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2015 PA Super 229
IN THE INTEREST OF: T.L.B., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: :
COMMONWEALTH OF PENNSYLVANIA :
: No. 1845 MDA 2014
Appeal from the Dispositional Order October 7, 2014
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-JV-0000201-2014
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED NOVEMBER 02, 2015
The Commonwealth appeals from the dispositional order entered in the
York County Court of Common Pleas, dismissing the juvenile complaint
against Appellee, T.L.B. In this matter, Appellee admitted to the two felony
charges of indecent assault against a victim less than thirteen years of age 1
(“indecent assault”), but the juvenile court found he is not in need of
treatment, supervision, or rehabilitation. We hold the juvenile court did not
abuse its discretion, where the court credited Appellee’s therapist’s
testimony that at the time of the dispositional hearing, Appellee’s treatment
no longer concerned his sexual behavior and addressed only other mental
health concerns, Appellee’s treatment was progressing well, he was not
currently in need of additional treatment, and he was expected to
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7).
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successfully complete his one-year treatment program. Accordingly, we
affirm.
The underlying incident occurred on September 15, 2013. Appellee
was twelve years old at the time and he admitted to touching his twenty-two
month old nephew’s and four-year old niece’s genitals while bathing them.2
On October 1, 2013, Appellee was adjudicated dependent and placed in the
legal and physical custody of the York County Children, Youth and Families
agency (“CYF”). In the dependency matter, the court ordered Appellee to
comply with treatment with Diakon SPIN Services program (“Diakon”).3
On April 23, 2014, the Commonwealth filed the instant juvenile
complaint against Appellee for the bathing incident.4 At the time, Appellee
was living with a foster mother. On June 25th, Appellee appeared before the
juvenile court and admitted to two charges of indecent assault on a victim
2
We glean the ages of the victims from the Commonwealth’s brief. See
Commonwealth’s Brief at 5.
3
The Hon. Andrea Marceca Strong presided over both the instant
delinquency matter and Appellee’s dependency matter.
4
The juvenile petition also alleged two counts each of indecent assault
against a victim less than thirteen years of age, involuntary deviate sexual
intercourse with a victim less than thirteen, aggravated indecent assault of a
victim less than thirteen, sexual assault, and indecent assault without
consent. When Appellee admitted to indecent assault at the June 25, 2014
hearing, the Commonwealth withdrew the remaining charges. N.T.,
6/25/14, at 3.
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less than thirteen years old.5 Both counts were graded as felonies of the
third degree because there was a course of conduct.6 See 18 Pa.C.S. §
3126(b)(3)(ii); N.T., 6/25/14, at 3, 23. The juvenile court deferred
adjudication pending the completion of a case assessment by the Juvenile
Probation department. N.T., 6/25/14, at 24. The court further ordered
Appellee to remain in the custody of CYF.
The court conducted the adjudication hearing on October 7, 2014.7 It
noted that because the charges were felonies of the third degree, there was
a presumption for adjudication, which “shifts the burden to” Appellee. N.T.,
10/7/14, at 10. The sole witness was Heather Gorr, Appellee’s therapist at
Diakon.8 At this juncture, we review her testimony in detail.
Gorr testified to the following on direct examination. Appellee began
5
See 18 Pa.C.S. § 3126(a)(7) (“A person is guilty of indecent assault if [he]
has indecent contact with the complainant, [or] causes the complainant to
have indecent contact with the person . . . for the purpose of arousing
sexual desire in the person or the complainant and . . . the complainant is
less than 13 years of age[.]”).
6
The record does not indicate any additional instances of indecent assault
aside from the September 15, 2013, bathing incident. Nevertheless,
Appellee’s counsel agreed to the felony-three grading “for a continuing
course of conduct.” N.T., 6/25/14, at 3.
7
At the time of this hearing, Appellee was thirteen years old and living with
the same foster mother.
8
Gorr testified she was a counselor in the “Diakon Specialized In-Home
Program, which focuses on sex offender treatment for juveniles.” N.T.,
10/7/14, at 12.
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treatment approximately eight months earlier, in February of 2014, before
the filing of the instant juvenile petition.9 Id. at 13-14. Appellee was
referred to Diakon by CYF “after [it] identified sexual acting out behaviors.”
Id. at 19.
