In the Interest of D.S. (Complete Opinion)

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J-S31012-11 2011 PA Super 211 IN THE SUPERIOR COURT OF PENNSYLVANIA In the Interest of: D.S., a minor Appeal of: D.S., a minor No. 1220 MDA 2010 Appeal from the Order Entered May 27, 2010 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-JV-0000325-2009 BEFORE: PANELLA, SHOGAN, and COLVILLE*, JJ. OPINION BY: PANELLA, J. Filed: October 5, 2011 Appellant, D.S., a minor, appeals from the Dispositional Order entered on May 27, 2010, by the Honorable David W. Lupas, Court of Common Pleas of Luzerne County.1 We affirm. For a recitation of the facts and procedural history of this case, we direct the reader to Judge Lupas s 1925(a) opinion. See Trial Court Opinion, 12/28/10, at 1-3 (unnumbered). On appeal, D.S. challenges the Dispositional Order entered by the trial court following several probationary violations. D.S. claims, inter alia, that a less restrictive placement would better serve his immediate mental health needs and rehabilitation. Appellant s Brief, at 2. 1 We note that although Appellant purports to appeal from an order entered July 1, 2010, this appeal properly lies from the Juvenile Division Court Order entered May 27, 2010. We have amended the caption accordingly. *Retired Senior Judge assigned to the Superior Court. J-S31012-11 The Juvenile Act grants broad discretion to the court in disposition. In the Interest of A.D., 771 A.2d at 53 (citing 42 Pa.C.S.A. §§ 6341, 6352; In re Love, 435 Pa.Super. 555, 646 A.2d 1233 (1994)). This Court will not disturb a disposition absent a manifest abuse of discretion. Love, 646 A.2d at 1238. The purpose of the Juvenile Act is as follows: Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community. 42 Pa.C.S.A. § 6301(b)(2). This section evidences the Legislature's clear intent to protect the community while rehabilitating and reforming juvenile delinquents. In the Interest of J.C., 751 A.2d at 1181. In re L.A., 853 A.2d 388, 394 (Pa. Super. 2004). With the above standard of review in mind, we have examined the certified record, the briefs of the parties, the trial court s opinion, and the applicable law, and we find that the trial court ably addressed the issues presented on appeal. Accordingly, we affirm on the basis of the trial court s well-written memorandum opinion. See Trial Court Opinion, 12/28/10. Order affirmed. Jurisdiction relinquished. Colville, J., files a Concurring Opinion. Shogan, J., files a Dissenting Opinion. -2- J-S31012-11 2011 PA Super 211 IN THE INTEREST OF: D.S., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: D.S., A MINOR No. 1220 MDA 2010 Appeal from the Order of May 27, 2010, in the Court of Common Pleas of Luzerne County, Criminal Division at No. CP-40-JV-0000325-2009 BEFORE: PANELLA, SHOGAN and COLVILLE*, JJ. CONCURRING OPINION BY COLVILLE, J.: I join the Majority. Appellant asks this Court to consider one question regarding the propriety of his dispositional order. I agree with the Majority that the trial court s opinion adequately addresses and properly rejects Appellant s arguments; specifically, I agree that the court did consider Appellant s rehabilitative needs in fashioning the dispositional order. While the Dissent may raise valid concerns as to whether the trial court failed to adhere to several Rules of Juvenile Court Procedure, Appellant did not present any appellate issues with respect to these alleged failures. Thus, I cannot agree that Appellant is entitled to relief thereupon. *Retired Senior Judge assigned to the Superior Court. J-S31012-11 2011 PA Super 211 IN THE INTEREST OF: D.S., A MINOR : : : : : : APPEAL OF: D.S., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1220 MDA 2010 Appeal from the Order Entered May 27, 2010, Court of Common Pleas, Luzerne County, Criminal Division, at No. CP-40-JV-0000325-2009. BEFORE: PANELLA, SHOGAN and COLVILLE*, JJ. DISSENTING OPINION BY SHOGAN, J.: The Majority affirms the dispositional order in this case on the basis of the juvenile court opinion. It is undisputed that the Juvenile Act grants broad discretion to the trial courts in implementing dispositions. In re L.A., 853 A.2d 388, 394 (Pa. Super. 2004). Thus, a reviewing court will not disturb the disposition implemented by the lower court absent a manifest abuse of discretion. In re Love, 646 A.2d 1233, 1238 (Pa. Super. 1994). Despite this deferential standard of review, however, delinquency proceedings must be conducted in compliance with the Pennsylvania Rules of Juvenile Court Procedure. Pa.R.J.C.P. 100A. These rules are intended to provide for the just determination of every delinquency proceeding. Pa.R.J.C.P. 101A. After thoroughly reviewing the certified record in this case, I have significant concerns about how the juvenile court addressed this *Retired Senior Judge assigned to the Superior Court. J-S31012-11 matter and compiled the certified record, including whether it faithfully adhered to the rules. Accordingly, I am constrained to respectfully dissent. The Pennsylvania Rules of Juvenile Court Procedure establish uniform practice and procedure for courts exercising jurisdiction under the Juvenile Act and are to be construed to secure uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Pa.R.J.C.P. 101B. Rule 512 addresses dispositional hearings convened following adjudications of delinquency and provides, in part, as follows: A. Manner of hearing. The court shall conduct the dispositional hearing in an informal but orderly manner. (1) Evidence. The court shall receive any oral or written evidence which is helpful in determining disposition, including evidence that