In the Interest of: K.F., Appeal of: K.F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: K.F., A MINOR :
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:
:
:
: No. 627 EDA 2018
Appeal from the Dispositional Order February 5, 2018
In the Court of Common Pleas of Montgomery County Juvenile Division
at No(s): CP-46-JV-0000017-2018
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 26, 2019
K.F. (Appellant) appeals from the juvenile court’s dispositional order
entered after the court adjudicated Appellant delinquent of committing three
acts of simple assault and one act of harassment.1 Upon review, we affirm.
The juvenile court accurately summarized the underlying facts as
follows:
On January 9, 2018, [Appellant] was a student at the East
Norriton Middle School. In the school lunch room that day, three
teachers saw [Appellant] join in a fight among several students.
Teacher Melinda Kelly saw [Appellant] punch teacher Christine
Gaertner in the face with her closed fist. She saw [Appellant]
punch teacher Stacey Schreiber in the shoulder with her closed
fist. She also saw [Appellant] hit another student, A.K., in the
face with her closed fist as he tried to help Ms. Gaertner restrain
[Appellant]. Ms. Schreiber saw [Appellant] punch Ms. Gaertner in
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1 In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa. Super.
2006).
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the jaw with a closed fist and also saw her hit A.K. Ms. Gaertner
did not see [Appellant] punch her. Rather, her head “popped
back” as she felt a sudden contact with her face, and then she
made eye contact with [Appellant], who drew her fist back to
prepare to land another punch. As the teachers physically
restrained her and tried to calm her with words, [Appellant]
persisted, flailing her arms, screaming obscenities at the teachers,
and demanding that they let her go, all in a continuous effort to
rejoin the fight.
Juvenile Court Opinion, 4/20/18, at 1-2 (citations to notes of testimony from
the January 17, 2018 adjudication hearing omitted).
The day of the school incident, the Commonwealth filed a delinquency
petition. The Commonwealth alleged that Appellant committed aggravated
assault, simple assault, and harassment; the Commonwealth further alleged
that Appellant was “in need of treatment, supervision or rehabilitation as
defined by the Juvenile Act.” Petition Alleging Delinquency, 1/9/18, at 2.
A pre-adjudicatory detention hearing was held on January 10, 2018,
after which the court determined that “detention was warranted” and it “was
contrary to the welfare of [Appellant] to remain in the home of Mother.”
Order, 1/10/18, at 1. Appellant was detained at the Montgomery County
Youth Center (MCYC). The juvenile court convened an adjudicatory hearing
on January 17, 2018, after which it adjudicated Appellant of committing three
acts of simple assault and one act of harassment. The juvenile court
determined that Appellant was in need of treatment, supervision or
rehabilitation, and ordered that Appellant remain at MCYC pending a
dispositional hearing. The dispositional hearing was held on February 5, 2018.
The juvenile court ordered that Appellant be released from MCYC to the care
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of her parent, placed on probation, enroll in the Academy Aftercare program,
and complete 40 hours of community service. Dispositional Hearing Order,
2/5/18.
Appellant filed this timely appeal. Both Appellant and the juvenile court
have complied with Pennsylvania Rule of Appellate Procedure 1925. Notably,
Appellant’s 1925(b) concise statement reads:
1. The Learned Trial Court erred in adjudicating [Appellant]
delinquent without hearing any evidence. As per In re N.C., mere
evidence that a juvenile committed a delinquent act, without
more, is not enough to prove that a juvenile is in need of
treatment, rehabilitation or supervision. Furthermore, there is no
presumption that she is in need of Treatment, Rehabilitation, or
Supervision because she was not adjudicated of any felonies,
which would give rise to a presumption as per the juvenile act.
Appellant’s Concise Statement, 3/14/18.
On appeal, however, Appellant states her issues as follows:
I. Did the juvenile court err in adjudicating a minor delinquent
without a separate hearing on the question of whether the
minor was in need of treatment, supervision, or
rehabilitation?
II. Did the [juvenile] court err in adjudicating the minor
delinquent where there was insufficient evidence to support
a conclusion that the minor was in need of treatment,
supervision, or rehabilitation?
III. Did the adjudicating court err in relying on “the fact that the
school has an IEP” to support a finding that the minor is in
need of treatment, supervision, and rehabilitation under the
Juvenile Act where such a conclusion inherently
discriminates against all students with disabilities by making
them disproportionately vulnerable to adjudications of
delinquency as a result of exercising their right to free
appropriate public education under the IDEA?
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Appellant’s Brief at viii.
