Opinion
A-14328 7122
07-24-2024
J.W., a minor, Appellant, v. STATE OF ALASKA, Appellee.
Tristan Bordon, Assistant Public Defender, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Juneau, Trial Court No. 1JU-22-00036 DL Marianna C. Carpeneti, Judge.
Tristan Bordon, Assistant Public Defender, and Terrence Haas, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
J.W., a minor, appeals the superior court's order committing him to the custody of the Department of Family and Community Services pursuant to AS 47.12.120(b)(1) - the statutory provision that allows the Department to place J.W. in a juvenile detention facility.
J.W. raises two claims on appeal. First, J.W. argues that the superior court committed legal error by misapplying a statutory provision. Second, J.W. argues that a (b)(1) detention order is not the least restrictive disposition to meet the goals of rehabilitation and the protection of the public.
For the reasons explained in this decision, we reject both claims of error and affirm the superior court's order.
Relevant facts
In the summer of 2022, the National Center for Missing and Exploited Children received a cyber tip that suspected child pornography was being uploaded to the communications application Discord by an IP address in the Juneau area. Following a police investigation, the user of the Discord account was identified as J.W., who was sixteen years old at the time. Following the execution of a search warrant on J.W.'s online accounts, thirty-three images of child pornography were recovered. The images included depictions of sexual penetration of children between seven and twelve years old, and also included depictions of children as young as three years old engaged in sexual contact or sexual positions.
The investigation determined that J.W. was messaging other users to obtain child pornography. J.W. also messaged other users who were teenage girls and enticed them to send him nude pictures in exchange for gift cards that J.W. did not actually send. In at least one instance, J.W. shamed the teenage girl who sent him nude pictures.
J.W. also engaged in role play with another user. During the role play, J.W. claimed to be thirty-two years old, and he claimed that he had sexually abused an eight-year-old whom he was babysitting.
In October 2022, the police interviewed J.W., who admitted to collecting and viewing the child pornography. J.W. reported that he had initially discovered how he could obtain the child pornography on a "gore website," and that he had subsequently sought it out for "the thrill because [he] knew it was bad." J.W. also reported that he was himself sexually abused more than once as a child.
In December 2022, J.W. was officially charged in a juvenile delinquency petition with seven counts of possession of child pornography. By this time, J.W. was seventeen years old. Following arraignment in January 2023, J.W. entered into a conduct agreement with the Division of Juvenile Justice. As part of the conduct agreement, J.W. agreed to report to his probation officer, attend school or vocational training, obey his mother, and abstain from any unsupervised internet access.
J.W. had previously seen mental health counselors and had been diagnosed with various mental health issues including major depressive disorder, generalized anxiety disorder, binge eating disorder, social anxiety disorder, and possibly attention deficit/hyperactivity disorder. He reported sadness, hypersomnia and insomnia, loss of interest, irritability, psychomotor retardation, and feelings of worthlessness. At various times, J.W. was prescribed bupropion, aripiprazole, trazadone, buspirone, sertraline, propranolol, lisdexamfetamine, and atenolol. It was expected that J.W. would continue to see a mental health counselor while he was complying with the conduct agreement. However, because of staff turnover and other problems, J.W. did not routinely see a mental health provider during this time.
J.W. had difficulties complying with his conduct agreement. Although he was never charged with violating the conduct agreement, the probation officer later reported that J.W. had not done well in his community placement with his mother. According to the probation officer, J.W. showed "a persistent refusal to attend school" and was "unwilling to seek employment or take alternative steps to pursue his education or vocation." J.W.'s mother reported that J.W. often refused to get up in the morning and was not taking the necessary steps to make positive changes. The probation officer noted that J.W. self-reported "being nonresponsive to probation attempts at interventions and support, including not answering his door on three separate occasions when probation attempted to visit the home." J.W. was unsupervised during the day while his mother was at work, and there were concerns that he had access to the internet during those unsupervised times (although there were no allegations that he had accessed any additional child pornography). J.W.'s mental health issues were reported to have worsened during this time. J.W. acknowledged that he had not addressed the issues related to his possession and distribution of child pornography with his mental health providers, although they were aware of the charges.
The parties ultimately reached a plea agreement, and in August 2023, J.W. was adjudicated a delinquent based on his admission to one count of possession of child pornography. Disposition was delayed and did not occur until December 2023.
AS 11.61.127.
