J-S55012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.S., A MINOR,               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: J.S., A MINOR,

                            Appellant                No. 2484 EDA 2013


                 Appeal from the Order Entered July 29, 2013
                In the Court of Common Pleas of Lehigh County
              Juvenile Division at No(s): CP-39-JV-0000130-2010


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                           FILED OCTOBER 15, 2014

       J.S. appeals from the order imposing involuntary civil commitment to

the inpatient Sexual Responsibility Treatment Program (“SRTP”) at Torrance

State Hospital pursuant to 42 Pa.C.S. § 6403(d).1 We affirm.

       During May 2010, a juvenile court found that J.S. committed a

delinquent act that would have been classified as involuntary deviate sexual

intercourse if committed by an adult.          He previously was adjudicated

delinquent during 2009 for committing what would have been an indecent

assault against an autistic child in his neighborhood. The 2010 adjudication

____________________________________________


1
   42 Pa.C.S. §§ 6401–6409, commonly referred to as Act 21, was enacted
effective February 10, 2004, “to provide for the assessment and civil
commitment of certain sexually violent juveniles.” In re K.A.P., 916 A.2d
1152, 1156 n.3 (Pa.Super. 2007), aff’d per curiam, 943 A.2d 262 (Pa.
2008).
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stemmed from the sexual assault that J.S. committed against his younger

half-brother, who is also autistic. The juvenile court subsequently entered a

dispositional order finding J.S. in need of treatment, supervision, and

rehabilitation, and it committed him to Cove Prep, a treatment facility for

adolescent sexual offenders.    J.S. made marginal progress over the next

three years.   The court succinctly summarized his treatment history as

follows:
            On August 4, 2010, a Review of Placement Hearing was
      held.    After hearing testimony regarding the Appellant's
      progress, including his initial difficulty in adjusting to the
      treatment facility and later signs of improvement, the Court
      maintained the Appellant's placement at Cove Prep.

            On February 10, 2011, the Court held a Review of
      Placement Hearing via teleconference with the Appellant's
      counselor at Cove Prep. Indications from the counselor were
      that the Appellant's responses to the specific sexual offender
      treatment were being overshadowed by the Appellant's
      aggressive and antisocial behaviors. Cove Prep indicated that
      the Appellant remained a high risk to commit acts of sexual and
      physical aggression. Again, the Court allowed the Appellant to
      remain at Cove Prep for additional therapeutic treatment. At the
      time of this Hearing, the Court explained the ramifications of Act
      21 [42 Pa.C.S. § 6401- et seq.] to the Appellant.

            On May 11, 2011, the Court held a Review of Placement
      Hearing. The court report submitted by Cove Prep indicated that
      the Appellant was progressing in the program and that, in short,
      his treatment was going well. The Appellant expressed some
      concern about returning to the community and the Court
      determined that the Appellant should remain at Cove Prep to
      continue his treatment.

           On November 4, 2011, the Court held a Review of
      Placement Hearing. At that time, the Court heard testimony
      from the Appellant's therapist, who indicated that the Appellant
      was making progress therapeutically, although he still struggled


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     with peer-to-peer relationships. The Appellant was ordered to
     remain at Cove Prep for additional treatment.

           On May 3, 2012, the Court held a Review of Placement
     Hearing. At that Hearing, the Court was made aware that the
     Appellant was making very little progress in his treatment and
     that the facility was attempting to "contain" the Appellant's
     behaviors as opposed to being able to engage him in actual
     treatment. Further, the Court was informed of an incident
     involving the Appellant and another client at the program where
     the two juveniles engaged in prohibited sexual contact. Due to
     the lack of progress the Appellant was making, the Court
     determined that the Appellant had failed to adjust to placement
     at Cove Prep and was committed to South Mountain Secure
     Treatment Unit [(“SMSTU”)] on May 10, 2012.

