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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF J.T.D., A MINOR

APPEAL OF: J.T.D. :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1177 WDA 2017
Appeal from the Dispositional Order Entered June 15, 2017 In the Court of Common Pleas of McKean County Juvenile Division at

No(s): CP

- 42

- JV

- 0000025

- 2017

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 13, 2018

Appellant , J.T.D., a minor, appeals from the dispositional order 1 entered

on June 15, 2017, following his adjudication of delinquency

. We vacate the

dispositional order and adjudication of delinquency and remand for furth er
proceedings

. The Juvenile Court summarized the factual and procedural history of this

case as follows:

FACTUAL BACKGROUND

[Appellant] had been under supervision for a previous offense. While under supervision by the Juvenile Probation Office, [Appell ant] was charged with Simple Assault 18 Pa.C.S.A. §2701(a)(1). Specifically, the [c] ourt found that [Appellant]

_________________ __________ ______ ____ _______

1 “I n juvenile proceedings, the final order from which a direct appeal may be taken is the order of disposition, entered after the juvenile is adjudicated delinquent. ” Commonwealth v. S.F. , 912 A.2d 887, 888

- 889 (Pa. Super. 2006) (un necessary capitalization omitted).J

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shoved another student, pushing him to the ground, and punched him several times in the face. This offense [would be graded as] a misdemeanor of the second degree. These facts have not been appealed by [Appellant]

.

PROCEDURAL BACKGROUND

A written allegation was filed against [Appellant] on March 20, 2017. On March 28, 2017, a Petition Alleging Delinquency was filed. The adjudicatory hearing took place on May 24, 2017. An Adjudicatory Hearing Order was filed May 25, 2017 and found that [Appellant] had committed the acts alleged, translating into a simple assault, a misdemeanor of the second degree.

An Adjudicatory/Dispositional Hearing was held on June 13, 2017. This hearing was held simultaneously with [Appell a n t’s] Dispositional Review Hearing at Docket No. 106 JV 2015.

An Adjudicatory/Disposit ional Order was entered on June 15, 2017. The [c] ourt found that [Appellant] had committed the acts alleged and was in need of treatment, supervision, and rehabilitation. As part of that Order, the [c] ourt directed that [Appellant] be under the supervision of the Juvenile Probation Office for three to six months. [Appellant] was further ordered to pay $25.00 for the State Victim Fee; $10.00 for Supervision Fee; and $45.00 in restitution to the victim. The [c] ourt also directed that [Appellant] complete twenty (20) hours of community service, attend the Victim Awareness Program, and write a letter of apology to the victim. No placement was ordered.

On July 20, 2017, [Appellant] filed a Motion Nunc Pro Tun c requesting that [Appellant] be allowed to appeal. This motion was uncontested by the Commonwealth and was granted. [Appell ant] filed his appeal and a petition to appeal in forma pauperis on August 9, 2017. [ 2 ] [Appellant] filed his concise statement on August 31, 2017.

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2 The juvenile court granted Appellant’s motion for re instatement of appellate rights nunc pro tunc by order entered August 10, 2017. The order rein stated Appellant’s appeal rights and gave him thirty days from July 18, 2017 , to file an appeal. Order, 8/10/17, at 1. Appellant’s notice of appeal was fi led August 9, 2017. Thus, w e recognize that Appellant filed his notice of appealJ

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Juvenile Court Opinion, 10/5/17 , at unnumbered 1

- 2.
Appellant presents the following issue for our review :

Whether the [juvenile c ourt ] erred in finding that the Commonwealth had met its burden of proof to establish that [Appellant] was in need of treatment, supervision, or rehabilitation; and subsequently erred in adjudicating [Appellant] delinquent?

Appel lant ’ s Brief at 4.

Before we begin our analysis of Appe llant ’ s issue, we must consider

whether it is moot. The Commonwealth asserts that because Appellant has

completed all terms of the adjudication and imposed disposition, Appellant ’ s
appeal should be di smissed as moot. Commonwealth ’ s Brief at 7. The

Commonwealth maintains that the “ Termination of Court Supervision Order ”

dated December 8, 2017, released Appellant from supervision and marked the

case closed. Id. at 8

- 9. Thus, the Commonwealth contends, Appellant’s

argument on appeal that he is not in need of treatment , rehabilitation , or
supervision has become moot. Id. at 9.

