J-S56002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.C., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

APPEAL OF: K.C., FATHER

                                                   No. 1125 EDA 2017


                 Appeal from the Order Entered March 7, 2017
                In the Court of Common Pleas of Bucks County
                Domestic Relations at No(s): CP-09-DP-19-2014


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 20, 2017

       K.C. (“Father”) appeals from the order entered on March 7, 2017,

wherein the juvenile court adjusted the duration and frequency of his

supervised visitations with his three-year-old son, Ka.C.1    We quash the

appeal.

       Bucks County Children and Youth Services (“CYS”) became involved

with this family during December 2013, after Ka.C. was born with opiates

and cocaine in his system. Father and D.K. (“Mother”) were unable to care

for the newborn, and Father was incarcerated shortly after the child’s birth.

Mother was imprisoned after she was caught attempting to smuggle drugs
____________________________________________


1While the caption identifies both father and son as K.C., we refer to the
minor as Ka.C. for clarity.



* Retired Senior Judge specially assigned to the Superior Court.
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into the Bucks County Correctional Facility.       Ka.C. currently resides in

kinship foster care with maternal relatives, who are adoptive resources.

       On February 19, 2014, the juvenile court adjudicated Ka.C. dependent.

As the initial permanency goal was reunification, the court allotted regular

supervised visitations with Mother and Father during their incarceration.

CYS facilitated the visitations and transported Ka.C. to visit with his parents

at the respective facilities where they were serving their judgments of

sentence.

       Father’s progress toward alleviating the causes of his son’s placement

was negligible.       On April 7, 2016, the juvenile court changed Ka.C.’s

permanency goal as to Father from reunification to adoption.2 On January

17, 2017, this Court affirmed. See In the Interest of: K.C., 160 A.3d 256

(Pa.Super. 2017) (unpublished memorandum).          Petitions to terminate the

parental rights of Mother and Father are currently pending before the

orphans’ court.

       During the March 1, 2017 permanency review hearing, CYS requested

to reduce the frequency of Ka.C.’s weekly two-and-one-half hour supervised

visitations with Father at SCI Graterford in light of the fact that the case was

proceeding towards the termination of parental rights and the potential

____________________________________________


2 The trial court declined to alter the goal as to Mother; however, she
subsequently consented to the goal change on December 21, 2016.



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adoption by maternal relatives.3           CYS framed its request as the natural

progression of the case since adoption was the focus of the agency’s

resources. Specifically, the agency argued, “It makes no sense to the child.

It’s not in the child’s best interests that we continue the frequency of the

visits.”     N.T., 3/1/17, at 33.         CYS proposed reducing the supervised

visitation from weekly to monthly in order to reduce the burden upon three-

year-old Ka.C. of the six-hour time commitment, including travel to the

facility, once every week.        Id. at 34.     In addition, CYS asserted that the

value of the visitations were diminished by Father’s assignment to a

restrictive housing unit where he was forced to interact with Ka.C. from

behind glass. Id. at 35-36.

       The    guardian     ad   litem    acknowledged    that   the   six-hour   time

commitment was taxing upon Ka.C., but disagreed with limiting the

frequency of the visitations to a single visit per month. At the close of the

hearing, the trial court denied CYS’s request to limit the visitations to one

per month.       However, it modified the visitation schedule so that, while

Father remained in the restrictive housing unit, he would exercise supervised

visitation for one hour bi-weekly, and, following Father’s anticipated return

to a less restrictive unit on March 22, 2017, the duration of the visitations

____________________________________________


3As of March 1, 2017, the orphans’ court had not scheduled a trial date to
address CYS’s petition to terminate the parental rights of Mother and Father.



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would increase to two and one-half hours.        Id. at 52-53.   The trial court

memorialized this arrangement in an order entered on March 7, 2017. This

timely appeal followed.

       Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise

statement of errors complained of on appeal concomitant with his notice of

appeal. He presented one issue, which he reiterates on appeal as follows:

“Whether the Trial Court abused its discretion and/or erred as a matter of

law and fact by reducing Father’s visitation with the child to bi-weekly visits

with the child[.]” Appellant’s brief at 5.4

       We review the juvenile court’s decision regarding the frequency of

visitation in dependency proceeding for an abuse of discretion. In Interest

of M.B., 674 A.2d 702, 705 (Pa.Super. 1996) (juvenile court did not abuse

its discretion in reducing frequency of visitation from monthly to quarterly).

Where, as here, the child’s permanency goal is adoption rather than

reunification, the juvenile court may modify visitation so long as it satisfies

the best interests of the child, a standard that we have deemed, “less

protective of parents' visitation rights than the grave threat standard

[utilized when the goal remains reunification].”     In Interest of L.T., 158


____________________________________________


4 The guardian ad litem filed a brief in support of the juvenile court’s order
reducing the frequency and duration of the supervised visitations. Mother
submitted notice that she has no interest in the outcome of this appeal.



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A.3d 1266, 1283 (Pa.Super. 2017) (quoting In re L.V., 127 A.3d 831

(Pa.Super. 2015)).

