Opinion
Case No. 1D07-2915.
July 20, 2007.
Petition for Writ of Habeas Corpus — Original Jurisdiction.
Nancy A. Daniels, Public Defender, John W. Hedrick, Assistant Public Defender, and Spencer Bishins, Certified Legal Intern, Tallahassee, for Petitioner.
Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Heather F. Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Juvenile Justice, Tallahassee, for Respondent.
K.E., a child, petitioned this court for a writ of habeas corpus to challenge the validity of her detention, pending the outcome of a juvenile delinquency proceeding.
The court granted the petition and issued an order directing the Department of Juvenile Justice to release the child. By this opinion, the court now states the reasons for granting relief.
The child was accused of committing a battery on her mother and resisting a police officer without violence. Following a domestic argument in which the child was reported to have been throwing things around the house, the mother called the police. An officer arrived at the home, and the child allegedly pushed his arm away as he was attempting to handcuff her.
A detention hearing was held before Judge Angela Dempsey. Although the child had a total score of only two points on the risk assessment instrument, Judge Dempsey ordered that she be held in the custody of the Department of Juvenile Justice in secure detention. The child then petitioned this court for a writ of habeas corpus to challenge the validity of her detention.
While the petition was pending, the child entered a plea of nolo contendere to the two misdemeanor charges. Judge Dempsey accepted the plea and placed her on home detention, pending the disposition hearing. In light of this development, the state contended that the petition for writ of habeas corpus had become moot. The child replied that the controversy continued to exist, because her new detention order, although less restrictive, was still unlawful. Specifically, she argued that the second order was defective because it failed to explain the reasons for placing her in home detention. In response to this argument, the state took the position that the child should have been required to file a new petition for writ of habeas corpus directed to the home detention order.
We agree with the state that the validity of the initial order was rendered moot. However, the child remained in detention by virtue of the latest order placing her in home detention, and we can think of no reason why she should have been required to file a new habeas corpus petition challenging this order. She had been detained throughout the entire course of the case, and although her detention status was modified to a less restrictive form, it was still not authorized by law.
An order detaining a child in the custody of the state, pending a juvenile delinquency hearing, must comply with the statutes authorizing juvenile detention. See R.W. v. Soud, 639 So. 2d 25 (Fla. 1994);S.W. v. Woolsey, 673 So. 2d 152 (Fla. 1st DCA 1996). Section 985.24, Florida Statutes (2007), provides that a child may be detained only for the specific reasons given in the statute. Additionally, section 985.245 states that, in the absence of a specific statutory exception, an order placing a child in detention "shall be based on a risk assessment of the child."
The risk assessment is done uniformly throughout the state on a standardized document known as a Risk Assessment Instrument. According to the criteria set by this instrument, a child who has a score greater than twelve points qualifies for secure detention, a child who has a score of seven to eleven points qualifies for home detention, and a child who scores below seven points does not qualify for any form of detention.
A trial judge may deviate from the level of restrictiveness required by the scoring, but in that event, the judge must explain why the deviation is necessary. Section 985.255(3)(b) directs that "[i]f the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state in writing, clear and convincing reasons for such placement." (Emphasis added.) The written statement of the clear and convincing reasons for deviating from the level of restrictiveness indicated by the standardized scoring is not optional; it is required in order to make a more restrictive placement lawful. See D.B. v. State, 848 So. 2d 1219 (Fla. 3d DCA 2003).
The procedure for justifying a deviation promotes a broader legislative policy of controlling the use of detention. This policy is expressed in section 985.02(4), in the following terms: "The Legislature finds that detention should be used only when less restrictive interim placement alternatives prior to the adjudication and disposition are not appropriate." Other parts of Chapter 985 also reveal a legislative intent to minimize the use of detention. For example, section 985.115(1) states, "A child taken into custody shall be released from custody as soon as reasonably possible." Section 985.24(3) prohibits the use of detention to allow a parent to avoid responsibility, to facilitate the interrogation of a child, to permit more convenient access to a child, or because an appropriate housing facility is not available. And, section 985.24(4) directs that the Department of Juvenile Justice shall "continue to identify alternatives to secure detention."
If a trial judge were to treat the power to detain a child as a purely discretionary power, the purpose of the detention statute would be subverted. The Legislature has granted judges authority to exercise discretion in those exceptional cases that should not be governed entirely by the standardized scoring, but that discretion must be exercised according to the statutory procedures. Detention is not a remedy to be used indiscriminately.
