Com. v. JHB

• Decision Date: 12 September 2000
• Citation: 760 A.2d 27
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. J.H.B., Appellee.
• Court: Pennsylvania Superior Court

760 A.2d 27

COMMONWEALTH of Pennsylvania, Appellant, v. J.H.B., Appellee.

Superior Court of Pennsylvania.

Argued June 22, 2000.

Filed September 12, 2000.

Kelly S. Fox, Asst. Dist. Atty., Reading, for Com., appellant.

Jeanne Trivellini, Reading, for appellee.

BEFORE: CAVANAUGH, DEL SOLE and TAMILIA, JJ.

TAMILIA, J.:

¶ 1 The Commonwealth appeals from the September 3, 1999 Order of disposition which places appellee, J.H.B., under the terms of informal adjustment.

¶ 2 On February 23, 1999, J.H.B. and his juvenile companion were in possession of a BB gun. J.H.B. shot a girl in the buttocks and his companion shot another girl in the leg. Thereafter, J.H.B. was charged by juvenile petition with simple assault and sale and use of air rifles.¹ Following J.H.B.'s admission to the charges and its acceptance by the Commonwealth and the Court, a hearing was conducted for disposition purposes. The following evidence was presented at the hearing and summarized by the trial court.

J.H.B. is active with Berks County Children and Youth Services (BCCYS) for issues of parental abuse and/or neglect. He continues to receive counseling for his problems with his mother. The counseling, however, has not been successful in reunifying the family and remedying the parent-child conflicts. The BCCYS caseworker believed that the child's issues were actually dependency issues which needed to be addressed in the context of counseling.

The juvenile probation office recommended that J.H.B. live with his baseball coach and his wife instead of with his mother. The child's grandmother lives across the street from the coach so the arrangement would maintain family contact for J.H.B. The probation officer for J.H.B. also believed that the child's problems were primarily those of dependency rather than delinquency.

The Commonwealth refused to agree to a consent decree because a firearm was used in the offense and two victims were involved.

(Trial Court Opinion, Grim, J., 11/17/99, at 2.) Upon review of the evidence, and over the objection of the Commonwealth, the Court ordered the following in the form of an informal adjustment.

• J.H.B. was to reside with his baseball coach and his wife, who were granted temporary legal custody.

• J.H.B. was to continue counseling; pay costs and fees; write a letter of apology to the victim; perform community service; and associate with neither his juvenile companion nor the victims.

¶ 3 On appeal, the Commonwealth seeks a determination as to whether the trial court erred in disposing of the matter through the use of informal adjustment "after the Commonwealth invoked its statutory right to preclude the entrance of a consent decree". (Appellant's brief at 4.)

¶ 4 Appellee responds by arguing that the September 3, 1999 Order of disposition is not a final order subject to review by this Court. We disagree.

¶ 5 "In ascertaining what is a final appealable order, this Court must look beyond the technical effect of the adjudication to its practical ramifications." Grove North America v. Arrow Lift & Constr. Equip. Co., 421 Pa.Super. 12, 617 A.2d 369, 372 (1992).

¶ 6 Upon careful review of the language of the Order, we find that it disposes of J.H.B.'S case such that review by this Court is appropriate. Unlike the facts in Interest of K.B., 432 Pa.Super. 586, 639 A.2d 798 (1994), where the order in question was "temporary" in nature thus allowing the court to make a more proper determination of the juvenile's needs in the future, the Order fully disposes of J.H.B.'S case, making it final for purposes of our review. It is no less a final disposition, albeit improper, pursuant to the Juvenile Act than probation or a consent decree. Accordingly, it is proper for this Court to consider the challenges raised by the Commonwealth on appeal pertaining to the authority and discretion of the hearing judge to enter such an Order in relation to the rights of the Commonwealth.

¶ 7 The purpose of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, is as follows:

(2) Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.

42 Pa.C.S.A. § 6301, Short title and purposes of chapter (b) Purposes (2) (emphasis added).

¶ 8 "Under the [Juvenile] Act, petitions may be disposed of in three ways: by informal adjustment, 42 Pa.C.S.A. § 6323, by consent decree, 42 Pa.C.S.A. § 6340, or by hearing, 42 Pa.C.S.A. §§ 6336, 6341." In the Interest of B.P.Y., 712 A.2d 769, 770 (Pa.Super.1998). This statement of law, however, must be qualified in that informal adjustment is only available before a petition is filed or if the petition is dismissed for failure of the Commonwealth to establish the charges alleged in the petition.

