In re NB

• Decision Date: 07 February 2003
• Citation: 817 A.2d 530
• Parties: In re N.B. Appeal of P.B., Appellant.
• Court: Pennsylvania Superior Court

817 A.2d 530

In re N.B.

Appeal of P.B., Appellant.

Superior Court of Pennsylvania.

Argued July 23, 2002.

Filed February 7, 2003.

Peter D. Schneider, Philadelphia, for appellant.

Before STEVENS, KLEIN, and TAMILIA, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the April 4, 2001 order entered by the Court of Common Pleas of Philadelphia County, which denied Appellant's ("Mother") motion to change counsel at an adjudicatory hearing held pursuant to a dependency petition filed under the Juvenile Act. For the following reasons, we quash.

¶ 2 The undisputed facts of the case have been aptly summarized by the lower court as follows:

Mother, father and child became known to the [Philadelphia] Department of Human Services (hereinafter DHS) on or about March 13, 2001, when St. Christopher's Hospital kept the child after a routine medical appointment. The child had lost 10% of its body weight and had been diagnosed with a life threatening disease. The child's brain had also shrunk, resulting in the child being developmentally delayed. Upon the parents' refusal to sign a Voluntary Placement Agreement, DHS submitted a Request for a Restraining Order on March 22, 2001, and a hearing was scheduled on March 23, 2001, at 9:00 a.m.

[At the March 23rd hearing, the lower court] ordered a temporary commitment of the child to DHS [pursuant to the Juvenile Act, 42 Pa.C.S. § 6332]. At that time the child remained hospitalized at St. Christopher's. Liberal visitation was arranged between the parents and the child. [The lower court] ordered DHS to place the child in an appropriate medical foster home; to refer the family for intensive services through Family Preservation and to refer mother and father for education regarding the child's illness and medical needs. [The lower court] was informed on March 23, 2001 that mother and father lived at the same residence and the goal established for the family was to reunify the child with both parents. At that time, [pursuant to 42 Pa.C.S.A. § 6337, the lower court] appointed counsel to represent mother and father.

* * * * * *

At an adjudicatory hearing on April 4, 2001, counsel from Community Legal Services (hereinafter CLS) informed the court that mother had contacted their office prior to March 23, 2001, seeking representation in the matter of N.B. [The lower court] appointed counsel to represent mother on March 23, 2001 [at the previous hearing, and at] that time, mother never mentioned having counsel nor sought representation from CLS. At the time of the April 4, 2001 hearing, [the lower court] concluded once again, that the interests of N.B.'s parents were identical. As a result, counsel from CLS was prohibited from entering her appearance on behalf of [Mother.] [The lower court] concluded that it did not need two attorneys to represent the parents who continued to reside in the same home and who were trying to get the same child returned to live with them. Counsel for CLS readily admitted that the interests of the parents were identical, however, she argued before [the lower court] that "you never know what's going to happen down the road." (N.T. 4/4/2001 p. 6).

[The lower court informed] all parties that in the event the parents' interests diverged, [it] would appoint each parent new and separate counsel, as is required by law. (N.T. 4/4/01 pp. 6-7).... As a further matter, [the lower court] offered CLS the opportunity to represent both parents; an offer which CLS declined based on its own internal agency policy. (N.T. 4/4/01 pp. 7-9). [Thereafter, appointed counsel continued to represent both Mother and Father].

Lower Court's Pa.R.A.P.1925(a) Opinion, 11/30/01 at 3, 5-6.

¶ 3 On April 16, 2001, Mother filed a motion for reconsideration of the lower court's order prohibiting CLS counsel from entering her appearance, but the lower court denied the motion by order of May 2, 2001. On May 4, 2001, Mother filed the present appeal challenging the order denying her right to representation by counsel of her own choosing.

¶ 4 Mother raises the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION AND DENY THE MOTHER DUE PROCESS OF LAW WHEN, IN DEPENDENCY PROCEEDINGS CONCERNING HER DAUGHTER, IT DENIED HER THE RIGHT TO BE REPRESENTED BY RETAINED COUNSEL OF HER CHOOSING AND INSTEAD REQUIRED HER TO BE REPRESENTED BY COURT-APPOINTED COUNSEL, WHO HAD ALSO BEEN APPOINTED TO REPRESENT THE CHILD'S FATHER[?]

Brief of Appellant at 4.

