In re Seth S. ( 2009 )

NO. 4-08-0385 Filed 11/4/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: SETH S., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Schuyler County
v. ) No. 06JD22
SETH S., )
Respondent-Appellant. ) Honorable
) Alesia A. McMillen,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In October 2006, the State filed a petition for the
adjudication of wardship of respondent, Seth S., born October 29,
1991. The petition alleged that respondent was delinquent for
committing two offenses of aggravated criminal sexual assault
against his sister (720 ILCS 5/12-14(b)(i) (West 2006)) and one
offense of sexual abuse against his brother (720 ILCS 5/12-15(b)
(West 2006)). In May 2007, respondent pleaded guilty, and the
trial court sentenced him to five years of probation.
In January 2008, the trial court revoked respondent's
probation. In February 2008, the court resentenced respondent to
an indeterminate term in the Department of Juvenile Justice
(DOJJ).
Respondent appeals, arguing (1) the trial court erred
by revoking respondent's probation because (a) the trial judge
was biased against probation from the outset as evidenced by her
comments and impatience throughout the case and (b) the record
established respondent's slow but satisfactory progress toward
treatment goals; and (2) the trial court erred by committing
respondent to DOJJ where (a) the trial judge relied on her review
and interpretation of judicial training material that she refused
to make part of the record and (b) the disposition was against
the manifest weight of the evidence and fatally tainted by the
court's misuse of the Juvenile Sex-Offender Assessment Protocol-
II (J-SOAP-II)) materials that were not in the record. We affirm
the trial court's order revoking respondent's probation but
reverse the court's dispositional order and remand for a new
dispositional hearing.
I. BACKGROUND
The petition for adjudication of wardship alleged that
between January 1, 2003, and April 7, 2006, respondent committed
the offense of aggravated criminal sexual assault (720 ILCS 5/12-
14(b)(i) (West 2006)) in that respondent (1) committed an act of
sexual penetration with J.S., who was under age nine, involving
the mouth of J.S. and the penis of respondent and (2) committed
an act of sexual penetration with J.S. involving the vagina of
J.S. and the penis of respondent. The petition also alleged that
between July 2003 and April 7, 2006, respondent committed the
offense of criminal sexual abuse (720 ILCS 5/12-15(b) (West
2006)) by committing an act of sexual conduct with T.S., who was
at least 9 years old but under the age of 17 when the act was
committed, involving the penis of T.S. and the hand of respondent
and done for the purpose of sexual gratification or arousal of
respondent. J.S. was respondent's younger sister (born August
- 2 -
31, 1999), and T.S. was respondent's younger brother (born June
17, 1994).
A. Facts Pertaining to the January and March 2007 Hearings
In January 2007, the parties proposed a plea agreement.
Under the proposed agreement, respondent would be placed on
probation for five years with the standard conditions, as well as
the condition that he successfully complete sex-offender treat-
ment and counseling with an approved counselor. The parties also
agreed to waive a social-history report because respondent had
already undergone a sex-offender evaluation. The trial court
reviewed the sex-offender evaluation, which is contained in the
record on appeal.
The sex-offender evaluation, conducted in September
2006 by Karen L. Streight, M.A., LCPC, reported that respondent
had a "previous history of assault on peers and fire setting."
Respondent reported (1) his parents had problems with marital
discord and (2) past physical abuse of respondent by his father
and recent verbal abuse.
Streight's report also indicated that in the spring of
2006, after discovery of respondent's sexual abuse of his sib-
lings, respondent went to live with his grandmother. The family
engaged in counseling, and a safety plan was implemented that
prohibited unsupervised contact between respondent and his
siblings. However, respondent's parents began to allow visits
between the children. Respondent admitted molesting his sister
once during those visits, although his sister reported it oc-
- 3 -
curred three times. Streight's report noted that the Department
of Children and Family Services (DCFS) investigator, law enforce-
ment, and the child-welfare specialist recommended residential
treatment. Streight recommended outpatient treatment because (1)
no evidence suggested that respondent's overall behavior and
functioning ability were significantly compromised; and (2) he
was not mentally retarded and, during the interview, Streight
observed no blatant obstacles to respondent's ability to acquire
and apply knowledge. Streight noted, however, that if it became
evident that respondent was not gaining internal-control mecha-
nisms or that he failed to make progress, treatment in a residen-
tial setting should be considered.
At the conclusion of the hearing, the trial court
expressed concern with the proposed agreement and questioned
whether an "inpatient placement" was more appropriate. The court
also expressed concern with respondent attending the public high
school that was only separated from the middle school by an
unlocked door. The State's Attorney and the DCFS representative
advised the court that respondent had a one-on-one aide with him
at all times at the school (because of the allegations against
respondent). Nonetheless, the court set the matter for an
adjudicatory hearing with the understanding that respondent would
begin counseling immediately with Terry Campbell, and the court
would, with the agreement of the parties, conduct a phone confer-
ence with Streight and Campbell.
At the next hearing in March 2007, the trial judge
- 4 -
indicated she had spoken with the counselors. The judge reported
that Campbell informed her that respondent was doing well in
outpatient treatment. Campbell also indicated he would submit a
report addressing respondent's likelihood of reoffending. The
trial court's March 2007 review order directed the State to
contact Campbell for an updated report.
On April 24, 2007, the State filed an April 2007 report
prepared by Campbell. The cover letter on the report noted that
(1) treatment was slow and lengthy due to the issues and respon-
dent's limited intellectual capacity and (2) J-SOAP-II placed
respondent in a group of sex offenders whose proportion of risk
was in the "low moderate" range. The report itself outlined
Campbell's various testing of respondent, including the adminis-
tration of J-SOAP-II, a checklist whose purpose is to aid in the
systematic review of risk factors that have been identified in
the professional literature as being associated with sexual and
criminal offending. Campbell's report noted that respondent's
risk factors as identified in J-SOAP-II included (1) the number
of victims (factor 2), (2) that a male child victim was involved
(factor 3), (3) the duration of the offense history (factor 4),
(4) the planning of the offense (factor 5), (5) respondent's
sexualized aggression (factor 6), (6) respondent's sexual drive
and preoccupation (factor 7), (7) respondent's pervasive anger
(factor 10), (8) respondent's school behavior problems (factor
11), and (9) respondent's physical-assault history-exposure to
family violence (factor 16).
- 5 -
B. Facts Pertaining to the May 2007 Negotiated Plea
In May 2007, respondent entered a negotiated plea to
all three counts. After receiving a factual basis and confirming
that the plea was voluntary, knowing, and intelligent, the trial
court accepted the plea.
