Court of Appeals reviews moot appeal from a non-final judgment – In re O.P.

By Brad McCullough

As we know, courts typically refrain from deciding cases that do not present real, live justiciable controversies. Where the passage of time has erased the dispute that once existed between the parties, a court will generally dismiss that case as being moot. That’s not always the case, however, as there are narrow exceptions to that general proposition. We also know that appellate courts generally have jurisdiction only over appeals from final judgments, i.e. orders or judgments that adjudicate all claims against all parties. But again, there are exceptions to this general rule.

Recently, in an opinion authored by Judge Robert McDonald, the Court of Appeals decided a moot case in an appeal taken from a non-final judgment: In re O.P., No. 26, Sept. Term, 2019, 2020 WL 4726601 (Aug. 14, 2020). Due to the public interest presented by the litigation—and the fact that the litigation presented a controversy capable of repetition, yet evading review—the Court considered the case even though it had become moot. And because the appeal conclusively determined an important issue separate from the merits of the action that would be effectively unreviewable if the appeal had to await entry of a final judgment, review was allowed under the collateral order doctrine.  

In that case, the Court of Appeals was faced with a circuit court’s denial of request for continued temporary shelter care for a child enmeshed in a child in need of assistance (CINA) matter. Although this post focuses on the case’s threshold mootness and appellate jurisdiction issues, and not the merits of the CINA issue presented by the appeal, a brief discussion of CINA procedures is warranted. A CINA matter arises when a local department of social services believes that child is a victim of abuse or neglect and then files a petition asking a juvenile court to declare the child a CINA. The proceeding has two stages. First, the court holds an adjudicatory hearing, where it determine whether the factual allegations in the petition are true. If the court finds they are true, it moves to the second stage and holds a “disposition hearing to determine whether the child is, in fact, a CINA and, if so, the nature of any necessary court intervention.” 2020 WL 4726601, at *3.

In addition to filing the CINA petition, the department may place a child in emergency shelter care if the department concludes that is necessary “to protect the child from serious immediate danger,” and if other statutory perquisites are met. Id. at *4 (quoting Md. Code Ann., Cts. & Jud. Proc. (CJ) §3-815(b)(1)). The department may take that step either before or after filing a CINA petition. “If a child is placed in emergency shelter care, on the next day the juvenile court is sitting, the local department must immediately file a petition with the juvenile court to authorize continued shelter care.” Id. (citing CJ §3-815(c)(1); Md. Rule 11-112(a)(2)(ii)) (footnote omitted). The court “must then hold a shelter care hearing, no later than the next day on which the court is in session, unless good cause is shown, to determine whether temporary placement of the child outside the home for up to 30 days is warranted.” Id. at *5 (citing CJ §3-815(c)(2)). If the court extends shelter care for up to 30 days, the first stage of the CINA hearing must be held during that period of extended shelter care. If the “hearing is held within that period and the court finds at that hearing that continued shelter care is needed to ensure the safety of the child, it may extend shelter care for up to an additional 30 days. CJ §3-815(c)(4).” Id.    

In the case before the Court, the Anne Arundel County Department of Social Services had concluded that two-month old O.P., who had been hospitalized “for serious unexplained brain injuries,” should not be returned home when he was discharged from the hospital. Id. at Thus, upon discharge, he was “placed in emergency shelter care under the Department’s custody.” Id. The next business day, “the Department filed with the Circuit Court for Anne Arundel County, sitting as a juvenile court, a CINA petition with a request for continued shelter care.” Id. at *6. That same day, “a juvenile magistrate judge held a hearing and issued an order continuing shelter care of O.P. pending the adjudication of the CINA petition.” Id. At O.P.’s mother’s request, the court held a de novo hearing the next day and denied the request for continued shelter care. The department immediately appealed, and on the day after the juvenile court issued its ruling, the Court of Special Appeals “temporarily stayed the termination of shelter care and remanded the matter to the juvenile court for an explanation of the basis of its” decision denying continued shelter care. Id. O.P. was then returned to emergency shelter care.

Three days after the juvenile court issued a memorandum and order explaining its decision, “the Department filed an amended CINA petition, along with an amended request for shelter care stating that it had acquired additional evidence.” Id. at *7 (footnote omitted). A few days later, a juvenile magistrate held a hearing and again granted continued shelter care, and the day after that hearing, the juvenile court started a two-day hearing that was limited to the Department’s new allegations. Two days after the hearing concluded, “the juvenile court issued a second memorandum opinion and order denying the Department’s amended request for continued shelter care.” Id. (footnote omitted).

Another trip to the Court of Special Appeals ensued, but this time that court denied a request to stay the juvenile court’s order, so O.P. was returned to his parents. Id. at *8. That court then affirmed the juvenile court’s decision, 240 Md. App. 518 (2019), concluding that the juvenile court’s “order denying the Department’s petition for continued shelter care was appealable under the collateral order doctrine.” Id. (citing 240 Md. App. at 551-57). The Court of Appeals granted the Department’s and O.P.’s cert petitions, which asked the Court to decide two issues: “the appropriate standard of proof to be applied by a juvenile court to decide a petition to extend emergency shelter care” and whether the lower court had abused its discretion. Id. The Court also granted the conditional cross petition filed by O.P.’s mother, which asked “whether the juvenile court’s order denying continued shelter care was appealable,” and also asked the Court to decide the appropriate standard of proof in extended emergency shelter cases. Id.

