Interest of: Z.M.W.minor Appeal of:Lawrence County ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: LAWRENCE COUNTY :
CHILDREN AND YOUTH SERVICES :
:
:
: No. 1832 WDA 2017
Appeal from the Order Entered November 17, 2017
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): No. 91 0f 2014, D.P.
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 17, 2018
The Lawrence County Children and Youth Services (“Agency”) appeals
from the trial court’s Order entered November 17, 2017, directing the Agency
to transport Z.M.W. (“Child”) (born April 2006) to his Mother’s home for
weekly visits in accordance with its October 16, 2017 Order. After careful
review, we conclude that the November 17, 2017 Order is reviewable as a
collateral order because it pertains to the allocation of the Agency’s after-
hours resources. Further, we find that the trial court properly exercised its
authority in ordering the Agency to arrange transportation for the Child to visit
his Mother in her home each Tuesday for a minimum two-hour visit.
Relevant to this appeal, we note the following facts gleaned from the
certified record. The Child is currently in the subsidized permanent legal
custody (SPLC) of the Agency, and placed with a foster/pre-adoptive family
where he has lived since 2015. His Mother, who suffered a stroke in 2014
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that ultimately led to the Child’s dependency adjudication, is limited in her
physical abilities, unable to drive, and without funds.
On October 16, 2017, after an extensive goal change hearing, the trial
court issued an Order denying the Agency’s Petition to Change the
permanency goal from SPLC to adoption. Relevant to this Appeal, the Order
directed the Agency to facilitate increased visits between the Child and Mother,
as follows:
Arrange for visits between [the Child] and his Mother to take place
outside of the visitation house and at locations such as
restaurants, movie theaters, parks, stores and shopping malls,
the Mother’s home, and like locations so that the Mother can visit
her son at least one time each week for at least two hours on each
visit. For these visits, no one needs to be present to observe or
watch the visits. [The Agency] must ensure that the visits are
arranged at times and locations that are convenient for the
Mother. By placing a two[-]hour minimum requirement for each
visit, this Court does not mean to limit the visits to two hours, if
additional time is needed so that the visit can be pleasant and
enjoyable.
Trial Ct. Order, dated October 16, 2017, at 2.
On November 16, 2017, the Child’s counsel filed a Notice of Appeal.1
The guardian ad litem joined the Child’s Brief. Mother filed an Appellee’s Brief.
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1 That appeal is docketed in this Court at No. 1732 WDA 2017. On July 16,
2018, this Court affirmed the court’s October 16, 2017 Order denying the goal
change to adoption.
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The Agency did not appeal from any part of that Order and did not file a Brief
in support of the Child. No party requested a stay pending appeal.2
On November 17, 2017, Mother filed a Motion “to clarify” the visitation
portion of the trial court’s October 16, 2017 Order, contending that
notwithstanding Mother’s undisputed inability to drive, the Agency had
“demanded that Biological Mother make all arrangements to transport the
minor child to and from the weekly visits” that the Agency proposed occur
from 4:00 to 6:00 each Tuesday evening. Motion to Clarify, filed 11/17/17,
at 1.
The court heard argument from counsel for Mother, the Agency, and the
Child that same day.3 Although the Agency caseworker had suggested that
visits could occur between 4:00 p.m. and 6:00 p.m. each Tuesday, the
Agency’s counsel opposed Mother’s request to have the Agency arrange to
transport the Child outside of the business hours of 8:00 a.m. to 4:00 p.m.
Instead, the Agency’s counsel suggested that visits take place between noon
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2 The certified record indicates that the visits began as ordered in the last
months of 2017. The guardian ad litem filed a report on December 7, 2017,
indicating that the Child had had three visits with Mother at her residence for
two hours each. The foster care coordinator picked him up at school, drove
him to his Mother’s home, and two hours later, returned him to his foster
home. In addition, after a permanency review hearing on April 30, 2018, the
court ordered the continuation of SPLC. See Order, dated June 19, 2018.
3 The guardian ad litem was not present at the hearing on Mother’s Motion,
but the Agency notes in its Brief to this Court that “the guardian ad litem had
informed Mother’s counsel that he took no position on her motion[.]”
Appellant’s Brief at 24.
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and 2:00 p.m. every Tuesday. The court rejected the Agency’s suggestion,
noting that it is not in the Child’s best interests to interrupt his schooling in
the middle of each Tuesday. The Agency asked the court to hold an
evidentiary hearing on the matter, and the court declined.