In the written order, the trial court made respondent a
ward of the court and placed respondent on probation for five
years. The court directed that respondent live with his grand-
mother or other adult approved by DCFS. One of the conditions of
respondent's probation was that he undergo and successfully
complete sex-offender treatment and counseling.
C. Facts Pertaining to the August 1, 2007, Status Hearing
The status-review-hearing documents filed in advance of
the August 1, 2007, status hearing provided the following.
Respondent's progress in counseling was slow, and Campbell had
indicated to respondent's parents that respondent would be in
treatment the entire five years of probation. Respondent's
cognitive ability and general verbal comprehension abilities were
in the "extremely low" range, while his general perceptual
reasoning abilities were in the "borderline" range.
Campbell's report indicated--without providing a time
frame--that respondent had been taking his grandmother's under-
wear, Kotex, and Vaseline and masturbating with those items.
"Early on" he was seen by his grandmother masturbating in his
bedroom. However, the report indicated that respondent denied
any sexual fantasies for a month or so.
- 6 -
At the August 1, 2007, status hearing, the trial court
confirmed receipt of the status and addendum and that no one had
any additions or corrections. The court noted that respondent
had not made much progress in counseling. The court advised
respondent that if he did not make significantly more improve-
ment, "this isn't going to work." The court specifically re-
ferred to respondent engaging in "that kind of behavior" in the
view and presence of his grandmother. The court also expressed
concern with respondent attending the public school. The court
acknowledged that respondent would be in therapy throughout his
probation but that the issue was whether therapy was going to
work. The court noted:
"So I just want everybody to understand,
you know, my patience to let the therapy work
and let [respondent] work through the therapy
is going to be pretty short-lived. So if I
don't begin to see some real work on [respon-
dent's] part to control these behaviors, I'm
not going to stay here indefinitely and wait
for somebody else to be a victim. Not going
to happen."
The court set the next status review for October 2007.
D. Facts Pertaining to the October 3, 2007, Status Hearing
The status-review-hearing documents filed in advance of
the October 3, 2007, hearing established the following. Campbell
reported that progress was satisfactory. Respondent denied any
- 7 -
deviant sexual thoughts during the quarter. No evidence showed
inappropriate sexual behaviors. The report also provided that of
the eight treatment goals, respondent received a rating of four
out of five (with five being the highest) for (1) motivation for
treatment, (2) making full disclosure of and taking full respon-
sibility for the sexual offenses, and (3) positive behavior in
the community. Respondent received a rating of one out of five
for the goals of (1) identifying and understanding the offense
cycle, (2) developing a relapse-prevention plan, and (3) exhibit-
ing victim empathy. Respondent received a three for the goal of
identifying thinking errors and a two for decreasing arousal to
deviant stimuli.
At the status hearing, the trial court noted the
ratings respondent received on his goals. The court observed
that while respondent had a long way to go, he had been attending
all counseling sessions and Campbell recommended further treat-
ment. The court found that treatment would continue but that
things had to turn around because the court would not be con-
vinced that counseling was beneficial when half of the goals in
counseling were rated unsatisfactory. The court set the next
status hearing for January 2, 2008, later continued to January 9,
2008.
E. Facts Pertaining to the Anticipated
January 9, 2008, Status Hearing
The status-review report filed in anticipation of the
January 2008 status hearing provided the following. Campbell
rated respondent's treatment goals as follows: respondent re-
- 8 -
ceived a four on the goals of (1) motivation for treatment, (2)
full disclosure of and taking full responsibility for the sexual
offenses, and (3) positive behavior in the community. Respondent
received a rating of three on the goals of (1) identifying
thinking errors, (2) decreasing arousal to deviant stimuli, and
(3) identifying and understanding the offense cycle. Respondent
received a two on developing a relapse-prevention plan and a one
for exhibiting victim empathy.
Campbell noted that respondent had difficulty express-
ing his feelings because (1) he learned the cultural rule that
real men do not express feelings other than anger; and (2) in
order to deal with conflict at home, he had learned to numb his
feelings because he was powerless to do anything about his
feelings. Respondent had a lot of anger about his parents'
chronic conflicts.
Campbell noted that respondent had been cooperative in
treatment except for his failure to keep a journal about his
feelings. Respondent denied any deviant sexual fantasies for the
last five or six months. Campbell believed respondent's medica-
tion (Zoloft) helped with that. Campbell recommended continuing
with the present course of treatment.
F. Facts Pertaining to the Petition To Revoke
Probation and the Detention Hearing
On January 9, 2008, the date set for the status review,
the State filed a petition to revoke probation. The State
alleged:
"The minor violated his probation in
- 9 -
that he has failed to successfully complete
or comply with sex[-]offender treatment and
counseling[.] [S]pecifically[,] within the
last few weeks he was found to have possessed
in his bedroom various sexual aids and de-
vices and admitted to his therapist/counselor
that he did not use any of the interventions
to prevent himself from engaging in sexual
behavior as he had been taught to do through
counseling and expressed to his counselor
that he could not stop his need to engage in
sexual behavior."
That same day, the trial court held a detention hear-
ing. Respondent's probation officer testified, and the court
admitted into evidence the letter Campbell sent to the probation
officer. That letter, dated January 9, 2008, indicated that
Campbell confronted respondent about the items his mother found
on his bed--lotion, a toy used for anal stimulation, and a
women's magazine. Respondent could not recount the feelings or
the thought process he had leading up to his decision to use
those items. Respondent could only say, "I can't stop it."
Respondent also offered the excuse that he had not taken his
medication for a couple of days.
Campbell's letter noted that at this point in treat-
ment, respondent had learned interventions to deal with those
urges and that he should have had time to check his thinking and
- 10 -
use interventions. Campbell noted that respondent chose not to
use any interventions and his actions indicated that outpatient
treatment had not been effective. Campbell recommended a "more
secure environment with more intensive therapy."
The trial court found probable cause to believe that
respondent violated his probation and that detention was neces-
sary for the protection of a person or property of another. In
her comments, the trial judge noted her concern from the begin-
ning about whether outpatient therapy was going to work and about
respondent being in the public school. The judge believed that
because the offenses by respondent against his siblings took
place over a number of years, that indicated he had a very high
risk to reoffend. The judge also stated that within less than a
year on probation, respondent had "two reoffenses" (referring to
the "inappropriate material" found early on and the more recent
incident). The court believed this behavior was indicative of
"someone who then is ready to assault individuals."
