SEP 4 1990
No. 90-118
IN THE SUPREME COURT OF THE STATE W R q# LLIE COURT
g h r#-
ON'TAEJA
IN THE MATTER OF T.A.S.,
A Youth Under the Age of Eighteen
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Diana P. Leibinger and David E. Stenerson; Public
Defenders Office, Missoula, Montana
For Respondent:
Robert L. Deschamps, 111, County Attorney; Martha
E. McClain, Deputy County Attorney, Missoula,
Montana
Marc Racicot, Attorney General; Patti Powell, Asst.
Attorney General; Helena, Montana
Submitted on Briefs: July 20, 1990
Decided: September 4, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
T .A.S ., a youth, appeals from an order entered January 18,
1990 by the District Court of the Fourth Judicial District,
Missoula County. The Youth Court found: (1) that the youth had
committed the offense of domestic abuse, a misdemeanor, (2) is
ungovernable, and (3) that the youth had violated the terms of his
probation. Based on these findings and pursuant to the options
available to the Youth Court under 5 41-5-523, MCA, the court found
T.A.S. to be a delinquent youth and ordered that T.A.S. be
committed to the custody of the Department of Family Services
(Department) until he reaches the age of 19 years or sooner if
released by the Department. The Youth Court also found that T.A. S.
was in need of placement in other than his own home. From that
order T.A.S. appeals. We affirm.
The issues before this Court are:
1. Is 5 41-5-523, MCA, unconstitutionally broad and vague as
it relates to the disposition of a delinquent youth?
2. Did procedural errors in commitment proceedings deprive
appellant of equal protection under the law?
3. Did the Youth Court abuse its discretion when it committed
appellant to the Department of Family Services until the age of 19?
4. Was it error for the Youth Court and the Department of
Family Services to fail to seriously consider alternative
placement?
Appellant T.A.S. is a 16 year old minor. T.A.S.'s first
contact with Youth Court was on February 29, 1988, when T.A.S. was
14 years old. At that time the Youth Court found T.A.S. to be a
youth in need of supervision and ordered T.A.S. to be committed to
the custody of the Department for a 45-day evaluation. Following
the evaluation, a dispositional hearing was held and on July 13,
1988 the Youth Court ordered that T.A.S. be committed to the
custody of the Department with the recommendation that T.A.S. be
placed at the Excelsior Program in Spokane, Washington. Upon
T.A.S.'s completion of the Excelsior Program, a final dispositional
hearing was held on September 29, 1989. The Youth Court ordered
T.A.S. to be committed to the custody of the Department with the
recommendation that T.A.S. be placed at Pine Hills School for Boys
until he reached the age of 19 years or sooner released by the
Department. The Youth Court then suspended the order and T.A. S.
was placed on probation under the supervision of the Youth Court
Probation Department.
On January 18, 1990, T.A.S. again appeared in Youth Court.
The court found (1) that T.A.S. had caused bodily injury to his
sister by grabbing her around the throat and choking her which
constituted the offense of domestic abuse, a misdemeanor, in
violation of 5 45-5-206, MCA, (2) that T.A.S. was ungovernable in
violation of 5 41-5-103(14), MCA, and beyond the control of his
mother, and had left his mother's home without permission and did
not return, and (3) that T.A.S. had violated the terms of his
probation by failing to report to his probation officer as required
by his probation and by failing to complete counseling as directed
by his probation officer.
Consequently, the Youth Court found T.A.S. to be a delinquent
youth as defined in 5 41-5-103(13), and that the youth was in need
of placement other than his own home. The court ordered that
T.A.S. be committed to the custody of the Department until he
reaches the age of 19 years or sooner released by the Department.
It is from this order that T.A.S. appeals.
I
Is 5 41-5-523, MCA, unconstitutionally broad and vague as it
relates to the disposition of a delinquent youth?
Section 41-5-523, MCA, gives authority to the Youth Court to
commit a delinquent youth to the care and custody of the
Department. The Department determines the appropriate placement
and rehabilitation program for the youth after considering the
recommendations made by a youth placement committee. Sections 41-
5-523(2), 41-5-526, 41-5-527, MCA.
The Youth Court Act, 41-5-101, MCA, et seq., allows the
Department to place a youth in a youth correctional facility even
when the youth has not been declared a serious juvenile offender
by a youth court. T.A.S. challenges this authority as an
unconstitutionally broad delegation of unbridled power.
In response we point out several statutory limitations on the
Department's power of placement. Section 41-5-523(2)(b), MCA,
limits the maximum period a youth may be held in a youth
correctional facility to the maximum period of imprisonment that
could be imposed upon an adult convicted of the offense or offenses
that brought the youth under jurisdiction of a youth court. This
statute would require the Department to provide other appropriate
placement and rehabilitation once the maximum period is reached.
