J-A21039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: B.P., MATERNAL AUNT

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1046 EDA 2021

Appeal from the Order Entered April 16, 2021

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

No(s): CP-51-DP-1000097-2016

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2021

B.P. (“Maternal Aunt”) appeals pro se from the order entered in the 

Court of Common Pleas of Philadelphia County Juvenile Division denying her 

motion to appeal nunc pro tunc the court’s prior protective order of July 1, 

2019, which prohibited her and her sisters from attending visitations between

their minor niece (“Child”) and Child’s siblings and from contacting in any 

manner Child or Child’s resource parent/caregiver. After careful review, we 

affirm.

In this Court’s recent memorandum decision Interest of N.J., 1722 

EDA 2020 (Pa.Super. filed April 9, 2021), in which Maternal Aunt’s sister B.P.

(“Sister B.P.”) challenged the same underlying order of July 1, 2019 presently 

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* Former Justice specially assigned to the Superior Court.
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at issue, we set forth the following facts and procedural history that are

equally pertinent to the matter now before this panel:

[Maternal Aunt’s and Sister B.P.’s] niece, N.J., born in October 

2015 (“Child”), was adjudicated dependent on July 22, 2016. 

Subsequently, Child's permanency goal was changed to adoption 

and Mother's and Father's parental rights were terminated on 

September 19, 2018.[Lower Court Footnote (“LC”)] 1

[LC]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 2018.

On July 1, 2019, [Sister B.P.], through counsel, filed a Motion to 

Intervene and sought sibling visitation as she has custody of 

Child's siblings.[LC]2In 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 [Sister B.P., Maternal Aunt, and their sister D.P.] to 

“refrain from any contact directly or indirectly with the abovenamed 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.[1]

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1 Judicial review addressed Maternal Aunt’s and her two sisters’ three-yearlong history of filing serial unfounded reports of abuse and neglect occurring 

in the resource parent’s home. The dependency court held a permanency 

review hearing at which it made a finding of fact that such reports were both 

false and, consequently, injurious to the stability of Child’s placement, as they 

unfairly endangered resource parent’s ability to retain custody of the children 

entrusted to their care.

The court, therefore, entered its dependency protective Order of July 1, 2019, 

directing Maternal Aunt and her sisters B.P. and D.P. to “stay away” from Child 

(Footnote Continued Next Page)
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[LC]2 This motion was denied on August 19, 2020. See

Permanency Review Order, 8/19/20. 

[Over one year later,] [o]n August 11, 2020, [Sister B.P.] filed her 

Motion to File Nunc Pro Tunc, pro se, seeking to appeal the 

dependency court's July 1, 2019, protective order. [Sister B.P.] 

averred she was not given notice of the July 1, 2019, hearing and 

did not receive the order until after the appeal period expired. 

Motion for Nunc Pro Tunc, 8/11/20. By order dated and entered 

August 12, 2020, the court denied [Sister B.P.’s] motion.

Thereafter, on September 10, 2020, [Sister B.P.] 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.

Int. of N.J., 177 EDA 2020, at *1.

Acknowledging that Sister B.P. timely appealed from the lower court’s 

final and appealable order of August 12, 2020 denying nunc pro tunc relief, 

we observed that the issues she raised on appeal related not to the denial of 

nunc pro tunc relief but, instead, to the underlying protective order of July 1, 

2019. Specifically, she claimed her due process rights of notice and an 

opportunity to be heard were violated when she received no notice of the 

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and all others in Child’s household, as their behavior had a destabilizing effect 

on the household. The order also contained a visitation order calling for Child 

to resume supervised visitation with her siblings, over whom Sister B.P.

possessed custody, but without the attendance of Maternal Aunt and her 

sisters. Finally, the order mandated that the dependency court judge be 

notified directly if any hotline calls were received regarding Child and the 

resource parent.
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hearing that preceded the July 1, 2019 protective order, but we noted that 

she never raised this issue in an appeal to the protective order. We, therefore, 

determined Sister B.P. had waived her issues directly challenging the 

protective order of July 1, 2019. Id. at *2-3. 

