Opinion
J-S38040-18 No. 131 WDA 2018
10-10-2018
IN THE MATTER OF: K.G., A MINOR APPEAL OF: K.G.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order December 22, 2017 in the Court of Common Pleas of Lawrence County
Juvenile Division at No(s): CP-37-JV-0000033-2017 BEFORE: BOWES, NICHOLS, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
K.G. (Appellant) appeals from the dispositional review order entered on December 22, 2017, which modified his placement. We affirm.
In April 2017, police in Lawrence County filed a written allegation and affidavit of probable cause alleging that then 16-year-old Appellant had followed a woman on a trail, punched her, threw her to the ground, choked her, stole her iPhone and jewelry, and fondled her breasts. Based on these allegations, the Commonwealth then filed a petition alleging that Appellant had committed delinquent acts constituting robbery, indecent assault forcible compulsion, theft by unlawful taking or disposition, receiving stolen property, strangulation, simple assault - attempt, and harassment.
Appellant agreed to tender an admission to robbery - threat of immediate bodily injury during the course of committing a theft, which is a second-degree felony, in exchange for dismissal of the other charges. On May 30, 2017, the juvenile court accepted Appellant's admission, determined that Appellant was in need of treatment, supervision, or rehabilitation, adjudicated Appellant a delinquent child, and dismissed the remaining charges.
The juvenile court addressed disposition that same day. It ordered Appellant to pay court costs and restitution to the victim. It also ordered Appellant to remain in placement at George, Jr. Republic until space was available at Adelphoi Village, Inc. in Sweeney House, which is a residential facility with intensive supervision. The juvenile court found that placement at Sweeney House was the least restrictive type of placement that was consistent with the protection of the public and best suited to Appellant's treatment, supervision, rehabilitation, and welfare because of the nature of the delinquent act to which Appellant had admitted committing. Adjudicatory/Dispositional Hearing Order, 5/30/2017, at 1-2.
Upon motion of the Juvenile Probation Office, the juvenile court conducted a dispositional review hearing on October 4, 2017. It was averred that Appellant could no longer remain at his placement at Greystone House at Adelphoi Village because "serious allegations were made against [Appellant,] which require[] his placement to be moved from Adelphoi Village's Greystone House [to] Adelphoi Village['s] Williams Home where he will not be a danger to the other juveniles currently in placement." Dispositional Review Order, 10/4/2017, at 1.
The original dispositional order required Appellant to be placed at the Sweeney House. Adjudicatory/Dispositional Hearing Order, 5/30/2017, at 2. There is no explanation in the record as to how, when, or why Appellant changed placements to Greystone House instead.
Appellant had already been moved prior to the hearing, and ratification of this move was requested.
At the dispositional review hearing, the juvenile court heard the testimony of John Debartola, a counselor from Adelphoi Village. Debartola testified that seven or eight children residing at the Greystone House made allegations against Appellant of a sexual nature, including an allegation of particularly serious misconduct. N.T., 10/4/2017, at 13-14. According to Debartola, the program at Greystone House is based upon anger management, and is not equipped to deal with sexual acting out. Id. at 11-12, 15. To protect the safety of the other residents at Greystone House, Adelphoi Village and the Juvenile Probation Office decided to move Appellant into Adelphoi Village's sexual offender program at the Williams Home. Id. The sexual offender program at Williams Home has more security and staff, residents reside in their own bedrooms, and specialized treatment was available. Id. At the time of the October 4, 2017 hearing, there was an investigation in progress based upon a Childline child abuse report filed against Appellant in connection with the Greystone House allegations. Id. at 14. Debartola conceded that no doctor had recommended that Appellant engage in sexual offender treatment, but insisted the move was necessary because so many residents had come forward with allegations, Greystone House could not ensure their safety, and Adelphoi Village did not want to see Appellant getting himself in further trouble. Id. at 15-16. Adelphoi Village planned to wait until the Childline investigation was complete before having Appellant assessed by its doctor. Id. Debartola further testified that Appellant told him that morning that he would run away if he had to go back to Williams Home. Id. at 11.
