J-A28031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.T., A MINOR,             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: E.T., A MINOR,

                       Appellant                   No. 186 EDA 2015


         Appeal from the Dispositional Order December 19, 2014
             In the Court of Common Pleas of Monroe County
           Juvenile Division at No(s): CP-45-JV-0000242-2014


BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 18, 2015

     E.T. appeals from the juvenile court’s December 19, 2014 dispositional

order placing E.T. in the Abraxas Leadership Development Program

(“Abraxas”). We affirm.

     The record reveals that E.T. had four prior open juvenile delinquency

matters dating from May of 2012 to May of 2014 at the time of the

challenged dispositional order. Those adjudications resulted in placements

at Northwestern Academy’s V-CORE program and Summit Academy, as well

as probation. E.T. was on probation when the underlying incident occurred.

     On October 23, 2014, while living with his family in Monroe County

and attending school in Northampton County, E.T. physically attacked

another student.    Based on the incident, E.T. was detained at the

Northampton Juvenile Justice Center (“JJC”).    The Commonwealth filed a
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petition, alleging that E.T. committed the delinquent acts of simple assault,

disorderly conduct, and harassment. On November 10, 2014, E.T. admitted

to one count of disorderly conduct, a violation of 18 Pa.C.S. § 5503(a)(1).

On November 21, 2014, the juvenile court ordered that E.T. be placed at

Glen Mills Schools, a residential facility. E.T. did not file a post-dispositional

motion pursuant to Pa.R.J.C.P. 620(B)(1).

      Upon review of E.T.’s psychological evaluation, Glen Mills Schools

rescinded its offer to accept E.T. Therefore, E.T. remained in detention at

the JJC, pending a re-disposition hearing on December 19, 2014. Following

that hearing, the juvenile court ordered that E.T. be placed at Abraxas for a

period of time consistent with the provisions of the Juvenile Act and the rules

of civil procedure governing juvenile court. N.T., 12/19/14, at 10–11. On

December 24, 2014, E.T. filed a post-dispositional motion, which the juvenile

court denied on December 29, 2014. This timely appeal followed. E.T. and

the juvenile court have complied with Pa.R.A.P. 1925.

      E.T. presents the following questions for our consideration:

      I.    Whether the Juvenile Court violated Title 42 of the
            Pennsylvania Consolidated Statutes, Section 6353(a), by
            placing [E.T.] at Abraxas LDP Program [sic] for an
            unspecified period of time, following and [sic] Admission to
            Disorderly Conduct, a delinquent act which would be
            graded as a Misdemeanor of the Third Degree, were [E.T.]
            an adult.

      II.   Whether the Juvenile Court abused its discretion in placing
            [E.T.] at Abraxas LDP. This question includes the following
            subsidiary questions:



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            A.   Whether Abraxas LDP was the least restrictive
            placement for [E.T.]

            B.     Whether the Juvenile Court adequately stated
            its reasons for its placement of [E.T.] at Abraxas LDP
            pursuant to Title 42 of the Pennsylvania Consolidated
            Statutes, Section 6352(c).

            C.     Whether it was an abuse of discretion and a
            violation of [E.T.’s] Due Process [rights] when the
            Juvenile Court failed to take into consideration the
            two (2) months that [E.T.] had spent in secure
            Juvenile Detention prior to the placement in
            fashioning the disposition.

E.T.’s Brief at 7. Essentially, E.T. challenges the juvenile court’s failure to

give him credit for two months of detention prior to the December 19, 2014

dispositional order and his placement at Abraxas.

      Preliminarily, we question whether the passage of time has rendered

this appeal 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. In that case,
      an opinion of this Court is rendered advisory in nature. 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 re J.A., 107 A.3d 799, 811–812 (Pa. Super. 2015) (quoting In re D.A.,

801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (internal citations and

quotations omitted)).

            Nevertheless, this Court will decide questions that
      otherwise have been rendered moot when one or more of the
      following exceptions to the mootness doctrine apply: 1) the case
      involves a question of great public importance, 2) the question

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      presented is capable of repetition and apt to elude appellate
      review, or 3) a party to the controversy will suffer some
      detriment due to the decision of the trial court.

In re D.A., 801 A.2d at 616 (citations omitted).

