In the Interest of: E.T., Minor

J-A28031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.T., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.T., A MINOR,
Appellant No. 186 EDA 2015
Appeal from the Dispositional Order December 19, 2014
In the Court of Common Pleas of Monroe County
Juvenile Division at No(s): CP-45-JV-0000242-2014
BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2015
E.T. appeals from the juvenile court’s December 19, 2014 dispositional
order placing E.T. in the Abraxas Leadership Development Program
(“Abraxas”). We affirm.
The record reveals that E.T. had four prior open juvenile delinquency
matters dating from May of 2012 to May of 2014 at the time of the
challenged dispositional order. Those adjudications resulted in placements
at Northwestern Academy’s V-CORE program and Summit Academy, as well
as probation. E.T. was on probation when the underlying incident occurred.
On October 23, 2014, while living with his family in Monroe County
and attending school in Northampton County, E.T. physically attacked
another student. Based on the incident, E.T. was detained at the
Northampton Juvenile Justice Center (“JJC”). The Commonwealth filed a
J-A28031-15
petition, alleging that E.T. committed the delinquent acts of simple assault,
disorderly conduct, and harassment. On November 10, 2014, E.T. admitted
to one count of disorderly conduct, a violation of 18 Pa.C.S. § 5503(a)(1).
On November 21, 2014, the juvenile court ordered that E.T. be placed at
Glen Mills Schools, a residential facility. E.T. did not file a post-dispositional
motion pursuant to Pa.R.J.C.P. 620(B)(1).
Upon review of E.T.’s psychological evaluation, Glen Mills Schools
rescinded its offer to accept E.T. Therefore, E.T. remained in detention at
the JJC, pending a re-disposition hearing on December 19, 2014. Following
that hearing, the juvenile court ordered that E.T. be placed at Abraxas for a
period of time consistent with the provisions of the Juvenile Act and the rules
of civil procedure governing juvenile court. N.T., 12/19/14, at 10–11. On
December 24, 2014, E.T. filed a post-dispositional motion, which the juvenile
court denied on December 29, 2014. This timely appeal followed. E.T. and
the juvenile court have complied with Pa.R.A.P. 1925.
E.T. presents the following questions for our consideration:
I. Whether the Juvenile Court violated Title 42 of the
Pennsylvania Consolidated Statutes, Section 6353(a), by
placing [E.T.] at Abraxas LDP Program [sic] for an
unspecified period of time, following and [sic] Admission to
Disorderly Conduct, a delinquent act which would be
graded as a Misdemeanor of the Third Degree, were [E.T.]
an adult.
II. Whether the Juvenile Court abused its discretion in placing
[E.T.] at Abraxas LDP. This question includes the following
subsidiary questions:
-2-
J-A28031-15
A. Whether Abraxas LDP was the least restrictive
placement for [E.T.]
B. Whether the Juvenile Court adequately stated
its reasons for its placement of [E.T.] at Abraxas LDP
pursuant to Title 42 of the Pennsylvania Consolidated
Statutes, Section 6352(c).
C. Whether it was an abuse of discretion and a
violation of [E.T.’s] Due Process [rights] when the
Juvenile Court failed to take into consideration the
two (2) months that [E.T.] had spent in secure
Juvenile Detention prior to the placement in
fashioning the disposition.
E.T.’s Brief at 7. Essentially, E.T. challenges the juvenile court’s failure to
give him credit for two months of detention prior to the December 19, 2014
dispositional order and his placement at Abraxas.
Preliminarily, we question whether the passage of time has rendered
this appeal moot.
As a general rule, an actual case or controversy must exist
at all stages of the judicial process, or a case will be dismissed
as moot. An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or
due to an intervening change in the applicable law. In that case,
an opinion of this Court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
In re J.A., 107 A.3d 799, 811–812 (Pa. Super. 2015) (quoting In re D.A.,
801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (internal citations and
quotations omitted)).
Nevertheless, this Court will decide questions that
otherwise have been rendered moot when one or more of the
following exceptions to the mootness doctrine apply: 1) the case
involves a question of great public importance, 2) the question
-3-
J-A28031-15
presented is capable of repetition and apt to elude appellate
review, or 3) a party to the controversy will suffer some
detriment due to the decision of the trial court.
In re D.A., 801 A.2d at 616 (citations omitted).