In addition, 5 41-5-523 (6), MCA, allows a youth court to modify
any of its orders at any time upon notice to the Department and
subsequent hearing. This Court has held that a youth court has
the authority to review the decision of the Department to determine
if the placement is in the best interests of the youth to assure
that the youth retains his rights in case the Department exceeds
or abuses its authority. In the Matter of Application of Peterson
on Behalf of B.S.M., a youth, (1989), 235 Mont. 313, 316, 767 P.2d
319, 321.
In addition, the Youth Court Act provides a procedure whereby
a youth placement committee makes recommendations for placement to
the Department and outlines the procedure the Department must go
through if it chooses to reject the committee s recommendation.
Section 41-5-527, MCA.
We hold that 5 41-5-523, MCA, is not unconstitutionally broad
on its face in giving the power to the Department to make
placements of youth committed to its custody and care by a youth
court.
T.A.S. also contends the statute is unconstitutionally vague.
The standard to judge a statute for vagueness is stated in State
v. Woods (1986), 221 Mont. 17, 22, 761 P.2d 624, 627.
The general rule is that a statute is void on its face
if it fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden.
United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct.
808, 98 L.Ed. 989; City of Choteau v. Joslyn (1984), 678
P.2d 665, 668, 41 St.Rep. 492, 497.
[Wlhere statutes are so vague and uncertain in their terms as to
convey no meaning or if the means of carrying out those provisions
are not adequate or effective, the courts must declare the penal
provisions void. Missoula High School Legal Defense Association
v. Superintendent of Public Instruction (1981), 196 Mont. 106, 112,
637 P.2d 1188, 1192.
The statute clearly outlines the options and limitations in
disposition available to a youth court and clearly places limits
on the Department in its placement and rehabilitation of youth
committed to its care and custody. We hold 5 41-5-523, MCA, is not
vague.
Did procedural errors in commitment proceedings deprive
appellant of equal protection under the Law?
T.A.S. argues that he was denied equal protection under the
law based on two separate theories. The first theory is that the
status of the youth, the financial resources of the parents, and
the available funds of the Department all work together to result
in some youthful offenders being treated differently than others
who are similarly situated. The basis of T.A.S.Is argument appears
to be that if the home environment of T.A.S. would have allowed
return to his home or if his mother would have had adequate
financial resources to provide alternative placement, T.A.S. would
not be placed in a youth correctional facility. There is no basis
in the record to indicate that the condition of T.A.S. Is home
6
environment or the financial resources of his mother were
determining factors in T.A.S.Is placement.
The second theory of T.A.S. Is equal protection argument is
that T.A.S. claims the Department failed to establish a record of
the placement committee proceedings that can be reviewed by this
Court. There is no basis in the record to substantiate T.A. S. I s
claim that no record was made.
Therefore, we hold that T.A.S. has failed to present any facts
which establish an equal protection claim.
Did the Youth Court abuse its discretion when it committed
appellant to the Department of Family Services until the age of 19?
It is well settled in Montana that absent a clear showing of
abuse of discretion, the District Court judgment will not be
overruled. Gray v. Gray (1990), 788 P.2d 909, 47 St.Rep. 552.
T.A.S. claims that because the offense that led to the Youth
Court's determination that he is a delinquent youth was only a
misdemeanor, he should not have been committed to the Department
for three years. T.A.S. contends this is two and a half years
longer than he could have been incarcerated for the offense if he
had been convicted as an adult and therefore was a clear abuse of
discretion.
Both the Youth Court Act and this Court have made it clear
that a delinquent youth is not committed to the Department as
punishment for a crime, but is committed as a delinquent youth for
care, protection and rehabilitation. Section 41-5-102(2), MCA.
In the Matter of C.S. (1984), 210 Mont. 144, 146, 687 P.2d 57, 59.
Commitment is strictly for rehabilitation, not retribution.
Section 41-5-106, MCA. C.S. 210 Mont. at 146, 687 P.2d at 59. The
purpose of the Youth Court Act is Ittoprovide a mechanism through
which the state can act as the parens patriae of its youth." Id.
at 147, 687 P.2d at 59. The Department fulfills that roll under
the Act and it was not an abuse of discretion to commit appellant
to the Department until the age of 19.
IV
Was it error for the Youth Court and the Department to fail
to seriously consider alternative placement?
Nothing in the record of the Youth Court proceedings in this
case indicate that the judge failed to consider alternative
placement. This was not the first time T.A.S. had been before the
Youth Court. In the previous actions, T.A.S. had been placed in
his mother's care, in an attention home, and in an out-of-state
rehabilitation program. Several times T.A.S. had run away. Under
these facts there is no indication that the judge has failed to
consider alternative placements for the appellant in this case.
Nothing in the record before this Court indicates a failure
of the Department to consider alternative placement. Absent a
proper record, this Court is not able to review T.A.S. Is claim.
Therefore, we hold that appellant has failed to establish his
claim on this issue.
The District Court is affirmed.
W Concur:
e ~2
Justices /