J-A12010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.S., A             :   IN THE SUPERIOR COURT OF
 MINOR                                   :        PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: A.S., A MINOR                :
                                         :
                                         :
                                         :
                                         :   No. 3433 EDA 2017

          Appeal from the Dispositional Order September 22, 2017
  In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-JV-1000155-2016


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 15, 2018

      A.S. appeals from the dispositional order following her admission to an

act that would qualify as simple assault if committed by an adult, asserting

that the court abused its discretion in directing out-of-home placement. We

affirm.

      The underlying matter occurred on April 14, 2016, when police were

dispatched to Wordsworth Academy in Montgomery County, where A.S. was

a student. A.S. was alleged to be “out of control” and screaming profanities.

While being escorted back to her classroom, A.S. continued to scream and

made stabbing gestures. Once brought back to class, A.S. stabbed a staff

member in the back with a pencil. On October 6, 2016, a Montgomery County

judge adjudicated her delinquent as stated, and transferred the proceeding to

Philadelphia County for disposition due to A.S.’s residency there.
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       On December 8, 2016, A.S. was placed on probation and a disposition

review hearing was scheduled for February of 2017, which was continued due

to the unavailability of A.S.’s mother, as she was in the hospital for surgery.

An order was issued keeping A.S. on probation pending a further review

hearing on April 25, 2017, which was also postponed.

       On June 27, 2017, a review hearing was held and Appellant was ordered

for placement. The unnamed1 probation officer (“PO”) informed the court at

the beginning of the hearing that since the last listing on April 25, A.S. had

been absent from school without an excuse thirty-seven times, and late twelve

times.    He recommended individual therapy; however, the juvenile judge

asked questions about the notes submitted to the court, which indicated a

contrary course:

       THE COURT: Okay. So what are you suggesting now?

       PROBATION OFFICER: Starting her on individual therapy—

       THE COURT: Well, why doesn’t any of that appear in your notes?
       Why do your notes say that she needs to be held? Your notes say
       that the mother no longer wishes to allow her to remain in the
       house.

       PROBATION OFFICER: Yes.

       THE COURT: Your notes say that you’ve been to the house and
       noticed her disrespectful behavior.
____________________________________________


1 At an August 17, 2017, hearing the probation officer stated, “Probation
Officer Bowler for P.O. Bryant Lennon.” We will assume that PO Lennon was
the officer present at the other hearings and therefore use the designation
“he.”


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      PROBATION OFFICER: Yes.

      THE COURT: Your notes say that she refuses to show up for urine
      screens, and your notes say she’s completely out of control.

      PROBATION OFFICER: Yes.

      THE COURT: Okay.

      PROBATION OFFICER: And speaking with her lawyer to see if we
      could come up with a possible plan for her rather than possibly
      her being held.

      THE COURT: Well, is the lawyer taking her home?

      PROBATION OFFICER: No.

      THE COURT: Okay. Well, then if the mother tells you she’s not
      welcome home, how do you do that?

N.T., 6/27/17, at 4-5.

      The PO did not respond as Appellant’s counsel interjected at that point.

Counsel requested services with home placement, arguing “I think there are

services that we haven’t tried . . . that should be tried before going straight

to holding her.” Id. at 7. The judge replied, “I’m not going straight to holding

her. This is like [the] fourth time she’s been in my courtroom. . . . She’s had

multiple cases. I’ve been supervising her for almost a year now. You don’t

get supervised five or six times and then come in and break every rule.” Id.

The judge ordered that Appellant be held at the Juvenile Justice Services

Center, and also ordered a behavioral examination and the preparation of a

placement plan. A.S.’s mother was not present at the hearing.