Debartola offered no details regarding the allegations on the record. At the hearing, several references were made to a report prepared by the Juvenile Probation Office, but this report does not appear in the certified record. The only report in the record from the Juvenile Probation Office is the dispositional review summary prepared in connection with the May 22, 2017 adjudicatory hearing. See Dispositional Review Summary, 5/30/2017, at 1-2.
In its Pa.R.A.P. 1925(a) opinion, the trial court describes the allegations as "sexual abuse," but does not elaborate. Trial Court Opinion, 2/20/2018, at 2. There is nothing in the record providing further details of the alleged incidents, but according to the district attorney, at the time of the December 21, 2017 dispositional review hearing, there was a juvenile delinquency petition pending in Somerset County charging Appellant with the delinquent acts of involuntary deviate sexual intercourse (a first-degree felony), indecent exposure, and indecent assault. N.T., 12/21/2018, at 4.
Appellant did not present any evidence at the hearing, and instead referred to a report by Adelphoi Village, which apparently indicated that he was doing a good job following the rules of Greystone House, had a positive attitude, and was becoming a leader. Id. at 17. The juvenile court stated it would take notice of the positive aspects of the report. Id.
This report is not contained in the certified record.
Appellant's counsel objected to the move to Williams Home, arguing that placing Appellant in a sexual offender program put Appellant at risk of victimization by the other residents. Id. at 5-7. He argued that because the allegations were still under investigation, they were still unproven and should not be used against Appellant. Id. He emphasized that there was nothing in the psychological report completed by the Juvenile Probation Office indicating that sexual acting out was a problem for Appellant and there was no professional report assessing whether sexual offender treatment was required or appropriate. Id. He indicated that while Adelphoi Village might have justification to move him from the Greystone House, there was no justification to move him to a sexual offender treatment program. Id.
At the conclusion of the hearing, the juvenile court stated that "until this matter is more fully investigated, [it was] going to approve the transfer to the Williams Home." Id. at 18. Accordingly, the court modified Appellant's disposition to change Appellant's placement from the Greystone House to the Williams Home, stating that such modification was necessary "for the safety of other residents." Dispositional Review Hearing Order, 10/4/2017, at 1-2.
No appeal was filed from the October 4, 2017 order. Appellant absconded immediately after the hearing, resulting in a bench warrant for his arrest. After he was located in December 2017, Appellant was detained in the George Jr. Republic shelter. At the shelter hearing on December 7, 2017, the juvenile court found probable cause existed to show that Appellant committed the delinquent acts of escape and robbery, and was eligible for secure detention. Detention/Shelter Care Hearing Order, 12/22/2017, at 1. Specifically, the juvenile court found Appellant posed a risk to society because he was identified on videotape committing a robbery while he was a runaway and that Appellant would abscond if not securely detained. Id.
It is not clear from the record whether Appellant ever faced new charges stemming from this robbery.
Upon motion of the Juvenile Probation Office, the juvenile court conducted a dispositional review hearing on December 21, 2017. At the hearing, the parties set forth their respective positions, but no sworn testimony was taken. The Commonwealth indicated that charges were pending based upon the allegations discussed at the prior hearing, and it was seeking placement in a secured sex offenders' treatment facility. N.T., 12/21/2017, at 3. Tim Cross, Appellant's probation officer, informed the juvenile court that there was no longer availability at the Williams Home at Adelophoi Village, but the Juvenile Probation Office recommended that Appellant be placed at Summit Academy, "and if he does get adjudicated on those charges, [Summit Academy] is willing to keep him until we find a placement for him." Id. at 3. The juvenile court asked Cross where Appellant could go if "we were to put him in a [secure] sexual offenders program." Id. Cross replied, "[i]f he is adjudicated ... it's whichever facility would be willing to take him," and noted that Abraxas Academy Secure Unit expected to have availability in January. Id.
