In re Interest of N.J.

• Decision Date: 09 April 2021
• Docket Number: No. 1722 EDA 2020,J-A05039-21,1722 EDA 2020
• Parties: IN THE INTEREST OF: N.J., A MINOR APPEAL OF: B.M.P., MATERNAL AUNT
• Court: Pennsylvania Superior Court

IN THE INTEREST OF: N.J., A MINOR

APPEAL OF: B.M.P., MATERNAL AUNT

J-A05039-21

No. 1722 EDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 9, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 12, 2020

In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-1000097-2016

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.^*

MEMORANDUM BY STEVENS, P.J.E.:

Appellant, B.P. ("Maternal Aunt"), appeals the order entered on August 12, 2020, in the Philadelphia County Court of Common Pleas, denying her motion to appeal nunc pro tunc the dependency court's July 1, 2019, Dependency Court Protective Order. After review, we affirm the dependency court's order.

Maternal Aunt's niece, N.J., born in October 2015 ("Child"), was adjudicated dependent on July 22, 2016. Subsequently, Child's permanencygoal was changed to adoption and Mother's and Father's parental rights were terminated on September 19, 2018.¹

On July 1, 2019, Maternal Aunt, through counsel, filed a Motion to Intervene and sought sibling visitation as she has custody of Child's siblings.² In an order entered that same day, the dependency court entered a dependency court protective order in favor of Child and her resource parent. Specifically, the court ordered Maternal Aunt to "refrain from any contact directly or indirectly with the above-named person(s)/witness(es) to be protected (i.e., no telephone contact, no verbal contact, no third party contact, no eye contact, no written contact and no physical contact) and to refrain from any and all intimidation personally [or] by family and/or friends." Dependency Court Protective Order, 7/1/19. This protective order was valid until July 1, 2020. Id.

On August 11, 2020, Maternal Aunt filed her Motion to File Nunc Pro Tunc, pro se, seeking to appeal the dependency court's July 1, 2019, protective order. Maternal Aunt averred she was not given notice of the July 1, 2019, hearing and did not receive the order until after the appeal periodexpired. Motion for Nunc Pro Tunc, 8/11/20. By order dated and entered August 12, 2020, the court denied Maternal Aunt's motion.

Thereafter, on September 10, 2020, Maternal Aunt filed a pro se notice of appeal, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The dependency court filed a Rule 1925(a) Opinion on November 4, 2020.³, ⁴ On appeal, Maternal Aunt raises the following issues for our review:

1. Did the court err and violate the basic tenets of due process by not providing [Maternal Aunt] notice of the hearing, the opportunity to prepare a proper defense, to secure legal representation and the opportunity to be heard?

2. Did the Judge err by denying [Maternal Aunt] the right to a relationship with her biological relative who filed an adoption petition against the child's best interest?

Maternal Aunt's Brief at 2 (unnumbered).

Prior to reaching the merits of Maternal Aunt's claims on appeal, we examine the timeliness of Maternal Aunt's appeal and whether we appropriately have jurisdiction. On this topic, the dependency court stated,

On September 10, 2020, Maternal Aunt filed a Pro Se appeal for an Order denying a Nunc Pro Tunc Motion relating to an order entered on July 1, 2019. . . . The underlying appeal filed by Maternal Aunt is untimely and should be quashed. In the instant matter, the July 1, 2019 Order was entered on the trial court docket the same date. Thus, the appeal was required to be filed within thirty (30) days of July 1, 2019. Since the Maternal Aunt filed the appeal on September 10, 2020[,] the Superior Court is divested of jurisdiction as to the July 1, 2019 Order and the appeal must be quashed.

Dependency Court Opinion, 11/4/20, at 1 (citations omitted).

Pursuant to Pennsylvania Rule of Appellate Procedure 903, "the notice of appeal required by Rule 902 . . . shall be filed within 30 days after the entryof the order from which the appeal is taken." Pa.R.A.P. 903(a); see also Pa.R.A.P. 108(b) ("The date of entry of an order . . . shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by [Pa.R.C.P.] 236(b)."); see also Valley Forge Center Assoc. v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa.Super. 1997) (this Court is without jurisdiction to excuse the failure to file a timely notice of appeal as the 30-day period for appeal must be strictly construed; untimely appeal divests this Court of jurisdiction).

