J-S21016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
                                      :
    APPEAL OF: K.F., A MINOR          :
                                      :
                                      :
                                      :
                                      :
                                      :        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
____________________________________________


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).
J-S21016-19


      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


                                     -2-
J-S21016-19



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?


                                     -3-
J-S21016-19



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


                                      -4-
J-S21016-19



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:

                                      -5-
J-S21016-19


      . . . 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

                                     -6-
J-S21016-19


     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.


                                     -7-
J-S21016-19


      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

                                     -8-
J-S21016-19


      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

                                      -9-
J-S21016-19


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.


                                     - 10 -
J-S21016-19


     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.


                                       - 11 -
J-S21016-19



      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.




                                      - 12 -
J-S21016-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/19




                          - 13 -
