Child Custody Act, dependency actions pursuant to the Juvenile Act, and termination of parental rights matters pursuant to the Adoption Act. Indeed, immediately after citing law relating to custody actions pursuant to the Child Custody Act, the H.S.W.C- B. Court stated, “[i]f [a] denial of a custody modification petition is final when entered, the denial of a proposed goal change or petition for termination of parental rights should logically be deemed final as well.” H.S.W.C-B., 836 A.2d at 911.

Id. at 653-654 (emphasis in original). Therefore, we determined the

“statement in H.S.W.C.-B. regarding the finality of ‘orders dealing with . . .

visitation’ was a mere observation and interpretation of existing law pursuant

to the Child Custody Act, not a binding prospective holding regarding orders

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dealing with visitation pursuant to the Juvenile Act.” Id. at 654. We

reasoned:

All permanency review orders broadly deal with custody and visitation. See 42 Pa.C.S. § 6351(e)-(f). If the H.S.W.C.-B. Court intended to make a sweeping pronouncement regarding the finality of all orders dealing with custody or visitation in all contexts, it could have simply held that all orders entered pursuant to the Juvenile Act are appealable, not only ones that grant or deny a status change.

Id. (footnote omitted). We thus concluded that “placing location restrictions

on [the m]other’s visits with [the c]hildren until all were drug-free . . . is not

a ‘status change’ within the meaning of H.S.W.C.-B.” Id.

Instantly, the permanency review orders from which Father appeals do

not grant or deny a goal change, and the goal of reunification with the

concurrent goal of adoption remained unchanged. No party sought a goal

change before or during the September 10, 2020 hearing, and the court did

not address goal change. Rather, the court heard evidence about what

transpired in the three months since the prior review hearing on June 11,

2020, and addressed Father’s request to change the Children’s placement

from foster care to Mother and Father. Consistent with In re J.M., we find

the orders denying Father’s request do not constitute a “status change” as

contemplated in H.S.W.C.-B. Further, the orders do not dispose of all claims

and all parties. Accordingly, the orders are not final orders as set forth in

Pa.R.A.P. 341.

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Likewise, the permanency review orders are not collateral orders under

Pa.R.A.P. 313(b). This Court explained:

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 so as not to swallow the general rule that only final orders are appealable as of right. To invoke the collateral order doctrine, each of the three prongs identified in the rule’s definition must be clearly satisfied.

In re W.H., 25 A.3d 330, 335 (Pa. Super. 2011) (some citations omitted).

In re J.M., 219 A.3d at 655 (emphasis added).

In In re N.M., we determined the permanency order was not separable

from or collateral to the main cause of action where the trial court denied the

parents’ request to change the placement of the child and the placement

remained the same. We also determined that review of the decision would

not be irreparably lost if we postponed it. Id. However, because the case

also involved the parents’ appeal from the court’s termination of their parental

rights, we found “the entire record . . . is now reviewable.” In re N.M., 186

A.3d at 1008. We stated:

. . . because the trial court has terminated Parents’ parental rights to N.M., the entire record from the permanency hearings, including that from the December 8, 2016 hearing, is now

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reviewable on appeal from the court’s termination decrees. See In the Interest of A.L.D., supra (all decrees in termination of parental rights cases are considered final, appealable orders). Procedurally, the entry of the orders terminating Parents’ rights to N.M. acts to finalize the interlocutory permanency review orders.

Id. (emphasis added).

In In re J.M., we determined that permanency orders did not constitute

collateral orders where the second and third prongs of the collateral order test

were not met. In re J.M., 219 A.3d at 660-61 (“Because [c]hildren have been

adjudicated dependent and [m]other does not have custody of them, [m]other

does not possess an unfettered right to visit with [c]hildren under any

conditions,” and mother’s right to home visits in general were not irreparably

lost.).

Consistent with the foregoing, we find the September 15, 2020

permanency orders are not separable from or collateral to the main cause of

action, where the court denied Father’s request for a change in the Children’s

placement and their foster placement remained the same, and Father did not

“irreparably lose” review.

For the reasons discussed above, we agree with CYS and the GAL that

the permanency review orders are interlocutory and unappealable.

Appeal quashed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/06/2021

- 13 - Circulated 04/22/2021 12:24 PM

IN THE INTEREST OF: JUVENILE COURT DIVISION

L.C., aminor child Appeal of J.A.C., Natural Father NO: CP-49-DP-0000089- 2018 1290 MDA 2020

1925 OPINION

Appellant, Natural Father, is appealing the decision of the Court keeping custody of the

children with Northumberland County Children and Youth rather that returning them to father.

Northumberland County Children and Youth Services first began receiving referrals

regarding the family in 2017. Concerns were domestic violence and drug and alcohol abuse.

