August 9, 2013
IN THE INTEREST OF: D.B., A MINOR, Appellee
APPEAL OF: GUARDIAN AD LITEM, Appellant IN THE INTEREST OF: J.M.O.-G., A MINOR, APPEAL OF: GUARDIAN AD LITEM, Appellant
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.
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. 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. 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 right or permission[. Hence, ] we must determine whether it is reviewable as a collateral order.
Our Supreme Court codified the collateral order doctrine into Pa.R.A.P. 313. Rule 313 provides as follows:
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or a lower court.
(b) Definition. 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.
The In re W.H. Court continued,
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; see also Witt v. LaLonde, 2000 PA Super 347, 762 A.2d 1109, 1110 (Pa.Super. 2000) (citations omitted).
In Re J.S.C., 851 A.2d 189, 191 (Pa.Super. 2004). Our Supreme Court has directed that Rule 313 be interpreted narrowly so as not to swallow the general rule that only final orders are appealable as of right. Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999). To invoke the collateral order doctrine, each of the three prongs identified in the rule's definition must be clearly satisfied. J.S. v. Whetzel, 860 A.2d 1112, 1117
The juvenile court's December 28, 2012 orders satisfy Rule 313. First, the issue regarding any potential tort litigation between the children and CYS is separable from and collateral to the principal issues involved in the ongoing dependency proceedings; i.e. care, safety, and permanency. Second, mindful that D.B. and J.M.O.-G. have fundamental rights to seek recompense for any injuries that they suffered as a result of CYS's alleged negligence in placing them with a known perpetrator of abuse, Attorney Badal's appeal from the juvenile court's decision to dismiss the petition to review CYS's file on the alleged perpetrator and to retain counsel to represent the children's interest during civil litigation is too important to be denied review. Finally, cognizant that CYS maintains legal custody of the children, we observe that Attorney Badal's attempt to secure the children's civil remedies against the agency will be seriously impeded, even if not irreparably lost, if our review of the issue is postponed until after the dependency adjudications are discharged as a result of reunification, adoption, or D.B.'s and J.M.O.-G.'s aging-out of the juvenile system. See In re Tameka M., 534 A.2d 782, 786 (Pa.Super. 1987) ("a dependency proceeding is unique since it presents a very real possibility that the case may continue until [a dependent child] reaches majority"). As we conclude that the December 28, 2012 orders satisfied all three prongs of the collateral order doctrine, they are appealable. In re W.H., supra.
As listed in her statement of questions presented, Attorney Badal levels five challenges to the juvenile court's decision to dismiss without prejudice the underlying motion to release information and retain counsel. As the five issues assert overlapping legal arguments, we address the questions collectively, and, for the following reasons, we find that no relief is due.
We address the propriety of the juvenile court's order under the following statutory framework, legal principles, and concerns. In pertinent part, the purpose of the Juvenile Act, which applies exclusively to "[p]roceedings in which a child is alleged to be delinquent or dependent, " see 42 Pa.C.S. § 6303 (a)(1), is
[t]o preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained. . . . provide for the care, protection, safety and wholesome mental and physical development of children coming within the provisions of [the Act, and t]o achieve the foregoing purposes in a family environment whenever possible . . .
42 Pa.C.S. § 6301 (b)(1)-(3).
The Juvenile Act and the Pennsylvania Rules of Juvenile Court Procedure govern juvenile dependency proceedings. See 42 Pa.C.S. § 6301 et seq.; Pa.R.J.C.P. 1100-1800. Those authorities empower juvenile courts to hear juvenile proceedings and make dispositions in cases wherein children are alleged to be dependent. See Administrative Office of Pennsylvania Court's Office of Children and Families in the Courts, Pennsylvania Dependency Benchbook, §§ 3.1-3.3 at 26-27 (2010).
In order to achieve the foregoing purposes of the Juvenile Act where, as here, a child is alleged to be dependent pursuant to, inter alia, the first definition of "dependent child" under § 6302, the juvenile court appoints a GAL to represent the legal interests and the best interests of the child in court proceedings. See 42 Pa.C.S. § 6311(a) and (b). In accordance with § 6311(b) (1)-(9), the GAL is both empowered and obligated to meet with the child; review relevant agency, medical, psychological and school records; participate and represent the child in all dependency proceedings; conduct investigation necessary to ascertain relevant facts relating to the dependency proceedings; interview potential witnesses and examine and cross-examine witnesses in order to protect the best interests of the child; be advised of pertinent proceedings; make recommendations relating to the appropriateness and safety of the child's placement, and the services necessary to address the child's needs and safety; explain the proceedings to the child; and advise the court of the child's wishes. See also Pa.R.C.P. 1154.