On November 17, 2017, the trial court entered an Order that directed
the Agency to pick the Child up at school every Tuesday at 2:35, the end of
his school day, drive him to Mother’s home and, after two hours, drive the
Child to his foster home. See Order, dated Nov. 17, 2017, at 2. The Agency
appealed. Both the Agency and the trial court complied with Pa.R.A.P. 1925.
The Agency raises the following issues in its Brief, reordered for ease of
disposition:
1. Is this appeal [ ] proper under the collateral order doctrine?
2. Did the trial court err[] by issuing its order dated November 17,
2017[,] as it was divested of jurisdiction pursuant to the notice of
appeal filed on behalf of the minor on November 16, 2017?
3. Did the trial court abuse its discretion by failing to grant a hearing on
the motion presented and resulting in the order dated November 17,
2017?
4. Did the trial court abuse its discretion by ordering CYS to provide
transportation of Z.W. on a weekly basis after hours?
Agency’s Brief at 7.
Collateral Order
In its Rule 1925(a) Opinion, the trial court opines that this Appeal is
from a non-reviewable, interlocutory order. In response, the Agency argues
that this appeal is properly before this Court as a collateral Order because the
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transportation order impacts the Agency’s financial resources. Pursuant to In
re J.R., 875 A.2d 1111 (Pa. Super. 2005), and the collateral order doctrine,
we agree with the Agency.
The collateral order doctrine provides that “an interlocutory order is
appealable if (1) it is separable from and collateral to the main cause of action;
(2) 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 claimed right will be irreparably lost.” Id. 1114 (citing In re
J.S.C., 851 A.2d 189, 191 (Pa. Super. 2004)). See also Pa.R.A.P. 313.
We conclude that the November 17, 2017, Order is a collateral order.
First, the order for the Agency to transport the Child is separable from and
collateral to the main cause of action, which is the dependency determination
and disposition. Second, “the right involved is [the Agency’s] discretion to
determine allocation of limited resources. This is a right too important to be
denied review.” In re J.R., supra, at 1114. “Third, if review is postponed
and [the Agency] ultimately prevails, it is unlikely that the agency will be able
to recoup the funds paid out pursuant to the court order.” Id. Because the
November 17, 2017 Order meets all three requirements of the collateral order
doctrine, we have jurisdiction to review the merits of the issues raised.
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Trial court’s jurisdiction to enforce its Order
The Agency argues that once the Child appealed from the October 16,
2017 Order, the trial court no longer had jurisdiction to enter any further
orders. We disagree.
Our rules of appellate procedure provide that after an appeal is taken,
the trial court may “[e]nforce any order entered in the matter[.]” Pa.R.A.P.
1701(b)(2). Our Supreme Court observed in In re H.S.W.C.-B., 836 A.2d
908 (Pa. 2003), that “[a]s the best interest of the children is always
paramount, the continued finger of the trial court on the pulse of the case is
needed, even while the matter is appeal.” Id. at 911.
The October 16, 2017 Order very clearly opined on the importance of
the Child being able to visit with his Mother, and very clearly directed the
Agency to arrange the transportation to effectuate the visits. Pursuant to In
re H.S.W.C.-B., the Child’s Appeal did not divest the court of its jurisdiction
to enforce its visitation arrangement Order.
Request for Evidentiary Hearing
The Agency contends that the trial court erred in refusing to hold an
evidentiary hearing on Mother’s Motion to Clarify. The Agency presents two
arguments in support of this contention: (1) there was no evidence on the
record to support the trial court’s determination that its transportation order
serves the best interest of the child; and (2) the guardian ad litem’s input was
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necessary before the court entered its November 17, 2017 Order. Appellant’s
Brief at 24.
Preliminarily, we note that the Agency’s second argument pertaining to
the guardian ad litem is waived. It is well-settled that issues not raised in a
Rule 1925(b) concise statement of errors will be deemed waived.
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). In addition, “a
[c]oncise [s]tatement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement
at all.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super.2006) (citation
omitted). See also Pa.R.A.P. 1925(b)(4)(ii) (providing that the Statement
“shall concisely identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”).
Thus, if a concise statement is too vague, the court may find waiver and
disregard any argument. Reeves, supra, at 2.
Here, the Agency’s second issue in its Pa.R.A.P. 1925(b) Statement was
“[t]he trial court erred as a matter of law by failing to grant a hearing on the
motion presented.” As presented, this Statement is arguably vague. Most
importantly, this Statement fails to challenge the trial court’s rendering its
decision without the guardian ad litem’s presence. Therefore, the Agency
waived its second argument.