Meanwhile, the CINA case proceeded in the juvenile court. After the Court of Special Appeals issued its decision, the Department filed a third amended petition, and the juvenile court held a combined adjudicatory and disposition hearing. “At the disposition phase of the hearing, the parties reached an agreement that O.P. was a CINA based on neglect, but that he should remain with his parents.” Id. at *9. The court entered an order reflecting that agreement, establishing other parameters, and as a result, the Department no longer sought to place O.P. in shelter care.

In the Court of Appeals, O.P.’s mother “moved to dismiss this appeal as improvidently granted on grounds of mootness.” Id. The Court denied that request, noting that while “an appellate court typically dismisses a moot appeal without addressing its merits,” exceptions to that principle exist. Id. (footnote omitted). “Under one exception, even if a controversy no longer exists when the case is before the appellate court, the case will be dismissed as moot if the controversy is ‘capable of repetition, yet evading review.’” Id.  (citation omitted). The public importance of the issue helps guide the court’s decision to hear the otherwise moot case, thus allowing appellate review:

if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand being heard in time is likely again to prevent a decision.

Id. (citation omitted).

That was clearly true in the case before the Court. “The standard of proof used by a juvenile court in deciding whether to grant or deny continued shelter care during the pendency of a CINA proceeding is an issue of public importance that will undoubtedly recur, perhaps even with the parties to this appeal.” Id. at *10. Applying the appropriate standard of proof to the statutorily-required determinations will decide “whether a juvenile court authorizes the Department to continue to provide shelter care outside of the family home to a child alleged to be a victim of abuse or neglect.” Id. Plus, the public interest is served by assuring “that juvenile courts in the State apply the same standard in making such determinations.” Moreover, because “shelter care proceedings, and related hearings in the CINA case, are inevitably on a fast track, an appeal from a denial of shelter care will almost always be moot by the time the appellate court would render its decision on a disputed question of law.” Id. Thus, the Court did not dismiss the case for mootness.

The Court next considered whether appellate jurisdiction existed. As the appeal was not from a final judgment— and as the appeal was not from one of the interlocutory orders where appeals are “specifically allowed by statute,” nor was it an appeal from a final judgment entered in accordance with Rule 2-602(b), which allows a circuit court to enter a final judgment as to fewer than all of the claims or parties—jurisdiction existed only if the appeal met the requirements of the collateral order doctrine. Id.  To satisfy those requirements, the appeal must be from an interlocutory order that “(1) conclusively determines (2) an important issue (3) separate from the merits of the action (4) that would be effectively unreviewable if the appeal had to await entry of a final judgment.” Id. (citation omitted).

The first, second, and fourth elements were easily met. The issue at a shelter care hearing is whether the child should continue to be sheltered outside the home. The hearing conclusively determines that issue, and the issue is clearly an important one. And since the shelter care is temporary, and occurs only during the pendency of a CINA proceeding. A decision “would be effectively unreviewable if an appeal had to await a final judgment in the CINA case.” Id. at *11.

The final part of the inquiry, whether the interlocutory order decided an issue that was separate from the merits, presented what both the Court of Appeals and Court of Special Appeals saw as “the closest question” regarding application of the collateral order doctrine. The Court of Appeals addressed that element by adopting the intermediate appellate court’s analysis, which focused on the following points. First, a request for continuation of shelter care is neither a necessary step in a CINA proceeding, nor a part of a CINA determination. Second, while the facts presented in the two proceedings may overlap, the proceedings present distinct issues. Third, the two proceedings use different rules and have different purposes. In short, each proceeding is different, taking its own “path,” and staying in its own “lane”:   

Here, the shelter care determination is not a “step toward the final disposition” of a CINA proceeding. Shelter care runs its course not in the path of the CINA adjudication, but collaterally, in its own lane, without advancing or hindering the final CINA decision. That, combined with its conclusive resolution of an important issue that is effectively unreviewable on direct appeal, renders it among the narrow class of orders reviewable under the collateral order doctrine.

Id. at *11 (quoting 240 Md. App. at 557) (footnote omitted).

Thus, the Court of Appeals agreed with the intermediate court, holding “that the juvenile court’s order denying the Department’s request for continued shelter care is reviewable under the collateral order doctrine.” Id. at *11.

There are important points to be taken away from this decision. In the right case, a court will decide that case even if it has become moot. There are cases that present issues of great public importance, involving matters that will become moot before the case can be fully litigated. In re O.P. serves as a perfect example. Moreover, these matters are of a type that will happen again and again, and if courts dismiss those cases again and again because they are moot, there will never be a judicial answer to the important issues presented.

The Court’s opinion also gives guidance on the proper use of the collateral order doctrine, which parties often invoke, albeit with limited success. In particular, the Court of Special Appeals’ analysis of the “separate issue” element, which the Court of Appeals adopted, is very helpful in showing that element should be addressed.        

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