Appellant agreed he should be placed at Summit Academy, but objected to any form of sexual offender treatment until there was an adjudication or finding of fact in Somerset County regarding the allegations. Id. at 5-8. The juvenile court noted that it had already decided at the last hearing that he should receive sexual offender treatment in a secure facility, the court could act upon allegations even if they are hearsay for purposes of disposition, and Appellant's behavior in the last two months cemented the juvenile court's opinion that this disposition was warranted. Id. at 8. The juvenile court acknowledged that it was not Appellant's burden, but invited Appellant to take the stand and testify regarding the allegations for purposes of the disposition. Id. at 8-9. Appellant's counsel eventually objected because anything Appellant stated regarding disposition in his robbery case in Lawrence County could be used in the adjudication of the sexual crimes in Somerset County, and Appellant did not testify. Id. at 9-10.
Following the hearing, the juvenile court entered an order indicating it had held a hearing to determine whether Appellant had violated his probation, and found that he had. Dispositional Review Order, 12/21/2017, at 1. Specifically, the juvenile court found that Appellant absconded from custody after the October 4, 2017 dispositional review hearing, and after being picked up and detained at the George, Jr. Republic shelter, he accosted a peer and staff member and had to be restrained. Id. It also modified Appellant's disposition to place him at Summit Academy with an order to transfer him to the Abraxas I sexual offender treatment program as soon as a bed became available. Id. at 2. The stated reason for the disposition is because "Appellant requires a structured secure environment where he can receive the necessary treatment, supervision[,] and rehabilitation." Id. at 1.
It is unclear upon what evidence this finding is based. There is no reference in the record, including the notes of testimony of the December 21, 2017 hearing, supporting a finding that Appellant accosted people at the George Jr. Republic shelter. Moreover, nothing in the certified record indicates that the juvenile court ever placed Appellant on probation, much less listed the terms and conditions of his probation. However, Appellant poses no challenge to this finding, and as such, we will not disturb it on appeal.
After the hearing, Appellant filed two motions, both of which were unopposed by the Commonwealth, seeking reconsideration and a psychological evaluation and hearing prior to any transfer to the sexual offender program at Abraxas. The juvenile court denied both motions. Juvenile Court Order, 1/4/2017; Juvenile Court Order, 1/16/2017. Appellant timely filed a notice of appeal from the December 22, 2017 order. Both Appellant and the juvenile court complied with Pa.R.A.P. 1925.
On appeal, Appellant argues that the juvenile court erred as a matter of law by ordering Appellant following the December 21, 2017 hearing to be placed at Abraxas sexual offender treatment program when a bed opens up without further hearing or without hearing evidence. Appellant's Brief at 4. He further argues that the juvenile court abused its discretion by requiring Appellant to complete sexual offender treatment when no evidence was introduced demonstrating the appropriateness of such treatment. Id.
We note with displeasure that the Commonwealth did not file a brief in this matter.
Before we may address the merits of Appellant's issues, we must determine whether the matter is appealable. In its Pa.R.A.P. 1925(a) opinion, the juvenile court urges this Court to quash this appeal, contending that it was untimely filed. Juvenile Court Opinion, 2/20/2018, at 2-5. In the juvenile court's view, the issue of whether Appellant should be placed at a facility that specializes in the housing and treatment of juvenile sexual offenders became final after Appellant failed to appeal the October 4, 2017 dispositional review order within 30 days. Id. at 3-4. According to the juvenile court, the December 22, 2017 order merely continued the status quo and maintained the same type of placement and level of restrictiveness as the October 4, 2017 order, and thus is not appealable pursuant to In re M.D., 839 A.2d 1116, 1121 (Pa. Super. 2003). Id. at 4. The juvenile court acknowledges that it changed the specific placement at the December 21, 2017 hearing, but stated that it did so only because the original placement no longer had availability when Appellant was picked up from being on the run. Id.
It is clear that an initial order of disposition is a final order from which a juvenile may appeal as of right. M.D., 839 A.2d at 1119. Following the initial disposition, the disposition of a juvenile who has been adjudicated delinquent "is subject to frequent, mandatory review by the hearing court." M.D., 839 A.2d at 1119; Pa.R.J.C.P. 610(a)(1) (requiring a dispositional review hearing at least every six months). This appeal stems from a dispositional review order.
