In re Interest of T.S., A15A1803.

• Decision Date: 23 March 2016
• Docket Number: No. A15A1803.,A15A1803.
• Parties: In the Interest of T.S., a child.
• Court: Georgia Court of Appeals

336 Ga.App. 352

785 S.E.2d 32

In the Interest of T.S., a child.

No. A15A1803.

Court of Appeals of Georgia.

March 23, 2016.

Nicole LeShea Roberts, Meredyth Lange Yoon, for Appellant.

Jacquelyn Lee Johnson, Dist. Atty., Whitney Lauren Hunter, Asst. Dist. Atty., for Appellee.

RICKMAN

, Judge.

T.S. appeals the juvenile court's order transferring his delinquency case to superior court for prosecution. He contends that the juvenile court erred in transferring the case to superior court because: (1) the legal standard the court used was either wrong, or correct but misapplied; (2) the court failed to consider the requisite statutory factors in deciding whether to transfer the case to superior court; (3) the court's decision to transfer the case was based solely on the nature of the alleged offenses; and (4) there was no evidence to support a transfer. We affirm.

On appeal from an order transferring a case from juvenile court to superior court, the function of this Court is limited to ascertaining whether there was some evidence to support the juvenile court's determination that the requirements of [former] OCGA § 15–11–30.2^{[1 ]} have been met, and absent an abuse of discretion, we will affirm the order transferring jurisdiction.

(Citation omitted.) In the Interest of D.C., 303 Ga.App. 395(1), 693 S.E.2d 596 (2010)

.

In November 2014, a delinquency petition was filed in the Juvenile Court of Glynn County alleging that 15–year–old T.S.² committed acts which, if committed by an adult, would have constituted burglary, two counts of criminal trespass, three counts of theft by taking, and six counts of participation in criminal gang activity. The juvenile court conducted a bifurcated hearing to determine whether to transfer the case to superior court for prosecution. First, the court received evidence primarily as to whether there was probable cause that T.S. committed the acts. Second, the court received evidence and argument regarding factors it should consider when determining to transfer a juvenile's case to superior court.

In the first (probable cause) phase of the transfer hearing, evidence was adduced that on October 6, 2014, T.S. and two individuals—one man was an adult and the other individual was unidentified—broke into a home and stole two flat screen televisions and a gaming system. The homeowner testified that she had left home that day around 7:45 a.m., and returned just past noon to find that her home had been burglarized.

Surveillance cameras that police had set up in a wooded path in the area of the burglarized home captured T.S. and the two individuals carrying televisions through the path between the time the homeowner left home and the time she later returned home. One still photograph taken from the surveillance camera recording depicted T.S. holding what may have been a gun. The adult perpetrator confessed to law enforcement his involvement in the incident, and he identified himself and T.S. in surveillance photographs. The adult perpetrator told law enforcement that the idea to commit the burglary originated with T.S.; that T.S. had opened the kitchen window of the home to gain entry; and that once T.S. was inside, he opened a door for his co-perpetrators to enter. The adult perpetrator also told police that he was a member of a particular gang, and a photograph depicted the adult making a gang hand signal and wearing a gang “flag.” A law enforcement officer testified that he was familiar with T.S. and that prior to the burglary, he had frequently observed T.S. in the company of other gang members. The juvenile court found probable cause that T.S. had committed the offenses enumerated in the juvenile petition.

In the second phase of the transfer hearing, the following evidence was adduced. A court officer with the Glynn County Juvenile Court testified that in December 2010, T.S. was placed on an informal adjustment for ungovernable behavior; in August 2013, he was placed on probation for committing an act which, if committed by an adult, would have constituted misdemeanor theft by taking; in October 2013, he violated the terms of his probation by failing to report and was placed on probation for two years; and in August 2014, he tested positive for marijuana and again violated the terms of his probation and was placed on probation. After T.S. violated his probation in October 2013, a pick-up order was issued for T.S.'s apprehension in November 2013; T.S. turned himself in on that pick-up order in August 2014. Thus, for approximately nine months, T.S. had not reported to or otherwise accounted for his whereabouts with the juvenile probation office. After T.S. had turned himself in, the juvenile court reluctantly released T.S. into the custody of his grandmother, who testified that T.S. stayed with her for about a week before he left her home and did not return. Thereafter, the acts underlying the subject of this appeal occurred.

