J-A13041-19
                         2019 PA Super 280

 IN THE INTEREST OF: J.M.,         :   IN THE SUPERIOR COURT OF
 A MINOR                           :        PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
                                   :
 APPEAL OF: L.M.-M., MOTHER        :   No. 260 EDA 2019


           Appeal from the Order Entered December 27, 2018
          in the Court of Common Pleas of Montgomery County
                  Juvenile Division at No(s): 176-2017


 IN THE INTEREST OF: D.M.,         :   IN THE SUPERIOR COURT OF
 A MINOR                           :        PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
                                   :
 APPEAL OF: L.M.-M., MOTHER        :   No. 262 EDA 2019


           Appeal from the Order Entered December 27, 2018
          in the Court of Common Pleas of Montgomery County
                  Juvenile Division at No(s): 177-2017


 IN THE INTEREST OF: A.M.,         :   IN THE SUPERIOR COURT OF
 A MINOR                           :        PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
                                   :
 APPEAL OF: L.M.-M., MOTHER        :   No. 264 EDA 2019


          Appeal from the Order Entered December 27, 2018
         in the Court of Common Pleas of Montgomery County
                 Juvenile Division at No(s): 178-2017
J-A13041-19


BEFORE:      SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                          FILED SEPTEMBER 13, 2019

        L.M.-M. (Mother) appeals from the December 27, 2018 orders the

juvenile court entered in the dependency matters of Mother’s minor children:

J.M., A.M., and D.M. (collectively, Children; born in July 2003, April 2002,

and February 2001, respectively).1 Mother’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

Because the December 27, 2018 orders are not appealable orders, we quash

Mother’s appeals and deny counsel’s petition as moot.

I. Procedural History

        We provide an overview of the procedural history only, as the

substantive factual history is not relevant to our determination. On June 20,

2017, Children were adjudicated dependent pursuant to 42 Pa.C.S. §

6302(1) and (6) of the Juvenile Act.             Initially, Mother retained legal and

physical custody of Children.         On December 13, 2017, the juvenile court

removed Children from Mother’s care and transferred legal and physical

custody to the Montgomery County Office of Children and Youth (the

____________________________________________
*   Retired Senior Judge assigned to the Superior Court.

1 The same order was entered in each of Children’s dependency matters.
Mother properly filed separate notices of appeal, see Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (discussing Pa.R.A.P. 341, Official Note),
and this Court subsequently consolidated the appeals.


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Agency).2        The     juvenile   court      set   Children’s   permanency    goal   as

reunification.        In furtherance of that goal, the juvenile court permitted

Mother to visit with Children at their placements and occasionally at her

home.

       On December 27, 2018, the case was scheduled for a permanency

review hearing before the juvenile court.               There were also two pending

motions: one filed by the Agency to modify J.M.’s placement from Bethany

Children’s Home Residential Program to George Junior Republic and two filed

by Mother, which sought return of Children and a home pass during

Children’s holiday break. Because there was not sufficient time to hear all of

the Agency’s evidence, the juvenile court continued the hearing to another

date. The parties agreed that in the meantime, Children could visit Mother

in her home for several days around the New Year holiday, provided that

Mother and Children all submitted to a drug screen and tested negative for

any illegal substances. N.T., 12/27/2018, at 2-4 (description of agreement

by the Agency’s solicitor, followed by assent to agreement by Children’s

guardian ad litem, Children’s legal counsel, and Mother’s counsel).

       After     an    off-the-record   sidebar       discussion,   the   juvenile   court

announced that Mother and two Children tested positive for THC. Id. at 5.

____________________________________________
2 Originally, Children were placed together in Bethany Children’s Home
Residential Program. In late 2018, A.M. moved to an Impact Project foster
home, and later to a respite foster home, where she remained at the time of
the hearing at issue.


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The juvenile court ruled that home passes would only be permitted if all four

screens were negative. Id. at 5. The juvenile court judge then informed the

parties that “the home visit issue can be revisited, but I need to see clean

urines. … I’m not shutting it down. I want the family to hear me on that,

but we need to meet each other, a meeting of the minds with clear heads.”

Id. at 7. The juvenile court continued the permanency review hearing for

approximately one month to January 23, 2019. Id. Following the hearing,

the juvenile court entered a written order prohibiting visits at Mother’s home

if Mother or Children tested positive for drugs.    Order, 12/27/2018, at 1

(“The [juvenile court] will not grant home passes if any child or parent tests

positive for drugs.”).

      It is from this order that Mother appeals.       Both Mother and the

juvenile court complied with Pa.R.A.P. 1925.       In this Court, Appellant’s

counsel filed both an Anders brief and a petition to withdraw as counsel. In

the Anders brief, the issue of arguable merit set forth by counsel is whether

the juvenile court abused its discretion by conditioning home passes for

Children on a negative drug screen by Appellant. Anders Brief at 6.

II. Appealability of Order

      Before we may address counsel’s petition to withdraw and any

substantive issues, we must determine whether the orders from which

Mother appealed are appealable, because appealability implicates our




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jurisdiction.3 In Interest of N.M., 186 A.3d 998, 1006 (Pa. Super. 2018)

(quoting Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000) (“[Since

we] lack jurisdiction over an unappealable order, it is incumbent on us to

determine, sua sponte when necessary, whether the appeal is taken from an

appealable order.”)). “Jurisdiction is purely a question of law; the appellate

standard of review is de novo and the scope of review plenary.” Barak v.

Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (citation omitted).

       In order to be appealable, the order must be: (1) a final order,

Pa.R.A.P. 341-42; (2) an interlocutory order appealable by right or

permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-12;4 or (3) a collateral

order, Pa.R.A.P. 313.

