|
COURT OF APPEALS DECISION DATED AND RELEASED December
21, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3361
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF BENJAMIN M.R.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
BENJAMIN
M.R.,
Defendant.
APPEAL
from an order of the circuit court for Clark County: MICHAEL W. BRENNAN, Judge.
Affirmed in part; reversed in part and cause remanded with directions.
SUNDBY,
J. This court[1]
held oral argument in this case on November 9, 1995, and announced its
tentative decision. The court also
ordered that the delinquent, Benjamin M.R., be returned to his home pending
this court's review of the trial court's decision placing Benjamin in Homme
Home, a treatment facility located approximately eighty miles from Benjamin's
home.
Benjamin
was found delinquent on September 8, 1995.
He does not dispute that finding.
On October 3, 1995, the trial court entered its dispositional order
placing Benjamin under the supervision of the County Department of Social
Services for twelve months and designating Homme Home as the placement
facility. Benjamin claims that the
trial court thereby misused its discretion.
We agree in part and reverse the order and remand for further
proceedings.
Benjamin
does not contest that part of the dispositional order which placed Benjamin
under the supervision of the department.
He claims, however, that the trial court erroneously exercised its
discretion when it failed to comply with § 48.355(1) Stats., which requires that the
juvenile court "shall employ those means necessary to maintain and protect
the child's well-being which are the least restrictive of the rights of the
parent or child and which assure the care, treatment or rehabilitation of the
child and the family, consistent with the protection of the public." Section 48.355(1) further provides:
Wherever possible, and, in cases of child abuse and
neglect, when it is consistent with the child's best interest in terms of
physical safety and physical health the family unit shall be preserved and
there shall be a policy of transferring custody from the parent only where
there is no less drastic alternative.
(Emphasis added.)
Benjamin
also complains that the juvenile judge did not make written findings of fact
and conclusions of law as required by § 48.355(2)(a), Stats., which provides in part:
In addition to the
order, the judge shall make written findings of fact and conclusions of law
based on the evidence presented to the judge to support the disposition
ordered, including findings as to the child's condition and need for special
treatment or care if an examination or assessment was conducted under s.
48.295.
This is not grounds for reversal if the trial court
adequately stated its reasons for its decision in a memorandum decision,
written or oral. See §
805.17(2), Stats. We are satisfied that the trial court
explained its reasoning, although it applied an incorrect standard.
At
oral argument, the parties agreed that "means ... which are the least
restrictive of the rights of the parent or child" and "no less
drastic alternative" are synonymous.
The parties also agreed that the "no less drastic alternative"
was undoubtedly derived from Joseph
Goldstein et al., Beyond The Best
Interests Of The Child (1973).
The authors proposed as a guideline for child placement, instead of the
"in-the-best-interests-of-the-child" standard, "the least
detrimental available alternative for safeguarding the child's growth and
development." Id. at
53.
The
authors quoted at length from a decision in which the juvenile court judge was
required to choose between placing a child with his common-law parents or his
biological parents. The judge reviewed
conflicting state policies, one of which favored the interests of the parents
and the other which favored the interests of the child. Id. at 108-11. The court concluded:
But after
reviewing the arguments for each of these policies, I return to the guidelines
that have governed my decisions. I am
convinced that, by and large, society must use each child's placement as an
occasion for protecting future generations of children by increasing the number
of adults-to-be who are likely to be adequate parents. Only in the implementation of this policy
does there lie a real opportunity for beginning to break the cycle of sickness
and hardship bequeathed from one generation to the next by adults who as
children were denied the least detrimental alternative.
Id. at 111.
The
authors also quoted a study, Anna Freud & Thesi Bergmann, Children In
The Hospital, 22-23 (1965):
Psychoanalytic
child psychology leaves no doubt that children are emotionally dependent on
their parents and that this dependence is necessary for purposes of normal
development; also, that relationships in a hospital are, at best, poor
substitutes for family relationships....
Id. at
122 n.14. This is equally true of
relationships in correctional or other care facilities.
Section 48.355(1),
Stats., uses the standard,
"[w]herever possible." The
word "possible" has a common meaning. Webster's Third New
International Dictionary 1771 (1976) defines "possible" as
"falling within the bounds of what may be done ...." Clearly, it is "possible" to
preserve Benjamin's family unit and still serve the rights of the parent and
child and assure his care, treatment or rehabilitation.
Benjamin's
social worker, Crystal Young, with the approval of her supervisor, Shirley M.
Williams, reported to the court that Benjamin will be required to complete a
sexual perpetrator's assessment with Ron McGuire's Therapy Center and follow
the recommendations for his treatment.
Clearly the department concluded that it was possible to treat Benjamin
and still preserve the family unit.