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       At this juncture, we note that the court had some prior history with A.S.

as she had, in October 2015, admitted in Philadelphia County to simple assault

and conspiracy before the Honorable Abram Reynolds, who adjudicated her

delinquent and ordered probation. Judge Reynolds subsequently retired and

the juvenile judge apparently assumed control of the case, as A.S. appeared

in his courtroom on October 17, 2016.2

       We now set forth the subsequent history regarding Appellant’s

placement. On July 14, 2017, a hearing was held wherein the PO informed

the juvenile court that Summit Academy rejected Appellant due to her history

and assaultive behavior, while Abraxas did not have any open spots. The PO

noted that the behavioral health examination (“BHE”) report prepared by the

psychiatrist recommended providing community-based services.            The PO

informed the court that Appellant had “never been on any other services, she’s

pretty much just been on probation, she never went through individual

therapy[.]” N.T., 7/14/17, at 4. The judge disagreed, saying, “you need to

read the report. She’s been under mental health supervision for years, DHS

has a list this long, she’s been placed[.]” Id. The PO responded that he was




____________________________________________


2 The October 17, 2016 hearing does not appear in the certified record.
However, the juvenile court’s Pa.R.A.P. 1925(a) opinion relates that the court
was advised A.S. had not committed any new offenses, which was inaccurate
since the current incident in Montgomery County preceded that hearing.



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referring only to “the delinquent side” and did not consider any prior DHS

interaction.3

       The juvenile court then asked the PO if he was aware that Appellant was

on the judge’s probation in 2015, “and she didn’t get off of that until October

of 2016. And then she almost immediately picked up this case.” The PO

conceded that he was unaware of the prior case, and the court then asked the

Commonwealth for its input.          The assistant district attorney asked for the

probation office to “continue to plan. I can’t agree to send her home today,

two violent offenses, she hasn’t been in school, there’s 37 unexcused

absences, all her grades are Ds and Fs. I would defer to Your Honor as to

where to go from here.” Id. at 5-6. Appellant’s counsel argued that Appellant

was being held solely “for disrespecting Mom,” but the judge disagreed, noting

“a laundry list” of issues. Id. at 6. The court concluded the hearing by saying,

“Give it another ten days. Find a place for her to go.” Id. at 10.

       That follow-up hearing was held on July 31, 2017. The PO stated he

had initiated referrals to two facilities as potential placements, which did not

come to fruition for various reasons.          The PO reiterated that home-based

services with GPS restrictions remained an option instead of placement. The

juvenile judge rejected that proposal and continued the matter for another

ten days.
____________________________________________


3The later BHE report states that A.S. was removed from her mother’s home
at age six; “A.S. alludes to a friend who reported the mother to DHS.” BHE,
7/11/17, at unnumbered 5. The report further states that A.S. was placed in
seven foster homes from the ages of six to thirteen.

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       The parties appeared again on August 17, 2017.         Probation Officer

Bowler informed the court that placement had yet to occur, but indicated that

Appellant was on a waiting list for a facility that may or may not have accepted

her.   Services at home were again mentioned, and Appellant’s mother

implored the court to let A.S. go home. The judge stated that Appellant had

several chances, and, due to the lack of any firm plan, he committed Appellant

to MAYS Western PA Child Care.

       Appellant filed a motion to reconsider placement, with a hearing held on

September 22, 2017. Consistent with its earlier position, the Commonwealth

recommended no change. “She had 37 unexcused absences and Mom was

fed up with her behavior. And that’s why the P.O. was recommending to plan

for placement. So I believe it would be in her best interest to remain[.]” N.T.,

9/22/17, at 6. At the hearing, Appellant indicated that she was the target of

a potential assault in the facility, and her mother stated that Appellant was

afraid of being sexually assaulted. Due to safety concerns, the juvenile judge

discharged Appellant from MAYS and placed her with the Department of Public

Welfare. This timely appeal followed, and Appellant raises the following issue

for our review:

       The lower court abused its discretion and violated the purposes of
       the juvenile act by committing appellant, A.S., a juvenile, to
       secure placement with the state when that was not the least
       restrictive intervention needed to rehabilitate, supervise, and
       treat her

Appellant’s brief at 3.



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     Our standard of review of dispositional orders in juvenile proceedings is

well-settled. The Juvenile Act grants juvenile courts broad discretion when

determining an appropriate disposition. In re C.A.G., 89 A.3d 704, 709

(Pa.Super. 2014). We therefore may not overturn a juvenile court’s decision

unless that discretion was manifestly abused. In re R.D., 44 A.3d 657, 664

(Pa.Super. 2012). The governing statute states:

     (a) Short title.--This chapter shall be known and may be cited
     as the “Juvenile Act.”