      In this appeal, E.T. asks us to reverse the juvenile court’s dispositional

order placing him at Abraxas. The juvenile court’s December 19, 2014 order

effectively placed E.T. at Abraxas for six months, resulting in a review

hearing on or about June 19, 2015. E.T.’s current placement status does not

appear of record. Arguably, therefore, our decision in this appeal may not

have any legal force or effect.        See In re D.A., 801 A.2d at 616.

Nevertheless, we conclude that we are able to decide this appeal, as it

presents questions that are “capable of repetition and apt to elude appellate

review,” and thus are excepted from the mootness doctrine.           See In re

J.A., 107 A.3d at 811–812 (reviewing appeal rendered moot by trial court

order entered after review hearing conducted while appeal was pending).

We, therefore, proceed to address this appeal.

      Where a juvenile challenges the authority of the court to impose the

disposition in question, it is a challenge to the legality of the disposition. In

re S.A.S., 839 A.2d 1106, 1107 (Pa. Super. 2003).             “Accordingly, our

standard of review for such a claim is plenary, and it is limited to

determining whether the lower court committed an error of law.”           In re

J.M., 42 A.3d 348, 350 (Pa. Super. 2012). In the event a judge enters a

dispositional order that provides for commitment, the judge is required to


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review the propriety of that commitment every six months and must also

hold a disposition review hearing at least every nine months. In re M.D.,

839 A.2d 1116, 1119 (Pa. Super. 2003).

     The statutory sections at issue in this appeal provide as follows:

            No child shall initially be committed to an institution for a
     period longer than four years or a period longer than he
     could have been sentenced by the court if he had been
     convicted of the same offense as an adult, whichever is
     less. The initial commitment may be extended for a similar
     period of time, or modified, if the court finds after hearing that
     the extension or modification will effectuate the original purpose
     for which the order was entered. . . . [T]he committing court
     shall review each commitment every six months and shall hold a
     dispositional review hearing at least every nine months.

42 Pa.C.S. § 6353(a) (emphasis supplied).          Disorderly conduct “is a

misdemeanor of the third degree if the intent of the actor is to cause

substantial harm or serious inconvenience, or if he persists in disorderly

conduct after reasonable warning or request to desist.”         18 Pa.C.S. §

5503(b). “A crime is a misdemeanor of the third degree if it is so designated

in this title or if a person convicted thereof may be sentenced to a term of

imprisonment, the maximum of which is not more than one year.”              18

Pa.C.S. § 106(b)(8).    “The court shall impose a minimum sentence of

confinement which shall not exceed one-half of the maximum sentence

imposed.” 42 Pa.C.S. § 9756(b)(1).

     Additionally, the juvenile court:

     shall review its disposition and conduct dispositional review
     hearings for the purpose of ensuring the juvenile is receiving
     necessary treatment and services and that the terms and

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      conditions of the disposition are being met. . . In all cases, the
      court shall conduct dispositional review hearings at least
      every six months.

Pa.R.J.C.P. 610(A)(1) (emphasis supplied).       Pa.R.J.C.P. 610 allows for

detention of a juvenile pending a court hearing whenever there is a request

for a change in the dispositional order. Pa.R.J.C.P. 610(B).

      E.T. argues that the two months he was detained in the JJC and his

placement in Abraxas for an unspecified period violated 42 Pa.C.S. §

6353(a).    E.T.’s Brief at 13.   According to E.T., an adult convicted of

disorderly conduct could be sentenced to incarceration for six to twelve

months.    Id.   However, E.T. continues, because the juvenile court merely

provided that E.T.’s placement at Abraxas would be reviewed pursuant to

the Juvenile Act and rules of juvenile procedure, E.T. will have served an

initial period of confinement of close to eight months, “a period greater than

the maximum minimum sentence that an adult could legally have received if

convicted of the same offense.” Id. at 14.

