R.K. v. STATE, A-8837 (Alaska App. 9-28-2005)
Court of Appeals No. A-8837.Court of Appeals of Alaska.
September 28, 2005.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-03-077 DL.
Laurel Bennett, Assistant Public Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
No appearance for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
MANNHEIMER, Judge.
In January 2003, R.K. committed a series of burglaries, thefts, and criminal mischiefs (wanton destruction of property) at various homes in the Wasilla area. In July 2003, the State petitioned the superior court to declare R.K. a delinquent minor based on these crimes. Ultimately, in April 2004, R.K. admitted one count each of first-degree burglary, second-degree theft (theft of a firearm), third-degree theft, fifth-degree criminal mischief, first-degree vehicle theft, and second-degree vehicle theft.
Based on these offenses, but also based on R.K.’s previous offenses, R.K.’s earlier efforts in rehabilitative treatment, and the evaluation offered by a doctor from the Cumberland Hospital (a residential treatment hospital for adolescents where R.K. spent four months in 2003), the superior court concluded that R.K. should be institutionalized. The superior court entered a disposition order under AS 47.12.120(b)(1) — that is, an order authorizing the Department of Health and Social Services to take custody of R.K. and to place him in any appropriate youth facility, including a detention facility such as McLaughlin Youth Center.
R.K. now appeals the superior court’s disposition order. He contends that the court should not have allowed the Department to send him to McLaughlin. Instead, R.K. argues, the Department’s placement choices should have been limited to non-detention residential facilities.
Under AS 47.12.140(2), when the superior court selects the disposition in a juvenile delinquency proceeding, the court is obliged to choose the “least restrictive alternative”. That is, the court must select the disposition that, in the judgement of the court, “is no more restrictive than is . . . most conducive to the minor’s rehabilitation[,] taking into consideration the interests of the public”.
R.K. argues that the superior court failed to pursue the least restrictive alternative when the court entered a disposition order under section 120(b)(1), authorizing the Department to place R.K. in a detention facility. R.K. argues that the superior court should have entered a disposition order under section 120(b)(3) instead — that is, an order giving the Department custody of R.K., but only authorizing the Department to place R.K. in a non-detention facility such as a foster home or a group residence.
For the reasons explained here, we conclude that the superior court was justified in allowing the Department to place R.K. at a detention facility such as McLaughlin Youth Center.
R.K.’s history in the juvenile system, and the testimony presented at the disposition hearing in this case
R.K.’s involvement with the juvenile justice system began in the spring of 2000, when R.K. was thirteen years old. In May 2000, R.K. stole his mother’s vehicle, taking it for a joyride. He then falsely reported that the vehicle had been stolen by a group of unknown teenagers. Due to R.K.’s young age, these offenses (first-degree vehicle theft and giving a false report to the police) were informally adjusted.
In August 2002, R.K. stole a motorcycle and was driving the machine at a recklessly high speed. (One witness reported that R.K. was traveling at approximately 60 miles per hour in a 25-mile-per-hour zone.) Near Mile 51 of the Parks Highway, R.K. ran a stop sign and collided with a vehicle. R.K. suffered injury to the frontal lobe of his brain as a result of this collision.
A few months later, in November 2002, R.K. broke into his mother’s filing cabinet and stole her revolver and her wallet. This led to the filing of a delinquency petition in case no. 3PA-02-028 DL. Theft of a firearm is a felony (second-degree theft under AS 11.46.130(a)(2)) but, pursuant to a plea agreement, R.K. admitted only the lesser charge of third-degree theft.
In December 2002, R.K. was evaluated by a psychologist in Palmer. According to the psychologist, R.K.’s father reported that R.K. had been unruly and hard to handle since he was in sixth and seventh grade, and that this behavior had worsened since his motorcycle accident the previous August. R.K. was removed from two middle schools in the Wasilla area because of his behavior, and his parents ended up home-schooling him.
