In the Int. of: J.J., a Minor., Appeal of: DHS

J-A04034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.J., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: PHILADELPHIA :

DEPARTMENT OF HUMAN SERVICES :

:

:

: No. 1593 EDA 2020

Appeal from the Order Entered July 27, 2020

In the Court of Common Pleas of Philadelphia County Juvenile Division at

No(s): CP-51-DP-0002504-2018

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 1, 2021

The Philadelphia Department of Human Services (DHS) appeals an order

of the Court of Common Pleas of Philadelphia County (trial court) allowing the

putative father, T.M., to intervene in an evidentiary hearing concerning

whether he is a presumptive parent of the child, J.J.J.1 Because we find that

the subject order is interlocutory and not an appealable collateral order, we

must quash this appeal.

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* Retired Senior Judge assigned to the Superior Court.

1The guardian ad litem joins the brief of DHS but has not filed a brief on her

own behalf.

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I.

We rely on the summary of the material facts recounted in the trial

court’s 1925(a) opinion:

On November 20, 2018, DHS filed a Dependency Petition seeking

to adjudicate the Child dependent. The Affidavit of Service

attached to the Dependency Petition stated that it was mailed to

[T.M.] . . . in his capacity as Father of the Child. Although there

remained questions as to the Child’s biological Father at the time,

[T.M.] was the husband of Child’s Mother, who died on December

16, 2018.

On November 27, 2018, the Honorable Deborah Canty adjudicated

Child dependent and committed him to DHS’s legal custody. The

underlying Dependency Order clearly described [T.M.] as the

Child’s Stepfather and that the Child be allowed to live with [T.M.].

As a result, Child was placed with [T.M.] and the Child remained

in the care of [T.M.] until August 20, 2020. Thereafter, DHS

removed Child from [T.M.’s] care without a judicial removal order.

At all material times, [T.M.] has held himself out to be the Father

of the Child based not only upon his marriage to the Child’s

deceased Mother but based upon his willingness to care for the

Child. [T.M.] is also the Father of Child’s stepsister. For reasons

that remain unclear, [T.M.] on December 21, 2018, became the

Child’s foster parent. There remains a dispute if [T.M.] was told

by DHS that in order to retain custody of the Child he had to

become a foster parent. Ultimately, a Petition to Terminate

Parental Rights was filed and although [T.M.] was listed as Father

on the Dependency Petition, and as a Stepfather on a Court Order

and later as Foster Parent in subsequent court documents, [T.M.]

was never listed as the Father on any Petition to Terminate

Parental Rights. DHS argues that [T.M.] is now estoped from

making any claims to paternity because he never objected to the

Petition to Terminate Parental Rights and was only a “Pu[tative]

Father.”

On June 2, 2020, [T.M.] filed a Motion to Intervene in the

dependency proceedings asserting status as a party because he

was the presumptive father, or, in the alternative the foster

parent. On July 25, 2020, a motions hearing was held before the

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trial court, in which legal arguments were made on the issue of

[T.M.’s] standing.

After hearing oral argument, the court re-scheduled the matter

for a lengthier evidentiary hearing. The trial court repeatedly

articulated that it needed more facts to make a final decision. The

trial court’s order partially granted [T.M.’s] Motion to Intervene

whereby [T.M.] was granted legal representation and the right to

cross-examine witnesses. No testimony was presented on

[T.M.’s] claim to paternity nor on the issue of the Child’s removal

from his care. On August 5, 2020, the trial court entered its order

for paternity testing. On August 5, 2020, Appellant DHS filed a

Motion for Reconsideration. On August 26, 2020, DHS filed the

underlying Notice of Appeal.

Trial Court Opinion, 10/21/2020, at 2-4 (citations and footnote omitted).2

DHS timely appealed, and both DHS and the trial court complied with

Pa.R.A.P. 1925. In its brief, DHS raises a single issue for our consideration:

Did the trial court err as a matter of law and abuse its discretion

in granting T.M.’s Motion to Intervene and affording him the right

to counsel and to present evidence where T.M. does not . . . have

standing as a presumptive parent?

Appellant’s Brief, at 3.

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2 The trial court held a judicial removal hearing on October 5, 2020, and found

that J.J.J.’s placement in a foster home was appropriate, retroactively

authorizing the child’s removal from T.M.’s custody. A paternity test showed

that T.M. is not the biological father of J.J.J., but the trial court found that this

did not necessarily preclude T.M. from status as a presumptive parent because

he was the husband of J.J.J.’s biological mother at the time of the child’s birth

and raised the child since that time. The dependency proceedings have not

yet concluded.

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II.

A.

