J-S05029-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF J.A., A MINOR 

APPEAL OF: M.R.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1451 WDA 2018

Appeal from the Order Entered September 17, 2018

in the Court of Common Pleas of Lawrence County Civil Division at 

No(s): CP-37-DP-0000095-2013

IN THE INTEREST OF K.R., A MINOR 

APPEAL OF: M.R.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1452 WDA 2018

Appeal from the Order Entered September 17, 2018 

in the Court of Common Pleas of Lawrence County Civil Division at 

No(s): CP-37-DP-94-2013

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

 FILED MAY 23, 2019

If I were to reach the merits, I would agree with the Majority that the 

orders should be vacated and the case remanded to address the Children’s 

appearance at the hearing. However, I do not think the orders are 

appealable. The Majority holds that the permanency review order from 

which Mother appeals is a final order pursuant to In re H.S.W.C.-B., 836

A.2d 908 (Pa. 2003). For the reasons that follow, I disagree and would 

quash this appeal. 
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In H.S.W.C.-B., our Supreme Court examined whether a party should 

be permitted to appeal from an order that denied petitions to terminate 

parental rights and change the permanency goal. This Court had quashed 

the appeal of the child welfare agency that filed the petitions because the 

order denying the petitions maintained the status quo. The child welfare 

agency appealed to our Supreme Court. The Supreme Court rejected the 

holding of our Court, reasoning that “[m]aintaining the status quo could put 

the needs and welfare of a child at risk” because if the same trial judge 

repeatedly and erroneously denies requests to change the permanency goal, 

the “improper order” would always be shielded from appellate 

review. H.S.W.C.-B., 836 A.2d at 910–11. The Court further reasoned that

[a]ll orders dealing with custody or visitation, with the exception 

of enforcement or contempt proceedings, are final when entered. 

Pa.R.C.P. 1915.10. Such an order may be modified at any time, 

provided the modification is in the best interest of the 

child. See 23 Pa.C.S. § 5310; Karis v. Karis, [] 544 A.2d 1328, 

1331–32 ([Pa.] 1988). If denial of a custody modification 

petition is final when entered, the denial of a proposed goal 

change or petition for termination of parental rights should 

logically be deemed final as well. ... We now adopt the recent 

pronouncement in In re ALD, [797 A.2d 326 (Pa. Super. 

2002)], where the Superior Court declared all orders in 

termination matters final. An order granting or denying a status 

change, as well as an order terminating or preserving parental 

rights, shall be deemed final when entered. See id.

H.S.W.C.-B., 836 A.2d at 911.

In the years following H.S.W.C.-B., our Court has wrestled with how 

far to extend our Supreme Court’s holding. The first precedential decision 

following H.S.W.C.-B. considered whether H.S.W.C.-B. should be extended 
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to a delinquency dispositional review hearing order maintaining a child’s 

commitment to a treatment facility. In re M.D., 839 A.2d 1116, 1122 (Pa. 

Super. 2003). Our Court observed that as in H.S.W.C.-B., a determination 

that the order was interlocutory meant that a child’s improper commitment 

could be shielded from appellate review, but it nevertheless declined to 

extend broadly H.S.W.C.-B.’s holding when doing so would have 

implications for Pa.R.A.P. 1701 and the authority of a trial court to proceed 

in matters on appeal. Id. This Court concluded that such an extension is “a 

task [] best left to the state Supreme Court or its Rules Committee.” Id.

This Court exercised similar restraint in In re J.S.C., 851 A.2d 189 

(Pa. Super. 2004), when considering whether to extend H.S.W.C.-B. to a 

child welfare agency’s appeal of a permanency review order granting 

expanded visitation to a dependent child’s parent. After reviewing 

H.S.W.C.-B. and M.D., we concluded 

that our Supreme Court’s admonition in H.S.W.C.-B. [] that 

“[a]ll orders dealing with custody or visitation, with the 

exception of enforcement or contempt proceedings, are final 

when entered” referred solely to orders entered pursuant to the 

Adoption Act, 23 Pa.C.S.[] § 2501, et. seq., and is not 

controlling in our analysis of the finality of visitation orders 

entered following adjudication under the Juvenile Act, 42 

Pa.C.S.[] § 6301, et. seq.[1] See, e.g., M.D., 839 A.2d at 1122. 