In this appeal, E.T. asks us to reverse the juvenile court’s dispositional
order placing him at Abraxas. The juvenile court’s December 19, 2014 order
effectively placed E.T. at Abraxas for six months, resulting in a review
hearing on or about June 19, 2015. E.T.’s current placement status does not
appear of record. Arguably, therefore, our decision in this appeal may not
have any legal force or effect. See In re D.A., 801 A.2d at 616.
Nevertheless, we conclude that we are able to decide this appeal, as it
presents questions that are “capable of repetition and apt to elude appellate
review,” and thus are excepted from the mootness doctrine. See In re
J.A., 107 A.3d at 811–812 (reviewing appeal rendered moot by trial court
order entered after review hearing conducted while appeal was pending).
We, therefore, proceed to address this appeal.
Where a juvenile challenges the authority of the court to impose the
disposition in question, it is a challenge to the legality of the disposition. In
re S.A.S., 839 A.2d 1106, 1107 (Pa. Super. 2003). “Accordingly, our
standard of review for such a claim is plenary, and it is limited to
determining whether the lower court committed an error of law.” In re
J.M., 42 A.3d 348, 350 (Pa. Super. 2012). In the event a judge enters a
dispositional order that provides for commitment, the judge is required to
-4-
J-A28031-15
review the propriety of that commitment every six months and must also
hold a disposition review hearing at least every nine months. In re M.D.,
839 A.2d 1116, 1119 (Pa. Super. 2003).
The statutory sections at issue in this appeal provide as follows:
No child shall initially be committed to an institution for a
period longer than four years or a period longer than he
could have been sentenced by the court if he had been
convicted of the same offense as an adult, whichever is
less. The initial commitment may be extended for a similar
period of time, or modified, if the court finds after hearing that
the extension or modification will effectuate the original purpose
for which the order was entered. . . . [T]he committing court
shall review each commitment every six months and shall hold a
dispositional review hearing at least every nine months.
42 Pa.C.S. § 6353(a) (emphasis supplied). Disorderly conduct “is a
misdemeanor of the third degree if the intent of the actor is to cause
substantial harm or serious inconvenience, or if he persists in disorderly
conduct after reasonable warning or request to desist.” 18 Pa.C.S. §
5503(b). “A crime is a misdemeanor of the third degree if it is so designated
in this title or if a person convicted thereof may be sentenced to a term of
imprisonment, the maximum of which is not more than one year.” 18
Pa.C.S. § 106(b)(8). “The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the maximum sentence
imposed.” 42 Pa.C.S. § 9756(b)(1).
Additionally, the juvenile court:
shall review its disposition and conduct dispositional review
hearings for the purpose of ensuring the juvenile is receiving
necessary treatment and services and that the terms and
-5-
J-A28031-15
conditions of the disposition are being met. . . In all cases, the
court shall conduct dispositional review hearings at least
every six months.
Pa.R.J.C.P. 610(A)(1) (emphasis supplied). Pa.R.J.C.P. 610 allows for
detention of a juvenile pending a court hearing whenever there is a request
for a change in the dispositional order. Pa.R.J.C.P. 610(B).
E.T. argues that the two months he was detained in the JJC and his
placement in Abraxas for an unspecified period violated 42 Pa.C.S. §
6353(a). E.T.’s Brief at 13. According to E.T., an adult convicted of
disorderly conduct could be sentenced to incarceration for six to twelve
months. Id. However, E.T. continues, because the juvenile court merely
provided that E.T.’s placement at Abraxas would be reviewed pursuant to
the Juvenile Act and rules of juvenile procedure, E.T. will have served an
initial period of confinement of close to eight months, “a period greater than
the maximum minimum sentence that an adult could legally have received if
convicted of the same offense.” Id. at 14.
In its Rule 1925(a) opinion, the juvenile court refutes E.T.’s challenge
on three grounds: the disposition was not inconsistent with the language of
section 6353(a); the placement at Abraxas was not an initial placement but
a modification of a prior dispositional scheme; and E.T.’s challenge to the
placement at Abraxas was premature. The juvenile court detailed its
analysis as follows:
Initially, [E.T.] did not cite any authority that would
support his attempt to import “adult” sentencing concepts into
delinquency dispositions in Juvenile Court. Delinquency
-6-
J-A28031-15
proceedings are statutorily and jurisdictionally separate and
distinct from criminal proceedings. Each type of case is guided
by its own separate set of rules adopted by our Supreme Court.
