J-S53002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: B.T., A MINOR :        IN THE SUPERIOR COURT OF
                                      :             PENNSYLVANIA
                                      :
    APPEAL OF: B.S., MOTHER           :
                                      :
                                      :
                                      :
                                      :
                                      :        No. 1334 EDA 2019

                   Appeal from the Order Entered May 3, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-DP-0002481-2018

    IN THE INTEREST OF: B.T., A MINOR :        IN THE SUPERIOR COURT OF
                                      :             PENNSYLVANIA
                                      :
    APPEAL OF: B.S., MOTHER           :
                                      :
                                      :
                                      :
                                      :
                                      :        No. 1338 EDA 2019

                   Appeal from the Order Entered May 3, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-DP-0002482-2018


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

DISSENTING MEMORANDUM BY OLSON, J.:                  FILED APRIL 17, 2020

       The Learned Majority vacates the trial court’s orders directing B.S.

(“Mother”) to refrain from all contact with her sister, L.B. (“Maternal Aunt”),

following an incident in which Mother aggressively confronted Maternal Aunt

in the hallway outside of a courtroom after a dependency hearing. 1        The
____________________________________________


1 Maternal Aunt serves as a kinship foster resource placement for Mother’s
two children (collectively, “the Children”).
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Majority takes this action because it concludes that the trial court denied

Mother notice and opportunity to be heard, failed to develop a record

pertaining to the order, and exercised a power that was not expressly granted

by statute or case law.     As I believe the court properly and permissibly

exercised its power to address contemptuous conduct which threatened the

orderly administration of courtroom proceedings, I would affirm the orders

Mother challenges on appeal.

      The orders in question were entered on May 3, 2019, after a May 2,

2019 status review hearing. Toward the conclusion of the hearing, the trial

court learned that, “Mother [exhibited] aggressive behavior towards Maternal

Aunt. In response, Maternal Aunt returned to the courtroom and requested a

[p]rotective [o]rder against Mother.” Trial Court Opinion, 7/9/19, at 3. The

trial court, without notifying Mother or ensuring that notes of testimony were

prepared, granted Maternal Aunt a stay-away order lasting one year from its

date of entry. The order did not restrict Mother’s contact or visitation with the

Children, nor did it restrict Mother’s right to engage in employment-related

activities.   Instead, the order simply directed that Mother refrain from all

contact with Maternal Aunt, and further directed Mother to avoid Maternal

Aunt’s residence, for a one-year period. The order warned that a violation of

its terms may result in a fine, imprisonment, or prosecution pursuant to 18

Pa.C.S.A. § 4952 (prohibiting intimidation of witnesses or victims). Mother’s

appeal followed.




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      Mother argues that the trial court violated her right to due process by

granting Maternal Aunt a protective order ex parte without a hearing within

ten days, thus making the order final.           See Mother’s Brief at 8-9

(unpaginated). Additionally, Mother contends that the court violated her right

to due process by failing to record or transcribe the hearing that proceeded

entry of the challenged order.    Id. Essentially, Mother seeks to apply the

standards set forth in the Protection From Abuse (“PFA”) Act, 23 Pa.C.S.A.

§ 6101, et seq., to the instant matter, and argues that the trial court’s

application of In re M.B., 869 A.2d 542 (Pa. Super. 2005), was in error. See

Mother’s Brief at 8-10. Rather, Mother contends that In re Penny R., 509

A.2d 338 (Pa. Super. 1986), controls. See Mother’s Brief at 8-10.

      With regard to dependency cases:

      [t]he standard of review which this Court employs in cases of
      dependency is broad. However, the scope of review is limited in
      a fundamental manner by our inability to nullify the fact-finding of
      the lower court. We accord great weight to this function of the
      hearing judge because he is in the position to observe and rule
      upon the credibility of the witnesses and the parties who appear
      before him. Relying upon his unique posture, we will not overrule
      his findings if they are supported by competent evidence.

In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an

abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

      Initially, I agree with the Majority that the “dependency court protective

order” is not a statutory creation. The court points to the Juvenile Act, 42

Pa.C.S. §§ 6301, 6351, as the source of its authority.      Amongst the Act’s

stated purposes are to provide for the care, protection, safety, and wholesome


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mental and physical development of children. See 42 Pa.C.S. § 6301. Section

6351 of the Act governs the disposition of dependent children and grants the

court wide latitude in its powers to make determinations that best serve the

child’s health, safety, and welfare. Nothing in the text of this statutory scheme

expressly grants authority to address contemptuous conduct within the

presence of the court.

      While Mother argues that the stay-away order should be treated like a

PFA order, with all of the due process rights which that entails, there is no

authority to support this assertion. The main case she cites in support of her

position, In re Penny R., concerns a matter where a PFA order was entered

pursuant to a petition filed under the former version of the Protection From

Abuse Act, 35 P.S. §§ 10181 to 10190.2, repealed by 1990, Dec. 19, P.L.

1240, No. 206, § 6. Penny R., 509 A.2d at 339. Similarly, I would reject the

trial court’s reliance on In re M.B., 869 A.2d 542, 546 (Pa. Super. 2005), a

case in which a protective order was issued to preserve the confidentiality of

certain written records, and its reasoning that Mother’s liberty interests were

not violated because the best interests of the Children take precedent over

Mother’s liberty interests. See Trial Court Opinion, 7/9/19, at 4-7. Although

the instant order prohibits Mother’s contact with Maternal Aunt and her

residence, it is not a protection from abuse order and it is not aimed at the

preservation of confidential records. Accordingly, neither In re Penny R. nor

M.B. are entirely pertinent.




