J-S35004-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.B., A MINOR,

APPEAL OF: A.W., FATHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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-FN-002498-2015

FID: 51-FN-002498-2015

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 08, 2020

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 

memorandum.

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 

 

1 The juvenile court granted the petition of the Philadelphia Department of 

Human Services (DHS) to adjudicate Child dependent.
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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 

 

2 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).
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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. 

 

3 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).
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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 
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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., __ A.3d __, 2019 WL 4385685, at *6-7 (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 *1. 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 *11 (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 *12 

(pointing out that with respect to the issue of whether the mother’s claim 

 

4 “[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).
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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 *11 (“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., 674 A.2d 702, 705 (Pa. Super. 1996).

 

5 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.
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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 
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particular stage of the case, ... and still other times we have 

looked to the purpose of the particular hearing....

J.M., 2019 WL 4385685, at *9.

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, 977 A.2d 1121, 1130 (Pa. 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 
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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, 561 A.2d 762, 771-72 (Pa. Super. 1989) (internal 

citations omitted).
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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 memorandum.

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 Statement in which

Judge Strassburger joins.

Judge Olson files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/8/20