      In its Rule 1925(a) opinion, the juvenile court refutes E.T.’s challenge

on three grounds: the disposition was not inconsistent with the language of

section 6353(a); the placement at Abraxas was not an initial placement but

a modification of a prior dispositional scheme; and E.T.’s challenge to the

placement at Abraxas was premature.          The juvenile court detailed its

analysis as follows:

            Initially, [E.T.] did not cite any authority that would
      support his attempt to import “adult” sentencing concepts into
      delinquency dispositions in Juvenile Court.        Delinquency


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     proceedings are statutorily and jurisdictionally separate and
     distinct from criminal proceedings. Each type of case is guided
     by its own separate set of rules adopted by our Supreme Court.
     Similarly, each type of case is governed by its own legislative
     scheme. Delinquency cases are governed by the Juvenile Act,
     while criminal proceedings are controlled by various other
     statutes and statutory schemes. Significantly, the Sentencing
     Code, the Sentencing Guidelines, and attendant sentencing rules
     apply in criminal proceedings, but not delinquency proceedings,
     and the provisions of the Juvenile Act and the Rules of Juvenile
     Court Procedure that pertain to juvenile dispositions and
     commitments do not apply in criminal cases. In this regard,
     sentences in criminal court, once final, are not subject to on-
     going review and modification.      In contrast, it is the very
     essence of Juvenile Court to regularly review juveniles and their
     and [sic] commitments so that dispositional schemes may be
     modified, as needed, to achieve balanced and restorative justice
     which, as discussed below, is one purpose of the Juvenile Act
     and the statutory goal for delinquency dispositions. There is
     simply no support for [E.T.’s] assertion that “adult”
     indeterminate sentencing concepts must be incorporated into
     delinquency dispositions.

          Additionally, [E.T.’s] contention is contrary to the plain
     language of Section 6353(a).

                                  * * *

           Here, Section 6353(a) establishes time limits for juvenile
     placements. However, it does not, as [E.T.] implies, mandate
     that a court specify the length of each commitment at the time
     the placement is ordered. Instead, in keeping with the purposes
     and goals of the Juvenile Act, and in recognition that the persons
     subject to delinquency dispositions are children, Section 6353(a)
     tempers its time limitation with the requirement that dispositions
     and commitments be regularly reviewed so that a commitment
     may be terminated or extended and a disposition may be
     modified as warranted to meet the ever-changing needs of the
     juvenile for whom the dispositional scheme was created. As long
     as the limitation period is not exceeded and the disposition and
     commitment are regularly reviewed, Section 6353(a) is satisfied.

          In this regard, Section 6353(a) limits an initial placement
     and any extension to “four years or a period not longer than the

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     juvenile could have been sentenced by the court if he had been
     convicted of the same offense as an adult.” By its express
     terms, this provision applies to the statutory maximum sentence
     to which an adult could be sentenced – the longest period of
     time an adult could legally spend in jail – and not, to use the
     words of the Juvenile’s attorney, the “maximum minimum
     sentence” calculated using Pennsylvania’s indeterminate
     sentencing rules and procedures. See Matter of Firster, 457
     A.2d 546 (Pa. Super. 1983).

           Since in this case [E.T.] was not committed for a period in
     excess of one year, the placement will by both law and the
     express terms of our order be reviewed within six months, long
     before the one-year limit is reached, and [E.T.] has in fact been
     in placement for less than one year, it is clear that Section
     6353(a) has not been violated. Thus, [E.T.’s] argument lacks
     merit.

           The lack of merit is even clearer when all of the cases for
     which the re-disposition hearing was convened are considered
     together. The limitation period relied on by [E.T.] applies only to
     an initial placement. However, under the clear language of
     Section 6353(a), an initial commitment may be extended or
     modified if the extension or modification is necessary to
     “effectuate the original purpose for which the order was
     entered.” Modification of a prior dispositional scheme is exactly
     what happened here.

            As discussed, the re-disposition hearing was noticed and
     convened to address all five of [E.T.’s] delinquency cases. While
     placement at Abraxas might be considered an initial commitment
     if this case were viewed alone and in [a] vacuum, this case does
     not stand alone and the dispositional scheme was not imposed in
     a vacuum. Instead, the placement about which [E.T.] complains
     was an unseverable part of a combined dispositional scheme,
     individualized for [E.T.], imposed globally in all five delinquency
     cases, just as [E.T.’s] placement at Summit Academy and
     subsequent release on probation were globally ordered and then
     reviewed together as new cases were opened over time as the
     Juvenile continued to commit [offenses] and make admissions.
     This case was simply the most recent in a string of on-going
     cases that have historically been considered and reviewed
     together, and for which combined dispositions and review
     hearing orders have been entered.         Under these facts and

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      circumstances, placement at Abraxas was not an initial or even
      an extended commitment within the meaning of Section
      6353(a). Instead, consistent with actions taken in [E.T.’s] other
      cases, placement there was a modification of a prior dispositional
      scheme that was prompted and warranted by [E.T.’s]
      commission of a new [offense]. Since our order specified that
      the modified dispositional scheme which included committing
      [E.T.] to Abraxas would be reviewed within six months as
      mandated by Section 6353(a), it is clear that we did not violate
      that statute. See also Pa. R.J.C.P. 610A.

