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[U] In re D.B.

Superior Court of Pennsylvania

August 9, 2013

IN THE INTEREST OF: D.B., A MINOR, Appellee
v.
APPEAL OF: GUARDIAN AD LITEM, Appellant IN THE INTEREST OF: J.M.O.-G., A MINOR, APPEAL OF: GUARDIAN AD LITEM, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered December 28, 2012 In the Court of Common Pleas of Berks County Juvenile Division at No(s): CP-06-DP-0000272-2011, CP-06-DP-0000273-2011

BEFORE: BOWES, WECHT, and PLATT, [*] JJ.

MEMORANDUM

BOWES, J.

In these consolidated interlocutory appeals, Cathy Badal, Esquire, the court-appointed guardian ad litem ("GAL") assigned to represent the best interests of D.B. and J.M.O.-G. in the underlying dependency proceedings, appeals from the December 28, 2012 orders denying her motion for authorization to release information maintained by Berks County Children Youth Service ("CYS") regarding a minor in its placement who had previously committed sexual abuse, D.P., and to retain counsel in anticipation of civil litigation against CYS on behalf of D.B. and J.M.O.-G. We acknowledge D.B.'s and J.M.O.-G.'s rights to seek compensation for any injuries stemming from CYS's alleged negligent placement of D.P. in their foster home and appreciate the forethought of Attorney Badal's request to engage outside counsel to litigate the potential claims in civil division. Nevertheless, in light of what amounts to a discovery request regarding D.P.'s file, we find that the juvenile court did not err in dismissing the motion without prejudice so that it can be filed in a more appropriate forum. Accordingly, we affirm.

On October 18, 2011, D.B., now eight years old, and her sister J.M.O.-G., currently age six, were adjudicated dependent as the term is defined in 42 Pa.C.S. § 6302(1) relating to children without proper parental care and control.[1] Temporary legal custody of both children was transferred to CYS, with concurrent goals of reunification and adoption. The children resided together in three different foster homes before CYS ultimately placed them with Jose and Maria Nunez, where they were abused by D.P., on February 8, 2012. D.B. currently resides in a residential treatment facility due to concerns regarding her mental health and behavior. As of December 2012, J.M.O.-G. remained in the Nunez's foster care.

On November 30, 2012, while both children still lived in the Nunez's foster home, Attorney Badal filed the underlying motion requesting authorization to release information and retain counsel. She alleged that D.B. and J.M.O.-G. were subject to sexual abuse perpetrated by another dependent child under CYS's custody, D.P., between May and August 2012 while the three children shared a bedroom in the Nunez's foster home. The motion asserted that D.P. not only fondled D.B. and J.M.O.-G. and performed oral sex on them, but she also abused the girls physically in an attempt to dissuade them from disclosing the sexual abuse. Finally, Attorney Badal asserted that upon her investigation and review of D.P.'s file, she believed that D.B. and J.M.O.-G. had an actionable claim against CYS for damages associated with the assaults. Accordingly, she requested authorization from the juvenile court to conduct an ongoing review of the file CYS maintained on D.P. and to consult with and share pertinent information about the case, including confidential information contained in D.P.'s file, with outside attorneys whom she planned to retain to represent D.B. and J.M.O.-G. in potential civil litigation against CYS. The certified record does not reveal whether Attorney Badal approached D.B.'s and J.M.O.-G.'s respective parents about initiating litigation.

Following an informal, non-record conference with Attorney Badal and the parties' counsel, the juvenile court dismissed the motion without prejudice.[2] This timely appeal followed.

Attorney Badal raises five issues for our review:
A. Did the trial court err by dismissing [the GAL's] Motion without hearing or argument?
B. Did the trial court err by failing to grant [GAL's] request for ongoing discovery of the file maintained by [CYS] regarding the child-perpetrator, D.P.?
C. Did the trial court err by failing to grant [GAL] the authority to disclose information regarding [D.B. and J.M.O.-G.] and the child-perpetrator[, ]D.P. to consulting attorneys for the purpose of representing the children's interests in potential litigation?
D. Did the trial court err by failing to grant [GAL] the authority to retain attorneys for the purpose of representing the children's interests in potential litigation?
E. Did the trial court err by failing to consider the best interests of the children and public policy?

GAL's brief at 7.

We recently reiterated the appropriate standard of review as follows:

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted). In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013).

At the outset, we confront whether the December 28, 2012 orders dismissing without prejudice Attorney Badal's request for authorization to release information and retain counsel were appealable pursuant to Pa.R.A.P. 341. In re W.H., 25 A.3d 330, 334-335 (Pa.Super. 2011), we summarized the pertinent considerations as follows:

Under Pennsylvania law, an appeal may be taken only from an interlocutory order appealable as of right, a final order, a collateral order, or an interlocutory order by permission. Radakovich v. Radakovich, 846 A.2d 709, 714 (Pa.Super. 2004); Pa.R.A.P. 311, Pa.R.A.P. 312, Pa.R.A.P. 341. [The order] is not a final order or a interlocutory order appealable by ...

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