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

J-S35004-19
2020 Pa. Super. 41
IN THE INTEREST OF: L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 578 EDA 2019
Appeal from the Order Entered January 28, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002974-2015,
FID: 51-FN-002498-2015
BEFORE: OLSON, J., STABILE, J., and STRASSBURGER, J.*
DISSENTING OPINION BY OLSON, J.: FILED FEBRUARY 19, 2020
I believe this Court lacks jurisdiction over the instant appeal and that
the learned Majority misapplies the collateral order doctrine to reach the
merits of the parties’ dispute. Hence, for the reasons that follow, I respectfully
dissent.
My analysis begins with the trial court’s Rule 1925(a) opinion. In its
opinion, the trial court explained that on January 28, 2019, it “temporarily
suspended [Father’s] visits pending the Child’s therapist recommendation”
after it found that Father posed a grave threat to Child. Trial Court Opinion,
4/2/19, at 5 (emphasis added). The court’s grave threat determination rested
upon its finding that Child presented with a visible bruise on his forehead and
that a Community Umbrella Agency (CUA) worker testified credibly that, “Child
became visibly agitated as the therapist started mentioning Father[,]” that
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* Retired Senior Judge assigned to the Superior Court.
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Child “ha[d] been doing ‘a lot better in the home’” since visitation with Father
was suspended,1 and that the “Child could have suffered mental trauma which
could impede his physical and mental development in the future.” Id. at 4-5.
Thus, the trial court opinion clarifies that, in January 2019, it temporarily
suspended visitation to investigate the cause of Child’s injury and to afford
the therapist an opportunity to consider what impact Father’s visits had on
Child.
Despite these undisputed facts, Father lodged an appeal claiming that
the trial court improperly “outsource[d] to a therapist the determination of
when his visits with Child may or may not resume.” Majority Opinion at *8;
see also Father’s Brief at 3-4. Accepting Father’s characterization of the
facts, the learned Majority first holds that Father raised an appealable claim
under the collateral order doctrine2 and then agrees with Father that the trial
court wrongfully abandoned its judicial duties. Id. at *8-10. Specifically, the
Majority concludes that Father’s claim is “clearly separable from and collateral
to the main cause of action, no matter how that cause of action is defined.”
Id. at *8. Next, the Majority explains that, “because this order resulted in a
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1 Due to the incident that occurred in December 2018, Father’s visitation was
already suspended on or before January 19, 2019. See Resource Family
Reporting Form, 1/19/19, at 2.
2 Pennsylvania Rule of Appellate Procedure 313 defines a collateral order as
one that: “1) is separable from and collateral to the main cause of action; 2)
involves a right too important to be denied review; and 3) presents a question
that, if review is postponed until final judgment in the case, the claim will be
irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, n.8 (Pa.
Super. 2012); Pa.R.A.P. 313(b).
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complete denial of visitation,” it meets both the second and third prong of the
collateral order doctrine. Id. at *7. Turning to the merits, the Majority holds
that the trial court did, in fact, err by “outsourcing its decision of when those
visits may or may not resume to a therapist” and as such, vacated the order
and remanded for further proceedings. Id. at *10.
A thorough review of the certified record reveals that the temporary
suspension of Father’s visitation did not produce a prolonged or sustained loss
of Father’s interest and that the trial court – throughout these proceedings –
always retained responsibility for determining when visitation was
appropriate.
In this case, Father did not have any contact with Child prior to the
commencement of judicial proceedings. Indeed, Child was adjudicated
dependent on November 24, 2015. Trial Court Order, 11/24/15, at 1. Father,
however, did not “show[] up and [make] himself available” until May 2, 2017.
Trial Court Opinion, 4/2/19, at 1-2. Following a paternity test, on July 17,
2017, the trial court ordered supervised visits for Father.3 Id.; see also Trial
Court Order, 5/2/17, at 2; Trial Court Order, 7/17/17, at 1-2. Subsequently,
the court conducted a series of regularly scheduled permanency review
hearings to monitor Father’s compliance with his objectives. See Trial Court
Order, 10/3/17, at 1-2; Trial Court Order, 2/2/18, at 1-2; Trial Court Order,
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3 The trial court terminated Mother’s parental rights on July 17, 2017. See
Interest of L.B., __ A.3d.___, 2534 EDA 2017 (Pa. Super. 2018)
(unpublished memorandum), at 1-17.
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4/30/18, at 1-2; Trial Court Order, 7/30/18, at 1-2. Eventually, on October
29, 2018, the court increased Father’s visitation rights to weekly overnight
visits, every Friday to Sunday. Trial Court Order, 10/29/18, at 2. This was
the first time Father was permitted to engage in unsupervised visits with Child.
In December 2018, however, visitation was suspended after the Child reported
that Father hit him and the Child “had a visible bruise on his forehead.” N.T.
Permanency Review Hearing, 1/28/19, at 5.
On January 28, 2019, the trial court conducted a permanency review
hearing. N.T. Permanency Review Hearing, 1/28/19, at 1-19. During the
hearing, Shanese Streams, the CUA case manager, testified about the incident
that occurred in December 2018 and Child’s subsequent behavior. Id. at 4-
15. Thereafter, the trial court asked for the “recommendations” of the parties
and the following exchange occurred:
The court: Okay. Child is to remain as committed/remain as
placed. Visitation will remain status quo, can begin upon the
therapist’s recommendation. When visitation eventually is
re[-]established, I want family therapy to begin, as well.
Let’s give it a date.
[Father’s Counsel]: I guess that family therapy would be dad,
because I think it was a problem before, whether it was the foster
parent or dad. If we can just make that clear –
The court: Family therapy –
[Father’s Counsel]: --through family therapy
The court: --when I’m saying family therapy, I mean with
[F]ather.
