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In re D.W.

Superior Court of Pennsylvania

October 1, 2019

IN THE INTEREST OF D.W., A MINOR APPEAL OF: D.W.

          Appeal 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.

          OPINION

          BOWES, J.

         Pursuant to Pa.R.A.P. 1770, D.W. seeks expedited review of out-of-home placement in a juvenile delinquency matter.[1] We grant expedited review and affirm.[2]

         On June 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.

         When 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[3] 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.

         The 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[4] 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.

         The 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.

         Ms. 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 76.

         D.W. 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.

         The 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 anyone's community.
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.

         The 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.

         While 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.

         Thereafter, 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.[5] 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 this court.

         This 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 ...


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