The psychologist noted that, during the previous half-year, R.K. often lost his temper, actively defied adults, deliberately annoyed other people, and blamed others for his misbehavior. R.K. also initiated fights, was physically cruel to other people, deliberately destroyed other people’s property, and lied to manipulate people and obtain the things he wanted. The psychologist suggested that R.K. was exhibiting symptoms of three childhood disorders described by the DSM (Diagnostic and Statistical Manual) IV: oppositional defiant disorder, conduct disorder, and attention-deficit/hyperactivity disorder.
R.K.’s performance on verbal and performance tests showed that his IQ was in the high 60s (i.e., moderately retarded). His performance on the “booklet category” test — a neuropsychological test of complex problem solving — was “moderately to severely deficient”. According to the psychologist, this indicated that R.K. had substantial difficulty with formulating concepts, sustaining attention, and assessing past experience. The psychologist noted “[a] moderate to severe deficit in information processing”, and a “moderate to severe level of deficit” in memory functions and executive functions.
In addition, R.K. scored in the 97th percentile on the “suicide ideation questionnaire”. That is, he frequently thought about harming himself.
The psychologist diagnosed R.K. as suffering from mild mental retardation, conduct disorder, and organic personality syndrome.
In January 2003 (that is, one month after this evaluation), R.K. committed the series of burglaries, thefts, and criminal mischiefs that we referred to in the opening paragraph of this opinion. At that time, the authorities only learned of two of these burglaries, one of the thefts, and two of the criminal mischiefs. R.K. was charged with these offenses in case no. 3PA-03-020 DL. He ultimately reached a plea bargain in which he admitted one count of burglary.
While R.K. was awaiting disposition in these two delinquency cases, he was housed at the Mat-Su Youth Facility. His behavior there was characterized by mood swings, aggression, and loss of control. R.K. also talked of suicide. Because of these behaviors, R.K. was transferred to the Alaska Psychiatric Institute at the end of February 2003. He spent a week there, and he apparently responded positively to treatment.
On March 7, 2003, the superior court held the disposition hearing in R.K.’s two pending delinquency cases (File No. 3PA-02-028 DL and File No. 3PA-03-020 DL). The superior court adjudged that R.K. was a delinquent minor, but the court placed R.K. on probation under AS 47.12.120(b)(2) — that is, the court left R.K. in the custody of his parents, with probation supervised by the Department of Health and Social Services. The plan was for R.K.’s father to place R.K. at the Cumberland Hospital in New Kent, Virginia — a facility specializing in the treatment of troubled adolescents.
R.K. went to the Cumberland Hospital in early March 2003. After R.K. had been at Cumberland for two weeks, R.K.’s father telephoned R.K.’s probation officer, Suzanne Lassiter, to tell her that R.K.’s “honeymoon period” at Cumberland had ended, and that R.K. was now showing “his true colors”. Lassiter and R.K.’s father agreed that this was perhaps a good thing, since the staff at Cumberland would now have a true picture of R.K.’s behavior and the problems he faced. During this time, R.K. threatened to sue the hospital, and he called his father to enlist his help in this effort.
In early April 2003, about one month after his arrival at Cumberland, R.K. was involved in a consensual sexual act with a younger patient.
In early July 2003, R.K.’s father called Probation Officer Lassiter to tell her that he was going to travel to Virginia to remove R.K. from the Cumberland Hospital. Both Lassiter and the Cumberland Hospital staff advised R.K.’s father against this. Lassiter also reminded R.K.’s father that R.K. would be in violation of his probation if he left the hospital without completing treatment. R.K.’s father responded that he could not afford to pay for R.K.’s continued hospitalization at Cumberland. Eventually, Lassiter agreed to let R.K. return home.
After R.K.’s return to Alaska, he and his family met once with the Kenai Juvenile Probation Office on July 31st. (R.K.’s parents had moved from Wasilla to the Kenai Peninsula.) Another meeting was scheduled for August 14th, but R.K. did not show up for this meeting, nor did he call to arrange a rescheduling.
