In the Int. of: K.C., a Minor Appeal of: D.E.
20 MDA 2017
| Pa. Super. Ct. | Oct 10, 2017Background
- Father (D.E.) and Mother had three children (2007, 2010, 2016). Allegations of physical abuse of the middle child (W.E.) prompted emergency removals and dependency proceedings.
- On 11/30/2016 the juvenile court suspended all visitation between Father and the three children, citing an indicated abuse finding, criminal charges, and the GAL’s recommendations. Father timely appealed that order.
- The trial court later entered several superseding orders in 2017: a February 2 order permitting limited/therapeutic visits, a February 13 order allowing supervised visits, a February 22 suspension, a March 17 order restoring some visits, and August 1 orders conditioning post-release supervised visits. Father was incarcerated March–August 2017 after pleading guilty to simple assault of a child.
- Father’s counsel told the trial court on 2/13/17 that resumption of visits would moot the appeal; subsequent orders and events did change visitation rights.
- The Agency filed a petition to terminate Father’s parental rights after his release. Father argued exceptions to mootness to preserve appellate review of the November 30 orders.
Issues
| Issue | Father’s Argument | Agency/Trial Court Argument | Held |
|---|---|---|---|
| Whether the 11/30/16 order denying all visitation complied with the “grave threat” standard (In re Rhine) | Father: Court lacked competent evidence (no expert testimony) to find a grave threat; full denial of visitation was improper and Rhine requires clear support | Court/Agency: Subsequent hearings and factual developments supported restrictions; trial court acted to protect children | Dismissed as moot — the 11/30/16 orders were superseded by later orders and changed facts; appellate review of those orders is no longer appropriate |
| Whether later orders (e.g., Feb. 2, 2017) conditioning visits on therapist recommendations are reviewable in this appeal | Father: Feb. 2 order merely amended Nov. 30 order and shares same defects; merits should be reviewed now | Agency/Trial Court: Feb. 2 order did not amend the appealed orders and was later superseded; appellate record lacks the later evidence | Not addressed on the merits — Court held Feb. 2 issues are not before this appeal and were superseded |
| Whether exceptions to mootness apply (capable of repetition/evade review, public importance, detriment) | Father: Visitation restrictions can recur and evade review; parental rights are fundamental; termination petition harms him | Agency: Subsequent orders altered visitation; later proceedings address termination; no lasting controversy limited to Nov. 30 order | Exceptions do not apply; appeal dismissed as moot |
| Whether this collateral-order appeal was properly filed | Father: Sought immediate review of visitation suspension | Court: A visitation-suspension can be a collateral order and was appealable when filed | Court: Collateral-order jurisdiction existed initially, but appeal became moot due to intervening events |
Key Cases Cited
- In re J.S.C., 851 A.2d 189 (Pa. Super. 2004) (visitation-suspension can be appealable as a collateral order)
- In re Rhine, 456 A.2d 608 (Pa. Super. 1983) (articulates standard for denying/reducing visitation when reunification is contemplated — "grave threat")
- In re L.T., 158 A.3d 1266 (Pa. Super. 2017) (contrast between "grave threat" standard for reunification and best-interest standard for alternatives)
- Commonwealth v. Cromwell Twp., 32 A.3d 639 (Pa. 2011) (mootness exceptions: capable of repetition yet evading review, public importance, detriment)
- In re Cain, 590 A.2d 291 (Pa. 1991) (mootness can result from intervening factual changes)
- In re R.P., 956 A.2d 449 (Pa. Super. 2008) (Juvenile Act gives dependency courts broad discretion to modify orders to protect children)
- In re Baby Boy H., 585 A.2d 1054 (Pa. Super. 1991) (a parent’s lack of visitation caused by external restriction cannot be sole basis to terminate parental rights)