J-S07045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.C.D., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA

                                                     No. 999 MDA 2014


               Appeal from the Order Entered May 12, 2014
               In the Court of Common Pleas of York County
            Juvenile Division at No(s): CP-67-DP-0000166-2013
                           CP-67-JV-0000720-2012


BEFORE: BENDER, P.J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 26, 2015

      The Commonwealth appeals from the order entered May 12, 2014, in

the Juvenile Division of the York County Court of Common Pleas, terminating

the delinquency supervision of minor, D.C.D.     The juvenile court granted

D.C.D.’s petition for early termination of his supervision to facilitate his

transfer to Southwood Psychiatric Hospital. On appeal, the Commonwealth

contends the juvenile court abused its discretion in granting D.C.D.’s motion

when (1) other treatment options were available under delinquency

supervision, and (2) the court failed to adequately consider the protection of

the community. For the reasons that follow, we affirm.

      We note at the outset that this is a unique case, involving the juvenile

court’s interpretation of Pennsylvania Rule of Juvenile Court Procedure 632,
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under the specific facts of the matter before it. The pertinent facts are as

follows.    On October 15, 2012, a delinquency petition was filed against

D.C.D., then age 10,1 alleging he committed the crime of indecent assault2

against his five-year-old sister and a three-year-old female cousin.      On

January 23, 2013, the charges were disposed of under a consent decree,

and D.C.D.’s parents voluntarily placed him in foster care through Pressley

Ridge Counseling. On April 11, 2013, D.C.D. was detained on new charges

—stalking, loitering and prowling at night time, and harassment 3 — which

arose after he sent notes of a sexual nature to an adult neighbor of his

foster family. Following a hearing on April 22, 2013, and by agreement of

the parties, the juvenile court added the charges of harassment and loitering

and prowling to the consent decree,4 and directed D.C.D. be placed with a

new foster family.

        On July 10, 2013, D.C.D. appeared before the juvenile court for a

probation violation hearing. It was established that during a home visit on

July 7, 2013, he attempted to set fire to a piece of wood in his bedroom. As

a result of the hearing, D.C.D. was released to his foster home, and ordered
____________________________________________


1
    The child’s date of birth is in March of 2002.
2
    18 Pa.C.S. § 3126(a)(7).
3
    18 Pa.C.S. §§ 2709.1, 5506, and 2709, respectively.
4
    The Commonwealth agreed to withdraw the charge of stalking.




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to undergo a psychosexual evaluation. At a subsequent review hearing on

July 24, 2013, the parties agreed that York County Office of Children, Youth,

and Families (“CYF”) would conduct an investigation to determine whether

D.C.D. should be adjudicated dependent.           CYF subsequently filed a

dependency petition, and on August 7, 2013, the juvenile court adjudicated

D.C.D. dependent. The court specifically noted D.C.D. would be subject to

“concurrent supervision” by both Juvenile Probation and CYF, but that CYF

would be the lead agency. N.T., 8/7/2013, at 14, 16.

       On September 9, 2013, CYF filed a motion for change of D.C.D’s

placement because the child was continuing to act out sexually in his foster

home.     Following a placement hearing on September 25, 2013, the trial

court granted CYF’s motion, and transferred D.C.D. to the Sarah Reed

Residential Treatment facility (“Sarah Reed”).

       Thereafter, based upon D.C.D.’s continued violation of the terms of his

consent decree, the juvenile court convened a hearing on the outstanding

delinquency petitions.      See 42 Pa.C.S. § 6340(d).   On January 28, 2014,

D.C.D. entered an admission to the charges of indecent assault and

harassment by communication.5 Accordingly, the juvenile court adjudicated

him delinquent, and directed that he remain at Sarah Reed. On March 26,


____________________________________________


5
  The Commonwealth withdrew the second charge of indecent assault, and
the charge of loitering and prowling.




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2014, CYF filed a motion for change of placement, asserting D.C.D. had

sexually offended a younger child at Sarah Reed, and “was in need of a

more specialized residential treatment program that would focus on the

sexual offending issues.”6 Motion for Change of Placement, 3/26/2014, at ¶

9. The motion also averred CYF and Juvenile Probation were recommending

Southwood Psychiatric Hospital’s Choices Program (“Southwood”), “which

has immediate openings and is equipped to deal with the lower functioning

youth.”    Id. at ¶ 12.        During the March 31, 2014, placement hearing,

counsel for CYF explained why the program at Southwood was the most

appropriate placement for D.C.D.:

       First of all, they do specialize in sexual offending, sexual abuse
       issues and in addition they are able to facilitate treatment with
       those in the lower intellectual function and lower IQ range, which
       [D.C.D.] falls into, and they do have available, because they are
       associated with the Southwood Psychiatric Hospital that type of
       service as well.