A juvenile court officer testified that while on probation, T.S. failed to complete a moral recognition group therapy program because after attending two sessions he tested positive for marijuana and fled. The court officer further testified that T.S. was “kicked out [of school] due to poor attendance and tardiness,” at the beginning of the school year, in August 2014. Thereafter, he was supposed to attend an alternative school, but he never did. At the time of the transfer hearing (which took place in December 2014), T.S. was not enrolled in school. There was no indication that T.S. had an Individualized Education Plan (IEP) or had been enrolled in any special education program. T.S. scored 11 on a predisposition risk assessment, indicating that he was at a high risk of re-offending. DFCS had previously been involved with T.S. at least twice.

The court officer opined that T.S. knew right from wrong, and that T.S.'s prospects for rehabilitation were good if he had stable housing and would “stay put, stay in place, don't run, [and] had a family member who could adequately care for him and supervise him” and give him a “push.” The court officer testified that given T.S.'s current charges and his living situation at the time the underlying incident occurred, the court officer did not know of any other program or service that the juvenile court could use to rehabilitate T.S. or keep him from re-offending.

T.S.'s grandmother testified that T.S. needed “discipline in his life,” and daily supervision to ensure that he abided by the conditions of his probation and was “doing the right thing.” She testified that she did not have full control of T.S.; that she worked the swing shift at a hospital; and that she could not adequately supervise T.S. on her own. She stated: “I can't do it by myself.”

T.S.'s mother, who lived in Jacksonville, Florida, testified that for the last 5 to 6 years, she had been in a custody battle for her children with T.S.'s father. But when the court asked her whether she wanted to take T.S. home with her that day, she replied, “No. Not at this time, I don't,” explaining that she would take him back if he got “some help.” T.S.'s mother testified that T.S.'s stepmother did not want him in the home and that, thus, T.S.'s father put him out. T.S.'s father was not at the hearing and did not otherwise testify.

The court continued the hearing for a later date, explaining that it wanted to “hear from the Department of Juvenile Justice” about “other services that we don't offer .... to make an adequate decision on whether or not to transfer [T.S.] to Superior Court.” At the continuation of the hearing, the juvenile court program manager for the Department of Juvenile Justice (“DJJ”) for the counties of Glynn and McIntosh testified. The program manager testified that once a child was committed to the custody of DJJ, a screening hearing was conducted to determine the “best possible placement for treatment and rehabilitation.” The program manager provided the court with a list of privately owned providers that provide therapeutic group home services as well as behavioral health treatment services, for children committed to DJJ. The providers were independently owned; they were not subsidiaries of DJJ. And each provider had its own criteria for deciding whether a child was amenable to treatment at its facility and whether it would accept a child. The program manager testified that notwithstanding the fact that there were no programs specifically targeted for treating “gang involvement .... [i]f the gang involvement is part of a larger need, then it's possible that it can be addressed.” The program manager further testified, however, that although some providers have accepted children with street gang charges, most tended not to do so. Typically, children at a high risk to re-offend “end[ ]up going to YDC,” ^{[3 ]} if no contracted-treatment provider accepted them. The YDC offered mental health treatment, supervision, and substance abuse treatment.

According to T.S.'s psychological evaluation, T.S. was dysfunctional, but “functioning intellectually in the average range.” He was in the “Borderline range” regarding his general cognitive ability, and general verbal comprehension. He was in the “Low Average range” for general perceptual reasoning abilities, and general processing speed abilities. The psychological evaluation confirmed a prior diagnosis of Attention–Deficit/Hyperactivity Disorder and depression. Other diagnoses included Conduct Disorder and Cannabis Use Disorder.

1. T.S. contends that the juvenile court erred in transferring the case to superior court because the legal standard the court used was either wrong or correct but misapplied. We disagree.

In considering a motion to transfer a child to superior court, pursuant to former OCGA § 15–11–30.2(a)(3), the juvenile court in its discretion determined, among other things, whether there were reasonable grounds to believe that “[t]he interests of the child and the community require that the child be placed under legal restraint...