In the Int. of: B.M., a Minor Appeal of: D.M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.M.
No. 211 MDA 2015
Appeal from the Order Entered January 20, 2015
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-CR-0000252-2013
BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2015
This is an appeal by D.M., a non-party to the underlying dependency
proceedings involving B.M., a minor child who is the biological relative of
D.M. D.M. seeks to appeal from the trial court’s January 20, 2015 order
denying her request for a transcription of a hearing conducted in the
dependency case. For the following reasons, we conclude that the court’s
January 20, 2015 order is not a final, appealable order. It is also not a
collateral order that is appealable as of right under Pa.R.A.P. 313.
Accordingly, we quash this appeal.
A brief history of the dependency proceeding involving B.M. is
necessary to understand the order from which D.M. seeks to appeal. Berks
County Children and Youth Services (BCCYS) became involved with B.M.’s
family in August of 2013 and, ultimately, B.M. was placed into foster care.
In September of 2013, B.M. was adjudicated dependent and temporary legal
custody was awarded to BCCYS with a primary goal of reunification, and a
concurrent goal of adoption.
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Beginning in October of 2014, D.M., who is an aunt of B.M.’s biological
father (Father), began seeking visitation with B.M., as well as placement of
B.M. in her home. However, on November 24, 2014, B.M.’s Guardian ad
Litem (GAL) filed an “Emergency Motion to Suspend Visitation” between B.M.
and D.M., as well as between B.M. and other biological family members. 1
On November 21, 2014, the trial court temporarily suspended visitation
between B.M. and certain family members, including D.M. On November 26,
2014, following a hearing, the court issued an order directing that the
primary permanency goal for B.M. was adoption.
On December 12, 2014, BCCYS filed a “Motion for Determination of
Visitation,” requesting that the trial court “make a determination regarding
whether visitation with [D.M. and other family members] is in the best
interests of [B.M.] and whether [B.M.] should remain in the home of [her
foster parents].” BCCYS Motion for Determination of Visitation, 12/12/14, at
3-4 (unnumbered). On January 8, 2015, the trial court conducted a hearing
on BCCYS’s motion (hereinafter “visitation hearing”). Ultimately, the court
issued an order concluding that it was in B.M.’s “best interest that all
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1
The record indicates that the impetus behind the GAL’s filing of the
emergency motion was her concern for the safety of B.M. and her foster
parents, after family members of B.M. created a Facebook page displaying
photographs of B.M. and a post that seemingly threatened B.M.’s foster
parents.
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visitation between the child and [her] biological family members remain
suspended at this time….” Trial Court Order, 1/13/15.2
On January 20, 2015, D.M. filed an “Order for Transcription,”
requesting the transcripts of the visitation hearing. That same day, the
court issued an order denying D.M.’s petition on the basis that “parts of this
[j]uvenile hearing were closed upon motion and safety issues weigh against
generating a transcript in these particular circumstances….” Trial Court
Order, 1/20/15. D.M. filed a timely notice of appeal from the court’s January
20, 2015 order. On February 23, 2015, this Court issued a per curiam order
directing D.M. to show cause why her appeal should not be quashed as
having been taken from an interlocutory, non-appealable order. D.M. filed a
timely response, arguing that the trial court’s January 20, 2015 order
qualified as a collateral order, appealable as of right under Rule 313. On
March 20, 2015, this Court issued a second per curiam order, discharging
our February 23, 2015 show cause order and stating that, “the merits panel
may revisit the issue and may find that the appeal is defective.” Per Curiam
Order, 3/20/15.
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2
In suspending visitation, the court cited “safety concerns for the foster
family and child, … the high level of conflict and stress between the
biological family and the foster family, [the fact that] visitation and contact
negatively impact the child in tangible ways, and [because] it is clearly
necessary for her health and well-being that [the child] experience a period
of quiescence at this time….” Id.
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In light of this procedural history, we will first consider whether the
trial court’s January 20, 2015 order is appealable.
The general rule is that, unless otherwise permitted by
statute, only appeals from final orders are subject to appellate
review. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-
45 (1978). A final order is one that disposes of all claims or all
parties. Pa.R.A.P. 341(b). This principle, designed to prevent
piecemeal appeals, is subject to a narrowly construed exception
known as the collateral order rule. See Commonwealth v.
Johnson, 550 Pa. 298, [306], 705 A.2d 830, 834 (1998);
Watson v. City of Philadelphia, 665 A.2d 1315, 1317 (Pa.
Cmwlth. 1995). The collateral order rule, first announced in
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69
S.Ct. 1221, 93 L.Ed. 1528 (1949), and now set forth in
Pennsylvania Rule of Appellate Procedure 313, provides that
appeals may be taken from orders that are “[1] separable from
and collateral to the main cause of action [2] where 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 claim will be irreparably lost.”