Next, with this framework in mind, we highlight some additional items that impact our review. It is beyond cavil that D.B. and J.M.O.-G. have a right to seek compensation for any injuries that they suffered as a result of CYS's alleged negligence. Moreover, while the respective parents have standing to pursue the litigation on their children's behalf, a course of action that would alleviate the juvenile court's warranted unease about becoming embroiled in the civil litigation by authorizing litigation counsel's intervention, it is unclear from the certified record whether any of the birth parents, who have been deemed to be incapable of providing proper parental care or control of D.B. and J.M.O.-G. under the Juvenile Act, are available to litigate the suit on their child's behalf or are even aware of the agency's alleged negligence in placing the children with a child who had previously committed abusive acts. Likewise, we stress that while the juvenile court has oversight of CYS's conduct and performance within the dependency proceedings and it was obligated to remove D.B. and J.M.O.-G. from danger, it was never the juvenile court's responsibility to ensure that the children have access to a civil remedy for the agency's alleged negligence.
We also recognize that Attorney Badal stresses that she is merely seeking authority to retain counsel to ascertain the merits of a potential civil claim and the juvenile court improperly framed her request for relief as civil litigation. If the underlying motion was limited to retaining outside counsel to review the potential claim, we would be inclined to agree with her position at least insofar as that request would not implicate the juvenile court's endorsement of the litigation. However, notwithstanding Attorney Badal's protestations to the contrary, she did not simply request permission from the juvenile court to engage outside counsel to investigate the feasibility of a lawsuit or even to permit litigation counsel to review relevant information regarding the ordeal that D.B. and J.M.O.-G. endured in the Nunez's home. Significantly, Attorney Badal also included a request for ongoing discovery of the alleged perpetrator's CYS file. Attorney Badal did not want the information in order to guarantee the children's safety or confirm the appropriateness of their current placement. Rather, Attorney Badal requested access to D.P.'s confidential file in anticipation of the potential lawsuit. The problem originates therein. As delineated in detail infra, we agree with the juvenile court's determination that this action was not the appropriate forum to litigate any portion of the ostensible lawsuit, even preliminary aspects of the litigation such as discovery requests.
In dismissing Attorney Badal's motion, the juvenile court first observed that the motion was facially deficient insofar as it requested discovery relief that extended beyond the court's subject matter jurisdiction in dependency matters. The court reasoned that the dependency proceedings were an inappropriate arena to litigate what amounted to a civil discovery request and concluded that considering the merits of the motion "would risk embroiling the Juvenile Court in a civil battle between parties still involved in [the] ongoing dependency case[.]" Trial Court Opinion, 2/19/13, at 3. Indeed, the court noted that it dismissed the motion without prejudice so that it could be litigated in the proper forum, i.e., the Civil Division.
Next, the juvenile court highlighted what we find to be the dispositive point in this case: "There is nothing in the Juvenile Act or attendant rules or related case law . . . that states that such a civil discovery request is within the jurisdiction of a Juvenile Court in a dependency case." Id. The juvenile court continued by pointing out that, consistent with our discussion in V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa.Super. 1998) aff'd on the basis of Superior Court Opinion, 728 A.2d 953 (Pa. 1999), the request to access the confidential dependency file relating to a minor in preparation of civil litigation involves a complicated balancing of competing interests, which the court found was inappropriate for it to conduct within the confines of a juvenile court proceeding. For the identical reasons, the juvenile court also determined that the issue concerning Attorney Badal's request to disclose the confidential information to outside counsel in anticipation of litigation was inappropriate for the court to resolve during a dependency proceeding.
Relying upon portions of our rationale in In re Tameka M., Attorney Badal counters that the juvenile court had broad authority to promote D.B.'s and J.M.O.-G.'s best interests by entertaining, and presumably granting, the motion to review D.P.'s CYS file and to release that information to outside counsel in preparation for litigation against CYS. In a related argument, she asserts that the request falls within the juvenile court's judicial oversight of CYS in the dependency proceedings. Thus, she posits that the juvenile court abused its discretion in summarily dismissing the motion without prejudice. For the following reasons, we disagree.
