Interest of: Z.M.W.minor Appeal of:Lawrence County

• Court: Superior Court of Pennsylvania
• Decided: July 17, 2018
• Docket: 1832 WDA 2017
• Status: Unpublished

Opinion

J-A13025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.M.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: LAWRENCE COUNTY : CHILDREN AND YOUTH SERVICES : : : : No. 1832 WDA 2017

Appeal from the Order Entered November 17, 2017 In the Court of Common Pleas of Lawrence County Civil Division at No(s): No. 91 0f 2014, D.P.

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 17, 2018

The Lawrence County Children and Youth Services (“Agency”) appeals

from the trial court’s Order entered November 17, 2017, directing the Agency

to transport Z.M.W. (“Child”) (born April 2006) to his Mother’s home for

weekly visits in accordance with its October 16, 2017 Order. After careful

review, we conclude that the November 17, 2017 Order is reviewable as a

collateral order because it pertains to the allocation of the Agency’s after-

hours resources. Further, we find that the trial court properly exercised its

authority in ordering the Agency to arrange transportation for the Child to visit

his Mother in her home each Tuesday for a minimum two-hour visit.

Relevant to this appeal, we note the following facts gleaned from the

certified record. The Child is currently in the subsidized permanent legal

custody (SPLC) of the Agency, and placed with a foster/pre-adoptive family

where he has lived since 2015. His Mother, who suffered a stroke in 2014 J-A13025-18

that ultimately led to the Child’s dependency adjudication, is limited in her

physical abilities, unable to drive, and without funds.

On October 16, 2017, after an extensive goal change hearing, the trial

court issued an Order denying the Agency’s Petition to Change the

permanency goal from SPLC to adoption. Relevant to this Appeal, the Order

directed the Agency to facilitate increased visits between the Child and Mother,

as follows:

Arrange for visits between [the Child] and his Mother to take place outside of the visitation house and at locations such as restaurants, movie theaters, parks, stores and shopping malls, the Mother’s home, and like locations so that the Mother can visit her son at least one time each week for at least two hours on each visit. For these visits, no one needs to be present to observe or watch the visits. [The Agency] must ensure that the visits are arranged at times and locations that are convenient for the Mother. By placing a two[-]hour minimum requirement for each visit, this Court does not mean to limit the visits to two hours, if additional time is needed so that the visit can be pleasant and enjoyable.

Trial Ct. Order, dated October 16, 2017, at 2.

On November 16, 2017, the Child’s counsel filed a Notice of Appeal.1

The guardian ad litem joined the Child’s Brief. Mother filed an Appellee’s Brief.

____________________________________________

1 That appeal is docketed in this Court at No. 1732 WDA 2017. On July 16, 2018, this Court affirmed the court’s October 16, 2017 Order denying the goal change to adoption.

-2- J-A13025-18

The Agency did not appeal from any part of that Order and did not file a Brief

in support of the Child. No party requested a stay pending appeal.2

On November 17, 2017, Mother filed a Motion “to clarify” the visitation

portion of the trial court’s October 16, 2017 Order, contending that

notwithstanding Mother’s undisputed inability to drive, the Agency had

“demanded that Biological Mother make all arrangements to transport the

minor child to and from the weekly visits” that the Agency proposed occur

from 4:00 to 6:00 each Tuesday evening. Motion to Clarify, filed 11/17/17,

at 1.

The court heard argument from counsel for Mother, the Agency, and the

Child that same day.3 Although the Agency caseworker had suggested that

visits could occur between 4:00 p.m. and 6:00 p.m. each Tuesday, the

Agency’s counsel opposed Mother’s request to have the Agency arrange to

transport the Child outside of the business hours of 8:00 a.m. to 4:00 p.m.

Instead, the Agency’s counsel suggested that visits take place between noon

2 The certified record indicates that the visits began as ordered in the last months of 2017. The guardian ad litem filed a report on December 7, 2017, indicating that the Child had had three visits with Mother at her residence for two hours each. The foster care coordinator picked him up at school, drove him to his Mother’s home, and two hours later, returned him to his foster home. In addition, after a permanency review hearing on April 30, 2018, the court ordered the continuation of SPLC. See Order, dated June 19, 2018.

3 The guardian ad litem was not present at the hearing on Mother’s Motion, but the Agency notes in its Brief to this Court that “the guardian ad litem had informed Mother’s counsel that he took no position on her motion[.]” Appellant’s Brief at 24.

-3- J-A13025-18

and 2:00 p.m. every Tuesday. The court rejected the Agency’s suggestion,

noting that it is not in the Child’s best interests to interrupt his schooling in

the middle of each Tuesday. The Agency asked the court to hold an

evidentiary hearing on the matter, and the court declined.