            On July 5, 2012, the Court held a Review of Placement
     Hearing for the Appellant. At that time, he admitted to engaging
     in a significant amount of grooming behaviors and had been
     isolated from the other clients of the Program as a response to
     those inappropriate behaviors, though he was still receiving
     programming.      The Court heard testimony regarding the
     Appellant's romantic interest in another client and the Appellant
     admitted to requesting inappropriate contact with that other
     resident. At the Hearing, the Appellant's counselor explained
     that the Appellant was working on social skills, sexual offending
     behaviors and coping behaviors. The therapist communicated
     that the communal goal was to help the Appellant avoid an Act
     21 commitment.

            Another Review of Placement Hearing was held on
     October 4, 2012. At the hearing, the Court heard from Brandy
     Dockey, the Appellant's treatment provider at SMSTU. She
     testified that the Appellant continued to struggle with certain
     aspects of the program, although he was beginning to learn to
     respect boundaries and progress in treatment. At that point in
     time, Ms. Dockey believed that there was much work to still be
     done and recommended that the Appellant be recommitted to
     SMSTU. The Court was also made aware that the Appellant was
     preparing for an Act 21 evaluation.

           On December 19, 2012, another Review of Placement
     Hearing was held. Representatives from SMSTU informed that
     Court that the Appellant was regressing in his treatment and

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      that he was actively choosing to disregard the facility's
      expectations of him and was being disrespectful and angry.
      Ms. Dockey explained that the Appellant was struggling in the
      program, had poor impulse control, and that he was not
      responding to the "level system" employed by the program. The
      Court continued the Appellant's placement at SMSTU.

Trial Court Opinion, 12/24/13, at 4-6 (footnote omitted).

      Soon after J.S.’s twentieth birthday, the trial court referred this case to

the Pennsylvania Sexual Offenders Assessment Board (“SOAB”) for a risk

assessment pursuant 42 Pa.C.S. § 6358. The purpose of the evaluation was

to determine J.S.’s eligibility for court-ordered involuntary treatment

pursuant to § 6403(a).        SOAB member Veronique N. Valliere, Psy.D.

performed the initial assessment based upon her review of the record,

treatment reports, and relevant documentation. She did not interview J.S.

Dr. Valliere concluded that J.S. met the statutory criteria for involuntary civil

commitment of sexually violent delinquent children.           SOAB submitted

Dr. Valliere’s sex offender assessment to the trial court on April 23, 2013.

      Upon review of Dr. Valliere’s thorough report, the trial court found

prima facie case evidence that J.S. was in need of involuntary civil

commitment. Accordingly, pursuant to § 6403(b), it directed that the Lehigh

County Solicitor file a petition for involuntary civil commitment on behalf of

Lehigh County Office of Children and Youth Services (“CYS”).          The court

directed that J.S. be made available for interview by SOAB and an expert of

his choosing.




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       Dr. Valliere conducted a clinical interview of J.S. at her office on July 2,

2013, and she issued an addendum to her April report the following day.

Dr. Valliere opined that her interview with J.S. did not alter her prior opinion

that J.S. met the statutory criteria for civil commitment of sexually violent

delinquent children. Thereafter, Frank Dattilio, Ph.D., the psychologist who

performed J.S.’s initial diagnosis and placement recommendation during the

2010 adjudication and disposition, conducted a re-evaluation and an

updated sex offender assessment. Contrary to Dr. Valliere’s assessment and

professional opinion that J.S.’s commitment for sexually violent children was

warranted, Dr. Dattilio concluded that a voluntary step-down program or its

equivalent would satisfy the best interest of J.S. and the community as

opposed to involuntary commitment.

       Following a two-day evidentiary hearing wherein the trial court

considered the evidence presented by both psychologists and Brandy

Dockey, the masters level clinician at SMSTU who was assigned to J.S., the

trial court found by clear and convincing evidence that J.S. met the criteria

necessary for involuntary civil commitment of sexually violent children, i.e.,

that J.S. has a mental abnormality or personality disorder which results in

his serious difficulty in controlling sexually violent behavior that makes him

likely to engage in acts of sexual violence. See 42 Pa.C.S. § 6403(a) and

(d).   As noted, the trial court committed J.S. to SRTP at Torrance State

Hospital for a term of one year.


