In re K.K. , 957 A.2d 298 ( 2008 )

OPINION BY

FORD ELLIOTT, P.J.:

¶ 1 In these consolidated appeals, K.K. (“appellant”), a minor, challenges (1) the order entered on June 13, 2007, issuing a warrant to locate appellant and detain him in the Shuman Juvenile Detention Center (“Shuman Center”); (2) the order entered on July 12, 2007, issuing a second warrant for appellant’s apprehension and detention in Shuman Center; and (3) the July 18, 2007 order adjudicating appellant dependent pursuant to 42 Pa.C.S.A. § 6302(6), and denying appellant’s request to release the July 12, 2007 warrant. After careful review, we dismiss the appeal from the June 13, 2007 order, vacate the July 12, 2007 order, and affirm the adjudication of dependency.

¶2 The facts and procedural history may be summarized as follows. On February 6, 2007, Pittsburgh Police Officer Colby Neidig filed a juvenile dependency petition on behalf of appellant’s father, D.K. (“Father”). Father alleged that appellant was habitually disobedient and excessively truant. Father also believed that appellant experimented with drugs and alcohol. On March 5, 2007, Kids Voice was appointed guardian ad litem. On March 15, 2007, appellant appeared before a hearing officer who continued the dependency hearing until June 13, 2007. The hearing officer desired to give appellant an opportunity to comply with several conditions it incorporated into a court order, including daily school attendance, cooperation with Children Youth and Family (“CYF”), and participating in drug and alcohol assessment. Subsequently, on April 17, 2007, CYF filed a motion to advance the dependency petition to an earlier date and to transfer the case to a trial judge. CYF alleged that appellant was ungovernable in that he continued to defy Father and remained truant. On May 2, 2007, the juvenile court assumed control of the case and scheduled the dependency hearing for 8:30 a.m. on June 13, 2007.

¶ 3 Prior to the June 13, 2007 hearing, on May 14, 2007, the Allegheny County Department of Human Services (“DHS”) prepared a supplemental report documenting appellant’s excessive truancy,¹ antisocial behavior, including trespassing on school property and engaging in sex in abandoned homes, and noncompliance with his mental health therapy and Individualized Education Plan. The supplemental report also disclosed that appellant had absconded from Father’s home following notice of CYF’s motion to advance the dependency petition. On June 6, 2007, the juvenile court entered an attachment order directing appellant’s apprehension and commitment to shelter care pending further court order. Appellant was apprehended and detained briefly at a Pittsburgh police station. Pursuant to the attachment order, CYF caseworker Arlene Rice went to retrieve appellant from the police station. Appellant refused to accompany Ms. Rice into shelter care, and during the ensuing 45-minute discussion, Ms. Rice reminded appellant of the June 13, 2007 hearing and advised him to contact Kids Voice and speak with his attorney. Appellant failed to appear at the June 18, 2007 hearing; and following the hearing, the juvenile court issued a warrant directing appellant’s commitment in the Shuman Center, a secure detention facility.

¶ 4 On June 15, 2007, appellant’s guardian ad litem filed an emergency motion to vacate the June 13, 2007 warrant. The juvenile court denied the motion on June 18, 2007, observing that, based on his previous conversation with Ms. Rice, appellant received actual notice of the dependency hearing. Later, on July 2, 2007, appellant appealed the June 13, 2007 warrant, and the June 18, 2007 order denying his motion to vacate at Docket No. 1304 WDA 2007. Next, on July 5, 2007, appellant filed an application to stay the June 13, 2007 warrant pending appeal to this court. The juvenile court denied the application on July 6, 2007. Thus, the warrant remained active.

¶ 5 Thereafter, at approximately 12:46 a.m. on July 12, 2007, appellant was apprehended, and he was detained in the Shu-man Center pending a 9:00 a.m. detention hearing before the juvenile court. During the detention hearing, the juvenile court vacated the underlying contempt order because appellant promised to accompany Ms. Rice to CYF shelter care. However, later that day, appellant absconded, yet again, and the juvenile court immediately issued an attachment order and a second warrant for his contempt of court.² On July 26, 2007, appellant appealed the July 12, 2007 order issuing the second warrant at Docket No. 1376 WDA 2007.