¶ 9 Following the BB gun incident, J.H.B. was placed under the terms of informal adjustment. The Commonwealth argues that J.H.B. failed to abide by the terms and conditions of the informal adjustment plan and, consequently, his juvenile probation officer recommended that a delinquency petition be filed. Once the petition was filed, the Commonwealth maintains the pre-adjudicatory disposition of informal adjustment was no longer an option available to the Court.

¶ 10 Juvenile probation officer Thomas Brady testified that an intake review was performed on June 4, 1999. Informal supervision was instituted pursuant to section 6323, supra, however, within two weeks, J.H.B. had run away from home. Pursuant to the policy objectives of both the juvenile court and the district attorney's office, when a child is placed under an informal adjustment program by the probation office or court, upon violation of the conditions of that program, the policy requires that a formal petition be filed and a hearing on the merits be held subject to the requirements of the Juvenile Act, § 6334 Petition, § 6336 Conduct at hearings, § 6340 Consent decree, § 6341 Adjudication and § 6352 Disposition of a delinquent. It was Brady's recommendation that J.H.B. "be taken under the care of the Court as a delinquent boy ..." (T.T., 9/3/99, at 9) (emphasis added), which required an adjudication of delinquency pursuant to section 6341.

¶ 11 Following informal hearing and receipt of testimony from J.H.B., the victims, the probation office and the Berks County Children Service worker, the court concluded the proper disposition of the case was to impose an Order of court supervision and place J.H.B. in the custody of his school coach pursuant to the provision of the Juvenile Act governing informal adjustment.

¶ 12 The court made a finding based upon the admission of the appellee, made in open court with his mother and counsel present, that he committed the acts of simple assault and sale and use of air rifle. The probation officer recommended appellee be taken under the care of the court as a delinquent boy to reside with Ernest and Lydia Hamilton (T.T., 9/3/99, at 9). The public defender representing the child requested he be placed under informal supervision (T.T. at 10). Discussion then evolved about the utilization of a consent decree, to which the Commonwealth objected (T.T. at 11). The Commonwealth's objection to the consent decree was based upon the fact that the underlying incident involved the use of a weapon against two persons and application of the balanced approach doctrine, which is consistent with protection of the public interest. 42 Pa.C.S.A. § 6301(2).

¶ 13 Despite the Commonwealth's objection to entry of a consent decree, the court ordered supervision of J.H.B. pursuant to the informal adjustment provision of the Juvenile Act.

¶ 14 We agree with the Commonwealth. At the outset, we must acknowledge the Juvenile Act is a procedural act, which encompasses the entire statutory scope of the authority and discretion of the juvenile court to exercise jurisdiction over children as defined by the act. There are inherent powers embodied in the role and function of every judicial officer without which the exercise of the office would be hampered. These are not a substitute for or an escape from the clear statutory power and/or limitations governing judicial activity. Absent jurisdiction to act, whether constitutional or statutory, the court is without power to act, even when to do so appears to be in the child's best interest.

¶ 15 In this case, the hearing judge ignored the clearly delineated scope of his authority and discretion to create the instant disposition. However suited to the needs of the juvenile the disposition may be, the statutory scheme for the disposition selected precludes its use under the facts of this case.

¶ 16 Pursuant to the Juvenile Act, court supervision and treatment of delinquent children are divided into two categories, which may be designated pre-petition (informal) and post-petition (informal and official).² The first is governed by section 6323, Informal adjustment, which provides:

(a) General rule.—

(1) Before a petition is filed, the probation officer or other officer of the court designated by it, subject to its direction, shall, in the case of a dependent child where the jurisdiction of the court is premised upon the provisions of paragraph (1), (2), (3), (4), (5) or (7) of the definition of "dependent child" in section 6302 (relating to definitions) and if otherwise appropriate, refer the child and his parents to any public or private social agency available for assisting in the matter. Upon referral, the agency shall indicate its willingness to accept the child and shall report back to the referring officer within three months concerning the status of the referral.

(2) Similarly, the probation officer may in the case of a delinquent child, or a dependent child where the

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