N.T., 3/31/2014, at 5. At the conclusion of the hearing, the juvenile court

granted CYF’s motion, and directed D.C.D. be transferred to Southwood. 7

       However, before the transfer was finalized, CYF learned Southwood

would not accept children with an active adjudication of delinquency for a
____________________________________________


6
 CYF also noted that since D.C.D. had reached the age of 12, there were
more placement opportunities for him.
7
  During the March 31, 2014, hearing, the attorney for the Commonwealth
expressed her agreement with the recommendation of D.C.D.’s transfer to
Southwood. N.T., 3/31/2014, at 12.




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sexual offense. Thereafter, on May 5, 2014, D.C.D. filed a motion for early

termination of his court supervision pursuant to Pa.R.Juv.P. 632(F). 8     See

id. (juvenile court may, for “compelling reasons,” grant early discharge from

supervision). The juvenile court conducted two hearings, the first on May 9,

2014, and the second on May 12, 2014. Following the second hearing, the

court granted D.C.D.’s motion, and this timely appeal follows.9

       The Juvenile Act, 42 Pa.C.S. § 6301, et seq., governs the adjudication

and disposition of delinquent and dependent children.         With regard to

delinquent children, the stated purpose of the Act is as follows:

       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.§ 6301(b)(2) (emphasis supplied). “The rehabilitative purpose of

the Juvenile Act is attained through accountability and the development of

personal qualities that will enable the juvenile offender to become a

____________________________________________


8
 We note that D.C.D. originally filed a motion to vacate his adjudication of
delinquency, but later withdrew that motion.
9
  On June 12, 2014, the juvenile court ordered D.C.D. to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
D.C.D. complied with the court’s directive, and filed a concise statement on
June 30, 2014.




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responsible and productive member of the community.” In re R.D.R., 876

A.2d 1009, 1013 (Pa. Super. 2005) (quotation omitted). The Act grants the

juvenile   court   broad   discretion   in   determining   the   appropriate

disposition for a delinquent child, which this Court will not disturb “absent a

manifest abuse of discretion.”   In re L.A., 853 A.2d 388, 394 (Pa. Super.

2004) (emphasis supplied). See 42 Pa.C.S. § 6352.

      Pursuant to Pennsylvania Rule of Juvenile Court Procedure 631, the

court may discharge a juvenile from delinquency supervision after the

juvenile has satisfied all the conditions of his probation, that is, he has

completed the terms of his dispositional order, he has paid in full all

restitution, fines and costs, and he has not committed any new offenses.

See Pa.R.J.C.P. 631 (A), (D). Rule 632, however, permits a juvenile court

to order the early termination of court supervision.    The Rule provides, in

pertinent part:

      Rule 632. Early Termination of Court Supervision by Motion

      A. Motion. Any party may move for early termination of court
      supervision. The motion shall state with specificity why early
      termination is sought and why the requirements of Rule 631(A)
      have not been met.

      B. Notice.

      (1) In addition to the service requirements of Rule 345, any
      party moving for early termination shall serve the motion on the
      juvenile probation officer.

      (2) The victim shall be provided notice of the motion for early
      termination of court supervision.

      C. Objection.


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      (1) A party or the juvenile probation officer may object to the
      motion under paragraph (A) and request a hearing.

      (2) Such objection shall be made within thirty days of the date of
      the motion; otherwise, objections are deemed waived.

      D. Court's determination. The court shall:

      (1) rule on the motion and any objections without a hearing; or

      (2) schedule a hearing.

      E. Hearing. If objections have been made pursuant to
      paragraph (C) and/or the court has determined a hearing is
      necessary, the court shall hold a hearing and give each party,
      the victim, and the juvenile probation officer an opportunity to
      be heard before the court enters its final order.

      F. Termination. When the requirements of paragraphs (A)
      through (E) have been met and the court is satisfied that
      there are compelling reasons to discharge the juvenile
      prior to the completion of the requirements of Rule
      631(A), the court may order an early discharge of the
      juvenile from its supervision.

