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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L.D., A MINOR

APPEAL OF: L.R., MOTHER : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 43 MDA 2018 Appeal from the Decree Entered October 27, 2017 In the Court of Common Pleas of Luzerne County Orphans' Court at N o(s): A

- 8600

***** IN THE INTEREST OF: A.G.R., A MINOR

APPEAL OF: L.R., MOTHER : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 48 MDA 2018 Appeal from the Decree Entered October 27, 2017 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A

- 8601
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 9, 2018
L.R. (Mother) appeals from the trial court’s decree s involuntarily
terminating her parental rights to her minor children, A.L.D. (born 10/2013 )J

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- and A.G.R. (born 9/2011 ) (collectively , Children)

. After careful consideration,

we quash the appeals

. 1
On August 8, 2017, Luzerne County Children and Youth (CYS) filed
petitions to terminate Mother’s parental rights to Children. After a termination
hearing held on October 25, 2017, the trial court entere d decree s two days

later involuntarily terminating Mother’s parental rights to Children under 23
Pa.C.S. § 2511(a)(9)(ii)

. 2 On December 2 7 , 2017 , Mother filed notice s of
appeal from th ose termination decree s , with a concurrent Pa.R.A.P. 1925(b)

concise statement of matters complained of on appeal raising issues related
solely to the termination of her parental rights . On that same date, Mother
filed a motion requesting leave to file nunc pro tunc appeal s . In her motion,
counsel indicated, in relevant p art:

 Natural mother’s rights were terminated pursuant to Title 23, Se c tion 2511(a)(9) of the Pennsylvania Code.

 An appeal to the Superior Court of Pennsylvania would have been due November 26 th , 2017.

_________________ __________ ______ ____ _______

1 We have consolidated these appeals sua sponte

. See Pa.R.A.P. 513.

2 See 23 Pa.C.S. § 2511(a)(9)(ii) (rights of parent may be terminated where parent has been convicted of felony of aggravated assault, in which victim was child of parent). In June 2016, Mother pled guilty to simple assault, 18 Pa.C.S. § 2701, for physical injuries to A.G.R. In March 2017, Mother was found guilty of aggravated assault, simple assault, endangering the welfare of children, 18 Pa.C.S. § 4302, and recklessly endangering another person (REAP), 18 Pa.C.S. § 2705, for physical injuries she caused to A.L.D. She was sentenced to 10

- 20 years ’ imprisonment for the aggravated and si mple assault charges, 18 month s in prison for child endangerment, 1

- 2 months’ incarceration for REAP, plus 5 years of probation.J

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-  The courts were closed from November 23, until the 27 th of 2017, due to the Thanksgiving Holiday.

 This puts the appeal date at November 27 th

.
 On November 28, 2017, Daniel Hunter attempted to file appeals with respect to both termination [decrees]

.
 In his discretion, Attorney Hunter decided that it would be bes t to simply file this motion requesting leave to file nunc pro tunc

. Motion for Leave to File Nunc Pro Tunc , 12/27/17, at ¶¶ 6

- 11. On December
28, 2017, the trial court denied Mother’s motion for leave to file nunc pro tunc
appeal s to our Court. 3
On ap peal, Mother presents the following issue for our consideration: Whether the trial court committed reversible error by involuntarily terminating the natural mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(9)(ii), where such determinations wer e not supported by clear and convincing evidence establishing the grounds for such, when the sentence of the Natural Mother was, at the time, under the review and consideration by an appellate court, and further, that a petition under the Post Conviction R elief Act of Pennsylvania had not been addressed by any court. Appellant’s Brief, at 4. Before addressing the merits of Mother’s appeal, we must first raise the

issue of whether her notice s of appeal w ere timely filed. We must make this

_________________ __________ ______ ____ _______

3 On March 20, 2018 , our Court issued an order directing the trial court to hold a hearing to determine whether counsel had abandoned Mother on appeal and t o take any necessary action to protect her appeal rights. The trial court complied, found that counsel had not in fact abandoned his client, and ordered counsel to file a docketing statement with our Court on or before April 13, 2018, and to submit his br ief on or before April 30, 2018. On August 21, 2018, the trial court held another hearing noting that counsel had been late with the filing of his docketing statement and brief, but still concluding that counsel had not abandoned his client. N.T. Hearing , 8/21/18, at 6.J