Similarly, each type of case is governed by its own legislative
scheme. Delinquency cases are governed by the Juvenile Act,
while criminal proceedings are controlled by various other
statutes and statutory schemes. Significantly, the Sentencing
Code, the Sentencing Guidelines, and attendant sentencing rules
apply in criminal proceedings, but not delinquency proceedings,
and the provisions of the Juvenile Act and the Rules of Juvenile
Court Procedure that pertain to juvenile dispositions and
commitments do not apply in criminal cases. In this regard,
sentences in criminal court, once final, are not subject to on-
going review and modification. In contrast, it is the very
essence of Juvenile Court to regularly review juveniles and their
and [sic] commitments so that dispositional schemes may be
modified, as needed, to achieve balanced and restorative justice
which, as discussed below, is one purpose of the Juvenile Act
and the statutory goal for delinquency dispositions. There is
simply no support for [E.T.’s] assertion that “adult”
indeterminate sentencing concepts must be incorporated into
delinquency dispositions.
Additionally, [E.T.’s] contention is contrary to the plain
language of Section 6353(a).
* * *
Here, Section 6353(a) establishes time limits for juvenile
placements. However, it does not, as [E.T.] implies, mandate
that a court specify the length of each commitment at the time
the placement is ordered. Instead, in keeping with the purposes
and goals of the Juvenile Act, and in recognition that the persons
subject to delinquency dispositions are children, Section 6353(a)
tempers its time limitation with the requirement that dispositions
and commitments be regularly reviewed so that a commitment
may be terminated or extended and a disposition may be
modified as warranted to meet the ever-changing needs of the
juvenile for whom the dispositional scheme was created. As long
as the limitation period is not exceeded and the disposition and
commitment are regularly reviewed, Section 6353(a) is satisfied.
In this regard, Section 6353(a) limits an initial placement
and any extension to “four years or a period not longer than the
-7-
J-A28031-15
juvenile could have been sentenced by the court if he had been
convicted of the same offense as an adult.” By its express
terms, this provision applies to the statutory maximum sentence
to which an adult could be sentenced – the longest period of
time an adult could legally spend in jail – and not, to use the
words of the Juvenile’s attorney, the “maximum minimum
sentence” calculated using Pennsylvania’s indeterminate
sentencing rules and procedures. See Matter of Firster, 457
A.2d 546 (Pa. Super. 1983).
Since in this case [E.T.] was not committed for a period in
excess of one year, the placement will by both law and the
express terms of our order be reviewed within six months, long
before the one-year limit is reached, and [E.T.] has in fact been
in placement for less than one year, it is clear that Section
6353(a) has not been violated. Thus, [E.T.’s] argument lacks
merit.
The lack of merit is even clearer when all of the cases for
which the re-disposition hearing was convened are considered
together. The limitation period relied on by [E.T.] applies only to
an initial placement. However, under the clear language of
Section 6353(a), an initial commitment may be extended or
modified if the extension or modification is necessary to
“effectuate the original purpose for which the order was
entered.” Modification of a prior dispositional scheme is exactly
what happened here.
As discussed, the re-disposition hearing was noticed and
convened to address all five of [E.T.’s] delinquency cases. While
placement at Abraxas might be considered an initial commitment
if this case were viewed alone and in [a] vacuum, this case does
not stand alone and the dispositional scheme was not imposed in
a vacuum. Instead, the placement about which [E.T.] complains
was an unseverable part of a combined dispositional scheme,
individualized for [E.T.], imposed globally in all five delinquency
cases, just as [E.T.’s] placement at Summit Academy and
subsequent release on probation were globally ordered and then
reviewed together as new cases were opened over time as the
Juvenile continued to commit [offenses] and make admissions.
This case was simply the most recent in a string of on-going
cases that have historically been considered and reviewed
together, and for which combined dispositions and review
hearing orders have been entered. Under these facts and
-8-
J-A28031-15
circumstances, placement at Abraxas was not an initial or even
an extended commitment within the meaning of Section
6353(a). Instead, consistent with actions taken in [E.T.’s] other
cases, placement there was a modification of a prior dispositional
scheme that was prompted and warranted by [E.T.’s]
commission of a new [offense]. Since our order specified that
the modified dispositional scheme which included committing
[E.T.] to Abraxas would be reviewed within six months as
mandated by Section 6353(a), it is clear that we did not violate
that statute. See also Pa. R.J.C.P. 610A.
