In Re Tien F. ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE TIEN F.
No. 1 CA-JV 17-0582
FILED 6-28-2018
Appeal from the Superior Court in Mohave County
No. L8015JV201607045, L8015JV201707032, L8015JV201707046,
L8015JV201707054, L8015JV201707081
The Honorable Steven C. Moss, Judge
AFFIRMED
COUNSEL
Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
Mohave County Attorney’s Office, Kingman
By Deborah L. Hebert
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.
IN RE TIEN F.
Decision of the Court
J O N E S, Judge:
¶1 Tien F. (Juvenile) appeals the juvenile court’s order
committing him to the Arizona Department of Juvenile Corrections (ADJC).
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2017, Juvenile pleaded delinquent to one count of
possession of drug paraphernalia and was placed on standard juvenile
probation for twelve months.1 Two months later, Juvenile was prepared to
admit he had violated the terms of his probation by running away from
home, using marijuana, using prescription medication without a
prescription, skipping school, and violating the school dress code, but his
juvenile probation officer (JPO) filed a supplemental petition to revoke his
probation before disposition.
¶3 In May, Juvenile admitted violating the terms of his probation
by possessing tobacco on school grounds, committing a new offense of
disorderly conduct by domestic violence against his mother, and using
marijuana. At the time, Juvenile had been diagnosed with severe cannabis
use disorder and oppositional defiant disorder and assessed as a “very
high” risk on the Arizona Youth Assessment System. The juvenile court
found the juvenile probation department had made reasonable but
unsuccessful efforts to provide services that would allow Juvenile to remain
at his home and ordered Juvenile be placed in a residential shelter. At
disposition, the court placed Juvenile on intensive juvenile probation until
his eighteenth birthday. A few weeks later, Juvenile admitted violating the
terms of his probation by running away from the shelter.
¶4 On July 3, 2017, Juvenile returned to the care of his mother.
One week later, Juvenile admitted he had again violated the terms of his
probation by committing a new offense of disorderly conduct by domestic
violence against his mother and running away from home. During this
period, Juvenile tried LSD. The following month, Juvenile again admitted
violating the terms of his probation, this time by breaking into his mother’s
safe, removing her medical marijuana, and using it. He also admitted he
possessed drug paraphernalia and failed to charge his tracking unit as
1 We view the facts in the light most favorable to sustaining the
juvenile court’s order. In re Amber S., 225 Ariz. 364, 366-67, ¶ 6 (App. 2010)
(citing In re John M., 201 Ariz. 424, 426, ¶ 7 (App. 2001)).
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IN RE TIEN F.
Decision of the Court
directed. After each admission, the juvenile court found Juvenile violated
his probation and reinstated him on juvenile intensive probation.
¶5 Juvenile was placed in residential treatment at a therapeutic
group home in September 2017. In November, Juvenile again admitted
violating the terms of his probation by stealing cash from a vehicle, using
the proceeds to purchase marijuana, and smoking the marijuana at the
group home.
¶6 At the disposition hearing on the newest offenses and
probation violations held in December 2017, the assigned JPO reported
Juvenile had received approximately thirteen referrals (under five separate
juvenile court case numbers) in the previous fourteen months, suggesting
“a blatant disregard” for the law and juvenile court’s orders. The JPO noted
that while Juvenile had been offered a myriad of services to address his
substance abuse and poor decision-making — including counseling, drug
testing, and residential treatment — Juvenile was non-compliant, and the
services were ineffective. Thus, Juvenile continued to exhibit a pattern of
aggressive and violent behavior when frustrated that caused the JPO
concern for the safety of others. Additionally, based upon the standardized
assessment tool, Juvenile was considered a moderate-high risk to reoffend
without residential intervention. Accordingly, the JPO recommended
Juvenile be committed to ADJC. Juvenile’s mother agreed the residential
treatment was ineffective and expressed concern for her safety should
Juvenile return to her care.
¶7 Noting that Juvenile’s history included two felony
adjudications for possession of drug paraphernalia; three misdemeanor
adjudications for two separate instances of disorderly conduct by domestic
violence and theft; one as-yet undesignated offense of solicitation to commit
burglary; and countless probation violations, reflecting a “regularly
progressing devolution . . . to more and more serious offenses,” the juvenile
court ordered Juvenile to be committed to ADJC for at least thirty days,
where he would be evaluated and considered for participation in various
treatment programs. Juvenile timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 8-235(A),2 12-120.21(A)(1),
and -2101(A)(1). See Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, 513, ¶ 3
(App. 2000) (“[T]he final order in a delinquency action is the disposition
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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IN RE TIEN F.
Decision of the Court
order.”) (citing Maricopa Cty. Juv. Action No. J-78151-S, 119 Ariz. 320, 321
(App. 1978)).
DISCUSSION
¶8 “The juvenile court has broad discretion to determine an
appropriate disposition for a delinquent juvenile.” In re Niky R., 203 Ariz.
387, 390, ¶ 10 (App. 2002) (citing In re Kristen C., 193 Ariz. 562, 563, ¶ 7 (App.
