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                              2015 PA Super 124

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
K.M.-F., A MINOR,                       :          No. 12 WDM 2015
                                        :
                         Petitioner     :


          Appeal from the Dispositional Order, February 23, 2015,
            in the Court of Common Pleas of Allegheny County
               Juvenile Division at Docket No. JV-12-002408


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


OPINION PER CURIAM:                                   FILED MAY 22, 2015

     In this case, we are presented with a petition for review filed pursuant

to Pa.R.A.P., Rule 1770, 42 Pa.C.S.A., Review of Dispositional Order for

Out of Home Placement in Juvenile Delinquency Matters.                  This

relatively new rule was promulgated by our supreme court in response to

the recommendations made by the Interbranch Commission on Juvenile

Justice Report of May 2010. The commission was created in August 2009

with a mandate to develop appropriate recommendations for reform of the

juvenile justice system.    It recognized the importance of timely appellate

review of juvenile placement decisions finding that in order for review to be

meaningful, it must be completed before the child’s placement or other

disposition is completed. The commission recommended the following:




* Retired Senior Judge assigned to the Superior Court.
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           That the Supreme Court’s Appellate Court Procedural
           Rules Committee and Juvenile Court Procedural
           Rules Committee collaborate to develop an expedited
           appeals process or, in the alternative, collaborate to
           develop a process that affords an aggrieved party an
           option to elect a mechanism that affords some
           measure of review of a juvenile court judge’s
           decision short of a formal appellate review in the
           following proceedings . . . an order of disposition
           following an adjudication of delinquency that
           removes a child from his or her home.

Commission Report p. 56.

     This expedited appellate review is the genesis of Rule 1770.1 The rule

provides a vehicle for a juvenile placed in out-of-home overnight placement


1
     Review of Out of Home Placement in Juvenile Delinquency Matters

     (a)   General rule. If a court under the Juvenile Act, 42 Pa.C.S.
           § 6301 et seq., enters an order after an adjudication of
           delinquency of a juvenile pursuant to Rules of Juvenile Court
           Procedure 409(A)(2) and 515, which places the juvenile in an
           out of home overnight placement in any agency or institution
           that shall provide care, treatment, supervision or rehabilitation
           of the juvenile (“Out of Home Placement”), the juvenile may
           seek review of that order pursuant to a petition for review under
           Chapter 15 (judicial review of governmental determinations).
           The petition shall be filed within ten days of the said order.

     (b)   Content. A petition for review under subdivision (a) shall
           contain: (i) a specific description of any determinations made
           by the juvenile court; (ii) the matters complained of; (iii) a
           concise statement of the reasons why the juvenile court abused
           its discretion in ordering the Out of Home Placement; (iv) the
           proposed terms and conditions of an alternative disposition for
           the juvenile; and (v) a request that the official court reporter for
           the juvenile court transcribe the notes of testimony as required
           by subdivision (g) of this Rule. Any order(s) and opinion(s)
           relating to the Out of Home Placement and the transcript of the
           juvenile court’s findings shall be attached as appendices. The
           petition shall be supported by a certificate of counsel to the
           effect that it is presented in good faith and not for delay.



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     (c)   Objection to specific agency or institution, or underlying
           adjudication of delinquency, is not permitted.

           (1)   A petition for review under subdivision (a) shall not
                 challenge the specific agency or specific institution
                 that is the site of the Out of Home Placement and
                 instead shall be limited to the Out of Home
                 Placement itself.

           (2)   A petition for review under subdivision (a) shall not
                 challenge     the    underlying   adjudication     of
                 delinquency.

     (d)   Answer. Any answer shall be filed within ten days of service of
           the petition, and no other pleading is authorized. Rule 1517
           (applicable rules of pleading) and Rule 1531 (intervention)
           through 1551 (scope of review) shall not be applicable to a
           petition for review filed under subdivision (a).

     (e)   Service. A copy of the petition for review and any answer
           thereto shall be served on the judge of the juvenile court and
           the official court reporter for the juvenile court. All parties in
           the juvenile court shall be served in accordance with
           Rule 121(b) (service of all papers required).       The Attorney
           General of Pennsylvania need not be served in accordance with
           Rule 1514(c) (service), unless the Attorney General is a party in
           the juvenile court.