On September 9th, R.K. called Lassiter and told her that he did not wish to live with his parents any more.
On September 29th, R.K.’s father called Lassiter to report that R.K. was refusing to go to school.
On October 21st, R.K. ran away from home. He also burglarized a residence. R.K. ultimately made his way to the Wasilla area. He reportedly experienced seizures because he stopped taking his medication and because he was using alcohol and marijuana.
After R.K. was apprehended, the State filed a new delinquency petition, case no. 3PA-03-077 DL, charging R.K. with the rest of the January 2003 crimes that had not been included in case no. 3PA-03-020 DL. In April 2004, R.K. admitted one count each of first-degree burglary, second-degree theft (theft of firearm), third-degree theft, fifth-degree criminal mischief, first-degree vehicle theft, and second-degree vehicle theft.
While R.K. was awaiting disposition in this case, he was housed at the Kenai Peninsula Youth Facility. On May 21, 2004, the Kenai facility issued a report on R.K.’s behavior during the previous four weeks (April 22nd through May 21st). The Kenai facility reported that R.K. exhibited poor behavior while he was there: he was often aggressive or angry when he did not get his way, he was often agitated, and he was frequently argumentative, manipulative, and uncooperative.
In mid-March, R.K.’s father filed a series of pleadings in which he contested the State of Alaska’s jurisdiction over his son, and in which he asserted a copyright on his son’s name (apparently, so that this name could not be used in court proceedings or other official documents without R.K.’s father’s express permission). In addition, R.K.’s father stated that he intended to sue the Governor of Alaska, the Attorney General of Alaska, the superior court, and several other state officials and employees connected to his son’s case. The father’s alleged causes of action included coercion, fraud, discrimination, impeding commerce, slander, child abuse, conspiracy, theft, embezzlement, and falsification of accounts. R.K.’s father indicated that he was seeking damages in excess of $600,000.
A few days later (on March 22, 2004), the superior court appointed the Office of Public Advocacy as guardian ad litem
for R.K.. Thus, when R.K.’s disposition hearing took place nine weeks later (May 27, 2005), Superior Court Judge Beverly W. Cutler heard five different viewpoints: the views of (1) the State, (2) R.K.’s attorney, (3) R.K.’s guardian ad litem, (4) R.K.’s parents, and (5) R.K. himself.
Only one witness testified at the disposition hearing: Dr. Daniel Davidow, the medical director of the Cumberland Hospital (where R.K. spent four months in 2003). Dr. Davidow testified that R.K. suffers from an organic personality disorder, the result of brain injury. He has difficulty exercising judgement and controlling his impulses; he also has difficulty with the mental function that the doctor referred to as “reality testing”.
Davidow told the court that R.K.’s conduct (both before he was admitted to Cumberland and after his father took him out of Cumberland) demonstrated that R.K. was not safe outside of a controlled environment — that R.K. should be placed in the structured setting of a residential facility. According to Davidow, R.K. needs constant supervision and an imposed structure on his daily activities, combined with a behavior modification regime such as a “point system” (a system where points — i.e., privileges — are awarded for good behavior and taken away for bad behavior). In addition, Davidow told the court, it was important that R.K. continue taking the medication Lamactil.[fn1]
In his evaluation of R.K., Davidow echoed many of the conclusions from the psychological evaluation performed in December 2002. Davidow testified that R.K. suffers from “frontal lobe disability” — damage to the portions of his brain that perform executive functions. He does not perceive the likely consequences of his actions — and, when he is confronted with those consequences, he becomes angry and feels put-upon.
At the same time, however, Davidow testified that R.K.’s anti-social behavior was not solely attributable to his brain injuries. Davidow pointed out that, even before R.K. suffered brain injury, he demonstrated poor impulse control and he had problems with mood and temper regulation. He was already committing criminal acts before he suffered his head injury in August 2002; in fact, that injury was suffered while R.K. was riding a stolen motorcycle. R.K.’s brain injuries exacerbated or magnified his difficulties with recognizing cause and effect, and with mood regulation.