In light of the foregoing, Appellant has failed to preserve her third issue
regarding her IEP because she did not raise it in her 1925(b) concise
statement. Rule 1925 instructs that “[i]ssues 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). We recently discussed 1925(b)
waiver:
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306(1998), our Supreme Court held that “from this date forward, in
order to preserve their claims for appellate review, [a]ppellants
must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule
1925. Any issues not raised in a 1925(b) statement will be deemed
waived.” Lord, 719 A.2d at 309; see also Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775, 780 (2005) (stating any
issues not raised in a Rule 1925(b) statement are deemed
waived). This Court has held that “[o]ur Supreme Court intended
the holding in Lord to operate as a bright-line rule, such that
‘failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised.’”
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in
original) (quoting Commonwealth v. Schofield, 585 Pa. 389, 888
A.2d 771, 774 (2005).
U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua,
193 A.3d 994, 996–97 (Pa. Super. 2018). Given the well-settled law,
Appellant’s third issue is waived.
Conversely, Appellant’s first and second issues – more broadly
challenging the juvenile court’s adjudication of delinquency and determination
that Appellant required treatment, supervision, or rehabilitation – were raised
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and preserved in Appellant’s 1925(b) concise statement. Because the issues
are intertwined, we address them together.
Appellant argues that “the juvenile court did not conduct dispositional
hearings in accordance with the Juvenile Act by failing to conduct a hearing
on the question of whether [Appellant] needed Treatment, Supervision, or
Rehabilitation (TSR).” Appellant’s Brief at 7. Appellant claims the court
violated 42 Pa.C.S.A. § 6341(b) because it failed to conduct a hearing to
determine Appellant’s need for TSR, and instead rendered a “superficial and
cursory” determination that Appellant was in need of TSR without holding “a
separate hearing on the matter.” Id. at 8. Appellant further argues that
“because the juvenile court did not conduct a hearing on [Appellant’s] need
for TSR, there was insufficient evidence to support the finding on that issue.”
Id. at 14. Appellant contends that the court “may not base its finding on its
‘own opinion [and] speculation.’” Id. at 17 (citing In the Interest of N.C.,
171 A.3d 275 (Pa. Super. 2017)).
At the outset – and for context – we reference the purpose of the
Juvenile Act:
Consistent with the protection of the public interest, to provide for
children committing delinquent acts programs of supervision, care
and rehabilitation which provide balanced attention to the
protection of the community, the imposition of accountability for
offenses committed and the development of competencies to
enable children to become responsible and productive members
of the community.
42 Pa.C.S.A. § 6301(b)(2).
With regard to delinquency, the juvenile court:
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. . . may make any of the . . . orders of disposition determined to
be consistent with the protection of the public interest and best
suited to the child’s treatment, supervision, rehabilitation and
welfare, which disposition shall, as appropriate to the individual
circumstances of the child’s case, provide balanced attention to
the protection of the community, the imposition of accountability
for offenses committed and the development of competencies to
enable the child to become a responsible and productive member
of the community . . .
42 Pa.C.S.A. § 6352(a) (emphasis added).
The Juvenile Act “grants broad discretion to the juvenile court in
disposition.” In the Interest of D.S., 37 A.3d 1202, 1203 (Pa. Super. 2011)
(citations omitted). This Court will not disturb a disposition absent a manifest
abuse of discretion. Id. An abuse of discretion is not merely an error of
judgment but involves the misapplication or overriding of the law or the
exercise of a manifestly unreasonable judgment based upon partiality,
prejudice or ill-will. Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super.
2011) (citations omitted).
Following careful review, we find that in arguing against her
adjudication, Appellant has mischaracterized the record and the juvenile
court’s actions. The Juvenile Act prescribes the procedure for delinquency
matters as follows:
(b)Finding of delinquency.--If the court finds on proof beyond
a reasonable doubt that the child committed the acts by reason of
which he is alleged to be delinquent it shall enter such finding on
the record and shall specify the particular offenses, including the
grading and counts thereof which the child is found to have
committed. The court shall then proceed immediately or at a
postponed hearing, which shall occur not later than 20 days after
such finding if the child is in detention or not more than 60 days
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after such finding if the child is not in detention, to hear evidence
as to whether the child is in need of treatment, supervision or
rehabilitation, as established by a preponderance of the evidence,
and to make and file its findings thereon. . . . 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.
If the court finds that the child is not in need of treatment,
supervision or rehabilitation it shall dismiss the proceeding and
discharge the child from any detention or other restriction
theretofore ordered.
