In the interest of: S.W., Appeal of: S.W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.W., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: S.W., A MINOR

No. 1912 EDA 2013

Appeal from the Dispositional Order June 7, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-JV-000195-2013

BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY OTT, J.: FILED AUGUST 13, 2014

S.W., a minor, appeals from the June 7, 2013 dispositional order committing her to Hoffman Homes, imposed in the Bucks County Court of Common Pleas, Juvenile Division, after the juvenile court adjudicated her delinquent of acts constituting simple assault and the summary offense of harassment, following a finding by the Court of Common Pleas of Lycoming County, that she committed simple assault and the summary offense of

harassment.1, 2 The issue raised in this appeal is whether the juvenile court ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 The delinquent acts occurred in Lycoming County, but S.W. is a resident of Bucks County. Therefore, a preliminary hearing was held in Lycoming County and the case was then transferred to Bucks County. See 42 Pa.C.S.

-County Transfer).

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erred in adjudicating S.W. delinquent by (1) failing to comply with the requirements of the Juvenile Act regarding adjudications of delinquency, and Based u offense of harassment, and affirm the dispositional order.3 See 42 Pa.C.S. 6302(2)(iv); In the Interest of K.J.V., 939 A.2d 426 (Pa. Super. 2007).

The juvenile court summarized the procedural and factual history of this case, as follows:

S.W. was fifteen years old and resident of Ashler Manor in Lycoming County at the time of the incident giving rise to her _______________________ (Footnote Continued) 2

specific disposition of Hoffman Homes are now moot as S.W. has been nile Court Opinion, 8/16/2103, at 6. We note that although S.W preserved three issues related to the disposition of Hoffman Homes in her Pa.R.A.P. 1925(b) statement, none of the issues raised in this appeal are related to Hoffman Homes. 3 The Juvenile A

imposed thereunder, in which event notice of such fact shall be certified to have been adjudicated delinquent on the charge of harassment, 18 Pa.C.S. §

adjudication can refer only to the finding of simple assault. See In the Interest of K.J.V., 939 A.2d 426 (Pa. Super. 2007) ( Summary offenses, except under circumstances not relevant here, are not classified as

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adjudication and disposition. On the afternoon of December 21, 2012, S.W. was in the community room of Ashler Manor acting in a disruptive manner. When asked by staff of the facility to alter her behavior or go to her room she refused to comply and continued her unruly behavior in the common room. Facility staff then attempted to escort S.W. to her room at which point she became physically and verbally abusive. She kicked and struggled against staff and threatened that she was going to

three staff members simply restrained her until she calmed down and lay prone on the floor.

At that point, three Ashler Manor staff again attempted to escort S.W. to her dorm room. S.W. continued to thrash on the way to the room attempting to kick staff members before finally

release it. Only with the assistance of another Ashler Manor staff member was S.W. finally forced to let go of the hair. Once in the dorm room, Ashler Manor staff again attempted to simply restrain S.W. to prevent her continued kicking. While they were positioning themselves, S.W. managed to bite another staff member in the upper arm and refused to let go for a period of 15 seconds. The bite was so hard that, even through the

As a result of this incident, a Muncy Township police officer titude problem towards this

for what she had done nor was she concerned about anything or

Following a hearing in Lycoming County, where S.W. made a counseled admission to simple assault and harassment, Dana Jacques, Family Court Hearing Officer, entered a finding of fact as to Simple Assault and Harassment which was subsequently approved by Judge Joy Reynolds McCoy of the Lycoming County Court of Common Pleas. The matter was then transferred to Bucks County and on June 7, 2013 the matter was heard before the undersigned. This Court asked counsel for S.W. if there was anything she wished to present as to the issue of whether or not S.W. should be adjudicated as a delinquent individual. At that time the only thing her counsel asked to be considered was

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adjudicated her delinquent relying on the finding of fact out of Lycoming County, her emotional and mental health history, and her substance abuse problems. It then placed her with Hoffman Homes, a residential treatment facility, per the recommendation of the Bucks County Department of Juvenile Probation and the aforementioned documents.

