Opinion
No. 578 EDA 2019
02-19-2020
In the INTEREST OF: L.B., a Minor, Appeal of: A.W., Father
Jeffrey C. Bruch, Philadelphia, for appellant. Jane Hwang, Kathleen B. Kim, and Robert D. Aversa, Philadelphia, for appellee. Robert C. Connor and Pamela P. Ende, Philadelphia, for L.B., participating party.
Jeffrey C. Bruch, Philadelphia, for appellant.
Jane Hwang, Kathleen B. Kim, and Robert D. Aversa, Philadelphia, for appellee.
Robert C. Connor and Pamela P. Ende, Philadelphia, for L.B., participating party.
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.
Retired Senior Judge assigned to the Superior Court.
OPINION BY STRASSBURGER, J.:
A.W. (Father) appeals from the permanency review order entered on January 28, 2019, which, pursuant to the Juvenile Act, 42 Pa.C.S. § 6351, suspended his visitation with his son, L.B. (Child), who was born in October 2014. We vacate the order and remand for proceedings consistent with this opinion.
The juvenile court set forth the relevant factual and procedural history of this case.
On November 24, 2015, [ ] Child was adjudicated dependent.[ ] At the adjudicatory hearing, [the juvenile c]ourt found that, "based upon the findings of abuse, neglect[,] and/or dependency of the minor child[,]" it was in the best interest of the Child to [be removed] from [M]other's home. Father first showed up and made himself available to court proceedings on May 2, 2017. On July 17, 2017, [the trial court] ordered supervised visits for Father.[ ] On February
The juvenile court granted the petition of the Philadelphia Department of Human Services (DHS) to adjudicate Child dependent.
That same day, the court entered a decree terminating Mother's parental rights to Child. This Court affirmed that decree on February 7, 2018. In Interest of L.B. , 185 A.3d 1094 (Pa. Super. 2018) (unpublished memorandum).
2, 2018, Father was fully compliant with his objectives. Father and Child were referred to [Behavioral Health Services (BHS) ] for consultations and[/]or evaluations. At that hearing, [the juvenile court] also ordered family therapy to be implemented[,] if appropriate. On October 29, 2018, [the juvenile court] increased Father's visitation rights and ordered [his] visits to be from Friday to Sunday[,] overnight[,] on a weekly basis.
The overnight weekend visits continued until [ ] Child reported that Father hit him during one of the overnight visits. At which point, the visits were suspended pending investigation. It was further reported that [ ] Child is "extremely fearful" of Father. Child also alleged that Father had abused him during the weekend overnight visits. On January 24, 2019, [ ] Child completed an intake for trauma therapy. When asked the reason for the trauma therapy, [Shanese] Streams, the [Community Umbrella Agency (CUA) ] case manager, testified that there was an incident that happened in December where [ ] Child "had a visible bruise on his forehead and a report was generated through the hotline." [ ] Streams testified that Father was the alleged perpetrator in that report and that visits were suspended because of that report. [ ] Streams also indicated that she was part of the intake for [ ] Child's trauma therapy. She indicated that during the session, the Child "became visibly agitated when dad was mentioned." She indicated that at the start of the intake, [ ] Child was okay, but once the therapist started mentioning [Father], [ ] Child began "pinching" and "hitting" [the] foster parent, and was "cowering underneath the desk."
[ ] Streams further testified that since the visitations were suspended, [the] foster parent has reported that [ ] Child has been a lot better in the home and hasn't had as many tantrums and outbursts. [ ] Streams also testified that Father's goals were "to maintain compliance and cooperation with the court order, CUA involvement, developing parenting skills and comply with BHS services." [ ] Streams further indicated that she would rate Father's level of compliance with his goals as "minimal[.]"
Based on the foregoing testimony, [the juvenile court] issued a decree suspending Father's visits with the Child pending the recommendation of the Child's therapist.
Juvenile Court Opinion, 4/2/2019, at 1-3 (footnote added) (internal citations omitted).
On February 21, 2019, Father filed a timely 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). On appeal, Father contends that the juvenile court erred in suspending his visits with Child. Father's Brief at 3. Specifically, Father argues that his visitation with Child is an issue of law that should be for a judge or master to determine, not a therapist. Id. Father claims that a therapist may not know the legal "grave threat" standard, and may not want to make a decision that potentially involves liability on the part of the therapist. Id. Most importantly, Father alleges that he would not have an opportunity to have a hearing, present evidence, and cross-examine the therapist if the therapist makes a decision involving visitation. Id. Accordingly, Father contends that this Court should vacate the order entered by the juvenile court. Id. at 7.
