Arizona Dept. of Economic Sec. v. Gerald F.
| Decision Date | 11 September 1997 |
| Docket Number | No. 1,CA-JV,1 |
| Citation | 945 P.2d 1321,190 Ariz. 190 |
| Parties | , 251 Ariz. Adv. Rep. 34 ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellant, v. GERALD F., Appellee. 96-0133. |
| Court | Arizona Court of Appeals |
Grant Woods, Attorney General by William W. Owsley, Assistant Attorney General, Bruce Griffin, Assistant Attorney General, Phoenix, for Appellant ADES.
Deborah Varney, Phoenix, Guardian ad litem for the Minor Child.
Hendrickson, Fuller, Dutson & Quindry, P.C. by Gary C. Hendrickson, Mesa, for Juvenile.
Helm & Kyle, Ltd. by Theodore L. Kyle, Tempe, for Mother.
Steven G. Smith, Mesa, for Father.
Richard M. Romley, Maricopa County Attorney by Judy Huddleston, Deputy County Attorney, Mesa, for State.
Dean W. Trebesch, Maricopa County Public Defender by Shellie F. Smith, Deputy Public Defender, Phoenix, for Juvenile.
In this consolidated juvenile delinquency and dependency case, the Arizona Department of Economic Security ("D.E.S.") appeals the juvenile court's order that Gerald F. ("Juvenile") be placed in a residential comprehensive transitional educational program in Florida, and that D.E.S. pay fifty percent of the placement costs. This court has jurisdiction over the appeal pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 8-236 and Rules 24 to 29 of the Arizona Rules of Procedure for the Juvenile Court. The juvenile court's order, filed on August 8, 1996, is an appealable final order. Maricopa County Juvenile Action No. J-74197, 20 Ariz.App. 567, 569, 514 P.2d 738, 740 (1973). D.E.S. is an aggrieved party in this action and has standing to appeal pursuant to A.R.S. section 8-236(A). Pima County Juvenile Action No. B-9385, 138 Ariz. 291, 293, 674 P.2d 845, 847 (1983). For reasons that follow, we affirm.
The juvenile court acquired jurisdiction over Juvenile when he was fourteen through the filing of four petitions: three delinquency petitions (JV-511597) filed on April 29, 1995, August 28, 1995, and September 20, 1995, and a dependency petition (JD-501693) filed by Juvenile's guardian ad litem on March 27, 1996. The juvenile court consolidated the cases on May 29, 1996. The dependency petition was filed because Juvenile's mother was incarcerated; his father could not control him; and he was affiliated with gangs, running away and engaging in criminal activity. Juvenile was made a temporary ward of the court in a dependency matter on March 28, 1996. At that time, Juvenile was held in detention on the delinquency charges and was also held in the probation department's custody pursuant to a temporary custody warrant issued on December 4, 1995.
An evidentiary hearing regarding Juvenile's competency was held on April 8, 1996. At the competency hearing, the court considered the testimony and evaluation reports of two psychologists, Dr. James Huddleston and Dr. Susan Parrish. Dr. Huddleston testified Juvenile is mildly mentally retarded and has serious deficits in both verbal and nonverbal abilities. However, Dr. Huddleston also testified Juvenile is competent to stand trial because he could understand the difference between right and wrong and had a basic understanding of the roles of his attorney and the judge.
Dr. Parrish testified Juvenile suffered from dementia due to impaired brain function and also from aphasia, a difficulty in expressive and receptive language. See Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") § 780.90 (4th ed.1994). In her opinion, Juvenile was not competent to be tried because he could not understand abstract thoughts such as his right to confront witnesses and the concept of presentation of evidence. She recommended placement for Juvenile that focused on teaching him concrete tasks such as basic living skills. She testified Juvenile's brain functioning was so limited that very elementary academic tasks, such as basic reading and mathematics, were too abstract for him. The juvenile court held Juvenile was competent to stand trial. However, the court also held Juvenile was not competent to waive his constitutional rights because of his limited intelligence.
The juvenile court ordered an evaluation by psychiatrist David S. Burgoyne II, M.D., to assist the court in deciding the appropriate disposition for Juvenile. In his report concerning the evaluation on July 17, 1996, Dr. Burgoyne stated Juvenile had a long history of antisocial behavior patterns and was developing a substantial antisocial personality disorder. Significantly, Dr. Burgoyne stated Juvenile "[D]oes not have a significant mental disorder that requires any psychiatric care, whether it be inpatient, residential or outpatient at this time." Dr. Burgoyne also stated that even if Juvenile wanted counseling, he would not benefit from it because his retention would be limited. Dr. Burgoyne therefore recommended Juvenile be placed in a setting with specific rules and required behavior patterns such as that found in the Arizona Department of Juvenile Corrections.