Pa.R.J.C.P. 632 (emphasis supplied).

      Accordingly, the juvenile court has the discretion to order early

termination of a delinquent child’s supervision for “compelling reasons.” We

note the Rule does not define what constitutes “compelling reasons,” and

our research has uncovered no appellate decisions interpreting Rule 632.

The Merriam Webster Dictionary, however, defines “compelling” as “capable

of causing someone to believe or agree[;] strong and forceful [;] causing

you   to   feel   that   you    must   do   something.”   http://www.merriam-

webster.com/dictionary.

      Here, the Commonwealth argues that no compelling reasons exist in

the   present case for         the early termination of D.C.D.’s delinquency


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supervision.    It characterizes this matter as one involving “the unusual

circumstance of a juvenile whose diagnostic indicators are so bad that few

facilities are equipped to handle his problems.” Commonwealth’s Brief at 11.

The Commonwealth asserts that, although the trial court determined

Southwood was the only facility available to meet D.C.D.’s treatment needs,

Juvenile Probation proposed two other treatment facilities, Mars Home and

Abraxas Youth and Family Services (“Abraxas”), which would not require

termination     of   D.C.D.’s   delinquency   supervision.   Moreover,   the

Commonwealth contends the juvenile court focused solely on D.C.D.’s

treatment and rehabilitation, to the exclusion of “the statutorily mandated

goals of holding juveniles accountable and protection the community.” Id.

at 12.   In fact, the Commonwealth notes the reason D.C.D. could not

transfer to Southwood while under delinquency supervision is because the

facility has a zoning agreement with its local community “based on not

treating dangerous delinquent juveniles.” Id.

     The juvenile court, however, determined that D.C.D. presented

compelling reasons for the early termination of his delinquency supervision,

namely, his urgent need for the specialized care offered at Southwood. The

court opined:

     D.[C.]D. is undeniably in need of specialized care: he has been
     both a victim and perpetrator of sexual abuse; he functions
     intellectually at a low level and is socially immature; he has
     exhibited fire-setting behaviors.       These needs limit the
     placements available for appropriate treatment.



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     Sarah Reed, his placement at the time supervision was
     terminated, was inadequate for D.[C.]D.’s needs. Sarah Reed
     failed to provide him with adequate supervision and appropriate
     therapeutic services. In fact, the facility had ceased providing
     D.[C.]D. with the necessary therapy before his removal from
     their program and after just a few sessions. In order for
     D.[C.]D. to receive the necessary treatment, his immediate
     removal from Sarah Reed was imperative.          One alternative
     placement capable of treating D.[C.]D. and available to take him
     immediately was identified.1     Southwood Hospital, however,
     could not accept D.[C.]D. if he was actively adjudicated
     delinquent for a sexual offense. Without the active adjudication,
     D.[C.]D. could receive the treatment he needed; with the
     delinquency supervision, contrary to the purpose of the Juvenile
     Act, he would be precluded from immediately receiving
     appropriate treatment.

     _____
        1
           A second placement, Valley Youth House, had accepted
        D.[C.]D. at the time of the May 12, 2014 hearing, but the
        County had no contract with that facility. A third option,
        Abraxas Sexual Offender Open Program, had not yet
        accepted D.[C.]D. as of May 12, 2014, but even if it had, a
        bed was not available until the end of July or early August.
        Due to the lack of treatment D.[C.]D. received while at
        Sarah Reed, this Court found it was contrary to D.[C.]D.’s
        best interest to wait for admission into the program or for
        a bed at Abraxas.

     _____

           At the time of the hearing, D.[C.]D. was receiving no
     services particular to his adjudication of delinquency.        The
     services [the child] received were all as a result of his
     involvement with [CYF] as a dependent child. Ceasing to
     monitor D.[C.]D. through delinquency court would have no, and
     in fact had no, effect on the judicial oversight of, or therapeutic
     services provided to, D.[C.]D.

     This Court’s paramount concern is providing D[C.]D. with
     the treatment necessary to enable him to become a
     responsible, law-abiding citizen upon completion of
     treatment. This Court acted within its discretion on May 12,
     2014 when it terminated delinquency supervision pursuant to
     Rule 632 in order to permit D.[C.]D. to receive the appropriate

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      and necessary treatment at a facility that could address his
      needs.

