J-S13027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF J.T.D., A               :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.T.D.                          :
                                               :
                                               :
                                               :
                                               :   No. 1177 WDA 2017

           Appeal from the Dispositional Order Entered June 15, 2017
      In the Court of Common Pleas of McKean County Juvenile Division at
                        No(s): CP-42-JV-0000025-2017


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED APRIL 13, 2018

       Appellant, J.T.D., a minor, appeals from the dispositional order1 entered

on June 15, 2017, following his adjudication of delinquency. We vacate the

dispositional order and adjudication of delinquency and remand for further

proceedings.

       The Juvenile Court summarized the factual and procedural history of this

case as follows:

                               FACTUAL BACKGROUND

             [Appellant] had been under supervision for a previous
       offense. While under supervision by the Juvenile Probation Office,
       [Appellant] was charged with Simple Assault 18 Pa.C.S.A.
       §2701(a)(1). Specifically, the [c]ourt found that [Appellant]
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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.” Commonwealth v. S.F., 912 A.2d 887, 888-889 (Pa. Super.
2006) (unnecessary capitalization omitted).
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       shoved another student, pushing him to the ground, and punched
       him several times in the face. This offense [would be graded as]
       a misdemeanor of the second degree. These facts have not been
       appealed by [Appellant].

                            PROCEDURAL BACKGROUND

             A written allegation was filed against [Appellant] on March
       20, 2017. On March 28, 2017, a Petition Alleging Delinquency
       was filed. The adjudicatory hearing took place on May 24, 2017.
       An Adjudicatory Hearing Order was filed May 25, 2017 and found
       that [Appellant] had committed the acts alleged, translating into
       a simple assault, a misdemeanor of the second degree.

            An Adjudicatory/Dispositional Hearing was held on June 13,
       2017. This hearing was held simultaneously with [Appellant’s]
       Dispositional Review Hearing at Docket No. 106 JV 2015.

             An Adjudicatory/Dispositional Order was entered on
       June 15, 2017. The [c]ourt found that [Appellant] had committed
       the acts alleged and was in need of treatment, supervision, and
       rehabilitation. As part of that Order, the [c]ourt directed that
       [Appellant] be under the supervision of the Juvenile Probation
       Office for three to six months. [Appellant] was further ordered to
       pay $25.00 for the State Victim Fee; $10.00 for Supervision Fee;
       and $45.00 in restitution to the victim. The [c]ourt also directed
       that [Appellant] complete twenty (20) hours of community
       service, attend the Victim Awareness Program, and write a letter
       of apology to the victim. No placement was ordered.

              On July 20, 2017, [Appellant] filed a Motion Nunc Pro Tunc
       requesting that [Appellant] be allowed to appeal. This motion was
       uncontested by the Commonwealth and was granted. [Appellant]
       filed his appeal and a petition to appeal in forma pauperis on
       August 9, 2017.[2] [Appellant] filed his concise statement on
       August 31, 2017.
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2  The juvenile court granted Appellant’s motion for reinstatement of appellate
rights nunc pro tunc by order entered August 10, 2017. The order reinstated
Appellant’s appeal rights and gave him thirty days from July 18, 2017, to file
an appeal. Order, 8/10/17, at 1. Appellant’s notice of appeal was filed
August 9, 2017. Thus, we recognize that Appellant filed his notice of appeal



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Juvenile Court Opinion, 10/5/17, at unnumbered 1-2.

       Appellant presents the following issue for our review:

       Whether the [juvenile court] erred in finding that the
       Commonwealth had met its burden of proof to establish that
       [Appellant] was in need of treatment, supervision, or
       rehabilitation; and subsequently erred in adjudicating [Appellant]
       delinquent?

Appellant’s Brief at 4.

       Before we begin our analysis of Appellant’s issue, we must consider

whether it is moot. The Commonwealth asserts that because Appellant has

completed all terms of the adjudication and imposed disposition, Appellant’s

appeal should be dismissed as moot.              Commonwealth’s Brief at 7.   The

Commonwealth maintains that the “Termination of Court Supervision Order”

dated December 8, 2017, released Appellant from supervision and marked the

case closed.     Id. at 8-9.     Thus, the Commonwealth contends, Appellant’s

argument on appeal that he is not in need of treatment, rehabilitation, or

supervision has become moot. Id. at 9.