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- inquiry because our Court is without juris diction to excuse a failure to file a timely notice of appeal. Valley Forge Center Assoc. v. Rib
- It/K.P., Inc. , 693 A.2d 242 (Pa. Super. 1997). 4
Pursuant to Pennsylvania Rule of Appellate P rocedure 903, a notice of
appeal must b e filed within 30 days after the entry of the order from which
the appeal is taken. Pa.R.A.P. 903 (a)

. The 30

- day appeal period must be
strictly construed. Valley Forge Center , supra

. U nder Pennsylvania Rule of Appellate Procedure 108(b) , the date of en try of an order i s 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 Pa.R.A.P. 108(b).
An order is not appealable until it is entered on the docket with the r equired
notation that appropriate notice has been given. In re L.M. , 923 A.2d 505
(Pa. Super. 2007). Where there is no indication on the docket that Rule 236(b) notice has been given, then the appeal period has not started to run. Id. This
is a bright

- line rule, to be interpreted strictly. Id.
Here, the docket clearly indicates that R ule 236 (b) notice was given to

Mother , regarding the entry of the termination decrees , on October 27, 2017

. As counsel acknowledges, in order for Mother’s a ppeal s to have been timely

_________________ __________ ______ ____ _______

4 We note that Mother has not appealed from the order denying her motion for leave to file a nunc pro tunc appeal. Rather, her notice s of appeal are from the decrees terminating her appellate rights ; her appellate issues and arguments s olely concern termination.J

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- filed , they must have been filed with the trial court by November 27, 2017. 5

C ounsel admits he did not “attempt [] to file appeals with respect to both

termination [decrees] ” until November 28, 2017, 6 when they w ould have

a lready been one day l ate under Rule 903

. See N.T. Nunc Pro Tunc Hearing,
12/22/18, at 3. Moreover, “in his discretion,” counsel decided that it “would be best to simply file [a motion seeking nunc pro tunc appeal rights] on December 27, 2017 , ” one month after the appeal peri od expired . Motion for

Leave to File Nunc Pro Tunc , 12/27/17, at 1

- 2. The trial court denied the

motion. 7 Unfortunately for counsel , this does not cure the untimeliness of his
appeal s

. 8 Because an untimely appeal divests this Court of jurisdiction, we

_________________ __________ ______ ____ _______

5 While November 26, 2017 , was technically the 30 th day for purposes of Rule 903, the 26 th fell on a Sunday. Thus, the 30 th day, for purposes of computation of the appeal period, fell on Monday, November 27, 2017

. See Pa.R.C.P . 106 (whenever last day of any time period computed under Rule 903 falls on Saturday , Sun day, or any legal holiday, such day shall be omitted from computation).

6 Counsel never actually filed the notices of appeal on November 28 th

.

7 Cleverly, counsel styled his notice s of appeal as “notice s of appeal nunc pro tunc .” Simply naming the filing s as nunc pro tunc do not make them o perate as such.

8 Rather than delay the case with a nunc pro tunc motion, counsel should have been mindful of the fact that, as a termination case, time is of the essence due to the Children’s need for permanency. Moreover, counsel’s explanation that he filed the appeal s late because he was “booked up in private matters that whole week,” hardly meets the requirements for nunc pro tunc relief , which is granted primarily only where the right to appeal has been lost due to certain extraordinary circumstances or a breakdown in the court process

. See Fischer v. UPMMC Nw. , 34 A.3d 115 (Pa. Super. 2011); see also Criss v. Wise , 781 A.2d 1156, 1159 (Pa. 2001) (Supreme Court h eldJ

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- must quash the appeal s

. Cheathem v. Temple University Hosp. , 743 A.2d
518, 521 (Pa. Super. 19 99 ).
Appeal s quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1 1/9/2018

_________________ __________ ______ ____ _______ that nunc pro tunc relief granted where appellant proves: (1) notice of appeal was filed late as result of non - negligent circumstances, either as they relate to appellant or appellant's counsel; (2) appellant filed notice of appeal shortly after expiration date; and (3) appellee was not prejudiced by delay).