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      Rather, I would find the current situation more analogous to one in

which a court has acted to address contemptuous conduct that transpired in

or near the courtroom. We are free to affirm a trial court’s decision on any

basis supported by the record and our rationale is not dependent upon our

agreement with the trial court’s reasoning. Ario v. Ingram Micro, Inc., 965

A.2d 1194 (Pa. 2009). I note that

      [i]n Pennsylvania, “[t]his Court has long upheld a court’s power
      to maintain courtroom authority” by the imposition of summary
      punishment for contempt in appropriate cases. Behr v. Behr,
      [695 A.2d 776, 778 (Pa. 1997)]. “[A] summary proceeding to
      protect the orderly administration of justice is perfectly proper[.]
      ... The court must be able to control those appearing before it,
      and must be able to use its power summarily to avoid interference
      with the principal matter before the court.” Commonwealth v.
      Africa, [353 A.2d 855, 865 (Pa. 1976)] (plurality). “Summary
      proceedings for contempt of court are those in which the
      adjudication omits the usual steps of ‘the issuance of process,
      service of complaint and answer, holding hearings, taking
      evidence, listening to arguments, awaiting briefs, submission of
      findings, and all that goes with a conventional court trial.’”
      Commonwealth v. Stevenson, [393 A.2d 386, 392 (Pa. 1978)]
      (quoting Sacher v. United States, [72 S.Ct. 451 (1952)]). Thus,
      “the summary contempt power has been upheld against due
      process attacks[.]”     Id. (citations omitted). Respecting due
      process, this Court has candidly acknowledged summary
      punishment for criminal contempt is a “drastic departure from our
      traditional view of due process[.]” Commonwealth v. Marcone,
      [410 A.2d 759, 763 (Pa. 1980)].

Commonwealth v. Moody, 125 A.3d 1, 8 (Pa. 2015).

      Our Supreme Court has long recognized that “acts such as jury

tampering and witness intimidation that occur outside the physical presence

of the court, but that interfere with its immediate business, are punishable as

contempt.” Commonwealth v. Falana, 696 A.2d 126, 129 (Pa. 1997). Put

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another way, “[m]isconduct occurs in the presence of the court if the court

itself witnesses the conduct or if the conduct occurs outside the courtroom but

so near thereto that it obstructs the administration of justice.” Id. In Falana,

the defendant threatened a witness who had testified against him after the

conclusion of proceedings. Id. The Supreme Court held that not sanctioning

the defendant would allow him to use the courtroom to intimidate his victim

which would, in turn, potentially deter future testimony and obstruct the

efficient administration of justice and demean the court’s authority, even if

the proceeding had concluded.       Id.    In Moody, the Supreme Court of

Pennsylvania additionally noted that while there is a right to counsel in

contempt proceedings, the court, where required to act immediately to restore

order and vindicate its authority, may do so as long as the assistance of

counsel is secured prior to actual imprisonment for contempt. Moody, 125

A.3d at 14-15.

      As noted, above, this is not a situation in which Mother faced immediate

imprisonment or other imminent harsh sanction for her aggressive conduct

toward Maternal Aunt.      Hence, the case law cited above supports the

conclusion that the trial court properly exercised its inherent power to

maintain courtroom authority, as well as to impose moderate sanctions for

actions that occurred outside of the physical presence of the court but which

threatened to interfere with its immediate business. See, e.g., Falana, 696

A.2d at 129. Where such unfortunate situations arise, the law also permits




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the imposition of sanctions for conduct committed after the conclusion of a

proceeding. Id.

      Here, the court entered the challenged orders following the conclusion

of a status review hearing, at which it was empowered both to make decisions

and enter orders to secure and safeguard the Children’s health, safety, and

welfare, and to maintain the authority of the court. The court found Maternal

Aunt’s statements regarding Mother’s actions credible, and acted to prevent

Mother from continuing to engage in threatening behavior toward Maternal

Aunt, who was then serving as a kinship foster placement resource for the

Children and who was a likely witness in future proceedings. There can be

little doubt that a foster parent’s personal knowledge and impressions are

probative of the Children’s health, safety, and welfare and that her continuing

and unfettered participation in the dependency proceedings would be of

utmost importance to the court and worthy of its protection. Moreover, the

orders issued by the trial court were extremely limited in both scope and

severity, as it imposed no incarceration, no fines, no prohibition or restriction

on Mother’s employment, no impairment of Mother’s visitation rights with the

Children, and no restriction on Mother’s movement other than to stay away

from Maternal Aunt.      Although Mother’s outburst toward Maternal Aunt

occurred in a hallway, and not in the courtroom, the misbehavior was “so near

[the courtroom] as to interfere with the immediate business of the court.”

Marcone, 410 A.2d at 762. Hence, I would hold that the trial court acted

within its discretion in finding that Mother’s conduct posed a significant

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disruption to ongoing dependency proceedings since her aggressive behavior

toward Maternal Aunt, a key witness in the dependency litigation, clearly

undermined     the   court’s   authority   and   the   administration   of   orderly

proceedings.    See Falana, 696 A.2d at 129.             In analogous contempt

proceedings, a court may enter such orders even after the proceedings

conclude, and without the usual due process concerns of a review hearing or

trial. Moody, 125 A.3d at 8-15; Falana, 696 A.2d at 129. Accordingly, I find

Mother’s arguments to be unavailing and would affirm the trial court’s orders.




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