Benjamin has no prior court involvement. He admits the sexual assault offenses with which he was charged
and acknowledges the inappropriateness of his behavior.
Most
important is that Benjamin has an intact family consisting of his biological
parents and four siblings. His family
appears to be family-oriented, and actively involved with the Catholic Church
and community activities. The parental
discipline of the children is mutual.
Benjamin's parents report that Benjamin's involvement in sexual
activities has been "eye-opening."
They understand that his behavior has not been appropriate but they are
willing to work at providing Benjamin with appropriate guidance.
The
social worker reports that the small community of Loyal and the school have
been polarized by the charges against Benjamin. Apparently, members of the community and the school are taking
sides. The worker reports that the
victims are being re-victimized by the school and the community. The department obviously believes that
removing Benjamin from his family, his school and his community for at least
twelve months would not resolve the polarization. It may be necessary to involve Benjamin's peers in awareness
teaching to make them understand that behavior such as Benjamin's is
unacceptable. The social worker reports
that some of Benjamin's peers (and probable supporters) have chosen to make
comments, noises and "give looks" at Benjamin's victims.
The
sense which this court gets from the department's Dispositional Court Report is
that Benjamin and some of his peers do not accept that each of their female
peers is entitled to be treated with respect in all matters, especially sexual
matters. If, as some of the testimony suggests,
some of Benjamin's female peers have exhibited permissive attitudes, it may be
necessary that they too be involved in awareness instruction. Involving others in awareness instruction
or, if desirable, therapy will, of course, require the cooperation of
parents.
The
department's recommendations were that: (1) Benjamin be placed on one-year
formal supervision with the department; (2) he be placed at home by the
juvenile court; (3) he and his parents sign releases as requested by the
department and other service providers; (4) he be required to complete a
sexual perpetrator's assessment with the Therapy Center and follow the
recommendations for his treatment; (5) his completed assessment be
provided to the court; (6) he be read sanctions, which may be imposed for
violations; (7) he provide his victims with written apologies when his
therapist determines it is appropriate; (8) his parents participate in his
therapy if recommended by his therapist; (9) he not initiate any contact
with his victims in class or otherwise; and (10) he and his parents abide
by the basic rules of supervision. We
conclude that these recommendations meet the statutory standards.
Several
of Benjamin's victims and their parents testified at the dispositional
hearing. Their testimony was emotional
and compelling. If the objective of the
juvenile justice system were retributive rather than rehabilitative, Benjamin's
acts would justify stern punishment.
However, the department has faith that, with therapy, discipline, and
supervision, Benjamin may learn respect for others, especially his female
peers. We conclude, therefore, that
there are less drastic alternatives than removing Benjamin from his home and
breaking up the family unit.
We
have a responsibility to review the record and the trial judge's comments to
determine whether his order can be sustained despite the judge's failure to
make written findings of fact and conclusions of law as required by
§ 48.355(2)(a), Stats. The trial court considered the following
factors: Benjamin's unacceptable
behavior extended over a period of time; some of Benjamin's sexual contacts
were with friends and neighbors; some of his behavior occurred in the school
system where it was totally inappropriate; the opinions of the school teachers
may be discounted because none of them knew what the factual circumstances
were; some of the victims were re-victimized; even though theoretically
deterrence isn't part of the juvenile code, it still must be considered; the
polarization of the community and the school; deterrence and the mental health
of the school is a "spin-off" of Benjamin's placement outside his
home; Benjamin may not understand the seriousness of his offenses and is going
to go to school just as if virtually nothing happened; his rehabilitation is
not going to be effected by being back in the school district around people
"who are still remaining macho"; he is not presently participating in
"macho" activities but the people around him are; and he must learn
empathy and that is not going to be done under the circumstances.
We
conclude that the juvenile judge did not make the findings required by
§ 48.355(1), Stats. Nowhere in his comments did the juvenile
court judge find that it was not possible to preserve Benjamin's family unit
and there was no less drastic alternative than to take him out of his home, his
school and his community. Nor did the
juvenile judge find that there was a less restrictive disposition than removing
Benjamin from his home.
Much
has been written recently about the problem of juvenile behavior.[2] The juvenile justice code has been
rewritten. Communities, such as Loyal,
do not have to cope with the staggering problems of juvenile and adult
criminality in major metropolitan communities.
But the problems exist everywhere.
The profiles of juvenile
offenders and victims contained in the August 1995 report of the National
Center for Juvenile Justice makes clear that there is much misperception as to
the causes of juvenile delinquency and its incidence. See U.S. Department
of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and Victims: A National Report (1995). Sixty-nine million Americans are under age
eighteen. Id. at 2. Between 1990 and 2010, the juvenile
population will increase and become more racially and ethnically diverse. The greatest increase in the juvenile
population will not be in Black Americans but in Asian/Pacific Islanders (125%)
and Hispanics (71%). Id.
