J-S68001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.R., A MINOR :            IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                                  :
APPEAL OF: C.B.                   :
                                  :
                                  :
                                  :
                                  :
                                  :            No. 821 MDA 2017

                Appeal from the Order Entered May 10, 2017
    In the Court of Common Pleas of Dauphin County Juvenile Division at
                      No(s): CP-22-DP-0000270-2016


BEFORE:      LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 08, 2017

       C.B. (Father) appeals from the order, entered in the Court of Common

Pleas of Dauphin County, denying his petition for reconsideration of the order

granting Dauphin County and Youth Services’ (the Agency) motion to

withdraw the dependency petition with respect to his daughter (R.R.) (born

12/06). We are constrained to quash this appeal.

       On October 21, 2016, after having received three referrals of Father’s

neglect and abuse of R.R., the Agency requested a Safety Plan with respect

to both parents “as there are some concerns that [Mother]1 may be influencing

the child’s disclosures and may hinder the Agency’s investigations due to her

____________________________________________


1 Mother and Father were never married and they ended their relationship
shortly after R.R. was born. The custody order provided Father with custody
the first three weekends of each month, with Mother having custody the
remainder of the time.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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feelings toward [Father].”   Id. at 8.   The Safety plan provided that while

exercising their respective custody periods, both Mother and Father would

have supervised contact with R.R. (by maternal grandfather when R.R. is with

Mother, and paternal grandmother when R.R. is with Father), pending the

outcomes of the investigations. Id.

      On October 26, 2016, Mother rescinded her agreement to the Safety

Plan at a hearing before Hearing Examiner Sandra O’Hara. The Hearing

Examiner issued a recommended order providing that R.R. be placed in

emergency foster care, with Mother and Father to have only supervised

visitation.   That same day, the Agency filed a dependency petition.        The

petition alleged that R.R. was a dependent child who was without proper care

or control, under section 6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301-

6375. See Dependency Petition, 10/26/16, at 4.        The Agency also averred

that it would be “contrary to the welfare, safety and health of [R.R.] to remain

under the care of her parents.” Id. at 4.

      The Honorable John F. Cherry adopted the Hearing Examiner’s

recommended order, issued a verbal pick-up order, directed the Agency take

temporary custody of R.R., and appointed a guardian ad litem for R.R.       The

court also scheduled a Shelter Care Hearing for November 9, 2016. See Trial

Court Opinion, 1/27/17, at 1-2.     R.R. was placed with a foster family in

Mechanicsburg.     The Court noted it would issue a Shelter Care order but

would not consider adjudication and disposition until completion of the

directives of the Shelter Care Order. See Pa.R.J.C.P. 1240 et seq.

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       Following the November 9, 2016 Shelter Care Hearing, the court ordered

R.R. to remain in the custody of the Agency, pending the completion of the

abuse investigation and the completion of psychological evaluations for

Mother, Father and R.R. See 42 Pa.C.S. §§ 6332, 6351. Mother appealed

from the Shelter Care order, objecting to the court’s finding that R.R. required

placement, and this Court ultimately dismissed that appeal.2

       By mid-December, 2016, both Mother and Father had participated in

psychological evaluations.          By December 19, 2016, the Agency had

determined that all three of the reports of abuse and neglect were unfounded.

23 Pa.C.S. § 6303. R.R. had not yet undergone psychological evaluation.

       On February 3, 2017, the Agency filed a petition to withdraw the

dependency petition pursuant to Pa.R.J.C.P. 1335.3        On February 9, 2017,

Father filed a motion to enforce the court’s order to conduct a psychological

evaluation of R.R. pending Mother’s appeal of the shelter care order. Motion




____________________________________________


2  On February 28, 2017, the trial court granted the Agency’s motion to
withdraw the dependency petition with respect to R.R, and, on April 7, 2017,
this Court dismissed Mother’s appeal from the shelter care order as moot.
See In the Interest of R.R., Appeal of A.Z., 2019 MDA 2016, filed 4/7/17.
See also Pa.R.A.P. 1972(a)(4) (authorizing dismissal for mootness). Mother
filed a motion for reconsideration, which this Court denied. Order, 2019 MDA
2016, filed May 4, 2017.

3 Rule 1335 provides that “[t]he attorney for the county agency may withdraw
the petition. The withdrawal shall be filed with the clerk of courts.” Pa.R.J.C.P.
1335.



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to Enforce Court’s Order to Conduct Psychological Evaluation of Child During

Pendency of Current Appeal, 2/9/17, at 11.4

       On February 28, 2017, the trial court granted the Agency’s motion to

withdraw the dependency petition.              See Order, filed 3/2/17.   The Agency

released R.R. back to Mother, as primary custodian. On March 9, 2017, Father

filed a motion for reconsideration of the court’s order, and the guardian ad

litem filed a court-ordered response. The court denied Father’s motion for

reconsideration on May 10, 2017, and on May 19, 2017 Father filed his notice

of appeal.

       An order denying a motion for reconsideration is not appealable.

Huntington Nat. Bank v. K–Cor, Inc., 107 A.3d 783, 787 (Pa. Super. 2014)

(“‘Pennsylvania case law is absolutely clear that the refusal of a trial court to

reconsider, rehear, or permit reargument of a final decree is not reviewable

on appeal.’”) (quoting Provident Nat'l Bank v. Rooklin, 378 A.2d 893 (Pa.

Super. 1977)). See Valentine v. Wroten, 580 A.2d 757 (Pa. Super. 1990)

(appeal will not lie from order denying motion for reconsideration). Moreover,

filing a motion for reconsideration neither extends nor tolls the appeal period

absent a stay of the judicial proceedings. Cheathem v. Temple Univ. Hosp.,

743 A.2d 518, 520 (Pa. Super. 1999). See Gardner v. Consol. Rail Corp.,

100 A.3d 280, 283 (Pa. Super. 2014) (“[A] motion for reconsideration, unless

expressly granted within the thirty-day appeal period, does not toll the time
____________________________________________


4The disposition of this motion is not included in the docket or record before
us.

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period for taking an appeal from a final, appealable order.”); Pa.R.A.P.

1701(b).

      Here, the trial court entered the order withdrawing the dependency

petition on February 28, 2017. Father’s March 9, 2017 motion for

reconsideration did not stay the appeal period. Accordingly, the appeal period

expired on March 30, 2017. Father’s motion for reconsideration, which was

not granted, did not toll the time period for taking an appeal from the February

28, 2017 order granting the Agency’s petition to withdraw. As the comment

to Pa.R.A.P. 1701 explains, although a party may petition the court for

reconsideration, the simultaneous filing of a notice of appeal is necessary to

preserve appellate rights in the event that either the trial court fails to grant

the petition expressly within 30 days, or it denies the petition.       Father’s

appeal, therefore, is untimely. Pa.R.A.P. 903(a).

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2017




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