Juvenile Court Opinion, 7/9/2014, at 3-5 (emphasis supplied).

      After a thorough review of the record and the parties’ brief, we detect

no abuse of discretion on the part of the juvenile court in granting D.C.D.’s

petition   for   early   termination   of   his   delinquency   supervision.    The

Commonwealth does not dispute the fact that D.C.D. has not been receiving

the treatment he needs at Sarah Reed.             Rather, it points to the fact that

there were two other treatment programs willing and able to care for D.C.D.,

neither of which would have required termination of his delinquency

supervision. The Commonwealth also contends the court improperly focused

solely on D.C.D’s rehabilitative needs without adequately considering the

need to protect the community.

      With regard to the other treatment options, we find very little

consideration was given to Mars Home as a viable treatment program for

D.C.D.     At the May 9, 2014, hearing, Mickeal Pugh, D.C.D.’s juvenile

probation officer testified he made a referral to Mars Home, but learned the

facility does not have a contract with Juvenile Probation. N.T., 5/9/2014, at

94. He also indicated he had never sent a juvenile to that program before.

Further, Pugh testified that although Mars Home would address D.C.D.’s fire

setting issues, “they’re basically a sex offender treatment program.”           Id.

Moreover, he did not indicate whether the program had any openings for

D.C.D.’s immediate placement.



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       Conversely, the viability of Abraxas as an appropriate treatment

facility for D.C.D. was thoroughly explored at the May 9, 2014, hearing. Lisa

Front, admission liaison for the facility, testified the program “is specifically

designed for fire setters, sex offenders[, and] has a fully-functioning special

education department and emotional support department[.]”               Id. at 128.

However, she acknowledged the program would not have an opening for

D.C.D. until July or August. Id. at 132. Moreover, Front agreed the “core

population” of Abraxas was not “lower-functioning or borderline intellectual”

individuals, although she testified that the facility had “successfully worked

with kids with a wide variety of IQ’s.” Id. at 133, 138-139. Further, when

asked whether Abraxas had accepted D.C.D. into its program, she replied

the clinical team “felt he would be a good fit for the program,” but

acknowledged Abraxas did not offer the in-house occupational therapy that

D.C.D. would require.10 Id. at 141.

       Jana Emig, a CYF caseworker supervisor, testified the Agency

considered      nine     treatment       facilities,   including   Abraxas,   before

recommending Southwood.            With regard to Abraxas, Emig explained that

CYF determined it would not be the best placement for D.C.D. because it did



____________________________________________


10
   Front did explain, however, that Abraxas would permit an outside provider
to come into the facility and provide such services to D.C.D. N.T., 5/9/2014,
at 141.




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not have an immediate opening, and CYF was concerned about D.C.D.’s

“lower functioning” intellect in the facility’s general population.11 Id. at 51.

       However, with regard to Southwood, Emig testified:          “It specifically

specializes in children who have sexual abuse offending issues who are lower

functioning.”     Id. at 53.       Indeed, Southwood’s Director of Admissions,

George Lee, explained:

       We focus our program to deal specifically with sexually reactive
       youth in the age range that [D.C.D.] is in, who have experienced
       some form of trauma history, whether that be reactive
       attachment or something more severe along those lines, as far
       as trauma is concerned, and at the same time target youth with
       an IQ between 60 and 110, so everything I’ve read about
       [D.C.D.] qualifies him for the program.

Id. at 113.

       Emig testified that D.C.D. is “taught at a lower grade level,” and has

social immaturity issues.        Id. at 54.    She emphasized the significance of

D.C.D. receiving treatment suitable to his intellectual level:

       It’s very important. Specifically for [D.C.D.], we have found out
       that [he] doesn’t even understand what he is doing is wrong.
       There was also an understanding that when he had the incident
       in February, he had [stated] … that he ejaculated into the child’s
       mouth, and in fact, he actually only had an erection, so not
       understanding what those terms meant and what his body was
       doing, he had no clue.
____________________________________________


11
   During the May 12, 2014, hearing, D.C.D.’s counsel explained she was
very familiar with Abraxas and had sent “multiple” children there, but that
her “experience with the younger children that [have been placed there and
that have] special needs has not been good.” N.T., 5/12/2014, at 39. She
stated “I’m just not convinced that they will be able to handle [him] at this
point. I think he’s too immature.” Id. at 40.