            Additionally, and for many of the same reasons, [E.T.’s]
      contention is premature.      Even if [E.T.’s] interpretation of
      Section 6353(a) as applied to the facts and circumstances of this
      case were accepted, no violation of the statutory limitation has
      yet occurred. The proper procedural mechanism for requesting a
      release from placement to remedy or prevent a violation of
      Section 6353(a) would be to file a petition for release, at or
      before expiration of the applicable placement limitation period,
      not an anticipatory appeal from an order of disposition.

Juvenile Court Opinion, 3/23/15, at 13–17 (footnote omitted; emphasis in

original).

      Upon review, we discern no error of law in the juvenile court’s

reasoning and disposition. As set forth above, Pa.R.J.C.P. 610(B) allows for

detention of a juvenile pending a court hearing where a change of

disposition has been requested. As a result of Glen Mills Schools’ decision

not to accept E.T., E.T. was lawfully detained pending the court’s re-

disposition hearing regarding an acceptable, alternative placement.        The

record establishes that the Commonwealth had “been actively working on

getting [E.T.] into an appropriate program” during the two-month detention.

N.T., 11/19/14, at 7–9.      Moreover, as the juvenile court thoughtfully

explained, E.T. had four previous dispositions which came under review at

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the December 19, 2014 re-disposition hearing.      Thus, the juvenile court’s

order could be considered to be a modification of a prior dispositional

scheme, which took into account E.T.’s most recent admission-based

adjudication of disorderly conduct and which was imposed following a

hearing held two months after his most recent detention.       Juvenile Court

Order, 3/23/15, at 15–16.

     Even if this were an initial placement, however, E.T.’s challenge would

fail. This Court has recognized that “juvenile proceedings are not criminal

proceedings.”   In re S.A.S., 839 A.2d at 1108 (citation omitted).     In the

context of a probation disposition order, the In re S.A.S. Court opined:

     We agree with [the a]ppellant that a juvenile’s term of
     commitment may not exceed four years or the maximum term of
     imprisonment he could have received if convicted as an adult.
     See 42 Pa.C.S.A. § 6353.         We also agree that under the
     sentencing code for adult offenders, a term of probation may not
     exceed the possible maximum term of imprisonment. See 42
     Pa.C.S.A. § 9754(a). However, “juvenile proceedings are not
     criminal proceedings.” See In re R.A.[, 761 A.2d 1220, 1223
     (Pa.Super.2000)].      The Juvenile Act vests the court with
     authority to set a term of probation “under conditions and
     limitations the court prescribes,” so long as the disposition is
     consistent with the protection of the public interest and best
     suited to the child’s treatment, supervision, rehabilitation, and
     welfare.    See 42 Pa.C.S.A. § 6352(a)(2).         The probation
     limitations set forth in the crimes code are simply inapposite to
     the Juvenile Act; the two statutes encompass independently
     different systems with different purposes and rules. In contrast
     to the general adult sentencing code, the Juvenile Act empowers
     juvenile courts with wide latitude to render probationary terms
     that are appropriate to the individual circumstances of the child’s
     case.

Id. at 1109. Ultimately, the In re S.A.S. Court held as follows:



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      [T]he juvenile court had the authority under the Juvenile Act to
      impose upon [the a]ppellant a period of probation that exceeded
      the maximum possible term of incarceration for the particular
      offense at issue and [the a]ppellant’s disposition is not illegal.
      Nevertheless, [the a]ppellant’s term of probation is still limited
      by the jurisdictional constraints of the Juvenile Act. See 42
      Pa.C.S.A. §§ 6302, 6303.        Moreover, given the quasi-open
      nature of [the a]ppellant’s probation, [the a]ppellant may choose
      to petition the Juvenile Court for relief at the earliest appropriate
      time.

Id.