At the disposition hearing, the State requested that the court order the most restrictive disposition - a (b)(1) order that commits the minor to the custody of the Department of Family and Community Services and allows the Department to place the minor in a juvenile detention facility.
AS 47.12.120(b)(1); see also AS 47.12.990(5).
As a general matter in a delinquency hearing, "[I]f the superior court decides to subject the minor to some level of ongoing government supervision, there are essentially three types of disposition available to the court under the provisions of AS 47.12.120(b)."
B.F.L. v. State, 233 P.3d 1118, 1119 (Alaska App. 2010). There is also a fourth option - subsection (b)(4) - if the court orders restitution "in lieu of or in addition to the court's order under (1), (2), or (3) of this subsection." AS 47.12.120(b)(4).
The least restrictive disposition is defined in subsection (b)(2) of AS 47.12.120. "Under this subsection, the court places the minor on probation (supervised by the Department), but releases the minor to the custody of parents, guardians, or other suitable persons."
B.F.L., 233 P.3d at 1119; see also AS 47.12.120(b)(2).
The next level of restriction is defined in subsection (b)(3) of AS 47.12.120. "Under this subsection, the court commits the minor to the custody of the Department, giving the Department the authority to release the minor to the custody of parents or guardians, or to place the minor in a foster home or any suitable nondetention residential facility."
B.F.L., 233 P.3d at 1119; see also AS 47.12.120(b)(3).
The highest level of restriction is defined in subsection (b)(1) of AS 47.12.120. "Under this subsection, the court commits the minor to the custody of the Department, giving the Department the authority to make any placement it deems appropriate - including placement in a detention facility."
B.F.L., 233 P.3d at 1119; see also AS 47.12.120(b)(1).
In the current case, J.W.'s probation officer testified that a (b)(1) order was needed so that J.W. could engage in sex offender treatment and receive more consistent treatment of his mental health issues. The probation officer argued that a less restrictive disposition would not work because there were no residential programs that would be suitable for J.W. other than the sex offender treatment program at McLaughlin Youth Facility. The probation officer pointed out that J.W. was already eighteen years old, and there was limited time remaining until his nineteenth birthday to address the dual concerns of rehabilitation and public safety. The probation officer emphasized that the Division's attempts to treat and rehabilitate J.W. in a non-custodial setting had been "largely ineffective." The probation officer also emphasized the risk to public safety that an untreated J.W. would represent, stating that actions like J.W.'s "directly contribute to child rape victimization and exploitation."
J.W. argued that the State had not met its burden of proving that a (b)(1) institutional order was the least restrictive disposition order available to meet the dual goals of rehabilitation and public safety. Instead, he argued for a "held-in-abeyance" disposition that would hold the adjudication in abeyance until J.W.'s twentieth birthday. (The jurisdiction of the juvenile court can extend to a defendant's twentieth birthday if it is in the best interests of the defendant and the defendant consents.) Under this plan, J.W. would remain in the community with his mother, and his probation conditions would include mental health treatment and some form of sex offender treatment. If J.W. successfully completed probation, the adjudication would be set aside.
Alaska Delinq. R. 21(d)(1)(B).
See AS 47.12.120(b)(1)(B), (b)(2)(B), (b)(3)(B).
Alaska Delinq. R. 21(d)(1)(B).
In support of his proposed held-in-abeyance disposition, J.W. relied on the report and testimony of a mental health professional, Dr. Kaichen McRae, who completed a sex offender risk assessment of J.W. Dr. McRae assessed J.W. as "relatively" low risk. (The Division had assessed J.W. in general as a moderate risk to the community.) Dr. McRae reported that she was unable to determine the degree to which he experienced a pedophilic attraction to children. She agreed that J.W. needed mental health treatment and sex offender treatment, but was concerned that a group setting like McLaughlin would be counter-therapeutic and ill-suited to J.W.'s mental health needs.
J.W.'s mother also testified at the disposition hearing. She expressed similar concerns that J.W.'s mental health would deteriorate if he were removed from his family and the only support system he had ever known.