 

1 Although I am bound to follow precedential decisions of this Court, I 

disagree with the panel’s assessment in J.S.C. that our Supreme Court’s 

statement in H.S.W.C.-B. must have been limited only to orders entered 

pursuant to the Adoption Act. It is unclear how the panel in J.S.C. arrived at 

that holding considering H.S.W.C.-B. involved orders entered pursuant to 

the Adoption Act and Juvenile Act. 

(Footnote Continued Next Page)
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Therefore, as was the case in M.D., we decline to consider 

prospectively whether the Pennsylvania Supreme Court would 

extend the holding of H.S.W.C.-B. [] to a case such as the one 

before us, where a children and youth agency appeals from an 

order granting visitation to the parent of a dependent child. Id.,

839 A.2d at 1122. This question is best left to our Supreme 

Court or its Rules Committee. Id., 839 A.2d at 1122. 

Accordingly, we conclude that the order in the present case is 

not a “final order.”

J.S.C., 851 A.2d at 191. 

Conversely, this Court justified the appealability of a permanency 

review order in In re C.M., 882 A.2d 507 (Pa. Super. 2005) by reasoning 

that the order was reviewable because it “involved a change in C.M.’s 

placement status, in that it determined which of two potential adoptive 

homes would be selected for C.M.’s permanent placement” and was “the 

type of order, discussed by the Court in H.S.W.C.-B., which “could put the 

needs and welfare of the child at risk” if it were not reviewable on appeal.” 

(Footnote Continued) _______________________

 Moreover, a close reading of H.S.W.C.-B. reveals that when our Supreme 

Court referred to visitation orders, it is most likely that the Court was 

referring to visitation orders entered under the Child Custody Act. Right 

after the Court references visitation and custody orders, the Court compares 

and contrasts the appealability of a denial of “custody modification” with the 

denial of “proposed goal change or petition for termination of parental 

rights.” H.S.W.C.-B., 836 A.2d at 911. Thus, the context of the statement 

causes me to question whether the Court really meant to hold that any order 

in any context relating to visitation or custody is final and immediately 

appealable when entered. However, a panel of this Court recently 

interpreted the Court’s statement in H.S.W.C.-B. in just that fashion. See 

In the Interest of N.M., 186 A.3d 998, 1006 (Pa. Super. 2018) (citing 

H.S.W.C.-B. for the proposition that all orders dealing with visitation or 

custody, with exception of enforcement or contempt proceedings, are final 

when entered).
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C.M., 882 A.2d at 513; see also In re C.B., 861 A.2d 287, 289 n.1 (Pa. 

Super. 2004) (applying H.S.W.C.-B. without discussion to hold that 

permanency review order suspending parent’s visits was a final appealable 

order); In re M.J.S., 903 A.2d 1, 2 (Pa. Super. 2006) (reviewing an appeal 

from vacation of an adoption decree despite contemplation of further 

proceedings because otherwise the needs and welfare of child were at risk). 

In more recent years, the cases regarding a question of finality 

involved a change to the permanency goal, i.e., a change in status in the 

case. See In Interest of Z.V., 158 A.3d 665, 668 (Pa. Super. 2017) 

(holding permanency review order was final and appealable because the 

order added a concurrent goal of adoption and made a finding that 

reunification had been ruled out as to Mother as a viable goal); In Interest 

of R.W., 169 A.3d 129, 130–31 (Pa. Super. 2017) (deeming permanency 

goal to have changed implicitly because juvenile court ordered agency to file 

termination of parental rights petition; thus, permanency review order was 

final and appealable because it involved a status change).