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prematurely. However, in similar cases we still have addressed a premature
appeal when “the subsequent actions [of the] court fully ripened it.”
Commonwealth v. Cooper, 27 A.3d 994, 1004 (Pa. 2011). See also
Commonwealth v. Little, 879 A.2d 293, 296 n.6 (Pa. Super. 2005)
(permitting premature appeal of petition for reconsideration when order
denying petition was entered between filing of notice of appeal and
consideration by appellate court); Commonwealth v. Hamaker, 541 A.2d
1141, 1142 n.4 (Pa. Super. 1988) (permitting a premature appeal of post-
trial motions and citing Pa.R.A.P. 905 (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”)).



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       We first note that despite the Commonwealth’s characterization,

Appellant is not challenging the disposition of treatment, rehabilitation, or

supervision. Instead, he is challenging the adjudication of delinquency, which

requires a determination that the juvenile is in need of treatment,

rehabilitation, or supervision.3 See Commonwealth v. M.W., 39 A.3d 958,

964 (Pa. 2012) (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,

before the court may enter an adjudication of delinquency.”) (emphasis

added).

       We consider the following in determining whether a case is 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. . . . 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 Interest of N.C., 171 A.3d 275, 279-280 (Pa. Super. 2017).

       If it is determined that the court erred in adjudicating Appellant

delinquent, the appropriate remedy would be to reverse the adjudication

order. In that case, the court would enter an order reversing the adjudication.


____________________________________________


3 Appellant asserts that because the Commonwealth did not prove beyond a
reasonable doubt that Appellant was in need of treatment, supervision or
rehabilitation, Appellant’s adjudication of delinquency must be overturned.
Appellant’s Brief at 4, 15, 22.

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Thus, the juvenile court can enter an order that has legal force and effect.

Because the court can issue an order having legal effect if it is determined

that Appellant was improperly adjudicated, we cannot agree that Appellant’s

issue is moot. Interest of N.C., 171 A.3d at 280; see also In Interest of

Kilianek, 378 A.2d 995, 995, fn (Pa. Super. 1977) (holding that juvenile’s

challenge to her adjudication, which claimed that juvenile court improperly

adjudicated her delinquent despite not meeting the legal standard for

delinquency, was not rendered moot upon her release from out-of-home

placement); Cf. Interest of DelSignore, 375 A.2d 803, 807 (Pa. Super.

1977) (deciding juvenile’s challenge regarding sufficiency of evidence to

support adjudication, but holding objection to placement was rendered moot

upon her release from the placement); R.D., 44 A.3d at 679–680 (deciding

issues relating to adjudication, but holding that juvenile’s challenge to his

disposition was rendered moot upon his release from the delinquency

placement). Accordingly, we address the merits of Appellant’s claim.

      Our standard of review of dispositional orders in juvenile proceedings is

well settled:

             The Juvenile Act grants broad discretion to the court when
      determining an appropriate disposition. We will not disturb a
      disposition absent a manifest abuse of discretion. Moreover, a
      petition alleging that a child is delinquent must be disposed of in
      accordance with the Juvenile Act. Dispositions which are not set
      forth in the Act are beyond the power of the juvenile court.

Commonwealth v. B.D.G., 959 A.2d 362, 366–367 (Pa. Super. 2008)

(internal citations and quotation marks omitted).

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      Appellant asserts that because the Commonwealth did not establish that

Appellant was in need of treatment, supervision, or rehabilitation beyond a

reasonable doubt, the Juvenile Court erred in adjudicating him delinquent.

Appellant’s Brief at 4, 15. Specifically, Appellant maintains that the juvenile

court improperly utilized the “preponderance of evidence” standard of proof,

when it was required to use the “beyond a reasonable doubt” standard. Id.

at 15.   Appellant contends that the juvenile court’s use of the incorrect

standard resulted in an improper adjudication of delinquency, which must be

overturned. Id. at 21-22.

      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.”

M.W., 39 A.3d at 964 (emphasis added). “A determination that a child has

committed a delinquent act does not, on its own, warrant an adjudication of

delinquency.” Id. at 966.

      In In Interest of N.C., this Court addressed the standard of proof

necessary for establishing that a juvenile is in need of treatment, supervision,

or rehabilitation for purposes of an adjudication of delinquency. Id. at 281.

In addressing this issue for the first time, the Court observed that the Juvenile

Act “is silent as to the standard of proof required for establishing that the

juvenile is in need of treatment, supervision, or rehabilitation.” Id. at 281.

This Court also noted the absence of direction on the appropriate standard to


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be used in the Pennsylvania Supreme Court’s decision in M.W. Id. at 281-

282.    After considering the purpose of the Juvenile Act and interpreting

provisions of the statute, the Court stated: “we hold that in addition to proving

beyond a reasonable doubt that a juvenile engaged in a delinquent act, the

Commonwealth also must prove beyond a reasonable doubt that the juvenile

is in need of treatment, supervision, or rehabilitation.” Id. at 281-283.

