from the Dispositional Order Entered July 29, 2019 In the
Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-JV-0001074-2019
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
to Pa.R.A.P. 1770, D.W. seeks expedited review of out-of-home
placement in a juvenile delinquency matter. We grant
expedited review and affirm.
12, 2019, Pittsburgh Police Officer Lucas Burdette and two
members of his tactical team were performing a proactive
patrol in the Homewood section of Pittsburgh when they
encountered then seventeen-year-old D.W. and four of his
cohorts sitting in a parked automobile smoking marijuana.
D.W. sat in the driver's seat, and all five passengers
were in conversation with a sixth person who was standing
outside of the vehicle. The police officers wore plain
clothes and operated an unmarked police vehicle. As the
officers approached the group, the individual standing
outside the car, leaned into the passenger-side window and
alerted its occupants. Officer Burdette observed the five
occupants respond to the alert by moving anxiously inside the
vehicle. Based on his training and experience, Officer
Burdette believed that the people in the car were attempting
to conceal a weapon or contraband. He initiated an
investigatory stop, detected "an overwhelming smell of
marijuana emanating from the vehicle," and observed in
plain view a backseat passenger holding a marijuana cigar.
N.T., 7/9/19, at 12.
Officer Burdette asked D.W. to step out of the car, the
officer noticed a large unnatural bulge on the right side of
D.W.'s waist. Concerned for his safety, Officer Burdette
performed a Terry pat-down frisk for weapons, which
immediately revealed a handgun that was subsequently
identified as an operable 9mm Norinco pistol. As a minor,
D.W. was ineligible to carry a concealed firearm.
police charged D.W. with firearms not to be carried without a
license and possession of firearms by a minor. Pending the
resolution of the juvenile adjudication proceedings, D.W. was
detained in the Shuman Juvenile Detention Center in
Pittsburgh. Following hearings on July 2 and 9, 2019, the
juvenile court adjudicated D.W. delinquent for committing
acts that would constitute the two violations of the Uniform
Firearms Act if committed by an adult, and determined that he
was "in need of further court supervision and/or
treatment." N.T., 7/9/19, at 63, 81.
juvenile court immediately proceeded to the dispositional
phase. Anthony Gray, the juvenile probation officer,
recommended enrolling D.W. in the Community Intensive
Supervision Program ("CISP"), an in-home program
administered by the Allegheny County Court. Id. at
64. Probation Officer Gray reasoned that CISP was appropriate
because this incident was D.W.'s first contact with the
delinquency proceedings, and he viewed the program as the
least restrictive treatment at that stage. Id. at
65. The probation officer also noted that the juvenile was an
expectant father, who will have obligations to his child.
Id. at 68-69. While Probation Officer Gray was not
certain whether D.W. received mental health treatment, Mary
Zorn, who supervised the family's involvement with
Children Youth and Family ("CYF"), subsequently
clarified that the minor did, in fact, receive treatment, but
did not complete it. Id. at 76.
Zorn also testified that the family received CYF services for
approximately one and one-half years, including assistance
with obtaining stable housing and transportation to school.
Id. at 75, 77-78. The agency closed the case nearly
one month before the juvenile delinquency hearing occurred,
which was near the date that police arrested D.W. for the
present gun charges. Ms. Zorn further explained that D.W.
received mental health treatment until his June 12, 2019
arrest and commitment in the Shuman Center. Id. at
endorsed juvenile probation's recommendation of in-home
placement with CISP. Id. at 79-80. However,
highlighting D.W.'s ability to receive needed educational
and medical services in out-of-home placement and noting the
contributions of K.J. ("Mother") to her son's
pervasive truancy and her tolerance of the juvenile's
decision to carry a handgun, the Commonwealth opposed
returning the child to the family home. Id. at
70-71, 80. In general, the Commonwealth asserted, "It
seems[D.W.] is a danger to himself as well as to
others." Id. at 81.
juvenile court deferred its final disposition as to
placement. Instead, the court ordered D.W. to undergo mental
health and substance abuse evaluations, comply with treatment
recommendations, and submit to random drug screens.