This past year, however, this Court examined H.S.W.C.-B. to 

determine whether a permanency review order that did not affirmatively 

change the status of the case was appealable. In N.M., supra, the 

permanency review order maintained the child’s placement in foster care 

with a permanency goal as reunification, but denied the parents’ request to 

change the child’s placement from foster care to kinship care. To begin, a
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panel of this Court distinguished the case from H.S.W.C.-B. According to 

the N.M. panel, unlike H.S.W.C.-B., the trial court in N.M.’s case “did not 

grant or deny a status change; the goal remained reunification throughout 

and [N.M.’s p]arents never asked for it to be changed.” N.M., 186 A.3d at 

1006. Because N.M.’s parents requested only a placement change, this 

Court did not find H.S.W.C.–B. to be controlling.2 Id. Thus, this Court 

appears to have interpreted the term “status change” narrowly to refer to a 

change in permanency goal status, not a change in the type of placement. 

But see C.M. supra (holding permanency review order was reviewable 

because it involved a permanency review order deciding which of two preadoptive families was in CM’s best interest, and therefore was a change in 

C.M.’s “placement status”). Id.

Although the issue is not free from doubt, based upon the existing 

case law and the factual circumstances of this case, I believe the Majority is 

incorrect in holding that H.S.W.C.–B. controls the instant case. This case is 

an appeal from a permanency review order that maintained the permanency 

 

2 Ultimately, the N.M. panel determined that the permanency review order 

was reviewable because the trial court had terminated the parental rights to 

N.M. According to the N.M. panel, this meant “the entire record from the 

permanency hearings, including that from the [permanency review hearing 

at issue, was] now reviewable on appeal from the court’s termination 

decrees.” Id. In other words, the entry of the TPR order acted to finalize 

the interlocutory permanency review orders. The panel’s ultimate holding in 

N.M. does not impact our analysis in the instant case because according to 

the record in the instant case, the petition to terminate parental rights is still 

pending. 
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goal as reunification with a concurrent goal of adoption. See generally 

Permanency Review Orders, 9/17/2018. The children’s placement did not 

change. Id. The children still do not wish to visit with Mother and the 

juvenile court ordered no change in visitation. Id. Although the record for 

the termination matter is not before us, I discern from the record that the 

juvenile court has been presiding over simultaneous goal change and 

termination of parental rights hearings, approximately eight hearings have 

occurred over an extended period of time, and the decision regarding the 

agency’s request to change the goal and the agency’s petition for 

termination of parental rights was pending. 

During the hearing, Mother testified that she had completed all 

requested programs except obtaining a second parental capacity evaluation 

from an agency-approved provider; she would like to be reunified with 

Children; she desires reunification therapy with Children; she desires visits 

with Children; and she had requested visits from the agency repeatedly. 

N.T., 9/17/2018, at 15-16. At the conclusion of the hearing, Mother’s 

counsel argued the agency did not prove that reunification could not occur. 

See id. at 17. Even if we construed Mother’s testimony as an affirmative

request for return of Children, visitation with Children, and a particular 

service, it appears that these are not new requests from Mother. Nor were 

the requests from Mother based upon a change in circumstances or new 

information. 
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In my view, it is unclear how far our Supreme Court desired the 

holding in H.S.W.C.-B. to extend. Read strictly, “[a]n order granting or 

denying a status change” could apply to every permanency review hearing 

where a request relating to the state or condition of a child or parent’s 

circumstances was made. 

While I disagree with the N.M. panel that a placement change could 

never constitute a status change and render an order appealable, I also do 

not believe our Supreme Court intended to permit immediate review of each 

permanency review order. Even with our special expedited rules for cases 

designated as children’s fast track cases, the wheels of appellate review turn 

too slowly to address effectively the vast majority of issues in dependency 

matters. While a juvenile court’s decisions should not be shielded from 

review forever,3 permitting appeals from each permanency review order runs 

 

3

Indeed, I think this Court should decide the appealability in status quo 

permanency review cases on a case by case basis, lest an “improper order” 

be permanently shielded from appellate review. See H.S.W.C.-B., 836 A.2d 

at 910–11. There are some cases where the goal remains the same for an 

extended period, no party is seeking to change the goal, and the trial court 

continually orders or refuses to order something that is or is not in the best 

interest of the child. Consider, for example, the case of a child for whom 

adoption or guardianship with a family member is not a feasible prospect. 