Gorr also stated Appellee “has reported being a victim of sexual
abuse,” and that the alleged perpetrator, his father, did not agree to the
police department’s request for a polygraph test. Id. at 21-22. We note the
juvenile probation officer’s case assessment also stated Appellee “made
allegations of abuse against his father, his father has not participated in
visits or counseling[, and instead] feels he is better off giving [Appellee] the
space he’s requested.” Juvenile Probation Officer’s Juvenile Case
Assessment, 10/7/14, at 1. The assessment further stated “that previous
abuse allegations by [Appellee] against his father [were] unfounded.” Id.
Finally, the juvenile court noted Appellee has been “rat[ed] on the autism
spectrum[.]” N.T., 10/7/14, at 36.
At the hearing, Gorr further testified to the following. Appellee
receives “counseling or therapy multiples times a week,” consisting of “at
least one individual session, one family session, and one group therapy
session,” totaling ten to fifteen hours per week. Id. at 13. Diakon and CYF
9
Gorr opined the bathing incident indicated “a mental health concern” and
that Diakon “did not feel that it would be appropriate for adjudication.” N.T.,
10/7/14, at 14. Nevertheless, Appellee admitted to the indecent assault
offenses.
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were working “very well” together on Appellee’s case. Id. at 16. Appellee
was “authorized” for treatment through February of 2015, and she
“fores[aw] him being successfully discharged.” Id. Gorr recommended
Appellee “continue with the Diakon SPIN program until his authorization
would be complete.” Id. at 30.
Gorr further opined to the following. Appellee exhibited “much more
of a steady progress in the last four months or so,” he did “very, very well in
the community,” and “there have been no sexual acting out behaviors in
over a year.” Id. at 13-14. Six months earlier, “[t]here was concern . . .
related to [Appellee’s] mental health, not related to his sexual behaviors,”
but Gorr currently had no “concerns that would necessitate removal or a
higher level of service.” Id. at 16, 18. Appellee was receiving an
“appropriate level of services,” and additional treatment “would be too much
therapy and . . . would muddy the waters [sic].” Id. at 18. On cross-
examination, Gorr reiterated Appellee was “receiving a very high level of
service[s]” and “additional therapeutic services [were not] warranted at this
time.” Id. at 22.
On direct examination, Gorr opined Appellee showed “a low risk of re-
offense.” Id. at 15. On cross-examination, the Commonwealth asked her
whether she was surprised by a psychosexual evaluation, conducted
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approximately one year earlier,10 which stated Appellee was a “moderate
risk for sexual reoffending.” Id. at 22. Gorr responded:
A psychosexual is a snapshot in time when we gather data
from a very brief period of time. It’s also based on self-
report, familial report, if other agencies are involved, and
so, again, we are looking at one period of time. He has
been successful in my treatment, so no, therapeutically
this makes sense in my opinion.
Id. at 22-23. On redirect examination, Gorr reiterated that Appellee
“continues to be reassessed,” she “view[ed] him as a low risk,” and “the
recidivism rate has reduced because of his successful completion and
treatment.” Id. at 26, 28.
Appellee’s counsel argued Gorr’s testimony overcame the presumption
of adjudication for the felony charges, Appellee “is receiving the level of
services that he needs,” and “[h]e has been successful for months . . . in the
treatment.” Id. at 31. The Commonwealth responded, “Just because the
juvenile is already receiving some sort of treatment through the Diakon SPIN
Program doesn’t . . . automatically mean[ ] that he doesn’t need to be
adjudicated. There are principles of accountability and community safety
that need to be addressed.” Id. at 33.
The juvenile court found Appellee was not in need of treatment,
supervision, or rehabilitation. Id. at 36. It thus dismissed the juvenile
10
The adjudication transcript indicates the psychosexual evaluation was
conducted by Hugh Smith on October 15, 2013. N.T., 10/7/14, at 26.
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petition, but directed Appellee to “remain in . . . placement.” Id. at 37. The
court then immediately proceeded to a review hearing in the dependency
matter. Id. at 39. The Commonwealth timely appealed and, at the court’s
direction, timely filed a Pa.R.A.P. 1925(b) statement.
Preliminarily, we consider the juvenile court’s suggestion that the
Commonwealth’s issue should be found waived for failure to identify the
issue with sufficient detail in its Rule 1925(b) statement. See Juvenile Ct.
Op., 12/1/14, at 2. The Commonwealth’s Rule 1925(b) statement raised
one issue as follows: “The juvenile court erred when it denied the petition to
adjudicate [Appellee] delinquent after [he] was found to have committed a
felony graded indecent assault upon a minor victim.” Commonwealth’s
Statement of Matters Complained of on Appeal, 11/20/14.
“The Statement shall concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).