      Similarly, in the present context, the Juvenile Act vests the juvenile

court with authority to set a term of commitment to “an institution, youth

development center, camp, or other facility,” as long as the disposition is

“consistent with the protection of the public interest and best suited to the

child’s treatment, supervision, rehabilitation, and welfare.”     42 Pa.C.S. §

6352(a)(3).   Logically then, the confinement limitations set forth in the

Pennsylvania Sentencing Code are also “inapposite to the Juvenile Act; the

two statutes encompass independently different systems with different

purposes and rules.” In re S.A.S., 839 A.2d at 1109.

      E.T.’s second question challenges his placement in Abraxas on multiple

grounds. According to E.T., Abraxas is not the least restrictive placement,

the juvenile court failed to adequately state its reasons for the placement,

and the juvenile court violated E.T.’s due process rights by failing to consider

E.T.’s two months of detention. E.T.’s Brief at 14–17. We disagree.

      The Juvenile Act shall be interpreted and construed as to effectuate,

inter alia, the following purpose:    “Consistent with the protection of the

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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).        “The [Juvenile] 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 D.C.D., 2015 PA Super 192, ___ A.3d ___, ___ (filed Sept. 11, 2015)

(quoting In re L.A., 853 A.2d 388, 394 (Pa. Super. 2004)) (emphasis

omitted).     “[F]actual findings and credibility determinations in juvenile

proceedings are within the exclusive province of the hearing judge.” In re

B.T., 82 A.3d 431, 434 (Pa. Super. 2013) (citation omitted).

       In its opinion to this Court, the juvenile court provided an insightful,

frank, and detailed assessment of its ruling.          Juvenile Court Opinion,

3/23/15, at 17–22.1 Upon review of that opinion, the relevant statutory and

case law, and the certified record, we discern no abuse of the juvenile

court’s discretion.    E.T. came before the juvenile court in this matter with

four open delinquency cases. After release from placements in a boot camp,

an unsecure residential facility, and his home, E.T. repeatedly violated his
____________________________________________


1
  Given its length, we shall not reproduce this portion of the juvenile court’s
opinion in this memorandum.



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probation.   Aware of and having thoroughly considered E.T.’s delinquency

history and the nature of his offenses, his individual circumstances, and the

goals of the juvenile system, we agree with the juvenile court that it ordered

a placement “consistent with the protection of the public interest[,] . . . best

suited to E.T.’s treatment, supervision, rehabilitation and welfare,” which

provides “balanced attention to the protection of the community, the

imposition of accountability for offenses committed and the development of

competencies to enable [E.T.] to become a responsible and productive

member of the community.” 42 Pa.C.S. § 6352(a). Juvenile Court Opinion,

3/23/15, at 17.    Notably, E.T. did not object to the dispositional order

committing him to Glen Mills Schools, which was based on the juvenile

court’s findings that “it was contrary to the welfare of [E.T.] to remain in the

home of his mother, that reasonable efforts were made to prevent removal

of [E.T.] from his home, and that placement at Glen Mills Schools was the

least restrictive placement.” Juvenile Court Opinion, 3/23/15, at 23–24;

Adjuicatory/Dispositional Hearing Order, 11/24/14, at 1.          Thus, E.T.’s

objection to his placement at Abraxas, also a residential facility, which is for

the same reasons, appears disingenuous.          Dispositional Review Order,

12/23/14, at 1; N.T., 12/19/14, at 9.

      Additionally, as detailed in its Rule 1925(a) opinion, the juvenile court

sufficiently conveyed its reasons for the placement to E.T. and his parents

on the record. Juvenile Court Opinion, 3/23/15, at 22–25; N.T., 12/19/14,


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at 10–11. Lastly, the juvenile court was aware of and considered the delay

in E.T.’s placement caused by Glen Mills Schools rescinding its offer, the

Monroe County Juvenile Probation Department’s re-evaluation of the

situation, E.T. being re-interviewed, and solicitation of a new offer of

placement at the December 19, 2014 hearing. This review was sufficient for

purposes of satisfying the six-month review requirement of 42 Pa.C.S. §

6353(a) and Pa.R.J.C.P. 610(A)(1). Juvenile Court Opinion, 3/23/15, at 25–

27; N.T., 12/19/14, at 7-9. Consequently, E.T.’s assertion that the juvenile

court violated his due process rights by failing to consider this delay in

fashioning its disposition order is meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2015




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