     (f)   Opinion of juvenile court. Upon receipt of a copy of a petition
           for review under subdivision (a), if the judge who made the
           disposition of the Out of Home Placement did not state the
           reasons for such placement on the record at the time of
           disposition pursuant to Rule of Juvenile Court Procedure 512(D),
           the judge shall file of record a brief statement of the reasons for
           the determination or where in the record such reasons may be
           found, within five days of service of the petition for review.

     (g)   Transcription of Notes of Testimony. Upon receipt of a copy
           of a petition for review under subdivision (a), the court reporter
           shall transcribe the notes of testimony and deliver the transcript
           to the juvenile court within five business days. If the transcript
           is not prepared and delivered in a timely fashion, the juvenile
           court shall order the court reporter to transcribe the notes and
           deliver the notes to the juvenile court, and may impose
           sanctions for violation of such an order. If the juvenile is
           proceeding in forma pauperis, the juvenile shall not be charged


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to seek review of that decision within ten days of the placement order.2 The

rule references the requirements of Chapter 15 of the Appellate Rules

(Judicial Review of Governmental Determinations), which sets forth various

procedural requirements of a petition for review generally.             Additionally,

Rule 1561(a) allows that this court “may affirm, modify, vacate, set aside, or

reverse any order brought before it for review and may remand the matter

and direct the entry of such appropriate order or require such further

proceedings    as   may    be   just   under   the   circumstances.”      Pa.R.A.P.,

Rule 1561(a), 42 Pa.C.S.A.

      The superior court’s Operating Procedure (“O.P.”) § 65.22 allows for

substantive petitions and motions, such as, motions to quash or dismiss

appeals, petitions for permission to appeal an interlocutory order, and

petitions for review, to be submitted to a three-judge motions panel which




             for the cost of the transcript. Chapter 19 of the Rules of
             Appellate Procedure shall not otherwise apply to petitions for
             review filed under this Rule.

      (h)    Non-waiver of objection to placement. A failure to seek
             review under this rule of the Out of Home Placement shall not
             constitute a waiver of the juvenile’s right to seek review of the
             placement in a notice of appeal filed by the juvenile from a
             disposition after an adjudication of delinquency.

42 Pa.C.S.A. §1770.
2
  Under Rule 1770(h), the filing or the failure to file such a petition does not waive
the juvenile’s right of appellate review to a finding of delinquency or disposition
order.


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represents a quorum of the court for decision purposes.3          Upon filing with

the Prothonotary’s office, such petitions are then reviewed by the court’s

Central Legal Staff and submitted to the motions panel for decision.             The

volume of substantive motions filed with the superior court each year is very

high.4 Therefore, for purposes of expediting review by a motions panel of

petitions for review filed pursuant to Rule 1770, we suggest that a petitioner

specifically and clearly label the petition for review as one seeking expedited

review of out-of-home placement in a juvenile delinquency matter.5

        Upon review of the petition for review filed in the case, we find it

meets the contents requirements of Rule 1770(b), which are designed to

provide the appellate courts with sufficient record materials to decide the

issue presented, including a certificate of counsel stating the petition is

presented in good faith and not for delay. The petition is timely filed. The



3
        Motions Review Subject to Motions Panel Disposition.

        A.    Motions to Quash or Dismiss Appeals, Petitions for Permission to
              Appeal pursuant to Pa.R.A.P. 312, 1301-1323 and 42 Pa.C.S.
              §702(b), and Petitions for Review pursuant to Pa.R.A.P. 1501
              et seq. shall be subject to review and disposition by a panel of
              three judges.

O.P. § 65.22.
4
    Motions panels reviewed 523 such motions in 2014.
5
  As an intermediate appellate court, we lack the authority to amend the rules of
appellate procedure. Such power resides with the Pennsylvania Supreme Court.
However, we recommend that the Supreme Court Appellate Rules Committee
consider including our suggestion as a filing mandate to Rule 1770. This practice
would ensure that Rule 1770 petitions are immediately brought to the court’s
attention and handled expeditiously.


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juvenile court has complied with the directive of Rule 1770(f), by providing a

statement of the reasons for its determination on the record at the

conclusion of the hearing and with Rule 1770(g), by timely certifying the

notes of testimony from the hearing. For the reasons that follow, we grant

the petition for review and affirm the juvenile court’s decision for

out-of-home placement.

