No. 89-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF
J. F., a Youth.
m n-
s -7
I---
' '
"
-7 ~
i.7
APPEAL FROM: District Court of the Fourth Judicial ~istrict,-3
In and for the County of Mineral, r . , ~ p-s
1
-
-
The Honorable Jack L. Green, Judge presid&g.
COUNSEL OF RECORD:
For Appellant:
Douglas Anderson, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
M. Shaun Donovan, Mineral County Attorney, Superior,
Montana
For Amicus Curiae:
David Lambert and Teresa Demchak, National Center for
Youth Law, San Francisco, California
Submitted on Briefs: Jan. 11, 1990
Decided: February 22, 1990
0
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
J.F., a youth appellant, appeals from an Order of Commitment
entered by the District Court of the Fourth Judicial District,
Mineral County. We reverse and remand for a determination of a
lesser restrictive alternative for disposition of the youth
consistent with this Opinion.
This Court summarizes the issues on appeal as being whether
the District Court erred in rejecting the dispositional
recommendation of the Youth Placement Committee by placing the
youth in a secure facility when lesser restrictive measures were
available.
J.F. Is first brush with the law occurred on March 11, 1987,
when J.F. was 15 years old. On that date, he was charged with
burglarizing a theater in Superior, Montana. J.F. did not steal
anything nor cause any damage therein. For the offense, he was
placed on a six-month informal probation. On August 5, 1987, J.F.
committed an act of criminal mischief. Specifically, J.F. and a
friend took down and burned a Mineral County Fair street banner.
Both had been drinking at the time. On September 2, 1987, he was
placed on a one-year probation for the offense and ordered to pay
restitution.
J.F. was apprehended while burglarizing a grocery store in
Superior during the early morning hours of August 26, 1988, taking
beer, chips and ice cream. J.F. is alleged to have been drinking
before the incident. In response to the offense, the Mineral
County Attorney filed a Petition for Adjudication of Delinquency,
pursuant to § 41-5-103(13), MCA, on September 7, 1988.
On October 19, 1988, the Youth Court adjudged J.F. a
delinquent youth and ordered him committed to the Department of
Family Services for placement at Pine Hills School for Boys near
Miles City, Montana. The commitment was suspended subject to nine
conditions including the requirements that J.F. enter a chemical
dependency program to commence on or before November 3, 1988; that
he observe a curfew to be physically present at his home no later
than 10:OO p.m. on Friday and Saturday nights and 8:00 p.m. on all
other nights, subject to certain exceptions; and that he be subject
to all standard rules and regulations of probation. J.F. entered
the Northern Montana Chemical Dependency Program in Havre, Montana,
on November 3, 1988, and completed the program.
On February 12, 1989, J.F. was seen at a convenience store in
Superior at 3: 00 a.m. and was in possession of a can of beer.
Specifically, J.F. was suspected of stealing cookies and beer. As
a result, on March 6, 1989, the county attorney filed a petition
for revocation of the suspended order of commitment based on
violations of conditions. On April 19, 1989, a hearing was held
concerning the petition. During the hearing, J.F. admitted the
curfew violation. The court admonished J.F. for the incident and
continued probation.
That same evening, J.F. again violated curfew and was observed
in possession of a can of beer. The county attorney filed a second
petition for revocation of the suspended order of commitment on
April 26, 1989, in response to the violations. A hearing was held
on the matter on May 17, 1989.
On June 2, 1989, the Youth Placement Committee submitted a
recommendation to the court which stated that J.F. should not be
placed at Pine Hills School because it does not provide an alcohol
treatment program, of which J.F. is in need, and further
recommended appropriate treatment whether it be in- or out-
patient. On June 7, 1989, a hearing was held before the Youth
Court. Witnesses at the hearing included J.F.Is present counselor,
Donald Omdahl, and his probation officer, Mike McLean. Omdahl
testified that J.F. has had three alcohol dependency counselors in
six months and each time there was a new counselor "we basically
go back to square one .. .I1 Omdahl also stated that because of
J.F.Is age, his alcohol use and family problems contributed to his
reluctance to follow the court rules. McLean testified that there
had been ". . .some notable progress in his self confidencel1 and
I1improvement in his overall presentation."
The Youth Court ordered that J.F. be committed to the
Department of Family Services for placement at Pine Hills School.