       A. Appealability Pursuant to Final Order Doctrine

       We    begin    our   analysis    with   the   first   category:   final   orders.

“Pennsylvania’s Rules of Appellate Procedure place great importance on the

concept of ‘final orders’ to establish jurisdiction to hear an appeal.”

Commonwealth v. Culsoir, 209 A.3d 433, 435 (Pa. Super. 2019).                       The
____________________________________________
3 This Court directed Mother to show cause as to why this Court should not
quash her appeals on that basis. Per Curiam Order, 3/20/2019, at 1.
Mother’s counsel timely responded, noting his conclusion in the Anders brief
that the appeals are frivolous and opining that the orders are not final,
appealable orders. Letter from Counsel, 3/22/2019, at 1. Because counsel is
seeking to withdraw pursuant to Anders, we do not view counsel’s
statement as a concession on Mother’s behalf.

4 We need not examine the second category, as Mother did not seek
permission to appeal the December 27, 2018 orders, nor are they orders
appealable as of right by law.


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purpose of the rule regarding final orders is to avoid “piecemeal appeals”

and “protracted litigation.” Commonwealth v. Bowers, 185 A.3d 358, 362

(Pa. Super. 2018).      It “maintains distinctions between trial and appellate

review, respects the traditional role of the trial judge, and promotes

formality, completeness, and efficiency.” Shearer v. Hafer, 177 A.3d 850,

855-56 (Pa. 2018). It also represents a determination that “the cost of a

wrong decision by a trial judge is typically outweighed by either the benefit

of uninterrupted trial proceedings or the assurance that the issue is

adequately reviewable through alternatives to an immediate appeal.”        Id.

(citing Michael E. Harriss, Rebutting the Roberts Court: Reinventing the

Collateral Order Doctrine Through Judicial Decision-Making, 91 Wash.

U. L. Rev. 721, 725 (2014)).

      Generally, a final order is any order that disposes of all claims and all

parties.    Pa.R.A.P.    341(b).     Based   upon   the   two-step   procedure

contemplated by the Juvenile Act for declaring a child dependent (i.e., an

adjudication followed by a disposition, see 42 Pa.C.S. § 6341(c)), this Court

has held that it is the dispositional order following a dependency adjudication

that is a final appealable order. In Interest of C.A.M., 399 A.2d 786 (Pa.

Super. 1979).

      Unlike other types of cases, dependency matters do not end following

a child’s disposition. See In re Tameka M., 534 A.2d 782, 784 (Pa. Super.

1987) (en banc) (discussing unique ongoing nature of dependency matters),



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aff’d, 580 A.2d 750, 752 (Pa. 1990) (approving of the Superior Court’s

recognition of the juvenile court’s “continuing plenary jurisdiction in

dependency cases under 42 Pa.C.S.[] § 6351”).            The juvenile court is

statutorily required to review the case periodically5 and issue orders relating

to a variety of issues.6 42 Pa.C.S. § 6351(e)(3), (f)-(g). The purpose of the

periodic review hearings is to “determin[e] or review[] the permanency plan

of the child, the date by which the goal of permanency for the child might be
____________________________________________
5 At a minimum, the juvenile court must conduct a permanency review
hearing every six months. 42 Pa.C.S. § 6351(e)(3). In some cases,
hearings are held every three months in accordance with best practice. See
Pa.R.J.C.P. 1608, Comment.

6 In general, the “[j]uvenile [c]ourt has the duty to act to provide for the
‘protection and physical, mental and moral welfare’ of a dependent child.”
Tameka M., 580 A.2d at 755 (quoting 42 Pa.C.S. § 6351(a)). To that end,
the Juvenile Act specifies 16 issues to be reviewed at each permanency
review hearing. See 42 Pa.C.S. § 6351(f), (f.1). Such issues include
matters relating to the child’s placement; the child’s permanency plan; the
family’s progress in alleviating the circumstances that brought the child into
care; the child’s placement goal; the timeframe to achieve the goal; the
agency’s reasonable efforts; the child’s safety; services needed to transition
the child to adulthood; whether the agency should file a petition to terminate
parental rights; placement and visitation with the child’s sibling; and
opportunities for the child to participate in appropriate activities. 42 Pa.C.S.
§ 6351(f)(1)-(12). Additionally, the juvenile court must determine at every
permanency hearing if and when the child should be returned, placed for
adoption, placed with a legal custodian or fit and willing relative, or placed in
another planned permanent living arrangement. 42 Pa.C.S. § 6351(f.1).
Finally, the court must receive and evaluate any evidence of conduct by the
parent that places the health, safety, or welfare of the child at risk, including
evidence of the use of alcohol or controlled substance, whether or not the
conduct was the basis for the determination of dependency. 42 Pa.C.S.
§ 6351(f.2). Based on the foregoing, the court shall order the continuation,
modification or termination of placement or other disposition which is best
suited to the safety, protection and physical, mental and moral welfare of
the child. 42 Pa.C.S. § 6351(g).


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achieved[,] and whether placement continues to be best suited to the safety,

protection and physical, mental and moral welfare of the child.”    42 Pa.C.S.

§ 6351(e)(1).       In many cases, it may be months or years after the

dependency disposition before the Juvenile Court has occasion to enter an

order that truly disposes of all claims and all parties, such as by return to

parents and the cessation of dependency, termination of parental rights and

adoption of the child, transfer of custody to family or kin, or a child’s aging

out of the system.

       Therefore, due to dependency’s unique nature, the fact that further

proceedings are contemplated is not dispositive of the finality of the order.

In the Interest of J.L., __ A.3d __, 2019 WL 3295100, at 3 n.1 (Pa.