      Petitioner was adjudicated delinquent for aggravated assault and

recklessly endangering another person following his admission to those

charges in exchange for the Commonwealth’s withdrawal of the criminal

attempted homicide charge and the amending of the robbery charge. There

was no dispositional agreement between the parties.               Following a lengthy

dispositional hearing, the juvenile court permitted the Juvenile Probation

Office to place Petitioner out of his home at Summit Academy or the Abraxas

Leadership Development Program.

      Petitioner admitted to luring his physically disabled best friend into the

woods, attacking him, and leaving him on a hillside unconscious. The victim

was outside until he awoke the following day and crawled out of the woods,

where he was discovered and assisted by good Samaritans. The victim was

hospitalized and suffered serious injuries as a result of the assault.

      Petitioner filed this petition pursuant to Rule 1770(a).                Petitioner

argues that the juvenile court did not specifically state why out-of-home

placement   was    the   least   restrictive   alternative   as    required    by   the



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Juvenile Act,6 and that the juvenile court abused its discretion by ordering

out-of-home placement because the decision was against the weight of the

evidence presented at the hearing.            Petitioner argued that the offenses

occurred 17 months prior to the hearing, and the evidence established that

Petitioner was on the honor roll, a star wrestler, actively participating in his

voluntary private counseling, had never violated his electronic home

monitoring or his no-contact order, and was determined to be a low-to-

moderate risk for re-offending.7           Petitioner argued that there was no

evidence presented to establish or suggest that Petitioner could not be

treated in the community or that any service or treatment plan required by




6
    Section 6352(c) of the Juvenile Act states:

         (c)   Required statement of reasons.--Prior to entering an order
               of disposition under subsection (a), the court shall state its
               disposition and the reasons for its disposition on the record in
               open court, together with the goals, terms and conditions of
               that disposition. If the child is to be committed to out-of-home
               placement, the court shall also state the name of the specific
               facility or type of facility to which the child will be committed
               and its findings and conclusions of law that formed the basis of
               its decision consistent with subsection (a) and section 6301,
               including the reasons why commitment to that facility or type of
               facility was determined to be the least restrictive placement that
               is consistent with the protection of the public and best suited to
               the child’s treatment, supervision, rehabilitation and welfare.

42 Pa.C.S.A. § 6352(a).
7
 Petitioner notes that he was assessed on the Juvenile Probation’s predictive tool to
have a low risk of re-offending, but his assessment was manually changed to
moderate because of the nature of the charges themselves.


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Petitioner     could   not   be    provided   in    a     community      setting.     The

Commonwealth did not file a response to Petitioner’s petition.8

      We first set forth our standard of review of a dispositional order:

                      As noted by the court, the Juvenile Act grants
               to the court broad discretion in disposition.
               42 Pa.C.S.A. §6341, §6352; In re Love, 435
               Pa.Super. 555, 646 A.2d 1233 (1994).            In the
               opinion dated November 21, 1999, the court details
               its rationale for the disposition it ordered. Finding
               that the court properly considered the information
               presented to it and fashioned a disposition it believed
               best suited the circumstances involved, we perceive
               no manifest abuse of discretion which would cause
               us to disturb its order.

In the Interest of A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (en banc).

      The juvenile court had a lengthy dispositional hearing as evidenced by

the 95-page transcript.           At the dispositional hearing, the court heard

testimony from Petitioner as well as his probation officer, his therapist, his

social worker, and his mother. The juvenile court also heard testimony from

the victim’s father and uncle.            The court heard recommendations and

argument from probation, the Commonwealth, and defense counsel. During

the hearing, the court asked each of the witnesses questions and noted that

it would consider the testimony with appropriate weight in balancing

Petitioner’s    rehabilitative    needs   against   its    duties   to   hold   Petitioner

accountable and protect the community.              “In a juvenile proceeding, the


8
   Under Rule 1770(d), any answer filed to the petition for review shall be filed
within ten days of service of the petition. We strongly urge the Commonwealth to
file a response in the future.


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hearing judge sits as the finder of fact.       The weight to be assigned the

testimony of the witnesses is within the exclusive province of the fact

finder.” Id. (citation omitted).

      The juvenile court discussed the impact on the victim and its concern

that Petitioner needed a higher level of accountability for his actions.9 The

juvenile court explained that it does not believe that the amount of

supervision and rehabilitative programs that Petitioner was receiving at the

time of the disposition were enough given the seriousness of his actions.

