In the Int. of: L.S., Appeal of: Com. of PA

J-A28004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: COMMONWEALTH OF :
PENNSYLVANIA :
:
:
:
: No. 911 MDA 2021
Appeal from the Order Entered July 2, 2021
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-JM-0000062-2020
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 02, 2022
The Commonwealth of Pennsylvania (Commonwealth) appeals from the
interlocutory order,1 entered in the Court of Common Pleas of York County,
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* Former Justice specially assigned to the Superior Court.
1 The Commonwealth has certified that this appeal is permissible as a collateral
order. See Pa.R.A.P. 313(b) (“A collateral order is an order separable from
and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.”). “With regard to the first prong of the collateral order
doctrine, an order is separable from the main cause of action if it is entirely
distinct from the underlying issue in the case and if it can be resolved without
an analysis of the merits of the underlying dispute.” K.C. v. L.A., 128 A.3d
774, 779 (Pa. 2015) (internal citation and quotation marks omitted).
Regarding the second prong, “a right is important if the interests that would
go unprotected without immediate appeal are significant relative to the
efficiency interests served by the final order rule.” Id. at 779. “[I]t is not
sufficient that the issue under review is important to a particular party; it
‘must involve rights deeply rooted in public policy going beyond the particular
litigation at hand.’” Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006).
Concerning the third prong, whether a party’s claims will be “irreparably lost”
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limiting forensic interviews of L.S. (born Feb. 2015) (Child) to those conducted
only by L.S.’s guardian ad litem (GAL) for fear of parent coaching and resulting
taint.2 The order further requires that any other party, including the
Commonwealth, wishing to interview Child as part of a separate, ongoing child
abuse investigation, first obtain “the knowledge and consent of the GAL,” as
well as secure the GAL’s presence, unless the GAL agrees otherwise. After
careful review, we dismiss this appeal as moot.
Child is the subject of ongoing custody and dependency matters,
involving contentious parents. After a final custody order was entered
granting Mother primary and Father partial physical custody of Child, the York
County Office of Children, Youth, and Families (CYF) sought to suspend
Father’s custodial rights pending an investigation based on allegations of
sexual abuse of Child by Father. As part of its child abuse investigation, the
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if review is postponed turns on the particular facts and circumstances of each
case. G.B. v M.M.B., 670 A.2d 714, 721 (Pa. Super. 1996) (en banc). Here,
we conclude, as did the panel in Z.P. v. K.P., A.3d , 2022 PA Super 6, *19
(Pa. Super. filed Jan. 6, 2022), that: (1) the trial court’s order placing
limitations on the Commonwealth from interviewing Child is separable from
the underlying custody dispute; (2) the Commonwealth’s ability to conduct a
child abuse investigation without interference from a custody court is a right
too important to be denied review; and (3) the Commonwealth’s right would
be irreparably lost if we denied review where the Commonwealth would then
have to follow the restrictive dictates of the trial court to conduct its child
abuse investigation. See id. at *19. Notably, at the time the Commonwealth
filed its interlocutory appeal the right would have been irreparably lost had we
denied review, thus vesting this court with jurisdiction to consider the appeal.
However, during the pendency of the appeal, as we determine infra, the issue
was finally decided, and, thus, has become moot.
2See G.S. v. V.O., 2014-000295-03 (involving custody and protection from
abuse matters).
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York County District Attorney’s Office attempted to conduct an in-person
forensic interview of Child at the Children’s Advocacy Center (CAC).
On August 11, 2021, a forensic interview of Child was conducted at the
CAC in compliance with the restrictions set forth in the trial court’s July 2,
2021 interlocutory order. Appellee’s Brief, at 7. On September 2, 2021, the
district attorney’s office notified the CYF caseworker in the underlying custody
matter that the criminal child abuse investigation had been closed and that
the referral had been deemed “unfounded.” Id. at 7-8. Additionally, during
the pendency of this appeal, our Court decided Z.P., supra, a case addressing
the same issue presented in this matter.3
In Z.P., our Court concluded that under the relevant provisions of the
Child Protective Services Law (CPSL):4
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3 The Commonwealth claims in its reply brief that “the issue in [Z.P.] is not
identical to the issue in this case. . . . That matter, unlike the instant matter,
did not include the issue of whether or not a custody court judge can impose
requirements that the GAL be present for any forensic interviews of suspected
child abuse victims.” Appellant’s Reply Brief, at 4-5. We disagree. In Z.P.,
the trial court’s order specifically stated that “no interview of the children shall
be conducted by any attorney or law enforcement without the permission
of the GAL and attorney in this case, Lori Yost. Attorney Yost need
not be present for the interview if she feels that it is not necessary to
protect the interest of her client. However, a decision by her to be
present for any interview, including an interview at the CAC, is solely
at the discretion of the GAL looking at protecting the interest of her
clients.” Z.P., supra, at *14-*15.
4 See 42 Pa.C.S.A. §§ 6301-6475. In In re C.B., A.3d , 2021 PA Super
189 (Pa. Super. filed Sept. 23, 2021) (en banc), our full Court recently
reiterated:
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[T]he trial court has no authority to establish the investigatory
protocol, or place limits on how the District Attorney and CYS
follow that protocol. See 23 Pa.C.S.A. §§ 6334.1, 6346(c),
6365(c). Put simply, nothing in [s]ection 8334.1 or 6365(c) of
the [(]CPSL[)] contemplates a custody court’s role in the
investigatory process.
Id. at *35. Rather, “any problems with the timing, frequency, and other
procedures employed[5] during child abuse investigations are matters best
left to the legislature to address.” Id. at *36 (emphasis added). Accordingly,
our Court reversed the trial court’s order, holding that “the trial court lacked
the authority to dictate the manner in which the Commonwealth and CYF
conducted [their] child abuse investigation in th[e] case” and remanded the
matter “with instructions that the Commonwealth be permitted to interview
Children pursuant to procedures established in York County.” Id. at *37-*38.
Here, we conclude that this appeal is now moot.
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as moot.
An issue can become moot during the pendency of an appeal due
to an intervening change in the facts of the case or due to an
intervening change in the applicable law. In that case, an opinion
of an appellate court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
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The [] CPSL . . . controls determinations regarding findings of child
abuse, which the juvenile courts must find by clear and convincing
evidence. The CPSL does not provide for legal determinations of
abuse; it is mainly a vehicle for reporting abuse and bringing
quickly into play those services (including court hearings)
available through county protective service facilities for the care
of the child.
Id. at *14.
5 See supra at n.3.
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In re J.A., 107 A.3d 799, 811 (Pa. Super. 2015), quoting In re D.A., 801
A.2d 614, 616 (Pa. Super. 2002) (en banc).
Presently, the appeal is moot because: (1) after a CAC forensic
interview took place under the constraints of the now-appealed trial court
order, the child abuse investigation was deemed “unfounded” and the matter
has been closed; (2) our Court has finally decided the issue raised on appeal
in Z.P., a published decision, which the trial court will be bound to follow
prospectively; and (3) Z.P. effectively grants the Commonwealth’s requested
relief. See In re J.A., supra at 811 (“An issue can become moot during the
pendency of an appeal due to . . . an intervening change in the applicable
law.”).
Appeal dismissed as moot.6 Case remanded for proceedings consistent
with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/02/2022
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6 Although we have determined that this appeal is now moot, we emphasize
our disapproval of the trial judge’s actions in the underlying matter. As
espoused in Z.P., the trial court simply did not have the “authority to dictate
the manner in which the Commonwealth and CYF conducted its child abuse
investigation[.]” 2022 PA Super 6, at *37.
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