In the Matter of the Welfare of: J.C., Child.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2079
In the Matter of the Welfare of: J.C., Child.
Filed June 8, 2015
Affirmed
Stauber, Judge
Ramsey County District Court
File No. 62-JV-14-2252
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant J.C.)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Kathryn Richtman, Assistant County Attorney,
Kayla McNabb, Certified Student Attorney, St. Paul, Minnesota (for respondent)
Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges an order of the district court certifying him to stand trial as
an adult on felony charges of possession of a firearm and receiving stolen property.
Because the district court properly applied the statutory certification factors and
appropriately exercised its discretion in reaching its certification decision, and because
the district court did not abuse its discretion by appointing a guardian ad litem, we affirm.
FACTS
Police were called to a St. Paul fast-food restaurant on September 3, 2014, after
someone was seen carrying a gun. As they arrived, a group of 10 to 15 people dispersed,
including appellant J.C., born on April 3, 1997, and two other juveniles, one of whom is a
known gang member. When police directed them to stop, J.C. dug into his pants and
threw a loaded gun magazine on the ground. After being placed in a squad car, J.C. also
pulled something from his pants that fell to the floor. Police recovered a stolen handgun
that matched the magazine they had already taken from J.C. After being advised of his
rights, J.C. admitted that the gun was stolen, said that he was “holding the magazine for
somebody,” and when asked why he had the gun, he said, “for protection.”
The state filed a juvenile delinquency petition charging J.C. with two felony
offenses: possession of a firearm by an ineligible person and receiving stolen property.
As J.C. had been adjudicated delinquent on a robbery charge in 2013, the state also
moved for J.C.’s presumptive certification to stand trial as an adult. J.C. waived his right
to have a parent present, and the district court appointed a guardian ad litem.
At the certification hearing, the district court received testimony from psychologist
Patricia Orud, who had examined J.C. Her report establishes that J.C. was raised by a
single “inconsistent and uninvolved” parent and was a frequent runaway. J.C. was
involved in numerous juvenile offenses that escalated to the 2013 robbery offense and the
current charges. He functions at a low-average intellectual level and has been diagnosed
with severe conduct and cannabis-use disorders, and a moderate alcohol disorder.
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Orud examined each of the statutory factors required for adult certification and
concluded that four favored J.C.’s certification and two favored extended jurisdiction
juvenile (EJJ) designation. While Orud concluded that the statutory factors favored
J.C.’s adult certification, she nevertheless recommended that J.C. remain on EJJ status
because of his “potential to redirect his functioning from his criminal lifestyle while
under the external authority of the Court” and because “[t]he conditions necessary for
change support[] a recommendation for processing this offense within the parameters of
Extended Jurisdiction Juvenile status.”
A contrary view was taken by an investigator for the Ramsey County Probation
and Juvenile Office, who prepared a certification study that recommended J.C.’s
certification to stand trial as an adult. The investigator reviewed the programming and
services that were provided to J.C. and concluded that J.C. is dangerous and a risk to
public safety. The investigator stated that although she did not reject Minnesota
Correctional Facility-Red Wing (Red Wing) as a possible EJJ placement for J.C., she
concluded that J.C. should be certified as an adult because of “his history with weapons
and all the programming that had been done, as well as . . . his gang involvement.”
J.C.’s probation officer for the 2013 robbery offense also testified, identifying the
many services that had been offered to J.C. The probation officer placed J.C. at a high
risk to reoffend, given his extensive and escalating delinquency history, and his history of
failing to internalize offered services. The probation officer conceded that J.C.’s only
felony-level adjudication involved the 2013 robbery, in which there were three
accomplices, one of whom used a BB gun to commit the offense.
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At the hearing, two dispositional placement alternatives were identified,
depending on whether J.C. was certified as an adult or was assigned EJJ status. An
intake coordinator for Red Wing testified that Red Wing offered programming options
for youthful offenders, including mental-health and medical services, academics, a
substance-abuse program, and cognitive restructuring. According to the intake
coordinator, Red Wing is designed for Minnesota’s most violent juvenile offenders, and
EJJ inmates can remain there until age 21. Juveniles can refuse treatment at Red Wing,
but they will not be released without completing treatment unless they are released due to
age.
The program director at the Minnesota Department of Corrections also described a
comparable program for youthful offenders under age 21 in prison that includes
mandatory education, recreation, cognitive therapy three days per week, mental health
therapy two days per week, and other services, such as chemical-dependency care. The
program director stated that the program is voluntary after a prisoner reaches age 18 and
that, at age 19, prisoners are no longer eligible to participate in the program.
The district court also heard testimony regarding J.C.’s mandatory and voluntary
residential placements in the year before the current charges, one of which was termed
“successful” and one from which he was discharged.
