In re Interest of C.M., A14A2129.

• Decision Date: 05 March 2015
• Docket Number: No. A14A2129.,A14A2129.
• Citation: 331 Ga.App. 16,769 S.E.2d 737
• Parties: In the Interest of C.M., a child.
• Court: Georgia Court of Appeals

331 Ga.App. 16

769 S.E.2d 737

In the Interest of C.M., a child.

No. A14A2129.

Court of Appeals of Georgia.

March 5, 2015.

Mushiya Marie Kabemba–Warren, for Appellant.

Jack Browning Jr., Dist. Atty., Dustin Shane Strobel, Asst. Dist. Atty., for Appellee.

Opinion

PHIPPS, Chief Judge.

This appeal arises from a disposition order of the Juvenile Court of Polk County placing C.M., then 14 years old, in the custody of the Department of Juvenile Justice (“DJJ”) for an initial period of up to 36 months, with 12 months of the custodial period to be spent in restrictive custody in a facility managed by the Georgia Department of Corrections. C.M. contends that: (1) the juvenile court's decision to revoke a prior sentence of probation and to place him in restrictive custody was arbitrary and “precludes treatment and rehabilitation in a less restrictive setting;” (2) his due process rights were violated when the court, in entering the disposition order, relied on a document that was “attached [to] and made a part of the decision, after the conclusion of the disposition hearing”; and (3) the juvenile court violated his Fifth Amendment rights by commenting on his failure to testify or to deny that he had committed an offense. We affirm.

Viewed in favor of the juvenile court's order,¹ the record shows the following. On August 21, 2013, a petition was filed in the Juvenile Court of Polk County, alleging that on May 23, 2013, C.M. committed acts that, if committed by an adult, would have constituted the offenses of simple battery, obstruction of an officer, and disrupting a public school. Subsequently, on January 2, 2014, another petition was filed in the Juvenile Court of Polk County, alleging that between December 28, 2013 and December 29, 2013, C.M. was a runaway child and was ungovernable, and that on December 29, 2013, he committed an act that, if committed by an adult, would have constituted the offense of aggravated assault.²

On February 27, 2014, C.M. entered admissions to acts alleged in both the August 2013 and January 2014 petitions. Regarding the August 2013 petition, C.M. admitted that on May 23, 2013 he had committed an act that, if committed by an adult, would have constituted the offense of obstruction of an officer, in that he refused to comply with an officer's lawful command to “move” when the officer was attempting to escort him out of the school principal's office. The state dismissed the simple battery and disrupting public school allegations. Regarding the January 2014 petition, C.M. admitted that on December 29, 2013 he had committed an act that, if committed by an adult, would have constituted the offense of aggravated assault, in that he did “make an assault upon [his brother] with a deadly weapon, to wit: a pocket knife by pointing the knife at him and saying ‘[I] have something for you.’ ”³ The state dismissed the runaway and ungovernable allegations of the January 2014 petition. The juvenile court entered a disposition of probation for 24 months, and noted that “[t]he State announced it did not wish to seek any restrictive custody on the Designated felony offense.”

On March 24, 2014, a petition was filed in the Juvenile Court of Polk County, alleging that on March 7, 2014, C.M. committed three acts of violation of probation, three acts of contempt of juvenile court, and acts that, if committed by an adult, would have constituted the offenses of two counts of making terroristic threats. As to the latter charges, the petition alleged that C.M. “did threaten to commit aggravated assault a crime of violence, with the purpose of terrorizing [a teacher]” and that he “did threaten to damage, by ‘shooting up, a residence, the property of [the teacher], with the purpose of terrorizing [the teacher].” When the petition was filed, C.M.'s whereabouts were unknown, and a warrant was issued for his arrest and detention; C.M. was placed in detention on March 18, 2014. The state subsequently filed a motion to revoke the disposition of probation previously entered on the delinquent act of aggravated assault, a class B designated felony act, and to resentence him on that charge.

On April 3, 2014, C.M. was adjudicated delinquent for committing on March 7, 2014 two acts of contempt of court, two acts of violation of probation, and for committing acts that, if committed by an adult, would have constituted the offenses of two counts of making terroristic threats. C.M. was acquitted of one act of violation of probation and of one act of contempt. The court continued disposition in order for a behavioral health evaluation to be completed, “to provide the juvenile court with information and recommendations relevant to the behavioral health status and mental health treatment needs” of C.M. The court ordered that C.M. would “remain in Rome RYDC pending disposition, at his request.” A psychological evaluation was filed with the court, and the next day, a disposition hearing was held.