The child in this case had a total score of two points, which is not enough to justify any form of detention without a written statement of clear and convincing reasons. Yet the order at issue does not explain why the trial judge believed that the child should be detained. The order has a blank space for stating the reasons for imposing a placement more restrictive than that indicated by the Risk Assessment Instrument. It appears that the words "child is care" were written in the blank but then crossed out. Nothing further is written in the blank space.
We would assume that the absence of a written explanation was merely an oversight, were it not for the fact that we have frequently explained the requirements of section 985.255(3)(b) to Judge Dempsey in published opinions and unpublished orders in other cases. Within the last eighteen months this court has issued writs of habeas corpus directed to Judge Dempsey in fourteen juvenile delinquency cases, including this one. In ten of the previous cases, the writs were issued because the judge either failed to give adequate reasons for departing from the risk assessment instrument or failed to give any reason at all.
T.A. v. Department of Juvenile Justice, 1D05-5807 (Kahn, Webster and Polston) (the court granted habeas corpus directing the release of a child in part because Judge Dempsey did not prepare a written order explaining the reasons for deviating from the risk assessment); Y.S. v. Department of Juvenile Justice, 1D05-6148 (Davis, Barfield and Hawkes) (the court granted habeas corpus and directed the immediate release of a child who had been held in secure detention, despite the fact that the child scored only one point on the risk assessment); K.C. v. Department of Juvenile Justice, 1D06-1392 (Kahn and Benton, Wolf dissenting) (the court granted habeas corpus and ordered the release of a child on the grounds that Judge Dempsey failed to comply with the requirements of the detention statute and that the child scored only one point on the risk assessment and did not otherwise qualify for secure detention); Z.B. v. Department of Juvenile Justice, 938 So. 2d 584 (Fla. 1st DCA 2006) (Wolf, Van Nortwick and Browning) (the court granted habeas corpus, concluding that a curfew violation does not qualify as "absconding" and that Judge Dempsey therefore erred in adding ten points for absconding to the child's original score of two points); G.T. v. Department of Juvenile Justice, 1D06-3989 (Wolf, Van Nortwick and Browning) (the court granted habeas corpus and ordered the release of a child on the ground that Judge Dempsey erred by adding ten points to the child's score of three points after expressing her view that it was "ridiculous" that the child's failure to complete the requirements of his probation did not amount to a new law violation); C.T. v. Department of Juvenile Justice, 1D06-5807 (Ervin, Browning and Allen) (the court granted habeas corpus and directed the immediate release of a child, because Judge Dempsey had erred by adding points for absconding, based on a curfew violation, contrary to the court's earlier opinion in Z.B., which involved a writ of habeas corpus directed to Judge Dempsey on the same point of law); D.P. v. Department of Juvenile Justice, 1D06-4032 (Browning, Wolf and Van Nortwick) (the court granted habeas corpus, concluding that Judge Dempsey had erred by adding one point to the score, thus making the child eligible for secure detention); K.C. v. Department of Juvenile Justice, 1D06-6050 (Browning, Davis and Lewis) (the court granted habeas corpus and released a child from secure detention on the ground that Judge Dempsey had failed to state clear and convincing reasons for deviating from the risk assessment instrument); H.D. v. Department of Juvenile Justice, 1D06-6580 (Davis, Wolf and Allen) (the court granted habeas corpus and directed the release of a child on the ground that he had not been charged with a crime of violence (possession of a pocket knife), as Judge Dempsey had concluded); T.D. v. Department of Juvenile Justice, 1D07-1377 (Kahn, Polston and Thomas) (the court granted habeas corpus and directed the immediate release of a child, concluding that the child did not meet the statutory criteria for detention and that Judge Dempsey had therefore erred by ordering him to be held in secure detention).
These errors lead us to conclude that our main point bears repeating. Juvenile detention is a matter that is controlled by legislation. It is not for us, as judges, to question the wisdom of the legislation. Rather, our task is simply to carry it out. Section 985.255, establishes the criteria for detaining a child, pending the outcome of a juvenile delinquency case. A decision to detain a child must be made according to the statutory criteria.
Petition granted.
ALLEN and BENTON, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED