J. K. v. State

• Decision Date: 06 May 1975
• Docket Number: No. S,S
• Citation: 68 Wis.2d 426,228 N.W.2d 713
• Parties: In the Interest of J.K. (a minor). J.K., Appellant, v. STATE of Wisconsin, Respondent. tate 59.
• Court: Wisconsin Supreme Court

Page 713

228 N.W.2d 713

68 Wis.2d 426

In the Interest of J.K. (a minor).

J.K., Appellant, v. STATE of Wisconsin, Respondent.

No. State 59.

Supreme Court of Wisconsin.

May 6, 1975.

On January 11, 1974, a petition was filed in the Milwaukee county court, children's division, seeking to have the appellant, a fifteen and one-half year old minor, adjudged delinquent. The petition alleged that the juvenile, a student at Milwaukee Technical High School, had been observed discarding a metal container containing six lysergic acid diethylamide (LSD) tablets after having given an LSD tablet to another student who thereafter required emergency medical treatment for hallucinations.

On March 1, 1974, a hearing was conducted in the Milwaukee county children's court, the Honorable Victor Manian presiding. The juvenile admitted the material allegations in the petition. He was adjudged to be delinquent and the court ordered his custody transferred to the state department of health and social services, division of corrections, designating the Wisconsin School for Boys at Wales as the reception center. In stating his reasons for making such disposition, the juvenile court judge stated:

'. . . (T)he court views the dispensing and possessing of LSD as a very very serious charge, particularly in a public highschool, dispensing it to a boy who began to hallucinate and who required medical attention. The court is taking into consideration the fact this juvenile still refused, refuses to indicate his source of the supply of LSD and the court views that as an indication that he does, is not amenable to the rehabilitative efforts that a probation officer could make; because of the seriousness of this offense, because of the indication in the social study that James has not cooperated with efforts to be psychologically evaluated, his violent acting out in the school when the police were there and on other occasions. It's the view of this court that James could benefit very well from a commitment to the boy's school.'

The order of the juvenile court was appealed to the circuit court for Milwaukee county. On June 11, 1974, the Honorable Robert W. Landry, circuit judge, affirmed the disposition made by the children's court, stating in the trial court opinion on review:

'The trial court had a wide range of discretion concerning the disposition of the case. The record reveals that he was conscious and aware of the alternatives by which he could exercise discretion. His remarks at sentencing clearly reflect a reasoning process by which less drastic means of disposition were rejected. The factors which he relied upon and stated on the record are clearly relevant and proper for the trial court to consider.'

The juvenile appeals from the circuit court ruling.

James D. Rudd, Legal Aid Society of Milwaukee, Milwaukee, for appellant; Robert H. Blondis, Milwaukee, of counsel.

Moria Krueger and Ralph A. Kalal, Madison, for The Wisconsin Civil Liberties Union amicus curiae.

Victor A. Miller, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, E. Michael McCann, Dist. Atty., and Frank J. Crisafi, Asst. Dist. Atty., Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

Challenged here is not the adjudication of delinquency, but rather the disposition made by the juvenile court judge following the adjudication of delinquency. The challenge goes to the statutory provisions for disposition if a child is adjudged delinquent, and, more particularly, the application of such statutory provisions in the instant case.

Involved are two sections of the Children's Code of Wisconsin (Ch. 48). The first such is sec. 48.01, Stats., which declares the intent of the chapter to be '. . . to promote the best interests of the children of this state, . . .' ¹ and provides that '. . . The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents or guardian of the child and the interest of the public.' ² The second section involved, sec. 48.34(1), enumerates the possible alternatives available to the juvenile court upon finding a child to be delinquent, providing in material part:

'48.34 Disposition if child adjudged delinquent. (1) Type of disposition. If the court finds that the child is delinquent, it shall enter an order making one of the following dispositions of the case:

'(a) Counsel the child or his parents, guardian or legal custodian; or

'(b) Place the child under supervision in his own home under conditions prescribed by the court including reasonable rules for his conduct and the conduct of his parents, guardian or legal custodian, designed for the physical, mental and moral well-being and behavior of the child; or