At the disposition hearing, the school resource officer, a police officer with the Rockmart Police Department, testified regarding school disciplinary records for C.M. spanning the period from November 2012 to C.M.'s expulsion from school in March 2014. A copy of C.M.'s school disciplinary report was admitted in evidence without objection. The report showed log entries for C.M., including acts of defiance of authority, fighting, inappropriate behavior, threats, “Bullying/Profanity,” and for the terroristic threats incident which, the report showed, led to C.M.'s expulsion from school. Printouts from C.M.'s Facebook page were admitted in evidence, two of which showed C.M. holding what appeared to be a firearm. The officer testified that he was aware that C.M. had been expelled from school, believed that C.M. could benefit from being in an institution that could offer him an educational program, and believed that C.M. should be held in restrictive custody. When questioned on cross-examination about “other educational alternatives that are out there,” such as “online schooling” and “home schooling,” the officer responded, “as far as the homeschooling, let's be honest, [C.M.'s mother] didn't even know he was gone or where he was at, so I don't think he's going to be getting any homeschooling.” The teacher who was the victim of the terroristic threats testified that she felt “[s]cared” after the incident, and that she would not want C.M. to be out of restrictive custody.

C.M.'s probation officer testified that C.M. had not been on probation long enough for her to get to know him before the terroristic threats incident occurred and C.M. was placed in detention. The probation officer testified that one of her contacts at the RYDC informed her that C.M. had been “written up” on March 25 for being involved in a fight. The probation officer testified that she had not completed a current “DAI”⁴ or “risk assessment” on C.M., but that she could later furnish one to the court. Notwithstanding, the probation officer testified that, in her estimation and based on her knowledge of the acts for which C.M. had been adjudicated delinquent, C.M.'s DAI score would be close to 20, which would place him in a high risk level classification.⁵ The court asked the probation officer to “run [a DAI] and get one to me, and furnish it to everybody else so they'll have one,” by 5:00 the next day. Immediately thereafter, the court informed C.M., through his counsel, that it did not anticipate making a ruling on the state's request for restrictive custody until it had received a current DAI for C.M., as one of the factors the court had to consider was the “risk level of such child that is calculated by a risk assessment.” Counsel did not object in any way; she replied, “I understand that.” At the end of the hearing, the court reiterated that it was asking DJJ to provide a current DAI, and the court would “get an order out by no later than next Friday.”

In the psychological evaluation, the psychologist wrote that there were

few pro-social role models for [C.M.] since he is part of a gang and both of his elder brothers are incarcerated. It is unclear what role his mother's boyfriend plays in the family and his maternal grandfather is apparently quite sick, however, [C.M.] is in need of a strong pro-social role model.

The psychologist continued:

There are currently no educational plans in place for [C.M.] and he reportedly still experiences some problems with anger. Without any direction in life it is likely that [C.M.] will continue to act in ways that result in interventions from law enforcement. Hence, a very structured program of activity is needed.

1. C.M. contends that the juvenile court's decision to revoke a prior disposition of probation and to place him in restrictive custody was arbitrary and “precludes treatment and rehabilitation in a less restrictive setting,” in violation of OCGA § 15–11–504.

Subsection (a) of OCGA § 15–11–504 lists places where “[a]n alleged delinquent child may be detained,” and subsection (b) provides that “[p]lacement shall be made in the least restrictive facility available consistent with the best interests of the child.” But as C.M. had already been adjudicated delinquent, OCGA § 15–11–504 was not applicable to his disposition.

Regarding the issue of whether a juvenile should be placed in restrictive custody, OCGA § 15–11–602(a) and (b) pertinently provide: “When a child is adjudicated to have committed a ... class B designated felony act, the order of disposition shall ... include a finding, based on a preponderance of the evidence, of whether such child requires placement in restrictive custody.” OCGA § 15–11–602(b) further expressly provides that in determining whether placement in restrictive custody is required, the court shall consider and make specific written findings of fact as to each of the following factors, pertinently:

(1) The age and maturity of such child; (2) The needs and best interests of such child; (3) The record, background, and risk level

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