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COURT OF APPEALS DECISION DATED AND RELEASED June 25, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0844
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE INTEREST OF
ROBERT F.,
A PERSON UNDER THE AGE
OF
EIGHTEEN:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
ROBERT F.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Douglas County:
JOSEPH A. McDONALD, Judge. Affirmed.
MYSE, J. Robert F. appeals an
order waiving juvenile jurisdiction over him.[1] Robert contends that the circuit court
erroneously exercised its discretion because it failed to consider and make
specific findings regarding the adequacy and suitability of services within the
juvenile system. Because the circuit
court specifically considered retaining Robert in the juvenile system as an
alternative and found the alternative to be inappropriate, the order is
affirmed.
On March 6, 1996, the
State filed a juvenile petition alleging that Robert had committed two counts
of substantial battery and one count of robbery. The State also filed a petition requesting the circuit court to
waive its juvenile jurisdiction over Robert.
At the time of the hearing on the waiver petition, Robert was sixteen
years and seven months of age.
At the waiver hearing,
Patricia Schanen, the chief juvenile court intake worker for Douglas County,
testified that she had been Robert's juvenile case worker for his previous
contacts with the juvenile court system.
She testified that Robert is enrolled in the tenth grade at Northwoods
School. Robert has received favorable
reports from his principal and is scheduled to graduate with his class. There is, however, a concern by school
officials that Robert may be "a time bomb ready to go off." At the request of the school, Robert
received psychiatric testing, which showed that he had a conduct disorder, an
average IQ, poor impulse control and a tendency to blame other people. Robert also participated in counseling, and
the counselor told Schanen that Robert was not amenable to treatment because he
did not see any problems in his behavior and had no desire to change.
Robert's previous
juvenile record includes a consent decree on a weapons charge in January 1995,
an adjudication on a burglary in June 1995, and adjudications on burglary and
battery in February 1996. According to
Schanen, Robert complied with the dispositional orders, finished his community
service, and made full restitution for his previous juvenile cases.
Schanen also testified
regarding the serious nature of the crimes alleged, Robert's seeming lack of
remorse for his actions, and the fact that the new offenses occurred shortly
after Robert had appeared for a dispositional hearing on the previous burglary
and battery. Schanen contacted two
child care institutions to determine if Robert's placement with the
institutions would be appropriate. In
each case, the institution indicated that Robert was not eligible for placement
based upon his past behavior as described by Schanen. Schanen concluded that placement outside secured detention, such
as Lincoln Hills, would not adequately meet Robert's needs. Because Schanen believed the adult system
would be more appropriate for addressing Robert's needs, Schanen recommended
waiver of Robert into adult court. The
circuit court followed the recommendation and waived juvenile jurisdiction over
Robert.
The decision whether to
waive juvenile jurisdiction is addressed to the sound discretion of the circuit
court. In re J.A.L., 162
Wis.2d 940, 960, 471 N.W.2d 493, 501 (1991).
The circuit court's decision must be based on the criteria listed in §
48.18(5), Stats., and the record
must show that the court examined these criteria and set forth its reasons for
waiver with sufficient specificity for meaningful review. In re C.D.M., 125 Wis.2d 170,
176, 370 N.W.2d 287, 290 (Ct. App. 1985).
This court will look for reasons to sustain the circuit court's
discretionary decision and will not find an erroneous exercise of discretion as
long as there is a reasonable basis for the court's determination. J.A.L., 162 Wis.2d at 961, 471
N.W.2d at 501; In re G.B.K., 126 Wis.2d 253, 259, 376 N.W.2d 385,
389 (Ct. App. 1985).
Section 48.18(5), Stats., sets forth the factors the
circuit court must consider and provides in relevant part:
If prosecutive merit is found, the judge,
after taking relevant testimony which the district attorney shall present and
considering other relevant evidence, shall base its decision whether to waive
jurisdiction on the following criteria:
(a) The personality and prior record of the child, including
whether the child is mentally ill or developmentally disabled, ... the child's
motives and attitudes, the child's physical and mental maturity, the child's
pattern of living, prior offenses, prior treatment history and apparent
potential for responding to future treatment.