¶ 6 Meanwhile, the underlying dependency action progressed to an evidentiary hearing on July 18, 2007. Again, appellant did not appear. The court denied appellant’s request to defer the dependency adjudication; and following the evidentiary hearing, appellant, in absentia, was adjudicated dependent. Additionally, the juvenile court denied appellant’s request to release the previously issued warrant. On July 26, 2007, appellant filed a timely appeal from the adjudication of dependency at Docket No. 1377 WDA 2007. On August 10, 2007, we consolidated the three interrelated appeals at Docket Nos. 1304 WDA 2007, 1376 WDA 2007, and 1377 WDA 2007 sua sponte.³ Appellant’s present location is unknown.

¶ 7 Appellant presents the following questions for our review:

1. Whether, during a dependency proceeding under the Juvenile Act, the juvenile court abused its discretion and erred as a matter of law in issuing an order for the arrest and confinement of a non-delinquent in a secure detention facility in violation of 42 Pa.C.S.A §§ 6327(e) and 6351(c)?

2. Whether, during a dependency proceeding under the Juvenile Act, the juvenile court abused its discretion and erred as a matter of law in holding a non-delinquent child in direct criminal contempt and issuing bench warrants for the arrest and detention of the child for failing to appear at a dependency hearing for which no proper notice, summons, subpoena or other order were ever provided as required under the Juvenile Act and the Rules of Juvenile Court Procedure?

3. Whether, during a dependency proceeding under the Juvenile Act, the juvenile court violated the due process rights of a non-delinquent child who was held in direct criminal contempt, arrested and ordered to be detained in a secure detention facility for failing to appear at a dependency hearing for which no proper notice, summons, subpoena or other order were ever provided as required under the Juvenile Act, the Rules of Juvenile Court Procedure, and the state and federal constitutions?

Appellant’s brief at 5.⁴

¶8 Our scope and standard of review in dependency cases is well settled:

[W]e must accept the facts as found by the trial court unless they are not supported by the record. Although bound by the facts, we are not bound by the trial court’s inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court’s determination as opposed to the findings of fact, and must order whatever right and justice dictate. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court’s responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court’s fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In re C.M., 882 A.2d 507, 513 (Pa.Super.2005).

¶ 9 At the outset, we observe that the appeal from the juvenile court’s June 13, 2007 order issuing a warrant for appellant’s failure to appear at the hearing is moot because the juvenile court subsequently vacated that warrant upon appellant’s apprehension on July 12, 2007, and his promise to accompany Ms. Rice to shelter care. See In re D.A., 801 A.2d 614, 616 (Pa.Super.2002) (explaining that an issue is moot if, in ruling upon issue, court cannot enter order that has any legal force or effect). Similarly, to the extent appellant sought to challenge the juvenile court’s order denying his emergency motion to vacate the June 13, 2007 warrant, that issue also is moot. Id Accordingly, we dismiss Docket No. 1304 WDA 2007 as moot.

¶ 10 We emphasize that the finding of contempt that is relevant to our review of the case-at-bar relates specifically to appellant ignoring the attachment orders and absconding from CYF custody immediately after the July 12, 2007 hearing. However, appellant’s brief draws no distinction between the two contempt orders of June 13, 2007 and July 12, 2007 and their concomitant warrants. A significant portion of appellant’s argument challenges the propriety of the contempt findings because the juvenile court allegedly failed to issue proper notice, summons, or subpoena to appear at the underlying dependency hearing on June 13, 2007. However, as noted supra, appellant’s failure to appear at the prior hearing is not at issue herein because the court subsequently vacated that warrant after appellant was apprehended and brought before the juvenile court on July 12, 2007. Thus, we do not review appellant’s complaints relating to allegedly improper notice of the prior hearing.

¶ 11 We also observe that appellant’s argument on appeal no longer challenges the propriety of the July 18, 2007 dependency adjudication. Accordingly, that issue has been abandoned. In re Jacobs, 936 A.2d 1156, 1167 (Pa.Super.2007) (issue waived because appellant did not address it in argument section of appellate brief). Thus, we affirm the juvenile court’s July 18, 2007 adjudication of dependency at Docket No. 1377 WDA 2007.