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      … He did not fully understand what was going on [with his body].

Id. at 75.

      Therefore, despite the feasibility of Abraxas as a potential treatment

option for D.C.D., we cannot conclude the juvenile court abused its

discretion in concluding that Southwood was the most appropriate treatment

facility for D.C.D.’s specialized needs, and, therefore, compelling reasons

existed to warrant the early termination of D.C.D.’s delinquency supervision.

      The Commonwealth also argues, however, that the juvenile court

focused solely on D.C.D.’s treatment needs without adequately considering

“the statutorily mandated goals of holding juveniles accountable and

protecting the community.” Commonwealth’s Brief at 12. It contends the

victim of D.C.D.’s harassment adjudication opposed his early termination

from supervision.   Moreover, Southwood’s zoning agreement with its local

community     prohibits   the   facility   from   treating   “dangerous   juvenile

delinquents” like D.C.D.    Commonwealth’s Brief at 12.        In support of this

claim, the Commonwealth presented to the court a letter, dated September

16, 2013, from Southwood CEO Steve Quigley to North Strabane Township

Manager Frank Siffrinn, which states that Southwood “do[es] not and will

not accept children who have been adjudicated/or convicted of violent

crimes.” N.T., 5/12/2014, at 29. The Commonwealth argues “the Juvenile

Court’s slight of hand in hiding the dangerous nature of [D.C.D.] to get

[him] into a non-violent offender program actually creates a greater risk to

the community.” Id.


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      Our review of the testimony of the harassment victim reveals that,

while she opposed early termination of D.C.D.’s delinquency supervision, she

was unaware that the treatment and supervision D.C.D. had been receiving

was through CYF rather than through Juvenile Probation, and that the

proposed treatment facility was a residential program in which D.C.D. would

be supervised. See N.T., 5/12/2014, at 19-20. She also did not appear to

understand that D.C.D. would continue to be monitored by the juvenile

court. See id. at 24. Further, the victim testified:

      … I do hope that [D.C.D.] does get the help that he so
      desperately needs. I don’t know the young man, but for him to
      – I can’t imagine what he’s going through, but for him to have
      behaved this way at such a young age, it scares me, and I hope
      he gets the help that he needs so that he can have a good life.

Id. at 27.    By transferring D.C.D. to Southwood, the juvenile court was

attempting to comply with the victim’s request to “get [him] the help that he

so desperately needs.” Id. We do not find that the victim’s “opposition” to

the early termination of his supervision controlling.

      Moreover, with regard to Southwood’s purported zoning issue, the

juvenile court credited the testimony of Mr. Lee, the program’s admission

director, who stated that D.C.D. would qualify for their program even

though he had an adjudication of delinquency, if he was presently not under

probation supervision.    See N.T. 5/9/2014, at 121.    We emphasize that

whether D.C.D.’s admission into the program violates a zoning ordinance is a

question for Southwood, not for the juvenile court.



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      We conclude the juvenile court made a fact-specific, reasoned, and

difficult decision when it granted D.C.D.’s motion for early termination of his

delinquency supervision.     The court considered all of the relevant factors

before concluding that D.C.D.’s need for the specialized treatment offered at

Southwood outweighed his need to be supervised by juvenile probation. As

D.C.D. notes in his brief:

      It was to the community’s benefit for D.[C.]D. to be moved into
      appropriate treatment at Southwood. Southwood could provide
      treatment for D.[C.]D.’s issues on a level that he could
      understand and start to apply to his daily life rather than let
      [him] languish for months waiting for a bed in a facility that was
      not capable of treating his specialized issues.

D.C.D’s Brief at 12.    We agree.   Although the effect of the court’s ruling

means that D.C.D. is no longer supervised by juvenile probation, he

continues to be monitored both by CYF and the juvenile court. Moreover, he

is being transferred to a secure, residential facility equipped to treat his

particular mental health needs.     Therefore, we find the court adequately

considered all the goals of the Juvenile Act, including the protection of the

community, before granting early termination of D.C.D.’s delinquency

supervision.

      Accordingly, because we find no abuse of discretion on the part of the

juvenile court in concluding “compelling reasons” existed for the early

termination of D.C.D.’s delinquency supervision, we affirm the order on

appeal.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2015




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