In the Int of: B.T., a Minor Appeal of: L.T. (memorandum)

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J-S35002-14 NON-PRECEDENTIAL DECISION IN THE INTEREST OF: B.T., A MINOR APPEAL OF: L.T. SEE SUPERIOR COURT I.O.P 65.37 : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2009 MDA 2013 Appeal from the Order entered October 9, 2013, Court of Common Pleas, Northumberland County, Juvenile Division at No. CP-49-DP-0000003-2012 BEFORE: DONOHUE, WECHT and STRASSBURGER*, JJ. MEMORANDUM BY DONOHUE, J.: FILED JUNE 30, 2014 the Court of Common inquash the appeal. The relevant facts and procedural history of this case are as follows. At all times relevant to this matter, Father has been incarcerated in a state correctional facility. On January 10, 2012, the trial court entered an order placing Child into the custody of Northumberland County Children and Youth torney On September 17, 2013, CYS filed a motion to suspend visitation SCI Forest. CYS claimed that it would take approximately 12 hours round trip to get Child and her brother to and from SCI Forest for visits with *Retired Senior Judge assigned to the Superior Court. J-S35002-14 Father. On October 9, 2013, the trial court held a hearing on the motion in which the court unsuccessfully attempted to include Father via telephone. N.T., 10/9/13, at 3. After failing to contact Father, CYS asked Attorney Slivinski if he objected to proceeding and he indicated that he did not object. Id. at 4. During the hearing, CYS stated that it had offered video conference visitation to Father so that he could visit with Child in that manner. Id. Attorney Slivinski then informed the trial court that he received a letter written by Father stating that if face-to-face visits with Child at the prison could not occur, that he wanted the trial court to order video conferencing. Id. at 6. Both Attorney Slivinski and CYS were uncertain as to whether SCI Forest had the facilities available for Father to video conference with Child. Id. at 5-9. As a result, CYS assured Attorney Slivinski that i Id. at 9. Following this hearing, the trial court entered an order stating the -]to[-]face visitation with [Child] SUSPENDED until further [o]rder of the [c]ourt. and [Father] are If arrangements can be made with SCI [Forest] for video conferencing, visitation can occur at [CYS] 10/9/13, at 1. On November 7, 2013, Father filed a timely pro se notice of appeal and a motion for leave to proceed in forma pauperis. The trial court in forma pauperis. -2- On November 22, J-S35002-14 2013, because Father failed to file a 1925(b) statement contemporaneously with his notice of appeal, the trial court filed an order, sent, inter alia, to Father and Attorney Slivinski, which ordered Father to file a 1925(b) statement. On December 10, 2013, Father filed a pro se 1925(b) statement. Prior to discussing the issues raised on appeal, we must first determine whether we have jurisdiction to review the order appealed. Pennsylvania law provides that the jurisdiction of this Court extends to review of final orders, interlocutory appeals as of right, interlocutory appeals by permission, and collateral orders. In re W.H., 25 A.3d 330, 334 (Pa. Super. 2011), appeal denied 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 (3) is entered as a a final order because it does not dispose of all claims and parties, it is not defined as final by statute, and the trial court did not certify the order as final pursuant to Rule 341(c). See Trial Court Order, 10/9/13, at 1; Pa.R.A.P. 341(b). Additionally, this is not an interlocutory appeal as of right pursuant to Pa.R.A.P. 311 because an appeal from an order suspending parental visitation is not among the orders described by Rule 311. See Pa.R.A.P. 311. -3- Nor is this an interlocutory J-S35002-14 appeal by permission, as Father has not filed a petition seeking permission to appeal pursuant to Pa.R.A.P. 312 and 1311. See Pa.R.A.P. 312; Pa.R.A.P. 1311. Attorney Slivinski claims that the October 9, 2013 order is an appealable order pursuant to the collateral order doctrine. Brief for Appellant at 10.1 Under the Pennsylvania Rules of Appellate Procedure, A collateral order is [1] an order 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). Our Court has held that an order suspending visitation of a dependent child to a parent may qualify as a collateral order pursuant to Pa.R.A.P. 313. See In re J.S.C., 851 A.2d 189, 191-92 (Pa. Super. 2004) (citing In the Interest of Rhine, 456 A.2d 608 (Pa. Super. 1983)). In Rhine the appellants appealed from the indefinite suspension of their visitation with their daughter. Rhine, 456 A.2d at 609. In that case, this Court did not discuss whether such an order was appealable, although we did address the 1 Attorney Slivinski has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). While In re V.E., 611 A.2d 1267 (Pa. Super. 1992) extended the Anders principles to appeals involving the termination of parental rights, we know of no authority applying Anders to dependency matters. However, because we do not have jurisdiction to review the merits of this appeal, we do not need to address this issue. -4- J-S35002-14 merits of the appeal. See id. at 609-20. Although this Court did not analyze the appealability of the order at issue in Rhine, we examined whether the order in Rhine was appealable in In re J.S.C., 851 A.2d 189, 191-92 (Pa. Super. 2004). In In re J.S.C., we explained, [I]t appears that our exercise of jurisdiction in Rhine ollateral order to the finality rule and permits immediate appeal as of right from an otherwise interlocutory order where an appellant demonstrates that the order appealed from meets the following elements: (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. See Pa.R.A.P. 313; see also Witt v. LaLonde, 762 A.2d 1109, 1110 (Pa. Super. 