In addition, as the July 1, 2019 protective order had expired one year 

later, on July 1, 2020, we found Sister B.P.’s issues moot and not subject to 

the recognized exceptions to the mootness doctrine.2 Id. at *4. 

Finally, even assuming that Sister B.P. had properly raised and 

preserved her claims challenging the denial of nunc pro tunc relief and we had 

found the underlying matter was not moot, we still concluded that there would 

be no basis upon which to grant her nunc pro tunc relief. 

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2 Specifically, we noted:

While [Sister B.P.] suggests that this case falls within an exception 

“as a case that has important public policy considerations and yet 

may escape review,” pointing to the temporary nature of stay 

away orders that often evade review before expiration, we 

disagree. [Sister B.P.’s] Brief at 7 (unnumbered). The July 1, 

2019, protective order was valid for one year and, as indicated 

above, [Sister B.P.] had counsel involved at or around the time of 

its issuance. Also, other family members were involved with 

litigation and [Sister B.P.] suggests she had access to record 

documents. Cf. see Snyder v. Snyder, 629 A.2d 977, 980 n.1 

(Pa.Super. 1993) (reviewing an expired six-month PFA order on 

the basis that it fell “into the well-recognized exception to the 

mootness doctrine of a case which has important public policy 

considerations and yet may escape review.”).

Int. of N.J., 253 A.3d at *4 n.9.
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Specifically, in this regard, we noted that on July 1, 2019, she was 

represented by counsel who, on that date, filed a Motion to Intervene on her 

behalf and, subsequently in August, 2019, represented her in a related 

hearing. The record further demonstrated that other family members were 

engaged at the time in parallel litigation regarding Child, and that the family 

members were sharing documentation from these proceedings. Given this 

record, we concluded that Sister B.P.’s request for nunc pro tunc relief, filed 

over one year after the order in question, was not filed within a reasonable 

period of time and was, therefore, properly denied on the merits. Id. at *4 

n. 10.

In the case sub judice, Maternal Aunt filed with the dependency court 

on March 23, 2021 a motion to appeal nunc pro tunc the dependency court’s 

July 1, 2019 visitation order that precluded her from having any contact with 

Child. In this motion, she claimed that she first became aware of the order 

on December 29, 2020, but she offered no explanation for either her delayed 

awareness or her subsequent delay in filing her motion seeking a nunc pro 

tunc appeal. Maternal Aunt also requested that the lower court grant her

request for visitation with Child and clarify the July 1, 2019 order intended 

that she absent herself only from sibling visitations, as she maintained the 

court inadvertently omitted the word “sibling” from its order. 

On April 16, 2021, the dependency court denied Maternal Aunt’s motion 

to appeal nunc pro tunc, finding she did not establish a basis for such relief

because she failed to explain the untimeliness of her appeal from the lower 
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court’s July 1, 2019 order. Dependency Court Order and Opinion, 4/16/21 p. 

1-2.

This timely appeal followed. In Maternal Aunt’s court-ordered Rule

1925(b) statement, she set forth three claims of “error” asserting, 

respectively, that the visitation order’s exclusion of the word “sibling” when 

referring to visitation left it ambiguous, the order worked an unconstitutional 

deprivation of rights to a secure a stable family relationship, and the order 

reflected the court’s bias against her. Concise Statement, 5/15/21. The 

statement noted Maternal Aunt sought resumption of visits with Child.

In the lower court’s responsive Pa.R.A.P. 1925(a) Opinion of June 14, 

2021, it explained that the same reasons of untimeliness and mootness that 

required denial of Sister B.P.’s previous nunc pro tunc motion applied to 

Maternal Aunt’s present motion. The court also entered a concurrent Order 

granting a Motion to Change Visitation, in which it provided for unsupervised

sibling visitation with the continuing limitation that Maternal Aunt and her 

sisters shall neither attend said visits nor contact the caregiver, with the 

stipulation that any violation of this provision shall be reported to the court 

and require the entry of an order directing all future sibling visits be supervised 

at the agency.