Juvenile Court Opinion, 8/16/2013, at 1 2 (record citations omitted).4

S.W. first contends that the juvenile court erred in failing to comply does not contain the findings required by the Juvenile Act. In support of her argument, S.W. relies on Section 6341, which provides, in relevant part:

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.

42 Pa.C.S. § 6341(b). See that S.W. did not properly preserve this issue in in her Pa.R.A.P. 1925(b) statement.

Our review of the Rule 1925(b) statement leads us to agree with the with the Juvenile Act is not raised therein. S.W. contends that she ____________________________________________

4 On July 10, 2013, S.W. filed a notice of appeal. In response, the juvenile court directed S.W. to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). S.W. timely filed a Rule 1925(b) statement, and the juvenile court issued an opinion pursuant to Pa.R.A.P. 1925(a).

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adjudicating [S.W.] delinquent and that the Commonwealth failed to present

See

ever, reading the Rule 1925(b) statement,5 we are not persuaded that these statements encompass the present claim that

claim.

The Juvenile Act requires that the juvenile court must find the following: (1) that the child has committed a delinquent act beyond a reasonable doubt and (2) that the child is in need of treatment, supervision, or rehabilitation. 42 Pa.C.S. § 6341;6 In the Interest of M.W., 39 A.3d ____________________________________________

5 The concise statement reads, in relevant part:

1. The trial court erred in adjudicating the juvenile delinquent and not dependent where this mentally ill and abused child had a long standing history of treatment and supervision by the Department of Children and Youth as a dependent child.

2. The Commonwealth failed to present sufficient evidence that the juvenile should be declared delinquent and not dependent.

plained of on Appeal, 7/22/2013, at ¶¶1-2. 6 Adjudication

(a) General rule. After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child. If the petition alleged that the child is delinquent, within seven days of hearing the evidence on the (Footnote Continued Next Page)

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absent manifest abuse of discretion. See In the Interest of R.D., 44 A.3d 657, 664 (Pa. Super. 2012).

_______________________ (Footnote Continued)

petition, the court shall make and file its findings whether the acts ascribed to the child were committed by him. . . . If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding. . . .

(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 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 and to make and file its findings thereon. This time limitation may only be extended pursuant to the agreement of the child

comply with the time limitations stated in this section shall not be grounds for discharging the child or dismissing the proceeding. 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.

42 Pa.C.S. § 6341 (emphasis supplied).

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Pursuant to Section 6341(b), the court must first make a specific finding as to whether the child committed the acts alleged, and enter that finding on the record. Here, as already noted, because S.W. was residing in a facility in a court ordered placement in Lycoming County, the proceedings were initiated in the Court of Common Pleas of Lycoming County. On February 27, 2013, a preliminary hearing, at which S.W. was represented by counsel, was held regarding the charges of harassment and simple assault. Thereafter, the Honorable Joy Reynolds McCoy entered an order indicating a County Court of Common Pleas.7 Specifically, the Lycoming County Order included a table, listing the offenses of simple assault and harassment, the grading of each charge misdemeanor of the second degree and summary, respectively as well as the statutory title and section, and the offense held on this date. The court hereby enters a finding of fact as to the above

The Lycoming County Order is consistent with the requirements of Section 6341(b). See beyond a reasonable doubt that the child committed the acts by reason of ____________________________________________ 7 had made counseled admissions as to the charged conduct.

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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 As such, the juvenile court in Bucks County properly relied upon that the finding of fact, as to the charge of simple assault, prior to proceeding to the question of whether S.W. was in need of treatment, supervision, or rehabilitation. The juvenile court stated:

history here. Also included was the evaluation by Today, Inc. and their bio[]psychosocial history. Based upon all that information, that which pertains to the events giving rise to these charges, the various emotional, mental health, and psychological history, and drug and alcohol history, it is clear to

determined, but she is a person who is appropriate for supervision of the juvenile court and treatment and services to be provided by this office, and as such she will be adjudicated delinquent as to this petition.