2000) (citations omitted). In Rhine, the parents appealed from the indefinite suspension of their parental visitation rights. Clearly, a parent has a protected interest in the visitation of their dependent child, which is too important to be denied appellate review when attacked. Rhine, 456 A.2d at 612 13[.] Moreover, an order abridging a separable and collateral to a dependency action because it does not require an analysis of the merits of the underlying case. See, e.g., Vertical Res., Inc. v. Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003). Lastly, if appellate review of the issue were denied until a final judgment, the right of visitation in the dependent child could be terminated via petition. -5- J-S35002-14 In re J.S.C., 851 A.2d at 191-92.2 In the present matter, the trial court set forth the following reasoning as to why it believed the October 9, 2013 order was appealable pursuant to the collateral order doctrine: It has been decided that an order reducing or collateral See [Rhine, 456 A.2d 608]. Clearly, a parent has a protected interest in the visitation of their dependent children, which is too important to be denied appellate review when attacked. See In re J.S.C., 851 A.2d at 191 (quoting from [] Rhine, 456 A.2d at 612-13). In any right to visitation with his or her child is separate and collateral to the underlying issues of the dependency case, as it does not require the appellate court to look at the merits of the dependency. See [i]d.; see, e.g., Vertical Res., Inc. v. Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003). Finally, if appellate review of the issue were denied until a final judgment, the right of visitation could be irreparably 2 In re J.S.C. Muncy. Id. at 189. prevent Mother from visiting with J.S.C. Accordingly, the order [MC]CYS purports to appeal from does not foreclose [MC]CYS from asserting an Id. at 192 (citation omitted). Id. Thus, this Court We note that In re J.S.C. is clearly distinguishable from the instant matter between parent and child. See In re J.S.C., 851 A.2d at 189, 192. We rely on In re J.S.C. for its analysis of Rhine under the collateral order doctrine. See id. at 191-92. Rhine does address an appeal from an order suspending parental visitation. See Rhine, 456 A.2d at 609. -6- J-S35002-14 child could be terminated via petition. See [i]d. As this appeal is brought by [] Father and not by [CYS], the holding in In re J.S.C. is distinguishable. Trial Court Opinion, 1/27/14, at 6. collateral order doctrine as applied to this case. Here, the October 9, 2013 order from which Father appeals is, on its face, not a final order. The October 9, 2013 order states: [I]t is ORDERED, ADJUDGED AND DECREED that at the [m]otion to [s]uspend [v]isitation [h]earing, face[-]to[-]face visitation with [Child] and [Father] are SUSPENDED until further [o]rder of the [c]ourt. If arrangements can be made with SCI [Forest] for video conferencing, visitation can occur at [CYS] for [Child] and [Father] through video conferencing. Trial Court Order, 10/9/13, at 1 (emphasis added). The order indicates that er of court, -examine this issue. See id. -person visitation with Child. See id. According to the order, Father may still have visitation with Child through video conferencing if CYS and SCI Forest are able to make such arrangements. See id. In fact, the trial court explained the following in its 1925(a) opinion: -7- J-S35002-14 with the understanding that physical visitation is suspended pending the occurrence of scenario, [CYS] has been unsuccessful in securing video[]conferencing visitation between Father and [Child], it is presumed by this [c]ourt that [CYS] would have reverted to the regulatory minimum for purposes of physical visitation. r did limit not aware of the nature of which his visitation rights -person visitation was dependent on his ability to have video conference visitation with Child. See id. Moreover, the trial court stated that it had the expectation that if CYS and SCI Forest were unsuccessful in arranging video conference visitation between Father and Child, then CYS would afford Father the regulatory minimum for in-person visitation with Child. See id. Furthermore, this case is distinguishable from Rhine. That case indefinitely suspending their visitation with their daughter, which this Court characterized as a action [that] threatens either a prolonged, indefinite or a permanent loss of Rhine, 456 A.2d at 609, 612-13. Here, See id.; supra, pp. -8- J-S35002-14 7-8. The October intention to re- See Trial -person visitation with Child temporarily. See Trial Court Opinion, 1/27/14, at 11. That suspension was dependent on Father receiving video conference visitation with Child. See id. If Father did not receive video conference visitation with Child, the trial court expected that Father would once again receive in-person visitation with Child. See id. This case does not represent the same indefinite suspension of parental visitation that occurred in Rhine. See Rhine, 456 A.2d at 609. Accordingly, this appeal does not present a question where if review were postponed until final judgment in the case, the claimed right would be irreparably lost. See finition must be In re W.H., 25 A.3d at 335 (citation omitted). Therefore, this case is not appealable under the collateral order doctrine because this appeal does not satisfy the third prong of the Rule. Based on the foregoing, we conclude that the order from which Father appeals is not a final order and is not appealable under the collateral order -9- J-S35002-14 Appeal quashed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/30/2014 - 10 -

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