Pa.R.A.P. 313(b). This third prong has also been interpreted to
mean that the matter must be effectively unreviewable on
appeal from final judgment. Johnson, supra, 705 A.2d at 832,
citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct.
2454, 57 L.Ed.2d 351 (1978).
Commonwealth v. Sartin, 708 A.2d 121, 122-123 (Pa. Super. 1998).
Initially, the trial court’s January 20, 2015 order is not ‘final,’ as
defined by Rule 341(b).3 Thus, we must assess whether it satisfies the three
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Rule 341(b) states:
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute; or
(Footnote Continued Next Page)
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prongs of the ‘collateral order rule.’ In regard to the first prong of that test,
the January 20, 2015 order denying D.M. the transcript of the visitation
hearing implicates an issue that is separable from the underlying
dependency action. Namely, the dependency proceeding involves
“substantive decisions affecting the child’s best interests, which is the
polestar of all dependency proceedings.” In re J.S., 980 A.2d 117, 121 (Pa.
Super. 2009). More specifically, the January 8, 2015 visitation hearing was
conducted to determine whether visitation with D.M., as well as other family
members, was in the best interests of B.M. See BCCYS “Motion for
Determination of Visitation,” 12/12/14, at 3-4 (unnumbered). That issue,
and the overarching question of B.M.’s dependency, are distinct and
separable from D.M.’s claim that she has a right to the transcript of the
visitation hearing. Therefore, the first prong of the collateral order doctrine
is satisfied.
Next, we determine if the right involved in D.M.’s claim is too
important to be denied review. D.M. avers (in her answer to our order to
show cause why her appeal should not be quashed) that she has a
constitutional “right to judicial records” as a member of the public, and as an
_______________________
(Footnote Continued)
(3) is entered as a final order pursuant to subdivision (c)
of this rule.
Pa.R.A.P. 341(b).
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“interested party.” Answer of Appallant [sic] to Order Filed by Superior
Court, 3/6/15, at 3.
In Sartin, a nearly identical right was asserted in an attempt to satisfy
the collateral order rule. There, local newspapers appealed from a court
order that “partially unsealed the transcript of a previously held in camera
hearing….” Sartin, 708 A.2d at 121.4 In arguing that the order satisfied the
second prong of the collateral order test, the newspapers “identified only the
public’s right of access to judicial proceedings as the right too important to
be denied review….” Id. at 123 (citation omitted). We disagreed that this
right met the collateral order test, reasoning:
Admittedly, Pennsylvania courts have recognized the
existence of the right of the public to observe the functioning of
the criminal justice system. PG Publishing Co. v.
Commonwealth, 532 Pa. 1, 5, 614 A.2d 1106, 1108 (1992);
Commonwealth v. Fenstermaker, supra, at 508, 530 A.2d at
417 (1987). This right is not absolute, however, and it may be
weighed against circumstances warranting closure of the record
to public inspection. PG Publishing Co., supra;
Fenstermaker, supra, at 513, 530 A.2d at 420. At the
discretion of the trial judge and in the interest of protecting
public as well as private interests, the public may be excluded,
temporarily or permanently, from being present at certain
judicial proceedings or examining the records of such
proceedings. PG Publishing Co., supra; Hutchison v. Luddy,
417 Pa. Super. 93, 611 A.2d 1280, 1290 (1992); Katz v. Katz,
356 Pa. Super. 461, 514 A.2d 1374, 1377 (1986). Thus,
although we concede that the right of access is an important
right, in light of the fact that it can be delayed or denied under
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The newspapers sought to challenge the court’s order because it directed
that the transcript be redacted of all proper names. Id. at 122.
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certain circumstances, we cannot conclude that the Newspapers'
appeal is too important to be denied immediate review.
Sartin, 708 A.2d at 123.
In light of Sartin, we reject D.M.’s claim that the public’s right of
access to judicial records is too important to be denied review at this time.
Additionally, D.M.’s assertion that she has a “personal interest” in attaining
the record of the visitation hearing does not warrant immediate review. This
Court has stated that “[i]n order to satisfy the second prong of the collateral
order doctrine, it is not sufficient that the issue be important to the
particular parties.” Spanier v. Freeh, 95 A.3d 342, 346 (Pa. Super. 2014)
(citation omitted). “Rather, the issue must involve rights deeply rooted in
public policy going beyond the particular litigation at hand.” Id. (citation
omitted). Accordingly, the second prong of the collateral order doctrine is
not satisfied in this case.
We need not go on to examine whether the third prong of the
collateral order test has been met, because “[a]bsent the satisfaction of all
three prongs of [that] test, this Court has no jurisdiction to consider an
appeal of an otherwise non-final order.” Spanier, 95 A.3d at 345 (citation
omitted). Therefore, we quash D.M.’s appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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