Id. Significantly, the court opined,
Theres a number of things that are going on here in regard to
[D.W.]. One, obviously he needs some [drug and alcohol]
treatment in regard to marijuana. Obviously he needs a mental
health treatment. He was in mental health. He was not
discharged from mental health treatment. That alone, coupled
with a gun charge here today that he's been adjudicated
in is a clear state[ment of the] risk in regard to
It is my understanding he has been shot, carrying a firearm.
We're just lucky someone else hadn't been shot at
this case as well.
I do not believe that he can receive what he needs at this
particular time as well as keeping the community safe with
him being in the community. Therefore, he is to be detained.
Id. at 81-82. The court recommitted D.W. to the
Shuman Center pending its final disposition.
juvenile court reconvened the disposition hearing on July 22,
2019. Probation Officer Gray testified that D.W was accepted
by two residential placement facilities: Abraxas and the
Summit Academy. N.T., 7/22/19, at 3. He added that, if
out-of-home placement is required, D.W. preferred to be
placed at Abraxas. Id. The probation officer also
presented the results of the respective mental health and
drug and alcohol evaluations that were performed while D.W.
was detained at the Shuman Center. Id. at 4. As it
relates to D.W.'s argument herein, the psychiatric
evaluation noted that the proposed referral to CISP was
"seem[ingly] a good option for this child. He can remain
home as he remains on probation." Psychiatric
Evaluation, 7/12/19, at 5. In addition, the drug and alcohol
evaluation performed by Taji Walsh of the juvenile probation
department revealed "a high probability of . . .
substance use disorder," which involves "a
progression in use, . . . loss of control, denial,
preoccupation with use, and delusional thinking."
Drug/Alcohol Assessment Results, 7/15/19, at 3. Ms. Walsh
recommended "[t]hat [D.W.] participate in an intensive
outpatient program with regular drug screens. If placement is
being sought, a program with a strong drug and alcohol
component is recommended with aftercare treatment."
Id. at 4.
Probation Officer Gray did not expressly renew his initial
recommendation for CISP during the July 22, 2019 hearing,
D.W. reiterated his preference for in-home placement through
that program. Id. at 7. At the close of the hearing,
the juvenile court held the matter in order to review the
newly-admitted reports. On July 29, 2019, the juvenile court
entered the final dispositional order directing that
"[D.W.] remain detained with permission to place in an
appropriate placement." Juvenile Court Order, 7/29/19.
D.W. filed the instant petition for expedited review of
out-of-home placement in a juvenile delinquency matter
pursuant to Pa.R.A.P. 1770. He asserts that the juvenile
court abused its discretion by ordering out-of-home placement
without complying with the technical requirements of the
applicable rules of appellate and juvenile court procedure.
Primarily, however, he complains that the juvenile court
failed to fashion an individualized disposition or explain
why it believed that out-of-home placement was the least
restrictive alternative. He further assailed the placement as
inconsistent with the considerations of public protection and
his treatment, supervision, rehabilitation, and welfare under
the particular circumstances of his case. He requests that we
vacate the dispositional order and direct the juvenile court
to commit D.W. to CISP. To our disappointment, the
Commonwealth failed to respond to the petition for expedited
review, or to any of the juvenile's subsequent filings in
Court reviews a juvenile court's dispositional order
directing out-of-home placement for an abuse of discretion.
Commonwealth v. K.M.-F, 117 A.3d 346, 350 (Pa.Super.
2015) (quoting (In the Interest of A.D., 771 A.2d
45, 53 (Pa.Super. 2001) (en banc)). It is well
settled that, "[u]nder Pennsylvania law, an abuse of
discretion occurs when the court has overridden or misapplied
the law, when its judgment is manifestly unreasonable, or
when there is insufficient evidence of record to support the
court's findings." J.M.R. v. J.M., 1 A.3d
902, 908 (Pa.Super. 2010) (citation omitted). The
K.M.-F, court reiterated, "In a juvenile
proceeding, the hearing judge sits as the finder of fact. The