On November 17, 2017, the trial court entered an Order that directed

the Agency to pick the Child up at school every Tuesday at 2:35, the end of

his school day, drive him to Mother’s home and, after two hours, drive the

Child to his foster home. See Order, dated Nov. 17, 2017, at 2. The Agency

appealed. Both the Agency and the trial court complied with Pa.R.A.P. 1925.

The Agency raises the following issues in its Brief, reordered for ease of

disposition:

1. Is this appeal [ ] proper under the collateral order doctrine?

2. Did the trial court err[] by issuing its order dated November 17, 2017[,] as it was divested of jurisdiction pursuant to the notice of appeal filed on behalf of the minor on November 16, 2017?

3. Did the trial court abuse its discretion by failing to grant a hearing on the motion presented and resulting in the order dated November 17, 2017?

4. Did the trial court abuse its discretion by ordering CYS to provide transportation of Z.W. on a weekly basis after hours?

Agency’s Brief at 7.

Collateral Order

In its Rule 1925(a) Opinion, the trial court opines that this Appeal is

from a non-reviewable, interlocutory order. In response, the Agency argues

that this appeal is properly before this Court as a collateral Order because the

-4- J-A13025-18

transportation order impacts the Agency’s financial resources. Pursuant to In

re J.R., 875 A.2d 1111 (Pa. Super. 2005), and the collateral order doctrine,

we agree with the Agency.

The collateral order doctrine provides that “an interlocutory order is

appealable if (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.” Id. 1114 (citing In re

J.S.C., 851 A.2d 189, 191 (Pa. Super. 2004)). See also Pa.R.A.P. 313.

We conclude that the November 17, 2017, Order is a collateral order.

First, the order for the Agency to transport the Child is separable from and

collateral to the main cause of action, which is the dependency determination

and disposition. Second, “the right involved is [the Agency’s] discretion to

determine allocation of limited resources. This is a right too important to be

denied review.” In re J.R., supra, at 1114. “Third, if review is postponed

and [the Agency] ultimately prevails, it is unlikely that the agency will be able

to recoup the funds paid out pursuant to the court order.” Id. Because the

November 17, 2017 Order meets all three requirements of the collateral order

doctrine, we have jurisdiction to review the merits of the issues raised.

-5- J-A13025-18

Trial court’s jurisdiction to enforce its Order

The Agency argues that once the Child appealed from the October 16,

2017 Order, the trial court no longer had jurisdiction to enter any further

orders. We disagree.

Our rules of appellate procedure provide that after an appeal is taken,

the trial court may “[e]nforce any order entered in the matter[.]” Pa.R.A.P.

1701(b)(2). Our Supreme Court observed in In re H.S.W.C.-B., 836 A.2d

908 (Pa. 2003), that “[a]s the best interest of the children is always

paramount, the continued finger of the trial court on the pulse of the case is

needed, even while the matter is appeal.” Id. at 911.

The October 16, 2017 Order very clearly opined on the importance of

the Child being able to visit with his Mother, and very clearly directed the

Agency to arrange the transportation to effectuate the visits. Pursuant to In

re H.S.W.C.-B., the Child’s Appeal did not divest the court of its jurisdiction

to enforce its visitation arrangement Order.

Request for Evidentiary Hearing

The Agency contends that the trial court erred in refusing to hold an

evidentiary hearing on Mother’s Motion to Clarify. The Agency presents two

arguments in support of this contention: (1) there was no evidence on the

record to support the trial court’s determination that its transportation order

serves the best interest of the child; and (2) the guardian ad litem’s input was

-6- J-A13025-18

necessary before the court entered its November 17, 2017 Order. Appellant’s

Brief at 24.

Preliminarily, we note that the Agency’s second argument pertaining to

the guardian ad litem is waived. It is well-settled that issues not raised in a

Rule 1925(b) concise statement of errors will be deemed waived.

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). In addition, “a

[c]oncise [s]tatement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement

at all.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super.2006) (citation

omitted). See also Pa.R.A.P. 1925(b)(4)(ii) (providing that the Statement

“shall concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”).

Thus, if a concise statement is too vague, the court may find waiver and

disregard any argument. Reeves, supra, at 2.

Here, the Agency’s second issue in its Pa.R.A.P. 1925(b) Statement was

“[t]he trial court erred as a matter of law by failing to grant a hearing on the

motion presented.” As presented, this Statement is arguably vague. Most

importantly, this Statement fails to challenge the trial court’s rendering its

decision without the guardian ad litem’s presence. Therefore, the Agency

waived its second argument.

