J-S35004-19

                                   2020 PA Super 41

    IN THE INTEREST OF: L.B., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.W., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 578 EDA 2019

                Appeal from the Order Entered January 28, 2019
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-0002974-2015,
                            FID: 51-FN-002498-2015


BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER, J.*

DISSENTING OPINION BY OLSON, J.:                     FILED FEBRUARY 19, 2020

        I believe this Court lacks jurisdiction over the instant appeal and that

the learned Majority misapplies the collateral order doctrine to reach the

merits of the parties’ dispute. Hence, for the reasons that follow, I respectfully

dissent.

        My analysis begins with the trial court’s Rule 1925(a) opinion. In its

opinion, the trial court explained that on January 28, 2019, it “temporarily

suspended [Father’s] visits pending the Child’s therapist recommendation”

after it found that Father posed a grave threat to Child. Trial Court Opinion,

4/2/19, at 5 (emphasis added). The court’s grave threat determination rested

upon its finding that Child presented with a visible bruise on his forehead and

that a Community Umbrella Agency (CUA) worker testified credibly that, “Child

became visibly agitated as the therapist started mentioning Father[,]” that
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*   Retired Senior Judge assigned to the Superior Court.
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Child “ha[d] been doing ‘a lot better in the home’” since visitation with Father

was suspended,1 and that the “Child could have suffered mental trauma which

could impede his physical and mental development in the future.” Id. at 4-5.

Thus, the trial court opinion clarifies that, in January 2019, it temporarily

suspended visitation to investigate the cause of Child’s injury and to afford

the therapist an opportunity to consider what impact Father’s visits had on

Child.

         Despite these undisputed facts, Father lodged an appeal claiming that

the trial court improperly “outsource[d] to a therapist the determination of

when his visits with Child may or may not resume.” Majority Opinion at *8;

see also Father’s Brief at 3-4.         Accepting Father’s characterization of the

facts, the learned Majority first holds that Father raised an appealable claim

under the collateral order doctrine2 and then agrees with Father that the trial

court wrongfully abandoned its judicial duties. Id. at *8-10. Specifically, the

Majority concludes that Father’s claim is “clearly separable from and collateral

to the main cause of action, no matter how that cause of action is defined.”

Id. at *8. Next, the Majority explains that, “because this order resulted in a
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1 Due to the incident that occurred in December 2018, Father’s visitation was
already suspended on or before January 19, 2019. See Resource Family
Reporting Form, 1/19/19, at 2.

2 Pennsylvania Rule of Appellate Procedure 313 defines a collateral order as
one that: “1) is separable from and collateral to the main cause of action; 2)
involves a right too important to be denied review; and 3) presents a question
that, if review is postponed until final judgment in the case, the claim will be
irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, n.8 (Pa.
Super. 2012); Pa.R.A.P. 313(b).

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complete denial of visitation,” it meets both the second and third prong of the

collateral order doctrine. Id. at *7. Turning to the merits, the Majority holds

that the trial court did, in fact, err by “outsourcing its decision of when those

visits may or may not resume to a therapist” and as such, vacated the order

and remanded for further proceedings. Id. at *10.

       A thorough review of the certified record reveals that the temporary

suspension of Father’s visitation did not produce a prolonged or sustained loss

of Father’s interest and that the trial court – throughout these proceedings –

always    retained     responsibility    for   determining   when   visitation   was

appropriate.

       In this case, Father did not have any contact with Child prior to the

commencement of judicial proceedings.              Indeed, Child was adjudicated

dependent on November 24, 2015. Trial Court Order, 11/24/15, at 1. Father,

however, did not “show[] up and [make] himself available” until May 2, 2017.

Trial Court Opinion, 4/2/19, at 1-2. Following a paternity test, on July 17,

2017, the trial court ordered supervised visits for Father.3 Id.; see also Trial

Court Order, 5/2/17, at 2; Trial Court Order, 7/17/17, at 1-2. Subsequently,

the court conducted a series of regularly scheduled permanency review

hearings to monitor Father’s compliance with his objectives. See Trial Court

Order, 10/3/17, at 1-2; Trial Court Order, 2/2/18, at 1-2; Trial Court Order,

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3 The trial court terminated Mother’s parental rights on July 17, 2017. See
Interest of L.B., __ A.3d.___, 2534 EDA 2017 (Pa. Super. 2018)
(unpublished memorandum), at 1-17.

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4/30/18, at 1-2; Trial Court Order, 7/30/18, at 1-2. Eventually, on October

29, 2018, the court increased Father’s visitation rights to weekly overnight

visits, every Friday to Sunday. Trial Court Order, 10/29/18, at 2. This was

the first time Father was permitted to engage in unsupervised visits with Child.

In December 2018, however, visitation was suspended after the Child reported

that Father hit him and the Child “had a visible bruise on his forehead.” N.T.

Permanency Review Hearing, 1/28/19, at 5.

      On January 28, 2019, the trial court conducted a permanency review

hearing.   N.T. Permanency Review Hearing, 1/28/19, at 1-19.        During the

hearing, Shanese Streams, the CUA case manager, testified about the incident

that occurred in December 2018 and Child’s subsequent behavior. Id. at 4-

15. Thereafter, the trial court asked for the “recommendations” of the parties

and the following exchange occurred:


      The court: Okay. Child is to remain as committed/remain as
      placed. Visitation will remain status quo, can begin upon the
      therapist’s recommendation. When visitation eventually is
      re[-]established, I want family therapy to begin, as well.
      Let’s give it a date.

      [Father’s Counsel]: I guess that family therapy would be dad,
      because I think it was a problem before, whether it was the foster
      parent or dad. If we can just make that clear –

      The court: Family therapy –

      [Father’s Counsel]: --through family therapy

      The court: --when I’m saying family therapy, I mean with
      [F]ather.

