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2015 PA Super 124
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
K.M.-F., A MINOR, : No. 12 WDM 2015
:
Petitioner :
Appeal from the Dispositional Order, February 23, 2015,
in the Court of Common Pleas of Allegheny County
Juvenile Division at Docket No. JV-12-002408
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
OPINION PER CURIAM: FILED MAY 22, 2015
In this case, we are presented with a petition for review filed pursuant
to Pa.R.A.P., Rule 1770, 42 Pa.C.S.A., Review of Dispositional Order for
Out of Home Placement in Juvenile Delinquency Matters. This
relatively new rule was promulgated by our supreme court in response to
the recommendations made by the Interbranch Commission on Juvenile
Justice Report of May 2010. The commission was created in August 2009
with a mandate to develop appropriate recommendations for reform of the
juvenile justice system. It recognized the importance of timely appellate
review of juvenile placement decisions finding that in order for review to be
meaningful, it must be completed before the child’s placement or other
disposition is completed. The commission recommended the following:
* Retired Senior Judge assigned to the Superior Court.
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That the Supreme Court’s Appellate Court Procedural
Rules Committee and Juvenile Court Procedural
Rules Committee collaborate to develop an expedited
appeals process or, in the alternative, collaborate to
develop a process that affords an aggrieved party an
option to elect a mechanism that affords some
measure of review of a juvenile court judge’s
decision short of a formal appellate review in the
following proceedings . . . an order of disposition
following an adjudication of delinquency that
removes a child from his or her home.
Commission Report p. 56.
This expedited appellate review is the genesis of Rule 1770.1 The rule
provides a vehicle for a juvenile placed in out-of-home overnight placement
1
Review of Out of Home Placement in Juvenile Delinquency Matters
(a) General rule. If a court under the Juvenile Act, 42 Pa.C.S.
§ 6301 et seq., enters an order after an adjudication of
delinquency of a juvenile pursuant to Rules of Juvenile Court
Procedure 409(A)(2) and 515, which places the juvenile in an
out of home overnight placement in any agency or institution
that shall provide care, treatment, supervision or rehabilitation
of the juvenile (“Out of Home Placement”), the juvenile may
seek review of that order pursuant to a petition for review under
Chapter 15 (judicial review of governmental determinations).
The petition shall be filed within ten days of the said order.
(b) Content. A petition for review under subdivision (a) shall
contain: (i) a specific description of any determinations made
by the juvenile court; (ii) the matters complained of; (iii) a
concise statement of the reasons why the juvenile court abused
its discretion in ordering the Out of Home Placement; (iv) the
proposed terms and conditions of an alternative disposition for
the juvenile; and (v) a request that the official court reporter for
the juvenile court transcribe the notes of testimony as required
by subdivision (g) of this Rule. Any order(s) and opinion(s)
relating to the Out of Home Placement and the transcript of the
juvenile court’s findings shall be attached as appendices. The
petition shall be supported by a certificate of counsel to the
effect that it is presented in good faith and not for delay.
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(c) Objection to specific agency or institution, or underlying
adjudication of delinquency, is not permitted.
(1) A petition for review under subdivision (a) shall not
challenge the specific agency or specific institution
that is the site of the Out of Home Placement and
instead shall be limited to the Out of Home
Placement itself.
(2) A petition for review under subdivision (a) shall not
challenge the underlying adjudication of
delinquency.
(d) Answer. Any answer shall be filed within ten days of service of
the petition, and no other pleading is authorized. Rule 1517
(applicable rules of pleading) and Rule 1531 (intervention)
through 1551 (scope of review) shall not be applicable to a
petition for review filed under subdivision (a).
(e) Service. A copy of the petition for review and any answer
thereto shall be served on the judge of the juvenile court and
the official court reporter for the juvenile court. All parties in
the juvenile court shall be served in accordance with
Rule 121(b) (service of all papers required). The Attorney
General of Pennsylvania need not be served in accordance with
Rule 1514(c) (service), unless the Attorney General is a party in
the juvenile court.