***
(d) Evidence on issue of disposition.--
(1)(i) In disposition hearings under subsections (b) and (c) all
evidence helpful in determining the questions presented, including
oral and written reports, may be received by the court and relied
upon to the extent of its probative value even though not
otherwise competent in the hearing on the petition.
(ii) Subparagraph (i) includes any screening and assessment
examinations ordered by the court to aid in disposition, even
though no statements or admissions made during the course
thereof may be admitted into evidence against the child on the
issue of whether the child committed a delinquent act.
(2) The parties or their counsel shall be afforded an opportunity
to examine and controvert written reports so received and to
cross-examine individuals making the reports. Sources of
information given in confidence need not be disclosed.
(e) Continued hearings.--On its motion or that of a party the
court may continue the hearings under this section for a
reasonable period, within the time limitations imposed by this
section, to receive reports and other evidence bearing on the
disposition or the need for treatment, supervision or
rehabilitation. In this event the court shall make an appropriate
order for detention of the child or his release from detention
subject to supervision of the court during the period of the
continuance. In scheduling investigations and hearings the court
shall give priority to proceedings in which a child is in detention or
has otherwise been removed from his home before an order of
disposition has been made.
42 Pa.C.S.A. § 6341.
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As detailed above, the procedural posture in this case was consistent
with the Juvenile Act, and the juvenile court was not required to conduct a
“separate hearing” to determine whether Appellant was in need of TSR.
Furthermore, Appellant’s reliance on In Interest of N.C., 171 A.3d
275, 279 (Pa. Super. 2017) is unavailing, where Appellant cites In Interest
of N.C. to support her argument that her adjudication should be reversed
because the record contains “no evidence that could have supported [the]
conclusion that [Appellant] was in need of TSR.” See Appellant’s Brief at 8.
While we disagree with Appellant’s characterization of the record, we
agree with Appellant that much of In Interest of N.C. is applicable to her
case and find it to be instructive. This Court explained:
Before entering an adjudication of delinquency, “the Juvenile Act
requires a juvenile court to find that a child has committed a
delinquent act and that the child is in need of treatment,
supervision, or rehabilitation.” Commonwealth v. M.W., 614
Pa. 633, 39 A.3d 958, 964 (2012) (emphasis in original). “A
determination that a child has committed a delinquent act does
not, on its own, warrant an adjudication of delinquency.” Id. at
966. See also In re T.L.B., 127 A.3d 813 (Pa. Super. 2015)
(holding that the juvenile court did not abuse its discretion in
finding the appellee was not in need of treatment, rehabilitation,
or supervision when, by the time of the deferred adjudication
hearing, appellee completed the sexual offender portion of his
psychological treatment ordered as part of his dependency matter
and had not acted out in sexualized behavior in more than a year).
The Juvenile Act and Rules of Juvenile Procedure contemplate the
following process. Once the juvenile court determines the
Commonwealth has proved beyond a reasonable doubt that the
child committed the acts alleged, the court must enter that finding
on the record. Id. at 965 (citing 42 Pa.C.S. § 6341(b)). If the
juvenile court makes such a finding, next, either immediately or
at a hearing held within 20 days, the court must “hear evidence
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as to whether the child is in need of treatment, supervision[,] or
rehabilitation.” Id. (emphasis added). “If the court finds that the
child is not in need of treatment, supervision[,] or rehabilitation[,]
it shall dismiss the proceeding and discharge the child from any
detention or other restriction theretofore ordered.” Id. See also
Pa.R.J.C.P. 409(1). “If the court determines the juvenile is in need
of treatment, supervision, or rehabilitation, the court shall enter
an order adjudicating the juvenile delinquent and proceed in
determining a proper disposition under Rule 512.” Pa.R.J.C.P.
409(2)(a).
In Interest of N.C., 171 A.3d at 280–81 (footnote omitted).
In Interest of N.C. is distinguishable from Appellant’s case. First, in
In Interest of N.C., the juvenile court “impermissibly shifted the burden
regarding whether Appellant was in need of treatment, supervision, or
rehabilitation to Appellant.” Id. 286. Second, the juvenile court’s findings
and conclusions were not supported by the record where “[a] review of the
transcript reveal[ed] that the adjudication and disposition hearing consisted
primarily of argument by counsel from both sides, and the Commonwealth did
not seek to introduce evidence on its own accord.” Id. at 283-84.
Here, the record reveals that the Commonwealth met its burden of
proving that Appellant was delinquent, and specifically that she required TSR.
See 42 Pa.C.S.A. § 6341(b) (The juvenile court “shall hear evidence . . . as
to whether the child is in need of treatment, supervision or rehabilitation, as
established by a preponderance of the evidence, and to make and file its
findings thereon.”).