Super. 2019).      In the dependency context, the court “must examine the

practical consequences of the order to determine if the party challenging it

has effectively been put out of court.” In re Interest of M.B., 565 A.2d

804, 806 (Pa. Super. 1989). Thus, “this court acknowledges certain crucial

points of finality when review is appropriate despite the fact that such

determinations may later be modified by the trial court after further

statutorily[-]mandated review hearings are held.” Id. at 808. Specifically,

our Supreme Court has held that an “order granting or denying a status

change, as well as an order terminating or preserving parental rights,[7] shall

____________________________________________
7 An order terminating or preserving parental rights is entered pursuant to
the Adoption Act, a separate but related statute to the Juvenile Act.


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be deemed final when entered.” In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa.

2003). This helps ensure that orders that improperly prolong the status quo

and harm children’s needs and welfare are not shielded from independent

review permanently. Id.

     The orders at issue in H.S.W.C.-B. denied a child welfare agency’s

petitions to terminate parental rights and to change the permanency goal to

adoption.     This Court had quashed the agency’s appeal because the order

denying the petitions maintained the status quo.        The Supreme Court

rejected the holding of our Court, reasoning that “[m]aintaining the status

quo could put the needs and welfare of a child at risk” because if the same

trial judge repeatedly and erroneously denies requests to change the

permanency goal, the “improper order” would always be shielded from

appellate review. Id. at 910-11. The Court further reasoned that

     [a]ll orders dealing with custody or visitation, with the exception
     of enforcement or contempt proceedings, are final when entered.
     Pa.R.C.P. 1915.10. Such an order may be modified at any time,
     provided the modification is in the best interest of the
     child. See 23 Pa.C.S. § 5310; Karis v. Karis, [] 544 A.2d 1328,
     1331–32 ([Pa.] 1988). If denial of a custody modification
     petition is final when entered, the denial of a proposed goal
     change or petition for termination of parental rights should
     logically be deemed final as well. … We now adopt the recent
     pronouncement in In re A.L.D., [797 A.2d 326 (Pa. Super.
     2002)], where the Superior Court declared all orders in
     termination matters final. An order granting or denying a status
     change, as well as an order terminating or preserving parental
     rights, shall be deemed final when entered. See id.

Id. at 911.




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     In In re J.S.C., 851 A.2d 189 (Pa. Super. 2004), this Court considered

the impact of H.S.W.C.-B. upon an appeal by a child welfare agency from a

dependency order granting a parent visitation. In that case, we stated

     that our Supreme Court’s admonition in H.S.W.C.-B. [] that
     “[a]ll orders dealing with custody or visitation, with the
     exception of enforcement or contempt proceedings, are final
     when entered” referred solely to orders entered pursuant to the
     Adoption Act, 23 Pa.C.S.[] § 2501, et. seq., and is not
     controlling in our analysis of the finality of visitation orders
     entered following adjudication under the Juvenile Act, 42 Pa.C.S.
     § 6, et. seq.

J.S.C., 851 A.2d at 191. Ultimately, our court determined that H.S.W.C.-

B.’s holding did not extend to a case where a “children and youth agency

appeals from an order granting visitation to the parent of a dependent child”

and held that the order in question was not a final order pursuant to

Pa.R.A.P. 341. Id.

     The J.S.C. panel’s interpretation of our Supreme Court’s statement in

H.S.W.C.-B. as referring to orders solely entered pursuant to the Adoption

Act is perplexing. H.S.W.C.-B. plainly involved orders entered pursuant to

the Adoption Act and Juvenile Act.     See H.S.W.C.-B., 836 A.2d at 909

(“CYS filed petitions to change the goal from reunification to adoption, and

to involuntarily terminate Mother’s parental rights.”); In re R.J.T., 9 A.3d

1179, 1182 n.6 (Pa. 2010) (explaining that a “goal change” is a term of art

referencing the juvenile court’s decision to continue or change the

permanency plan goal and/or order to continue, modify, or terminate the

current placement pursuant to 42 Pa.C.S. § 6351(g) of the Juvenile Act); In


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re A.L.D., 797 A.2d 326, 339-40 (Pa. Super. 2002) (noting that jurisdiction

of orphans’ court to terminate parental rights is derived from Adoption Act

and juvenile court’s jurisdiction to change the permanency goal is derived

from Juvenile Act); In re Adoption of S.E.G., 901 A.2d 1017, 1026 (Pa.

2006) (observing that since the legislature permits a juvenile court judge to

be assigned to orphans’ court division to conduct a termination of parental

rights proceeding pursuant to 42 Pa.C.S. § 6351(i), in practice one judge

often hears the goal change and termination of parental rights proceeding).

Nevertheless, J.S.C. expressly limited its holding to appeals by the agency,

see J.S.C., 851 A.2d at 191; so it is not dispositive of the instant appeal,

which is an appeal by a parent from an order placing restrictions on

visitation.

      With J.S.C. of limited assistance to our current examination, we return

to our Supreme Court’s analysis in H.S.W.C.-B.        Although our Supreme

Court’s statement regarding the finality of visitation orders is broad and

sweeping, in context, we think that the Court merely was referring to

visitation orders entered under the Child Custody Act, 23 Pa.C.S. §§ 5321-

5340, as a point of comparison.