     (b) Purposes.--This chapter shall be interpreted and construed
     as to effectuate the following purposes:

           (1) To preserve the unity of the family whenever
           possible or to provide another alternative permanent
           family when the unity of the family cannot be
           maintained.

           (1.1) To provide for the care, protection, safety and
           wholesome mental and physical development of
           children coming within the provisions of this chapter.

           (2) 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.

           (3) To achieve the foregoing purposes in a family
           environment whenever possible, separating the child
           from parents only when necessary for his welfare,
           safety or health or in the interests of public safety, by
           doing all of the following:




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                  (i) employing evidence-based practices
                  whenever possible and, in the case of a
                  delinquent child, by using the least
                  restrictive intervention that is consistent
                  with the protection of the community, the
                  imposition of accountability for offenses
                  committed      and     the   rehabilitation,
                  supervision and treatment needs of the
                  child; and

                         (ii) imposing confinement
                         only if necessary and for the
                         minimum amount of time that
                         is    consistent    with  the
                         purposes under paragraphs
                         (1), (1.1) and (2).

            (4) To provide means through which the provisions of
            this chapter are executed and enforced and in which
            the parties are assured a fair hearing and their
            constitutional and other legal rights recognized and
            enforced.

42 Pa.C.S. § 6301.

      Preliminarily, we note that the sole issue on appeal is the juvenile court’s

decision to reject in-home placement. Our standard of review of that decision

is for an abuse of discretion, as this Court set forth in Commonwealth v.

K.M.-F., 117 A.3d 346 (Pa.Super. 2015) (per curiam). Therein, we considered

a petition for review of out-of-home placement pursuant to Pa.R.A.P. 1770,

which permits a juvenile to petition this Court for review of an order placing a

juvenile in an out-of-home overnight placement. Like Appellant, the juvenile

therein asserted that the court abused its discretion “by ordering out-of-home

placement because the decision was against the weight of the evidence

presented at the hearing.” Id. at 350. We applied an abuse of discretion

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standard to the placement decision. Id. Our decision noted that the weight

to be assigned to testimony of the witnesses was within the exclusive province

of the judge as fact-finder. Id. at 351. We concluded:

      The record demonstrates that the court heard testimony from a
      number of witnesses on behalf of the victim 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.

Id. at 352.

      With those principles in mind, we now examine Appellant’s claim. As a

prefatory matter, we note that Appellant largely treats the three separate

placement decisions together. As we have set forth, the juvenile court initially

placed Appellant on June 27, 2017, which we view as the first placement

decision. That placement involved directions to the probation office to find a

suitable facility. Those efforts, as we have further related, failed for various

reasons, culminating in the decision to place Appellant in MAYS, which we view

as the second decision. Finally, Appellant was later sent to another facility

following the motion to reconsider, which is the third placement decision.

      Appellant briefly suggests that the juvenile court erred with respect to

the particular facility chosen, which implicates the second and third placement

decisions.    Appellant’s brief at 18 (“The statute only authorizes courts to

commit a juvenile to an institution that is ‘best suited to the child’s treatment,



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supervision, rehabilitation, and welfare.’”) (emphasis in original). However,

her primary argument is that the initial out-of-home placement constituted an

abuse of discretion.

      The lower court initially ordered A.S. taken into custody and
      ordered the parties to plan for placement, at least in part, because
      her mother told the probation officer that she wanted A.S. placed.
      This information was revealed at a court hearing soon after A.S.’s
      mother had heart surgery and could not attend court. At every
      subsequent court hearing, A.S.’s mother was present and asking
      for A.S. to be returned home with supportive services in place.
      The probation officer and the doctor who evaluated A.S.
      recommended exactly that solution. The lower court, however,
      consistently refused to consider community based services or
      engage in a meaningful conversation about what intervention was
      best suited to meet A.S.’s needs.