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       J.S. filed a timely appeal,2 and he complied with the trial court’s order

to file a concise statement of matters complained of on appeal. He presents

the following question for our review:

       Whether the lower court’s . . . determination was against the
       weight of the evidence because it failed to give due authority to
       the credibility and reliability of [Dr. Dattilio,] who backed up his
       opinions by citation to prevailing, relevant research, made
       contact with collateral sources, conducted lengthy evaluations of
       Appellant in 2010 and in 2013, and utilized a number of reliable
       testing instruments to assist in the determination of Appellant’s
       likelihood of reoffending?

Appellant’s brief at 4.

       To prevail on a petition for involuntary civil commitment under Act 21,

the agency must prove the statutory criteria for court-ordered involuntary

treatment by clear and convincing evidence. See In re A.C., 991 A.2d 884,

893 (Pa.Super. 2010) (“Act 21 places the burden on the Commonwealth to

establish by clear and convincing evidence that the person is likely to

commit a sexually violent act before it can subject that person to a one-year

____________________________________________


2
   The notice of appeal filed on August 29, 2013 is ostensibly one day late.
The notice of appeal must be filed within thirty days after entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). However, for
purposes of computing time under the appellate rules, the date of entry of
an order is the day that the clerk of the court mails or delivers copies of the
order to the parties. See Pa.R.A.P. 108(a). Instantly, the clerk of the
juvenile court noted on the docket that it provided notice to J.S.’s counsel on
July 30, 2013. Hence, the notice of appeal filed on August 29, 2013 was
timely. See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999)
(“an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”) (citations
omitted).



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period of involuntary civil commitment[.]”); 42 Pa.C.S § 6403(d).            The

relevant statutory criteria are that the juvenile: (1) was adjudicated

delinquent for an act of sexual violence; (2) is committed to an institution or

treatment facility as result of the adjudication and remains in facility upon

attaining the age of twenty; and (3) is determined to be in need of

involuntary treatment due to a mental abnormality or personality disorder

which results in serious difficulty in controlling sexually violent behavior that

makes the person likely to engage in an act of sexual violence.          See 42

Pa.C.S. § 6403(a).

      Act 21 defines a sexually violent delinquent child (“SVDC”) as “A

person who has been found delinquent for an act of sexual violence which if

committed by an adult would be a violation of [, inter alia,] 18 Pa.C.S.

§ 3123 (relating to involuntary deviate sexual intercourse), . . . and who has

been determined to be in need of commitment for involuntary treatment

under this chapter.” 42 Pa.C.S. § 6402. A mental abnormality is defined as

“[a] congenital or acquired condition of a person affecting the person's

emotional or volitional capacity.” Id.

      J.S.’s argument on appeal implicates the third component of the

statutory criteria enumerated in § 6403(a).      He explicitly asserts that the

trial court’s determination was against the weight of the evidence. However,

in addition to that weight claim, J.S. includes a latent sufficiency of the

evidence claim that permeates his legal argument. Accordingly, we review


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the latter aspect of J.S.’s contentions at the outset, and for the following

reasons, we reject it.

       Stated succinctly, the certified record sustains the trial court’s finding

that the agency presented clear and convincing evidence to prove the

statutory criteria for involuntary civil commitment under Act 21. J.S. was a

juvenile adjudicated delinquent for an act of sexual violence and he

remained committed to a treatment facility upon attaining the age of twenty.

Hence, the first two aspects of the statutory criteria were unquestionably

satisfied.   Furthermore, J.S. does not contend that the agency failed to

establish that he has a mental abnormality or personality disorder. Indeed,

he concedes the diagnosis of a personality disorder3 and paraphilia not

otherwise specified (“NOS”) with elements of non-consent and exhibitionism.

He merely asserts that Dr. Valliere failed to establish a nexus between those

diagnoses and his likelihood of committing future acts of sexual violence.

We disagree.

       During the Act 21 hearing, Dr. Valliere was qualified as an expert in

psychology and the evaluation and treatment of sexual offenders.           N.T.,

7/19/13, at 9. She has been a member of the SOAB since 1997. Id. at 12.