The "grave threat" standard is met when "the evidence clearly shows that a parent is unfit to associate with his or her children." In re C.B. , 861 A.2d 287, 294 (Pa. Super. 2004).
Before we consider this issue, we must determine whether this Court has jurisdiction over the instant appeal. " ‘[S]ince 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.’ " Gunn v. Automobile Ins. Co. of Hartford, Connecticut , 971 A.2d 505, 508 (Pa. Super. 2009), quoting Kulp v. Hrivnak , 765 A.2d 796, 798 (Pa. Super. 2000).
"An appeal lies only from a final order, unless permitted by rule or statute." Stewart v. Foxworth , 65 A.3d 468, 471 (Pa. Super. 2013). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b). Here, the order on appeal fails to satisfy the requirements of Rule 341(b), as it did not dispose of all claims and all parties. Further, the order provided that a permanency review hearing would be held on April 16, 2019. Thus, the January 28, 2019 order is not a final order.
Accordingly, for this order to be appealable, it must satisfy the requirements of the collateral order doctrine.
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 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.
Interest of J.M. , 219 A.3d 645, 655 (Pa. Super. 2019) (quoting In re W.H. , 25 A.3d 330, 335 (Pa. Super. 2011) (some citations omitted)).
We begin our analysis by considering this Court's decision in J.M. In J.M. , this Court analyzed the appealability of a permanency review order, which did not change the parent's goal, but prohibited "visits at [the mother's] home if [the m]other or [the c]hildren tested positive for drugs." Id. at 649-50. We held that this order did not satisfy the second and third prongs of the collateral order doctrine and quashed the appeal.
"[A]n order granting or denying a goal change request, in a case involving a dependent child, is an appealable order." In re C.M. , 882 A.2d 507, 513 (Pa. Super. 2005).
Essentially, because the order did not prohibit the mother's visits with her children in their entirety, but rather placed restrictions on those visits, we concluded that the second and third prongs of the collateral doctrine were not satisfied. See id. at 660-61 (pointing out that with respect to the second prong, or whether the order involved a right "too important to be denied review," "there is no indication in the record that [the m]other was denied the right to see [the c]hildren in any fashion, or was denied the right to visit with children in her home environment indefinitely); id. at 661 (pointing out that with respect to the issue of whether the mother's claim would be irreparably lost, the "order did not deny home visits indefinitely; it simply required [the m]other and [the c]hildren to be drug-free before visiting at [the m]other's home"). Thus, because the order in J.M. failed to satisfy both the second and third prongs of the collateral order doctrine, this Court did not consider the first prong. See id. at 660 ("leav[ing] 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").
While the order in the instant matter bears some similarity to the order at issue in J.M. , there are important distinctions. First and foremost, the instant order denies Father visits altogether, and it is unclear when those visits may resume.
There is some conflicting information in the record regarding when visits are to resume. At the hearing, the trial court stated that visits "can begin upon the therapist's recommendation." N.T., 1/28/2019, at 17. In the order, the trial court stated that "Father's visits with the child are to remain suspended upon the recommendation of the child's therapist." Order, 1/28/2019. In any event, what is clear is the fact that Father's visits with Child are suspended and will remain that way for a period of time.
As a usual rule, parental visitation is not denied except where a grave threat to the child can be shown. The policy underlying the "grave threat" standard reflects the desirability of continuing contact between the parent and the child. It underscores the importance of each parent's maintaining a meaningful and sustaining relationship with the child.
In Interest of M.B. , 449 Pa.Super. 507, 674 A.2d 702, 705 (1996).
Here, Father contends that the trial court erred by outsourcing the decision regarding the resumption of Father's visitation to a therapist, which according to Father, denies him due process. Father also contends that the juvenile court entered an order denying visitation without a finding that he posed a grave threat to Child. This purported error may well result in much more than the denial of a visit or series of visits. It ultimately can affect a custody determination or even the termination of parental rights. A parent denied any visitation can be "behind the eight ball" for a child's entire minority. Thus, because this order resulted in the complete denial of visitation, it is both a "right ... too important to be denied review," and "if review is postponed until final judgment in the case, the claimed right will be irreparably lost." Pa.R.A.P. 313(b). Accordingly, unlike the order in J.M. , this order satisfies both the second and third prongs of the collateral order doctrine.
We now turn to the first prong of the collateral order doctrine, which was not addressed in J.M. We must consider whether the order appealed from "is separable from and collateral to the main cause of action." Pa.R.A.P. 313(b). In doing so, we recognize the caveat set forth in J.M.
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, ... other times we have focused on one of the broad goals in the particular stage of the case, ... and still other times we have looked to the purpose of the particular hearing....