In
1960, one birth in twenty was to an unmarried woman; by 1990, one birth in four
was to an unmarried woman. Id.
at 10. Over the same period, the number
of divorces nearly tripled. Id. Two hundred thousand babies were born to
mothers under age eighteen in 1991 and four out of five of these mothers were
unmarried. Id. at
12. It is a tragic fact that more
children are living in single-parent households and in poverty. Id. at 10.
The
media reports the furor over the recent legislation banning local gun control
ordinances. However, the possession of
guns by juveniles is a very serious problem which must be addressed. In 1991, a gun was used in one in four
violent offenses against juveniles. Id.
at 21. The recent large increase in the
homicide rates of blacks and older juveniles is the result of increases in
firearm homicides. On a typical day in
this country in 1992, seven juveniles were murdered. Id. at 24.
However, little publicity is given to the number of young people who are
killing themselves. For every two
youths between the ages of zero and nineteen murdered in 1991, one youth
committed suicide. Id. at
27. Eighty-three percent of these
persons were male; eighty-eight percent were between ages fifteen and nineteen;
and eight-six percent were white. Id. The significance of these statistics is that
a high percentage of our young people are living lives of such hopelessness
that suicide is considered an acceptable alternative to their misery.
In
a recent guest editorial in the Wisconsin
State Journal, Dr. Jack Westman, a long-time child psychiatrist at the
University of Wisconsin Hospital, reported that the single greatest cause of
juvenile delinquency and adult criminality is parental neglect. Jack Westman, To Prevent Juvenile Crime
Provide Adequate Parenting, Wis. St.
J., May 26, 1995, at 13A. It
appears that Benjamin does not have that problem and, in this court's opinion,
society should consider long and hard whether an acceptable solution to the
problem of juvenile delinquency is out-of-home placement, at least where there
is an acceptable psychological or biological parent. The statistics on the number of children in substitute care are
discouraging. In 1992, six hundred and
fifty-nine thousand children were in substitute care. National Report at
40. The cost to society of such care is
staggering.
However,
not all statistics are so gloomy.
School dropout rates declined between 1978 and 1992. Id. at 14. Illicit drug use by juveniles declined
substantially during the 1980's,
particularly the use of cocaine and alcohol. Id. at 61.
The number of children aged fifteen to twenty killed in alcohol-related
traffic crashes declined fifty-four percent from 1982 to 1992. Id. at 62.
To
this court, the most discouraging statistic is the decline in the availability
of services to keep and treat juveniles within the juvenile justice
system. Between 1988 and 1992, the
number of juveniles waived by the juvenile courts to criminal courts increased
sixty-eight percent. Id.
at 154. From 1992 to mid-1995,
fifty-seven appeals were received by our court from waivers of juveniles into
adult court. Only three of these
waivers were reversed. The reason most
commonly given for waiver is the lack of adequate services and facilities to
care for juveniles needing treatment for chemical addiction and psychological
problems. If a child needs care and
treatment and is kept in the juvenile justice system, the county pays the cost
of such care and treatment. However, if
the child is waived into the adult system, the state pays such costs. As a result, decisions as to whether a child
will receive the necessary care and treatment in the juvenile justice system or
in the adult system are made not on the basis of the best interest of the child
but on who must bear the cost of care and treatment.
Most
knowledgeable persons concede that a child is more likely to be rehabilitated
in the juvenile justice system than in the adult justice system. Children waived into adult court may be
imprisoned at age sixteen and placed in the general prison population where the
average age is twenty-nine, of whom seventy percent are either chemically
addicted or drug abusers. Department of
Corrections newsletters. Hopefully,
despite the many legitimate criticisms of the new juvenile justice code, the
transfer of jurisdiction over the juvenile justice system from the State
Department of Health and Social Services to the Department of Corrections will
be positive simply because new faces will be looking at old problems.
The
problem of the juvenile delinquent is not going to go away in the near future
and, if we do not recognize that juveniles begin as children and identify
children and families at risk as early as possible, we will be bearing the
costs of care and treatment and construction of correctional facilities and
prisons for an increasing juvenile and adult criminal population. We must, however, deal with the problem of
children who have become delinquents.
Knowledgeable persons agree that reforming the conduct of a young person
such as Benjamin is most likely to occur in a loving family which teaches
family and community values but which is nonetheless ready to impose
appropriate discipline when necessary.
Although
this court reverses that part of the dispositional order which places Benjamin
in Homme Home, we do not reverse the order insofar as it adjudges Benjamin
delinquent and places him under the supervision of the department. Nor do we preclude the juvenile court from
placing reasonable conditions on Benjamin's home placement and his activities
outside his home.
By
the Court.--Order affirmed in
part; reversed in part and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.