(f) Opinion of juvenile court. Upon receipt of a copy of a petition
for review under subdivision (a), if the judge who made the
disposition of the Out of Home Placement did not state the
reasons for such placement on the record at the time of
disposition pursuant to Rule of Juvenile Court Procedure 512(D),
the judge shall file of record a brief statement of the reasons for
the determination or where in the record such reasons may be
found, within five days of service of the petition for review.
(g) Transcription of Notes of Testimony. Upon receipt of a copy
of a petition for review under subdivision (a), the court reporter
shall transcribe the notes of testimony and deliver the transcript
to the juvenile court within five business days. If the transcript
is not prepared and delivered in a timely fashion, the juvenile
court shall order the court reporter to transcribe the notes and
deliver the notes to the juvenile court, and may impose
sanctions for violation of such an order. If the juvenile is
proceeding in forma pauperis, the juvenile shall not be charged
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to seek review of that decision within ten days of the placement order.2 The
rule references the requirements of Chapter 15 of the Appellate Rules
(Judicial Review of Governmental Determinations), which sets forth various
procedural requirements of a petition for review generally. Additionally,
Rule 1561(a) allows that this court “may affirm, modify, vacate, set aside, or
reverse any order brought before it for review and may remand the matter
and direct the entry of such appropriate order or require such further
proceedings as may be just under the circumstances.” Pa.R.A.P.,
Rule 1561(a), 42 Pa.C.S.A.
The superior court’s Operating Procedure (“O.P.”) § 65.22 allows for
substantive petitions and motions, such as, motions to quash or dismiss
appeals, petitions for permission to appeal an interlocutory order, and
petitions for review, to be submitted to a three-judge motions panel which
for the cost of the transcript. Chapter 19 of the Rules of
Appellate Procedure shall not otherwise apply to petitions for
review filed under this Rule.
(h) Non-waiver of objection to placement. A failure to seek
review under this rule of the Out of Home Placement shall not
constitute a waiver of the juvenile’s right to seek review of the
placement in a notice of appeal filed by the juvenile from a
disposition after an adjudication of delinquency.
42 Pa.C.S.A. §1770.
2
Under Rule 1770(h), the filing or the failure to file such a petition does not waive
the juvenile’s right of appellate review to a finding of delinquency or disposition
order.
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represents a quorum of the court for decision purposes.3 Upon filing with
the Prothonotary’s office, such petitions are then reviewed by the court’s
Central Legal Staff and submitted to the motions panel for decision. The
volume of substantive motions filed with the superior court each year is very
high.4 Therefore, for purposes of expediting review by a motions panel of
petitions for review filed pursuant to Rule 1770, we suggest that a petitioner
specifically and clearly label the petition for review as one seeking expedited
review of out-of-home placement in a juvenile delinquency matter.5
Upon review of the petition for review filed in the case, we find it
meets the contents requirements of Rule 1770(b), which are designed to
provide the appellate courts with sufficient record materials to decide the
issue presented, including a certificate of counsel stating the petition is
presented in good faith and not for delay. The petition is timely filed. The
3
Motions Review Subject to Motions Panel Disposition.
A. Motions to Quash or Dismiss Appeals, Petitions for Permission to
Appeal pursuant to Pa.R.A.P. 312, 1301-1323 and 42 Pa.C.S.
§702(b), and Petitions for Review pursuant to Pa.R.A.P. 1501
et seq. shall be subject to review and disposition by a panel of
three judges.
O.P. § 65.22.
4
Motions panels reviewed 523 such motions in 2014.
5
As an intermediate appellate court, we lack the authority to amend the rules of
appellate procedure. Such power resides with the Pennsylvania Supreme Court.
However, we recommend that the Supreme Court Appellate Rules Committee
consider including our suggestion as a filing mandate to Rule 1770. This practice
would ensure that Rule 1770 petitions are immediately brought to the court’s
attention and handled expeditiously.
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juvenile court has complied with the directive of Rule 1770(f), by providing a
statement of the reasons for its determination on the record at the
conclusion of the hearing and with Rule 1770(g), by timely certifying the
notes of testimony from the hearing. For the reasons that follow, we grant
the petition for review and affirm the juvenile court’s decision for
out-of-home placement.