Davidow told the court that R.K. might never be able to live without imposed structure. Nevertheless, Davidow hoped that R.K. would be able to develop internal strategies for coping with his mood swings and his anger.
R.K.’s public defender asked Davidow if he was recommending a residential treatment facility versus a “locked” facility. Davidow replied that he was not sure what the attorney was asking. Davidow noted that many treatment facilities are “locked” in the sense that patients are not free to come and go. The real issue, Davidow told the court, was whether R.K. would receive active treatment as opposed to simply being restrained. This was the dividing line that Davidow drew between “treatment” facilities and “correctional” facilities.
Davidow emphasized that it would be better for R.K.’s long-term rehabilitation if R.K. was placed in a “therapeutic” program that fostered behavior modification through positive reinforcement of good behavior, rather than in a “punitive” program whose emphasis was deterring bad behavior through punishment.
Davidow explained that, by “punitive” program, he meant a program whose major objective is to get patients to submit their ego to the will of the authorities — to obey without thinking. Davidow contrasted such programs with “therapeutic” programs, which are designed to encourage patients to think for themselves and to develop inner judgement and control. Davidow told the court that, even in a therapeutic program, there are consequences for bad decisions and bad behavior. But the ultimate goal of a therapeutic program is to develop people who can reason for themselves and who can exercise inner self-control over their behavior rather than simply being constrained by outside forces.
Davidow emphasized that R.K. needed a residential treatment program that entailed 24-hour per day supervision. He told the court that R.K. should not be released to a “community setting” where his life would not be heavily structured.
Davidow added that R.K. made noticeable progress during his stay at the Cumberland Hospital, and the hospital staff had wanted to treat R.K. longer, but they had no legal authority to hold R.K. when his father chose to remove him from the facility.
Davidow told the court that R.K. was a “lower functioning” patient who was very susceptible to outside influences. For this reason, Davidow cautioned that R.K. should not be placed in an environment where the people around him were distrustful of authority and resentful of social controls — because R.K. would learn and assimilate these same values.
After R.K.’s probation officer, Suzanne Lassiter, described the McLaughlin Youth Center’s cottage program to Davidow, Davidow told the court that this program “certainly sounds like it would meet [R.K.’s] needs”, so long as the program offered individualized psychiatric help to inmates, and so long as there were people on the staff who understood the behaviors of people who had suffered brain injury.
The recommendations of the parties, and Judge Cutler’s decision
Following Dr. Davidow’s testimony, Judge Cutler heard the recommendations of the parties.
The State asked Judge Cutler to issue an order under section 120(b)(1) that would allow the Department to place R.K. in the cottage program at McLaughlin.
Both R.K.’s public defender and R.K.’s guardian ad litem
agreed that R.K. should be placed in a residential facility, and that R.K.’s parents should not have the authority to remove him from this facility without the Department’s approval, but the public defender and the guardian ad litem asked Judge Cutler to issue her order under section 120(b)(3) — in other words, limiting the Department’s placement authority to non-detention facilities.
Finally, R.K.’s father and R.K. himself asked Judge Cutler to allow R.K. to return home, on condition that he receive out-patient counseling.
Judge Cutler followed the State’s recommendation and issued an order under section 120(b)(1), allowing placement in a detention facility. She did this because she concluded that the cottage program at the McLaughlin Youth Center was in R.K.’s best interest, both in promoting his rehabilitation and in protecting the public.
