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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: A.C., A MINOR                        :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
APPEAL OF: B.J., MOTHER                     :
                                            :     No. 1110 MDA 2014

                      Appeal from the Order June 18, 2014
                 In the Court of Common Pleas of Berks County
                       Juvenile Division No(s).: DP-406-13

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 05, 2015

        Appellant, B.J. (“Mother”), appeals from the order entered in the Berks

County Court of Common Pleas directing her to physically produce her minor

daughter, A.C. (“Child”), for a forensic interview at the Children’s Alliance

Center (“CAC”). Mother contends she has a constitutional right to have an

attorney of her choice observe and hear the forensic interview with Child.

We affirm.

        The trial court summarized the facts and procedural history of this

case as follows:

              On May 22, 2014, Berks County Children and Youth
           Services[1] (hereinafter “BCCYS”) filed a Petition to



*
    Former Justice specially assigned to the Superior Court.
1
  Under the Child Protective Services Law, BCCYS is the civil agency
responsible for investigating reports of child abuse. Section 6362 provides:
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           Compel. In that petition, BCCYS averred that it received a
           report that [Child] had been sexually abused by her
           stepfather.    BCCYS further asserted that a forensic
           interview[2] of [Child] was needed but that [Mother’s

           Responsibilities of county agency for child protective
           services

           (a) General rule.─The county agency shall be the sole
           civil agency responsible for receiving and investigating all
           reports of child abuse made pursuant to this chapter,
           specifically including, but not limited to, reports of child
           abuse in facilities operated by the department and other
           public agencies, for the purpose of providing protective
           services to prevent further abuses to children and to
           provide or arrange for and monitor the provision of those
           services necessary to safeguard and ensure the well-being
           and development of the child and to preserve and stabilize
           family life wherever appropriate.

23 Pa.C.S. § 6362(a).
2
    Section 6365 provides:

           (c)      Multidisciplinary       investigative     team.─A
           multidisciplinary investigative team shall be used to
           coordinate child abuse investigations between county
           agencies and law enforcement. The county agency and
           the district attorney shall develop a protocol for the
           convening of multidisciplinary investigative teams
           for any case of child abuse by a perpetrator involving
           crimes against children which are set forth in section
           6340(a)(9) and (10) (relating to release of information in
           confidential reports).       The county multidisciplinary
           investigative team protocol shall include standards and
           procedures to be used in receiving and referring reports
           and coordinating investigations of reported cases of child
           abuse and a system for sharing the information obtained
           as a result of any interview. The protocol shall include any
           other standards and procedures to avoid duplication of
           fact-finding efforts and interviews to minimize the trauma
           to the child.     The district attorney shall convene the
           multidisciplinary investigative team in accordance with the



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         attorney] would not agree to the interview unless it was
         observed by him.     The Court held a hearing on that
         petition on June 18, 2014. At the conclusion thereof, the
         Court entered an order directing that Mother cooperate
         with BCCYS in the investigation of alleged sexual abuse
         and that she physical produce [Child] for a forensic
         interview at the [CAC] within thirty (30) days. The Court
         further directed that [Child’s] forensic interview be
         conducted only in the presence of the multidisciplinary
         team. On July 3, 2014, Mother’s attorney filed a Motion
         for Supersedeas and a Petition for Appeal.       Although
         captioned in the Commonwealth Court of Pennsylvania,
         Mother’s Petition for Appeal was transferred to the
         Superior Court and docketed as a Notice of Appeal from
         the Court’s June 18th order. Mother filed her Concise
         Statement of Errors Pursuant to Pa.R.A.P. 1925(a)(2) on
         July 17, 2014.

Trial Ct. Op., 7/28/14, at 1 (citations omitted).

