J-S05029-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF J.A., A MINOR         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: M.R.                          :    No. 1451 WDA 2018

             Appeal from the Order Entered September 17, 2018
     in the Court of Common Pleas of Lawrence County Civil Division at
                       No(s): CP-37-DP-0000095-2013

IN THE INTEREST OF K.R., A MINOR         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: M.R.                          :    No. 1452 WDA 2018

             Appeal from the Order Entered September 17, 2018
     in the Court of Common Pleas of Lawrence County Civil Division at
                         No(s): CP-37-DP-94-2013

BEFORE:       PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                         FILED MAY 23, 2019

     If I were to reach the merits, I would agree with the Majority that the

orders should be vacated and the case remanded to address the Children’s

appearance at the hearing.      However, I do not think the orders are

appealable.    The Majority holds that the permanency review order from

which Mother appeals is a final order pursuant to In re H.S.W.C.-B., 836

A.2d 908 (Pa. 2003). For the reasons that follow, I disagree and would

quash this appeal.




*Retired Senior Judge assigned to the Superior Court.
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      In H.S.W.C.-B., our Supreme Court examined whether a party should

be permitted to appeal from an order that denied petitions to terminate

parental rights and change the permanency goal. This Court had quashed

the appeal of the child welfare agency that filed the petitions because the

order denying the petitions maintained the status quo. The child welfare

agency appealed to our Supreme Court.        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. H.S.W.C.-B., 836 A.2d 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 ([Pa.] 1988). If 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. … We now adopt the recent
      pronouncement in In re ALD, [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.

H.S.W.C.-B., 836 A.2d at 911.

      In the years following H.S.W.C.-B., our Court has wrestled with how

far to extend our Supreme Court’s holding. The first precedential decision

following H.S.W.C.-B. considered whether H.S.W.C.-B. should be extended

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to a delinquency dispositional review hearing order maintaining a child’s

commitment to a treatment facility. In re M.D., 839 A.2d 1116, 1122 (Pa.

Super. 2003). Our Court observed that as in H.S.W.C.-B., a determination

that the order was interlocutory meant that a child’s improper commitment

could be shielded from appellate review, but it nevertheless declined to

extend broadly     H.S.W.C.-B.’s   holding   when   doing   so   would   have

implications for Pa.R.A.P. 1701 and the authority of a trial court to proceed

in matters on appeal. Id. This Court concluded that such an extension is “a

task [] best left to the state Supreme Court or its Rules Committee.” Id.

      This Court exercised similar restraint in In re J.S.C., 851 A.2d 189

(Pa. Super. 2004), when considering whether to extend H.S.W.C.-B. to a

child welfare agency’s appeal of a permanency review order granting

expanded visitation to a dependent child’s parent.           After reviewing

H.S.W.C.-B. and M.D., we concluded

      that our Supreme Court’s admonition in H.S.W.C.-B. [] that
      “[a]ll 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.[] § 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.[] § 6301, et. seq.[1] See, e.g., M.D., 839 A.2d at 1122.

1 Although I am bound to follow precedential decisions of this Court, I
disagree with the panel’s assessment in J.S.C. that our Supreme Court’s
statement in H.S.W.C.-B. must have been limited only to orders entered
pursuant to the Adoption Act. It is unclear how the panel in J.S.C. arrived at
that holding considering H.S.W.C.-B. involved orders entered pursuant to
the Adoption Act and Juvenile Act.
(Footnote Continued Next Page)

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      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. [] 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.”

J.S.C., 851 A.2d at 191.

      Conversely, this Court justified the appealability of a permanency

review order in In re C.M., 882 A.2d 507 (Pa. Super. 2005) by reasoning

that the order was reviewable because it “involved a change in C.M.’s

placement status, in that it determined which of two potential adoptive

homes would be selected for C.M.’s permanent placement” and was “the

type of order, discussed by the Court in H.S.W.C.-B., which “could put the

needs and welfare of the child at risk” if it were not reviewable on appeal.”


(Footnote Continued)   _______________________



  Moreover, a close reading of H.S.W.C.-B. reveals that when our Supreme
Court referred to visitation orders, it is most likely that the Court was
referring to visitation orders entered under the Child Custody Act. Right
after the Court references visitation and custody orders, the Court compares
and contrasts the appealability of a denial of “custody modification” with the
denial of “proposed goal change or petition for termination of parental
rights.” H.S.W.C.-B., 836 A.2d at 911. Thus, the context of the statement
causes me to question whether the Court really meant to hold that any order
in any context relating to visitation or custody is final and immediately
appealable when entered.         However, a panel of this Court recently
interpreted the Court’s statement in H.S.W.C.-B. in just that fashion. See
In the Interest of N.M., 186 A.3d 998, 1006 (Pa. Super. 2018) (citing
H.S.W.C.-B. for the proposition that all orders dealing with visitation or
custody, with exception of enforcement or contempt proceedings, are final
when entered).