¶ 5 Initially, we sua sponte raise the issue of whether an order that denies a parent the power to discharge court-appointed counsel in favor of privately retained counsel is immediately appealable to this Court. See Duttry v. Talkish, 394 Pa.Super. 382, 576 A.2d 53, 58 (1990)

(it is the right and obligation of an appellate court to raise the issue of jurisdiction even where parties do not). The question of the appealability of an order goes directly to the jurisdiction of the Court asked to review the order. Pace v. Thomas Jefferson Univ. Hosp., 717 A.2d 539, 540 (Pa.Super.1998). We address the appealability of the April 4, 2001 order denying Mother's request to change counsel because the order is not, on its face, a final order, in that it did not contain a contemporaneous determination of dependency or a disposition of the child. See In re C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979) (dependency orders are appealable when there has been a determination of dependency and a disposition of the child has been ordered).

¶ 6 Under Pennsylvania law, an appeal may be taken from: (1) a final order or an order certified by the trial court as a final order (Pa.R.A.P.341); (2) an interlocutory order as of right (Pa.R.A.P.311); (3) an interlocutory order by permission (Pa. R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); (4) or a collateral order (Pa.R.A.P.313). Beltran v. Piersody, 748 A.2d 715 (Pa.Super.2000). A final order is any order that disposes of all claims and all parties, is expressly defined as a final order by statute, or is entered as a final order pursuant to the trial court's determination. Pa. R.A.P. 341(b)(1)-(3).

¶ 7 Here, there are no grounds for this Court to consider the order on appeal as final under Pa.R.A.P. 341. The order appealed from does not dispose of all claims or all parties involved, is not expressly defined as a final order by statute, and was not entered as a final order. Moreover, neither Rule 311 nor 312 relates to the present matter.

¶ 8 Nor may we find the order appealable under Rule 313, which provides an exception to the rule of finality for certain interlocutory orders that qualify for an exception applied to collateral orders.¹ Specifically, under this exception, an order is immediately 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. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (setting forth the three prong test for whether an order is considered final and appealable)).²

¶ 9 This Court has applied the Cohen criteria to cases, both civil and criminal, involving orders denying counsel. In Duttry, supra, this Court held that an order denying an indigent's request for appointment of counsel in an ongoing custody/visitation case was interlocutory and failed to satisfy exceptions carved out in Cohen, et al. In Commonwealth v. Johnson, 550 Pa. 298, 705 A.2d 830 (1998), the Pennsylvania Supreme Court held that an order disqualifying a criminal defendant's choice of defense counsel is interlocutory and is not immediately appealable. Consistent with the Cohen exception, the Supreme Court in Johnson recognized the entitlement of criminal defendants to an immediate appeal depends on whether such an appeal is "necessary to ensure that they would not be deprived of a constitutional right." Johnson, 550 Pa. at 303, 705 A.2d at 833.

¶ 10 To illustrate when an immediate appeal would be "necessary," the Court contrasted the case of an order denying a motion to dismiss based upon double jeopardy absent a trial court finding that the motion is frivolous with the case of an order denying a motion to suppress evidence. Both motions seek to vindicate constitutional rights allegedly violated, but only in the double jeopardy case would the constitutional right (to be free of a second prosecution) be lost by postponing appeal to post-judgment. The suppression motion, on the other hand, may be effectively reviewed post-judgment, and if the ruling was incorrect, the defendant may be granted a new trial wherein the illegally-obtained evidence is suppressed. The Court then concluded:

Like the denial of a suppression motion, an order disqualifying counsel is reviewable after judgment of sentence. If a judgment is obtained and it is determined on appeal that the trial court improperly removed counsel, the right to counsel of choice is not lost. There will be a new trial and the defendant will have his counsel of choice. This is unlike a double jeopardy claim where if the trial goes forward and the court wrongly denied the motion, the right is lost.

Furthermore, the right to counsel of choice is not absolute.

Johnson, 550 Pa. at 305-306, 705 A.2d at 834. (emphasis added).

¶ 11 Accordingly, the Court in Johnson held that an order removing one's counsel of choice from representation is interlocutory and not immediately appealable in the criminal context. Where, as here, appellants' interests are not clearly any more essential than the interests in liberty that defendants in criminal trials hold, we see no reason to refrain from applying the Cohen criteria to the case at bar.

¶ 12 It is well-settled that there exists in parents a right to counsel in dependency cases, which right...