Additionally, and for many of the same reasons, [E.T.’s]
contention is premature. Even if [E.T.’s] interpretation of
Section 6353(a) as applied to the facts and circumstances of this
case were accepted, no violation of the statutory limitation has
yet occurred. The proper procedural mechanism for requesting a
release from placement to remedy or prevent a violation of
Section 6353(a) would be to file a petition for release, at or
before expiration of the applicable placement limitation period,
not an anticipatory appeal from an order of disposition.
Juvenile Court Opinion, 3/23/15, at 13–17 (footnote omitted; emphasis in
original).
Upon review, we discern no error of law in the juvenile court’s
reasoning and disposition. As set forth above, Pa.R.J.C.P. 610(B) allows for
detention of a juvenile pending a court hearing where a change of
disposition has been requested. As a result of Glen Mills Schools’ decision
not to accept E.T., E.T. was lawfully detained pending the court’s re-
disposition hearing regarding an acceptable, alternative placement. The
record establishes that the Commonwealth had “been actively working on
getting [E.T.] into an appropriate program” during the two-month detention.
N.T., 11/19/14, at 7–9. Moreover, as the juvenile court thoughtfully
explained, E.T. had four previous dispositions which came under review at
-9-
J-A28031-15
the December 19, 2014 re-disposition hearing. Thus, the juvenile court’s
order could be considered to be a modification of a prior dispositional
scheme, which took into account E.T.’s most recent admission-based
adjudication of disorderly conduct and which was imposed following a
hearing held two months after his most recent detention. Juvenile Court
Order, 3/23/15, at 15–16.
Even if this were an initial placement, however, E.T.’s challenge would
fail. This Court has recognized that “juvenile proceedings are not criminal
proceedings.” In re S.A.S., 839 A.2d at 1108 (citation omitted). In the
context of a probation disposition order, the In re S.A.S. Court opined:
We agree with [the a]ppellant that a juvenile’s term of
commitment may not exceed four years or the maximum term of
imprisonment he could have received if convicted as an adult.
See 42 Pa.C.S.A. § 6353. We also agree that under the
sentencing code for adult offenders, a term of probation may not
exceed the possible maximum term of imprisonment. See 42
Pa.C.S.A. § 9754(a). However, “juvenile proceedings are not
criminal proceedings.” See In re R.A.[, 761 A.2d 1220, 1223
(Pa.Super.2000)]. The Juvenile Act vests the court with
authority to set a term of probation “under conditions and
limitations the court prescribes,” so long as the disposition is
consistent with the protection of the public interest and best
suited to the child’s treatment, supervision, rehabilitation, and
welfare. See 42 Pa.C.S.A. § 6352(a)(2). The probation
limitations set forth in the crimes code are simply inapposite to
the Juvenile Act; the two statutes encompass independently
different systems with different purposes and rules. In contrast
to the general adult sentencing code, the Juvenile Act empowers
juvenile courts with wide latitude to render probationary terms
that are appropriate to the individual circumstances of the child’s
case.
Id. at 1109. Ultimately, the In re S.A.S. Court held as follows:
- 10 -
J-A28031-15
[T]he juvenile court had the authority under the Juvenile Act to
impose upon [the a]ppellant a period of probation that exceeded
the maximum possible term of incarceration for the particular
offense at issue and [the a]ppellant’s disposition is not illegal.
Nevertheless, [the a]ppellant’s term of probation is still limited
by the jurisdictional constraints of the Juvenile Act. See 42
Pa.C.S.A. §§ 6302, 6303. Moreover, given the quasi-open
nature of [the a]ppellant’s probation, [the a]ppellant may choose
to petition the Juvenile Court for relief at the earliest appropriate
time.
Id.
