In Re: Richard M. ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE: RICHARD M.
No. 1 CA-JV 14-0128
FILED 10-14-2014
Appeal from the Superior Court in Maricopa County
No. JV181735
The Honorable Utiki Spurling Laing, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Appellee
Maricopa County Public Advocate, Phoenix
By Terri Zimmerman
Counsel for Appellant
IN RE: RICHARD M.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
B R O W N, Judge:
¶1 Richard M. appeals the juvenile court’s order requiring him
to register as a sex offender. Because we find no abuse of discretion, we
affirm.
BACKGROUND
¶2 In two separate instances during February 2011, when he was
age fifteen, Richard was caught exposing himself and masturbating in the
presence of women. Richard pled delinquent to two counts of indecent
exposure, class 1 misdemeanors, and one count of assault, a class 3
misdemeanor, arising from an unrelated incident. The plea agreement also
incorporated Arizona Revised Statutes (“A.R.S.”) section 13-3821(D), which
gives the juvenile court discretion to order sex offender registration for
juveniles who have committed certain enumerated crimes.
¶3 At the disposition hearing in May 2011, the juvenile court
placed Richard on probation and ordered him to adhere to standard and
sex offender conditions of probation. The court deferred a decision as to
whether Richard would be required to register as a sex offender.
¶4 Due to a probation violation, Richard was placed in the
physical custody of Youth Development Institute (“YDI”) in July 2011 and
remained there until he was released to the custody of his mother in August
2013. The YDI discharge report stated that Richard was being discharged
because he had received “maximum benefit from the treatment program,”
but needed to “receive support” during his transition home. According to
his probation officer, Richard was released from YDI because he was no
longer making progress in his treatment. In addition to the standard and
sex offender probation terms, Richard was required to continue treatment
at an outpatient facility called Resolution Group.
¶5 Just one month into his treatment at Resolution Group,
Richard was discharged from the program for refusing to attend group
sessions and failing to actively participate in treatment. Richard’s
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IN RE: RICHARD M.
Decision of the Court
probation officer filed a petition to revoke probation and a juvenile referral
outlining multiple violations of the standard and sex offender probation
terms, including failure to return home, failure to report to his surveillance
officer, and failure to remain in sex offender treatment. The court issued a
warrant and Richard was detained in September 2013. At the advisory
hearing, Richard admitted to one count of the probation violation petition
and the remaining four counts were dismissed. The court set a disposition
hearing for October 2013 to address Richard’s future placement and
services.
¶6 In preparation for the October hearing, Richard underwent a
psychosexual evaluation. The evaluating psychologist reported that
Richard’s risk to reoffend sexually was “moderate,” that he continued to
struggle with substance abuse and compulsive behaviors, and that
Richard’s prior treatment had been a “partial success.” The psychologist
concluded that, given the limited amount of time before Richard turned
eighteen, Richard would be best served by placement in the Arizona
Department of Juvenile Corrections (“ADOJC”), which could service
Richard’s complex social, behavioral, and psychological needs better than
a facility with less structure.
¶7 Richard’s probation officer also acknowledged that ADOJC
would be the best placement for Richard because the facility could address
as many of Richard’s needs as possible, including substance abuse
treatment and sex offender treatment, in a short amount of time. Upon
recommendation from Richard’s probation officer and psychologist, the
juvenile court ordered that Richard be committed to ADOJC. The court also
set a status hearing for April 2014 to consider the issue of sex offender
registration.
¶8 Prior to the April 2014 status hearing, ADOJC psychologists
submitted a progress report to the juvenile court evaluating Richard’s
psychological functioning and rehabilitation treatment progress, and
identifying any risk factors. Because Richard’s evaluation results indicated
that Richard was a high risk to reoffend sexually, the psychologists
recommended that Richard be required to register as a sex offender.
Richard’s probation officer also produced Richard’s Most Current
Information Report (“MCI”) in which the probation officer and ADOJC
recommended that Richard be required to register as a sex offender. The
MCI also reported that Richard had “not been successful” at ADOJC.
¶9 After considering the MCI, the psychological progress report,
arguments of counsel, and statements from Richard and his mother, the
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IN RE: RICHARD M.