_________________ __________ ______ ____ _______ prematurely. However, in similar cases we still have addressed a premature appeal when “the subsequent actions [of the] court fully ripened it.” Commonwealth v. Cooper , 27 A.3d 994, 1004 (Pa. 2011). See also Commonwealth v. Little , 879 A.2d 293, 296 n.6 (Pa. Super. 2005) ( permitting premature appeal of petition for reconsideration when order denying petition was entered between filing of notice of appeal and consideration by appellate court); Commonwealth v. Hamaker , 541 A.2d 1141, 114 2 n. 4 (Pa. Super. 1988) (permitting a premature appeal of post

trial motions and c iting Pa.R.A.P. 905 (“A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”)).J

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We first note that despite the Commonwealth ’ s characterization,

Appellant is not chall enging the disposition of treatment, rehabilitation , or
supervision. Instead, he is challenging the adjudication of delinquency, which

requires a determination that the juvenile is in need of treatment,

rehabilitation , or supervision. 3 See Commonwealth v . M.W. , 39 A.3d 958,

964 (Pa. 2012) ( b efore entering an adjudication of delinquency, “ the Juvenile

Act requires a juvenile court to find that a child has committed a delinquent

act and that the child is in need of treatment, supervision, or rehabilitation,

before the court may enter an adjudication of delinquency. ” ) (emphasis

added).

We consider the following in determining whether a case is 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.

. . . 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 Interest of N.C. , 171 A.3d 275, 279

- 280 (Pa. Super. 2017).

I f it is determined that the court e rr ed in adjudicating Appellant

delinquent, the appropriate remedy would be to reverse the adjudication

order. In that case, the c ourt would e nter an order reversing the adjudication.

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3 Appellant asserts that because the Commonwealth d id not prove beyond a reasonable doubt that Appellant was in need of treatment, supervision or rehabilitation, Appellant’s adjudication of delinquency must be overturned. Appellant’s Brief at 4, 15, 22.J

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Thus, the juvenile court can enter an order that has legal force and effect.

B ecause the court c an issu e an order having legal effect if it is deter mined

that Appellant was improperly adjudicated, we cannot agree that Appellant ’ s

issue is moot. Interest of N.C. , 171 A.3d at 280; s ee also In Interest of

Kilianek , 378 A.2d 995, 99 5 , fn ( Pa. Super. 1977) (holding that juvenile ’ s
challenge to her adjudic ation, which claimed that juvenile court improperly

adjudicated her delinquent despite not meeting the legal standard for

delinquency, was not rendered moot upon her release from out

- of

- home

placement); C

f. Interest of DelSignore , 375 A.2d 803, 807 ( Pa. Su per.
1977) (deciding juvenile ’ s challenge regarding sufficiency of evidence to

support adjudication, but holding objection to placement was rendered moot

upon her release from the placement); R.D

. , 44 A.3d at 679

– 6 80 (deciding

issues relating to adjudicati on, but holding that juvenile ’ s challenge to his

disposition was rendered moot upon his release from the delinquency

placement). Accordingly, we address the merits of Appellant ’ s claim.

Our standard of review of dispositional orders in juvenile proceedings is

well settled :
The Juvenile Act grants broad discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a manifest abuse of discretion. Moreover, a petition alleging that a child is delinqu ent must be disposed of in accordance with the Juvenile Act. Dispositions which are not set forth in the Act are beyond the power of the juvenile court.

Commonwealth v. B.D.G. , 959 A.2d 362, 366

– 367 (Pa. Super. 2008)

(internal citations and quotation m arks omitted).J

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Appellant asserts that b ecause the Commonwealth did not establish that

Appellant was in need of treatment, supervisio n, or rehabilitation beyond a

reasonable doubt, the J uvenile C ourt erred in adjudicating him delinquent.

Appellant’s Brief at 4, 15. Specifically, Appellant maintains that the juvenile

court improperly utilized the “preponderance of evidence” standard of proof,

when it was required to use the “beyond a reasonable doubt” standard. Id.

at 15. Appellant contends that the juven ile court ’ s use of the incorrect

standard resulted in an improper adjudication of delinquency , which must be

overturned. Id. at 21

- 22.

Before entering an adjudication of delinquency, “ the Juvenile Act

requires a juvenile court to find that a child has c ommitted a delinquent act

and that the child is in need of treatment, supervision, or rehabilitation

. ”

M.W. , 39 A.3d at 964 (emphasis added)

. “ A determination that a child has

committed a delinquent act does not, on its own, warrant an adjudication of

de linquency. ” Id. at 966.

In In Interest of N.C. , this Court addressed the standard of proof

necessary for establishing that a juvenile is in need of treatment, supervision,

or rehabilitation for purposes of an adjudication of delinquency

. Id. at 281

.

In addressing this issue for the first time , the Court observed that the Juvenile

Act “is silent as to the standard of proof required for establishing that the

juvenile is in need of treatment, supervision, or rehabilitation.” Id. at 281.