was not admissible at the adjudicatory hearing. (2) Opportunity to be heard. Before deciding disposition, the court shall give the juvenile and the victim an opportunity to be heard. * * * B. recorded. Recording. The dispositional hearing shall be * * * D. Court s findings. The court shall enter its findings and conclusions of law into the record and enter an order pursuant to Rule 515. On the record in open court, the court shall state: (1) its disposition; -2- J-S31012-11 (2) the reasons for its disposition; (3) the terms, conditions, and limitations of the disposition; and (4) home: if the juvenile is removed from the (a) the name or type of any agency or institution that shall provide care, treatment, supervision, or rehabilitation of the juvenile, and (b) its findings and conclusions of law that formed the basis of its decision consistent with 42 Pa.C.S. §§ 6301 and 6352, including why the court found that the out-ofhome placement ordered is the least restrictive type of placement that is consistent with the protection of the public and best suited to the juvenile s treatment, supervision, rehabilitation, and welfare; (5) whether any evaluations, counseling, or treatments are necessary; tests, (6) any findings necessary to ensure the stability and appropriateness of the juvenile s education, and when appropriate, the court shall appoint an educational decision maker pursuant to Rule 147; and (7) any findings necessary to identify, monitor, and address the juvenile s needs concerning health care and disability, if any, and if parental consent cannot be obtained, authorize evaluations and treatment needed. Pa.C.J.C.P. 512. -3- J-S31012-11 Rule 515 of the Rules of Juvenile Court Procedure addresses the dispositional orders to be entered following an adjudication of delinquency and a determination that the juvenile is in need of treatment, supervision, or rehabilitation. Rule 515 provides, in pertinent part, as follows: A. Generally. When the court enters a disposition after a[n] adjudication of delinquency pursuant to Rule 409(A)(2) [(i.e., a determination that the juvenile is in need of treatment, supervision or rehabilitation)], the court shall issue a written order, which provides balanced attention to the protection of the community, accountability for the offenses committed, and development of the juvenile s competencies to enable the juvenile to become a responsible and productive member of the community. The order shall include: (1) the Rule 512(D); court s findings pursuant to (2) a designation whether the case is eligible pursuant to 42 Pa.C.S. § 6307 (b)(1)(i) for limited public information; (3) a directive that the juvenile shall submit to fingerprinting and photographing by, or arranged by, the law enforcement agency that submitted the written allegation in all cases in which the juvenile has not previously been fingerprinted or photographed; (4) the date of the order; and (5) the signature and printed name of the judge entering the order. Pa.R.J.C.P. 515. Once a dispositional order is in place, Rule of Juvenile Court Procedure 612 addresses subsequent modification or revocation of probation and provides, in relevant part, as follows: -4- J-S31012-11 A. Filing. A motion to modify or revoke probation shall be filed in accordance with Rule 345 [(addressing procedures for filing and service of motions)]. * * * C. Modification. If the court modifies the dispositional order, the court shall state the grounds for the modification and shall issue a new dispositional order in accordance with Rule 515. Pa.R.J.C.P. 612. The comment to Rule 612 states: A juvenile should be afforded due process before probation can be revoked. Thus, the rules are specific with regard to the juvenile court s handling of a dispositional hearing, the subsequent order to be entered, and any subsequent modifications sought. In addition, the Pennsylvania Rules of Juvenile Court Procedure are specific with regard to the compilation of the certified record. Rule 166 addresses maintaining records in the clerk of courts, and provides, in pertinent part, as follows: A. Generally. The juvenile court file is the official court record and shall contain all court orders, court notices, docket entries, filed documents, evidence admitted into the record, and other court designated documents in each juvenile case. These records shall be maintained by the clerk of courts and shall not be taken from the custody of the clerk of courts without order of the court. B. Docket entries. The clerk of courts shall maintain a list of docket entries: a chronological list, in electronic or written form, of documents and entries in the official court record and of all proceedings in the case. The clerk of courts shall make docket entries at the time the information is made known to the clerk. C. Contents of docket entries. The docket entries shall include, at a minimum, the following information: -5- J-S31012-11 * * * (3) notations concerning all papers filed with the clerk, including all court notices, appearances, admissions, motions, orders, findings and adjudications, and dispositions, briefly showing the nature and title, if any, of each paper filed, writ issued, and motion made, and the substance of each order or disposition of the court and of the returns showing execution of process; (4) notations concerning motions made orally or orders issued orally in the courtroom when directed by the court; (5) a notation of every judicial proceeding, continuance, and disposition; * * * (7) (a) the date of receipt in the clerk s office of the order or court notice; (b) the date appearing on the order or court notice; and (c) the date and manner of service of the order or court notice; and (8) all other information required by Rule 345 [(relating to filing and service of motions)]. Pa.C.J.C.P. 166. My review of the record reflects that, although the juvenile court conducted two proceedings relevant to Appellant s conduct, including an adjudication and disposition on December 1, 2009 and a revocation of probation and disposition on May 27, 2010, the certified record is devoid of -6- J-S31012-11 necessary documents which it is incumbent upon the juvenile court to enter and record. As a point of reference, I set forth the following relevant procedural history of this case, which is reflected in the certified record. On December 1, 2009, Appellant was adjudicated delinquent on a charge of theft by unlawful taking. On that same day, the juvenile court entered an order of disposition pursuant to Rule 515, which placed Appellant on probation for an indefinite period of time. See Certified Record, Unnumbered Order dated 12/1/09, immediately preceding record item #2. On May 27, 2010, the juvenile court held another dispositional hearing due to allegations of Appellant s probation violations. at 1. See N.T., 5/27/10, However, I must observe that the record lacks any motion for modification or revocation of probation as required by Rule 612A. Moreover, there is no docket entry in the certified record indicating that such a motion had been filed, or the date on which such motion had been filed as required by Rule 166. Rather, the only indication that the May 27 hearing was held to address probation violations was a mention by the juvenile court of the allegations of probation violation at the outset of the hearing. See N.T., 5/27/10, at 2. Furthermore, the record lacks any indication of a motion for modification or revocation of probation that complied with the procedures for filing and servicing motions under Rule 345, as mandated by Rule 612A. -7- J-S31012-11 In addition to the complete lack of a motion for revocation of probation in the record or a docket entry indicating the filing of such a motion, I must also remark on the fact that, at the conclusion of the May 27 revocation hearing, the juvenile court modified the dispositional order, but failed to state the grounds for the modification as required by Rule 612C. N.T., 5/27/10, at 19. More strikingly, my review of the record reflects no written dispositional order in the certified record subsequent to the May 27 hearing imposing a new disposition that included a transfer to St. Michael s.1 Likewise, there is no notation in the docket of a dispositional order having been entered as required by Rule 166. Thus, I am left to conclude that the juvenile court abused its discretion, by failing to enter the appropriate dispositional order in accord with Rule 612 and Rule 515. This disregard for the controlling rules of juvenile court procedure is inexcusable. The juvenile court s failure to properly compose and docket appropriate orders runs afoul of the rules promulgated by our Supreme Court, which are intended to ensure the just determination of every 1 There is, appended to Appellant s brief filed with this Court, a form order titled: Juvenile Division Court Order dated May 27, 2010. This order does not appear in the certified record. Moreover, portions of the form order have not been completed. Specifically, the order does not reflect the type of hearing which precipitated the order. Also, the order does not address remanding Appellant to PA Child Care until he is transferred to St. Michael s diagnostic facility for an indefinite time as indicated by the juvenile court at the May 27, 2010 hearing. N.T., 5/27/10, at 21. According to Appellant s brief, he was ultimately taken to St. Michael s where he remained committed. The order does, however, remand Appellant to Lehigh Cty Juvenile Detention Center. This commitment was not mentioned at the hearing held on May 27, 2010. -8- J-S31012-11 delinquency proceeding. Rather than affirm the disposition of the lower court on the basis of the juvenile court s memorandum authored pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), I believe the more prudent approach for this Court would be to vacate any order of May 27, 2010, regarding Appellant s placement in secure detention and subsequent transfer to St. Michael s. I must also state my concerns with the juvenile court s handling of the wishes of Appellant s mother regarding placement of Appellant. Specifically, I believe that the juvenile court abused its discretion when it did not thoroughly address or consider the mother s misgivings about placement at St. Michael s and the mother s preference that Appellant be placed at Camp Adams. N.T., 5/27/10, at 7-8. Moreover, I cannot ignore the fact that the record does not reflect proper service of a motion to revoke probation as required under Rules 612 and 345. Thus, I am left to conclude that Appellant and his family may not have been given appropriate due process and the ability to secure vital information pertaining to placement options available. For this reason, too, I am compelled to reach the determination that the juvenile court abused its discretion in handling the revocation of probation and in directing a new dispositional order. Accordingly, I would vacate any disposition order of May 27, 2010, release Appellant from St. Michael s residential facility if he is still there, and remand this case for a -9- J-S31012-11 new disposition proceeding consistent with the Pennsylvania Juvenile Act and the Rules of Juvenile Court Procedure. - 10 -

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