      We arrive at this conclusion from the following analysis. In support of

its statement that all custody and visitation orders are final upon entry, the

Court cited to Pa.R.Civ.P. 1915.10.   H.S.W.C.-B., 836 A.2d at 911.      Rule

1915.10 is contained in the rules that govern custody actions, see



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Pa.R.Civ.P. 1915.1, as opposed to the rules of juvenile procedure, which

govern dependency actions, see Pa.R.J.C.P. 1100(A).               At the time

H.S.W.C.-B. was decided, Rule 1915.10 provided, inter alia, that “[n]o

motion for post-trial relief may be filed to an order of custody, partial

custody[,] or visitation.”8 See id. The Court then referenced a statute and

case in the custody context providing that as long as the court had

jurisdiction, it could modify a custody order at any time. H.S.W.C.-B., 836

A.2d at 911 (citing in support 23 Pa.C.S. § 5310, which was later repealed,

and Karis v. Karis, 544 A.2d 1328 (Pa. 1988)).

        When examined closely, the Supreme Court’s discussion indicates that

instead of making a new sweeping pronouncement with its statement that

all orders dealing with custody and visitation orders are final when entered,

the Court appeared simply to be making a correlation between custody

actions pursuant to the Child Custody Act, dependency actions pursuant to

the Juvenile Act, and termination of parental rights matters pursuant to the

Adoption Act.       Indeed, immediately after citing law relating to custody
____________________________________________
8   The full text of the rule was as follows.

        Rule 1915.10. Decision. Order

              (a) The court may make the decision before the
              testimony has been transcribed.

              (b) No motion for post-trial relief may be filed to an
              order of custody, partial custody[,] or visitation.

See 43 Pa.B. 4702 (August 17, 2013).


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actions pursuant to the Child Custody Act, the H.S.W.C.-B. Court stated,

“[i]f [a] denial of a custody modification petition is final when entered, the

denial of a proposed goal change or petition for termination of parental

rights should logically be deemed final as well.” H.S.W.C.-B., 836 A.2d at

911.

       This is further bolstered by its mention of A.L.D. See H.S.W.C.-B.,

836 A.3d at 911 (“We now adopt the recent pronouncement in [A.L.D.],

where the Superior Court declared all orders in termination matters final.”).

In A.L.D., this Court discussed the then-recent amendment to Rule 7.1 of

the Orphans’ Court Rules, which eliminated the fling of exceptions in

involuntary termination or adoption matters under the Adoption Act.        This

Court noted that the appeals at hand were “properly before us without the

filing of exceptions, as all decrees in termination of parental rights cases are

now considered final, appealable orders.” Id. at 335.

       By referencing Pa.R.Civ.P. 1915.10 and A.L.D., it seems that the

H.S.W.C.-B. Court’s holding regarding the finality of certain orders

maintaining the status quo in dependency and termination of parental rights

matters was influenced by the notion that post-trial motions are not

permitted in custody actions and termination of parental rights matters.

Furthermore, the fact that courts can modify prior final custody orders in

domestic relations matters at any time if it serves the child’s best interest,

seems to have further persuaded the H.S.W.C.-B. Court to permit orders



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that deny a goal change request or a petition to terminate parental rights to

be appealed.

       Furthermore, all permanency review orders broadly deal with custody

and visitation.     See 42 Pa.C.S. § 6351(e)-(f).   If the H.S.W.C.-B. Court

intended to make a sweeping pronouncement regarding the finality of all

orders dealing with custody or visitation in all contexts, it could have simply

held that all orders entered pursuant to the Juvenile Act are appealable, not

only ones that grant or deny a status change.9

       We conclude from the foregoing analysis that the statement in

H.S.W.C.-B. regarding the finality of “orders dealing with … visitation” was a

____________________________________________
9  Even if we are mistaken and our Supreme Court intended to make a
prospective pronouncement as opposed to a mere observation, we would
conclude that its statement regarding the finality of visitation orders is non-
binding dictum. The precise holding of H.S.W.C.-B. is “that denials of goal
change petitions, as well as grants of such petitions, are final and
appealable.” In re Adoption of S.E.G., 901 A.2d 1017, 1026 (Pa. 2006).
Therefore, the Supreme Court’s statement in H.S.W.C.-B. regarding the
finality of visitation orders does not bind our analysis.

   Furthermore, although this Court has repeated the statement from
H.S.W.C-B. several times, see, e.g., N.M., 186 A.3d at 1006 (citing
H.S.W.C.-B. for the proposition that all orders dealing with visitation or
custody, with the exception of enforcement or contempt proceedings, are
final when entered), none of these cases involved the task at hand here, i.e.,
deciding whether an appeal by a parent from an order restricting visitation is
appealable as a final order. Thus, while we always accord great respect and
consideration to statements made by our Supreme Court and fellow
colleagues, we do not view the statement as controlling in the instant case.
See Commonwealth v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018)
(plurality) (“[M]ere repetition of dicta in later decisions, where it does not
control the disposition of a litigated issue, does not transform that dicta into
controlling law.”).


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mere observation and interpretation of existing law pursuant to the Child

Custody Act, not a binding prospective holding regarding orders dealing with

visitation pursuant to the Juvenile Act.      The orders at issue in the instant

appeal are orders continuing a permanency review hearing and placing

location restrictions on Mother’s visits with Children until all were drug-free.

This is not a “status change” within the meaning of H.S.W.C.-B.          It also

does not dispose of all parties or issues in the dependency matter.

Considering that the juvenile court expressly informed the parties that it

would revisit the issue of home passes and the permanency review hearing

was continued for one month, the practical consequences of the orders do

not put Mother out of court in effect.           See M.B., 565 A.2d at 806.

Therefore, we conclude that the orders appealed from are not final orders for

purposes of Pa.R.A.P. 341.

      B. Appealability Pursuant to Collateral Order Doctrine

      As an interlocutory order, we next consider whether the order could

constitute a collateral order. We have explained the doctrine as follows.