Similarly, in the present context, the Juvenile Act vests the juvenile
court with authority to set a term of commitment to “an institution, youth
development center, camp, or other facility,” as long as the disposition is
“consistent with the protection of the public interest and best suited to the
child’s treatment, supervision, rehabilitation, and welfare.” 42 Pa.C.S. §
6352(a)(3). Logically then, the confinement limitations set forth in the
Pennsylvania Sentencing Code are also “inapposite to the Juvenile Act; the
two statutes encompass independently different systems with different
purposes and rules.” In re S.A.S., 839 A.2d at 1109.
E.T.’s second question challenges his placement in Abraxas on multiple
grounds. According to E.T., Abraxas is not the least restrictive placement,
the juvenile court failed to adequately state its reasons for the placement,
and the juvenile court violated E.T.’s due process rights by failing to consider
E.T.’s two months of detention. E.T.’s Brief at 14–17. We disagree.
The Juvenile Act shall be interpreted and construed as to effectuate,
inter alia, the following purpose: “Consistent with the protection of the
- 11 -
J-A28031-15
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. § 6301(b)(2). “The [Juvenile] Act grants the juvenile court broad
discretion in determining the appropriate disposition for a delinquent child,
which this Court will not disturb “absent a manifest abuse of discretion.” In
re D.C.D., 2015 PA Super 192, ___ A.3d ___, ___ (filed Sept. 11, 2015)
(quoting In re L.A., 853 A.2d 388, 394 (Pa. Super. 2004)) (emphasis
omitted). “[F]actual findings and credibility determinations in juvenile
proceedings are within the exclusive province of the hearing judge.” In re
B.T., 82 A.3d 431, 434 (Pa. Super. 2013) (citation omitted).
In its opinion to this Court, the juvenile court provided an insightful,
frank, and detailed assessment of its ruling. Juvenile Court Opinion,
3/23/15, at 17–22.1 Upon review of that opinion, the relevant statutory and
case law, and the certified record, we discern no abuse of the juvenile
court’s discretion. E.T. came before the juvenile court in this matter with
four open delinquency cases. After release from placements in a boot camp,
an unsecure residential facility, and his home, E.T. repeatedly violated his
____________________________________________
1
Given its length, we shall not reproduce this portion of the juvenile court’s
opinion in this memorandum.
- 12 -
J-A28031-15
probation. Aware of and having thoroughly considered E.T.’s delinquency
history and the nature of his offenses, his individual circumstances, and the
goals of the juvenile system, we agree with the juvenile court that it ordered
a placement “consistent with the protection of the public interest[,] . . . best
suited to E.T.’s treatment, supervision, rehabilitation and welfare,” which
provides “balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the development of
competencies to enable [E.T.] to become a responsible and productive
member of the community.” 42 Pa.C.S. § 6352(a). Juvenile Court Opinion,
3/23/15, at 17. Notably, E.T. did not object to the dispositional order
committing him to Glen Mills Schools, which was based on the juvenile
court’s findings that “it was contrary to the welfare of [E.T.] to remain in the
home of his mother, that reasonable efforts were made to prevent removal
of [E.T.] from his home, and that placement at Glen Mills Schools was the
least restrictive placement.” Juvenile Court Opinion, 3/23/15, at 23–24;
Adjuicatory/Dispositional Hearing Order, 11/24/14, at 1. Thus, E.T.’s
objection to his placement at Abraxas, also a residential facility, which is for
the same reasons, appears disingenuous. Dispositional Review Order,
12/23/14, at 1; N.T., 12/19/14, at 9.
Additionally, as detailed in its Rule 1925(a) opinion, the juvenile court
sufficiently conveyed its reasons for the placement to E.T. and his parents
on the record. Juvenile Court Opinion, 3/23/15, at 22–25; N.T., 12/19/14,
- 13 -
J-A28031-15
at 10–11. Lastly, the juvenile court was aware of and considered the delay
in E.T.’s placement caused by Glen Mills Schools rescinding its offer, the
Monroe County Juvenile Probation Department’s re-evaluation of the
situation, E.T. being re-interviewed, and solicitation of a new offer of
placement at the December 19, 2014 hearing. This review was sufficient for
purposes of satisfying the six-month review requirement of 42 Pa.C.S. §
6353(a) and Pa.R.J.C.P. 610(A)(1). Juvenile Court Opinion, 3/23/15, at 25–
27; N.T., 12/19/14, at 7-9. Consequently, E.T.’s assertion that the juvenile
court violated his due process rights by failing to consider this delay in
fashioning its disposition order is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
- 14 -