In Maternal Aunt’s pro se appellate brief, she raises the following 

Statement of Question Presented (verbatim):

The actions of the trial court errors resulted in an inability to be 

fair and impartial with a miscarriage of justice, punishing and 

inhibiting a mandated reporter to not follow Child Protective 
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Service reporting law with [sic] by stating via July 1, 2019 

transcript page 11 the court "If they make another call to the 

hotline alleging some abuse of this child, then I will hold a

contempt hearing. I want to know about it. And march them all 

in here and I'll throw them in jail." and in the absence of such 

errors a more favorable result would have been reached in the 

best interest of the child. The issues reflect on whether it was an 

error of law or abuse of process for the trial court to prevent 

contact with a minor to avoid a mandating reporting of suspected

child abuse and/or neglect by denying the motion for visitation 

and refusal to allow visits after a stay away order issued expired.

To present mandated reporters from reporting endangers 

children. All violators can face a misdemeanor and as a recently 

as on July 8, 2021 Luzerne Children and Youth director was 

arrested and charged with endangering children for terminating 

reports of child abuse.

Brief for Appellant, at 2-3 (unpaginated).

This Court reviews a trial court's denial of an appeal nunc pro tunc under 

an abuse of discretion standard. Raheem v. University of the Arts, 872 

A.2d 1232, 1234 (Pa.Super. 2005). An abuse of discretion is not merely an 

error of judgment but is found where the law is “overridden or misapplied, or 

the judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill will as shown by the evidence or the record.” Freeman 

v. Bonner, 761 A.2d 1193, 1194–95 (Pa.Super. 2000) (quoting Union 

Electric Corporation v. Board of Property Assessment, Appeals, & 

Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000)). An appeal 

nunc pro tunc is intended as a remedy to vindicate the right to appeal where 

that right has been lost due to extraordinary circumstances involving fraud or 

its equivalent, duress, or coercion. Id. at 584.
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Initially, we must address whether Maternal Aunt has standing to appeal 

nunc pro tunc from the dependency court’s July 1, 2019 permanency review 

order, as the issue of standing implicates our jurisdiction. “When a statute 

creates a cause of action and designates who may sue, the issue of standing 

becomes interwoven with that of subject matter jurisdiction. Standing then 

becomes a jurisdictional prerequisite to an action.” K.B. II v. C.B.F., 833 A.2d 

767, 774 (Pa.Super. 2003) (citation, quotation, and emphasis omitted). 

A party seeking to appeal must, as a prerequisite, establish that they 

have standing to appeal. In Interest of Garthwaite, 619 A.2d 356, 357 

(Pa.Super. 1993). “An issue regarding standing to participate in dependency 

proceedings is a question of law warranting plenary review, and our scope of 

review is de novo.” In re C.R., 111 A.3d 179, 182 (Pa. Super. 2015). “[T]he 

question of standing is whether a litigant is entitled to have the court decide 

the merits of the dispute or of particular issues.” In re B.L.J., Jr., 938 A.2d 

1068, (quoting Silfies v. Webster, 713 A.2d 639, 642 (Pa. Super. 1998)).

In Maternal Aunt’s brief, she does not address whether she has standing 

to appeal from the order in question, nor did the dependency court sua sponte

address the issue of standing either while it possessed jurisdiction below or in 

preparing its Pa.R.A.P. 1925(a) opinion for the present appeal. 

Appellee Child, however, represented by the Child Advocacy Unit of the 

Defender Association of Philadelphia, maintains for the first time on appeal

that Maternal Aunt lacks standing because she is not a party to the 

dependency proceeding in question and has never filed a motion to intervene 
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in the matter. Brief for Appellee, N.J., at 14 (citing In re J.S., 980 A.2d 117, 

122 (Pa.Super. 2009) (“Only 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.”)). 

Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.A. 

§ 6301 et seq. The Juvenile Act provides that all parties to a dependency 

proceeding are entitled to counsel, to present evidence, and to cross-examine 

witnesses. 42 Pa.C.S.A. §§ 6337, 6338; see also In re L.C. II, 900 A.2d 

378, 380-81 (Pa. Super. 2006).