            ....

      Many less restrictive interventions for this child were presented to
      the lower court, and all were refused without serious
      consideration.

Appellant’s brief at 20-21. We therefore focus on that aspect of the decision.

See K.M.-F., supra at 351 (“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.”); id. at 352 n.11 (noting that under Rule 1770(c)(1)

an objection to a specific institution is not permitted to be challenged in a

petition for review).

      We now turn to Appellant’s specific explanations for why this Court

should find that the juvenile court abused its discretion.          First, A.S.

emphasizes that her probation officer, her mother, and the psychiatrist who


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wrote the BHE report all recommended that the court release A.S. to home

for treatment in the community. Appellant acknowledges that her mother told

the probation officer that she wanted A.S. placed, but draws our attention to

the fact that her mother later testified that she changed her mind on that

point. Second, Appellant asserts that her Montgomery County treatment was

positive, and that her behavior started to deteriorate in response to life events

when she was back in Philadelphia County. Third, while Appellant did miss a

drug test, she had previously tested negative.       Taken together, Appellant

maintains that placement was an abuse of discretion, as the Juvenile Act

expresses a clear desire for preserving the family environment and separation

from parents may be done “only when necessary[.]” 42 Pa.C.S. § 6301(b)(3).

      Turning to the Commonwealth’s position, it does not oppose Appellant’s

request for a new dispositional hearing.       However, the Commonwealth’s

concession does not account for the applicable law, and its analysis studiously

avoids opining that the juvenile court abused its discretion. After setting forth

the governing law and the abuse of discretion standard, its brief concludes:

      Defendant’s probation officer and counsel recommended GPS
      monitoring until defendant could be placed on home-based
      services. While the lower court cited the BHE in imposing
      placement, the recommendations of the physician-evaluator in
      that BHE were for home-based services. Given these
      circumstances, it is not clear on the record that the dispositional
      order pursued the least restrictive intervention possible consistent
      with the protection of the community, the imposition of
      accountability for offenses committed and, most importantly, the
      rehabilitation, supervision, and treatment needs of defendant.
      Accordingly, the Commonwealth does not oppose a remand for a
      new dispositional hearing.


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Commonwealth’s brief at 17.4

       The fact that the Commonwealth does not oppose relief is not, however,

equivalent to the necessary concession that the juvenile court abused its

discretion. The closest the Commonwealth comes on that point is “it is not

clear on the record that the dispositional order pursued the least restrictive

intervention[.]” Id. However, the “least restrictive intervention” standard is

necessarily amorphous.          Logically, placement can never be “the least

restrictive” standard unless there is literally no other place for the juvenile to

go; our abuse of discretion standard permits the juvenile judge to consider

any relevant factor in making that decision. The Commonwealth’s claim that

“it is not clear” whether the judge’s decision constituted an abuse of discretion

in effect means there was no abuse of discretion, insofar as such abuses

should be plainly identifiable.

       Furthermore, with respect to the Commonwealth’s concession, we note

that the Commonwealth advocated at both the June 27, 2017 hearing and the

motion for reconsideration hearing that Appellant remain in placement. The

Commonwealth is, of course, free to change its position; unfortunately, it

offers no explanation for that decision. While we place great weight on its

input in this and all other matters, our standard of review requires this Court


____________________________________________


4 It is correct that the juvenile judge referenced the BHE at the motion to
reconsider; however, the judge was discussing the content of that report and
Appellant’s history, not the psychiatrist’s conclusion. Additionally, we note
that the BHE postdates the initial decision to place Appellant out-of-home.

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to affirm in the absence of an abuse of discretion, and the Commonwealth’s

acquiescence to relief is not equivalent to that.

      Having set forth the parties’ position, we now quote the juvenile court’s

rationale as set forth in its Pa.R.A.P. 1925(a) opinion.

