In re Father, No. 578 EDA 2019

• Decision Date: 19 February 2020
• Docket Number: No. 578 EDA 2019
• Citation: 229 A.3d 971
• Parties: In the INTEREST OF: L.B., a Minor, Appeal of: A.W., Father
• Court: Pennsylvania Superior Court

229 A.3d 971

In the INTEREST OF: L.B., a Minor,

Appeal of: A.W., Father

No. 578 EDA 2019

Superior Court of Pennsylvania.

Submitted June 17, 2019

Filed February 19, 2020

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.^*

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.^{[1 ]} 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.^{[2 ]} On February 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,³ 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.

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,⁴ 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.

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.⁵

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. ,...