The court issued its oral ruling two weeks after the disposition hearing. The court indicated that it was a very difficult decision that weighed heavily upon the court. The court noted that, if rehabilitation were the sole consideration, it would not necessarily be clear that a (b)(1) order would be appropriate. The court ultimately concluded, however, that the State had met its burden of proving that a (b)(1) institutional disposition order was needed to serve the dual goals of rehabilitation and public safety given the lack of any other appropriate treatment options in Alaska. In reaching this conclusion, the court emphasized the seriousness of the offenses and the fact that they were not victimless crimes. The court also emphasized J.W.'s age and the relatively little time remaining to effectuate his rehabilitation and address public safety. Lastly, the court emphasized J.W.'s non-engagement with his conduct agreement, finding that a held-in-abeyance order "would keep [J.W.] in the same place [he's] been for the last year and a half. And the State . . . presented clear evidence that that has not gotten us where we need to go."
This appeal followed.
Why we conclude that the court did not commit legal error by considering J.W.'s "potential for adult recidivism" with "the need to protect the public"
J.W.'s first argument on appeal presents a question of statutory interpretation. Alaska Statute 47.12.140 provides, in relevant part:
In making its dispositional order . . . the court shall
(1) consider both the best interests of the minor and the interests of the public, and, in doing so, the court shall take into account
(A) the seriousness of the minor's delinquent act and the attitude of the minor and the minor's parents toward that act;
(B) the minor's culpability as indicated by the circumstances of the particular case;
(C) the age of the minor;
(D) the minor's prior criminal or juvenile record and the success or failure of any previous orders, dispositions, or placements imposed on the minor;
(E) the effect of the dispositional order to be imposed in deterring the minor from committing other delinquent acts;
(F) the need to commit the minor to the department's custody or to detain the minor in a juvenile treatment facility, juvenile detention facility, secure residential psychiatric treatment center, or other suitable place in order to prevent further harm to the public;
(G) the interest of the public in securing the minor's rehabilitation; and
(H) the ability of the state to take custody of and to care for the minor[.]On appeal, J.W. argues that AS 47.12.140(1)(F) - "the need to commit the minor to the department's custody or to detain the minor in a . . . juvenile detention facility . . . in order to prevent further harm to the public" - is directed at risk factors that make the juvenile defendant immediately dangerous to the public. He asserts that it is not intended to address risk factors that might make the juvenile defendant dangerous to the public in the future. Accordingly, he argues that the superior court committed legal error when it considered J.W.'s potential for adult recidivism as relevant to the determination of whether detention was needed to prevent further harm to the public.
The interpretation of a statute is a question of law to which we apply our independent judgment. "[W]e interpret the statute according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose." "We do not mechanically apply the plain meaning rule, using instead a sliding scale approach to statutory interpretation in which 'the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.'"
Adamson v. Anchorage, 333 P.3d 5, 11 (Alaska 2014).
Id.
Id. (quoting McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska 2013)).
In the current case, J.W. does not cite to the legislative history other than to make the general point that the enactment of AS 47.12.140 was intended to put "the protection of the public" in juvenile cases "on equal footing with the goal of rehabilitation." But there is nothing in the text of the statute to suggest that these two goals cannot overlap, and J.W. does not point to any legislative history suggesting otherwise. Furthermore, we can see no practical or policy reason to treat the various factors listed in AS 47.12.140(1) as mutually exclusive from one another. To the contrary, it appears obvious that there will be some factors - such as the need to reduce a juvenile defendant's risk of recidivism - that will be relevant to both the rehabilitative and the public safety goals of the juvenile justice system.
See B.F.L. v. State, 233 P.3d 1118, 1122-24 (Alaska App. 2010).
We therefore reject J.W.'s reading of the statute and find no error in the superior court's legal analysis of the relevant factors.
Why we conclude that substantial evidence supports the superior court's conclusion that the (b)(1) disposition order is the least restrictive disposition available to J.W.
When determining the appropriate disposition for a juvenile who has been adjudicated a delinquent minor, AS 47.12.140 requires the court to consider "the best interests of the minor" and the "interests of the public" and to "order the least restrictive alternative disposition." The "least restrictive alternative disposition" is defined statutorily as the "disposition that is no more restrictive than is, in the judgment of the court, most conducive to the minor's rehabilitation taking into consideration the interests of the public." Alaska Delinquency Rule 11(e) similarly provides that the State bears the burden of proving, by a preponderance of the evidence, that the disposition is the "least restrictive alternative appropriate to the needs of the juvenile and the protection of the community."
AS 47.12.140(2).
Alaska Delinq. R. 11(e).