Petitioner was adjudicated delinquent for aggravated assault and
recklessly endangering another person following his admission to those
charges in exchange for the Commonwealth’s withdrawal of the criminal
attempted homicide charge and the amending of the robbery charge. There
was no dispositional agreement between the parties. Following a lengthy
dispositional hearing, the juvenile court permitted the Juvenile Probation
Office to place Petitioner out of his home at Summit Academy or the Abraxas
Leadership Development Program.
Petitioner admitted to luring his physically disabled best friend into the
woods, attacking him, and leaving him on a hillside unconscious. The victim
was outside until he awoke the following day and crawled out of the woods,
where he was discovered and assisted by good Samaritans. The victim was
hospitalized and suffered serious injuries as a result of the assault.
Petitioner filed this petition pursuant to Rule 1770(a). Petitioner
argues that the juvenile court did not specifically state why out-of-home
placement was the least restrictive alternative as required by the
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Juvenile Act,6 and that the juvenile court abused its discretion by ordering
out-of-home placement because the decision was against the weight of the
evidence presented at the hearing. Petitioner argued that the offenses
occurred 17 months prior to the hearing, and the evidence established that
Petitioner was on the honor roll, a star wrestler, actively participating in his
voluntary private counseling, had never violated his electronic home
monitoring or his no-contact order, and was determined to be a low-to-
moderate risk for re-offending.7 Petitioner argued that there was no
evidence presented to establish or suggest that Petitioner could not be
treated in the community or that any service or treatment plan required by
6
Section 6352(c) of the Juvenile Act states:
(c) Required statement of reasons.--Prior to entering an order
of disposition under subsection (a), the court shall state its
disposition and the reasons for its disposition on the record in
open court, together with the goals, terms and conditions of
that disposition. If the child is to be committed to out-of-home
placement, the court shall also state the name of the specific
facility or type of facility to which the child will be committed
and its findings and conclusions of law that formed the basis of
its decision consistent with subsection (a) and section 6301,
including the reasons why commitment to that facility or type of
facility was determined to be the least restrictive placement that
is consistent with the protection of the public and best suited to
the child’s treatment, supervision, rehabilitation and welfare.
42 Pa.C.S.A. § 6352(a).
7
Petitioner notes that he was assessed on the Juvenile Probation’s predictive tool to
have a low risk of re-offending, but his assessment was manually changed to
moderate because of the nature of the charges themselves.
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Petitioner could not be provided in a community setting. The
Commonwealth did not file a response to Petitioner’s petition.8
We first set forth our standard of review of a dispositional order:
As noted by the court, the Juvenile Act grants
to the court broad discretion in disposition.
42 Pa.C.S.A. §6341, §6352; In re Love, 435
Pa.Super. 555, 646 A.2d 1233 (1994). In the
opinion dated November 21, 1999, the court details
its rationale for the disposition it ordered. Finding
that the court properly considered the information
presented to it and fashioned a disposition it believed
best suited the circumstances involved, we perceive
no manifest abuse of discretion which would cause
us to disturb its order.
In the Interest of A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (en banc).
The juvenile court had a lengthy dispositional hearing as evidenced by
the 95-page transcript. At the dispositional hearing, the court heard
testimony from Petitioner as well as his probation officer, his therapist, his
social worker, and his mother. The juvenile court also heard testimony from
the victim’s father and uncle. The court heard recommendations and
argument from probation, the Commonwealth, and defense counsel. During
the hearing, the court asked each of the witnesses questions and noted that
it would consider the testimony with appropriate weight in balancing
Petitioner’s rehabilitative needs against its duties to hold Petitioner
accountable and protect the community. “In a juvenile proceeding, the
8
Under Rule 1770(d), any answer filed to the petition for review shall be filed
within ten days of service of the petition. We strongly urge the Commonwealth to
file a response in the future.
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hearing judge sits as the finder of fact. The weight to be assigned the
testimony of the witnesses is within the exclusive province of the fact
finder.” Id. (citation omitted).
The juvenile court discussed the impact on the victim and its concern
that Petitioner needed a higher level of accountability for his actions.9 The
juvenile court explained that it does not believe that the amount of
supervision and rehabilitative programs that Petitioner was receiving at the
time of the disposition were enough given the seriousness of his actions.