Judge Cutler recognized that the McLaughlin cottage program was a detention program (i.e., it operates in a closed facility), but she concluded that it was the “least restrictive” alternative — that no other available program would adequately serve the twin needs of rehabilitation and protecting the public. With respect to the two other programs that had been proposed by R.K.’s public defender and R.K.’s guardian ad litem — the “Pathways” program in Anchorage and the “Kenai Cares” program on the Kenai Peninsula — Judge Cutler concluded that neither of them could provide the psychiatric intervention that R.K. needed. The judge stated that, based on the various pre-disposition reports that had been prepared in R.K.’s case, and based on her observations of R.K. and his parents over the previous two years, she concluded that the cottage program provided the structure and the treatment options that R.K. required.
Judge Cutler then addressed the disposition criteria specified in AS 47.12.140.[fn2]
The judge noted that R.K.’s offenses, although not crimes of violence, were nevertheless serious: they included repeated residential burglaries and thefts of weapons. In addition, R.K.’s attitude and the attitude of his parents were not such as to advance R.K.’s rehabilitation outside of an institutional setting.
Judge Cutler recognized that, in terms of personal culpability, R.K. was not as culpable as other offenders who had better innate ability to control their behavior. The judge stated that she had taken this into account, but that it did not alter her conclusion that an institutional order was appropriate. She noted that R.K. had a considerable prior record, and that previous non-institutional efforts at his rehabilitation had not been effective.
Judge Cutler acknowledged that R.K. was brain-damaged, but she agreed with the psychological assessments that there is a true delinquency component to R.K.’s anti-social conduct, and that his behavior is not solely the result of his injuries. The judge concluded that, because R.K. had so little control over his impulses, institutionalization would be the most effective method to achieve R.K.’s rehabilitation.
Judge Cutler also stated that she considered R.K.’s age to be a significant factor. R.K.’s age had been significant in earlier stages of his case when, because of his youth, she had ordered probation for his previous offenses. Now, Judge Cutler concluded, R.K.’s age was significant in a different respect, because so little time remained before the superior court lost its juvenile jurisdiction over R.K.. The judge declared that the public had a substantial interest in securing R.K.’s rehabilitation — because, given R.K.’s severe lack of impulse control, he would pose a significant danger to the public as a young adult if he were not rehabilitated now.
Why we affirm Judge Cutler’s decision
When we review the superior court’s disposition decision in a juvenile delinquency matter, we defer to the superior court’s findings of fact; that is, we will uphold those findings of fact unless they are clearly erroneous.[fn3] However, it is a question of law whether a particular dispositional placement constitutes the statutorily required “least restrictive alternative”. We therefore exercise our independent judgement on this issue.[fn4]
In this appeal, R.K. argues that the cottage program at McLaughlin Youth Center is not the least restrictive placement that will satisfactorily address the twin needs of R.K.’s rehabilitation and the protection of the public. He suggests that placement in a non-detention residential treatment facility would adequately address these two concerns.
It is true that R.K. made progress during his four-month stay at the Cumberland Hospital in Virginia. It is further true that the Cumberland Hospital normally remains unlocked, and that R.K. never attempted to run away from the Cumberland Hospital. However, it is unclear whether this proves that one of the non-detention facilities proposed by R.K. — the “Pathways” facility in Anchorage or the “Kenai Cares” facility on the Kenai Peninsula — would be an adequately secure placement.
As Dr. Davidow explained, the Cumberland Hospital is situated on 1200 acres of farmland, and R.K. was thousands of miles from his home when he stayed there. Under these circumstances, Davidow testified, the Cumberland staff was not concerned “that [R.K.] was going to wander away”.
But when R.K. returned to Alaska and was living at his parents’ house, in their around-the-clock custody, R.K. did abscond — running away to Wasilla. Moreover, R.K.’s record suggested that, even in a residential facility, he would be difficult to control. As explained above, R.K. was held at the Kenai Peninsula Youth Facility in April and May 2004 while he awaited disposition in this case. R.K.’s behavior was poor at the Kenai facility, even though he presumably knew that his behavior might affect Judge Cutler’s decision regarding his placement. As we noted earlier, the Kenai facility reported that R.K. was often aggressive or angry when he did not get his way, and he was frequently argumentative, manipulative, and uncooperative.