Finally, the district court heard testimony from the court-appointed guardian ad
litem (GAL), who interviewed J.C. twice and reviewed his past history. The GAL
recommended EJJ designation rather than commitment to prison because the GAL
viewed programming options as better for J.C. outside of the prison system. On cross-
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examination, the GAL admitted that this recommendation was treatment-based and did
not include consideration of J.C.’s criminal record or punishment issues. He also
identified particular instances where J.C.’s behavior made others unsafe, referencing two
uncharged assaults.
In an order that comprehensively applies each of the six statutory factors, the
district court concluded that three factors favored adult certification, including the
seriousness of the offense, culpability of the child, and child’s prior record of
delinquency. The district court concluded that the three remaining factors favored EJJ
designation, including programming history, adequate punishment and programming in
the juvenile system, and dispositional options. The court specifically found that the
availability and adequacy of punishment or programming in the juvenile justice system
only “slightly” favored EJJ designation. The court concluded that the factors favoring
adult certification outweighed the factors favoring EJJ designation, noting that two of the
certification factors are required by statute to be given greater weight, and that J.C. did
not meet his burden to demonstrate by clear and convincing evidence that he had
overcome the presumption of adult certification. The district court ordered that J.C. be
certified for prosecution as an adult, and this appeal followed.
DECISION
On review of a district court’s decision to certify a juvenile to adult court, an
appellate court will affirm unless the district court abused its discretion, applying a
clearly erroneous standard to the review of factual findings and a de novo standard to
questions of law. In re Welfare of J.H., 844 N.W.2d 28, 34-35 (Minn. 2014); see In re
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Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007) (“A district court has
considerable latitude in deciding whether to certify, and this court will not upset its
decision unless its findings are clearly erroneous so as to constitute an abuse of
discretion.” (quotations omitted)), review denied (Minn. Oct. 24, 2007). This court will
not “disturb a finding about whether public safety would be served by retaining the
proceeding in juvenile court unless it is clearly erroneous.” J.H., 844 N.W.2d at 35.
Under Minn. Stat. § 260B.125, subd. 3 (2014), a presumption applies that
appellant should be certified to the district court for adult proceedings because he was 17
at the time of the offense, the offense involved the use of a firearm, and probable cause
existed to believe appellant committed the offense. Appellant can overcome this
presumption if “by clear and convincing evidence” the retention of “the proceeding in the
juvenile court [would] serve[] public safety.” Id.
A district court must consider the following six factors in deciding whether public
safety would be served by certification:
(1) the seriousness of the alleged offense in terms of
community protection, including the existence of any
aggravating factors recognized by the Sentencing guidelines,
the use of a firearm, and the impact on any victim;
(2) the culpability of the child in committing the
alleged offense, including the level of the child’s participation
in planning and carrying out the offense and the existence of
any mitigating factors recognized by the Sentencing
Guidelines;
(3) the child’s prior record of delinquency;
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(4) the child’s programming history, including the
child’s past willingness to participate meaningfully in
available programming;
(5) the adequacy of the punishment or programming
available in the juvenile justice system; and
(6) the dispositional options available for the child.
Minn. Stat. § 260B.125, subd. 4 (2014). The district court must “give greater weight to
the seriousness of the alleged offense and the child’s prior record of delinquency than to
the other factors listed.” Id.
Statutory Certification Factors. Appellant argues that the district court
“misinterpreted and misapplied” the certification statute by improperly focusing on
appellant’s past behavior in determining whether he is now a threat to public safety. He
argues that “the operative standard is not a juvenile’s risk to re-offend before treatment
but whether EJJ programming and the safeguard of executing an adult sentence would
insure public safety.” This reading of the statute is inaccurate.
When the statutory certification presumption applies, the district court is directed
to apply the public-safety factors in the consideration of “whether the public safety is
served by certifying the matter.” Minn. Stat. § 260B.125, subd. 4. The public safety
factors “are intended to assess whether a juvenile presents a risk to public safety and thus
aim to predict whether a juvenile is likely to offend in the future.” In re Welfare of
R.D.M., III, 825 N.W.2d 394, 399 (Minn. App. 2013), review denied (Minn. Apr. 16,
2013). Each of the six factors is predicated upon the juvenile’s past or current conduct,
not predicted future conduct after programming, as urged by appellant. See id.
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(recognizing that public-safety factors “examine the juvenile’s past behavior and
programming failures,” while “others must be read to allow consideration of the
juvenile’s current conduct”). Embedded in the language of all of the public-safety factors
is the notion that past conduct predicts future behavior. See id. (“In the end, the [public-
safety] factors must show that a risk to public safety exists because the juvenile’s
behaviors are likely to continue.” (quotations omitted)). Thus, appellant’s argument that
the district court “wrongly applied the statutory criteria to look backward instead of
forward” lacks merit. Cf. In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn. 2000)
(rejecting concept that district court’s weighing of public-safety factors must be made
according to specific mathematical weights).
