Opinion
Case No. 5D04-1071.
Opinion filed June 18, 2004.
Petition For Writ of Habeas Corpus A Case of Original Jurisdiction.
Howard H. Babb, Jr., Public Defender, and Alisa Smith, Assistant Public Defender, Ocala, for Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
Petitioner, R.J., a juvenile, seeks a writ of habeas corpus to obtain his release from secure detention at the Marion County Juvenile Detention Center. We conclude that an evidentiary hearing is necessary to determine whether R.J.'s continued placement in secure detention is the least restrictive placement available that is consistent with the needs of the public, and accordingly grant the petition and remand to the trial court for further proceedings.
Nearly two years ago R.J. was charged with committing a sexual battery on a person under 18. Based on his risk assessment instrument, he was ordered to be held in secure detention. Six months later he entered a plea of no contest to a reduced charge of lewd and lascivious battery. After accepting the plea, the trial court ordered R.J. to be evaluated psychiatrically.
R.J. was evaluated by three different mental health professionals. Dr. Legum opined that R.J. had an I.Q. of 48, and was not competent to proceed, but might attain competency within 60 days in an outpatient setting. Dr. Legum was also of the opinion that R.J. did not meet the statutory criteria for involuntary hospitalization because there was no substantial likelihood that he would cause serious harm to himself or others. At the request of the State a second mental health professional, Dr. Ward, was then appointed to evaluate R.J. Dr. Ward agreed that R.J. was not competent to proceed, but concluded that he could not be trained for competency in the foreseeable future. He expressed no opinion regarding whether R.J. met the criteria for residential treatment. Finally, Dr. Land advised that R.J. had an I.Q. in the range of 50 to 70, and that because of his mental deficiency, was not competent to proceed. She agreed with Dr. Legum that R.J. did not meet the statutory criteria for involuntary hospitalization, because he did not appear to be a danger to himself or others.
Based on these reports the trial court adjudged R.J. incompetent to proceed. The court found that R.J.'s incompetency was due to mental illness, that he did not meet the criteria for residential commitment for restoration, and that he was not mentally retarded. It then committed R.J. to the custody of the Department of Children and Families ("DCF"), but in doing so concluded specifically that R.J. did not meet the criteria for secure placement set forth in section 985.223(3), Florida Statutes (2003). He ordered DCF to place R.J. "in a community treatment program as permitted by § 985.223(6)(a), Fla. Stat., which is the least-restrictive, most appropriate type of program available for the child consistent with the needs of public safety." Finally, the court stayed the proceedings, but ordered R.J. to be held in the Marion County Juvenile Detention Center, a secure detention facility.
R.J. was returned to secure detention based on this order. He received no competency restoration treatment until January 2004, six months after the court ordered treatment. He is still there.
In March of this year R.J. was allowed to withdraw his previously entered plea of no contest because the trial court determined that he was not competent to enter the plea. At the hearing at which this was accomplished, R.J. sought release from secure detention. A separate hearing was held a week later to consider the issue. After hearing argument, the trial court denied R.J.'s request for release from the Detention Center, and ordered that he continue to be held while receiving "outpatient" competency restoration treatment. It is with this background that R.J. seeks habeas corpus relief.
Section 985.223, Florida Statutes (2004), governs incompetency in juvenile delinquency cases. See also Fla. R. Juv. P. 8.095. This statute requires the court to hold a hearing to consider the child's competency if it has reason at any time to believe that the child is not competent. Subsection (3) of the statute indicates that if the court finds that a child is mentally ill or retarded, and adjudicates the child incompetent to proceed, as the trial court did with respect to R.J., then "the court must also determine whether the child meets the criteria for secure placement." The child may be placed in a secure facility if the court makes a finding by clear and convincing evidence that either of two conditions exists: that the child is not capable of surviving with the help of "willing and responsible" family and friends, and that without treatment the child is likely to suffer from neglect or refuse to care for himself or herself; or there is a substantial likelihood that in the near future the child will harm himself or others. The court must also determine that all available less restrictive treatment alternatives are inappropriate before the child can be placed in a secure facility.
The trial court specifically found at the competency hearing that R.J. did not meet the criteria for secure placement articulated in section 985.223(3), and none of the experts who testified concluded that a secure placement was appropriate. Section 985.223(6), Florida Statutes (2004), applies in this circumstance. The pertinent parts of that subsection read as follows:
(a) If a child is determined to be mentally ill or retarded and is found to be incompetent to proceed but does not meet the criteria set forth in subsection (3), the court shall commit the child to the Department of Children and Family Services and shall order the Department of Children and Family Services to provide appropriate treatment and training in the community. The purpose of the treatment or training is the restoration of the child's competency to proceed.
(b) All court-ordered treatment or training must be the least restrictive alternative that is consistent with public safety. Any placement by the Department of Children and Family Services to a residential program must be separate from adult forensic programs.
Despite the testimony of the mental health professionals, and the trial court's specific finding that R.J. did not meet the criteria for secure placement, the court returned him to the secure facility. The reason given by the trial court for this action was that "there seems to be the ______ least restrictive alternative that we can come up with to meet the public safety needs of the community." The problem with this conclusion is that there was no testimony presented at the hearing concerning whether secure detention was the least restrictive alternative. Moreover, no evidence of a plan for R.J.'s treatment was ever presented by DCF that stated that secure detention was the least restrictive alternative. In fact, no representative from DCF even attended the hearing.
The trial court appears to have relied on J.W. v. Department of Juvenile Justice, 742 So.2d 320 (Fla. 1st DCA 1999), in continuing R.J.'s placement. In J.W., however, the child was placed with his grandparents after being found incompetent, and was to receive treatment on an outpatient basis. The child thereafter violated court orders, and was charged with a new violation. At that point the trial court concluded that secure detention was the least restrictive alternative. Under those facts, the First District Court held that the proper remedy consistent with the statute had been fashioned by the trial court. We do not disagree. In R.J.'s case, however, there is no evidence concerning the least restrictive alternative.
A conclusion regarding the least restrictive alternative must be based on substantial competent evidence meeting the standard required by section 985.223. See also Fla. R. Juv. P. 8.095. It cannot be fashioned out of guesswork. We will, therefore, remand this case to the trial court for the specific purpose of holding a hearing and taking evidence, including evidence from DCF, to determine whether R.J.'s continued residency in secure detention is the least restrictive alternative that is consistent with the needs of the public. Cf. Dept. of Children Families v. C.R.C., 867 So.2d 592 (Fla. 5th DCA 2004).
PETITION GRANTED and REMANDED.
GRIFFIN and THOMPSON, JJ., concur.