In his brief to this Court, R.K. contends that Dr. Davidow testified that R.K. could be treated without being placed in a locked facility. But Dr. Davidow did not actually say that a locked facility was unnecessary. Rather, as we explained above, when Davidow was asked whether R.K. should be placed in a locked or an unlocked residential facility, Davidow answered that this was not really the important question. The important question, Davidow insisted, was whether R.K. was going to receive therapeutic treatment or whether he was simply going to be warehoused in a “punitive” facility that suppressed his anti-social behavior solely through physical restraints and punishments.
Leaving aside security concerns and turning to the adequacy of treatment, Judge Cutler expressly found that the best treatment for R.K. was at the McLaughlin cottage program. She noted that the two non-detention alternatives suggested by R.K.’s attorney and his guardian ad litem were not set up to deal with patients whose anti-social behavior arose from two separate causes (conduct disorder and brain injury). And she found that only the McLaughlin cottage program offered the psychiatric intervention that R.K. needed.
As we explained in Matter of J.H., the “least restrictive alternative” approach specified in AS 47.12.140(2) “does not require that a child be allowed to fail at each level of placement before placement in the next restrictive level may be made”.[fn5] We acknowledge that R.K. appeared to make progress during his four months at the Cumberland Hospital. However, Judge Cutler did not have the option of returning R.K. to that Virginia hospital. The alternatives presented to her were (1) sending R.K. to the cottage program at McLaughlin, (2) sending R.K. to one of the two non-detention residential treatment facilities in Southcentral Alaska that were suggested by R.K.’s attorney and his guardian ad litem, or (3) returning R.K. to his father’s home on the Kenai Peninsula.
R.K. has a long record of anti-social behavior. Moreover, he has repeatedly exhibited an unreceptive and, at times, openly hostile attitude toward treatment. He is atypically difficult to treat because he suffers both from a conduct disorder and an alteration of personality stemming from brain injury. Given the combination of better treatment and better security offered by the McLaughlin cottage program, we agree with Judge Cutler that this program is the least restrictive alternative that will adequately address the twin goals of rehabilitating R.K. and protecting the public.
Accordingly, the judgement of the superior court is AFFIRMED.
[fn1] “Lamictal” is Glaxo SmithKline’s trade name for lamotrigine. Lamotrigine is approved as an anti-convulsant and also as a mood stabilizer for patients with bipolar or unipolar disorder. Seehttp://www.psycom.net/depression.central.lamotrigine.html. [fn2] AS 47.12.140 reads:In making its dispositional order under AS 47.12.120(b)(1) — (3) and (5) and (j), the court shall
(1) consider both the best interests of the minor and the interests of the public, and, in doing so, the court shall take into account
(A) the seriousness of the minor’s delinquent act and the attitude of the minor and the minor’s parents toward that act;
(B) the minor’s culpability as indicated by the circumstances of the particular case;
(C) the age of the minor;
(D) the minor’s prior criminal or juvenile record and the success or failure of any previous orders, dispositions, or placements imposed on the minor;
(E) the effect of the dispositional order to be imposed in deterring the minor from committing other delinquent acts;
(F) the need to commit the minor to the department’s custody or to detain the minor in an institution or other suitable place in order to prevent further harm to the public;
(G) the interest of the public in securing the minor’s rehabilitation; and
(H) the ability of the state to take custody of and to care for the minor; and
(2) order the least restrictive alternative disposition for the minor; for purposes of this paragraph, the “least restrictive alternative disposition” means that disposition that is no more restrictive than is, in the judgment of the court, most conducive to the minor’s rehabilitation taking into consideration the interests of the public.
[fn3] Matter of J.H., 758 P.2d 1287, 1291 (Alaska App. 1988). [fn4] Id. [fn5] 758 P.2d at 1291.