[Father’s Counsel]: Okay.
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The court: But that is only upon the – that will only begin upon
the recommendation of the therapist. Give it a date. We can send
it out.
Id. at 17 (emphasis added). Then, the trial court scheduled a permanency
review hearing for April 16, 2019 at 1:30 p.m. Id. at 17-18.
Upon review, I disagree with the Majority’s conclusion that the trial court
improperly outsourced its decision regarding Father’s visitation to a therapist.
Indeed, the aforementioned exchange proves that no outsourcing occurred.
The trial court expressly declared that the suspension was temporary, asked
for a recommendation, and scheduled a subsequent permanency hearing for
April 2019 to receive the requested input. This strongly implies that the court
– itself - would remain the ultimate arbiter of Father’s visitation rights and
make the determination of whether Father’s visits could resume. By vacating
the trial court’s order and remanding for further proceedings, the Majority
simply directs the court to do exactly what it already intended to do: decide
whether Father’s visits can resume upon hearing a recommendation by the
therapist.4
Moreover, I disagree with the Majority’s conclusion that the instant
appeal meets the third prong of the collateral order doctrine because the order
resulted “in the complete denial of visitation.” See Majority Opinion at *7;
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4 It is ironic, in my view, that the Majority’s remand order essentially directs
the trial court to conduct an assessment it has already made based, invariably,
on input it has already requested. This is a misapplication of the collateral
order doctrine and a misuse of scarce judicial resources.
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see also Pa.R.A.P 313(b)(3) (explaining that “the question presented [must]
be such that if review is postponed until final judgment in the case, the claimed
right will be irreparably lost”). Previously, this Court has permitted appeals
only when the denial of visitation results in a “‘prolonged, indefinite or a
permanent loss of a substantial private interest.’” In re J.S.C., 851 A.2d 189,
191 (Pa. Super. 2004), quoting In Interest of Rhine, 456 A.2d 608, 612
(Pa. Super. 1983). Thus, short denials of visitation are generally not
appealable. Here, the trial court denied Father visitation from January 28,
2019 until April 16, 2019, when it scheduled a permanency hearing to review
the matter. N.T. Permanency Review Hearing, 1/28/19, at 17-18. Moreover,
upon suspending Father’s visitation, the trial court stated: “[w]hen
visitation eventually is re[-]established, I want family therapy to begin,
as well.” Id. at 17 (emphasis added). Both acts evidence the trial court’s
intent to ensure that Father’s visitations rights were only suspended for a short
period of time. Accordingly, I would conclude that the instant appeal does not
meet the third prong of the collateral order doctrine.
The Majority’s decision to permit Father’s appeal exacerbates the
inconsistent application of the collateral order doctrine in the context of
dependency matters, which we have acknowledged in recent cases. See
Interest of J.M., 2019 WL 4385685, at *8 (Pa. Super. Sept. 13, 2019)
(explaining that consistent application of the collateral order doctrine has
alluded this Court in the context of dependency matters). Notably, this Court’s
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recent decision in In re S.W., 2019 WL 5078918, at *1 (Pa. Super. Oct. 10,
2019) (memorandum opinion by Stabile, J.) illustrates this point. Id.
The pertinent facts of S.W. are as follows. The trial court adjudicated
S.W. and L.J.-S (“the Children”) dependent on June 21, 2017. Id. Eventually,
S.S. (“Mother”) was permitted to have “line-of-sight/line-of-hearing visits
only.” Id. On February 14, 2019, however, the trial court suspended Mother’s
visits “temporarily, until a recommendation is received from the child’s
therapist” after a CUA case manager “expressed concern that Mother made
inappropriate statements to the Children during visits, which appeared to
cause negative reactions.” Id. at *1-2. Mother appealed. Id. at *3. As in
the present case, we first addressed whether this Court had jurisdiction to
consider the merits of the appeal. Id. After concluding that the “orders
[were] not final,” we proceeded to an analysis of the collateral order doctrine.
Id. at *4.
Ultimately, S.W. concluded that “the February 14, 2019 orders fail to
satisfy the third prong of the collateral order doctrine.”5 Id. Specifically, we
held that “Mother’s claims will not be irreparably lost if we postpone review.”
Id.; quoting In re Estate of McAleer, 194 A.3d 587, 593 (Pa. Super. 2018),
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5 Like in J.M., the Court in S.W. “decline[d] to consider whether the issue of
Mother’s visitation is separable from and collateral to the main cause of action
of the Children’s dependency.” In re S.W., 2019 WL 5078918 at *4; see
also Interest of J.M., 2019 WL 4385685, at *11. But, S.W. concluded that
Mother’s appeal “clear[ly] . . . satisfies the second prong of the collateral order
doctrine, as Mother has a constitutional right to visits with the Children.” Id.
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appeal granted, 201 A.3d 724 (Pa 2019). In reaching this decision, we
reasoned that the trial court merely “suspended Mother’s visitation with the
Children temporarily, pending a recommendation from a therapist:” it did not
deny visits indefinitely. Id. Therefore, we concluded that, awaiting the trial
court’s “ultimate decision as to whether to suspend visits” would ensure a
“more developed record,” and would “avoid the possibility of expending time
and resources considering the merits of Mother’s appeal, only for the [trial]
court to reinstate visits, rendering our efforts inconsequential.” Id.
Herein, this Court is presented with the exact same order as S.W. This
time, however, the panel reaches the opposite conclusion. In doing so, it
perpetuates this Court’s inconsistent application of the collateral order
doctrine in the context of dependency litigation. For each of the foregoing
reasons, I respectfully dissent.
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