                             [J-12-2017] [MO: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


IN THE INTEREST OF: D.C.D., A MINOR            :   No. 34 MAP 2016
                                               :
                                               :   Appeal from the Order of the Superior
APPEAL OF: COMMONWEALTH OF                     :   Court at No. 999 MDA 2014 dated
PENNSYLVANIA                                   :   September 11, 2015 Affirming the Order
                                               :   of the York County Court of Common
                                               :   Pleas at No(s). CP-67-JV-0000720-
                                               :   2012 and CP-67-DP-0000166-2013
                                               :   dated May 12, 2014.
                                               :
                                               :   ARGUED: March 8, 2017


                                 DISSENTING OPINION


JUSTICE MUNDY                                            DECIDED: October 18, 2017
       I respectfully dissent from the Majority’s position that it is an appropriate exercise

of a juvenile court’s discretion to terminate its delinquency supervision over a juvenile in

order to circumvent an admission criterion of a treatment center. I recognize this case

involved a fact-specific determination by the juvenile court, and I have no doubt that the

court had D.C.D.’s best interests in mind. I further agree with the Majority that when

assessing whether early termination should be granted pursuant to Pa.R.J.C.P. 632, a

juvenile court must consider the three aims of balanced and restorative justice that are

referenced in the Juvenile Act’s purpose. See 42 Pa.C.S. § 6301(b)(2). Nevertheless, I

conclude the termination of delinquency supervision for the sole purpose of bypassing

the conditions of acceptance into a program amounts to reversible error.

       In its order and opinion granting early termination, the juvenile court considered

that the York County Office of Children, Youth, and Families (CYF), was the lead

agency directing D.C.D.’s placement, rather than Juvenile Probation, and “anticipated
that the agency can continue to effectively supervise his treatment and ensure he is

appropriately placed in a facility that meets his needs and continues to rehabilitate him.”

Trial Ct. Op., 5/12/14, at 9-10. Likewise, the Superior Court acknowledged termination

removed Juvenile Probation from supervising D.C.D., but noted D.C.D. would still be

supervised by the court and CYF. See In re D.C.D., 124 A.3d 736, 744 (Pa. Super.

2015), appeal granted, 134 A.3d 50 (Pa. 2016). However, in my view, wholly divesting

Juvenile Probation of its authority and duty to supervise and provide input regarding

D.C.D.’s treatment is judicial overreach. Although Juvenile Probation was not the lead

agency, it nonetheless exercised concurrent supervision of D.C.D. and opposed the

motion to terminate delinquency. Indeed, the record confirms that despite the fact that

Juvenile Probation was not the lead agency, it was closely involved in the case and

made a number of referrals to different treatment centers after it was determined that

D.C.D. continued to act out sexually while at Sarah Reed and that it was no longer an

appropriate placement. See, e.g., N.T., 5/9/14, at 45-55 (testimony of Janna Emig of

CYF); accord 42 Pa.C.S. § 6304 (defining the duties of probation officers in juvenile

matters including making recommendations to the court and supervising and assisting a

child on probation). D.C.D.’s probation officer testified regarding his opposition to early

termination as follows:

              As a juvenile probation officer, with the charges that [D.C.D.]
              has before the [c]ourt, we wouldn’t terminate jurisdiction at
              this time. I believe he needs, like Ms. Emig said, dual
              adjudication, and he needs dependency, but we have a
              couple of sex offense charges, that I don’t believe my
              department would recommend discharging the adjudication
              at this time.
Id. at 96.

       It is clear that under the Juvenile Act, an adjudication of delinquency requires the

juvenile court to determine both that the child has committed a delinquent act and that



                              [J-12-2017] [MO: Baer, J.] - 2
the child is in need of treatment, supervision, or rehabilitation. Commonwealth v. M.W.,

39 A.3d 958, 966 (Pa. 2012). Despite the authority of a juvenile court to terminate

supervision early, under Pa.R.J.C.P. 632, it is my view that when a child is adjudged to

have committed delinquent acts, here indecent assault against his five-year-old sister

and harassment by communication, has continued to violate the terms of his

supervision by acting out in sexually inappropriate and dangerous ways, and has been

found to be in need of treatment, supervision, and rehabilitation, compelling reasons

exist for continued delinquency supervision of the child. Moreover, unlike the courts

below, I have serious reservations that D.C.D.’s status as a dependent child guarantees

the aims of delinquency supervision will be satisfied or monitored.            Although

dependency and delinquency may exist simultaneously, they are distinct adjudications.

             In Pennsylvania a dependent child is one who, among other
             things, is without proper parental care or control, or has been
             abandoned by his parents or is without parents. On the
             other hand, a delinquent child is one who is ten years of age
             or over who has committed an act designated a crime, other
             than murder and certain summary offenses. . . . It would be
             unrealistic in the extreme to equate a dependent child with
             one adjudicated delinquent.         A delinquent child has
             committed “a delinquent act” which is defined in the Juvenile
             Act as an “act designated a crime under the law of this
             Commonwealth, or of another state if the act occurred in that
             state, or under a Federal law, or under local ordinances.” 42
             Pa.C.S. § 6302. This must be compared with a dependent
             child who most often has committed no offense and is
             frequently a victim of the wrongdoing of someone else, or is
             suffering because of events which are completely beyond his
             control.

Matter of Welsh, 475 A.2d 123, 126–27 (Pa. Super. 1984) (footnotes omitted).
      Based on the serious offenses D.C.D. has been adjudicated delinquent of, and

the subsequent concerns about his progress with respect to personal boundaries and

appropriate behavior, I cannot agree that terminating Juvenile Probation’s supervision to




                             [J-12-2017] [MO: Baer, J.] - 3
accommodate acceptance into a treatment program, which prohibits individuals who

have active adjudications of delinquency for sexually-based delinquent acts, is

appropriate. D.C.D. should remain under Juvenile Probation’s continued supervision as

he is indisputably in need of rehabilitation, supervision, and treatment. Accordingly, I

would reverse the order of the Superior Court. I respectfully dissent.




                              [J-12-2017] [MO: Baer, J.] - 4