Appellant did not present any witnesses or evidence at the adjudication
hearing. The Commonwealth presented all five of the witnesses – all
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employed at Appellant’s school – who testified at the adjudicatory hearing.
The witnesses consisted of the teachers, Ms. Gaertner, Ms. Schreiber, and Ms.
Kelly; the school principal, Dr. Spink; and East Norriton Police Officer Karl
Fischer, who had been “stationed” at the school for nine years.
The record further reveals that after presentation of the witnesses’
testimony (and four photograph exhibits), the Commonwealth and juvenile
court were cognizant of the Commonwealth’s burden of proof. See N.T.,
1/17/18, at 77 (Commonwealth stating to juvenile court, “And Judge, I would
submit that we did prove [delinquency].”); see id. at 87, 89 (juvenile court
stating “I’m up here thinking the entire time about the Commonwealth’s
burden . . . and what’s proved . . .” and “I do think the Commonwealth has
proven its case . . . ).
After determining that Appellant committed harassment and simple
assault – but not aggravated assault – the juvenile court determined that
Appellant was in need of TSR. Id. at 90 (juvenile court expressly stating “I
find she’s in need of treatment, supervision, rehabilitation, and as such, I
adjudicate her delinquent.”). Appellant’s counsel then responded:
Your Honor, a misdemeanor does not specifically make a juvenile
in need of treatment, rehabilitation or supervision and I think the
relevant testimony could be heard in the case that she may very
well not be in need of treatment, rehabilitation or supervision. I’d
ask you to hold the decision on that off to the next court date.
The Commonwealth can present further evidence at that point if
they have further evidence to present.
Id. at 90-91.
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The exchange continued:
[COMMONWEALTH]: Respectfully, Judge, we presented the
evidence today and we think we have proven our burden, as we’ve
always been required to do, that [Appellant] is in need of at least
supervision at this point. So we’re going to ask you [to] adjudicate
her delinquent based on your finding of guilt. Although the felony
is presumptive of delinquency –
THE COURT: It is.
[COMMONWEALTH]: - this conduct, itself, is also evidence of –
THE COURT: I do think because of the multiple victims
involved here, [Defense Counsel], and the escalation and the
dangerous behavior by your client, even though notwithstanding
this is a misdemeanor case, I’ve heard more than sufficient
evidence to substantiate an adjudication of delinquency.
[DEFENSE COUNSEL]: Your Honor, may we also briefly address
the matter of detention?
THE COURT: Yes.
[DEFENSE COUNSEL]: Your Honor, I would ask that you allow
[Appellant] to return home to her mother today as she has been
at the Youth Center at this point for a week. . . . I think she can
be safely supervised in her home . . . There are many supports
that could be put in place that could help supervise her . . .
THE COURT: Let me just add with respect to the
adjudication of delinquency, which I neglected to say, that I have
heard that [Appellant] does get extra support . . . CCT is an added
support, therapeutic intervention that can occur in school, out of
school, I heard that. So she definitely needs some more
treatment. . . . What I’m saying is [Appellant] made a terrifically
poor judgment exercise . . . drawing her into a very violent,
volatile situation.
So that concerns me, that at the flip of switch suddenly she
was drawn in after the police tried to quell the issue . . . clearly it
escalated . . . I’m not without concern here.
Id. at 91-94.
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Specifically addressing TSR, the juvenile court stated:
I called it the way I saw it on the assault, so [Appellant has]
assaults that are going to follow her. But I’ve got to figure out
what drew her to do this. So I’m going to need evals to do that.
You can talk to me about detention today. [Defense
Counsel] made some excellent arguments. I’m thinking about
everything.
Id. at 96.
The court concluded:
So I can help [Appellant], but right now without evals in my hand
to figure out, I’m not comfortable with her going home today. So
she’s detained here at the Montgomery County Youth Center
pending a psychological eval[uation]. She’ll come back to me for
disposition, which is like sentencing, within 20 days.
Id. at 98.
The above comments illustrate that the juvenile court’s decision was
thoughtful and evidence-based – and not “superficial and cursory” as alleged
by Appellant. The court thus issued an adjudicatory hearing order stating that
“to aid in disposition, the Juvenile Probation Office is directed to complete the
following evaluations and reports on the Juvenile: Psychological.” Order,
1/17/18. Upon review, we conclude that the juvenile court did not abuse its
discretion. Accordingly, we affirm the adjudication of delinquency, and thus
the order of disposition.
Dispositional order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
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