In the Interest of J.S.C.

851 A.2d 189, 2004 Pa. Super. 182, 2004 Pa. Super. LEXIS 1246
CourtSuperior Court of Pennsylvania
DecidedMay 24, 2004
StatusPublished
Cited by30 cases

This text of 851 A.2d 189 (In the Interest of J.S.C.) 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 the Interest of J.S.C., 851 A.2d 189, 2004 Pa. Super. 182, 2004 Pa. Super. LEXIS 1246 (Pa. Ct. App. 2004).

Opinion

POPOVICH, J.

¶ 1 Monroe County Children and Youth Services (CYS) purports to appeal from the order entered on October 15, 2003, in the Court of Common Pleas of Monroe County, that ordered CYS to arrange visitation sessions between J.S.C., a minor, and, S.C. (Mother), who is incarcerated currently at SCI-Muncy. Upon review, we quash.

¶2 The relevant facts of this case are not in dispute. J.S.C. was taken into protective custody on March 11, 2002, and she was placed in foster care shortly after her birth. On March 15, 2002, following CYS’ petition, J.S.C. was found dependent by the trial court. Despite placement in foster care since birth, CYS’ permanency goal for J.S.C. continues to be reunification with Mother.

¶ 3 On June 2, 2003, Mother, while incarcerated, filed a petition to compel parental visitation. The trial court conducted a hearing on Mother’s petition on October 14, 2003. Thereafter, on October 15, 2003, the trial court granted Mother’s petition. After the trial court granted Mother’s petition, CYS filed a notice of appeal to this Court on October 30, 2003. On November 7, 2003, after filing its notice of appeal, CYS filed a petition for a permanency review hearing; the trial court scheduled a hearing on CYS’ petition for December 16, 2003. On November 10, 2003, the trial court ordered CYS to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, and CYS complied. On November 24, 2003, the trial court authored a Pa.R.A.P.1925(a) opinion that addressed CYS’ matters.

[190]*190¶ 4 Before we reach a recitation of CYS’ issues, we must first consider whether this appeal is properly before this Court. Rieser v. Glukowsky, 485 Pa.Super. 530, 646 A.2d 1221, 1223 (1994) (stating that issue of jurisdiction may be raised by appellate court sua sponte). Generally, appeals lie only from a “final order.” See 42 Pa.C.S.A. § 742. CYS alleges that the order before this Court is final and, therefore, appealable.

¶ 5 We are guided in our consideration of the finality of the trial court’s October 15th order by our Supreme Court’s analysis in the recent case of In the Interest of H.S.W.C.-B. & S.E.C.-B., 575 Pa. 473, 836 A.2d 908 (2003). In H.S.W.C.-B. & S.E.C.B., our Supreme Court considered the finality of orders denying petitions to change a family service plan goal and orders terminating parental rights where such orders do not affect the status quo of the children. H.S.W.C.-B. & S.E.C.-B., at 474-75, 836 A.2d at 909-10. The Court held that such orders were final and ap-pealable and held that “[a]ll orders dealing with custody or visitation, with the exception of enforcement or contempt proceedings, are final when entered.” Id., at 477, 836 A.2d at 911. This statement, then, would lend credence to CYS’ assertion that the order in the present case is final and appealable.

¶ 6 Nevertheless, in In the Interest of M.D., 839 A.2d 1116 (Pa.Super.2003), we declined to extend the holding of H.S.W.C.-B. & S.E.C.-B., to an appeal by M.D., a juvenile adjudicated delinquent, from an order that continued his commitment in a residential treatment facility and set a review hearing four months after the date of the order. M.D., 839 A.2d at 1121-22. We held that the Supreme Court’s rationale in H.S.W.C.-B. & S.E.C.-B. was not controlling in M.D. because the issue in H.S.W.C.-B. & S.E.C.-B. was a change of goal and termination of parental rights, and the issue in M.D. was place of commitment following adjudication of delinquency. Id., 839 A.2d at 1122. Thus, we reasoned that the difference of issues involved in each respective case and the effect our decision would have on the application of Pa.R.A.P. 1701 (relating to the authority of the trial court to act on matters before an appellate court) militated against extending the holding of H.S.W.C.-B. & S.E.C.-B. to a delinquency matter. Id., 839 A.2d at 1122. Accordingly, we concluded that the extension of H.S.W.C.-B. & S.E.C.-B. to a delinquency matter was best left to our Supreme Court or its Rules Committee, and we quashed the appeal as interlocutory. Id, 839 A.2d at 1122.

¶ 7 The present case raises identical concerns to those underlying our analysis of the finality of the order appealed from in M.D. The record reflects that, after taking an appeal to this Court, CYS filed a petition for a permanency review hearing, which the trial court scheduled for December 16, 2003. Therefore, the present case raises questions regarding the application of Pa.R.A.P. 1701. Moreover, as was the ease in M.D., this case concerns a question of thq propriety of a visitation order entered following an adjudication pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq., as opposed to H.S.W.C.-B. & S.E.C.B., in which a children and youth agency appealed from an order denying a petition for change of goal and termination pursuant to the Adoption Act, 23 Pa.C.S.A. § 2501, et. seq.

¶ 8 “Visitation,” in the context of Title 23, is defined as a parent’s right to visit his or her child. See 23 Pa.C.S.A. § 5302. A trial court’s discretion vis-d-vis parental visitation orders entered pursuant to Title 23 is controlled by Pa.R.Civ.P.1915.1, et. seq. On the other hand, the Juvenile Act, 42 Pa.C.S.A. § 6301, et. seq., does not pro[191]*191vide a definition for “visitation,” and a trial court’s discretion with respect to petitions for visitation following an adjudication of dependency or delinquency is not controlled by a specific statute or rule. See In re C.J., 729 A.2d 89, 93 (Pa.Super.1999). Instead, a children and youth agency’s discretion regarding parental visitation following adjudication of dependency or delinquency is controlled by an interpretive administrative regulation codified at 55 Pa. Code § 3130.68. Id., 729 A.2d at 93. As such, we conclude that our Supreme Court’s admonition in H.S.W.C.-B. & S.E.C.-B. that “[ajll orders dealing with custody or visitation, with the exception of enforcement or contempt proceedings, are final when entered” referred solely to orders entered pursuant to the Adoption Act, 23 Pa.C.S.A. § 2501, et. seq., and is not controlling in our analysis of the finality of visitation orders entered following adjudication under the Juvenile Act, 42 Pa.C.S.A. § 6301, et. seq. See, e.g., M.D., 839 A.2d at 1122. Therefore, as was the case in M.D., we decline to consider prospectively whether the Pennsylvania Supreme Court would extend the holding of H.S.W.C.-B. & S.E.C.-B. to a case such as the one before us, where a children and youth agency appeals from an order granting visitation to the parent of a dependent child. Id., 839 A.2d at 1122. This question is best left to our Supreme Court or its Rules Committee. Id., 839 A.2d at 1122. Accordingly, we conclude that the order in the present case is not a “final order.”

¶ 9 Additionally, CYS contends that the present order is a final order pursuant to our holding in In the Interest of Rhine, 310 Pa.Super.

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Bluebook (online)
851 A.2d 189, 2004 Pa. Super. 182, 2004 Pa. Super. LEXIS 1246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jsc-pasuperct-2004.