      The “collateral order doctrine” exists as an exception to the
      finality rule and permits immediate appeal as of right from an
      otherwise interlocutory order where an appellant demonstrates
      that the order appealed from meets the following elements: (1)
      it is separable from and collateral to the main cause of action;
      (2) the right involved is too important to be denied review; and
      (3) the question presented is such that if review is postponed
      until final judgment in the case, the claimed right will be
      irreparably lost. See Pa.R.A.P. 313.

      Our Supreme Court has directed that Rule 313 be interpreted
      narrowly so as not to swallow the general rule that only final


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      orders are appealable as of right. To invoke the collateral order
      doctrine, each of the three prongs identified in the rule's
      definition must be clearly satisfied.

In re W.H., 25 A.3d 330, 335 (Pa. Super. 2011) (some citations omitted).

      As our Supreme Court recently has explained,

      “[w]e construe the collateral order doctrine narrowly so as to
      avoid ‘undue corrosion of the final order rule,’ ... and to prevent
      delay resulting from ‘piecemeal review of trial court decisions.’”
      K.C. v. L.A., [] 128 A.3d 774, 778 ([Pa.] 2015) (quoting
      Pridgen v. Parker Hannifin Corp., [] 905 A.2d 422, 427 ([Pa.]
      2006)).    As colorfully explained by then-Justice, later Chief
      Justice, Henry X. O’Brien, “[i]t is more important to prevent the
      chaos inherent in bifurcated, trifurcated, and multifurcated
      appeals than it is to correct each mistake of a trial court the
      moment it occurs.” Calabrese v. Collier Township Municipal
      Authority, [] 248 A.2d 236, 238 ([Pa.] 1968) (O’Brien, J.,
      dissenting). Moreover, as parties may seek allowance of appeal
      from an interlocutory order by permission, we have concluded
      that that discretionary process would be undermined by an
      overly permissive interpretation of Rule 313. Geniviva [v.
      Frisk], 725 A.2d [1209,] 1214 n.5 [(Pa. 1999)].

Shearer, 177 A.3d at 858. See also Hession Condemnation Case, 242

A.2d 432, 437 (Pa. 1968) (O’Brien, J., dissenting) (commenting regarding

statute permitting immediate appeal of interlocutory order: “The bifurcated

appeal foisted upon the courts can only be termed a judicial Hydra. Would

that a Hercules could appear ... to slay this monster.”).

      Regarding the first prong, “an order is separable from the main cause

of action if it is ‘entirely distinct from the underlying issue in the case’ and if

‘it can be resolved without an analysis of the merits of the underlying




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dispute.’”10 K.C., 128 A.3d at 778 (citing Commonwealth v. Blystone, 119

A.3d 306, 312 (Pa. 2015)); see also Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546-47 (1949) (“We hold this order appealable

because it is a final disposition of a claimed right which is not an ingredient

of the cause of action and does not require consideration with it.”); Barak v.

Karolizki, 196 A.3d 208, 218 (Pa. Super. 2018) (citing Ben v. Schwartz,

729 A.2d 547, 552 (Pa. 1999) (“The element of separability requires that the

merits of the appeal must be resolvable ‘without analysis of’ the substantive

claims in the underlying lawsuit.”). “Although [appellate courts] tolerate a

degree of interrelatedness between merits issues and the question sought to

be raised in the interlocutory appeal, the claim must nevertheless be

conceptually distinct from the merits of plaintiff’s claim.”   Blystone, 119

A.3d at 312 (citation and quotation marks omitted).

       One of the complications with the collateral order doctrine as applied

to dependency matters is what precisely constitutes the main cause of

____________________________________________
10 Two classic examples of separable issues include standing and discovery.
See, e.g., K.C., 128 A.3d at 778 (“As the issue of whether [the a]ppellants
are among the individuals who have standing to seek custody … is a
conceptually distinct legal question which has no bearing on the central issue
within the custody action - who is entitled to physical and legal custody of
[the c]hild in light of her best interests - we find that the [a]ppellants have
established that the trial court’s order is separable from the main cause of
action.”); Shearer, 177 A.3d at 858 (“The discovery-based issue of whether
a plaintiff in a civil personal injury action has the right to counsel or other
representative during a neuropsychological examination is a distinct legal
question which has no bearing on the underlying issues in this negligence
action.”).


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action.   This Court has not been consistent with that determination.      In

Tameka M., which is a child welfare agency’s appeal from an order

mandating that the agency reimburse the foster parents of a dependent

child for preschool tuition, an en banc panel of this Court offered a narrow

interpretation of the main cause of action.      After reviewing the purposes

behind the Juvenile Act, this Court concluded that “the main cause of action

consists of a dependency determination and disposition,” a conclusion this

Court believed was reinforced by the fact it is the dispositional order that

constitutes a final, appealable order.   Tameka M., 534 A.2d at 786. The

Court also emphasized the distance between the two orders. Id. (“[T]he

order of disposition was entered in March of 1983[,] and it was not until

August of 1984 that the present order was entered. We find that the order

directing payment of the preschool funds is clearly separable from and

collateral to the order of disposition[.]”).   See also In re N.E., 787 A.2d

1040, 1041 (Pa. Super. 2001) (relying on Tameka M. to determine that an

appeal by child welfare agency of order requiring agency to pay a portion of

child’s dental bills was a collateral order); In re J.R., 875 A.2d 1111, 1114

(Pa. Super. 2005) (holding that an order requiring child welfare agency to

pay for telephone service for a parent “is separable from and collateral to

the main cause of action, which is the dependency determination and

disposition.”).