Appellant also argues that the district court incorrectly assessed the third public-
safety factor, his prior criminal history, by improperly considering his programming
history as part of his prior criminal history, and improperly considered evidence of his
gang involvement when the record did not support it. When the district court orders
certification, it “is not required to make specific findings on each factor” and is only
required to “fully investigate[] the matter and carefully consider[] its decision.” Vang v.
State, 788 N.W.2d 111, 116 (Minn. 2010).
A prior record of delinquency is defined to include “records of petitions to
juvenile court and the adjudication of alleged violations of the law by minors.” In re
Welfare of N.J.S., 753 N.W.2d 704, 710 (Minn. 2008). The district court listed five
offenses for which appellant was adjudicated delinquent and five other offenses for which
delinquency petitions were filed but later dismissed. The district court also included
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findings regarding appellant’s lack of progress while on probation, his gang affiliation,
and the escalation in severity of his offenses. See In re Welfare of H.S.H., 609 N.W.2d
259, 262-63 (Minn. App. 2000) (commenting that prior record of delinquency does not
support adult certification when it “fails to show deeply ingrained, escalating criminal
behavior that presents a threat to public safety”).
Evidence that was properly included in the prior-history factor independently
supports the district court’s determination on that factor, and the district court’s erroneous
inclusion of appellant’s lack of programming progress in the consideration of his prior
record does not merit reversal. See N.J.S., 753 N.W.2d at 710-11 (affirming certification
even though district court erred by including juvenile’s uncharged incidents from school
and institutional records in consideration of juvenile’s prior record of delinquency).
Appellant does not challenge the district court’s analysis on any other factor, and the
court’s overall consideration of the factors shows that it properly analyzed the factors in
reaching its decision. See Vang, 788 N.W.2d at 116.
Further, it was not improper for the district court to rely on appellant’s gang
involvement in considering his prior record of delinquency. The petition for the current
offense notes that appellant was with a known gang member when he was apprehended
by police. This evidence, coupled with appellant’s comment that he possessed the gun
for protection and was holding the magazine for another person, support an inference that
appellant was involved in gang activity. In addition, even if the district court improperly
relied on evidence from sources that were not part of appellant’s delinquency record, this
error was of little import in light of appellant’s overall significant juvenile delinquency
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history and the court’s otherwise proper application of the statutory factors in reaching its
decision. See In re Welfare of P.C.T., 823 N.W.2d 676, 685-86 (Minn. App. 2012)
(reversing district court’s EJJ certification decision when juvenile’s prior gang-related
felony and current gang-related offense outweighed the other factors), review denied
(Minn. Feb. 19, 2013); St. Louis Cnty. v. S.D.S., 610 N.W.2d 644, 648 (Minn. App. 2000)
(reversing EJJ certification decision when juvenile was extensively involved in gang
activity). Appellant’s delinquency record is sufficiently significant to warrant adult
certification. See In re Welfare of U.S., 612 N.W.2d 192, 196 (Minn. App. 2000)
(including “significant” prior juvenile record of nine misdemeanors, two involving
firearms, and two felonies).
While application of the statutory certification factors suggests that this may be a
close case, the burden was on appellant to overcome the presumption of adult
certification by a clear-and-convincing-evidence standard. He did not meet that burden,
and we cannot say that the district court abused its discretion by ruling that he should be
certified to stand trial as an adult.
Appointment of GAL. Appellant next argues that the district court erred by
appointing a GAL and by admitting the GAL’s report into evidence at the certification
hearing. Under Minnesota Rule of Juvenile Delinquency Procedure 24.01(C), “[t]he
court may appoint a [GAL] on its own motion or on the motion of the child’s counsel or
the prosecuting attorney when the court determines that an appointment is in the best
interests of the child.” A GAL may be appointed “to act in place of a parent . . . to
protect the best interest of the child when it appears, at any stage of the proceedings, that
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the child is without a parent . . . .” Minn. R. Juv. Deliq. P. 24.01(A). A district court
“shall” appoint a GAL “[i]f the parent . . . is unavailable, incompetent, indifferent to,
hostile to, or has interests in conflict with the child’s best interests . . . .” Id.
The district court did not err by appointing a GAL. Appellant’s mother only
intermittently attended appellant’s hearings and was living in another state at the time of
the certification hearing. Although appellant, a minor, was willing to waive both the
appointment of a GAL and his mother’s attendance at the certification hearing, the
district court was free to disregard those waivers when the circumstances demonstrated to
the district court that appointment of a GAL was in appellant’s best interests. The district
court’s minor oversight in citing an incorrect statute as authority for its GAL appointment
does not affect the validity of the GAL’s appointment.
Affirmed.
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