In In the Matter of R.B., 765 A.2d 396 (Pa. Super. 2000), this Court permitted a juvenile to appeal from a dispositional review order that ordered him to undergo an evaluation to determine his receptivity to pharmacological intervention with a drug that would chemically castrate him. This Court stated that while the order appeared to be interlocutory because it involved an evaluation instead of a final course of treatment, this Court would treat it as final order because "it modifie[d] a previously entered, final [o]rder of disposition." Id. at 400.
In M.D., the case cited by the juvenile court in its Rule 1925(a) opinion, this Court again considered whether a juvenile may appeal from a review order modifying disposition. The juvenile court previously had ordered M.D., who had long been adjudicated delinquent, to be placed at Gulf Coast Treatment Center, an out-of-state placement. At the next dispositional review hearing, the juvenile court ordered the status quo to continue, including M.D.'s placement at Gulf Coast Treatment Center, and M.D. filed a notice of appeal. The Court quashed M.D.'s appeal, holding that "a committed juvenile does not have the right to appeal from a review order that continues his commitment in the same manner and place and that maintains the status quo." M.D., 839 A.2d at 1121.
To arrive at this holding, this Court observed that
[t]he discretion of the [j]uvenile [c]ourt in implementing a disposition is broad, it is flexible[,] and the [j]uvenile [c]ourt has considerable power to review and modify the commitment, taking into account the rehabilitative progress or lack of it of the juvenile. The continued involvement of the juvenile court in implementing its disposition order is an integral part of the juvenile system that not only sets it apart from the criminal justice system, but also fosters the key goals of the Juvenile Act, that is, providing for the care, supervision[,] and rehabilitation of [children who have been adjudicated delinquent].Id. at 1120. This Court noted that the authority of a juvenile court judge to conduct meaningful regular reviews would be thwarted if appeals of every dispositional review order were permitted, because Pa.R.A.P. 1701 limits the jurisdiction of the lower court to act regarding issues pending on appeal. Id. It also reasoned, "[p]ermitting appellate evaluation of every review order would deny the juvenile system the flexibility it now has and would limit the judge's exercise of discretion." Id. This Court distinguished M.D.'s situation from the situation at issue in R.B., noting that the R.B. Court "held that the review order was final because of the additional requirement set out in the medical evaluation." Id. at 1121 n.3. Unlike in R.B., M.D. was attempting to challenge an order that did not change anything from the prior dispositional review order transferring him to the Gulf Coast Treatment Center. Id. This Court noted that M.D. did not challenge the previous orders that modified his disposition or transferred him to a new place of commitment. Id.
In the instant case, we agree with Appellant that the December 22, 2017 order is appealable because "it modifies a previously entered, final [o]rder of disposition." R.B., 765 A.2d at 400. While it did continue his commitment in the same manner, it did not continue his commitment in the same place, and thus the juvenile court did not maintain the status quo. C.f. M.D., 839 A.2d at 1121 ("[A] committed juvenile does not have the right to appeal from a review order that continues his commitment in the same manner and place and that maintains the status quo.") (emphasis added).
However, in light of the limitations this Court imposed on the right to appeal from a status quo dispositional review order in M.D., because Appellant did not appeal the October 4, 2017 review order that changed the manner of his commitment to a secure sexual offender treatment program, we are constrained to conclude that we are unable to reach any challenge to the manner of his commitment. Many of Appellant's arguments challenge the juvenile court's decision to commit him to a facility with a sexual offender program in general, and Appellant presents no argument that the juvenile court abused its discretion by placing him at Abraxas specifically.
Appellant's decision to abscond from his commitment after the hearing and to stay in hiding until the authorities located him in December did not toll the time for filing an appeal and left him unable to challenge the ruling from the October 4, 2017 dispositional review hearing. See Commonwealth v. Hunter , 952 A.2d 1177, 1179 (Pa. Super. 2008) (holding that a defendant who willingly and purposely becomes a fugitive and does not return before the time for appeal expires forfeits his right to an appeal) (citing Commonwealth v. Deemer , 705 A.2d 827, 828-29 (Pa. 1997)); but see In Interest of J.J., 656 A.2d 1355 (Montemuro, J., concurring) (recognizing that it is often a juvenile's immaturity, failure to understand the seriousness of the consequences, lack of foresight, or loneliness that causes a juvenile to run, not a deliberate plan to thwart the appellate process).