First, Attorney Badal's reliance upon our rationale in In re Tameka M., is misplaced. In that case, we considered whether the Juvenile Act empowered a juvenile court to order CYS to reimburse foster parents for education expenditures that the foster parents were not authorized to incur on the child's behalf. Specifically, the foster parents had unilaterally enrolled the child in a non-therapeutic Montessori preschool that was not licensed by the Pennsylvania Department of Public Welfare ("DPW") and therefore was ineligible for reimbursement by the state agency. In directing the county CYS to fund the expense notwithstanding the state-wide ineligibility, the juvenile court reasoned that the Juvenile Act gave it broad discretion to impose necessary conditions and limitations in order to achieve the appropriate disposition pursuant § 6251. It concluded that since the Montessori school's highly structured educational program satisfied the child's best interest, the payment of school funds fell within its broad statutory discretion to determine the appropriate disposition for the child.
In affirming the juvenile court's order, this Court considered our Supreme Court's rationale in In re Lowry, 484 A.2d 383 (Pa. 1984), wherein the High Court concluded that a juvenile court had the authority pursuant to § 6351 of the Juvenile Act to order CYS to transfer legal custody of a dependent child to an uncertified foster-care home. CYS opposed the transfer, which, like the educational expenses in In re Tameka M., was not eligible for reimbursement. Essentially, the Supreme Court concluded that § 6351, the dispositional provision of the Juvenile Act, empowered the trial court rather than DPW to determine the legal custodian's qualifications, and in contrast to CYS, the trial court was not subject to DPW regulations. The Lowry Court further elucidated that even though DPW regulations did not permit reimbursement for placement in unapproved facilities, that fact did not preclude the juvenile court from entering the dispositional order in furtherance of the child's best interest. See In re Tameka M., supra at 788 (citing Lowry, 484 A.2d at 386).
Invoking the foregoing principles to address the issue before it in In re Tameka M., this Court reasoned:
In light of the realities of foster care, it is essential that the juvenile court exercise its authority over the dependent child until the case is finally concluded so that the child's best interests are met despite changes in the child's condition or environment. The juvenile court's jurisdiction over a dependent child does not end with the entry of an order of disposition. . . . One of the purposes of the Juvenile Act is "[t]o provide means through which the provisions of this chapter are executed and enforced...." 42 Pa.C.S. § 6301(b)(4). By finding that the court has the authority to enter the present order, we advance one of the purposes of the Act which is to provide for the wholesome mental development of the child.
We hold that the Supreme Court's holding in Lowry, that the juvenile court is not bound by DPW regulations and that it may order CYS to act, applies with equal force to a decision concerning the payment of school tuition and that the trial court had the authority to enter the order here under review.
Id. at 790.
As noted, Attorney Badal seeks to invoke the principles that our High Court espoused in Lowry and we applied in In re Tameka M. in order to assail the juvenile court's decision to forego extending its authority over dependency proceedings to address the merits of her motion. Essentially, she asserts that the juvenile court had jurisdiction to confront the merits of her motion because the children had been under the court's care when the sexual abuse occurred, and that permitting her to prepare to pursue civil remedies on the children's behalf satisfies the children's best interest. As noted supra, we disagree.
Simply stated, those decisions sanctioned of the juvenile courts' respective dispositional orders directing CYS to grant custody to an unapproved foster home and reimburse a foster parent for an unapproved education expenses. However, Attorney Badal's request in the case at bar is not dispositional. Indeed, as noted in our previous discussion relating to Rule 313, the motion is unreservedly detached from the underlying dependency proceedings and has no influence upon the children's placement, safety, or the appropriateness of the services that they are receiving. Significantly, as it relates to this point, it is categorically essential to take notice that CYS not only removed D.P. from the foster home after the sexual and physical abuse was discovered, the certified record reveals that D.B. and J.M.O.-G. are safe in their current placement settings. Hence, the children's present safety is not a legitimate basis to prompt the juvenile court to open D.P.'s confidential CYS file and permit outside counsel to review that file on behalf of D.B. and J.M.O.-G. As the requests for authorization to release D.P.'s information and to retain outside counsel in preparation for litigation against CYS is not in the nature of a dispositional order under § 6351, the invocation of In re Tameka M. is inappropriate. Nothing in that case supports Attorney Badal's assertion that the juvenile court erred in declining to extend its authority in the dependency proceedings beyond dispositional matters to what undisputedly amounts to preparation for civil litigation.