G. Facts Pertaining to the Hearing on the
Petition To Revoke Probation
On January 23, 2008, the trial court held a hearing on
the petition to revoke probation. Respondent's mother, Diana,
testified that on December 24, 2007, she found a "True Story"
magazine (a mostly print romance magazine), a bottle of lotion,
and a G.I. Joe missile toy on the floor of respondent's bedroom.
(Respondent apparently visited his parents' home at times when
his siblings were not there.) The items were not normally in his
room and were the type of thing Diana had been instructed to look
- 11 -
for. When confronted, respondent did not want to talk about it
and cried. Diana reported the incident to Campbell on January 8,
2008.
Campbell testified that he began counseling respondent
in January 2007. Campbell conducted an evaluation to determine
the treatment plan. The treatment plan included the following
goals: (1) taking full responsibility for his sexually abusive
behavior, (2) learning to identify and change thinking errors,
(3) learning to reduce deviant arousal patterns, (4) learning to
identify the offense cycle, (5) coming up with a relapse-preven-
tion plan to use techniques to get out of an offense cycle, and
(6) learning empathy for the victims. However, Campbell testi-
fied that he and respondent had not yet worked on empathy because
respondent was not able to identify his feelings, a prerequisite
for empathy.
Campbell testified that "[p]rogress was satisfactory a
lot of the times," meaning that he had no indication that treat-
ment was not effective. In April 2007, an incident occurred
where respondent's grandmother's underwear, a tampon, and some
Vaseline were found in respondent's room. Respondent indicated
he had used those items for masturbation fantasies and the tampon
for anal stimulation. Campbell used that incident to discuss
with respondent that respondent needed to manage his thoughts and
feelings and to discuss relapse-prevention techniques.
In early summer 2007, Campbell instructed respondent to
keep a journal of his feelings to help respondent learn to
- 12 -
identify his feelings and write them down to talk about in the
sessions. Respondent never complied with that despite repeated
reminders. Campbell testified that it was important for respon-
dent to keep the journal because respondent had problems identi-
fying and talking about his feelings, and sex offenders act on
their feelings. According to Campbell, if respondent could not
identify his feelings, then a relapse-prevention plan was not
going to work for him.
After Diana told Campbell what she had found, Campbell
spoke to respondent. Respondent admitted he had used the maga-
zine as a stimulus and the missile toy for anal stimulation.
Campbell attempted to discuss with respondent the feelings he was
having around the time he was using those items. Respondent was
not able to express what his feelings were at the time or what he
thought led up to him using those items. "Basically, it came
down to, he was only able to say that he wasn't able to stop
himself." Respondent told Campbell he had done it twice.
Campbell testified that the sexual behavior indicated that
respondent was "not able to manage his behavior, his thoughts,
his feelings, or behaviors, and had not been able to use any of
those techniques or interventions that we had talked about."
On cross-examination, Campbell admitted that respon-
dent's verbal and language skills had tested at below average.
Because of this, Campbell expected treatment with respondent to
take longer than was typical--two to three years as opposed to
one to two years.
- 13 -
Through counseling, Campbell determined that respon-
dent's "trigger emotion" appeared to be anger toward his parents.
Campbell agreed that the abuse of respondent's siblings appeared
to be "kind of a revenge thing."
Campbell admitted on cross-examination that for most
people, masturbation was a normal process in one's sexual life.
On redirect, however, Campbell explained that masturbation was
not normal for respondent because the whole point of treatment
was to help respondent manage his behaviors, thoughts, and
feelings. The danger, according to Campbell, was that it could
escalate. At that point in treatment, respondent was not sup-
posed to masturbate, although Campbell admitted some conflict
among counselors existed on that issue.
Campbell testified that his December 20, 2007, opinion
--that respondent's progress was satisfactory--had changed after
learning about respondent's most recent masturbation incident.
Campbell stated that because respondent could not explain the
thoughts and feelings that preceded the act, respondent was
essentially going to be starting over with counseling. In
Campbell's opinion, respondent's progress was not acceptable. In
fact, Campbell testified he had terminated respondent from
Campbell's counseling program.
Upon examination by the trial court, Campbell testified
that respondent's purported failure to take his medication for a
couple of days might have had an effect on his ability to
control his actions and feelings. Campbell also admitted that,
- 14 -
if respondent really did not take his medication, that would mean
respondent was not compliant with his treatment. Campbell
recommended inpatient treatment, which would be more intensive
and would include daily sessions.
Following the hearing, the trial court revoked respon-
dent's probation. The court noted that the issue was not that
respondent masturbated. Instead, the issue was that respondent
could not "open up and share in counseling." Therapy could not
work if respondent could not express his feelings or how he felt
when the episodes overtake him. The court noted that even if it
was normal to have sexual thoughts, respondent was reporting that
he was not having sexual thoughts. The court concluded that
respondent had failed to make any progress toward his counseling
goals.
Respondent's counsel moved to vacate the detention
order. The trial court denied that motion.
H. Facts Pertaining to the Motion To Reconsider
the Order Revoking Probation
On February 25, 2008, respondent filed a motion to
reconsider the ruling revoking his probation. Respondent argued
that he did not fail to complete or comply with sex-offender
treatment or counseling. Specifically, respondent asserted that
based on his level of functioning (1) Campbell's counseling was
inappropriate and (2) counseling would take an extended period of
time. Respondent also argued that because Campbell reported that
respondent's progress was satisfactory as of December 20, 2007,
the intervening event was insufficient to warrant termination of
- 15 -
probation.
On February 25, 2008, at the dispositional hearing,
respondent's counsel sought to submit additional testimony from
Dr. Helen Appleton, a clinical psychologist, in support of his
motion to reconsider the order revoking probation. The trial
court denied that request and denied the motion to reconsider the
order revoking probation.
I. Facts Pertaining to the Dispositional Hearing
On February 11, 2008, the probation office filed a
social-history report. Documents attached to the social-history
report included the police report, the 2007 DCFS assessment,
school records, Campbell's progress reports, and Streight's 2006
evaluation.
On February 25, 2008, the trial court held the
dispositional hearing. The State presented no evidence in
aggravation. In mitigation, respondent called Dr. Appleton to
testify.