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       In other cases, however, this Court has viewed the “cause of action” to

be somewhat broader.           In In re J.S., the child had been adjudicated

dependent for over three years.          The initial permanency goal in 2005 was

reunification, but the goal changed in 2006 to adoption and then to

subsidized permanent legal custodianship (SPLC) in 2008.           After the last

goal change to SPLC, the child’s foster parents attempted to intervene in the

ongoing dependency proceedings. This Court determined that the issue of

standing was “separable from the central issue during the current stage of

the dependency proceedings, facilitating permanency.”11         In re J.S., 980

A.2d 117, 121 (Pa. Super. 2009) (emphasis added). This Court noted that

standing was a “distinctly legal question that does not address the merits of

the adjudication or the propriety of the permanency goal” and was

“peripheral to the substantive decisions affecting the child’s best interests,

which is the polestar of all dependency proceedings.” Id. See also In re

W.H., 25 A.3d 330, 335 (Pa. Super. 2011) (“The order fulfills the first prong

because the issue of [the child’s] mental health treatment is separable from

and collateral to the principal issue during the dependency proceedings,

facilitating permanency.”).



____________________________________________
11 At risk of stating the obvious, the concept of permanency means not
leaving a child in foster care “limbo” and instead ensuring the child lives in a
“permanent, safe, stable, and loving home[],” whether with the child’s
family or an “alternative permanent family.” In re T.S.M., 71 A.3d 251,
269 (Pa. 2013); 42 Pa.C.S. § 6301(b)(1).


                                          - 19 -
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       In other cases, it seems this Court has taken an even more expansive

view of what constitutes the main cause of action, implying that the

underlying cause of action is the permanency hearing at issue. See In re

T.R., 665 A.2d 1260, 1263 (Pa. Super. 1995) (holding that juvenile court’s

order of psychological evaluation of parent of dependent child and release of

such report to interested parties “is separable and collateral to the main

cause of action, namely the disposition of T.R.”), rev’d on other grounds,

731 A.2d 1276 (Pa. 1999) (plurality) (agreeing that the order was collateral

to disposition).12

       More recently, in N.M., the parents appealed from an order following a

permanency review hearing that occurred almost eight months after then

seven-month-old N.M. was removed from her parents based upon her

unexplained rib fractures.         At the permanency review hearing, although

N.M.’s permanency goal remained reunification and N.M.’s parents had

complied with their service plan objectives, the juvenile court refused to

return N.M. because the parents still had not explained how N.M. had
____________________________________________
12 We acknowledge that in T.R., this Court and our Supreme Court referred
to the cause of action as the disposition, not the permanency hearing. In
context, it appears that by using the term disposition, this Court at least was
referring to the ongoing review of the child’s disposition. See T.R., 665
A.2d at 1260 n.4 (noting “this appeal arises solely from the trial court’s
collateral orders as to disposition and does not challenge the propriety of the
underlying dependency adjudications. As such, our role here is limited to
reviewing the trial court’s actions in the context of the dispositional review
hearing.”); 42 Pa.C.S. § 6351 (including subsection (e) regarding
permanency hearings in section regarding “[d]isposition of dependent
child”).


                                          - 20 -
J-A13041-19


become injured. The parents requested that N.M.’s placement be changed

from foster care to kinship care, but the juvenile court denied their request.

When the parents appealed from the permanency review order, this Court

considered whether the order was an appealable collateral order. This Court

concluded it was not. Without elaboration, this Court determined that the

permanency review order was not “separable from or collateral to the main

cause of action where the only request was to change the placement of N.M.

(from foster care to kinship care) and where the placement remained the

same.” N.M., 186 A.3d at 1007-08.

      When reviewing our treatment of dependency cases as a whole, it is

apparent that this Court has not been consistent with its interpretation of

“the main cause of action” for purposes of R.A.P. 313. Sometimes we have

placed the emphasis on the underlying dependency adjudication and

disposition, even if the case has progressed into the permanency review

stage, see Tameka M., N.E., and J.R., supra; other times we have focused

on one of the broad goals in the particular stage of the case, see J.S. and

W.H., supra; and still other times we have looked to the purpose of the

particular hearing, see T.R. and N.M., supra.

      The    dependency   adjudication   and   disposition   certainly   are   the

backbone of the cause of action, especially considering the juvenile court

loses jurisdiction once the child at issue is no longer a child or no longer

dependent.    See Brooks-Gall v. Gall, 840 A.2d 993 (Pa. Super. 2003)



                                    - 21 -
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(holding   juvenile   court   acquires   jurisdiction   by   commencement       of

proceedings pursuant to 42 Pa.C.S. § 6321 of the Juvenile Act); In re S.J.-

L., 828 A.2d 352 (Pa. Super. 2003) (affirming juvenile court’s closure of

dependency case for child who no longer met the definition of dependent).

      Nevertheless, unlike other types of cases that are targeted towards

resolving the initial cause of action (i.e., is the defendant guilty of a crime, is

the defendant liable, etc.), “[m]ost dependency actions, and especially those

as prolonged as the one currently at issue, involve a variety of issues,

parties and [o]rders of court.”     In re Griffin, 690 A.2d 1192, 1200 (Pa.

Super. 1997). This is because once a child is dependent, the juvenile court

“maintains a continuing plenary jurisdiction in dependency cases under 42

Pa.C.S.[] § 6351 … and has the power to review the circumstances of

dependent juveniles and to question both the legal custodian, [the agency],

and the foster parents concerning the condition and the needs of the

dependent child.” Tameka M., 580 A.2d at 752; In re J.A., 107 A.3d 799,

809-10 (Pa. Super. 2015) (noting that due to its ongoing plenary

jurisdiction, “[t]he juvenile court is empowered to enter orders that are in

the child’s best interest consistent with the mandates of section 6351 of the

Juvenile Act”); Griffin, 690 A.2d at 1200 (describing “the statutory authority

of the Juvenile Court to exercise continuing independent and original

authority to adjudicate in the best interests of a dependent child”).




