Commonwealth v. Davis

NIX, Chief Justice,

dissenting.

I do not agree that the issue raised in this appeal is the “quality” of the evidence which led the hearing court to revoke the probation and recommit the minor for further evaluation. If the action of the late Judge Knauer was properly viewed as being adjudicative in nature, I then *436 would concur with the majority view that hearsay evidence cannot sustain a finding of the minor's wrongdoing. The record does not justify the conclusion that Judge Knauer revoked the probation in response to the hearsay allegation of the minor’s assault upon his father. Rather, it appears that the court’s request for diagnostic testing at Glen Mills Diagnostic Center was in response to a determination based upon ample evidence that the home environment was not providing the support for the minor, for whatever reason, intended by the initial placement. 1

Unlike the traditional adversarial guilt-determining process, the purpose of this proceeding was to ascertain the best interest of the minor. In this setting “... the conception of the kindly judge ...,” Application of Gault, 387 U.S. 1, 13 , 87 S.Ct. 1428, 1436 , 18 L.Ed.2d 527 (1967), must be fully recognized. This approach is not only preferred because it is tailored to provide for the best interest of the juvenile, but it also is the most effective means in view of the resources available to entertain these questions. The instant case illustrates the validity of this premise.

If the hearing court’s decision had depended solely upon the truth of the hearsay assertions as to Harvey's conduct, I would have concluded, as does the majority, that Article I, Section 9 of our Constitution has been compromised. However, I do not view this to be the posture of the case. Here the juvenile had been returned to the family home upon condition that he attend school “... without absences, lateness, or suspensions, and [the court] directed his probation officer to file a motion for unsatisfactory probation should Davis have more than two unexcused absences from school.” Majority op. p. 430. This order obviously envisioned that the minor would fit within the disciplinary structure maintained within that household. It also reflected the court’s assessment that the household would *437 provide a structure for the rearing of a socially compatible individual. The father’s complaint, without regard to its validity or assigning blame to the minor, clearly reflected that the placement was not serving the intended purposes. As the social worker indicated, “I felt it the best thing ... also, the school report wasn’t good.” Majority op. p. 430.

The placement at the Glen Mills Diagnostic Center should not be viewed as a punitive response. The liberty interest of a minor cannot be equated with that of an adult. Unlike the adult, the child is subject to the appropriate and responsible directions of the parent or those standing in that position. Where that minor had previously been adjudged delinquent, as was the case here, the liberty interest is further circumscribed. The information supplied to the court amply supported the conclusion that the home placement was not providing the support and stability expected. The Center afforded the opportunity to observe the minor and to determine his needs for a more appropriate placement.

An assumption that the court’s order reflected a finding of misbehavior on the part of the minor is misplaced. The minor had been adjudicated delinquent in a prior proceeding and placed on probationary status in his home setting. A review of this initial placement established that it was not serving the intended objectives. The instant order was merely an effort to determine a more suitable placement that would serve to provide a positive environment for this minor. The hearsay statement of the father was not offered to prove improper conduct on the part of the minor but, rather, to reflect the discordant environment of the home.

I, therefore, dissent.

McDERMOTT and PAPADAKOS, JJ., join this opinion in support of reversal.

. The court's order for placement at Glen Mills Diagnostic Center should not be viewed as a revocation of probation. It is a phase in a reevaluation process to determine what would be in the best interest of this child, which determination would not necessarily exclude continued probation in another setting.