In the Int. of: L.B., Appeal of: A.W. ( 2020 )

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.
J-S35004-19
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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