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TASSEING H. v. THERESA S. (10/10/80)

filed: October 10, 1980.

IN THE INTEREST OF TASSEING H., A MINOR. APPEAL OF TASSEING H., A MINOR. COMMONWEALTH OF PENNSYLVANIA
v.
THERESA S., A MINOR, APPELLANT (AT NO. 301). IN RE GLADYS H., A MINOR, APPELLANT (AT NO. 328). IN RE JAMES S., A MINOR, APPELLANT (AT NO. 506). CHILDREN AND YOUTH SERVICES, PARTICIPATING PARTY



No. 148 April Term, 1979, No. 301 April Term, 1979, No. 328 April Term, 1979, No. 506 April Term, 1979, Appeals from the Orders of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section, Nos. J-831 of 1978, J-619 of 1978, J-148 of 1979, and J-1225 of 1978.

COUNSEL

Howard B. Elbling, Pittsburgh, for appellants at Nos. 148, 328 and 506.

George M. Janocsko, Allegheny County Sol., Pittsburgh, for Children and Youth Services, participating party at Nos. 148, 301, 328 and 506.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee at No. 301.

Price, Hester and Cavanaugh, JJ. Cavanaugh, J., files a concurring statement. Hester, J., files a dissenting opinion.

Author: Price

[ 281 Pa. Super. Page 403]

These appeals arise from the orders of the court of common pleas adjudicating four juveniles delinquent on the basis of acts found to be in contempt of court orders and placing them, pending disposition, in detention facilities designed for delinquent children. We are constrained to agree with appellants' assertion that under the provisions of

[ 281 Pa. Super. Page 404]

    the Juvenile Act,*fn1 the juvenile court lacked a sufficient basis for finding them delinquent, and we therefore reverse the orders of the court of common pleas.

The history of the children involved in this appeal is illustrative of a frustrating problem faced by juvenile judges concerning the means to effectuate placement planning for dependent children*fn2 who openly defy the court by refusing to be available for psychological testing necessary to determine appropriate placement or absconding from non-secure facilities in which they have been placed by order of the court. Tasseing, one of the juvenile appellants herein, was admitted to McIntyre Shelter*fn3 in the City of Pittsburgh by police officers following her refusal to return to her mother's home, from which she had run away two months prior to her apprehension. A dependency petition was filed by child youth services charging her with being a runaway and

[ 281 Pa. Super. Page 405]

    incorrigible, and she was held at the shelter pending a hearing. Several days later, Tasseing ran away from the shelter, and when she failed to appear at the hearing scheduled in June of 1978, an attachment was issued for her arrest. Her whereabouts were not discovered until January of 1979, at which time a hearing was held. Judge Tamilia ordered that Tasseing be detained at Shuman Center, a secure facility designed for delinquent children, and that a delinquency petition be filed charging her with violation of a court order for running away from McIntyre Shelter. The judge further directed that an attempt be made to place Tasseing in the South Pittsburgh Day Treatment Program for delinquent children. For Tasseing to be placed in this program, it was necessary that she be committed to the Youth Development Camp at Warrendale under a delinquency adjudication and Judge Tamilia accordingly made the adjudication and commitment, but ordered that she remain at Shuman Center to be evaluated before placement. In February of 1979, Tasseing was committed to the day treatment program as a delinquent child.

Theresa, also among appellants herein, has been a ward of the court since 1962. She experienced trouble in her placement at Lutheran Children's Home and was subsequently placed in the Beaver County Children's Home. She ran away numerous times and was returned to the home, but a final episode of this behavior resulted in her apprehension and appearance before the juvenile court. A hearing was held before Judge Tamilia on January 10, 1979, and continued until February 7, 1979, to explore further placement. At the latter hearing, Theresa refused to return to the Lutheran Home or to go to the McIntyre Shelter and stated to the judge her intention to run away from wherever the court placed her. A delinquency petition was filed, upon the judge's direction, charging her with direct contempt for refusal to comply with a court order returning her to the Lutheran Home. She was placed by Judge Tamilia in Shuman Center until she later agreed to placement in a shelter facility and promised the judge that she would not

[ 281 Pa. Super. Page 406]

    run away. The court deferred disposition on the petition and she was returned to the McIntyre Shelter. Within two days, she had run away again, and an attachment was issued seeking to have her returned to the detention center with further disposition deferred until her whereabouts were known.

Gladys, the third appellant herein, is a chronic runaway and truant, who was placed in McIntyre Shelter pending a hearing on a dependency petition. At the hearing on January 31, 1979, Judge Tamilia continued the hearing to have Gladys psychologically tested, and he ordered that she remain at the shelter pending the examination. Gladys, however, absconded from the shelter on February 2, but was returned. On February 9, while on a visit home to see her child, she ran away once more and, on her subsequent return home on February 15, refused to go back to the shelter. Judge Tamilia permitted her to remain at home when she promised not to leave there and to keep an appointment made for her testing. She failed to keep either of these promises and, as a result, was returned to the McIntyre Shelter. She ran away from the shelter several more times and Judge Tamilia finally adjudicated her delinquent on a petition charging her with violation of a court order to remain at the shelter. The judge placed her in Shuman Center pending a dispositional hearing, however, pursuant to a supersedeas issued by this Court, she was released from the detention home and placed in McIntyre Shelter with her assurance that she would remain there pending placement. Within two days of her arrival at the shelter, she again ran away.

James, the fourth appellant herein, was committed to the McIntyre Shelter pending his placement at Pressley Ridge School following a dependency adjudication on a petition filed because of his continual truancy. He ran away from the shelter twice and was returned to Shuman Center after the second runaway. Upon Judge Tamilia's direction, he was charged with the delinquent act of violating the court's order committing him to the McIntyre Shelter. He remained

[ 281 Pa. Super. Page 407]

    at the detention home pending a hearing, which was held on February 7, 1979. Judge Tamilia deferred disposition of the delinquency petition in an attempt to effectuate placement pursuant to the dependency charge, and James was returned to Pressley Ridge School. He ran away again three times and was finally detained at Shuman Center. This appeal was filed challenging the orders placing him in Shuman Center pending his disposition, and subsequent to its filing, James was adjudicated delinquent and placed on probation in his parents' custody in a work and school program available only for delinquent children.

Thus, the general situation with which we are faced is as follows: appellant is brought before the court on a dependency petition; the court commits appellant to the McIntyre Shelter, a physically unrestricted facility, pending placement; and appellant subsequently runs away from the shelter; appellant is then apprehended and detained in Shuman Center, a detention home, while awaiting the filing of a delinquency petition charging contempt of court for violation of the court's commitment orders; finally, the court adjudicates appellant delinquent. We are confronted in this manner with a question of first impression in this Commonwealth-whether a child who absconds from shelter care ordered pursuant to a dependency ...


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