Dr. Appleton testified that in preparation of the
hearing, she was given approximately 700 pages of material--
school records, transcripts of prior hearings, and records from
Campbell. However, she admitted she did not have the opportunity
to review everything. She did not remember reviewing the social-
history report. She also had some difficulty reading some of
Campbell's notes and did not always know what he meant or what he
was saying in those notes. Dr. Appleton did not evaluate or meet
with respondent in person.
- 16 -
Dr. Appleton believed three factors were important in
determining the appropriate disposition for respondent: (1)
whether respondent had an apparent severe emotional disturbance,
which it appeared that he did not; (2) whether respondent was
dangerous, which she believed he was not a danger to the commu-
nity because there were no sexual behaviors outside the family
and respondent had friends; and (3) respondent's amenability to
treatment, which she believed that he was.
Dr. Appleton criticized Campbell's treatment for using
techniques appropriate for adults, as opposed to teenagers, and
for not helping respondent do a better job of expressing feel-
ings. She based this on reading his notes, which she admitted
she had difficulty reading. Dr. Appleton believed respondent
would fare well in developmentally appropriate, community-based
outpatient treatment. If she evaluated respondent, she would
want to readminister J-SOAP-II, the standard test of risk for
juveniles. She also testified about additional testing she would
perform, including additional intelligence testing and the
Minnesota Multiphasic Personality Inventory.
Based on the information she had reviewed, Dr. Appleton
believed respondent was a good candidate for outpatient,
community-based treatment. She believed DOJJ was particularly
ill-suited for respondent because of his low self-esteem, weak-
nesses in social skills, and below-average intelligence. How-
ever, Dr. Appleton did not know where respondent would get
appropriate outpatient community counseling because Dr. Appleton
- 17 -
was not familiar with the area.
Respondent's one-on-one aide at school, Jackie Gilson,
testified that respondent seemed fine having her as an aide.
Gilson never saw respondent act combative or show any sexual
behavior. Gilson testified respondent had friends and was
respectful of the teachers.
Sue Kirkham, respondent's special-education teacher and
case manager, testified that respondent was respectful to his
teachers. She was not aware of any dangerous behavior by respon-
dent. Respondent had difficulty staying on task with work at
school, but he understood what was required of him in his
special-education classes.
The State recommended the trial court resentence
respondent to DOJJ where he could receive sex-offender treatment.
Respondent's counsel recommended developmentally appropriate
outpatient treatment or residential treatment not in DOJJ.
Respondent was given the opportunity to speak. He stated that he
"tried to do stuff" but then broke down crying.
The trial court resentenced respondent to an indetermi-
nate term in DOJJ and, in the written order, strongly recommended
respondent receive sex-offender treatment. The court based the
disposition on the court's review of the social history, the
testimony, counsel's recommendations, respondent's statement, and
the seriousness of the charges.
The trial court, although noting that Dr. Appleton had
been very thorough in other cases in which she had testified, had
- 18 -
not reviewed everything given to her in this case. The court
concluded that Dr. Appleton's opinion in this should be "taken
with a large grain of salt" because Dr. Appleton admitted she had
neither read everything in the file nor understood everything she
read, such as Campbell's notes. The court specifically found
that Dr. Appleton's suggestion that Campbell was unethical in
this case was unpersuasive.
The trial court noted that respondent's attorney
categorized DOJJ as simply "corrections," but that DOJJ's purpose
included treatment. The court found that residential placement
other than DOJJ was not available for lack of funding and the
lack of an appropriate facility nearby.
As is relevant to this appeal, the trial court dis-
cussed J-SOAP-II in great detail. The court noted that Dr.
Appleton indicated her awareness of J-SOAP-II but that some of
her testimony was in direct contravention to J-SOAP-II. For
instance, the court found that Dr. Appleton
"would make it appear that there's nothing to
be concerned about in this case because we
have offended family members, and nothing
could be farther from what the J-SOAP[-II]
indicates the important factors for the
[c]ourt to look at in determining whether
someone is likely to reoffend or not."
The trial judge noted that she had some training and
was familiar with the assessment tools used in these cases,
- 19 -
including J-SOAP-II. The trial court went through all of the
factors listed in J-SOAP-II. When respondent's counsel asked the
judge if she was going to make the factors she looked at part of
the record, the judge responded that she was going to state them.
Counsel asserted that the judge was referring to something
outside the record. The judge noted, however, that she was
referring to what was done and discussed by the attorneys with
Campbell during his evaluation and referred to by Dr. Appleton.
Respondent's counsel, however, informed the court he had looked
through Campbell's material where Campbell summarized the J-SOAP-
II factors, but counsel wanted the entire J-SOAP-II material the
judge was reviewing to be made part of the record. The trial
judge stated that she read all the statements she considered into
the record verbatim.
J. Facts Pertaining to the Motion To Reconsider the Disposition
On March 24, 2008, respondent filed a motion to recon-
sider his sentence. Respondent argued that the witnesses agreed
that respondent was not a danger to the public and that no
evidence or information suggested respondent was a danger to the
public. According to respondent, the unchallenged evidence at
the disposition hearing clearly established that community-based
counseling was the best alternative. Respondent further argued
that the education and counseling he would receive at DOJJ was
inferior to the education and counseling he was receiving in the
community.
Following a hearing, the trial court denied the motion
- 20 -
to reconsider sentence.
This appeal followed.
II. ANALYSIS
On appeal, respondent argues (1) the trial court erred
by revoking respondent's probation because (a) the trial judge
was biased against probation from the outset as evidenced by her
comments and impatience throughout the case and (b) the record
established respondent's slow but satisfactory progress toward
treatment goals; and (2) the trial court erred by committing
respondent to DOJJ where (a) the trial judge relied on her review
and interpretation of judicial training material that she refused
to make part of the record, and (b) the disposition was against
the manifest weight of the evidence and fatally tainted by the
court's misuse of the J-SOAP-II materials that were not in the
record.
A. Trial Court Did Not Err by Revoking Respondent's Probation
Respondent argues the trial court erred by revoking his
probation. Specifically, respondent argues that (1) the trial
judge was biased against probation from the outset as evidenced
by her comments and impatience and (2) the record established
respondent's slow but satisfactory progress toward treatment
goals.