Decision of the Court
juvenile court ordered that Richard register as a sex offender upon
discharge from ADOJC. In its minute entry ordering registration, the court
expressed concern that Richard had failed to successfully complete two
prior placements and, according to the ADOJC progress report, still had not
developed a relapse prevention plan. Richard timely appealed from the
order requiring sex offender registration.
DISCUSSION
¶10 We review a court order requiring registration as a sex
offender for abuse of discretion. In re Sean M., 189 Ariz. 323, 324, 942 P.2d
482, 483 (App. 1997). A court abuses its discretion only where “the reasons
given by the court for its action are clearly untenable, legally incorrect, or
amount to a denial of justice.” State v. Davis, 226 Ariz. 97, 102-03, ¶ 23, 244
P.3d 101, 106-07 (App. 2010) (internal quotation omitted).
¶11 Richard acknowledges that pursuant to A.R.S. § 13-3821(D),
the juvenile court had the discretion to require him to register as a sex
offender until age twenty-five. Richard contends, however, that (1) the
court abused its discretion by failing to balance the public safety purpose
of registration against the potential effect that registration could have on his
future, and (2) even if this court presumes the juvenile court engaged in
such balancing, the record does not support such a presumption. Richard
cites Davis in support of these contentions. However, as this court
explained in In re Javier B., 230 Ariz. 100, 104, ¶ 19, 280 P.3d 644, 648 (App.
2012), Davis did not hold that a court must engage in any specific balancing
before ordering a juvenile to register as a sex offender. Nor does the plain
language of A.R.S. § 13-3821(D) require a court to consider any particular
factors when determining whether to order a juvenile to register.
¶12 Although balancing is not required, the record here indicates
that the juvenile court weighed the public safety purpose against the
potential effects of registration on Richard’s life. The court explicitly
acknowledged “the hardship that registration may place” on Richard, but
also expressed serious concern about his lack of effort to fully comply with
treatment while in ADOJC.
¶13 Richard also argues that the juvenile court erred because he
“became successfully rehabilitated as a sex offender.” Specifically, Richard
takes issue with the court’s finding that he failed to successfully complete
treatment at two prior placements because he did complete two years
treatment at YDI, his first placement facility. However, his probation officer
stated that Richard was discharged from YDI because he was no longer
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Decision of the Court
making progress. The discharge report from YDI indicates that Richard had
received maximum benefit from the program, but would require continued
treatment after discharge, support during his transition into the
community, and a revised relapse prevention plan. Richard also failed to
successfully complete treatment at his second placement, Resolution
Group, as he was discharged after one month for “failing to be an active
participant in the treatment program.” In a September 2013 evaluation, a
psychologist concluded that Richard’s prior treatments had been only
partially successful. Thus, the court did not err in finding that Richard had
unsuccessfully completed treatment.
¶14 Finally, Richard argues that his commitment to ADOJC was a
“[set up] for failure” because it would have been impossible for him to
successfully complete the program before he turned eighteen. However,
Richard was committed to ADOJC because he had failed to adhere to the
terms of his probation, including his required treatment program at
Resolution Group. Richard’s evaluating psychologist and probation officer
both acknowledged the short window of opportunity for Richard to receive
treatment, but each concluded that ADOJC was the best of the available
options. Rather than demonstrating full commitment to achieving
successful treatment during his limited time at ADOJC, Richard accrued
thirty-seven incident reports arising out of a variety of defiant behaviors
throughout his placement.
¶15 The totality of the record supports the juvenile court’s
decision. While Richard has not committed any additional sexual offenses,
his treatment providers repeatedly noted his unwillingness to participate
fully in required treatment programs. Richard was discharged from his
outpatient treatment at Resolution Group for failure to participate. The
April 2014 ADOJC progress report found that Richard continued to display
attitudes supportive of sexual offending, interpersonal aggression, and
impulsivity. That report recommended to the court that Richard be
required to register because ADOJC psychologists found that he remained
at a high risk to reoffend sexually. Based on these considerations, the
juvenile court properly acted within its discretion in requiring sex offender
registration.
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IN RE: RICHARD M.
Decision of the Court
CONCLUSION
¶16 We affirm the juvenile court’s order requiring Richard to
register as a sex offender until the age of twenty-five.
:gsh
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