The court stated that while it believed that Petitioner was amenable to
treatment, it was concerned by Petitioner’s lack of remorse. The juvenile
court noted that Petitioner was only concerned with the potential of his own
life being disrupted but did not comment on how his actions impacted the
victim’s life. The juvenile court summarized its disposition as follows:
It’s all these reasons. For the victim’s sake.
For the community’s sake. For accountability sake.
But I heard that you, and I have heard conflicting
[testimony], that you really don’t want to have
friends anymore because of this incident. If that
isn’t somebody that doesn’t need treatment
supervision rehabilitation, I don’t know who is. The
9
Petitioner was arrested on the charges on August 10, 2013, and transferred to the
Allegheny County Jail where he remained until release to electronic home
monitoring on May 22, 2014, in anticipation of a decertification hearing.
Petitioner’s counsel strongly advocated that the nine and one-half months spent
incarcerated should be considered sufficient punishment, and Petitioner should be
placed on probation with appropriate conditions. Counsel argued that this
detention was punitive and satisfied the accountability factor. The trial court
correctly concluded that accountability under the Juvenile Act is not the same as
punishment, but rather, is directed to having the juvenile appreciate the
seriousness and consequences of his actions in line with additional treatment and
rehabilitation.
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guy on a team that teammates rely on. If it is [a]
team thing in wrestling. The kid that is in tenth
grade that doesn’t want to have friends. A kid that
wants to stay at home other than for wrestling. And
stay in his room. It’s also restoring yourself besides
the victim.
So, for all these reasons, and I had to put
them on the record. I have to protect the public
interest. This incident could have effect a lot of the
public. I think it best suits that you have a
placement. I’m not going to say it is going to be
long one. But I think you need to review all your
issues.
And [as] the good therapist back there said,
I’m not going to start with anger[, but with]
self-control. But you are going to get that. And you
are going to get anger management. And you are
going to get victim awareness. And you are going to
get other competencies that we have not even spoke
of. And I think you are going to be fine. But I think
it’s best suited for your treatment, supervision,
rehabilitation and welfare.
I have to balance that with the protection of
the community, imposition of accountability for
offenses committed.
Notes of testimony, 2/10/15 at 89-90.
Petitioner additionally challenges placement in Abraxas or Summit
Academy. However, his objection does not specifically relate to either
placement so much as his belief that probation with conditions is all that is
warranted. We recognize that the juvenile court did not specifically place on
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the record its reasons for choosing this particular placement.10 However,
both programs’ services were outlined for the court by juvenile probation.
THE COURT: What we are talking about, what is he
going to get at Abraxas or Summit?
[JUVENILE PROBATION OFFICER]: They will offer
the accountability measures to community
protection. They will do a victim awareness group.
They will help him complete community service
hours. They will do an ART of some sort. They will
assess him and assist with mental health needs that
he has. They will do individual counseling. They will
have mother involved for family counseling. They
will allow him to have visitation with mother. And
eventually, he can earn his way to home passes and
eventually a discharge into some community-based
program.
Id. at 75.
We believe, based on the reasons subsequently given by the court for
out-of-home placement, it determined that the Abraxas and Summit
programs provided Petitioner with the least restrictive confinement and
important treatment services.11
As Petitioner noted, the juvenile court has broad discretion when
determining an appropriate disposition. The record demonstrates that the
court heard testimony from a number of witnesses on behalf of the victim
10
The juvenile court considered more restrictive placement programs, and declined
to follow the probation officer’s recommendation to place Petitioner in a more
serious secure facility, YDC Cresson.
11
We note that under Rule 1770(c)(1), an objection to a specific agency or
institution is not permitted to be challenged in the petition for review; but rather,
the review is limited to the reasons for out-of-home placement only.
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and Petitioner, and that it considered the recommendations of probation and
counsel. The juvenile court noted that it had read the relevant statutes and
that it took its responsibilities under the Juvenile Act seriously as it weighed
its duties to hold Petitioner accountable, protect society, and rehabilitate
Petitioner. We cannot find that the juvenile court abused its discretion in
fashioning Petitioner’s disposition and out-of-home placement under the
circumstances of this case was not unreasonable.
Petition for review granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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