¶ 12 Next, we address the appealability of the July 12, 2007 order that is the basis of the remaining appeal assigned Docket No. 1376 WDA 2007, and find that the order is appealable. This court may examine appealability sua sponte because it affects our jurisdiction over the matter. In re Estate of Fritts, 906 A.2d 601, 605 (Pa.Super.2006), appeal denied, 591 Pa. 673, 916 A.2d 1103 (2007). Appeals may be taken from, ■inter alia, a final order. See Pa.R.A.P. 341. An order of contempt is final and appealable when the order contains a present finding of contempt and imposes sanctions. Genovese v. Genovese, 379 Pa.Super. 623, 550 A.2d 1021, 1022 (1988); see also Takosky v. Henning, 906 A.2d 1255, 1258 (Pa.Super.2006) (observing, unless sanctions or imprisonment is imposed, order declaring party in contempt is interlocutory and not appealable).

¶ 13 Herein, the juvenile court’s July 12, 2007 order issued the second warrant for appellant’s apprehension and detention based upon appellant’s alleged contempt of court in absconding from CYF’s physical custody prior to entering shelter care. The juvenile court not only found that appellant was in criminal contempt for failing to satisfy the purge condition by accompanying CYF to shelter care but it also issued a warrant directing his apprehension and detention at Shuman Center based upon that finding. Accordingly, the July 12, 2007 order is final and appealable. Thus, we have jurisdiction to consider the appeal assigned Docket No. 1376 WDA 2007.

¶ 14 On appeal, appellant contends that the juvenile court erred in issuing the July 12, 2007 warrant because the Pennsylvania Juvenile Act (“Juvenile Act”), 42 Pa.C.S.A. §§ 6301-6358, prohibits placing non-delinquent children in a secured detention facility. This complaint does not challenge the juvenile court’s authority to issue a warrant detaining appellant generally. Indeed, appellant concedes that the Juvenile Act authorizes the juvenile court to take custody of certain at-risk children. However, appellant asserts that the court erred in its determination of the location at which he may be detained. Appellant relies upon the Juvenile Act, prevailing public policy concerns, and the case law fashioned by a divided panel of this court in In Interest of Tasseing H., 281 Pa.Super. 400, 422 A.2d 530 (1980), for the proposition that a non-delinquent minor cannot be detained in a secured juvenile detention facility such as Shuman Center. {See appellant’s brief at 14-18.) For all of the following reasons, we agree that the juvenile court’s order violates the Juvenile Act.

¶ 15 The pertinent statutory provisions follow. Section 6325 of the Juvenile Act describes the following circumstances in which a juvenile may be detained:

A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless his detention or care is required to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because he has no parent, guardian, or custodian or other person able to provide supervision and ■ care for him and return him to the court when required, or an order for his detention or shelter care has been made by the court pursuant to this chapter.

42 Pa.C.S.A. § 6325. The act also identifies the locations an allegedly dependent juvenile may be detained.

A child alleged to be dependent may be detained or placed only in a Department of Public Welfare approved shelter care facility as stated in subsection (a)(1), (2) and (4), and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses, but may be detained in the same shelter care facilities with alleged or adjudicated delinquent children.

42 Pa.C.S.A. § 6827(e). Significantly, this provision of the Juvenile Act specifically omits subsection (a)(3) from its description of where a dependent child may be detained. Section (a)(3) relates to secured detention facilities for delinquent children. Id. In addition, section 6351(c), relating to disposition of dependent children, provides1 that “Unless a child found to be dependent is found also to be delinquent he shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children.” 42 Pa.C.S.A. § 6351(c).