The State must prove a violation of probation by a
preponderance of the evidence. In re Justin M.B., 204 Ill. 2d
120, 125, 787 N.E.2d 823, 826 (2003); 705 ILCS 405/5-720(3) (West
2008). This court will not disturb a trial court's ruling on a
- 21 -
petition to revoke probation unless it is against the manifest
weight of the evidence. In re N.W., 293 Ill. App. 3d 794, 799,
688 N.E.2d 855, 858-59 (1997).
Respondent first asserts the trial court erred by
revoking his probation because the judge was biased against the
probation disposition from the start. Respondent points to
several of the judge's comments, including (1) referring to the
masturbation incidents as "reoffenses" at the detention hearing;
(2) repeatedly questioning whether probation was the appropriate
disposition; (3) expressing concern about respondent attending
the public high school where only a door separated the high
school and middle school; and (4) stating that her patience to
let therapy work would be short-lived.
Respondent never raised this issue in the trial court.
Therefore, the issue is forfeited. See, e.g., People v. Thorn-
ton, 70 Ill. App. 3d 532, 533-34, 388 N.E.2d 923, 924 (1979)
(noting that the appellate court could find forfeited the defen-
dant's argument on appeal that the trial court was biased,
prejudiced, or acted improperly for failure to raise it in the
trial court, although the court did address the issue and found
no actual bias); People v. Nevitt, 135 Ill. 2d 423, 460, 553
N.E.2d 368, 383 (1990) (finding the defendant forfeited his claim
that a comment by the trial judge demonstrated the trial judge's
bias against him where the defendant raised it for the first time
before the supreme court).
Moreover, even if this court addressed the issue on
- 22 -
appeal, we would find no error. That the judge continued to
question whether probation was the appropriate disposition and
made it clear that she expected progress to justify the disposi-
tion was not inappropriate or indicative of bias. See, e.g.,
People v. Bedell, 253 Ill. App. 3d 322, 335-36, 624 N.E.2d 1308,
1317 (1993) (finding "[a] defendant is not denied due process
simply because the trial court predetermined the defendant's
sentence, even before probation was revoked" where the trial
court told the defendant that if he did not successfully complete
probation, the court would sentence him to 10 years in the
penitentiary).
The trial court's concerns have support in the record.
In fact, Streight's September 2006 evaluation noted that DCFS and
law enforcement recommended residential treatment. Streight's
evaluation noted her belief that respondent could succeed in
outpatient treatment but that residential treatment might be
necessary if (1) respondent failed to make progress in outpatient
treatment and (2) if it became evident that respondent was not
gaining internal-control mechanisms. The judge's repeated
expressions of her concern about the propriety of probation were
neither inappropriate nor indicative of actual bias.
Although the trial judge did refer, at the detention
hearing, to respondent's masturbation episodes as "reoffenses,"
she did not refer to them as such at the probation-revocation
hearing. Moreover, from the context of the judge's entire
comments at the probation-revocation hearing, the judge did not
- 23 -
believe respondent had reoffended but that he had engaged in
behavior that called into question the effectiveness and progress
of his counseling.
Respondent also argues the trial court erred by revok-
ing his probation because the record established his slow but
satisfactory progress toward treatment goals. We disagree.
One of the conditions of probation was successful
completion of sex-offender treatment and counseling. As of
December 20, 2007, Campbell believed respondent was making slow
but satisfactory progress. However, after learning about the
December 24, 2007, masturbation incident, Campbell concluded that
counseling was not effective, terminated respondent's counseling,
and recommended more intensive counseling in a secure setting.
Specifically, that incident called into doubt respon-
dent's veracity in counseling, such as whether he was having
sexual thoughts. Moreover, Campbell had taught respondent
certain techniques to use to help avoid an incident such as had
occurred. Respondent was not only unable to try to use any of
the techniques he had been taught, but he was unable to identify
his feelings before the incident in question. According to
Campbell, if respondent could not identify the triggers, he would
be unlikely to be able to use the techniques he was taught by
Campbell.
Respondent cites In re G.L.C., 74 Ill. App. 3d 411, 393
N.E.2d 113 (1979), arguing the testimony at the hearing was
insufficient to support revocation of probation. In G.L.C., the
- 24 -
respondent was ordered to report daily to his probation officer.
G.L.C., 74 Ill. App. 3d at 412, 393 N.E.2d at 114. This court
held that respondent's failure to report for three days between
May 1978 and August 1978 was an insufficient basis to revoke his
probation. G.L.C., 74 Ill. App. 3d at 413, 393 N.E.2d at 114
(also finding that the evidence showed the respondent was making
progress with various services).
Recently courts have held that substantial compliance
with a probation order is not sufficient and the failure to
comply with one condition may be sufficient to revoke probation.
See, e.g., People v. Bell, 219 Ill. App. 3d 264, 266, 579 N.E.2d
1154, 1156 (1991) (involving probation revocation for the failure
to comply with the public-service-employment requirement, com-
plete a drug-treatment program, and the willful failure to pay
the probation fee). In any event, respondent's failure to make
any progress during counseling is not the equivalent of missing
three days of daily reporting to one's probation officer.
Counseling was a substantial part--if not the most critical part-
-of respondent's probation. His failure to make progress--which
included not taking his medication, not keeping a journal, being
unable to express his feelings so that he could apply what he
learned in counseling, being unable to identify the feelings that
preceded the December 2007 masturbation incident, and being
unable to apply the relapse-prevention techniques to try to avoid
the December 2007 masturbation incident--resulted in Campbell
terminating respondent's counseling. Therefore, respondent did
- 25 -
not complete sex-offender treatment and counseling and, based on
Campbell's testimony, was unlikely to be able to do so in an
outpatient setting. The trial court's conclusion that respondent
violated a condition of probation was not against the manifest
weight of the evidence. See, e.g., In re Jessie B., 327 Ill.
App. 3d 1084, 1090, 765 N.E.2d 508, 513 (2002) (finding that the
trial court's revocation of probation was not against the mani-
fest weight of the evidence where the respondent failed to comply
with and successfully complete the first phase of a three-phase
program).
B. Respondent Is Entitled to a New Dispositional
Hearing Because the Trial Court's Personal Use of
J-SOAP-II To Assess Respondent's Risk of
Offending Improperly Tainted Respondent's Disposition
Respondent next argues the trial court erred by commit-
ting him to DOJJ where (1) the judge relied on her review and
interpretation of judicial training material that she refused to
make part of the record and (2) the disposition was against the
manifest weight of the evidence and fatally tainted by the
court's misuse of the J-SOAP-II materials that were not in the
record. We agree.
At a sentencing hearing in a delinquency case, the
trial court must determine whether it is in the best interests of
the minor and the public that the minor be made a ward of the
court. 705 ILCS 405/5-705(1) (West 2008). If so, the court must
determine the "proper disposition best serving the interests of
the minor and the public." 705 ILCS 405/5-705(1) (West 2008).