N.T., 6/7/13, at 5.

We note S.W. did not contest the propriety of the Lycoming County Court Juvenile Court merely assumed that a finding of fact determination was

made beyond a reasonable doubt and proceeded to find [S.W.] in need of 8

____________________________________________

8 Brief of S.W. at 13-14 (emphasis added).

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proof beyond a reasonable doubt that the child committed the acts by reason of supra. finding of the Lycoming County Court as reflected by its order of February

that the court failed to comply with the requirements of the Juvenile Act regarding adjudications of delinquency.

Next, S.W. asserts that the juvenile court erred in adjudicating her delinquent rather than dependent. S.W. points to Section 6302, which defines a dependent child as a child who:

(6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian, or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;

....

(8) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6).

42 Pa.C.S. § 6302

S.W. argues that she is a dependent child, and that the acts in this case, which occurred at a residential facility for girls with anger management issues, and which were committed against staff, constitute acts of disobedience and S.W. is ungovernable. S.W. argues no evidence was presented that she could get any greater level of care or be eligible for any

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better programs as a result of a finding of delinquency as opposed to a finding of dependency. S.W. maintains that she should have remained a dependent child. We find no merit in this argument.

committed the delinquent act of simple assault, and the juvenile court further found that S.W. was in need of treatment, supervision and/or rehabilitation. The juvenile court explained the basis of its decision, stating:

In order for a child to be found to be delinquent a court must find two things, (1) that the juvenile committed the delinquent acts beyond a reasonable doubt, and (2) that the juvenile is in need of treatment, supervision or rehabilitation. Commonwealth v. M.W., 39 A.3d 958, 959 (Pa. 2012). With certain exceptions not applicable here, a delinquent act is defined by statute as something that is designated as a crime under the laws of this Commonwealth. 42 Pa.C.S.A. § 6302. Where a court finds the juvenile guilty beyond a reasonable doubt, the next step is to determine if, based on the evidence, the juvenile requires treatment, supervision, or rehabilitation. 42 Pa.C.S.A. § 6341(b).

It is not necessary that a juvenile be adjudicated delinquent even where a court has found beyond a reasonable doubt that the juvenile committed the delinquent acts. However, in this case, the Court had no trouble finding S.W. a delinquent child based solely on the circumstances of the incident, described above, that gave rise to the original petition. The Court was also able to review other information contained in the extensive psychological and personal history reports provided by Dr. Venezia, Children and Youth, and Today, Inc., a drug and alcohol inpatient treatment facility. All of those reports only served t

Trial Court Opinion, supra, 8/16/2013, at 3 4.

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ntrol problems, anger management issues, and a history

Id. at 4 5. The juvenile court further noted:

Between the instant incident which brought [S.W.] before this Court and her adjudication hearing, a period of about six

placement at Abraxas New Morgan Academy, she received very poor marks for her behavior while in the custody of the Bucks County Detention Center, and she expressed a desire to stab another girl who was residing in the detention center with her prior to her hearing.

Id. at 5. her unwillingness to admit she has an alcohol or drug problem and accept

Id. at 6. The Court concluded:

psychological, emotional, and substance abuse history there was more than sufficient evidence for this Court to find an adjudication of delinquency appropriate. The Court is certain that, based on the foregoing, it was necessary to adjudicate S.W. delinquent so that she can receive the treatment, supervision, and rehabilitation she clearly needs.

Id.

It bears emphasis that S.W. has presented no legal authority, other position that the juvenile court should have declared her dependent rather

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than delinquent. Moreover, our review co that it was appropriate to adjudicate S.W delinquent upon the finding that she committed the act of simple assault beyond a reasonable doubt and the further finding that she is in need of treatment, supervision or rehabilitation. Therefore, there is no basis upon which to disturb the decision of the juvenile court.

Adjudication of delinquency for simple assault affirmed; adjudication of delinquency for harassment reversed. Dispositional Order affirmed. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2014

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