Even if the argument were not waived, we would find it had no merit.
The Agency directs our attention to Pa.R.J.C.P. 1154(3), which provides that
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a guardian ad litem shall “participate in all proceedings … to the degree
necessary to adequately represent the child[.]” There is no dispute that the
guardian ad litem fully participated in the proceedings that led to the entry of
the underlying visitation order, which the court determined then was based
on the Child’s best interests. Indeed, the trial court ordered the visitation
schedule just one month prior to the filing of the Motion to Clarify after the
Child testified that he wanted visits with Mother to increase in length and
variety. Accordingly, the hearing on the Motion to Clarify did not require the
guardian ad litem’s presence as that Motion pertained only to the Agency’s
obligation to arrange the visits that the trial court had already determined to
be in the Child’s best interests.
With respect to the Agency’s general contention that the court abused
its discretion in refusing to hold an evidentiary hearing, the Agency directs us
to no statute or rule that mandates a court to hold such a hearing. Generally,
“it is within the discretion of the trial court to determine whether briefs and/or
oral argument are required to rule on a petition; it is also within the discretion
of the trial court to decide whether a matter can be best disposed of from a
review of the record alone.” GMAC Mortgage Corp. of PA v. Buchanan,
929 A.2d 1164, 1169 (Pa. Super, 2007) (citation omitted)).
At the hearing on Mother’s Motion to Clarify, the trial court stated that
it would not hold an evidentiary hearing, reasoning that “this is a simple
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matter of logistics. Absolutely simple matter of logistics[.]” N.T. Motion,
11/17/17, at 15-16. In its Rule 1925(b) Statement, the court observed:
There was no need to schedule an evidentiary hearing beyond the
presentation and argument in Motion Court. The Order of October
16, 2017[,] was clear and explicit in stating that the [Agency] was
to arrange for the visitation. Transportation is a necessary part
of that arrangement, especially in the case of a disabled parent.
Transportation for visits at the Visitation House had never been a
problem and it strains credulity to believe that a change of location
from the Visitation House to the Mother’s house (both in the City
of New Castle) could have created an unsolvable dilemma. No
evidentiary hearing was necessary.
Trial Ct. Op, dated Dec. 15, 2017, at 6.
After reviewing the record in this case, we conclude that the court did
not abuse its discretion in refusing to hold an evidentiary hearing on Mother’s
Motion to Clarify. Because the court had held an evidentiary hearing just one
month prior, which resulted in the underlying Order directing the Agency to
arrange transportation, the trial court had sufficient factual basis upon which
to make its decision.4
Order to transport the Child
The Agency contends that the court “abused its discretion by ordering
[the Agency] to provide transportation services beyond business hours,
thereby incurring weekly overtime costs for the agency.” Appellant’s Brief at
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4We further note that the Agency has not informed us of what evidence it
would have presented at an evidentiary hearing.
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16. In support, the Agency relies on In re: J.R., supra to contend that the
court failed to consider alternatives.
“We review an order requiring a child welfare agency to fund a particular
service for an abuse of discretion.” In re: J.R., supra, at 1114.
In In re: J.R., this Court reversed an order directing that the
Philadelphia Department of Human Services provide home telephone service
to a dependent child’s father so he could call the agency the day prior to
scheduled visits to confirm his attendance. In concluding the trial court erred
in issuing the order, this Court held, inter alia, that a juvenile court must
“consider the alternatives presented to address the needs of a dependent
child; then, if two equally effective alternatives are available, the court must
cho[o]se the one that is less costly to the child welfare agency.” Id. at 1115.
In the instant case, the trial court noted that it “retains authority to
enforce its orders even after 4:00 p.m. [The Agency] was given the
opportunity to provide the [c]ourt with an alternate date or time that would
be convenient to all concerned. It chose to submit a proposal that carried the
maximum disruptive effect on the child’s education.” Trial Ct. Op., dated
12/15/17, at 6-7.
Our review of the record indicates that the Agency provided one option
to the court: remove the Child from school in the middle of the day once a
week. Because the court had determined that removing the child from school
mid-day once a week would be disruptive to the child and not in his best
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interests, it was incumbent on the Agency, as the Child’s physical and legal
custodian, to present alternatives to the court. This it did not do. Accordingly,
the Agency’s contention that the court did not consider alternatives fails to
warrant relief.
We conclude that the trial court did not abuse its discretion in entering
its transportation order effectuating the visits that it had previously ordered.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2018
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