¶ 16 Our review also requires an examination of this court’s analysis in Tasseing H., wherein a divided three-judge panel of this court held that a juvenile court erred in adjudicating four dependent juveniles delinquent for, inter alia, absconding from a non-secure shelter facility, and placing them in secured juvenile detention facilities. The opinion announcing the result of the court reasoned, in part, that' the Juvenile Act treats non-criminal “status offenders”⁵ as dependents rather than delinquents. Tasseing H., supra at 536-537. The opinion continued that, since section 6327(e) did not provide that allegedly dependent juveniles could be detained in a secured facility, the court erred in detaining the juveniles in Shuman Center pending dependency placement. The majority held, “under the provisions of the Juvenile Act, only an allegedly delinquent child may be detained in a detention home. Dependent children ... must be detained in a shelter care facility.” Id. at 538.

¶ 17 Although the concurring judge disagreed with the authoring judge’s characterization of the contempt at issue, he did not challenge the author’s rationale for prohibiting the allegedly dependent juveniles from being detained in secured facilities. Id. In contrast, the dissenting judge supported the juvenile court’s decision to detain the juveniles, reasoning that the juvenile court has the authority to confront habitually ungovernable juvenile status offenders for their contemptuous conduct, and if required, detain them in a secured facility. Id. at 538-539.

¶ 18 With this background in mind, we address the propriety of the juvenile court’s July 12, 2007 attachment order and warrant directing appellant’s detention in Shuman Center. In reaching its decision to detain appellant in a secured facility pending a detention hearing, the trial court reasoned that, in light of our subsequent decision in In Interest of Crawford, 860 Pa.Super. 86, 519 A.2d 978 (1987), and the 1980 amendments to the Juvenile Justice and Delinquency Prevention Act (“JJDPA”),⁶ juvenile courts are empowered to exercise discretion to detain a non-delinquent child to ensure his or her safety and uphold the orderly administration of justice. (Trial court opinion, 10/16/07 at 11.) The juvenile court also referred to other jurisdictions that have either enacted a statutory framework, ie., Virginia, or fashioned case law, ie., California, where-under a juvenile court is permitted to detain a non-delinquent juvenile. (Id. at 10-11.) Upon review of the facts in the case-at-bar, we find the juvenile court’s decision to issue a warrant for appellant’s detention was not authorized by the controlling precedent or the Juvenile Act and therefore is tantamount to legal error.

¶ 19 In Crawford, this court sought to distinguish the divided Tasseing H. court’s holding, and it presented a well-reasoned analysis justifying the juvenile court’s decision to commit a runaway juvenile to a secured detention facility. Essentially, the Crawford court reasoned that the Juvenile Act did not strip juvenile courts of their inherent powers to compel obedience to lawful orders. Id. at 979-980. The court continued that, to find that the juvenile court lacked authority to enforce its lawful order by detaining a willfully noncompli-ant, unsupervised juvenile “would render the court powerless and the procedures for achieving a ‘program of supervision, care and rehabilitation’ meaningless.” Id. at 980. The court also noted that subsequent to Tasseing H., Congress amended the JJDPA, which initially prohibited placing non-delinquent juveniles in secured facilities. As the Crawford court observed, the amendments permitted states to fashion a process for the detention of non-delinquent juveniles in circumstances where a valid court order has been violated. Id. at 981.

¶ 20 Crawford, however, is not disposi-tive of the case-at-bar. Although the court’s reasoning clearly advocates the juvenile court’s authority to detain a juvenile in a secured facility, under certain circumstances, without reference to whether the juvenile had been adjudicated delinquent, the juvenile in Crawford had previously been adjudicated delinquent. Hence, while the case is instructive of the precise question raised herein, its analysis of the relevant point is dictum.

¶ 21 In fact, appellant counters the juvenile court’s reliance upon the Crawford court’s reasoning by accurately pointing out that the Crawford analysis is dictum and noting that, unlike Congress’s amendments to the JJDPA, the Pennsylvania General Assembly never amended the Juvenile Act to specifically permit the detention of non-delinquent juveniles in secured facilities. We are constrained to agree.