The court stated that while it believed that Petitioner was amenable to

treatment, it was concerned by Petitioner’s lack of remorse.         The juvenile

court noted that Petitioner was only concerned with the potential of his own

life being disrupted but did not comment on how his actions impacted the

victim’s life. The juvenile court summarized its disposition as follows:

                  It’s all these reasons. For the victim’s sake.
            For the community’s sake. For accountability sake.
            But I heard that you, and I have heard conflicting
            [testimony], that you really don’t want to have
            friends anymore because of this incident. If that
            isn’t somebody that doesn’t need treatment
            supervision rehabilitation, I don’t know who is. The

9
  Petitioner was arrested on the charges on August 10, 2013, and transferred to the
Allegheny County Jail where he remained until release to electronic home
monitoring on May 22, 2014, in anticipation of a decertification hearing.
Petitioner’s counsel strongly advocated that the nine and one-half months spent
incarcerated should be considered sufficient punishment, and Petitioner should be
placed on probation with appropriate conditions.        Counsel argued that this
detention was punitive and satisfied the accountability factor. The trial court
correctly concluded that accountability under the Juvenile Act is not the same as
punishment, but rather, is directed to having the juvenile appreciate the
seriousness and consequences of his actions in line with additional treatment and
rehabilitation.


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           guy on a team that teammates rely on. If it is [a]
           team thing in wrestling. The kid that is in tenth
           grade that doesn’t want to have friends. A kid that
           wants to stay at home other than for wrestling. And
           stay in his room. It’s also restoring yourself besides
           the victim.

                 So, for all these reasons, and I had to put
           them on the record. I have to protect the public
           interest. This incident could have effect a lot of the
           public.   I think it best suits that you have a
           placement. I’m not going to say it is going to be
           long one. But I think you need to review all your
           issues.

                 And [as] the good therapist back there said,
           I’m not going to start with anger[, but with]
           self-control. But you are going to get that. And you
           are going to get anger management. And you are
           going to get victim awareness. And you are going to
           get other competencies that we have not even spoke
           of. And I think you are going to be fine. But I think
           it’s best suited for your treatment, supervision,
           rehabilitation and welfare.

                 I have to balance that with the protection of
           the community, imposition of accountability for
           offenses committed.

Notes of testimony, 2/10/15 at 89-90.

     Petitioner additionally challenges placement in Abraxas or Summit

Academy.    However, his objection does not specifically relate to either

placement so much as his belief that probation with conditions is all that is

warranted. We recognize that the juvenile court did not specifically place on




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the record its reasons for choosing this particular placement.10          However,

both programs’ services were outlined for the court by juvenile probation.

             THE COURT: What we are talking about, what is he
             going to get at Abraxas or Summit?

             [JUVENILE PROBATION OFFICER]: They will offer
             the     accountability measures      to   community
             protection. They will do a victim awareness group.
             They will help him complete community service
             hours. They will do an ART of some sort. They will
             assess him and assist with mental health needs that
             he has. They will do individual counseling. They will
             have mother involved for family counseling. They
             will allow him to have visitation with mother. And
             eventually, he can earn his way to home passes and
             eventually a discharge into some community-based
             program.

Id. at 75.

      We believe, based on the reasons subsequently given by the court for

out-of-home placement, it determined that the Abraxas and Summit

programs provided Petitioner with the least restrictive confinement and

important treatment services.11

      As Petitioner noted, the juvenile court has broad discretion when

determining an appropriate disposition.         The record demonstrates that the

court heard testimony from a number of witnesses on behalf of the victim



10
  The juvenile court considered more restrictive placement programs, and declined
to follow the probation officer’s recommendation to place Petitioner in a more
serious secure facility, YDC Cresson.
11
   We note that under Rule 1770(c)(1), an objection to a specific agency or
institution is not permitted to be challenged in the petition for review; but rather,
the review is limited to the reasons for out-of-home placement only.


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and Petitioner, and that it considered the recommendations of probation and

counsel. The juvenile court noted that it had read the relevant statutes and

that it took its responsibilities under the Juvenile Act seriously as it weighed

its duties to hold Petitioner accountable, protect society, and rehabilitate

Petitioner.   We cannot find that the juvenile court abused its discretion in

fashioning Petitioner’s disposition and out-of-home placement under the

circumstances of this case was not unreasonable.

      Petition for review granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2015




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