(b) The type and seriousness of the offense, including whether it
was against persons or property, the extent to which it was committed in a
violent, aggressive, premeditated or wilful manner, and its prosecutive merit.
(c) The adequacy and suitability of
facilities, services and procedures available for treatment of the child and
protection of the public within the juvenile justice system, and, where
applicable, the mental health system and the suitability of the child for
placement in the youthful offender program under s. 48.537 or the adult
intensive sanctions program under s. 301.048.[2]
Robert
contends that the circuit court failed to consider and make specific findings
concerning the adequacy and suitability of services in the juvenile system
under § 48.18(5)(c), Stats.[3] This court rejects Robert's argument because
the record reflects that the circuit court considered and made a finding
regarding this criteria.
Section 48.18(6), Stats., "does no more than direct
the juvenile court to state on the record its findings with respect to the
criteria actually considered." G.B.K.,
126 Wis.2d at 256, 376 N.W.2d at 388.
The circuit court met this requirement as it stated its findings with
respect to the criteria in § 48.18(5)(c), Stats. In its decision, the court stated:
The activities that he's charged with are
serious and shows no remorse, pursuant to the petitions, which is contrary to
what he does.
....
He is
mature in regards to chronological age and his physical appearance. And the only possibility of treatment in the
juvenile system would be Lincoln Hills under the circumstances. There—the juvenile system is not adequate to
provide the treatment, and it is in the best—his best interest and society's
best interest that the waiver petition be granted.
The court specifically
made a finding that the juvenile system is not adequate to provide treatment
for Robert. The court heard testimony
from Schanen that the two child care institutions she contacted would not take
Robert based on his history and that Robert's previous counselor told her that
Robert was not amenable to treatment.
Further, Schanen testified that the adult system would be more
appropriate for Robert than Lincoln Hills.
The circuit court found that based on Schanen's testimony and the
circumstances in this case including the seriousness of the offense and
Robert's lack of remorse, the juvenile system was inadequate for Robert's
needs. Based on the court's findings
and Schanen's testimony, this court is satisfied that the circuit court
properly considered and made a specific finding regarding the adequacy and
suitability of services in the juvenile system. The court's finding was made with sufficient specificity and a
reasonable basis existed for the court's finding. See G.B.K., 126 Wis.2d at 259, 376 N.W.2d at
388.
Robert also argues that
the circuit court erroneously exercised its discretion because it did not
specify the reasons for rejecting Lincoln Hills as an alternative. Because the record reflects a reasonable
basis for the court's rejection of Lincoln Hills as an alternative, this court
rejects Robert's argument. See id. The record shows that Robert has a conduct
disorder, poor impulse control and a tendency to blame other people. A counselor also indicated that Robert was
not amenable to treatment because he did not see any problems in his behavior
and had no desire to change. Further,
the seriousness of the offense, his lack of remorse and his age support the
court's determination not to employ Lincoln Hills as an alternative. As an adult, the court may employ many
sentencing options such as confinement in the community, intensive sanctions,
or participation in psychological treatment programs as a condition of
probation. Any or all of these options
may be more suitable to Robert's needs than confinement in a secured detention
facility, such as Lincoln Hills, in an area removed from his family and
community. Accordingly, this court
concludes that there was a reasonable basis for the circuit court's rejection
of Lincoln Hills as an alternative.
Finally, Robert suggests
that because Schanen contacted the two child care institutions the day before
the waiver hearing and their placement refusal was based solely upon Schanen's
description of Robert rather than a personal interview, the circuit court erred
in its conclusion that placement in a child care facility was not
available. This court disagrees. Schanen made inquiries to the institutions
regarding Robert's suitability for placement and the institutions indicated
Robert was not eligible for placement with them. The suggestion that the inquiry was not made in good faith is
conclusory and is not supported by evidence in the record. If Robert felt placement in a child care
institution was appropriate, he was free to propose institutions willing to
accept him and describe the type of program available. Robert made no such showing. This court concludes that Schanen's
testimony regarding her inquiry as to Robert's suitability to two child care
institutions is sufficient to support the circuit court's determination that
placement in such a facility was not available in this case.
Because the circuit
court considered the adequacy of and suitability of the services within the
juvenile system and made a specific finding that the juvenile system would be
inadequate for Robert's needs, this court affirms the order.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.