In ruling on Juvenile's disposition, the juvenile court also considered Dr. Burgoyne's report of his October 1995 evaluation of Juvenile. In the previous evaluation, Dr. Burgoyne diagnosed Juvenile as being between mildly mentally retarded and having borderline functioning abilities, and as suffering from a conduct disorder of moderate severity with an adolescent onset. See DSM-IV § 312.8. Dr. Burgoyne's October 24, 1995 report stated Juvenile did not require any medications because he did not suffer from a mental disorder but "has never understood nor wanted to comply with treatment recommendations or requirements of probation."
In ruling on Juvenile's disposition, the juvenile court also considered a report from Juvenile's teachers at the school he last attended which stated Juvenile was functioning academically between a kindergarten and first-grade level. The record reflects that Juvenile had changed schools numerous times because several schools could not address his needs due to his violent and uncontrollable behavior. While Juvenile had received special education services throughout his academic career, he had never been referred by either educators or his parents to the Division of Developmental Disabilities ("D.D.D.") of D.E.S. The juvenile court ordered D.D.D. to evaluate Juvenile in April 1996 pursuant to A.R.S. section 8-242. D.D.D. issued its eligibility determination in late July 1996, immediately prior to the adjudication hearing, and found Juvenile ineligible for services. Therefore, the juvenile court ordered Child Protective Services ("C.P.S."), another division of D.E.S., to assist the court in exploring possible placements for Juvenile.
The record reflects that many nonresidential treatment modalities previously had been attempted with Juvenile. He had been placed on probation but had flagrantly violated its terms. He then had been placed on intensive probation, but had run away for several months, become affiliated with gangs and abused drugs. While Juvenile's father wanted to have Juvenile in his home, the father clearly could not control Juvenile. Although Juvenile's mother was incarcerated during most of the pendency of the proceedings, she was being released on parole near the time of the disposition hearing. However, upon her release, the mother and her other three children planned to move in with Juvenile's maternal grandmother, and the grandmother had indicated she did not want Juvenile in her home due to his incorrigible behavior.
In the initial disposition hearing on July 25, 1996, the trial court discussed placement alternatives with Juvenile's C.P.S. caseworker:
[The Court]: I don't feel comfortable just sending him [Juvenile] to one of these three [group homes in Arizona]. They haven't interviewed him, they don't know what his special needs are and they are simply saying we will take him.... I don't want to pay somebody if they don't know what needs need to be addressed.
[C.P.S. caseworker]: Part of the packets that we sent them, we sent them Dr. Burgoyne's report, the psychologicals that were done, two by Dr. Huddleston as well as one by Dr. Parish [sic] ... Safety [one group home being considered] contacted me before they even got the reports and said they will take him.
....
[The Court]: ... They are just looking at somebody on paper and saying this is what I see and we are willing to take him. I am not so sure they know what is needed.
[C.P.S. caseworker]: I would have to agree with you.
(Emphasis added.)
Because there was not enough information available regarding potential placements for Juvenile, the juvenile court continued the disposition hearing until July 31, 1996 to allow D.E.S. to compile more information concerning placement alternatives. At the hearing, the probation officer recommended Juvenile be placed at Au Clair Palms ("Au Clair"), in Mount Dora, Florida--the placement ultimately ordered by the juvenile court--because the probation officer believed Juvenile did not need placement in a locked facility. The guardian ad litem recommended Juvenile initially be placed either at Au Clair or at a Texas secured facility which did not focus on developmentally disabled clients, and when Juvenile demonstrated improved behavior, he should be returned to Arizona.
Juvenile did not qualify for many possible placements in Arizona due to his low intelligence and poor functioning. Further, the juvenile court was convinced that those group homes in Arizona which expressed an interest in serving Juvenile would not meet his needs because they were not confined settings, and therefore he could run away. Both the probation officer and the guardian ad litem recommended Juvenile's needs would best be served by placement in a secure setting so that Juvenile could not run away. Dr. Burgoyne also recommended a secure setting, but he suggested Juvenile should be...
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...issue is whether Mingus Mountain is a "mental health agency" such that A.R.S. § 8-242.01 is even triggered. Cf. Gerald F., 190 Ariz. at 196-99, 945 P.2d at 1327-30 (holding that Florida-based comprehensive transition education program not a mental health agency so was not "within the purvie......