Some children remain in foster or congregate care for years, with the only 

truly final order being the last one before they age out of the system. There 

needs to be a balance between avoiding interference with the permanency 

review process on the one hand and permitting the trial court to have 

unfettered discretion by not reviewing orders on the other hand. I do not 

believe this case presents a situation like H.S.W.C.-B. where “[m]aintaining 

the status quo” for the time being is putting “the needs and welfare of a 

(Footnote Continued Next Page)
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counter to the pursuit of expeditious permanency for children. Were we to 

permit appeals from each six-month permanency review hearing (or in some 

counties, each three-month permanency review hearing), it would be 

impossible for the juvenile court to maintain regular reviews of the case

without running afoul of Pa.R.A.P. 1701. Our Supreme Court in H.S.W.C.-B. 

was able to bypass that problem by instructing juvenile courts to continue to 

conduct regular permanency reviews while the goal change denial or grant is 

on appeal. However, as an error-correcting court, it would be outside our 

authority to impose such a directive were we to permit appeals of all 

permanency review hearings. Further, the detriment of delay is not 

outweighed by the benefits of prompt review, as most decisions by the 

Juvenile Court are reviewed only for an abuse of discretion, and we often 

must defer to the assessments of the juvenile court, which has firsthand 

experience with the family. 

By permitting review of this permanency review order, which occurred 

following a permanency review hearing in which no new evidence or 

requests were made and which occurred in the midst of ongoing hearings4

(Footnote Continued) _______________________

child at risk,” id., since appealable orders (i.e., the orders from the 

termination and goal change hearings) were pending. 

4

It is concerning that the termination and goal change hearings have 

stretched out for such an extended period, leaving the children and Mother 

in a state of limbo. Obviously, it is imperative to come to the correct result 

after careful examination of all of the relevant evidence, and in some cases, 

multiple hearings are warranted. However, “courts must keep the ticking 

(Footnote Continued Next Page)
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designed to review the history of the case, I believe the Majority’s holding 

opens the door to rendering all permanency review orders immediately 

appealable. In short, if this order is appealable, it is difficult to fathom a 

permanency review order that would not be immediately appealable.5 

Therefore, I would quash this appeal because the order appealed from is an 

interlocutory order.6

(Footnote Continued) _______________________

clock of childhood ever in mind. Children are young for a scant number of 

years, and we have an obligation to see to their healthy development 

quickly.” In re T.S.M., 71 A.3d at 269. Accordingly, our Supreme Court 

expects “trial courts to control these proceedings, focus the issues, direct the 

testimony, and decide matters[, because p]ermanency for the children 

demands no less.” Id. at 260 n.19. I note, however, that the trial court’s 

failure to move along the termination of parental rights process is not an 

issue Mother raises in this appeal.

5

If all permanency review hearings were immediately appealable, the 

eloquent words of Justice (later Chief Justice) O’Brien would certainly ring 

true: “The bifurcated appeal foisted upon the courts can only be termed a 

judicial Hydra. Would that a Hercules could appear ... to slay this monster.” 

Hession Condemnation Case, 242 A.2d 432, 437 (Pa. 1968) (O’Brien, J., 

dissenting). Suffice it to say that I agree with Justice O’Brien that “[i]t is 

more important to prevent the chaos inherent in bifurcated, trifurcated, and 

multifurcated appeals than it is to correct each mistake of a trial court the 

moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236, 

238 (Pa. 1968) (O’Brien, J., dissenting). 

6 The order is also not a collateral order pursuant to Pa.R.A.P. 313, because 

it deals with matters at the heart of the proceeding.