In re T.B.

• Decision Date: 24 June 2013
• Citation: In re T.B., 2013 PA Super 150, 75 A.3d 485 (Pa. Super. Ct. 2013)
• Parties: In the Interest of T.B., a Minor, Appellant. In the Interest of T.B., a Minor, Appellant.
• Court: Pennsylvania Superior Court

75 A.3d 485

2013 PA Super 150

In the Interest of T.B., a Minor, Appellant. In the Interest of T.B., a Minor, Appellant.

Superior Court of Pennsylvania.

Argued March 5, 2013.

Filed June 24, 2013.

Karen L. Domalakes, Public Defender, Frackville, for appellant.

Christine A. Holman, Assistant District Attorney, Frackville, for Commonwealth, appellee.

BEFORE: BENDER, J., SHOGAN, J., and FITZGERALD, J.^*

OPINION BY BENDER, J.

In this decision, we address appeals from two orders, both of which derive from an assessment performed by the State Sexual Offenders Assessment Board(“SOAB”) pursuant to 42 Pa.C.S. § 6358 to determine whether T.B. should be subject to continued confinement for mental health treatment due to his commission as a juvenile of crimes of sexual violence.In the first appeal, from the order of October19, 2011, 1835 MDA 2011, T.B. challenges the trial court's denial of his motion to strike the results of the assessment.In that motion, T.B. demanded that the report be stricken because it was prepared in partial reliance upon the use of confidential mental health records and his communications with mental health providers, and he requested that a new assessment be prepared without the use of any privileged information.On December 1, 2011, the Commonwealth filed a motion to quash the appeal as interlocutory.On September 24, 2012, the Commonwealth filed another motion to either quash this appeal as moot or to consolidate it with a subsequent appeal filed by the juvenile in this matter at docket number 534 MDA 2012.In that subsequent appeal, T.B. challenges the trial court's civil commitment order entered pursuant to 42 Pa.C.S. 6403(3).Upon review, we deny both motions to quash, grant the motion to consolidate, and vacate both the trial court's disposition order of October 19, 2011, and its civil commitment order of March 1, 2012.

The history and procedural posture of this case are inextricably entwined.On July 2, 2004, at lower court docket number 54–JV–0001904–2004, the trial court adjudicated T.B. delinquent based on his commission of acts constituting rape, involuntary deviant sexual intercourse, statutory sexual assault, incest and indecent assault.That same day, the court also adjudicated him delinquent at docket number 54–JV–0001944–2004 for committing actions, which, if committed by an adult, would have been two violations of the offense of indecent assault.As a result, T.B. was committed to Adelphoi Village, where he received mental health treatment but continued to act in a sexually inappropriate manner.As a result, in December 2007, the court committed T.B. to Southwood Psychiatric Hospital.Remedial treatment at that facility also proved ineffective, and T.B. persisted in displaying unacceptable sexual behavior.

As T.B. was born in 1991, he turned twenty years old in 2011.At that time, the Commonwealth successfully sought his assessment by the SOAB pursuant to 42 Pa.C.S. § 6358, assessment of delinquent children by the SOAB, which provides:

(a) General rule.—A child who has been found to be delinquent for an act of sexual violence which if committed by an adult would be a violation of 18 Pa.C.S. § 3121(relating to rape), 3123 (relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault), 3125 (relating to aggravated indecent assault), 3126 (relating to indecent assault) or 4302 (relating to incest) who is committed to an institution or other facility pursuant to section 6352(relating to disposition of delinquent child) and who remains in such facility upon attaining 20 years of age shall be subject to an assessment by the board.

42 Pa.C.S. § 6358(a).

The SOAB obtained T.B.'s entire court file in this matter through the Schuylkill County Juvenile Probation Department(the “probation department”), as permitted by 42 Pa.C.S. § 6307(a)(6.04)(“All files and records of the court in a proceeding under [the juvenile] chapter are open to inspection only by ... the [SOAB] for use in completing assessments.”).The probation department had in its possession mental health records containing communications that T.B. made to mental health professionals during the course of his treatment.

On September 26, 2011, T.B. received the completed assessment of the SOAB, dated August 25, 2011.At that time, he became aware that materials that he believed to be privileged were disseminated by the probation department to the SOAB assessor, Dr. Veronique Valliere, and that she relied upon confidential records in rendering her conclusion that T.B. was a sexually violent predator (“SVP”).