While we would agree the Commonwealth’s Rule 1925(b) statement
could have specifically challenged the finding that Appellee was not in need
of treatment, supervision, or rehabilitation, we decline to find waiver. In this
case, Appellee admitted he committed the delinquent acts, and the sole
question before the court was whether he was in need of treatment,
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supervision, or rehabilitation. Furthermore, the juvenile court’s opinion aptly
addressed the issue now raised in the Commonwealth’s brief—whether the
evidence established Appellee was in need of further treatment. See
Commonwealth v. Laboy, 594 Pa. 411, 415, 936 A.2d 1058, 1060 (2007)
(declining to find waiver for perceived failure to adequately develop
sufficiency of evidence claim where matter was “relatively straightforward
drug case,” evidentiary presentation spanned “mere thirty pages of
transcript,” and trial “court readily apprehended [defendant’s] claim and
addressed it in substantial detail”).
The Commonwealth argues the court abused its discretion in finding
Appellee was not in need of treatment, rehabilitation, or supervision. In
support, it cites 42 Pa.C.S. § 6341(b)’s presumption for delinquency in
felony offenses. The Commonwealth also advances the following arguments.
Appellee’s therapist, Gorr, testified he should continue receiving “a high level
of services.” Commonwealth’s Brief at 10. Indeed, the juvenile court
required Appellee to “comply with the Diakon sexual offender treatment
program,” and this order is contrary to its finding that he was not in need of
treatment. Id. at 10-11. Additionally, the juvenile court’s finding that
Appellee “‘completed’ his offense related treatment is . . . not supported by
the record, when the entirety of his mental health related treatment is
related to preventing sexual offenses.” Id. at 12. The juvenile court also
“disregard[ed] the separate role and capabilities of Juvenile Probation” and
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CYF, where “the goal of delinquency is the protection of the public interest”
in addition to the best interest of the child. Id. The Juvenile Probation
department’s “YLS assessment” determined Appellee was at moderate risk
for reoffending. Finally, the Commonwealth asserts the juvenile court
exhibited bias and ill will, as its opinion stated the Commonwealth “[i]n this
matter and similar cases . . . has been seeking adjudications for purely
punitive purposes[.]” Id. at 14. We find no relief is due.
We note the relevant standard of review:
The Juvenile Act grants juvenile courts broad discretion
when determining an appropriate disposition. . . . We will
disturb a juvenile court’s disposition only upon a showing
of a manifest abuse of discretion.
Interest of C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014) (citations omitted).
In Commonwealth v. M.W., 641 Pa. 633, 39 A.3d 958 (2012), the
Pennsylvania Supreme Court held an adjudication of delinquency requires
both findings “(1) that the juvenile has committed a delinquent act; and (2)
that the juvenile is in need of treatment, supervision, or rehabilitation.” Id.
at 634, 39 A.3d at 959.
This is so even where the delinquent act constitutes a
felony because, while the commission of such an act
presumptively supports a finding that the juvenile is in
need of treatment and supervision . . . the juvenile court
must still make that finding after allowing for other
evidence. 42 Pa.C.S.A. § 6341(b) (“In the absence of
evidence to the contrary, evidence of the commission of
acts which constitute a felony shall be sufficient to sustain
a finding that the child is in need of treatment, supervision
or rehabilitation.”).
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Id. at 646 n.9, 39 A.3d at 966 n.9.
In M.W., the Commonwealth filed a robbery delinquency petition
against the juvenile. Id. at 635, 39 A.3d at 959. The juvenile court found
he committed the acts, placed him on interim probation, but deferred
adjudication. Id. “Later that same day,” another judge adjudicated the
juvenile delinquent on an unrelated theft delinquency petition and
committed him to treatment, rehabilitation, and supervision. Id. at 635, 39
A.3d at 959-60. Subsequently, the first judge discharged the robbery
delinquency petition, “noting [the juvenile] ‘will be adjudicated on the [theft]
petition [and] will still receive treatment and supervision.’” Id. at 635, 39
A.3d at 960. The Commonwealth appealed. Id.
Much of the Pennsylvania Supreme Court’s decision was addressed to
its holding, “that under the Juvenile Act, in order to adjudicate a child
delinquent, the juvenile court must (1) determine that the juvenile has
committed a delinquent act, and (2) determine that the juvenile requires
treatment, supervision, or rehabilitation.” See id. at 646, 39 A.3d at 966.