      At the outset, we must determine whether we have jurisdiction to

review the order on appeal.      Our jurisdiction extends to review of final

orders, interlocutory appeals as of right, interlocutory appeals by permission,

and collateral orders. See Pa.R.A.P. 311, 312, 341, and 1311. The March 7,

2017 order adjusting the frequency and duration of Father's supervised

visitation with Ka.C. does not fall within any of the foregoing classifications

of reviewable orders. It is not a final order because it does not dispose of all

claims and parties, i.e., the order did not grant or deny a request to change

Father’s status in the ongoing dependency proceedings, and the court’s

adjustments are subject to further modification based upon evidence

adduced at future permanency review hearings—not to mention CYS’s

pending petition to terminate Father’s parental rights.

      As it relates to finality, this Court confronted a similar issue in In re

J.S.C., 851 A.2d 189 (Pa.Super. 2004), and concluded that our Supreme

Court’s statement in In re H.S.W.C.–B., 836 A.2d 908, 911 (Pa. 2003),

that “All orders dealing with custody or visitation, with the exception of

enforcement or contempt proceedings, are final when entered[,]” does not

apply to orders addressing visitation in the context of dependency.         We

reasoned that the High Court’s discussion of “visitation” in In re H.S.W.C.-

B., “referred solely to orders entered pursuant to the Adoption Act, 23

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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[.]” In re J.S.C., supra at 191. Thus, the order is not a final appealable

order pursuant to H.S.W.C.-B.

      Similarly, the order adjusting Father’s visitation is not defined as final

by statute, and the trial court did not certify the order as final pursuant to

Rule 341(c).   Likewise, the appeal from a juvenile court order reducing

supervised visitation is not an interlocutory appeal as of right pursuant to

Rule 311, and Father did not seek permission to appeal the order pursuant

to Pa.R.A.P. 312 and 1311.     As the order being appealed is neither final,

appealable as of right or by permission, nor asserted to be a collateral order

pursuant to the narrow application of Rule 311, we lack jurisdiction to review

it. Thus, we are constrained to quash the appeal.

      Nevertheless, in the abundance of caution, we observe that, had we

confronted the merits of Father’s appeal, we would have denied relief. As

noted supra, when the permanency goal is no longer reunification, the

juvenile court has discretion to reduce visitation as long as the decrease

satisfies the child’s best interests.    In Interest of L.T., supra at 1283

(“This alternative standard recognizes that when reunification is unlikely, the

parent-child relationship is no longer paramount.”). Father asserts that the

juvenile court abused its discretion in reducing the supervised visitations

because the reduction is contrary to his son’s best interest. We disagree.

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      The following factors are relevant in determining whether visitation is

in a child’s best interest:

      (1) length of separation from natural parents; (2) effect of
      visitation on the child; (3) the age, sex and health of the child;
      (4) the emotional relationship between child and parents; (5) the
      special needs of the child; and (6) the effect on the child's
      relationship with the current caregiver, usually the foster
      parents. Most importantly, the focus must be on the best
      interests of the child, in light of the fact that the natural family is
      not likely to be reunited.

In Interest of M.B., supra at 705-706.

      Instantly, the trial court addressed each of these considerations and

concluded that reducing the frequency of the supervised visitations, and

temporarily shortening their duration would produce an outcome that

satisfied Ka.C.’s best interests.    In summary, the court determined that

Father’s lengthy, continuing separation from Ka.C. weighs in favor of

gradually reducing the scope of supervised visitation pursuant to the first

factor.   As it relates to factors two, three, and five, the juvenile court

determined that the weekly travel was burdensome on Ka.C. and that

reducing the frequency of the visits to twice per month satisfied the best

interests of the three-year-old child in light of his tender age and

temperament. Phrased plainly, the juvenile court reasoned that “a reduction

in visits would seem to be a positive for the Child's health in terms of him

not having to spend the time and energy to spend six to eight hours visiting

Father each week.” Trial Court Opinion, at 7. Finally, in relation to factors



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four and six regarding Ka.C’s emotional relationships with Father and his

pre-adoptive parents, respectively, the juvenile court determined that, while

Father’s incarceration prevented him from serving in any parental capacity,

Ka.C. developed a strong bond with his pre-adoptive parents that continues

to thrive.

      In sum, the juvenile court concluded,

      When viewing the circumstances surrounding this case, and in
      light of the fact that the Child will likely never reunite with his
      natural parents, this Court reached the seemingly only rational
      determination that it could, that it was in the Child's best
      interest to begin a gradual tapering off of parental visitation. As
      time passes and assuming the case continues to head in the
      direction of adoption, this Court may consider tapering the visits
      again in the Child's best interests and will make that
      determination based on the circumstances then and there
      existing.

Id. at 9.

      Upon review of the certified record, parties’ briefs, and applicable law,

we find that Father’s argument challenging the juvenile court’s exercise of

discretions is unpersuasive. The juvenile court applied the relevant factors

to the facts of this case and made a reasoned decision based upon the

child’s best interests to reduce the frequency and duration of Father’s

supervised visitations with Ka.C. at SCI Graterford.     We observe that, in

reaching its decision, the court expressly declined to contract the visitation

schedule as severely as CYS initially requested, and it fashioned a schedule

that fostered Father’s contact with Ka.C. notwithstanding the goal change



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order and the pending petition to terminate Father’s parental rights. As the

certified record supports the juvenile court’s resolution, we discern no abuse

of discretion.

      Appeal vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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