'(c) Relieve the parent, guardian or legal custodian of legal custody of the child and place him in a foster home as described in s. 48.62, except that the home does not have to be licensed if the child is placed there for less than 30 days;

'(d) Transfer legal custody of the child to one of the following:

'1. A relative of the child; or

'2. A county agency specified in s. 48.56(1); or

'3. A licensed child welfare agency; or

'4. The department;

'. . .' ³

Appellant notes that transfers of legal custody to the state department of health and social services are 'until the age of 18,' ⁴ and claims constitutional infirmity in such commitment to the department for institutional placement for an indeterminate period which may extend '. . . beyond the sentence permissible for an adult as punishment for the equivalent crime.' ⁵ This argument equates institutional placement under the Children's Code with incarceration of an adult offender under the Criminal Code. ⁶ Such exact and complete analogizing of proceedings in the children's court with proceedings in the criminal courts was early rejected by this court. ⁷ More recently, we stated: 'The juvenile law is not to be administered as a criminal statute,' ⁸ and, very recently, held '. . . Due process and fair treatment are to mark juvenile proceedings as well as adult trials. Both have a common harbor, the fair and just disposition of matters before the court, but they may sail by different routes to the shared destination. Each must avoid the reefs of constitutionally assured protections, but they need not sail side by side in so doing. Any analogy established between steps in juvenile proceedings with stages in the processing of criminal cases may be arguably persuasive, but it is not controlling.' ⁹

If the state legislature were to eliminate incarceration as an appropriate penalty for the adult crime of possession of LSD, that would not limit or change the right of a juvenile court judge to place an adjudged delinquent, found to have possessed LSD, in the custody of the state department until the age of 18, unless earlier released. Such commitment of a juvenile is not for the purpose of penalty or punishment, but for the purpose of effecting a result that will serve the best interests of the child, its parents and the public. The same measuring stick does not apply to both adult criminals and juvenile delinquents.

As to application of the statutory provisions for disposition to this appellant, adjudged delinquent, the principal argument of the appellant is that the juvenile court judge did not sufficiently satisfy himself '. . . that no less onerous disposition would serve the purpose of the commitment.' The language quoted and test come from federal court decisions dealing with the civil commitment of persons adjudged mentally ill to a mental hospital for treatment. ¹⁰ This argument seeks to equate, exactly and completely, the purpose of commitment and the status of a child adjudged delinquent with a person adjudged mentally ill and in need of treatment. As to purpose and status, the full analogizing fails. As to the purpose served, while neither situation involves imposition of penalty or punishment, the institutionalization of a mentally ill person for psychiatric treatment until recovered involves factors and alternatives different than those involved in the custody placement of a minor adjudged delinquent. To read the two statutes involved--the Mental Health Act ¹¹ and the Children's Code ¹²--is to recognize the different purposes served and necessarily different procedures required. The federal appeals court decision cited above, spelling out the 'least restrictive alternative' test, held that commitment of a mentally ill person for treatment was '. . . justifiable only when the respondent is 'mentally ill to the extent that he is likely to injure himself or other persons if allowed to remain at liberty. " ¹³ The wide range of factors involved in making an appropriate disposition in a child-adjudged-delinquent situation in order to serve the best interest of the child, with consideration for the interest of parents and the public, cannot be similarly capsulized or narrowed.

In the case before us, we hold, as did the reviewing circuit court, that the children's court judge did not only satisfactorily state reasons for the particular disposition made, but also satisfactorily considered other available alternatives to the particular disposition made. However, while upholding the particular disposition here made instead of any of the possible alternative dispositions, we do not adopt the 'least restrictive alternative' test, particularly not in the form urged by appellant. To justify any children's court placing of custody in the state department, appellant would require proof, not by preponderance of the evidence but beyond a reasonable doubt, ¹⁴ establishing '. . . (1) what alternatives are available; (2) what alternatives were investigated; and (3) why the investigated alternatives were not deemed suitable.' ¹⁵ This goes far beyond resolving doubts in favor of home placement. ¹⁶ It would end the choice by the judge of the disposition among those available, in the exercise of judicial...