J-S35004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-DP-0002974-2015, 

FID: 51-FN-002498-2015

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

DISSENTING MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 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 

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* Retired Senior Judge assigned to the Superior Court.
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became visibly agitated as the therapist started mentioning Father[,]” that 

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 Memorandum 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.” 

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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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Id. at *8. Next, the Majority explains that, “because this order resulted in a 

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 

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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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Order, 10/3/17, at 1-2; Trial Court Order, 2/2/18, at 1-2; Trial Court Order,

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.
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[Father’s Counsel]: Okay. 

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 

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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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resulted “in the complete denial of visitation.” See Majority Memorandum at 

*7; 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.