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C.M., 882 A.2d at 513; see also In re C.B., 861 A.2d 287, 289 n.1 (Pa.

Super. 2004) (applying H.S.W.C.-B. without discussion to hold that

permanency review order suspending parent’s visits was a final appealable

order); In re M.J.S., 903 A.2d 1, 2 (Pa. Super. 2006) (reviewing an appeal

from vacation of an adoption decree despite contemplation of further

proceedings because otherwise the needs and welfare of child were at risk).

        In more recent years, the cases regarding a question of finality

involved a change to the permanency goal, i.e., a change in status in the

case.    See In Interest of Z.V., 158 A.3d 665, 668 (Pa. Super. 2017)

(holding permanency review order was final and appealable because the

order added a concurrent goal of adoption and made a finding that

reunification had been ruled out as to Mother as a viable goal); In Interest

of R.W., 169 A.3d 129, 130–31 (Pa. Super. 2017) (deeming permanency

goal to have changed implicitly because juvenile court ordered agency to file

termination of parental rights petition; thus, permanency review order was

final and appealable because it involved a status change).

        This past year, however, this Court examined H.S.W.C.-B. to

determine whether a permanency review order that did not affirmatively

change the status of the case was appealable.         In N.M., supra, the

permanency review order maintained the child’s placement in foster care

with a permanency goal as reunification, but denied the parents’ request to

change the child’s placement from foster care to kinship care. To begin, a



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panel of this Court distinguished the case from H.S.W.C.-B. According to

the N.M. panel, unlike H.S.W.C.-B., the trial court in N.M.’s case “did not

grant or deny a status change; the goal remained reunification throughout

and [N.M.’s p]arents never asked for it to be changed.” N.M., 186 A.3d at

1006.     Because N.M.’s parents requested only a placement change, this

Court did not find H.S.W.C.–B. to be controlling.2        Id.   Thus, this Court

appears to have interpreted the term “status change” narrowly to refer to a

change in permanency goal status, not a change in the type of placement.

But see C.M. supra (holding permanency review order was reviewable

because it involved a permanency review order deciding which of two pre-

adoptive families was in CM’s best interest, and therefore was a change in

C.M.’s “placement status”). Id.

        Although the issue is not free from doubt, based upon the existing

case law and the factual circumstances of this case, I believe the Majority is

incorrect in holding that H.S.W.C.–B. controls the instant case. This case is

an appeal from a permanency review order that maintained the permanency



2 Ultimately, the N.M. panel determined that the permanency review order
was reviewable because the trial court had terminated the parental rights to
N.M. According to the N.M. panel, this meant “the entire record from the
permanency hearings, including that from the [permanency review hearing
at issue, was] now reviewable on appeal from the court’s termination
decrees.” Id. In other words, the entry of the TPR order acted to finalize
the interlocutory permanency review orders. The panel’s ultimate holding in
N.M. does not impact our analysis in the instant case because according to
the record in the instant case, the petition to terminate parental rights is still
pending.


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goal as reunification with a concurrent goal of adoption.      See generally

Permanency Review Orders, 9/17/2018.          The children’s placement did not

change.   Id.   The children still do not wish to visit with Mother and the

juvenile court ordered no change in visitation. Id. Although the record for

the termination matter is not before us, I discern from the record that the

juvenile court has been presiding over simultaneous goal change and

termination of parental rights hearings, approximately eight hearings have

occurred over an extended period of time, and the decision regarding the

agency’s request to change the goal and the agency’s petition for

termination of parental rights was pending.

     During the hearing, Mother testified that she had completed all

requested programs except obtaining a second parental capacity evaluation

from an agency-approved provider; she would like to be reunified with

Children; she desires reunification therapy with Children; she desires visits

with Children; and she had requested visits from the agency repeatedly.

N.T., 9/17/2018, at 15-16.     At the conclusion of the hearing, Mother’s

counsel argued the agency did not prove that reunification could not occur.

See id. at 17. Even if we construed Mother’s testimony as an affirmative

request for return of Children, visitation with Children, and a particular

service, it appears that these are not new requests from Mother. Nor were

the requests from Mother based upon a change in circumstances or new

information.