The agency received referrals in April 2018, concerning multiple text messages from

natural mother that she and father had aphysical altercation leaving mother bruised. There were

also allegations that Father had hit E.C. leaving scratches on his neck and had struck the Minor

Child L.C. with ahammer. Additionally, Father had taken acan of gasoline into the bedroom

and Mother was consuming alcohol. These reports were substantiated by Children and Youth

Services.

There were several subsequent referrals in June and July of 2018. Among the numerous

concerns were that Mother was not mixing formula properly, that the children were experiencing

developmental delays and the Mother was uncooperative with areferral to pediatric neurology.

Perhaps even more concerning was the referral that Father had threatened to beat the

Mother and the child over the head with aPlaystation. When agency personnel discussed this with Father he told them he was going to "break her fucking face", "fuckin beat the shit out of

her" and also "diesel covers the evidence" and last but not least "wife needs smacked the fuck

up"

Mother sought and was granted aProtection from Abuse Order which she decided to

ignore and allow Father continuing contact.

Due to the numerous serious concerns, asafety plan was implemented pending ahearing

on the dependency petition. The children were adjudicated dependent and custody placed with

Northumberland County Children and Youth Services.

Regular permanency and Placement Review hearings were held. Father was ordered to

participate and complete various programs, including but not limited to, "Building Your Family"

and "Active Parenting and Discipline Strategies." Parents were to regularly visit with the

children, maintain housing and employment and submit to random drug testing. Additionally,

parents were to enroll in and complete counselling to address the domestic violence issues and

father was specifically required to attend his psychiatric appointments and remain medication

compliant.

A permanency review hearing and ahearing on father's Motion to return the children was

held September 10, 2020. At the conclusion of the hearing, the Court followed the Agency's

recommendation not to return the children to the parents' home. Counsel for Father filed the

instant appeal. The sole issue raised by Counsel is whether the Court abused its discretion in

determining that physical custody of the minor children should not be returned to the parents. The standard for review of in dependency cases requires the appellate courts to review for

an abuse of discretion. Findings of facts and credibility determinations of the trial court are to be

accepted by the appellate court if supported by the record. However, the appellate court is not

required to accept the lower court's inferences or conclusions of law. See In re R.J.T. 608 Pa. 9,

9A.3d 1179 (Pa. 2010).

Melissa Eisenhour, permanency caseworker for Northumberland County Children and

Youth services was the sole witness at the hearing. She testified that they had started to

transition the children home after the last hearing. (N.T. Permanency Review Sept. 10, 2020 Pg.

4). She testified that there were several referrals from Child Line (N.T. Permanency Review

Sept. 10, 202 Pg. Slines 2-3). Ms. Eisenhour testified the first referral came July 12 th .This was

that the minor children had burns from handling fireworks at their parents' home. These

allegations were substantiated by Children and Youth.

A second referral came on July 22" dthat mother and father were in an argument and

father pushed mother to the ground. (N.T. Permanency Review Pg. 9, lines 9-16). The case

worker verified that there was an argument by talking to the minor child. During the visit to the

home to speak with the child the caseworker noticed astrong smell of marijuana in the home.

(N.T. Permanency Review Pg. 10, lines 13-17) The parents tried to say that the downstairs

neighbor was the source of the smell. The Court notes that on afollow up visit on August 7,

2020 the caseworker again noticed the smell of burnt marijuana. Father was tested and was

positive for THC at that time. The court has expressed it's concern over the fact that children were being exposed to smoke whether tobacco or marijuana and believes this is not appropriate.

Additionally, given father's past penchant for domestic abuse and the fact the child reported such

abuse during the reunification period the court believes the family needs some additional time to

work on its issues.

Based upon the factors and the court's familiarity with the case, and the father's history

of alleged drug abuse and domestic violence the court did not approve the children's return to the

parents' home.

While we recognize that this case could be considered aclose call our knowledge of the

history of this case and the issues of the family led us to conclude to continue reunification but

not send the children home at the September 10, 2020 hearing. This sentiment has been noted by

our Supreme Court as follows:

"This case epitomizes why appellate courts must employ an abuse of discretion standard of review, as we are not in aposition to make the close calls based on fact-specific determinations. Not only are our trial judges observing the parties during the hearing, but usually, as in this case, they have presided over several other hearings with the same parties and have alongitudinal understanding of the case and the best interests of the individual child involved. Thus, we must defer to the trial judges who see and hear the parties and can determine the credibility to be placed on each witness and, premised thereon, gauge the likelihood of the success of the current permanency plan. Even if an appellate court would have made adifferent conclusion based on the cold record, we are not in aposition to reweigh the evidence and the credibility determinations of the trial court." In re R.J.T. 608 Pa. 9,27, 9A.3d 1179, 1190 (Pa. 2010).

BY THE COURT:

V i' \1--1 I Hugh A. Jones, JuVge

Dated: 11 I -Z-4 Izo

cc: Ann Targonski, Esquire Michael O'Donnell, Esquire Justin Abel, Esquire Cindy Kerstetter, Esquire Children & Youth Services Court