J.M. , 219 A.3d at 657-58.
Even though our treatment of dependency cases has not been consistent, as pointed out in J.M. , our Supreme Court has also held that "the collateral order rule's three-pronged test must be applied independently to each distinct legal issue over which an appellate court is asked to assert jurisdiction pursuant to Rule 313." Rae v. Pennsylvania Funeral Directors Ass'n , 602 Pa. 65, 977 A.2d 1121, 1130 (2009).
Instantly, Father assails the juvenile court's decision to outsource to a therapist the determination of when his visits with Child may or may not resume. Father's Brief at 3-4. Among other things, Father is concerned that a therapist is not familiar with the aforementioned "grave threat" standard. Id. at 4. Reviewing the appealability of this order in light of the issue presented, it is clearly separable from and collateral to the main cause of action, no matter how that cause of action is defined. Thus, we conclude that this order satisfies the first prong of the collateral order doctrine, because Father presents a distinct legal issue that is not at all related to the underlying issues in this case.
On appeal, Father argues that the trial court erred in by "giving judicial power to the therapist to decide when visits can occur." Father's Brief at 4. Father argues that "only a [j]udge or a master should decide when visits should or should not occur [because a] therapist does not have the legal background to make a legal decision." Id. Importantly, Father argues that a therapist may not understand the legal grave-threat standard. Id.
Our scope and standard of review in dependency cases is as follows:
[W]e must accept the facts as found by the trial court unless they are not supported by the record. Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.
C.M. , 882 A.2d at 513.
At each permanency review hearing, the juvenile court is required to determine "whether the visitation schedule for the child with the child's guardian is adequate, unless a finding is made that visitation is contrary to the safety or well-being of the child." Pa.R.Juv.P. 1608(D)(1)(q).
In reviewing a trial court's denial of visitation, [this Court] look[s] to whether there exists clear and convincing evidence that visitation would present a grave threat to the child. When making this determination, we must take into consideration the express legislative policy of preservation of the family. Therefore, the trial court is required to consider options such as structured visitation with the aid of an agency; only where there are no practicable visitation options can visitation be denied.
In Interest of Coast , 385 Pa.Super. 450, 561 A.2d 762, 771-72 (1989) (internal citations omitted).
In its opinion, the juvenile court concludes that "Father's conduct during the December incident posed a grave threat to [ ] Child." Juvenile Court Opinion, 4/2/2019, at 3. This may be true; however, it is Father's position that the juvenile court erred by then outsourcing the decision of when those visits may or may not resume to a therapist, rather than to itself as the ultimate arbiter of whether Father poses a grave threat to Child or if other less restrictive measures are available rather than suspending visits altogether. The rules, as discussed supra , provide that decisions regarding visitation are to be made by the court. Thus, we agree with Father that the court erred in this respect. Accordingly, we vacate the order and remand for proceedings consistent with this opinion.
In doing so, we point out that Child has been in placement since 2015, and his mother's parental rights have already been terminated. Father has been working towards reunification since 2017, when he first made himself available to DHS. Due to the lengthy history of this case, it is necessary that the trial court move with deliberate speed in determining whether Father poses a grave threat to Child and resolving this visitation issue, as Child has been awaiting permanency for almost four years at this juncture.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Stabile files a Concurring Opinion in which Judge Strassburger joins.
Judge Olson files a Dissenting Opinion.
CONCURRING OPINION BY STABILE, J.:
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, 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.
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 982. 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 "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. , 219 A.3d 645, 656-57 (Pa. Super. 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 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 *4.
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 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.
DISSENTING OPINION BY OLSON, J.:
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 Child "ha[d] been doing ‘a lot better in the home’ " since visitation with Father was suspended, 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.
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.
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 971; 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 doctrine and then agrees with Father that the trial court wrongfully abandoned its judicial duties. Id. at 976–78. 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 977. Next, the Majority explains that, "because this order resulted in a complete denial of visitation," it meets both the second and third prong of the collateral order doctrine. Id. at 976. 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 976.
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).
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. 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, 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.
The trial court terminated Mother's parental rights on July 17, 2017. See Interest of L.B. , 185 A.3d. 1094 (Pa. Super. 2018) (unpublished memorandum), at 1-17.
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.
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.
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.
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 ––––; 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 , 310 Pa.Super. 275, 456 A.2d 608, 612 (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. , 219 A.3d 645, 656-57 (Pa. Super. 2019) (explaining that consistent application of the collateral order doctrine has alluded this Court in the context of dependency matters). Notably, this Court's 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." 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), 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.
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. , 219 A.3d at 660-61. 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.
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.