Next, we address Attorney Badal's complaint that the juvenile court erred in framing the portion of the motion seeking the release of D.P.'s CYS file and her ongoing review of that information file as a discovery request warranted by the Juvenile Act and the concomitant rules of juvenile court procedure. Attorney Badal argues that she is entitled to the information pursuant to 42 Pa.C.S. § 6311(4) and (7), relating to a GAL's duties and obligations, and has already reviewed the pertinent information pursuant to those sections and Pa.R.J.C.P. 1340 prior to filing the underlying motion. However, Attorney Badal's argument fails because she is not seeking access to the files for any of the legitimate reasons that are stated in the statute or rules of procedure.
While Attorney Badal is correct that a GAL is authorized to conduct investigations necessary to ascertain relevant facts relating to the dependency proceedings and to make recommendations to the juvenile court relating to the appropriateness and safety of the children's placement, she did not request to release the information for those purposes. In fact, she did not request the information for any purpose that has to do with the adjudication of dependency, D.B.'s and J.M.O.-G.'s current placement, or an appropriate disposition. Indeed, in light of the fact that the children are no longer in any risk of harm from D.P., Attorney Badal cannot, in good faith, assert that she is entitled to ongoing access to D.P.'s CYS's files in order to ensure the other children's continued safety. The fact that Attorney Badal already reviewed the information for a legitimate purpose under Rule 1340 does not require the juvenile court to permit continued access for a collateral reason. Undeniably, in utter contrast to any legitimate motives for asking the juvenile court to release confidential files concerning a dependent child under Rule 1340, Attorney Badal desires access to D.P.'s file in preparation for potential litigation against CYS. While this might be a valid basis for a discovery request, the entreaty for civil discovery undoubtedly falls outside of Rule 1340, and as the juvenile court stressed in dismissing the motion without prejudice, it should be litigated in a civil proceeding.
Moreover, we agree with the juvenile court's conclusion that the Juvenile Act does not provide any authority for issuing the requested order. The Juvenile Act enumerates the court's express authority following the adjudication of dependency. See 42 Pa.C.S. § 6351. The juvenile court's authority is limited to selecting from specific options listed in § 6351—none of which authorizes the court to issue an order to retain outside counsel in order to purse a civil remedy against CYS. Moreover, while the Juvenile Act conveys broad authority to a juvenile court to advocate the best interests of dependent children as the paramount goal of every dependency proceeding, we find no authority, statutory or otherwise, to extend that power to collateral matters that do not involve the core dispositional issues of care, safety, and permanency. Again, Attorney Badal's motion did not implicate any of these concerns.
In addition, it is apparent that Attorney Badal misconstrues the basis of the juvenile court's citation to V.B.T., supra. Therein, we addressed the application of several qualified privileges, including the confidentiality of juvenile court records pursuant to § 6307 of the Juvenile Act in the face of the plaintiffs' request to access a family services agency's file on a dependent child who allegedly abused the plaintiffs' daughter sexually and physically while living in a neighboring foster home. Although the trial court in that case recognized the application of the qualified privilege of confidentiality under § 6307, it essentially determined that the plaintiffs' interest in discovering relevant material in pursuit of their negligence claim outweighed the child's interest in confidentiality. Id. at 1328-1329.
In reversing, we first held that a civil plaintiff unrelated to the dependency proceedings did not fall within the class of people expressly authorized to view the records under § 6307. We specifically rejected the plaintiffs' argument that they were entitled to review the information pursuant to the statutory exception to confidentiality outlined in § 6307(7) relating to "person[s] . . . with a legitimate interest in the proceedings." Id. at 1331. We explained that the exception "refers only to a person who has a direct involvement with the juvenile court proceedings or the events in question[.]" Id. We continued,
The statutory exception to confidentiality thus does not extend to an unrelated civil plaintiff seeking information about the proceedings for purposes of prosecuting a personal injury lawsuit based on a separate incident involving the foster child. We therefore conclude that the plaintiffs are not entitled to access to information in records of juvenile court proceedings under the express terms of the Juvenile Act.
Id. (footnote omitted).
Next, we addressed the trial court's decision to balance the competing interests between a civil plaintiff's right to information for the purpose of prosecuting a personal injury lawsuit and a minor's right to confidentiality in juvenile court records. While we found that the trial court did not err per se in weighing the competing interests, especially in light of the statutory exceptions to confidentiality, we concluded that the trial court's decision to grant discovery was improper.
In balancing the "weighty and legitimate competing interests, " in that case, this Court considered the exceptions to the general principle of confidentiality in light of the stated overall purposes of the Juvenile Act in order to determine whether the plaintiffs' disclosure requests promoted the purpose of the law. Id. at 1336-1337. We concluded that it did not.
