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In the Interest of: T.D.

December 3, 2012

IN THE INTEREST OF: T.D., JR., A MINOR, APPEAL OF T.D., JR., A MINOR,


Appeal from the Order Entered April 16, 2012 In the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-JV-0000091-2012, CP-67-JV-0000092- 2012, CP-67-JV-0000188-2012

The opinion of the court was delivered by: Bowes, J.:

BEFORE: BOWES, SHOGAN, and PLATT,*fn1 JJ.

OPINION BY BOWES, J.:

T.D., Jr., a minor, appeals from the April 16, 2012 dispositional order entered following adjudication of his delinquency. After careful review, we vacate the order and remand for entry of a new dispositional order.

T.D. was charged at lower court docket No. 91 JV 2012 with burglary, criminal conspiracy to commit burglary, theft, and receiving stolen property, arising from the after-hours theft of video games from the Martin Library. Identical charges were filed at lower court docket No. 92 JV 2012, and involved the unauthorized entry into a private home and the theft of a cell phone, camera, tablet computer, Wii game system, nightstick, controllers, liquor and food. After considering the testimony of Brian Grimm, the director of operations at the library, Teresa Williams and her son, Zhaine Palmer, York City Police Detective Anthony Fetrow's account of his investigation and T.D.'s admissions to acts constituting theft and receiving stolen property filed at lower docket No. 188 JV 2012, the court concluded that T.D. committed the delineated delinquent acts and that he was "in need of treatment, supervision, or rehabilitation." See Pa.R.J.C.P. 408(C) and 409(A). The court proceeded to the disposition hearing.

Juvenile probation supplied a report to the court indicating that T.D.'s mother had housing and substance abuse issues but recommended that T.D. remain in her custody. Additionally, probation asked the court to continue GPS monitoring, require T.D. to complete the Weekend Daikon Alternative Program ("WAP"), attend an after-school program at Pressley Ridge and the Quantum Opportunities through the YMCA, and order a psychiatric evaluation.

T.D.'s mother advised the juvenile court that she had an abusive marriage and had allowed T.D.'s father to raise him, but, within the prior year, T.D.'s father simply left T.D. at mother's house. She acknowledged that she had a history of substance abuse and several prior incarcerations. However, she allegedly had been substance free for one year and was undergoing counseling at Edgar Square, and she asked the court for a chance to parent T.D.

The court placed T.D. on formal supervision. He was directed to complete ten weekends at the WAP Program, remain on GPS monitoring for at least thirty additional days, participate in the Quantum Opportunity Program every day after school, not commit any new delinquent acts, abstain from all drug and alcohol use, and abide by a curfew. Mother was ordered to undergo a 23 Pa.C.S. § 5329 alcohol and drug evaluation or provide a report to the court within thirty days from an existing provider indicating that she did not pose a threat of harm and what level of treatment or services she should be receiving. Id. at 61. T.D. objected to the evaluation and the juvenile court overruled the objection.*fn2 Id. at 64.

Appellant appealed and complied with the court's order that he file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The court authored its Rule 1925(a) opinion, and the matter is ripe for our review. T.D. raises one issue for our consideration:

Whether the trial court abused its discretion in applying provisions of 23 Pa.C.S. §5329 to a juvenile's parent when issuing a juvenile dispositional order pursuant to 42 Pa.C.S. §6352?

Appellant's brief at 4 (footnote omitted).

The crux of T.D.'s argument on appeal is that the trial court abused its discretion in applying the Custody Act as the basis for ordering his mother to submit to a substance abuse evaluation. T.D. contends that the Juvenile Act exclusively governs this delinquency proceeding. He asks us to vacate the trial court's order and remand the case for a new dispositional hearing.

The trial court ordered T.D.'s mother, pursuant to 23 Pa.C.S. § 5329, to either undergo a drug and alcohol evaluation or submit a report from her treating provider. Section 5329 applies to custody proceedings where a party seeking custody has been convicted of certain enumerated offenses and permits the court to order an evaluation as to whether that party poses a threat of harm to the child before making any order of custody to that parent. According to T.D.'s juvenile probation officer, mother had been convicted of one of the offenses enumerated in 23 Pa.C.S. § 5329. Juvenile Court Opinion, 5/11/12, at 4. T.D. contends, however, that § 5329 and the Custody Act generally had no application in this delinquency and disposition proceeding.

T.D. presents an issue of statutory interpretation and application, which is a question of law. "As with all questions of law, the appellate standard of review is de novo and the scope of review is plenary." Commonwealth v. Solomon, 25 A.3d 380, 387 (Pa.Super. 2011). Title 23 Pa.C.S. ยง 5321 et seq., applies to "disputes relating to child custody matters." No custody action was filed herein and there is no authorization for consolidating such an action with a delinquency adjudication. The ...


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