She testified that she has conducted forty to fifty Act 21 assessments and

____________________________________________


3
   The experts disagreed on the type of J.S.’s personality disorder. While
Dr. Valliere diagnosed antisocial personality disorder, Dr. Dattilio ruled out
that disorder and identified paranoia and borderline personality disorder.



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that she has made both recommendations in favor of continued treatment

and recommendations against commitment as the particular cases required.

Id. at 12-13.         As it relates to J.S.’s challenge, Dr. Valliere highlighted

several risk factors regarding his likelihood to reoffend.       Specifically, she

observed the persistence of J.S.’s sexual behaviors and aggression despite

his restrictive environments at Cove Prep and SMSTU. Id. at 19. She was

particularly    concerned      about   J.S.’s   continued   grooming   of   peers

notwithstanding the level of supervision in the institutionalized setting. Id.

at 20. She noted that J.S.’s treatment regimen provided the highest level of

structure and behavioral intervention to help him redirect or manage his

urges, and that, despite these resources, he still failed to progress in terms

of self-management.        Id. at 20, 21-22.    Upon further inquiry, Dr. Valliere

explained,

      [W]hat I want to make clear to the court is there are very few
      diagnoses that motivate sexual aggression, so I focused on the
      things that were directly related to the referral issue. And in my
      opinion, . . . what motivated [J.S.’s] sexual behavior . . . and
      [his] difficulties in this residential [treatment] are twofold.

            One, I believe he has a sexually deviant interest to non-
      consensual sexual contact, and there are elements, also, of
      exhibitionism in his sexual behavior, which is exhibiting one’s
      sexual behavior, genitals, or sexually stimulating situations or
      objects to non-consenting others. Obviously, in his coercive
      sexual acts with his victims, that would be the non-consensual
      part. Not only did the victims not comply and could not comply,
      he also offended his brother when he was sleeping, at least at
      times, which is [a] nonconsensual . . . state.

               ....


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            So his ongoing behaviors, the masturbating and leaving his
      semen where people could be disgusted or shocked by it, those
      are all exhibitionistic qualities. So I believe he meets that
      [diagnosis of paraphilia with exhibitionist interests]. And that
      diagnosis can be made because his offensive behavior continued
      past the age of sixteen, which is what is required for a diagnosis
      of paraphillic arousal.

Id. at 23-25. Dr. Valliere opined that, when combined with J.S.’s antisocial

personality disorder, J.S. is burdened by a “serious difficulty in controlling

his sexually dangerous behavior.” Id. at 26.

      As it relates specifically to the assessment of J.S.’s risk to the

community, Dr. Valliere identified several factors present in J.S.’s case that

pertain to his risk of recidivism. She highlighted, “He has male victims, he

has unrelated victims, he has a history of physical violence. He had multiple

offenses. He has a prolonged period of offending, and [he] has offended in a

restrictive environment.” Id. at 27. She continued, “He has ongoing issues

with self-management.      He has . . . had very sophisticated and deviant

sexual offense fantasies that have facilitated his . . . ability to lure and take

advantage of his victims. Those are all related to recidivism.” Id. at 28

(emphasis added).

      Overall, Dr. Valliere opined that, if J.S. is not committed, there is no

guarantee that he would receive adequate supervision upon reaching the

age of majority.    Id. at 28.    She explained that, while other voluntary

treatment options exist, involuntary civil commitment is the only way to

continue to treat offenders like J.S., who have completed treatment as a


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juvenile and still pose a risk to the community due to their inability to self-