The purposes of the Juvenile Act with respect to dependent children . . . is "[t]o preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S. § 6301(b)(1). In light of this purpose, the confidentiality of records of court proceedings under the Juvenile Act is clearly designed to promote a full and frank exploration in those proceedings of all matters affecting the welfare of the child without the concern that information developed in those proceedings will become public record, shattering the privacy of the very children and families the Act is intended to help. . . . [T]he Juvenile Act contains several defined exceptions to its confidentiality provisions, designed to facilitate the exchange of information among the web of public and private agencies and individuals involved in the care, treatment and rehabilitation of the child and his or her family.
Id. at 1336-1337. As the plaintiffs' request did not promote the purpose of the Juvenile Act, we concluded that the trial court erred in overriding the legislature's purpose in protecting a dependent child's privacy interest and the interests of the system designed to aid the children and rehabilitate their families. Id. at 1337.
Focusing on the fact that, unlike the victim in V.B.T., herein D.B. and J.M.O.-G. were involved in the dependency proceedings, Attorney Badal contends that the juvenile court's reliance upon that case is inapplicable on its facts. Indeed, she posits that had the victim in V.B.T. been a dependent child in CYS's care, our complex assessment of the conflicting interest would have found in the plaintiffs' favor. See GAL's brief at 17 n.6. Attorney Badal's efforts to distinguish the facts of V.B.T., supra from the facts and procedural posture of the case at bar reveals her misinterpretation of the juvenile court's reference to that case herein.
In contrast to Attorney Badal's perspective of the juvenile court's citation to V.B.T., the juvenile court did not purport to address the merits of the countervailing interests pursuant to the V.B.T. Court's analysis. In reality, the juvenile court invoked V.B.T. simply for the proposition that Attorney Badal's discovery request required a difficult balancing of competing interests that is more appropriately litigated in a civil action rather than a dependency proceeding. Again, mindful that Attorney Badal's discovery request does not relate to a dispositional issue or D.B. and J.M.O.-G.'s current care, safety, and permanency, we agree that the civil division is the better forum for Attorney Badal to litigate the merits of her assertion that D.B.'s and J.M.O.-G.'s status as dependent children would warrant a different application of our holding in V.B.T. Presumably, the juvenile court recognized these distinguishing features when it dismissed the petition without prejudice to the children's right to raise the claim in the civil division.
Next we address the portion of Attorney Badal's argument that assails the juvenile court's reference to the confidentiality concerns implicated by her discovery request for D.P.'s CYS records. Specifically, Attorney Badal argued that "the entire complexion of confidentiality is changing in dependency court in a way that favors transparency and disclosure. . . ." GAL's brief at 16. In support of her position that confidentiality concerns have become so relaxed in juvenile proceedings that the court's unease was not warranted, Attorney Badal cites programs that mandate outreach to the extended kin of dependent children, the use of court-appointed special advocates ("CASA"), and the presence of extended family and support in the courtroom during hearings. While we agree with the premise that the inclusion of these additional observers indicates enhanced transparency during the dependency proceedings, we categorically reject Attorney Badal's suggestion that those programs, which all require the juvenile court's assent, trump the specific provisions of the Juvenile Act and the Child Protective Services Law ("CPSL") that mandate confidentiality.
Pursuant to 42 Pa.C.S. § 6336(d), except for a declaration of contempt of court or one of the enumerated circumstances that are implicated in delinquency proceedings, "the general public shall be excluded from hearings under this chapter." The provision continues, "Only the parties, their counsel, witnesses, the victim and counsel for the victim, other persons accompanying a party or a victim for his or her assistance, and any other person as the court finds have a proper interest in the proceeding or in the work of the court shall be admitted by the court." Id. (emphasis added). Hence, it is beyond cavil that the statutory framework promotes confidentiality.
Moreover, notwithstanding Attorney Badal's assertions, our holding in In the Interest of M.B., 819 A.2d 59 (Pa.Super 2003), regarding the application of the constitutional presumption of openness in dependency proceedings did not effectively emasculate the statute's confidentiality requirements. Attorney Badal posits that in the aftermath of In the Interest of M.B., "any member of the public could attend any of D.P.'s hearings and thereby gain access to the facts of her case and her service plan." GAL's brief at 16. We reject Attorney Badal's insinuation that our holding in In the Interest of M.B. abrogated confidentiality concerns and provided the public carte blanche to access judicial proceedings.