On October 6, 2011, T.B. filed a motion to strike the results of the SOAB assessment because it was based, in part, on confidential information.He averred that he was never informed that such information would be turned over to the SOAB and was never given the opportunity to review the data transmitted by the probation department.T.B. also alleged that the record provided to the SOAB “contained confidential communications from a delinquent child to a psychiatrist or licensed psychologist derived from the course of treatment and therefore should have been redacted pursuant to 42 Pa.C.S. § 5944,” which pertains to confidential communications to psychiatrists or licensed psychologists.Motion to Strike Assessment of State Sexual Offenders Assessment Board, 10/6/11, at ¶ 4. T.B. specified that the materials given to the SOAB included “disclosures made by juvenile during the treatment process,”id.at ¶ 5, and sought redaction of a twenty-five-page list of disclosures he had made to a psychiatrist or psychologist in the course of his treatment that Dr. Valliere had used in her SOAB evaluation.As his requested relief, T.B. asked that the August 25, 2011 assessment be stricken and that a determination of whether he was an SVP be deferred until an assessor evaluated whether T.B. was an SVP without consideration of confidential materials.On October 19, 2011, the trial court denied the requested relief, and T.B. appealed.

On December 1, 2011, the Commonwealth filed a motion to quash the appeal as interlocutory.That motion was granted on April 12, 2012; however, our Supreme Court granted allowance of appeal, vacated the order quashing the appeal, and remanded to this Court for us“to reconsider the matter in light of [its]decision in Commonwealth v. Harris,612 Pa. 576, 32 A.3d 243(2011).”Order of SupremeCourt, 8/21/12, at 1.

As that appeal was progressing through the judicial system, the proceedings against T.B. continued.T.B. unsuccessfully attempted to have the SVP hearing delayed.The record establishes that the SOAB assessor, Dr. Valliere, did rely upon Appellant's mental health treatment records in rendering her conclusion that Appellant was a sexually violent predator.N.T., 1/6/12, at 11.Specifically, she reviewed “records from a first treatment program from Adelphoi Village and then records from [Appellant's] current treatment program, Southwood Residential.”Id. at 15.At the SVP hearing, Dr. Valliere revealed statements that T.B. made during the course of his treatment for mental health problems.Id. at 15–16, 23.

After the SVP hearing, the trial court determined that T.B. was an SVP and initiated civil commitment proceedings pursuant to 42 Pa.C.S. § 6403(a) and (b).¹Another hearing was conducted, and, on March 1, 2012, T.B. was civilly committed to Torrance State Hospital.He filed an appeal docketed at 534 MDA 2012 from the commitment order.In that appeal, he again contests the use of confidential mental health records in connection with the SOAB assessment, at the SVP hearing, and for purposes of determining whether he should be committed under the dictates of § 6403.

As noted, the appeal at 1835 MDA 2011 is presently on remand from our Supreme Court so we can reconsider, in light of Harris, supra, whether the Commonwealth's December 1, 2011 motion to quash this appeal as interlocutory should be granted.Since the April 12, 2012 order granting the December 1, 2011 motion to quash was vacated, that motion remains unresolved.A motions panel of this Court deferred both motions for disposition by the merits panel.Accordingly, we resolve both motions prior to our consideration of the merits of T.B.'s claims of error.

In response to the motion to quash, T.B. maintains that the appeal at 1835 MDA 2011 is properly before us as it arises from a collateral order.As noted, T.B. contended before the trial court that Dr. Valliere considered confidential information that was improperly disseminated to her,² that the August 25, 2011 assessment should be stricken, and that a new assessment without use of the confidential material should be prepared.He asserts that the order in question permitting the use of allegedly confidential material in a judicial proceeding falls within the parameters of the collateral order rule, Pa.R.A.P. 313.

Our case law uniformly provides that if an appellant argues that an interlocutory order permitted the dissemination of information that is subject to a privilege, then the order is appealable as a collateral order.E.g.Commonwealth v. Harris,612 Pa. 576, 32 A.3d 243, 249(2011)(“an order overruling a claim of privilege” is immediately appealable);M.M. v. L.M.,2012 PA Super 195, 55 A.3d 1167, 1168(Pa.Super.2012)(order requiring party to disclose ostensibly confidential mental health information was collateral order appealable under Pa.R.A.P. 313).Therefore, the December 1, 2011 motion to quash this appeal as interlocutory will be denied.

After the appeal at 1835 MDA 2011 was remanded by our Supreme Court, the Commonwealth filed, on September 12, 2012, an additional motion to quash or to consolidate the appeal with that of 534 MDA 2012.In the September 12, 2012 document, the Commonwealth's position is that the appeal at 1835 MDA 2011 is moot because the underlying matter has proceeded to final resolution.³It contends that the issue...