The threshold issue is whether the trial court’s order is immediately

reviewable. “[T]he appealability of an order directly implicates the jurisdiction

of the court asked to review the order.” Knopick v. Boyle, 189 A.3d 432,

436 (Pa. Super. 2018) (internal citation omitted).

Generally, an appellate court may only review final orders. See In re

Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012). A final

order is one that disposes of all the parties and all the claims or is entered as

a final order pursuant to the trial court’s determination under Rule 341(c).

See Pa.R.A.P. 341(b). “Ordinarily, an order permitting intervention is

interlocutory and not appealable.” In re Manley, 336, 451 A.2d 557, 559

n.5 (Pa. Super. 1982).

However, an appeal may also be taken from “an order that is made final

or appealable by statute or general rule, even though the order does not

dispose of all claims and of all parties.” Pa.R.A.P. 311(a)(8). One such

exception to the non-appealability of non-final orders – and the only exception

invoked by DHS in this case – is that under Pa.R.A.P. 313, an appeal may be

taken as of right if the collateral order doctrine applies. The rule defines a

collateral order as:

separable from and collateral to the main cause of action where

the right involved is too important to be denied review and the

question presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.

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Pa.R.A.P. 313(b).

This Court has explained further that the definition of a collateral order

contains three prongs:

(1) [the order 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.

In re J.S.C., 851 A.2d 189, 191 (Pa. Super. 2004). “All three factors set forth

in Rule 313 must be met to qualify as a collateral order for appellate

purposes.” Beltran v. Piersody, 748 A.2d 715, 718 (Pa. Super. 2000).

B.

In this case, even assuming that the first and second prongs of Rule 313

are met, DHS cannot satisfy the third prong of the collateral order doctrine –

that the requested remedy sought by DHS would be irreparably lost if review

of the order is postponed.

From our review of the record and the parties’ representations at oral

argument before this Court, it appears that the trial court’s order merely

allowed T.M. to participate in a hearing that would determine his legal status

and standing at subsequent dependency proceedings regarding J.J.J.3 The

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3 At a dependency hearing, “[o]nly a ‘party’ has the right to participate, to be

heard on his or her own behalf, to introduce evidence, and/or to cross-

examine witnesses.” In re L.C. II, 900 A.2d 378, 381 (Pa. Super. 2006)

(citing 42 Pa.C.S. § 6338(a)). The groups of persons recognized as parties to

such proceedings are “(1) the parents of the juvenile whose dependency

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trial court’s order did not actually resolve the standing issue one way or the

other, as no ruling was made as to T.M.’s status as either a presumptive parent

or a foster parent. See Hearing Transcript, 7/27/2020, at pp. 21-22.

Since T.M.’s standing to participate in the dependency proceeding was

only going to be determined after the ordered evidentiary hearing had taken

place, immediate review is not needed to ensure DHS’s ability to challenge

such a ruling, and the prejudice prong of Rule 313 has not been met. See

Beltran, 748 A.2d at 719 (quashing appeal for lack of jurisdiction because

denial of review as to order granting intervention at a proceeding would not

result in a right being irreparably lost).

The central case that DHS relies on to establish that the order on review

is collateral, In re J.S., 980 A.2d 117, 121 (Pa. Super. 2009), does not apply.

There, this Court held that an order granting foster parents’ petition to

intervene in dependency proceedings may be collateral and immediately

reviewable as of right prior to the final judgment. This was held to be

prejudicial because without immediate review, the appellant would have had

no way to appeal the ruling.

As discussed above, the present case is at a different procedural stage.

The order now being challenged did not confer standing on T.M. to intervene

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status is at issue; (2) the legal custodian of the juvenile whose dependency

status is at issue, or (3) the person whose care and control of the juvenile is

in question.” Id.

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as a party in the dependency proceedings. Rather, the order before us merely

allowed T.M. to intervene in an evidentiary hearing for the limited purpose of

proving that he is a presumptive parent. The facts pertinent to T.M’s status

as a presumptive parent remain in dispute.4

Because this appeal arises from an order granting intervention as to an

evidentiary hearing on standing (and not a ruling on standing as in J.S.), the

collateral order doctrine is not satisfied, the trial court’s order is not

immediately appealable, and we lack jurisdiction.

Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/21

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4 Both T.M. and DHS have given conflicting evidence as to whether T.M. is a

presumptive parent entitled to standing as a party, and the trial court has not

yet ruled on that issue in the first instance. The lack of development regarding

the underlying facts further makes it improper for this Court to resolve T.M.’s

standing as a matter of law. See Commonwealth v. Meals, 912 A.2d 213,

223 (Pa. 2006) (“The task of the Superior Court is one of review, and not of

weighing and assessing evidence in the first instance.”).

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