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      In my view, it is unclear how far our Supreme Court desired the

holding in H.S.W.C.-B. to extend.     Read strictly, “[a]n order granting or

denying a status change” could apply to every permanency review hearing

where a request relating to the state or condition of a child or parent’s

circumstances was made.

      While I disagree with the N.M. panel that a placement change could

never constitute a status change and render an order appealable, I also do

not believe our Supreme Court intended to permit immediate review of each

permanency review order. Even with our special expedited rules for cases

designated as children’s fast track cases, the wheels of appellate review turn

too slowly to address effectively the vast majority of issues in dependency

matters.    While a juvenile court’s decisions should not be shielded from

review forever,3 permitting appeals from each permanency review order runs




3 Indeed, I think this Court should decide the appealability in status quo
permanency review cases on a case by case basis, lest an “improper order”
be permanently shielded from appellate review. See H.S.W.C.-B., 836 A.2d
at 910–11. There are some cases where the goal remains the same for an
extended period, no party is seeking to change the goal, and the trial court
continually orders or refuses to order something that is or is not in the best
interest of the child. Consider, for example, the case of a child for whom
adoption or guardianship with a family member is not a feasible prospect.
Some children remain in foster or congregate care for years, with the only
truly final order being the last one before they age out of the system. There
needs to be a balance between avoiding interference with the permanency
review process on the one hand and permitting the trial court to have
unfettered discretion by not reviewing orders on the other hand. I do not
believe this case presents a situation like H.S.W.C.-B. where “[m]aintaining
the status quo” for the time being is putting “the needs and welfare of a
(Footnote Continued Next Page)

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counter to the pursuit of expeditious permanency for children. Were we to

permit appeals from each six-month permanency review hearing (or in some

counties, each three-month permanency review hearing), it would be

impossible for the juvenile court to maintain regular reviews of the case

without running afoul of Pa.R.A.P. 1701. Our Supreme Court in H.S.W.C.-B.

was able to bypass that problem by instructing juvenile courts to continue to

conduct regular permanency reviews while the goal change denial or grant is

on appeal. However, as an error-correcting court, it would be outside our

authority to impose such a directive were we to permit appeals of all

permanency review hearings.                      Further, the detriment of delay is not

outweighed by the benefits of prompt review, as most decisions by the

Juvenile Court are reviewed only for an abuse of discretion, and we often

must defer to the assessments of the juvenile court, which has firsthand

experience with the family.

      By permitting review of this permanency review order, which occurred

following a permanency review hearing in which no new evidence or

requests were made and which occurred in the midst of ongoing hearings 4

                       _______________________
(Footnote Continued)
child at risk,” id., since appealable orders (i.e., the orders from the
termination and goal change hearings) were pending.

4  It is concerning that the termination and goal change hearings have
stretched out for such an extended period, leaving the children and Mother
in a state of limbo. Obviously, it is imperative to come to the correct result
after careful examination of all of the relevant evidence, and in some cases,
multiple hearings are warranted. However, “courts must keep the ticking
(Footnote Continued Next Page)

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designed to review the history of the case, I believe the Majority’s holding

opens the door to rendering all permanency review orders immediately

appealable.    In short, if this order is appealable, it is difficult to fathom a

permanency review order that would not be immediately appealable.5

Therefore, I would quash this appeal because the order appealed from is an

interlocutory order.6




(Footnote Continued)   _______________________

clock of childhood ever in mind. Children are young for a scant number of
years, and we have an obligation to see to their healthy development
quickly.” In re T.S.M., 71 A.3d at 269. Accordingly, our Supreme Court
expects “trial courts to control these proceedings, focus the issues, direct the
testimony, and decide matters[, because p]ermanency for the children
demands no less.” Id. at 260 n.19. I note, however, that the trial court’s
failure to move along the termination of parental rights process is not an
issue Mother raises in this appeal.

5  If all permanency review hearings were immediately appealable, the
eloquent words of Justice (later Chief Justice) O’Brien would certainly ring
true: “The bifurcated appeal foisted upon the courts can only be termed a
judicial Hydra. Would that a Hercules could appear … to slay this monster.”
Hession Condemnation Case, 242 A.2d 432, 437 (Pa. 1968) (O’Brien, J.,
dissenting). Suffice it to say that I agree with Justice O’Brien that “[i]t is
more important to prevent the chaos inherent in bifurcated, trifurcated, and
multifurcated appeals than it is to correct each mistake of a trial court the
moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236,
238 (Pa. 1968) (O’Brien, J., dissenting).

6
  The order is also not a collateral order pursuant to Pa.R.A.P. 313, because
it deals with matters at the heart of the proceeding.


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