Further, it is well-settled that, "[a]n appeal lies only from a final order, unless permitted by rule or statute." Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013); see also In the Interest of J.M., 219 A.3d 645, 650 (Pa.Super. 2019). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b). In the context of dependency, this Court has further stated,

". . .[D]ue to dependency's unique nature, the fact that further proceedings are contemplated is not dispositive of the finality of the order. In the Interest of J.L., 216 A.3d 233, 2019 WL 3295100, at 3 n.1 (Pa.Super. 2019). In the dependency context, the court "must examine the practical consequences of the order to determine if the party challenging it has effectively been put out of court." In re Interest of M.B., 388 Pa.Super. 381, 565 A.2d 804, 806 (1989).

J.M., 219 A.3d at 652.

Instantly, we decline to quash Maternal Aunt's appeal as untimely. We find that Maternal Aunt appealed the August 12, 2020, order denying nunc pro tunc relief in a timely manner. An appeal of the order dated and enteredAugust 12, 2020, was required to be filed by September 11, 2020. See Pa.R.A.P. 903(a); see also Pa.R.A.P. 903 Note (Pa.R.A.P. 107 incorporates by reference the rules of the Statute Construction Act of 1972, 1 Pa.C.S. 1901-1991. 1 Pa.C.S. 1908(2) provides for the omission of the last day on time which falls on a Saturday, Sunday, or legal holiday). Hence, Maternal Aunt filed a timely notice of appeal on September 10, 2020. Moreover, as the order denied nunc pro tunc relief, we further determine that it was a final, appealable order. Notwithstanding, we find the issues Maternal Aunt has raised on appeal relate to the protective order of July 1, 2019, and are waived.

Maternal Aunt initially asserts her due process rights with regard to the July 1, 2019, order have been violated due to her lack of notice of the hearing and her inability to secure counsel, prepare a defense, and be heard. Maternal Aunt's Brief at 7-9 (unnumbered). Maternal Aunt further maintains that the dependency court denied the constitutional right to a secure and stable familyrelationship.⁵, ⁶ Id. at 9-14 (unnumbered). Maternal Aunt, however, failed to appeal the July 1, 2019 order.⁷ Such order was a final, appealable order; thus, Maternal Aunt's issues on appeal as they relate to that order are waived.

Moreover, Maternal Aunt waived any challenge relating to the denial of nunc pro tunc relief as she failed to raise and address this issue in her Rule 1925(b) statement, in the Statement of Questions Involved section of her appellate brief, or the Argument portion thereof.⁸ See Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to preserve issues by raising them both in the concise statement of errors complained of on appeal and statement of questions involved portion of the brief on appeal results in a waiver of those issues); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364 (2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived."); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017).

In addition, as the underlying July 1, 2019, protective order expired July 1, 2020, the matter is moot.

As a general rule,

an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In that case, an opinion of this Court is rendered advisory in nature. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect.

In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002).

The dependency court reasoned, "By way of further response, the underlying Order was valid until July 1, 2020. Consequently, the matter is now moot." Dependency Court Opinion, 11/4/20, at 1. We agree that because the July 1, 2019, protective order expired July 1, 2020, there is no longer a controversy and the matter is moot.

Nevertheless, this Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court. Id. However, as none of the enumerated exceptions to the mootness doctrine apply herein, we conclude that MaternalAunt's issues are moot and not subject to exception.⁹ Accordingly, there is no controversy and we could not address the merits of Maternal Aunt's claim.¹⁰

For the foregoing reasons we affirm the order of the dependency court.

Order affirmed.

Judgment Entered.

/s/_________

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/21

*. Former Justice specially assigned to the Superior Court.

1. Both Father and Mother separately appealed such determinations which panels of this Court affirmed. See Superior Court Docket Nos. 3044-3045 EDA 2018, and 3086 & 3093 EDA...