The law is clear that "the superior court can authorize a detention placement whenever the State presents substantial evidence that lesser measures will likely fail to meet the twin goals of disposition specified in AS 47.12.140(2) and Delinquency Rule 11(e)." We will therefore affirm a superior court's conclusion that a (b)(1) disposition is the least restrictive alternative if the conclusion is supported by substantial evidence, although what constitutes "substantial evidence" in this context is a question of law that we review de novo using our independent judgment.
B.F.L., 233 P.3d at 1124 (first citing G.A.D. v. State, 865 P.2d 100, 102 (Alaska App. 1993); then citing Matter of J.H., 758 P.2d 1287, 1291-93 (Alaska App. 1988)).
See I.J. v. State, P.3d, 2024 WL 3465076, at *5-6 (Alaska App. July 19, 2024) (clarifying the standard of review for juvenile delinquency dispositions); cf. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting a "clearly mistaken" standard of review for adult criminal sentences which requires the appellate court to independently review the sentencing record but to uphold the sentence if it falls within the permissible range of sentences that a reasonable judge would impose).
Having reviewed the record in this case, we conclude that there is substantial evidence supporting the superior court's conclusion that a (b)(1) placement is the least restrictive alternative given the seriousness of J.W.'s conduct, his advanced age, his need for sex offender treatment, and his lack of progress under the conduct agreement.
On appeal, J.W. seeks to downplay the seriousness of his conduct, pointing out that he was only adjudicated for a class C felony. But the class C felony for which he was adjudicated was possession of a significant amount of very graphic child pornography involving sexual penetration of prepubescent children. Moreover, the court was allowed to consider the totality of his conduct when determining the appropriate disposition, and the court could therefore properly consider J.W.'s manipulation of the teenage girls whom he convinced to send him pictures of their genitalia and then shamed them for doing so. The court could also consider other concerning conduct by J.W., including the fact that, as part of a role play, he claimed to have sexually abused an eight-year-old child.
See AS 47.12.140(1)(A)-(B).
We agree with J.W. that it was improper for the State to claim in its appellate brief that J.W. had "confessed" to sexually abusing an eight-year-old. The court did not make such a finding and the record is clear that the assertion was made in the context of a role play where J.W. was role playing as a thirty-two-year-old man.
J.W. also downplays his lack of progress under the conduct agreement, pointing out that the State never charged him with violating the agreement. But the record shows that J.W. repeatedly failed to abide by the conduct agreement, and that he remained unwilling (or perhaps unable because of his mental health issues) to engage in school or his other responsibilities. Given this record, we conclude that the superior court had good reason to reject a (b)(2) placement as inadequate to meet J.W.'s rehabilitative needs and to protect the public.
The superior court's decision to reject a (b)(3) placement is also well-supported by the record. The probation officer testified that there were no residential programs for which J.W. would be eligible where he could receive the sex offender treatment he needed. Instead, the only program that would fit his needs was the sex offender program at the McLaughlin Youth Facility. J.W.'s lawyer acknowledged this unfortunate fact, and neither she nor J.W.'s expert were able to put forward any sex offender treatment programs other than the program at McLaughlin.
As we have previously acknowledged, "[T]he requirement of a 'least restrictive alternative' disposition 'does not require that a child be allowed to fail at each successively more restrictive level of placement before placement in the next restrictive level may be made.'" "Rather, the superior court can authorize a detention placement whenever the State presents substantial evidence that lesser measures will likely fail to meet the twin goals" of rehabilitation and public safety. It is the State's burden to prove by a preponderance of the evidence that the chosen disposition is the "least restrictive alternative."
B.F.L., 233 P.3d at 1124 (quoting G.A.D., 865 P.2d at 102).
Id. (first citing G.A.D., 865 P.2d at 102; then citing J.H., 758 P.2d at 1291-93).
Id.
Here, the record shows that there was substantial evidence supporting the superior court's decision. It is clear from the court's comments that the court took great care in making this decision and that the court did not take ordering a (b)(1) disposition lightly. But given the limited amount of time remaining for J.W. to be rehabilitated in the juvenile justice system, J.W.'s failure in his home placement, and the absence of any identifiable alternative placements, we conclude that there was good reason to find that the only feasible option remaining for J.W. was the sex offender program at McLaughlin. We therefore uphold the superior court's (b)(1) disposition order in this case.
Conclusion
The judgment of the superior court is AFFIRMED.