¶ 22 While we recognize that the amendments to the JJDPA reflected an obvious shift in public policy toward permitting the secured detention of non-delinquent juveniles, in certain limited situations, we also recognize that Pennsylvania jurisprudence still does not authorize that action. Notwithstanding the amendments to the JJDPA, our General Assembly has made it clear that juvenile status offenders are not to be detained in a secure facility. See 42 Pa.C.S.A. §§ 6327(e) and 6351(c). Moreover, unlike the other jurisdictions to which the juvenile court refers for support of its position, there is no statutory language or case law authorizing this type of detention in Pennsylvania. Furthermore, we have found no evidence of legislative intent suggesting that the General Assembly intends to amend the Juvenile Act to permit secured detention of non-delinquent juveniles, even when the juvenile fails to obey a lawful court order. Indeed, mindful that the General Assembly declined to amend the Juvenile Act following the 1980 amendment to the JJDPA or clarify its legislative intent in response to the Tasse-ing H. court’s interpretation of the relevant statutory provisions, we presume that this court’s interpretation in that case continues to align with the legislative intent underlying the Act. See Commonwealth v. Mitchell, 588 Pa. 19, 72 n. 20, 902 A.2d 430, 462 n. 20 (2006), cert. denied, — U.S. -, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007) (failure of the General Assembly to change the law which has been interpreted by courts creates presumption that interpretation was in accordance with legislative intent). Accordingly, we conclude the juvenile court lacked the authority to exercise its power of contempt by detaining a non-delinquent juvenile in a secured detention facility.

¶ 23 In reaching our conclusion, we recognize that this case illustrates the value of a system that would have permitted the juvenile court to detain appellant briefly in a secured facility until his settled placement in shelter care. Appellant is habitually disobedient and an inveterate truant who poses a danger to his own health and general welfare. Moreover, appellant repeatedly has demonstrated contempt for the very juvenile court that is attempting to protect him. Appellant’s chronic, incorrigible behavior in the underlying proceedings epitomizes the precise concerns the dissent highlighted in Tasseing H., this court considered in Crawford, and Congress addressed in amending the JJDPA to permit secure detention in certain circumstances. Nonetheless, while the juvenile courts would benefit from a measure of authority to confront contemptuous juveniles whose interest they have been charged with protecting, it is not within this court’s province to carve such an exception to the Juvenile Act’s general prohibition against the secured detention of non-delinquent juveniles.

¶ 24 Having found that the Juvenile Act does not authorize the juvenile court to order appellant’s detention in a secured facility, we vacate the juvenile court’s July 12, 2007 order issuing a warrant for appellant’s apprehension and detention in Shu-man Center.

¶25 Appeal assigned Docket No. 1304 WDA 2007 dismissed. Warrant issued July 12, 2007 vacated, and July 18, 2007 dependency adjudication affirmed.⁷ Jurisdiction relinquished.

¶ 26 Tamilia, J. flies a Concurring and Dissenting Opinion.

1 . According to the DHS Supplemental Report, appellant attended school only six days between January 2007 and April 12, 2007, and he had attended only once within the first seven days of May 2007. Significantly, appellant’s previous problems with truancy caused him to repeat the tenth grade. (Notes of testimony, 7/18/07 at 6-7.)

2 . Appellant reneged on his promise to the juvenile court and fled CYF custody because he could not be admitted into the group home of his choosing. (Notes of testimony, 7/18/07 at 3.)

3 . The juvenile court issued an order dated July 5, 2007, and filed on July 17, 2007, wherein it directed appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Rule 1925(b) order granted appellant 30 days to comply. Although the appeal assigned Docket No. 1304 WDA 2007 was the only appeal pending on the date the order was entered, appellant filed Rule 1925(b) statements on August 1, 2007 and August 7, 2007, relating to Docket Nos. 1304 WDA 2007 and 1376 WDA 2007, respectively. No Rule 1925(b) statement was filed regarding the appeal at Docket No. 1377 WDA 2007.

4 . CYF declined to adopt a position or file a brief in this appeal.

5 . "A status offense is conduct which if engaged in by an adult would not be legally prohibited.” In the Interest of R.B., 424 Pa.Super. 57, 621 A.2d 1038, 1042 n. 11 (1993).

6 . JJDPA is a federal act which funds the mandate that states implement several measures to protect juveniles.

7 . To the extent the juvenile court's July 18, 2007 disposition order referenced the now invalidated July 12, 2007 warrant, that portion of the order is stricken by implication.