manage their condition. Id. at 29. Furthermore, as it relates to her then-

recent interview with J.S., Dr. Valliere testified that the exchange did not

reveal any concerns that altered her prior opinion regarding J.S.’s inability to

acquire the ability to self-manage prior to the expiration of the six-month

period preceding his unsupervised release into the community. Id. at 29-

33.   To the contrary, the interview confirmed her impression of “his

offending strategies and how in detail[,] . . . instrumental and gratifying the

strategies are.” Id. at 31. Dr. Valliere elucidated that she was extremely

concerned about “his offensive behavior [which included] not only the sexual

abuse of the children, but [also] the masturbating and the hostility, and the

interconnection he has between his sexual arousal and sexual behavior, and

anger and retaliation[.]”   Id.   Dr. Valliere concluded her risk-assessment

testimony by observing,

      So he’s at a place where he may be more amenable to the
      interventions, but he is not in a place where I believe he can
      manage, given the timeframe, [or] be even close to developing
      the skills to manage himself in the community. And that’s a big
      risk for him, because he is an adult, even though we’re in
      juvenile court. And I think it’s easy to forget that . . . he is a 20
      year-old man and not a 16 year[-]old juvenile at this point.

Id. at 32-33.

      In light of the foregoing evidence adduced during the Act 21 hearing,

we conclude that the certified record belies J.S.’s contention that the agency

failed to link his mental health diagnoses of paraphilia and personality


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disorder with his probability of recidivism. Contrary to J.S.’s contention, the

evidence establishes that J.S.’s mental abnormality, i.e., paraphilia as well

as his exhibitionism and aggression, results in his serious difficulty in

controlling his sexually violent behavior and makes him likely to engage in

acts of sexual violence if he is released unsupervised into the community.

Thus, this claim fails.

      Next, we address the weight of the evidence. The crux of J.S.’s weight

claim is that the trial court erred in accepting Dr. Valliere’s expert opinion

over that of Dr. Dattilio. J.S. contends that Dr. Dattilio’s opinion deserved

greater regard than Dr. Valliere’s because Dr. Dattilio interviewed him twice:

once at the outset of the case and again prior to the Act 21 hearing to

determine whether court-ordered involuntary treatment was appropriate.

J.S. emphasizes that Dr. Dattilio submitted him to a battery of mental health

tests to determine his likelihood of reoffending and interviewed collateral

sources such as J.S.’s treatment team at SMSTU, probation officer, and

mother. J.S. continues that, since Dr. Valliere interviewed him only once for

approximately one hour and failed to perform psychological testing or

interview collateral sources, Dr. Dattilio’s opinion provided a more accurate

gauge of his progress in treatment than Dr. Valliere’s opinion.             J.S.

concludes, “Dr. Valliere’s conclusions about [his] sexually violent behavior

and likelihood of reoffending were inadequate, arbitrary, and unsupported by

the facts, and pale in comparison to Dr. Dattilio’s analysis.” Appellant’s brief


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at 30.        Thus, contending that the trial court erred in relying upon Dr.

Valliere’s report and testimony in order to determine that he was an SVDC,

J.S. demands a new Act 21 hearing. For the following reasons, no relief is

due.

       We review the trial court’s determination that J.S. was an SVDC in

need     of    involuntary   commitment      for   an   abuse    of   discretion.      Cf.

Commonwealth           v.    Widmer,   744     A.2d     745,    751-752   (Pa.      2000);

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa.Super. 2011) (“We

discern no basis on which to distinguish our standard of review on weight

claims, whether challenging the weight of the evidence to support a guilty

verdict or a trial court's SVP determination”). In Ratushny, we reiterated

that, even in the context of a sexual offender assessment determination, the

appellant must level the weight of the evidence claim before the trial court in

the first instance, because as an appellate court, we will not substitute our

judgment based upon a cold record. Id. As it relates to the instant case,

we observed that “The weight to be accorded conflicting evidence is

exclusively for the fact finder, whose findings will not be disturbed on appeal

if they are supported by the record.” Id. Consequently, “[o]ne of the least

assailable reasons for granting or denying a new trial is the lower court's

conviction that the verdict was or was not against the weight of the

evidence.” Widmer, supra at 753.