                                      - 22 -
J-A13041-19


       Once a child is adjudicated dependent, the juvenile court is tasked

with addressing many issues that relate to the best interest of the child but

may have little to do with the original basis for adjudicating the child

dependent.      See In re R.P., 956 A.2d 449, 454 (Pa. Super. 2008) (noting

that the dependency adjudication and disposition hearings address issues

different from the permanency review hearings); compare 42 Pa.C.S. §

6341 with 42 Pa.C.S. § 6351.            For example, a child could be adjudicated

dependent due to abuse or neglect by the child’s parents, but down the line,

if permanency is not achieved, the focus may shift more towards the child’s

well-being independent of the child’s parents, such as issues relating to the

child’s   education,    healthcare,     activities,   transition   to   adulthood,   and

relationships with siblings, kin, peers, caregivers, and service providers – all

of which the Juvenile Court must or may examine at each permanency

review hearing. See 42 Pa.C.S. § 6351.

       If the main cause of action is narrowly interpreted as the initial

dependency adjudication and disposition, almost any subsequent issue

addressed in a permanency review order would be separable from and

collateral to the main cause of action, despite certain issues being

statutorily-mandated.13       Furthermore, even if the main cause of action is

____________________________________________
13 In at least one case, however, this Court apparently determined that the
fact that an issue was a statutory matter to be addressed by the Juvenile
Court had no bearing on what constitutes the main cause of action. See In
re R.C., 945 A.2d 182, 184 (Pa. Super. 2008) (holding that an appeal from
(Footnote Continued Next Page)

                                          - 23 -
J-A13041-19


interpreted as obtaining permanency for a child – whatever that may mean

for the particular child in the current stage of the case – permanency is only

one purpose of the Juvenile Act.          See 42 Pa.C.S. § 6301(b)(1)-(4).          To

isolate the main cause of action as permanency does not pay credence to

the other equally valid purposes of the Act, such as providing “for the care,

protection, safety and wholesome mental and physical development of

children coming within the provisions of this chapter.”14 42 Pa.C.S.

§ 6301(b)(1.1).

      On the other hand, to go too far in the other direction by interpreting

the main cause of action too broadly could render many interlocutory orders

unreviewable under the collateral order doctrine, putting the onus on the

aggrieved party to attempt to use Pa.R.A.P. 312 to appeal an interlocutory

order by permission. As a practical matter, for court-appointed lawyers with

high caseloads, who make up the bulk of the legal representation in

dependency matters, this extra hurdle may often result in leaving the

juvenile   court’s   order    unchallenged,       especially   because   the   family’s
(Footnote Continued) _______________________
an order finding aggravated circumstances was “by definition … an appeal as
of right from a collateral [o]rder,” but without discussing the first prong of
the test).

14  Of course, a valid argument can be made that permanency ultimately
dominates all other goals, for if a child finds permanency, the child will no
longer be dependent and the caregiver will be the one to address the child’s
other needs, not the Commonwealth. But for some children, namely those
with a permanency goal of Another Planned Permanent Living Arrangement
(i.e., those in long-term foster care, congregate care, or independent living
arrangements), the other purposes of the Act are in the forefront.


                                         - 24 -
J-A13041-19


circumstances will keep changing while the appeal proceeds.      Some cases

will only be reviewed at the time of the goal change and/or termination of

parental rights stage, but by that time, the damage is often done.

      In the context of dependency proceedings, there is much more at

stake for the parties than their convenience. C.f. Pugar v. Greco, 394 A.2d

542, 546 (Pa. 1978) (“We have long held that, whenever possible, review

must await the determination of a suit notwithstanding any resulting

inconvenience to a party.”).   The bottom line is that due to the juvenile

court’s ongoing plenary jurisdiction, dependency proceedings are unique,

and do not neatly fit into the typical nomenclature used to discuss the

collateral order doctrine, which includes terms such as the “underlying

issue,” “merits of the underlying dispute,” “ingredient of the cause of

action,” “substantive claims in the underlying lawsuit,” and “merits of

plaintiff’s claim.” Cohen, 337 U.S. at 546-47; Ben, 729 A.2d at 552; K.C.,

128 A.3d at 778; Blystone, 119 A.3d at 312; Barak, 196 A.3d at 218. To

date, neither this Court nor our Supreme Court has addressed the

inconsistencies in our caselaw or definitively held what constitutes the main

cause of action within the meaning of Rule 313.

      The issue at hand in the instant case, visitation, is a perfect example

illustrating the quandary regarding what constitutes the main cause of

action.   If one views the cause of action as the underlying dependency

adjudication and disposition, then visitation with a parent is separable from



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J-A13041-19


the main cause of action. If one views the cause of action as the quest for

the child’s permanency, ensuring the child’s best interests, or any of the

statutorily-mandated determinations the juvenile court must make at each

hearing, then visitation is quite intertwined.

      In the lone case discussing appealability of an order relating to

visitation, J.S.C., which, as discussed supra, is a child welfare agency’s

appeal from an order mandating the agency to arrange visits between a

dependent child and her incarcerated mother, this Court was not specific

regarding what constitutes the underlying cause of action. See J.S.C., 851

A.2d at 191 (opining that “an order abridging a parent’s right to visitation

with his or her child is separable and collateral to a dependency action

because it does not require an analysis of the merits of the underlying

case.”).

      Once again, we are perplexed by J.S.C.’s analysis.        Visitation is

intertwined with physical custody and also legal custody (to the extent that

the legal custodian typically makes decisions about who can see the child).

