dissenting.
I respectfully dissent from the méjority's holding that there is clear and convincing evidence that M.L.H. is likely to repeat an act that would be a sex offense if committed by an adult. In my view, a juvenile should not be deemed an offender simply because he is not "hangdog" enough for the court.
In determining whether MLH. was likely to repeat, the trial court looked to Dr. Ofstein's four risk factors: (1) a lack of empathy and remorse, (2) failure to fully accept responsibility and accountability, (3) failure to demonstrate safe behaviors, and (4) lack of a support group or network. Tr. at 8. While the majority correctly states that Dr. Ofstein testified that MLH. displayed minimal empathy, Dr. Ofstein also conceded that it is very difficult to measure the level of empathy one exhibits. Tr. p. 17.
None of the other risk factors is demonstrably present. M.L.H. showed that he accepted responsibility for his actions by regularly participating in and successfully completing fifteen months of treatment and by complying with all the conditions of his probation for the two-year period between the disposition hearing and the registry hearing at issue here. Tr. p. 30, Appellant's App. p. 131. Moreover, probation officer Rochelle Pritchard wrote in her Review Summary of M.L.H's case that any failure by MLH. to internalize his therapy is explained, in part, by Michael's "prior therapist who did not push [him] to evaluate his sexual issues." Appellant's App. p. 128. Additionally, Dr. Ofstein agreed that there was "no indication at all about failure to demonstrate safe behaviors" because M.L.H. had not acted out sexually while in treatment or in the months following treatment. Tr. p. 20. Finally, M.L.H. did not suffer from limited social involvement, which is characteristic of many who commit sexual offenses according to Dr. Ofstein. Tr. p. 19-20.
Additionally, Dr. Ofstein testified that the percentage of sex offenders who re-offend is approximately 18%, but that this average is lower for incest offenders, as is the case here. Tr. p. 8. Considering that such a small percentage of people in this situation re-offend and that the court's decision is almost entirely based on minimal empathy, which is difficult to measure, I cannot agree with the majority's conclusion that the evidence is clear and convine-ing that M.L.H will re-offend. I would therefore vacate the trial court's order that he register as a sex offender.
ORDER
The Appellant, by counsel, has filed a Motion to Publish, seeking an order to publish the October 8, 2003 Memorandum Decision pursuant to Appellate Rule 65, for the reason that the dissenting opinion clarifies the proper scope of appellate review of challenges to the sufficiency of evidence for juvenile sex registry claims, implicitly criticizes the existing law on the subject and involves an issue of significant public importance.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
1. The Appellant's Motion to Publish is GRANTED, and this Court's opinion handed down on October 8, 2003, marked Memorandum Decision, Not for Publication, is now ORDERED published.
All Panel Judges concur.