      At the dispositional hearings, reviews and the hearing on
      Defendant’s Motion to Reconsider Placement, this Court
      considered the reports and recommendations of the Probation
      Department, the requests of the Defendant’s mother and the
      psychological and psychiatric evaluation, all of which satisfied the
      due process requirements of 42 Pa.C.S.A. § 6301(b)(4). In
      particular, the following should be noted:

      On June 27, 2017, this Court was advised by the Probation Officer
      that the Defendant was enrolled in the 11th Grade at Delaware
      Valley Charter High School and since the last court date of April
      25, 2017, the Defendant had acquired 37 unexcused absences and
      12 [notices of tardiness]. Defendant’s grades were Ds and Fs. The
      Court was further advised that Defendant had been very
      disrespectful to her mother, including cursing at her, Defendant
      did not follow the mother’s rules and curfew and on occasion had
      stayed outside the home overnight on multiple occasions, and she
      had not complied with the Probation Department’s rules.
      Defendant’s mother advised that her daughter was "out of control"
      and there was nothing more that the mother could do. This Court
      instructed the Probation Department to plan for placement and a
      [psychiatric evaluation] was ordered.

            ....

      The Defendant was already on probation with Judge Reynolds for
      a prior matter when she admitted to the charge of Simple Assault,
      (M-2) 18 Pa.C.S.A. § 2701(a)(1) and adjudicated delinquent by
      Judge Nicholas.

      Under Section 6352 of the Juvenile Act, upon a finding that a child
      is delinquent, the trial court has a number of possibilities for
      disposition with the proviso that the juvenile’s disposition is
      consistent with the protection of the public interest and best suited
      to the child’s treatment, supervision, rehabilitation, and welfare,


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        which disposition shall, as appropriate to the individual
        circumstances of the child’s case, provide balanced attention to
        the protection of the community, the imposition of accountability
        for offenses committed and the development of competencies to
        enable the child to become a responsible and productive member
        of the community. 42 Pa.C.S.A. § 6352(a).

        This Court has specifically provided the Probation Department an
        opportunity to place Defendant. Unfortunately, the Defendant was
        unable to be placed in an appropriate treatment facility. Defendant
        was afforded a proper dispositional hearing and the Defendant’s
        commitment was not unduly harsh. This Court had a lengthy
        dispositional hearing process as evidenced by the five (5) hearing
        transcripts. At the dispositional hearings, the Court heard
        testimony from Petitioner as well as her Probation Officer, her
        therapist via report, and her mother. The Court heard
        recommendations from the Probation Officer, and arguments from
        the Commonwealth, and defense counsel. Most importantly, it
        should be noted that the Defendant’s mother told the Probation
        Office and Court that she could not supervise or control her
        daughter. During the hearings, the Court carefully balanced the
        Defendant’s rehabilitative needs against its duties to hold
        Defendant accountable and protect the community. Accordingly,
        this Court felt that placement was in Defendant’s best interest.

Opinion, 1/11/18, at 8-11.

        After careful review of the certified record, we conclude that the juvenile

court did not abuse its discretion.       We find that the strongest point in

Appellant’s favor is that the probation officer and psychiatrist both

recommended treatment at home. With respect to the probation officer, it is

clear that the juvenile judge considered his entreaties but ultimately rejected

them.     The juvenile judge is not required to adopt wholesale the PO’s

recommendations; moreover, the PO conceded that his opinion was not fully

informed, as he admitted to the juvenile judge that he was unaware of




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Appellant’s prior juvenile system experiences and did not consider her entire

history.

      More significantly, the PO candidly admitted that he simultaneously

recommended placement due to Appellant’s mother stating placement was

needed yet continued to suggest home-based services.          The judge quite

reasonably wished to know how those two positions would work in practice.

N.T., 6/27/17, at 5 (“Well, then if the mother tells you she’s not welcome

home, how do you do that?”). Understandably, the PO wanted to keep A.S.

with her mother instead of being placed.        However, it was ultimately the

judge’s responsibility to ensure that home treatment was feasible, and we

cannot fault the juvenile court for requiring something more than optimism in

the face of A.S.’s mother telling the PO that placement was needed.

      Appellant maintains that this fact must be removed from the equation

because her mother changed her mind. However, we believe the discretion

given to the juvenile court encompasses deciding what weight to give to that

factor, and the judge adequately explained why he rejected A.S.’s mother’s

willingness to provide for Appellant at home:

      THE COURT: Here’s the deal, Mom told me at the last hearing that
      we should plan for placement which is what I’m doing. So the
      child was held, she was in custody. Mom said, look, you need to
      plan for placement, this behavior is out of control.

      [COUNSEL]: And today she is saying, I am willing to take her
      home.

      THE COURT: And that would be great if she had the services in
      place, that we might be able to let her go home or if we had any


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      information that the home is actually safe or if we had any
      information that the home had gas or if there was any information
      that she had a seat in a school that she could go to or if there was
      any information that she had a doctor’s office and a name that I
      knew she would go. However, I don’t have any of that, all I have
      is, don’t worry about it, we’ll take care of it. Well, she’s been
      under my supervision for two and a half years, they have never
      taken care of it.

      [COUNSEL]: She was doing well for a period of time, she was
      doing well on therapy, not necessarily needed, but they are now,
      and so we’re trying to get them set up.

      THE COURT: I don’t know what to tell you, you know you’re not
      allowed to miss 37 days of school. You’re her lawyer, why didn’t
      you go and have your education lawyer meet with her after she
      missed three days of school? Why didn’t Mom call you up and say,
      look, I’m having a problem? Why do you think she’s not showing
      up for drug tests?

      [COUNSEL]: I don’t know.


N.T., 7/14/17, at 7-9. The juvenile court therefore entertained the possibility

but rejected it in light of other factors, primarily the lack of any change in

circumstances.   Furthermore, we note that at the reconsideration hearing

Appellant’s counsel stated that A.S.’s mother denied telling the PO that she

wanted Appellant placed.

      THE COURT: This [placement] wasn’t done in the dark. This was
      done at the request of the mother.

      [COUNSEL]: Initially, on June 22nd.

      THE COURT: I don’t care whether it was initially or not. The fact
      of the matter was that the mother requested that the child be held
      and that the probation officer plan for placement.

      [COUNSEL]: She’s denied that to me repeatedly, but I understand
      that that is what was said to the probation officer, per the notes.


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      THE COURT: Would that be correct?

      PROBATION OFFICER: Yes, that’s what was said. So that is what
      I followed.

N.T., 9/22/17, at 12-13.

      Finally, we believe that the school absences were a permissible factor

to consider in determining whether Appellant’s mother’s willingness to accept

Appellant was a viable option. It is clear to this Court that the judge did not

start with a presumption that placement was needed, as Appellant was initially

placed on probation and was living at home following transfer from

Montgomery County. In a sixty-day period between a status hearing and the

scheduled dispositional hearing, Appellant missed thirty-seven days of school,

and was late for a dozen more. In conjunction with Appellant’s own mother

informing court personnel that the home environment was unsuitable, we

cannot find that the juvenile court abused its discretion by placing more weight

on empirical evidence in the place of optimism.

      That said, we do not doubt the sincerity of Appellant’s mother, and we

do not take lightly the separation of a mother and her child.       Appellant’s

mother plainly loves A.S., and her desire to keep the family intact is the

primary goal of the Juvenile Act. Yet A.S.’s mother informed the probation

officer that A.S. was uncontrollable during the time period immediately




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relevant to the disposition.5 Her desire to take Appellant back into the home

is completely understandable once A.S. was removed, but the juvenile judge

was required to determine if that plan was feasible and “consistent with the

protection of the community, the imposition of accountability for offenses

committed and the rehabilitation, supervision and treatment needs of the

child[.]”     42 Pa.C.S. § 6301(b)(3)(i).          To the extent the motion for

reconsideration on this point is part of our review, the absence of any change

in circumstances compels our conclusion that the judge did not abuse his

discretion.

       Disposition affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/18




____________________________________________


5 A.S.’s mother later told the probation officers that she made the comment
in order to teach A.S. that her actions had consequences, which the officer
credited. We view the acceptance or rejection of that explanation as falling
within what weight to give the explanation as a matter of credibility, which is
exclusively reserved to the fact-finder.


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