Deciding who should have custody is part of the initial and ongoing

disposition of a child. See 42 Pa.C.S. § 6351(a). If a parent does not retain

legal or physical custody, part of the consideration of whether and how the

parent should have visitation is the amount of progress the parent has made

towards rectifying the conditions that brought the child into care and

whether the parent is engaging in conduct, including drug use, that places



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J-A13041-19


the child’s health, safety, or welfare at risk. See 42 Pa.C.S. § 6351(f)(3),

(f.2). It is hard to see how visitation is separable from the underlying cause

of action, no matter how narrow or wide one views the cause of action.

      We believe J.S.C.’s pronouncement on the applicability of the collateral

order test is dicta, and it is not controlling here.   This Court’s statement

regarding whether a parent’s right to visitation is separable from the

underlying merits was made in the context of analyzing an earlier decision

involving visitation, In the Interest of Rhine, 456 A.2d 608 (Pa. Super.

1983), a case in which this Court did not discuss the basis for exercising

jurisdiction or whether the order at issue was appealable. The J.S.C. Court’s

ultimate holding rested upon the second prong of the collateral order test,

importance of the right, not the first prong, seperability.   See J.S.C., 851

A.2d at 192 (holding that because the agency does not possess a right to

prevent a parent from visiting a child, the appeal does not involve a right

that is too important to be denied review).

      As the foregoing analysis demonstrates, the first prong of the

collateral order test is quite complicated as applied to dependency matters.

We leave for another day the resolution of what constitutes the cause of

action in a dependency matter, and whether a permanency review order

placing restrictions on a parent’s visitation is separable from the main cause

of action, because the instant case is dispositive on the last two prongs of

the collateral order test.



                                    - 27 -
J-A13041-19


      As noted above, the latter two prongs are importance of the right and

irreparable loss. Pa.R.A.P. 313(b) (providing that “the right involved is too

important to be denied review and the question presented is such that if

review is postponed until final judgment in the case, the claim will be

irreparably lost”).   There is no question that a parent’s “constitutionally

protected liberty interest” in visiting her dependent children is an important

right; this is reflected by the requirement that when the permanency goal

remains reunification, visitation should not be denied or reduced unless it

poses a “grave threat” to the children. See In re C.J., 729 A.2d 89, 94 (Pa.

Super. 1999). But the same cannot be said of a parent’s right to visit with

her dependent children in her home regardless of the parent’s and/or

children’s sobriety. Because Children have been adjudicated dependent and

Mother does not have custody of them, Mother does not possess an

unfettered right to visit with Children under any conditions.     See In the

Interest of T.D., Jr., 57 A.3d 650 (Pa. Super. 2012) (holding that juvenile

court has discretion as part of its dispositional powers under the Juvenile Act

to direct a parent to undergo a drug and alcohol evaluation before placing a

delinquent child with the parent). Moreover, there is no indication in the

record that Mother was denied the right to see Children in any fashion, or

was denied the right to visit with Children in her home environment

indefinitely. Accordingly, at this juncture, we conclude the right involved is

not too important to be denied review.



                                    - 28 -
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         Turning to the third prong, irreparable loss, we acknowledge that the

four days over the New Years’ holiday at issue cannot be recovered.          But

Mother’s right to home visits in general have not been irreparably lost at this

point.    The juvenile court explicitly told the parties at the hearing that it

would revisit the issue.       N.T., 12/27/2018, at 7.   The order itself did not

deny home visits indefinitely; it simply required Mother and Children to be

drug-free before visiting at Mother’s home.              Most significantly, the

permanency review hearing was continued for one month, meaning that the

juvenile court would have the opportunity to address the issue again after

hearing all of the most-up-to-date evidence in the case.15             Thus, we

conclude that even if the first prong of the collateral order test could be met,

the last two prongs are not met at the current time.

         C. Conclusion

         If this case involved a juvenile court’s repeated refusal to allow home

visits, thereby impeding reunification, Children’s well-being, and Children’s

opportunity to transition from congregate care to a family environment, our

analysis might lead us to a different result. But a restriction on the location

of visits that does not eliminate contact altogether and could be revisited in

a month simply is not the type of order that constitutes an appealable final



____________________________________________
15 Although the record reveals neither the outcome nor whether this issue
was revisited, it does indicate that another permanency review hearing was
scheduled for January 23, 2019.


                                          - 29 -
J-A13041-19


or collateral order. Therefore, we quash Mother’s appeal, and deny counsel’s

motion to withdraw as moot.16

       Appeal quashed. Motion to withdraw denied as moot.

       Judge Shogan joins this opinion.

       Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




____________________________________________
16 Because parents have a right to counsel at every stage of a dependency
proceeding, this Court has held that the Anders procedure applies to
appeals from goal change orders, even in the absence of an involuntary
termination decree. In re J.D.H., 171 A.3d 903 (Pa. Super. 2017). We see
no reason why the same rationale would not apply to an appeal from a
permanency review order that does not change the permanency goal. We
observe that in counsel’s letter to Mother accompanying the Anders brief
and motion to withdraw, counsel did not inform Mother that she has a right
to counsel in any subsequent dependency or involuntary termination
proceedings, and if she could not afford counsel, she must contact the trial
court in order to obtain new counsel. See J.D.H., 171 A.3d at 906–07. We
further observe that although counsel referenced Mother’s right to counsel in
this appeal in his letter, the letter also implied “incorrectly that Mother would
need to wait until this Court rules on his petition to withdraw before
exercising those rights” instead of making it clear that she may proceed on
her own or with newly-hired counsel immediately.                    Id. at 907.
Nevertheless, since we do not have jurisdiction over this appeal, we simply
deny counsel’s motion to withdraw as moot.


                                          - 30 -