       Interest of N.C. was filed on September 18, 2017, subsequent to the

Juvenile Court’s adjudication of delinquency in this case and prior to its

drafting of its Pa.R.A.P. 1925(a) opinion. Indeed, the Juvenile Court stated:

             Admittedly, neither counsel nor the [c]ourt could definitely
       state the law regarding the Commonwealth’s burden of proof
       when demonstrating that a juvenile is in need of treatment,
       supervision, or rehabilitation. The Superior Court decided In
       Interest of N.C. September 18, 2017[,] and only then was there
       clear authority and holdings regarding the weight of the burden
       the Commonwealth carries in a juvenile adjudicatory/dispositional
       proceeding.

Juvenile Court Opinion, 10/5/17, at unnumbered 4.

       Thus, the Juvenile Court at the time of its adjudication did not have the

benefit of the holding in Interest of N.C. The Juvenile Court provided the

following explanation of its holding, admittedly made under the improper

standard of proof:

             This [c]ourt at the time of its decision, mistakenly, believed
       the weight of the Commonwealth’s burden to establish that a
       juvenile was in need of treatment, supervision, or rehabilitation to
       be one of preponderance of the evidence. The Commonwealth
       also presented very little evidence of [Appellant’s] need for
       treatment, supervision, and rehabilitation to the [c]ourt at the
       time of [Appellant’s] adjudicatory/dispositional hearing.

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            At     the     adjudicatory/dispositional    hearing,     the
     Commonwealth did not provide an overwhelming case to
     determine [Appellant] was in need of treatment, rehabilitation, or
     supervision. In fact, the Commonwealth only presented one (1)
     witness - the Juvenile Probation Office assigned to [Appellant’s]
     case. Counsel for the Commonwealth rested greatly on the fact
     [Appellant] was found to have committed the acts and that in and
     of itself would be a sufficient reason for treatment, supervision, or
     rehabilitation. The [c]ourt has not and does not subscribe to such
     a view, more so after reviewing the In Interest of N.C. decision.
     However, the [c]ourt relied upon the following factors:

           1.)   [Appellant] committed the underlying offense.

           2.)   [Appellant] committed the underlying offense while
                 under supervision.

           3.)   [Appellant’s] Youth Level of Service (YLS) score was
                 12 at the time of the adjudication.

           4.)   [Appellant’s] YLS score had been 11 before this
                 offense, but had increased while under supervision.

           5.)   The YLS score of 12 indicated that there was a
                 moderate risk of reoffending.

           6.)   [Appellant], while compliant with the conditions of
                 Juvenile Probation, still had educational issues and
                 was at risk of not graduating on time. This factor was
                 particularly troubling to the [c]ourt as education is the
                 foundation for success in life and reduces the potential
                 for at-risk behavior.

           7.)   [Appellant] did not take responsibility for what he had
                 done and contested the facts. Again, the [c]ourt
                 would emphasize that [Appellant] did not appeal the
                 finding that he had assaulted a person.

           8.)   Based on the [c]ourt’s familiarity with the subject
                 [Appellant] and his record, the [c]ourt believed that
                 treatment, rehabilitation, or supervision would serve
                 [Appellant’s] interest as well as the interests of the
                 restorative justice principles of the Juvenile Justice
                 System.

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            Again, the [c]ourt did not consider these facts under the
      standard of reasonable doubt, but by a preponderance of the
      evidence, but it did make the conclusion it felt was best at the
      time. It is difficult to look back and retroactively impose an
      increased standard on the [c]ourt’s decision. Perhaps a different
      decision may have been reached had the [c]ourt had clear
      authority on what the Commonwealth’s burden was to prove that
      [Appellant] was in need of treatment, supervision, or
      rehabilitation. Notwithstanding, the [c]ourt believes it weighed
      several factors and that the record supported a finding that
      [Appellant] was in need of treatment, supervision, or
      rehabilitation.

Juvenile Court Opinion, 10/5/17, at unnumbered 4-6.

      As the Juvenile Court acknowledges, pursuant to Interest of N.C., the

court was required to consider whether Appellant was in need of treatment,

supervision, or rehabilitation, utilizing the “beyond a reasonable doubt”

standard of proof. Interest of N.C., 171 A.3d at 283. Because the juvenile

court admittedly used the improper standard of proof, we are constrained to

remand this matter to the juvenile court for consideration of whether Appellant

is in need of treatment, supervision, or rehabilitation, utilizing the proper

standard of proof.

      Dispositional order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017


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