In In re H.S.W.C.-B , 836 A.2d 908 (Pa. 2003), our Supreme Court held that an order denying a permanency goal change in a child's dependency or denying a termination of parental rights petition is a final order that is immediately appealable, reasoning that the decision to permit a child to languish in foster care should not be shielded permanently from review. This Court in M.D. refused to extend the rationale of H.S.W.C.-B. to a review of a dispositional review order in a juvenile delinquency case. M.D., 839 A.2d at 1122. We leave for another day the question of whether a juvenile court's decision to leave a child committed to a facility that may be inappropriate for the child is ever reviewable. Appellant makes no argument that H.S.W.C.-B is applicable here, and given that this issue was just reviewed at the prior dispositional review hearing, we do not believe the instant case is materially distinguishable from M.D. except to the extent we have identified supra.
With that limitation in mind, we turn to our review of the merits of Appellant's issues. Our review of the juvenile court's dispositional review order modifying Appellant's disposition is governed by the following standard. The disposition of a juvenile who had been adjudicated delinquent "is a duty vested in the discretion of the adjudicating juvenile court." In re Love , 646 A.2d 1233, 1238 (Pa. Super. 1994) (citing 42 Pa.C.S. § 6352). Accordingly, "[t]his Court will not disturb a [disposition] absent a manifest abuse of discretion." Id. The juvenile court's discretion in implementing a disposition is broad and flexible. Id. at 1238 n.5. The juvenile court "has considerable power to review and modify the commitment, taking into account the rehabilitative progress or lack of it of the juvenile." Id. "Without extreme specificity as to the error by the court in imposing the commitment, there can be no basis for setting aside the disposition." Id.
Our Supreme Court has recently said the following regarding disposition:
Disposition of a delinquent child is governed by Section 6352 of the Juvenile Act, which provides that a court's disposition should be "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. Moreover, reiterating the incorporation of [balanced and restorative justice (BARJ)] into the Juvenile Act, [s]ection 6352 additionally provides that the "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." Id.In Interest of D.C.D., 171 A.3d 727, 739 (Pa. 2017) (footnote omitted). The Court emphasized that "juvenile courts are granted broad discretion in weighing the BARJ factors as appropriate to the individual child." Id. at 742.
A juvenile court has a variety of options available for placement of a delinquent child ranging from permitting the child to remain with his or her parents to committing the child to an institution. 42 Pa.C.S. § 6352(a). However, "when confinement is necessary, the court shall impose the minimum amount of confinement that is consistent with the protection of the public and the rehabilitation needs of the child." Id. Additionally, the court may impose "fines, costs, fees or restitution" upon the child. 42 Pa.C.S. § 6352(a)(5).
The Juvenile Act addresses modification of a child's commitment. The juvenile court may modify its initial commitment "if the court finds after hearing that the ... modification will effectuate the original purpose for which the order was entered. The child shall have notice of the ... modification hearing and shall be given an opportunity to be heard." 42 Pa.C.S. § 6353(a). If an institution where a child has been placed by the juvenile court "seeks to transfer [the child] to a more secure facility[,] the child shall have a full hearing before the committing court. At the hearing, the court may reaffirm or modify its commitment order." 42 Pa.C.S. § 6353(b).
Additionally, as described supra, the juvenile court is required to review its disposition regularly. M.D., 839 A.2d at 1119; Pa.R.J.C.P. 610(a)(1). The purpose of the dispositional review hearing is so that the juvenile court may review the disposition to "ensur[e] that the juvenile is receiving necessary treatment and services and that the terms and conditions of the disposition are being met." Pa.R.J.C.P. 610(A). "Whenever there is a request for a change in the dispositional order ... notice and an opportunity to be heard shall be given to the parties and the victim." Pa.R.J.C.P. 610(B). "The juvenile shall be given a statement of reasons for the discharge from a placement facility or request for change in the dispositional order." Pa.R.J.C.P. 610(B)(3). The review hearing must be held within twenty days of the discharge from the placement facility or request for change in the dispositional order. Pa.R.J.C.P. 610(B)(4).
