J-S14022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
J-S14022-14



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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J-S14022-14


       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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