      [Father’s Counsel]: Okay.


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       The court: But that is only upon the – that will only begin upon
       the recommendation of the therapist. Give it a date. We can send
       it out.

Id. at 17 (emphasis added). Then, the trial court scheduled a permanency

review hearing for April 16, 2019 at 1:30 p.m. Id. at 17-18.

       Upon review, I disagree with the Majority’s conclusion that the trial court

improperly outsourced its decision regarding Father’s visitation to a therapist.

Indeed, the aforementioned exchange proves that no outsourcing occurred.

The trial court expressly declared that the suspension was temporary, asked

for a recommendation, and scheduled a subsequent permanency hearing for

April 2019 to receive the requested input. This strongly implies that the court

– itself - would remain the ultimate arbiter of Father’s visitation rights and

make the determination of whether Father’s visits could resume. By vacating

the trial court’s order and remanding for further proceedings, the Majority

simply directs the court to do exactly what it already intended to do: decide

whether Father’s visits can resume upon hearing a recommendation by the

therapist.4

       Moreover, I disagree with the Majority’s conclusion that the instant

appeal meets the third prong of the collateral order doctrine because the order

resulted “in the complete denial of visitation.” See Majority Opinion at *7;

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4 It is ironic, in my view, that the Majority’s remand order essentially directs
the trial court to conduct an assessment it has already made based, invariably,
on input it has already requested. This is a misapplication of the collateral
order doctrine and a misuse of scarce judicial resources.


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see also Pa.R.A.P 313(b)(3) (explaining that “the question presented [must]

be such that if review is postponed until final judgment in the case, the claimed

right will be irreparably lost”). Previously, this Court has permitted appeals

only when the denial of visitation results in a “‘prolonged, indefinite or a

permanent loss of a substantial private interest.’” In re J.S.C., 851 A.2d 189,

191 (Pa. Super. 2004), quoting In Interest of Rhine, 456 A.2d 608, 612

(Pa. Super. 1983).      Thus, short denials of visitation are generally not

appealable. Here, the trial court denied Father visitation from January 28,

2019 until April 16, 2019, when it scheduled a permanency hearing to review

the matter. N.T. Permanency Review Hearing, 1/28/19, at 17-18. Moreover,

upon suspending Father’s visitation, the trial court stated: “[w]hen

visitation eventually is re[-]established, I want family therapy to begin,

as well.” Id. at 17 (emphasis added). Both acts evidence the trial court’s

intent to ensure that Father’s visitations rights were only suspended for a short

period of time. Accordingly, I would conclude that the instant appeal does not

meet the third prong of the collateral order doctrine.

      The Majority’s decision to permit Father’s appeal exacerbates the

inconsistent application of the collateral order doctrine in the context of

dependency matters, which we have acknowledged in recent cases.             See

Interest of J.M., 2019 WL 4385685, at *8 (Pa. Super. Sept. 13, 2019)

(explaining that consistent application of the collateral order doctrine has

alluded this Court in the context of dependency matters). Notably, this Court’s




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recent decision in In re S.W., 2019 WL 5078918, at *1 (Pa. Super. Oct. 10,

2019) (memorandum opinion by Stabile, J.) illustrates this point. Id.

       The pertinent facts of S.W. are as follows. The trial court adjudicated

S.W. and L.J.-S (“the Children”) dependent on June 21, 2017. Id. Eventually,

S.S. (“Mother”) was permitted to have “line-of-sight/line-of-hearing visits

only.” Id. On February 14, 2019, however, the trial court suspended Mother’s

visits “temporarily, until a recommendation is received from the child’s

therapist” after a CUA case manager “expressed concern that Mother made

inappropriate statements to the Children during visits, which appeared to

cause negative reactions.” Id. at *1-2. Mother appealed. Id. at *3. As in

the present case, we first addressed whether this Court had jurisdiction to

consider the merits of the appeal.             Id.   After concluding that the “orders

[were] not final,” we proceeded to an analysis of the collateral order doctrine.

Id. at *4.

       Ultimately, S.W. concluded that “the February 14, 2019 orders fail to

satisfy the third prong of the collateral order doctrine.”5 Id. Specifically, we

held that “Mother’s claims will not be irreparably lost if we postpone review.”

Id.; quoting In re Estate of McAleer, 194 A.3d 587, 593 (Pa. Super. 2018),

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5 Like in J.M., the Court in S.W. “decline[d] to consider whether the issue of
Mother’s visitation is separable from and collateral to the main cause of action
of the Children’s dependency.” In re S.W., 2019 WL 5078918 at *4; see
also Interest of J.M., 2019 WL 4385685, at *11. But, S.W. concluded that
Mother’s appeal “clear[ly] . . . satisfies the second prong of the collateral order
doctrine, as Mother has a constitutional right to visits with the Children.” Id.


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appeal granted, 201 A.3d 724 (Pa 2019).         In reaching this decision, we

reasoned that the trial court merely “suspended Mother’s visitation with the

Children temporarily, pending a recommendation from a therapist:” it did not

deny visits indefinitely. Id. Therefore, we concluded that, awaiting the trial

court’s “ultimate decision as to whether to suspend visits” would ensure a

“more developed record,” and would “avoid the possibility of expending time

and resources considering the merits of Mother’s appeal, only for the [trial]

court to reinstate visits, rendering our efforts inconsequential.” Id.

      Herein, this Court is presented with the exact same order as S.W. This

time, however, the panel reaches the opposite conclusion. In doing so, it

perpetuates this Court’s inconsistent application of the collateral order

doctrine in the context of dependency litigation. For each of the foregoing

reasons, I respectfully dissent.




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