1999)). Accordingly, we will not modify the court’s disposition absent an
abuse of discretion. Id. (citing Kristen C., 193 Ariz. at 563, ¶ 7). A court
abuses its discretion “when the [disposition] decision is arbitrary or
capricious, or when the court fails to conduct an adequate investigation into
the facts relevant to [disposition].” State v. Fillmore, 187 Ariz. 174, 184 (App.
1996) (citing State v. Stotts, 144 Ariz. 72, 87 (1985)).
¶9 Generally, the juvenile court’s options at disposition “range
from the less severe (probation on specified terms) to the most severe
(commitment to ADJC up to age eighteen).” Amber S., 225 Ariz. at 367, ¶ 9;
see also A.R.S. § 8-341(A)(1). Before committing a juvenile to ADJC,
however, the court must consider the following guidelines promulgated in
the Arizona Code of Judicial Administration § 6-304(C)(1) (Guidelines):
a. Only commit those juveniles who are adjudicated for a
delinquent act and whom the court believes require
placement in a secure care facility for the protection of
the community;
b. Consider commitment to ADJC as a final opportunity
for rehabilitation of the juvenile, as well as a way of
holding the juvenile accountable for a serious
delinquent act or acts;
c. Give special consideration to the nature of the offense,
the level of risk the juvenile poses to the community,
and whether appropriate less restrictive alternatives to
commitment exist within the community; and
d. Clearly identify, in the commitment order, the offense
or offenses for which the juvenile is being committed
and any other relevant factors that the court
determines as reasons to consider the juvenile a risk to
the community.
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IN RE TIEN F.
Decision of the Court
¶10 With the exception of subsection (a), the Guidelines are “just
that: guidelines; they are not mandatory and do not place constraints on the
juvenile court’s discretion” to determine whether commitment to ADJC is
appropriate. Niky R., 103 Ariz. at 390, ¶ 12 (quoting Pinal Cty. Juv.
Delinquency Action No. JV-9404492, 186 Ariz. 236, 238 (App. 1996), and citing
In re Melissa K., 197 Ariz. 491, 495, ¶ 14 (App. 2000)). Nor must they be
applied “in a mechanical fashion.” Id. at ¶ 13. Rather, the court must
determine, “under the unique circumstances of the particular juvenile,”
whether commitment to ADJC is appropriate. Id.
¶11 Here, the juvenile court found Juvenile’s commitment to
ADJC was appropriate based upon his violent behaviors and the
progressively serious nature of his offenses. Juvenile argues this was error
because less restrictive alternatives — commitment to a secure residential
treatment facility or placement with his father — existed. But the mere
existence of a less restrictive alternative does not establish an abuse of
discretion so long as the court “give[s] special consideration to . . . whether
appropriate less restrictive alternatives to commitment exist.” Ariz. Code
Judicial Administration § 6-304(C)(1)(c); see also Niky R., 203 Ariz. at 390,
¶ 19 (“[T]he [G]uidelines do not mandate that the less restrictive alternative
be ordered.”).
¶12 The record reflects Juvenile’s counsel argued for Juvenile to
be placed either in a secure residential treatment facility or with his father
in California. The State responded that, in addition to issues with funding
Juvenile’s placement at such a facility, (1) there was no psychiatric
evaluation concluding a secure residential treatment facility was
appropriate to address Juvenile’s behavior, and (2) Juvenile chose not to
participate in other services. Juvenile’s mother added that Juvenile had had
no recent contact with his father.3
¶13 The juvenile court had all the relevant information before it,
considered Juvenile’s arguments in favor of alternate dispositions, and
ultimately determined commitment to ADJC was appropriate. We will not
second-guess its evaluation of the circumstances on appeal so long as the
disposition is not grossly excessive. Cf. State v. Becerra, 111 Ariz. 538, 541
3 Given this evidence supporting the juvenile court’s decision not to
place Juvenile in a secure residential treatment facility, we reject Juvenile’s
suggestion that “[t]he court only imposed ADJC because the state was
unwilling to expend county funds for treatment.” Accordingly, the record
does not support Juvenile’s claim that the court violated his constitutional
rights by denying residential treatment solely on the basis of funding.
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IN RE TIEN F.
Decision of the Court
(1975) (finding no sentencing error when the trial court gave no explanation
for declining to grant probation). Given the record evidence of Juvenile’s
violent behavior, disregard for the court-ordered terms of probation, and
devolution into progressively more serious offenses, we find no abuse of
discretion in the juvenile court’s disposition order. See, e.g., JV-9404492, 186
Ariz. at 238-39 (affirming a disposition order committing a juvenile to ADJC
where the juvenile was a repeat offender and the JPO testified juvenile’s
“lack of commitment” made him an inappropriate candidate for less
restrictive alternatives); Amber S., 225 Ariz. at 368, ¶¶ 11-12 (noting the
juvenile court “could have simply committed Juvenile to ADJC” after
finding she had been unable to comply with “even nominal probation
terms”).
CONCLUSION
¶14 The juvenile court’s disposition order is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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