J.F. was remanded to the custody of his mother pending
transportation arrangements. In its order of commitment the court
found that:
. . . the youth has willfully failed to abide by the
rules of probation and the conditions upon which his
commitment was previously suspended ... as a result of
his unwillingness to conform to the requirements of
probation as well as his underlying offenses of burglary
and criminal mischief, physical confinement in an
appropriate facility is necessarv for the protection of
the public and its property. (Emphasis ours.)
From the order, J.F. appeals on the basis that the court erred
rejecting the recommendation of the Youth Placement Committee and
that the court erred in designating J.F. as a danger to the public
and its property.
The issue is governed by the Montana Youth Court Act. Section
41-5-102(2), MCA, sets forth the express legislative purpose of the
Act as being that of supervision, care and rehabilitation of the
youth--not punishment. The disposition imposed is to be made in
accord with the best interests of the child. See In the Matter of
the Application of Peterson (Mont. 1989), 767 P.2d 319, 46 St.Rep.
Section 41-5-523, MCA, sets forth the alternatives for
disposition of a youth including:
(1) If a youth is found to be delinquent ... the youth
court may enter its judgment making any of the following
dispositions;
(a) place the youth on probation;
(b) commit the youth to the department if the court
determines that the youth is in need of placement in
other than the youth1 own home; provided, however, that:
s
(ii) in the case of a delinquent youth who is
determined by the court to be a serious
juvenile offender, the judge may specify that
the youth be placed in a youth correctional
facility if the judse finds that such
placement is necessary for the protection of
the public ;
(i) order such further care, treatment, evaluation, or
relief that the court considers beneficial to the youth
and the community .. . (Emphasis ours.)
In this case, the District Court ordered placement of J.F. in
the Pine Hills School and noted without explanation in its order
of commitment that such placement was I1necessaryfor the protection
of the public and its property.I1 The petition for revocation upon
which the District Court ordered confinement, was based upon the
curfew violation. However, the record reflects that J.F. is in
need of alcohol dependency treatment. pine Hills School provides
no such treatment and, thus, is an inappropriate setting for the
youth. The District Court should have considered a lesser
restrictive alternative which, under 5 41-5-523(1)(i), MCA, would
provide J.F. with such further care and treatment for alcohol
dependency as recommended by the Youth Placement Committee.
Reversed and remanded for a determination after consideration
of a lesser restrictive alternative for disposition of the youth,
who is now eighteen years old, consistent with this Opinion.
We Concur: /
Chief Justice
Justices
Justice Diane G. Barz dissenting.
The Youth Court did not err by ordering the youth committed
to the Department of Family Services for placement at pine Hills.
In its June 7, 1989 order the court set out the following
rationale:
THE COURT HEREBY FINDS that the youth has been
previously adjudicated as delinquent; that the
youth has obtained inpatient chemical
dependency treatment as well as outpatient
counseling and that every effort has been made
to address the needs and problems of this
youth in a community based setting.
THE COURT FURTHER FINDS that on at least three
occasions the youth has willfully failed to
abide by the rules of probation and the
conditions upon which his commitment was
previously suspended and that there is no
credible evidence to believe that the youth
will in the future be any more obedient to the
Orders of this Court than he has been
previously and that as a result of his
unwillingness to conform to the requirements
of probation as well as his underlying
offenses of burglary and criminal mischief,
physical confinement in an appropriate
facility is necessary for the protection of
the public and its property.
J.F. was ordered placed in Pine ills following adjudication
as a delinquent youth. Montana does not have a statute requiring
that the court consider and reject less restrictive alternatives
prior to commitment to a more secure facility. While these are
good policies, the Montana ~egislaturehas not chosen to enact such
considerations let alone provide sufficient financial resources for
such alternative placements.
There is no question that the Youth Court could have ordered
the commitment to Pine Hills implemented following the burglary in
its October 19, 1988 order. The Youth Court suspended the
execution of that order upon certain conditions which J.F.
consistently failed to follow. The fact that J.F. received in-
patient alcohol treatment and went through six different counselors
on an outpatient basis should take care of any concern that less
restrictive alternatives were not considered or attempted.
Section 41-5-523(1) (b), MCA (1989), is very clear that a court
can specify that a delinquent youth be placed in a correctional
facility if the youth is a serious juvenile offender and the judge
finds placement necessary for the protection of the public. In the
instant case the Youth Court should not be bound by the placement
committee's nonspecific recommendation that the youth be placed in
a treatment facility.
Finally, since J.F. has reached majority and is not eligible
for any youth programs or lesser restrictive alternatives to the
Pine Hills School, this appeal should be dismissed as moot.
Justice
Justice R.C. McDonough joins in the foregoing dissent of Jus
Diane G. Barz.