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      Herein, the trial court responded to J.S.’s weight claim in its opinion

filed pursuant to Rule 1925(a).      Specifically, after outlining the relevant

evidence proffered by Dr. Valliere, Dr. Dattilio, and Ms. Dockey during the

Act 21 hearing, the trial court explained,

            After hearing the testimony presented at the Act 21
      Hearings, carefully reading the expert reports issued by
      Dr. Valliere and Dr. Dattilio, and considering arguments of
      counsel, the Court determined that the Appellant met the criteria
      outlined in 42 Pa.C.S. § 6403(a), which called for involuntary
      commitment. Both Dr. Valliere and Dr. Dattilio agreed that the
      Appellant suffers from a personality disorder (paraphilia not
      otherwise specified [(“NOS”)]), although they did not agree that
      the Appellant had anti-social personality disorder. Ms. Dockey,
      presumably the closest and most connected to the Appellant's
      actual treatment and progress, specifically acknowledged that
      she would not feel comfortable releasing the Appellant into the
      community without mandated continuing treatment.

            In addition to consideration of the evidence and testimony
      taken during the Act 21 Hearing, the Court was also able to
      watch and oversee the progression of the underlying incident
      and juvenile court case from its inception. The Court is well
      aware of the Appellant's familial support and their involvement in
      the Appellant's treatment. Ultimately, the Court believed that
      the Appellant "had run out of time" for continued treatment at
      SMSTU. The Court further determined that the Appellant suffers
      from Paraph[i]lia, a qualifying mental abnormality or personality
      disorder which results in serious difficulty in controlling sexually
      violent behavior that makes the person likely to engage in an act
      of sexual violence. The Court was persuaded by clear and
      convincing evidence that such a risk exists because the Appellant
      has failed to successfully complete the treatment program and
      could not do so with the time remaining before the Appellant's
      21st birthday. Therefore, at the conclusion of the Act 21 Hearing
      on July 23, 2013, the Court committed the Appellant to the SRTP
      at Torrance State Hospital for a period of one year.

Trial Court Opinion, 12/24/13, at 14-15 (emphasis in original).




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      Only where the facts and inferences disclose a “palpable abuse of

discretion,” will the denial of a motion for a new trial based on the weight of

the evidence be upset on appeal.       Commonwealth v. Houser, 18 A.3d

1128, 1136 (Pa. 2011). Instantly, J.S has not demonstrated that the trial

court committed a palpable abuse of discretion by rejecting his request for a

new Act 21 hearing based on the weight of the evidence.              He simply

advocates for the trial court to elevate Dr. Dattilio’s expert opinion over that

of Dr. Valliere. However, as the the trial court indicated in its Rule 1925(a)

opinion, it considered aspects of both experts as well as the expert opinion

proffered by J.S.’s treating clinician. In sum, the trial court reasoned that

both experts agreed that J.S. suffered from paraphilia, a qualifying mental

abnormality under the act, and that neither of the psychologists for the

clinician believed that J.S. was safe to release into the community without

further treatment. Significantly, the court acknowledged implicitly that due

to his age, any proposed treatment other than civil commitment under Act

21 would be voluntary and it recognized that J.S.’s treatment record to that

juncture was mediocre at best.

      It is beyond cavil that the weight of the evidence is exclusively for the

finder of fact, which is free to believe all, part, or none of the evidence. E.g.

Commonwealth v. Diamond, 83 A.3d 119, 134 (Pa. 2013) (“In more

general terms, the fact-finder is free to believe all, part, or none of the

evidence, and credibility determinations rest solely within the purview of the


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fact-finder”).   Indeed, “the weight to be ascribed to any testimony is a

determination     that   rests   exclusively    with   the   finder-of-fact.”   Id.

Accordingly, the fact finder is not required to accept any testimony, including

expert testimony, offered by either party. Id.

      Herein, the trial court accepted the expert evidence proffered by J.S.

and the agency, respectively, and based upon J.S.’s failure to make

significant progress despite nearly three years of treatment in a restrictive

environment, it resolved the issue of conflicting expert opinions regarding

J.S.’s likelihood to reoffend in the agency’s favor. As the trial court is the

arbiter of the weight to impart on an expert opinion, we will not disturb the

court’s findings herein. Since we discern no abuse of discretion by the trial

court, J.S.’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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