Even if the argument were not waived, we would find it had no merit.

The Agency directs our attention to Pa.R.J.C.P. 1154(3), which provides that

-7- J-A13025-18

a guardian ad litem shall “participate in all proceedings … to the degree

necessary to adequately represent the child[.]” There is no dispute that the

guardian ad litem fully participated in the proceedings that led to the entry of

the underlying visitation order, which the court determined then was based

on the Child’s best interests. Indeed, the trial court ordered the visitation

schedule just one month prior to the filing of the Motion to Clarify after the

Child testified that he wanted visits with Mother to increase in length and

variety. Accordingly, the hearing on the Motion to Clarify did not require the

guardian ad litem’s presence as that Motion pertained only to the Agency’s

obligation to arrange the visits that the trial court had already determined to

be in the Child’s best interests.

With respect to the Agency’s general contention that the court abused

its discretion in refusing to hold an evidentiary hearing, the Agency directs us

to no statute or rule that mandates a court to hold such a hearing. Generally,

“it is within the discretion of the trial court to determine whether briefs and/or

oral argument are required to rule on a petition; it is also within the discretion

of the trial court to decide whether a matter can be best disposed of from a

review of the record alone.” GMAC Mortgage Corp. of PA v. Buchanan,

929 A.2d 1164, 1169 (Pa. Super, 2007) (citation omitted)).

At the hearing on Mother’s Motion to Clarify, the trial court stated that

it would not hold an evidentiary hearing, reasoning that “this is a simple

-8- J-A13025-18

matter of logistics. Absolutely simple matter of logistics[.]” N.T. Motion,

11/17/17, at 15-16. In its Rule 1925(b) Statement, the court observed:

There was no need to schedule an evidentiary hearing beyond the presentation and argument in Motion Court. The Order of October 16, 2017[,] was clear and explicit in stating that the [Agency] was to arrange for the visitation. Transportation is a necessary part of that arrangement, especially in the case of a disabled parent. Transportation for visits at the Visitation House had never been a problem and it strains credulity to believe that a change of location from the Visitation House to the Mother’s house (both in the City of New Castle) could have created an unsolvable dilemma. No evidentiary hearing was necessary.

Trial Ct. Op, dated Dec. 15, 2017, at 6.

After reviewing the record in this case, we conclude that the court did

not abuse its discretion in refusing to hold an evidentiary hearing on Mother’s

Motion to Clarify. Because the court had held an evidentiary hearing just one

month prior, which resulted in the underlying Order directing the Agency to

arrange transportation, the trial court had sufficient factual basis upon which

to make its decision.4

Order to transport the Child

The Agency contends that the court “abused its discretion by ordering

[the Agency] to provide transportation services beyond business hours,

thereby incurring weekly overtime costs for the agency.” Appellant’s Brief at

4We further note that the Agency has not informed us of what evidence it would have presented at an evidentiary hearing.

-9- J-A13025-18

16. In support, the Agency relies on In re: J.R., supra to contend that the

court failed to consider alternatives.

“We review an order requiring a child welfare agency to fund a particular

service for an abuse of discretion.” In re: J.R., supra, at 1114.

In In re: J.R., this Court reversed an order directing that the

Philadelphia Department of Human Services provide home telephone service

to a dependent child’s father so he could call the agency the day prior to

scheduled visits to confirm his attendance. In concluding the trial court erred

in issuing the order, this Court held, inter alia, that a juvenile court must

“consider the alternatives presented to address the needs of a dependent

child; then, if two equally effective alternatives are available, the court must

cho[o]se the one that is less costly to the child welfare agency.” Id. at 1115.

In the instant case, the trial court noted that it “retains authority to

enforce its orders even after 4:00 p.m. [The Agency] was given the

opportunity to provide the [c]ourt with an alternate date or time that would

be convenient to all concerned. It chose to submit a proposal that carried the

maximum disruptive effect on the child’s education.” Trial Ct. Op., dated

12/15/17, at 6-7.

Our review of the record indicates that the Agency provided one option

to the court: remove the Child from school in the middle of the day once a

week. Because the court had determined that removing the child from school

mid-day once a week would be disruptive to the child and not in his best

- 10 - J-A13025-18

interests, it was incumbent on the Agency, as the Child’s physical and legal

custodian, to present alternatives to the court. This it did not do. Accordingly,

the Agency’s contention that the court did not consider alternatives fails to

warrant relief.

We conclude that the trial court did not abuse its discretion in entering

its transportation order effectuating the visits that it had previously ordered.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/17/2018

- 11 -