      On July 28, 2014, upon consideration of Mother’s emergency motion

for a stay pending appeal of the June 18th order, and the answers filed by

the Commonwealth and BCCYS, this Court denied the motion.            It is

uncontested that a forensic interview of Child was held without Mother’s

attorney being present.3

      Mother raises the following issues for our review:



         protocol. The multidisciplinary investigative team shall
         consist of those individuals and agencies responsible for
         investigating the abuse or for providing services to the
         child and shall at a minimum include a health care
         provider, county caseworker and law enforcement official.

23 Pa.C.S. § 6365(c) (emphasis added).
3
 We note that Mother avers the interview took place on or about July 30,
2014. BCCYS states the interview took place on July 31st.



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            A. Does [Mother] have a constitutional right under the
            United States Constitution and/or the Pennsylvania
            constitution to have an attorney of her choice observe and
            hear any interview of [Child]?

            B. Does [Mother] have a constitutional right under the
            United States Constitution and/or the Pennsylvania
            Constitution to have an attorney of her choice observe and
            hear any forensic interview conducted at the [CAC] of
            [Child]?

            C. Do the alleged terms and conditions of the protocol of
            the [CAC] control the interview of [Child], as opposed to
            the United States Constitution and/or the Pennsylvania
            Constitution?

            D. Did the lower court err as a matter of law in not
            disposing of the “Motion for Supersedeas” before he went
            on vacation?

            E. Did the lower court err as a matter of law in failing to
            grant the “Temporary Stay Order” and/or granting
            [Mother’s] “Motion for Supersedeas” in the herein case?

Id. at 4.

      As a prefatory matter, we consider whether Mother has waived issues

A, B, and D.      We observe that “[A]ppellate briefs and reproduced records

must materially conform to the requirements of the Pennsylvania Rules of

Appellate Procedure. Pa.R.A.P. 2101.” In re Ullman, 995 A.2d 1207, 1211

(Pa. Super. 2010). “The argument shall be divided into as many parts as

there are questions to be argued; and shall have at the head of each part—

in distinctive type or in type distinctively displayed—the particular point

treated therein, followed by such discussion and citation of authorities as are

deemed pertinent.”      Pa.R.A.P. 2119(a).   “Citations of authorities must set



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forth the principle for which they are cited.”        Pa.R.A.P. 2119(b).   “If

reference is made to the pleadings, evidence, charge, opinion or order, or

any other matter appearing in the record, the argument must set forth, in

immediate connection therewith, or in a footnote thereto, a reference to the

place in the record where the matter referred to appears[.]”         Pa.R.A.P.

2119(c). The “failure to develop an argument with citation to, and analysis

of, relevant authority waives that issue on review.” Harris v. Toys “R” Us-

Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (citations omitted).

        Our review of the argument section of Appellant’s brief reveals that

there is no analysis of issues A, B, and D, with citation to pertinent legal

authority. Therefore, these issues are waived. See Pa.R.A.P. 2119(a)-(c);

Harris, 880 A.2d at 1279.

        Next, we consider whether issue C is moot.       Mother contends the

alleged terms and conditions of the protocol of the CAC should not control

the interview of Child because they conflict with her constitutional right to

have counsel present during the forensic interview.

        This Court has stated: “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.”   In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc).4


4
    We note there are exceptions to the mootness doctrine.

           [T]his Court will decide questions that otherwise have been
           rendered moot when one or more of the following



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Instantly, the forensic interview of Child has taken place.      Therefore, this

Court cannot enter an order that has any legal force or effect, rendering the

issue moot. See id.

      Assuming, arguendo, the issue is not moot, we find no relief is due.

Mother asserts she

         is not saying [Child] cannot be interviewed. She is not
         asking for the Commonwealth to pay for her attorney who
         observes the interview. She will pay for her attorney.
         Further, in this case [Mother] initiated the case with
         [BCCYS] when she, through her attorney, reported this
         matter to them.       She is only insisting on her
         constitutional right to have an attorney of her choice
         observe and hear the interview.

Appellant’s Brief at 12 (emphasis added).

      Mother purports to raise an issue involving a constitutional right.

“[A]n issue involving a constitutional right, [ ] is a question of law; thus, our

standard of review is de novo, and our scope of review is plenary.”

Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014) (plurality)

(citation omitted).




         exceptions to the mootness doctrine apply: 1) the case
         involves a question of great public importance, 2) the
         question presented is capable of repetition and apt to
         elude appellate review, or 3) a party to the controversy
         will suffer some detriment due to the decision of the trial
         court.

In re D.A., 801 A.2d at 616. We will address the issue assuming it is not
moot. See infra. Therefore, we need not address the exceptions.



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      Mother’s reliance upon Commonwealth v. Roane, 329 A.2d 286 (Pa.

1974), and Commonwealth v. Smith, 372 A.2d 797 (Pa. 1977), are

unavailing.5   In Roane, the Pennsylvania Supreme Court found that a

juvenile’s waiver of the right to counsel during interrogation by the police

was not knowing and voluntary.       Roane, 329 A.2d at 289.       The Court

opined:

             Since the record indicates that the Commonwealth first
          attempted to exclude appellant’s mother from the
          interrogation and then, when she finally gained access,
          did not afford her an opportunity to advise her son
          privately about his constitutional rights, although she
          indicated that she wished him to be afforded the right of
          counsel, we hold that the Commonwealth failed to
          establish that appellant’s waiver of his rights was a
          knowing and intelligent one. Accordingly, his confession
          should have been suppressed.

Id. (emphasis added).

      In Smith, the Supreme Court opined:

             In Roane, we first articulated the concept that an
          attempted waiver of the Fifth and Sixth Amendment rights
          during custodial interrogation will not be considered as
          being effective absent a showing that the minor ‘had
          access to the advice of a parent, attorney or other adult
          who was primarily interested in his welfare.’ It was never
          the intention to exclude the requirement of interest simply

5
  We note Mother cites Commonwealth v. Colavita, 993 A.2d 874 (Pa.
2010), wherein the Supreme Court found “[t]he question of whether
substantive due process should embrace the expanded right recognized by
the panel to consult counsel pre-arrest should await a case where such a
claim is properly presented and preserved.” Id. at 894. Mother’s references
to federal court cases were not pertinent to the issue raised on appeal. See
Mother’s Brief at 11-12.




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           because the consulting adult was a parent of the minor.
           To the contrary, it was assumed that the relationship
           would assure the requisite concern for the welfare of the
           minor. However, that assumption does not justify the
           creation of an irrebuttable presumption of interest by a
           parent. Where, as here, the disinterest of the parent is
           graphically demonstrated, it is clear that [the father] was
           not the interested adult envisioned in the rule. If the adult
           is one who is not concerned with the interest of the minor,
           the protection sought to be afforded is illusory and the
           procedure fails to accomplish its purpose of offsetting the
           disadvantage occasioned by the immaturity.

Smith, 372 A.2d at 801 (citation and footnotes omitted and emphasis

added).

      Instantly, Child was not subject to custodial interrogation by the

police. See id. Mother cites no pertinent legal authority in support of her

claim to have a constitutional right to have counsel present during the

forensic interview of Child. We find no relief is due.

      Lastly, Mother contends the trial court erred in failing to grant a stay

pending appeal. This Court previously addressed this issue in its July 28th

per curiam order denying Mother’s emergency motion for a stay pending

appeal. “[T]he legal significance of per curiam decisions is limited to setting

out the law of the case.” Commonwealth v. Thompson, 985 A.2d 928,

937 (Pa. 2009) (emphasis added). “The law of the case doctrine [sets forth

various rules that] embody the concept that a court involved in the later

phases of a litigated matter should not reopen questions decided by another

judge of that same court or by a higher court in the earlier phases of the

matter.”     In re S.J., 99 A.3d 560, 563-64 (Pa. Super. 2014) (citation


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omitted). Thus, the July 28th order is the law of the case and we will not

revisit the issue. See id.

      Order affirmed.

      Judge Stabile joins the memorandum

      Judge Mundy concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




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