In making that determination, the court may consider all helpful
- 26 -
evidence, including oral and written reports. 705 ILCS 405/5-
705(1) (West 2008). A court may not order the minor committed to
DOJJ until a written social-investigation report is completed and
considered by the court. 705 ILCS 405/5-705(1) (West 2008). The
trial court's decision following a dispositional hearing "will be
reversed only if the findings of fact are against the manifest
weight of the evidence or the court committed an abuse of discre-
tion by selecting an inappropriate dispositional order." In re
J.W., 386 Ill. App. 3d 847, 856, 898 N.E.2d 803, 811 (2008).
A trial court, when determining the appropriate dispo-
sition, may consider all helpful evidence, including oral and
written reports. 705 ILCS 405/5-705(1) (West 2008). However, in
this case, the J-SOAP-II manual was not made part of the record.
The parties did not submit the J-SOAP-II manual as evidence. Dr.
Appleton mentioned J-SOAP-II only in the context of wanting to
readminister the test, and Campbell did not attach a copy of the
manual to his April 2007 evaluation. Moreover, in his April 2007
evaluation, Campbell indicated that he administered J-SOAP-II,
stated respondent's overall score of respondent's risk, and noted
only those risk items he believed applied to respondent. The
trial judge could not have been using Campbell's list because she
read all 28 items from J-SOAP-II.
Nor did the trial court sufficiently make J-SOAP-II
part of the record. The trial judge only read a brief portion of
the description of the checklist.
This court can take judicial notice of the J-SOAP-II
- 27 -
manual, which is available from the United States Department of
Justice's office of juvenile justice and delinquency prevention.
See, e.g., Dietz v. Property Tax Appeal Board, 191 Ill. App. 3d
468, 477, 547 N.E.2d 1367, 1372 (1989) (taking judicial notice of
the Illinois Real Property Appraisal Manual, which was issued by
the Department of Revenue as a public record). That manual
provides that the "stakes are often very high" when assessing
risk with juvenile offenders and that "[i]t is imperative that
clinicians who assess the risk of adolescent offending be very
knowledgeable of the challenges involved in assessing this
population." R. Prentky & S. Righthand, Juvenile Sex Offender
Assessment Protocol-II (J-SOAP-II) Manual, at 1 (2003) (hereinaf-
ter R. Prentky & S. Righthand, J-SOAP-II Manual). The manual
further provides as follows:
"Prior to using J-SOAP-II, users should have
training and experience in assessing juve-
niles who commit sexual offenses and risk
assessment in general, particularly as it
pertains to juvenile sex offending. In addi-
tion, prior to using J-SOAP-II, users should
read the manual and be familiar with its
contents. Before using the scale in any
professional capacity, users should complete
several practice cases and compare their
scores with others who have scored the same
case to identify and resolve any scoring
- 28 -
difficulties. It is also recommended that J-
SOAP-II users periodically consult with each
other about their scoring and stay current
with the evolving literature relevant for
assessing juveniles who sexually offend." R.
Prentky & S. Righthand, J-SOAP-II Manual, at
1.
"Decisions about reoffending should not be based exclusively on
the results from J-SOAP-II. J-SOAP-II should always be used as
part of a comprehensive risk assessment." R. Prentky & S.
Righthand, J-SOAP-II Manual, at 1.
Here, the trial court's personal use of J-SOAP-II
tainted respondent's disposition. The court sua sponte, at the
close of evidence, conducted her own risk assessment. The use of
tools like J-SOAP-II are important in determining an appropriate
juvenile sentence. Trial judges should be commended for partici-
pating in training relating to application and interpretation of
juvenile testing methods so they can properly understand J-SOAP-
II. However, while courts should be familiar with J-SOAP-II, the
actual assessment should be done by trained and knowledgeable
clinicians.
The problem here is evidenced by at least two instances
when the trial judge attempted to apply the checklist but consid-
ered factors not contained in the checklist. For example, item 2
of the checklist pertains to the number of sexual-abuse victims
and assigns a higher score for more victims. R. Prentky & S.
- 29 -
Righthand, J-SOAP-II Manual, at 12. The court stated, "when the
victims are family members, the J-SOAP indicates that is also to
be taken into consideration and additional points awarded, as far
as recidivism is concerned." However, J-SOAP-II manual does not
make any reference to the status of the victim as a family
member. Similarly, item 13, relating to juvenile antisocial
behavior between ages 10 and 17, directs the assessor to score
for the following:
"nonsexual delinquent behavior such as (1)
vandalism and destruction to property; (2)
malicious mischief, disorderly conduct, va-
grancy, habitual truancy; (3) fighting and
physical violence; (4) owning or carrying a
weapon (other than for sport and hunting);
(5) theft, robbery, burglary; and (6) motor
vehicle-related (reckless driving, operating
to endanger, operating under the influence)."
R. Prentky & S. Righthand, J-SOAP-II Manual,
at 18.
However, when the trial judge discussed this item, she mentioned
that respondent had friends but had some problems forming social
relationships with peers.
In this case, the trial court's personal use of J-SOAP-
II to assess respondent's risk of offending was improper and
tainted respondent's dispositional hearing. Respondent is
therefore entitled to a new dispositional hearing.
- 30 -
III. CONCLUSION
For the reasons stated, we affirm the trial court's
order revoking respondent's probation, reverse the court's
dispositional order, and remand for a new dispositional hearing.
Affirmed in part and reversed in part; cause remanded.
TURNER, J., concurs.
POPE, J., concurs in part and dissents in part.
- 31 -
JUSTICE POPE, specially concurring in part and dissent-
ing in part:
I concur in the portion of the majority's decision with
respect to the trial court's use of J-SOAP-II. For the following
reasons, I respectfully dissent from the majority's holding on
the issue of the trial court's revocation of respondent's proba-
tion.
As the majority discusses, the State must prove a
violation of probation by a preponderance of the evidence.
Justin M.B., 204 Ill. 2d at 125, 787 N.E.2d at 826. The petition
to revoke probation stated respondent failed to
"complete or comply with sex[-]offender
treatment, specifically within the past few
weeks he was found to have possessed in his
bedroom various sexual aids and devices and
admitted to his therapist/counselor that he
did not use any appropriate interventions to
prevent himself from engaging in sexual be-
havior as he had been taught to do through
counseling and expressed to his counselor
that he could not stop his need to engage in
sexual behavior."
