P.W.G. v. State
| Decision Date | 13 November 1996 |
| Docket Number | No. 96-944,96-944 |
| Parties | 21 Fla. L. Weekly D2441 P.W.G., A Child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
Appellant seeks review of an order adjudicating him a delinquent child and committing him to the Department of Juvenile Justice (Department) for placement in a high risk restrictiveness level facility, specifically recommending Manatee Adolescent Treatment Service, a facility specializing in the treatment of adolescent sexual offenders. According to appellant, it was error to recommend that he be placed in such a facility because (1) he was not charged with a sexual offense, and consideration of prior, uncharged, criminal conduct violated his right to substantive due process of law guaranteed by the state and federal constitutions; and (2) the recommendation violates a federal consent decree by which the state agreed to abide regarding placement of adjudicated delinquent children in training schools. The state responds (1) that there is no statutory authorization for this appeal and that, therefore, we lack jurisdiction; and (2) that constitutional considerations are not implicated by the recommended placement, which is consistent with the broad statutory grant of power intended to permit the placement, and the treatment plan, best suited to each child's particular needs. We conclude (1) that we possess jurisdiction to hear this appeal; (2) that the recommended placement does not offend the due process clause of either the state or the federal constitution; and (3) that the trial court's action does not violate either the spirit or the letter of the federal consent decree. Accordingly, we affirm.
The state filed a delinquency petition charging that appellant had committed what would be the third-degree felony of making a destructive device if committed by an adult. Appellant pleaded guilty to the petition, and the Department was directed to prepare a predisposition report.
The predisposition report reflects the following about appellant who, at the time of the offense, was 15 years old. Appellant was physically and sexually abused during the first four years of his life, while living with his mother and her various boyfriends. At age four, he was removed from his mother's custody, and began receiving mental health treatment. He had been "hospitalized for assaultive behavior, playing with knives and razor blades." He "ha[d] a history of sexually inappropriate language and actions toward females." It was reported that, while residing in Ohio, he had sexually molested his three sisters, all of whom are legally blind. It was also reported that he had subsequently sexually abused a cousin. However, no charges were filed. He had recently been charged with sexual battery. However, that charge was eventually dismissed. "He admitted to suicidal thoughts[,] and stated he tried to kill himself 3 to 4 times by cutting his legs with glass." He had been treated for many years, both by medications and by therapy. He had been seeing a psychiatrist for more than ten years.
According to the predisposition report, appellant had previously been on community control because of an aggravated assault. One of the conditions of that supervision was that appellant participate in mental health counseling for sexual offenders. The counselor reported that appellant had not participated in the program, and had been terminated. He described appellant as "a very dangerous sexual predator," and believed that, if given the opportunity, there was a real possibility that appellant would "reoffend." The counselor had recommended that appellant "be placed in an in-patient facility with a juvenile sex offender's component."
The predisposition report concluded that, given appellant's history, he "could benefit from a residential treatment program that focuses on treatment for sexual offenders," such as Manatee Adolescent Treatment Service. Because such treatment was only available in programs classified as high risk restrictiveness level, the recommendation was that appellant be adjudicated a delinquent child and committed to the Department at such a level.
At the disposition hearing, the trial court recited appellant's history as reflected in the predisposition report. It then expressed concern about the recommendation that appellant be committed to a high risk restrictiveness level facility. In particular, it was uncertain about the effect of a consent decree entered in the federal case of Bobby M. v. Martinez, Case No. TCA 83-7003 MMP (N.D.Fla.). Accordingly, it passed the case until the following day, to afford the Department an opportunity to explain the effect of the Bobby M. decision on its ability to recommend a high risk placement.
The following day, without objection, the trial court read into the record a letter from the Department's case commitment manager:
This correspondence is to provide clarification in regard to the recommendation to the court from our Department. It is strongly felt by all parties that [appellant] is in need of long term residential care which will address the need for psychosexual therapy and intervention. The most appropriate placement is the Manatee Adolescent Treatment Service (MATS). This is a high risk placement and the admission criteria is [sic] not related to an offense history. The youth does need to be committed on some type of felony, only because the length of stay will range from 12 to 18 months.
The case counselor then explained that the Manatee program consisted "strictly [of] counseling and the treatment that is needed specifically for sexual offenders." It was not a "training school," as that term is used in the Bobby M. consent decree, and defined by statute.
Appellant's attorney did not object to the accuracy of any of the representations contained in the predisposition report. However, he did object to the recommended placement. He argued, first, that committing appellant at the recommended placement level would violate the Bobby M. consent decree; and, second, that it was impermissible to commit appellant to a program designed for the treatment of adolescent sexual offenders when he had not been charged with, or found to have committed, such an offense. The trial court overruled the objections. With regard to the Bobby M. argument, it said that the consent decree had addressed only the criteria for committing children to training schools, and the Manatee program was not a training school. With regard to the second argument, the trial court said that it was clear, based on appellant's mental health history, that the Manatee program was the most appropriate to address, and to attempt to correct, appellant's sexually aberrant behavior. Accordingly, the trial court accepted the Department's recommendation; adjudicated appellant a delinquent child; and committed appellant to the custody of the Department, for placement in a high risk restrictiveness level facility, specifically recommending the Manatee Adolescent Treatment Service. This appeal follows.
The procedure by which a trial court is to select the appropriate dispositional alternative in delinquency cases is set out in subsection (4) of section 39.052, Florida Statutes (1995). Among other things, that subsection requires that the trial court consider a predisposition report prepared by the Department and, if the trial court concludes that adjudication and commitment of the child to the Department are appropriate, the Department's recommendation as to what it believes to be the most appropriate placement and treatment plan. Subparagraph (e)3 of subsection(4) permits the trial court either to "commit the child to the [D]epartment at the restrictiveness level identified or [to] order placement at a different restrictiveness level." However, if the trial court opts for the latter alternative, it must "state for the record the reasons which establish by a preponderance of the evidence why [it] is disregarding the assessment of the child and the restrictiveness level recommended by the [D]epartment." That subparagraph then expressly provides that a decision by the trial court to disregard the Department's "assessment of the child and the [recommended] restrictiveness level" may be appealed by "[a]ny party."
The second sentence of paragraph (k) of subsection (4) reads, "It is not the intent of the Legislature to provide for the appeal of the disposition made pursuant to this subsection"--i.e., subsection (4). Reading that sentence and subparagraph (e)3 together, the state contends that a right of appeal from disposition exists only when the trial court elects not to follow the Department's "assessment of the child and the [recommended] restrictiveness level." Because such is not the case here, the state argues that we lack jurisdiction, and must dismiss the appeal. Appellant responds by reference to section 39.069(1), Florida Statutes (1995), which, he argues, permits an appeal in delinquency cases by a child of any order "affecting" him or her.
The intended meaning of the second sentence of paragraph (4)(k) of section 39.052, and the interplay between it and subparagraph (4)(e)3, are addressed in J.M. v. State, 677 So.2d 890 (Fla. 3d DCA 1996). The state's position here is consistent with that of the dissenting judge, Judge Cope. We find Judge Cope's dissent to be generally well-reasoned. However, we conclude that, because of the nature of the issues raised by appellant, it is unnecessary for us to decide what the legislature intended by the second sentence of paragraph (4)(k).
Although they disagreed about the intended meaning of paragraph (4)...
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