J-S35004-19


                                   2020 PA Super 41

 IN THE INTEREST OF: L.B., A MINOR                    IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA



 APPEAL OF: A.W., FATHER

                             Appellant                  No. 578 EDA 2019


              Appeal from the Order Entered January 28, 2019
           In the Court of Common Pleas of Philadelphia County
  Family Court at Nos: CP-51-DP-0002974-2015, FID: 51-FN-002498-2015


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

CONCURRING OPINION BY STABILE, J.:                FILED FEBRUARY 19, 2020

       I concur with the Majority’s decision in this case and, in particular, its

conclusion that the order appealed from qualifies for interlocutory review as a

collateral order under Pennsylvania Rule of Appellate Procedure 313. I write

separately to address the learned Dissent’s view that a) the trial court’s order

retained responsibility for determining when visitation was appropriate, and

b) the Majority’s determination that the appealed order satisfies the third

prong of the collateral order doctrine is inconsistent with other of our cases.

       The question Father presents in this appeal is whether the trial judge

committed error in ruling that Father’s visits with Child are to be suspended

indefinitely until the therapist approves of visits once again.     In essence,


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* Retired Senior Judge assigned to the Superior Court.
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Father argues that the trial court’s delegation to the therapist to determine

when visits may resume is an unlawful delegation of judicial authority. In

particular, Father challenges whether it is lawful for the therapist and not the

court to determine whether Father continues to present a grave threat to Child

to justify indefinite suspension of visitation.

      In relevant part, the trial court’s January 28, 2019 permanency review

order provides that legal custody of Child shall remain with the Philadelphia

Department of Human Services and that an additional condition of visitation

is that “Father’s visits with the child are to remain suspended upon the

recommendation of the child’s therapist.”         (Emphasis added.)      The order

further provides that “family therapy between Father and child is to begin

upon the recommendation of the therapist.” (Emphasis added.) In its April

2, 2019 opinion however, the trial court explains that it “issued a decree

suspending Father’s visit with the Child pending the recommendation of the

Child’s therapist.”   Opinion, 4/2/19, at 3 (emphasis added).        In that same

opinion the court further explains that it did not suspend Father’s visits

indefinitely, but rather temporarily suspended visits pending the Child’s

therapist’s recommendation. Id., at 5-6. Thus, it is unclear whether the trial

court suspended visitation based upon the therapist recommendation, or

whether    it   suspended   visitation   pending    receipt   of   the   therapist’s

recommendation. The fact Father presently has no visitation rights suggests

the former is the case.


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      Father interprets the court order to mean that visitation may not resume

until determined to be appropriate by the therapist, which in this case would

require the therapist to determine Father no longer is a grave threat to child.

The appellee, Philadelphia Department of Human Services (DHS), argues that

Father’s interpretation is a misreading of the order. Instead, DHS argues that

the order does not make resumption of visits contingent on the therapist

recommendation, but rather provides only “that family therapy is to begin

upon the recommendation of the therapist.” DHS Brief, at 8. DHS concludes

the clear import of this language is that the court will entertain a request to

resume visitation once the therapist has made a recommendation the child is

ready to participate in family therapy. Without doubt, the court’s order left

some ambiguity with respect to the question presented by Father.

      Based upon the foregoing, I cannot agree with the Dissent that the order

provides that the court will remain the ultimate arbiter of Father’s visitation

rights upon hearing a recommendation by the therapist. Dissent, at 5. The

Dissent arrives at this conclusion because the order “strongly implies” that

this is what the court meant. Id. Respectfully, I do not believe that reliance

upon implication satisfactorily resolves the ambiguity in the trial court’s order,

at least with respect to the issue raised by Father. Therefore, because the

trial court has not objected to the issue as framed by Father, I believe that for

purposes of this appeal the question—whether the trial court may properly

outsource the determination to the therapist of whether Father remains a


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“grave threat” to child and whether visitation may occur—is an issue properly

before this Court.

      Continuing, the Dissent argues that treating the instant order as one

that satisfies the third prong of the collateral order doctrine, exacerbates the

inconsistent application of the doctrine in the context of dependency matters,

citing our recent cases in In Interest of J.M., 2019 WL 4385685, at *8 (Pa.

Super., September 13, 2019) and In re S.W., 2019 WL 5078918, at* 1 (Pa.

Super., October 10, 2019). Respectfully, I disagree, as I find those cases

distinguishable.

      To qualify for interlocutory review as a collateral order under Pa.R.A.P.

313, a litigant must demonstrate that the order is 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 was

postponed until final judgment in the case, the claim will be irreparably lost.

Only the third prong of Rule 313 is at issue here. In J.M. and S.W., collateral

review was denied upon the basis that the claims in those cases would not be

irreparably lost if review was denied until a final order was entered.

      In J.M., the children were adjudicated dependent and mother was

denied unfettered right to visitation.      Mother’s right to visitation was

contingent upon tests showing both mother and children to be drug free before

visitation could occur. We observed in that case that the next permanency

review was only one month away and, as the Majority also observes, that the


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order at issue did not eliminate contact entirely between mother and children.

Therefore, mother’s right to home visits in general was not irreparably lost at

that point in the proceedings.

      In S.W., mother had line-of-sight/line-of-hearing visits with children at

the Community Umbrella Agency.         After a permanency review hearing,

mother’s visitation with children was temporarily suspended because the court

was informed that children were suffering severe negative reactions to visits

by mother. The trial court determined that it had to ascertain whether there

was a cause-and-effect between mother’s visits and the children’s behavioral

issues before proceeding further.      The trial court therefore temporarily

suspended mother’s visits until this evaluation could be completed by a

therapist   and   a   recommendation   received.     If   after   receiving   the

recommendation the court decided to suspend mother’s visitation indefinitely,

she would have the opportunity to appeal and raise her claims at that time.

We noted that requiring mother to appeal after the trial court made its

ultimate decision as to whether to suspend visitation, would allow this Court

to receive a more developed record that would aid us in conducting appellate

review. Id., at *27.

      Instantly, unlike in J.M. and S.W., Father’s visitation rights have been

indefinitely suspended and remain contingent upon findings to be made by the

therapist. As important, while the issues in J.M. and S.W. were whether the

courts abused their discretion based upon the conditions imposed to permit


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visitation, the issue here is vastly different, compelling a different third-prong

analysis.   Here the issue is whether the trial court may outsource the

determination as to whether a grave threat presents in this case and when

visitation may resume or continue to be indefinitely suspended, as determined

by the therapist.    If permanency reviews are allowed to proceed without

resolution of this outsourcing issue, Father’s right to challenge this delegation

may be irreparably lost by subsequent permanency review orders.            As the

Majority also points out, the court order determining that Father poses a

“grave threat” to children may very well result in more than a denial of visits

or series of visits. That finding can ultimately affect a custody determination

or termination of parental rights. Unlike the cases of J.M. and S.W. where

there was no finding of a “grave threat” to suspend visitation indefinitely, there

is an immediate need here to decide whether a therapist can make

determinations on the grave-threat standard and when visitation may

commence again. Therefore, I do not find that our prior cases in J.M. and

S.W., and in particular S.W., should result in the denial of collateral review

here. The instant issue for review is different and the harm in allowing a third

party to supplant the decision-making authority of a court may not be

remedied later without irreparable harm to Father and to the dependency

process.

      Judge Strassburger joins this Concurring Opinion.




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