This Court has repeatedly held that in a dependency proceeding, “party” 

status is limited to three classes of persons: (1) the parents of the juvenile 

whose dependency 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. In re J.S., 980 A.2d at 120.

Other caregivers, including relatives, are not automatically considered 

parties to a dependency proceeding. Absent legal custody, a non-parent's 

right to participate in a dependency proceeding is governed by Section 

6336.1(a) of the Juvenile Act, which states:

The court shall direct the county agency or juvenile probation 

department to provide the child's foster parent, pre[-]adoptive 

parent or relative providing care for the child with timely notice of 

the hearing. The court shall provide the child's foster parent, pre[-

]adoptive parent or relative providing care for the child the right 

to be heard at any hearing under this chapter. Unless a foster 

parent, pre[-]adoptive parent or relative providing care for 

a child has been awarded legal custody pursuant to section 
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6357 (relating to rights and duties of legal custodian), 

nothing in this section shall give the foster parent, pre[-]

adoptive parent or relative providing care for the child legal 

standing in the matter being heard by the court.

42 Pa.C.S.A. § 6336.1(a) (emphasis added). 

Our review of the record and consideration of controlling authority lead 

us to conclude that Maternal Aunt lacks standing to challenge the dependency

court’s July 1, 2019 order, as she does not come within any of the foregoing 

definitions of a “party” under the Juvenile Act. On this basis, alone, may we 

affirm the order entered below. 

Were we to address the timeliness of Maternal Aunt’s appeal from the 

July 1, 2019 order, we would find an alternate basis for affirmance. The 

“[t]imeliness of an appeal, whether it is an appeal to an appellate court or a 

de novo appeal in common pleas court, is a jurisdictional question. Where a 

statute fixes the time within which an appeal may be taken, the time may not 

be extended as a matter of indulgence or grace.” Blucas v. Agiovlasitis, 

179 A.3d 520, 525 (Pa. Super. 2018). Pursuant to Pa.R.A.P. 903, an 

aggrieved party must file a Notice of Appeal within 30 days after entry of the 

order from which the appeal is taken. Pa.R.A.P. 903(a). Smithson v. 

Columbia Gas of PA/NiSource, --- A.3d ----, 2021 PA Super 157 (Aug. 9, 

2021). 

[A]n appeal nunc pro tunc may be granted in some cases 

where an appeal was untimely filed because of non-negligent

circumstances related to appellant, appellant's counsel, or an

agent of appellant's counsel. For an appeal nunc pro tunc to be

granted on that basis, the appellant must prove that: (1) the

appellant's notice of appeal was filed late as a result of 
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nonnegligent circumstances, either as they relate to the appellant 

or the appellant's counsel; (2) the appellant filed the notice of

appeal shortly after the expiration date; and (3) the appellee was

not prejudiced by the delay. The exception for allowance of an

appeal nunc pro tunc in non-negligent circumstances is meant to

apply only in unique and compelling cases in which the appellant

has clearly established that she attempted to file an appeal, but

unforeseeable and unavoidable events precluded her from

actually doing so.

Fischer v. UPMC Northwest, 34 A.3d 115, 120 n.2 (Pa. Super. 2011).

Absent from both the “Question Presented” and “Argument” sections of 

Maternal Aunt’s brief is any discussion of whether the dependency court’s 

Order of April 16, 2021 erroneously denied her motion to appeal nunc pro tunc

from the court’s prior Order of July 1, 2019 on the basis of untimeliness. It 

follows that Maternal Aunt has not shown there were compelling, nonnegligent circumstances causing such great delay in her seeking to file notice 

of appeal from the July 1, 2019 order that nunc pro tunc relief was in order. 

Therefore, in light of the above-discussed authority requiring an appellant to 

make such a showing, we would discern no reason to disturb the lower court’s 

order denying Maternal Aunt’s motion to file an appeal nunc pro tunc. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2021