I would reverse the trial court's decision because, in essence,
the petition alleged respondent violated his probation by engag-
ing in masturbatory conduct. The evidence at the hearing estab-
lished the revocation was based on this 15-year-old boy's
- 32 -
masturbatory conduct. His "sexual behavior" was with himself--
not any third-party victim. Calling the minor's masturbation a
failure to complete or comply with sex-offender treatment does
not make it so.
The record supports the conclusion respondent was
making slow but steady progress between April 2007 and January
2008. As the majority acknowledges, all parties, including the
trial court, understood respondent's outpatient treatment would
take a significant commitment of time and effort because of
respondent's reduced intellectual capacity. Campbell even
indicated to respondent's parents that respondent would be in
treatment for the entire five years of probation. Thus, revoca-
tion of the minor's probation after only seven months, without
any clear violations, reflects a lack of patience with respect to
respondent's progress.
In his April 16, 2007, letter to the State, just one
month after probation was imposed, Campbell wrote respondent
"initially had trouble grasping the concepts of distorted think-
ing but is beginning to understand how he used it in his of-
fenses. Treatment with this client will be slow and lengthy due
not only to the content and to issues addressed, but also due to
his limited intellectual capacity." Campbell acknowledged
respondent's motivating factors for the abuse related to his
parents' volatile relationship and "point in the direction of a
power/control offense with elements of revenge rather than purely
sexual urges to have sexual contact with younger children. ***
- 33 -
It may be a little more encouraging that the client needs to
learn coping skills for stress and problem behaviors, rather than
trying to change deviant sexual arousal patterns."
In the April 24, 2007, progress report from Campbell,
he stated "[respondent] appears to be genuine in his desire for
treatment. He is presently taking the antidepressant medication
Zoloft which, he states, has significantly reduced the frequency
of sexual thoughts. *** Treatment with this client will be slow
and lengthy due not only to the content and to issues addressed,
but also due to his limited intellectual capacity."
In the July 3, 2007, progress report, Campbell acknowl-
edged the first masturbation incident when respondent's grand-
mother saw him masturbating through his open bedroom door, but
Campbell did not expound on how he addressed the incident with
respondent. Campbell states "[respondent] has identified some of
the thinking errors that he used in his offense. He also identi-
fied depression as a trigger for his fantasies/offenses. ***
Progress is slow but he seems committed to resolving his prob-
lems. He pays attention and stays on topic. No new issues or
concerns."
At the August 1, 2007, hearing, the trial court stated,
based on its review of Campbell's report, "[p]rogress is slow"
and "not much progress" had been made. Speaking to respondent,
the court said "why you would engage in [masturbation], in the
viewing and presence of your grandmother, I really can't guess."
As the majority acknowledges, the court posed the issue of
- 34 -
masturbation in terms of respondent engaging in the behavior in
the presence of his grandmother, which could indicate to a 15-
year-old male the behavior is acceptable in private.
Campbell states in his September 17, 2007, report
"treatment has been focused on thinking errors. He seems to
understand the concept and identify some of the thinking errors
he used before, during, and after his offense. Also covered this
quarter were anger management skills and identifying feelings.
Progress has been satisfactory. He denies having *** had any
deviant sexual thoughts during the quarter and there has been no
evidence of any inappropriate sexual behaviors. *** No issues
or concerns. Continue treatment." (Emphasis added.) While
Campbell acknowledges no deviant sexual thoughts, he does not
report on any healthy or appropriate sexual thoughts or behav-
iors. In October 2007, Campbell reported no violations.
In his November 27, 2007, letter to respondent's
probation officer, Campbell states respondent is "in the process
of developing his offense cycle so that he can map out the
thoughts, feelings, and behaviors that led to his offending. ***
[Respondent] remains cooperative with treatment except for
journaling his feelings which he seems to avoid wanting to do.
*** Overall, [respondent] is making satisfactory progress."
In his December 20, 2007, progress report, Campbell
indicates respondent attended all sessions. Respondent had
difficulty expressing feelings due to a couple of identifiable
factors relating to the learned rule that real men do not express
- 35 -
feelings and his coping mechanism of numbing emotions. Campbell
indicates respondent has expressed negative emotions relating to
how his father has treated him and his parents' ongoing con-
flicts. Campbell states respondent is learning intervention
techniques to "get out of his cycle."
Despite the petition specifically stating the masturba-
tion incident was the reason for revocation, the majority and the
trial court refer to respondent's failure to make progress in
counseling as the grounds for the probation revocation. At the
revocation hearing, the court stated:
"It's not just a matter that he masturbated
when the doctor said that wasn't appropriate
behavior at that point, but because they're
not making any progress in therapy because he
cannot, or will not, express his feelings and
how these things came about. That's why
we're not making any progress in therapy.
And so if the only *** offer [of] proof is
*** to say that not masturbating or mastur-
bating is or is not appropriate behavior
under this kind of therapy situation, that
doesn't go to the heart of this matter."
If, despite the language in the petition, the trial
court's revocation was based on respondent's lack of progress
instead of the masturbation incident, this finding is not sup-
ported by a preponderance of the evidence. None of Campbell's
- 36 -
progress reports indicate treatment was not working, and Campbell
consistently reported respondent made slow but steady progress.
The treatment plan implemented by Campbell lists the
following goals: (1) client exhibits motivation for treatment,
(2) client fully discloses and takes full responsibility for
sexual offenses, (3) client identifies thinking errors, (4)
client decreases arousal to deviant stimuli, (5) client identi-
fies and understand offense cycle, (6) client develops relapse
prevention plan, (7) client exhibits victim empathy, and (8)
client's behavior in the community is positive. Respondent's
treatment plan does not indicate ridding respondent of any sexual
impulse or outlet is part of the treatment or an ultimate goal of
the plan.
In accordance with the treatment goals, respondent (1)
attended counseling sessions and, according to Campbell, exhib-
ited a commitment to resolving his problems; (2) described the
abuse he inflicted and consistently took responsibility for the
abuse; (3) identified some of the thinking errors he used before,
during, and after the offense; (4) decreased arousal to deviant
stimuli, evidenced by his use of a primarily text-filled magazine
that did not depict pictures of adults or children; (5) was
learning how to "get out of his cycle" by incorporating interven-
tion methods, which according to material provided by Campbell,
included masturbation; (6) did not relapse in his deviant sexual
behavior but used a relapse-prevention technique, masturbation,
which is the subject of the revocation; (7) had not yet addressed
- 37 -
victim-empathy issues, which Campbell testified would be ad-
dressed later in treatment; and (8) exhibited positive behavior
in the community evidenced by his appropriate behavior around
peers and school staff and his participation in the Future
Farmers of America, an extracurricular activity offered at his
school. Numerically rating respondent's progress toward his
treatment goals, Campbell increased respondent's ratings in the
areas of decreasing arousal to deviant stimuli, identifying the
offense cycle, and developing a relapse plan. Campbell did not
lower respondent's rating for any of the eight goals.