In In the Interest of M.B., supra at 62, this Court addressed whether the press and general public could access a dependency proceeding. We found a rebuttable constitutional presumption that juvenile court proceedings, like most other judicial proceedings, are open to the public. However, as it relates to Attorney Badal's broad statements herein, we also concluded that juvenile courts "possess an inherent power to control access to their proceedings and may deny access when appropriate." Id. at 60, 62-63. We explained the applicable resolution of the countervailing dynamics between the presumption of openness and the court's inherent power to control access as follows:
In this case, where the constitutional presumption of openness applies and where the trial court has exercised its discretion to close the proceedings, we employ a constitutional analysis [to determine whether the court's decision was an abuse of discretion]. Once an interested party, such as the press, seeks access to such proceedings, the party seeking to keep the proceedings closed may rebut the presumption of openness by demonstrating that: (1) the denial of public access serves an important governmental interest, and (2) no less restrictive means to serve that interest exists. To satisfy these requirements, the party seeking closure must demonstrate that the material is the kind of information that the courts will protect and that there is good cause for the order to issue. A party establishes good cause by showing that opening the proceedings will work a clearly defined and serious injury to the party seeking closure. We have emphasized that only a compelling government interest justifies closure and then only by a means narrowly tailored to serve that interest. Ultimately, the decision whether to grant or deny public access is within the sound discretion of the trial court.
Id. at 63-64 (internal citations and quotations omitted). We concluded that the protection of minors from psychological and emotional harm and the trauma and embarrassment associated with testifying in public were compelling interests that militated in favor of privacy concerns. Id. at 64, 65.
Moreover, far short of running roughshod over the Juvenile Act's confidentiality provisions, as Attorney Balad's argument would suggest, in In the Interest of M.B., we cited the Act approvingly and stated that it demonstrated the legislature was interested in safeguarding children involved in juvenile proceedings. Moreover, referring to an official comment to § 6336(d) specifying that reporters were within the class of people with a proper interest in attending dependency proceedings, we observed that a juvenile court may elect at its discretion to grant the press access.
Thus, despite Attorney Badal's characterization of the diminishing "complexion of confidentiality, " GAL's brief at 16, juvenile proceedings most definitely are not open to the public. Hence, a person cannot simply attend D.P.'s permanency hearings and gain access to the information Attorney Badal requested in her discovery motion. The rebuttable presumption of openness is not absolute. The juvenile courts retain control of access and may still deny it if confidentiality serves an important governmental interest and no less restrictive means exists to serve that interest. Accordingly, Attorney Badal's disapproving assessment of the juvenile court's concerns in this case about the confidentiality of D.P.'s dependency proceedings is unpersuasive.
Finally, we confront Attorney Badal's argument that the juvenile court's determination was contrary to D.B.'s and J.M.O.-G.'s best interest. In explaining its decision to dismiss Attorney Badal's motion without prejudice, the juvenile court stated that it regarded the underlying allegations of negligence seriously and would act immediately within its power to ensure the safety of children within the juvenile system, presumably by ordering a review of the practices that permitted the alleged abuser to reside with the children herein. However, the court found that it was not authorized to grant the relief Attorney Badal requested. As it relates to the retention of litigation counsel, the court identified two valid concerns: first, the court queried who would be responsible for litigation counsels' fees; and second, to what extent, if any, would Attorney Badal be exposed to potential liability for her actions as GAL based upon her obligation to ensure D.B.'s and J.M.O.-G.'s safety and the appropriateness of their placement.
Attorney Badal counters with the broad premise that the juvenile court is responsible to ensure that D.B. and J.M.O.-G. have access to exercise their right to a civil remedy, and that by declining to become embroiled in the potential civil litigation, the court "will, quite simply, leave these children without a voice and without recourse." GAL's brief at 20. Although Attorney Badal does not address the juvenile court's query regarding who will pay the litigation counsel, she notes that she is not authorized to enter a fee agreement and then posits, with no discussion, that the court's concerns over the potential responsibility for payment are "not within the realm of possibilities." Id. at 19 n.7. She is silent as to her potential exposure to liability as an additional defendant.
Attorney Badal's position is untenable. It is beyond argument that the juvenile court is not responsible for ensuring the children access to civil remedies. Accordingly, for all of the forgoing reasons, we find no basis in the certified record to reverse the juvenile court's order, particularly since it dismissed Attorney Badal's motion without prejudice for the children to assert their claims in the civil division.