Appellant first argues that because the juvenile court made a finding in its order that placement at Summit Academy was the "least restrictive type of placement ... best suited to [Appellant's] treatment, supervision, rehabilitation[,] and welfare[,]" it could not transfer Appellant to a more secure facility at Abraxas without further hearing pursuant to 42 Pa.C.S. § 6353(b). Appellant's Brief at 10-11. Appellant further argues that because no evidence or testimony was introduced at the December 21, 2017 dispositional review hearing, the juvenile court erred by determining that sexual offender treatment was best suited for Appellant. Id. at 12.
Appellant's argument takes the juvenile court's finding out of context and ignores the intervening event of Appellant's absconding. When Adelphoi Village sought to transfer him from the Greystone House to the Williams Home, Appellant was entitled to a full hearing pursuant to 42 Pa.C.S. § 6353(b) because Williams Home was more secure than the Greystone House. He received such a hearing on October 4, 2017. See Dispositional Review Order, 10/4/2017. After Appellant absconded, resulting in a bench warrant, he was entitled to, and received, a detention hearing within 72 hours. See Pa.R.J.C.P. 141(D). The juvenile court ordered him to remain detained at the George Jr. Republic shelter. Shelter Care Order, 12/13/2017, at 1-3. The Juvenile Probation Office promptly filed a request for change of the dispositional order. See Pa.R.J.C.P. 610(B). The juvenile court held a dispositional review hearing to review the request to modify Appellant's place of commitment on December 21, 2017. See 42 Pa.C.S. § 6353(a). During the December 21, 2017 dispositional review hearing and in its order, the juvenile court made it clear that the only reason it was not placing him at a sexual offender program right away was because there were no openings in any program, including the program from which Appellant had absconded. The only change was that the allegations against him had progressed to formal charges alleging that Appellant had engaged in delinquent acts while at Greystone House, and Appellant had attempted to thwart the juvenile court's October 4, 2017 order by absconding. Thus, Summit Academy was the least restrictive type of placement available, but only because of lack of availability elsewhere. Furthermore, there is no indication in the record that the security level at Abraxas is any more secure than that of the Williams Home where Appellant had been placed following the previous dispositional review hearing. Moreover, Appellant had notice of the hearing and an opportunity to be heard. Thus, we conclude that the juvenile court did not abuse its discretion by ordering Appellant to be placed at Abraxas without further hearing once an opening became available.
We recognize that a child who has already been adjudicated delinquent is put in a difficult position when the juvenile court wishes to modify his disposition but the child has new charges pending. If a child wishes to rebut the Commonwealth's position by testifying, he risks saying something on the record that jeopardizes his defense in the new case. To the extent the juvenile court was encouraging Appellant to do so, we do not condone such a practice. See N.T., 12/21/2017, at 8 (acknowledging it was not Appellant's burden and that an adjudication in another county was still pending, but nevertheless stating "[i]f your client wishes to take the stand and testify right now regarding [the sexual assault allegations], we'll hear testimony on the disposition").
Relating to his second issue, Appellant argues that the Court abused its discretion by ordering Appellant to be placed in a sexual offender treatment facility without any finding of fact or adjudication on any sexual offense or any evidence of an evaluation recommending such treatment. Id. at 13. Appellant contends that the juvenile court could not consider the evidence presented at the October 4, 2017 hearing because it was outside of the record. Id. at 14. Even if consideration of the evidence at the October 4, 2017 hearing was proper, Appellant argues that such evidence was based upon speculation and unproven allegations. Id. at 14-15.
What Appellant's second issue really is challenging is the appropriateness of the juvenile court's decision to place Appellant at any sexual offender treatment facility, not the juvenile court's decision to place Appellant at Abraxas specifically. The decision to place Appellant in a sexual offender treatment program was made at the October 4, 2017 hearing. As noted supra, we are unable to review that decision because Appellant has waived such a challenge by not appealing the October 4, 2017 dispositional review order.
Based on the foregoing, Appellant has failed to convince us that the juvenile court manifestly abused its discretion. Therefore, we affirm the December 22, 2017 dispositional review order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018