Th is Court also no ted the absence of direction on the appropriate standard toJ

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be used in the Pennsylvania Supreme Court’s decision in M.W

. Id. at 281

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282. After considering the purpose of the Juvenile Act and interpret ing

provisions of the statute , t he C ourt stated: “ we hold that in addition to proving

beyond a reasonable doubt that a juvenile engaged in a delinquent act, the

Commonwealth also must prove beyond a reasonable doubt that the juvenile

is in need of treatment, supervision, or rehabilitation. ” Id. at 281

- 283.

Interest of N.C. was filed on September 18, 2017 , subsequent to the

Juvenile Court ’ s adjudication of delinquency in this case and prior to its

drafting of its Pa.R.A.P. 1925(a) opinion. Indeed , the J uvenile C ourt stated :

Admittedly, neither counsel nor the [c]ourt could definitely state the law regarding the Commonwealth ’ s burden of proof when demonstrating that a juvenile is in need of treatment, supervision, or rehabilitation. The Superior Court decided In Interest of N.C. September 18, 2017[,] and on ly then was there clear authority and holdings regarding the weight of the burden the Commonwealth carries in a juvenile adjudicatory/dispositional proceeding.

Juvenile Court Opinion, 10/5/17, at unnumbered 4.

Thus, the J uvenile C ourt at the time of its adjudication did not have the

benefit of the holding in Interest of N.C. The J uvenile C ourt provided the

following explanation of its holding, admittedly made under the improper

standard of proof:

This [c]ourt at the time of its decision, mistakenly, bel ieved the weight of the Commonwealth ’ s burden to establish that a juvenile was in need of treatment, supervision, or rehabilitation to be one of preponderance of the evidence. The Commonwealth also presented very little evidence of [Appellant’s] need for treatment, supervision, and rehabilitation to the [c] ourt at the time of [Appellant’s] adjudicatory/dispositional hearing.J

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- At the adjudicatory/dispositional hearing, the Commonwealth did not provide an overwhelming case to determine [Appellant] was in need of treatment, rehabilitation, or supervision. In fact, the Commonwealth only presented one (1) witness

- the Juvenile Probation Office assigne d to [Appellant’s]

case. Counsel for the Commonwealth rested greatly on the fact [Appellant] was found to have committed the acts and that in and of itself would be a sufficient reason for treatment, supervision, or rehabilitation. The [c] ourt has not and does not subscribe to such a view, more so after reviewing the In Interest of N.C. decision. However, the [c] ourt relied upon the following factors:

1.) [Appellant] committed the underlying offense.

2.) [Appellant] committed the underlying offense while under supervision.

3.) [Appellant’s] Youth Level of Service (YLS) score was 12 at the time of the adjudication.

4.) [Appell ant’s] YLS score had been 11 before this offense, but had increased while under supervision.

5.) The YLS score of 12 indicated that there was a moderate risk of reoffending.

6.) [Appellant] , while compliant with the conditions of Juvenile Probation, still had educational issues and was at risk of not graduating on time. This factor was particularly troubling to the [c] ourt as education is the foundation for success in life and reduces the potential for at

- risk behavior.

7.) [Appellant] did not take responsibility for what he had done and contested the facts. Again, the [c] ourt would emphasize that [Appellant] did not appeal the finding that he had assaulted a person.
8.) Based on the [c] ourt ’ s familiarity with the subject [Appellant] and his record, the [c] ourt beli eved that treatment, rehabilitation, or supervision would serve [Appellant’s] interest as well as the interests of the restorative justice principles of the Juvenile Justice System.J

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- Again, the [c] ourt did not consider these facts under the standard of reas onable doubt, but by a preponderance of the evidence, but it did make the conclusion it felt was best at the time. It is difficult to look back and retroactively impose an increased standard on the [c] ourt ’ s decision. Perhaps a different decision may hav e been reached had the [c] ourt had clear authority on what the Commonwealth ’ s burden was to prove that [Appellant] was in need of treatment, supervision, or rehabilitation. Notwithstanding, the [c]o urt believes it weighed several factors and that the record supported a finding that [A p pellant] was in need of treatment, supervision, or rehabilitation

. Juvenile Court Opinion, 10/5/17, at unnumbered 4

- 6

.
As the Juvenile C ourt acknowledges, pursuant to Interest of N.C. , the

court was required to consi der whether Appellant was in need of treatment,

supervision, or rehabilitation, utilizing the “ beyond a reasonable doubt”

standard of proof. Interest of N.C

. , 171 A.3d at 283. Because the juvenile

court admittedly used the improper standard of proof , we are constrained to

remand this matter to the juvenile court for consideration of whether Appellant

is in need of treatment, supervision, or rehabilitation, utilizing the proper

standard of proof

. Dispositional order vacated. Case remanded

. Jurisdictio n relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2017J

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