If the masturbation incident was the basis for the
trial court's decision, or even a factor in the court's decision,
this too was improper, as no evidence was presented to show
Campbell and the court prohibited respondent from masturbating as
a term of his probation. In fact, the record does not indicate
any effort by the court or Campbell to distinguish between
healthy and deviant sexual thoughts and behaviors. On the
contrary, Campbell testified that as of his December 20 status
report, respondent was beginning the process of developing
interventions to get out of the offense cycle. As part of the
intervention therapy, Campbell provided respondent with reading
material that specifically identified masturbation as an appro-
priate intervention technique. Additionally, only months prior
to the revocation, the court indicated to respondent masturbation
in front of his grandmother was inappropriate, leaving open to
interpretation whether masturbating in private was an appropriate
- 38 -
outlet.
The trial court and Campbell placed a strong emphasis
on respondent's failure to articulate precisely why he mastur-
bated. Relying on a 15-year-old male's inability to explain the
reasons he masturbated as a basis for revocation seems quite
faulty. Respondent's intellectual limitations and difficulty
expressing himself verbally would contribute to his difficulty in
explaining the behavior. Campbell had previously indicated he
allowed respondent to avoid the journaling exercise because he
knew identifying and writing about his feelings was especially
difficult for respondent. Campbell testified respondent "had a
very difficult time expressing feelings. It took a lot of
prompting on my part to get him to talk about his anger at his
parents, for instance. And it was very difficult to get him to
speak of feelings in any other context." Campbell went on to
testify respondent's difficulty with communicating would apply to
the feelings he experienced when he masturbated. Respondent
presumably experienced some humiliation over being confronted by
his parents for masturbating. In addition, his therapist asking
him to explain why he masturbated could also contribute to his
difficulty in discussing the incident.
At the revocation hearing, when asked if respondent's
engaging in masturbation was normal, Campbell replied "it would-
n't be normal. The desire might continue to be normal, but the
behavior would be prohibited. You know, the whole point of
treatment was to help him learn to manage his behaviors and his
- 39 -
thoughts and his feelings that went before the behaviors."
Campbell's testimony and his reports illustrate a deficiency on
the issue of deviant versus healthy sexual behaviors. He does
not clarify whether "behavior" refers to the abuse or to any and
all sexual behavior. Campbell does not say he informed the
minor, as part of his counseling and treatment, that masturbation
was in fact prohibited. As Campbell pointed out in his April 16,
2007, letter to the State, respondent's abuse related to anger
and coping issues rather than a desire to molest children. If
treatment focused on eliminating deviant sexual thoughts and
preventing acting on those thoughts, and respondent had abstained
from deviant sexual behavior, the treatment was working.
At the same hearing, Campbell explained the letter he
sent to respondent's probation officer regarding the second
masturbation incident was not meant to indicate respondent was a
danger to others. Campbell testified "[t]here was no direct
evidence that he was a danger to others. There was no indication
he had been thinking about victimizing anyone or any indication
that he had thought about that, no." The State also asked
Campbell, "with regards to intervention techniques and relapse
prevention and distraction techniques, what does his engaging in
this kind of sexual behavior tell you about the success of his
treatment and how compliant he is with treatment?" Campbell
responded "it indicates to me that he was not able to manage his
behavior, his thoughts, feelings, or behaviors, and had not been
able to use any of those techniques or interventions that we had
- 40 -
talked about." The State's witness seems to equate the 15-year-
old minor's masturbation with noncompliance with treatment.
However, by masturbating, respondent was engaging in an interven-
tion technique, the use of which was an integral part of his
treatment. For this, his probation was revoked.
At the conclusion of the presentation of evidence at
the revocation hearing, the trial court stated:
"[h]ow does the counselor address these
problems if [respondent] will not be honest
and will not share this information in coun-
seling? And that's why it isn't successful.
And that's why I find that the State has
proved by a preponderance of the evidence
that the minor has not followed his order of
probation and his probation should be re-
voked."
The State's burden was to prove by a preponderance of the evi-
dence the allegations in the petition to revoke. Those allega-
tions stated respondent violated his probation by masturbating.
The trial court found respondent violated his probation by not
being honest (in the court's opinion) and sharing information
with his counselor, something entirely different than alleged in
the petition.
In summary, regardless of how the trial court presented
its reasons for revoking probation, it was in error because the
preponderance of the evidence does not support the finding that
- 41 -
treatment was unsuccessful. Campbell continued with respondent's
treatment for several months after the first masturbation epi-
sode, giving him satisfactory reports. Yet following the second
episode, Campbell determined all of the treatment up to that
point had failed and he would be starting from square one if he
continued working with respondent. Masturbation was never
clearly prohibited as part of his probation (nor do I suggest
such a prohibition would have been appropriate), and Campbell
apparently failed to distinguish between healthy and deviant
sexual thoughts and behaviors.
Further, respondent consistently attended and partici-
pated in counseling, showed no signs of relapse or reoffending,
and made positive progress toward his treatment goals. Nothing
indicated he used any sexually deviant materials for arousal, and
the apparent inconsistencies in Campbell's approach to treatment
understandably left respondent believing masturbation in private
might be an acceptable activity. Respondent demonstrated a
below-average ability to verbalize or commit to writing his
thoughts and feelings, but made an effort to communicate with
Campbell, prompting Campbell to overlook respondent's failure to
comply with the journaling exercise. Overall, respondent's case
illustrates the slow and tedious road to rehabilitation posed by
juvenile outpatient treatment. A review of the record makes
clear the trial judge reluctantly agreed to the originally
negotiated disposition of probation. This is understandable,
given the serious nature of the minor's offenses. However, once
- 42 -
the minor was placed on probation, he attended school, had a good
relationship with his school aide, attended all of his counseling
sessions, and did not reoffend. Viewing the evidence in the
light most favorable to the State, I cannot find it proved, even
by a preponderance of the evidence, the minor violated his
probation. Therefore, I respectfully dissent.
- 43 -