It then remanded for the juvenile court to determine whether the juvenile “is
in need of treatment, supervision, or rehabilitation.” Id. We note the M.W.
decision, however, did not discuss the juvenile court’s discharge of the
robbery petition on the rationale that the juvenile would receive treatment
and supervision through the theft adjudication. See id. at 635, 646, 39
A.3d at 960, 966. Instead, the Court merely directed that on remand, the
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juvenile court may enter an adjudication of delinquency only if it found the
juvenile in need of treatment, supervision, or rehabilitation. Id. at 646, 39
A.3d at 966. “If, however, the court concludes [the juvenile] is not in need
of treatment, supervision, or rehabilitation, it should dismiss the proceeding,
terminate jurisdiction, and discharge” him. Id.
As stated above, “[t]he Juvenile Act grants juvenile courts broad
discretion when determining an appropriate disposition,” and in the case sub
judice, we hold the juvenile court did not abuse its discretion. See C.A.G.,
89 A.3d at 709. At the adjudication hearing, Appellee’s counsel and the
juvenile court both addressed the statutory presumption for adjudication for
felony offenses. See 42 Pa.C.S. § 6341(b); N.T., 10/7/14, at 10, 31, 35;
see also Juvenile Ct. Op. at 3. In its opinion, the juvenile court found
Appellee had been in treatment for several months before the adjudication
and disposition hearings, he “has made progress in his treatment,” “his
treatment no longer focuses on the delinquent act, but has progressed . . .
to focus on other mental health concerns,” and he “completed all treatment
relevant to the delinquent act.” Juvenile Ct. Op. at 4.
We reject the Commonwealth’s argument that at this stage, the
juvenile court was required to consider community protection. The
Commonwealth cites the following passage in In re R.D.R., 876 A.2d 1009
(Pa. Super. 2005):
[T]he Juvenile Act requires the juvenile court to consider
the protection of the public interest, and to devise a
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sentence best suited to the child’s treatment, supervision,
rehabilitation, and welfare, under the individual
circumstances of each child’s case.
Commonwealth’s Brief at 13 (quoting R.D.R., 876 A.2d at 1014). However,
this statement addresses the factors in sentencing a juvenile who has
already been adjudicated delinquent. R.D.R., 876 A.2d at 1014 (addressing
juvenile’s argument that court ordered him to pay fines without considering
his ability to pay). Instead, M.W. clearly delineated only two factors for the
initial finding of delinquency: the juvenile’s commission of the acts and his
need for treatment, supervision, or rehabilitation. M.W., 614 Pa. at 634-35,
642, 39 A.3d at 959, 964.
We also disagree with the Commonwealth’s summation that M.W.
“held that . . . the fact that the juvenile is already in treatment is an
improper basis for denying adjudication.” See Commonwealth’s Brief at 11.
A careful reading of M.W. reveals no articulation of such a holding.
Although the M.W. Court remanded for the juvenile court to determine
whether the juvenile was in need of treatment, the Supreme Court did not
discuss the juvenile court’s rationale for discharging the robbery petition—
that the juvenile would receive treatment and supervision through the theft
adjudication. See M.W., 614 Pa. at 635, 646, 39 A.3d at 960, 966.
Nevertheless, we may distinguish the facts of M.W. from those in this case.
In M.W., the juvenile was ordered to undergo treatment as a result of his
delinquency adjudication for theft, and the juvenile court found no additional
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rehabilitation for robbery was necessary. Id. at 634, 39 A.3d at 959-60. In
this case, Appellee was ordered to comply with treatment at Diakon in his
dependency matter, and that treatment, by the time of the dispositional
hearing, no longer addressed his sexualized behavior. Instead, his
treatment had evolved to concern only his mental health generally.
Furthermore, the juvenile court credited Gorr’s testimony that he had not
acted out in sexualized behavior in more than one year.
Finally, we address the Commonwealth’s contention that the juvenile
court acted with bias and ill will. The Commonwealth refers to the following
statement in the court’s opinion:
It is important to note this Court’s concern with [the]
delinquency process in York County. Often, the
Commonwealth, in this matter and other similar cases
brought before it, has been seeking adjudications for
punitive purposes by requesting an adjudication and
disposition that ultimately does nothing more than label
the juvenile and demand he pay costs and fees.
See Juvenile Ct. Op. at 4. In light of the juvenile court’s thorough
discussion of the evidence in this case, we do not find it acted with bias or ill
will. As the juvenile court did not abuse its discretion in finding Appellee was
not in need of treatment, rehabilitation or supervision, we affirm its order
dismissing the juvenile petition.
Order affirmed.
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