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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
J.T.S., a minor, )
) Court of Appeals No. A-3623
Appellant, ) Trial Court No. 3AN-88-288ECP
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1197 - January 31, 1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Peter A. Michalski,
Judge.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Steven
D. DeVries, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
J.T.S., a minor who was adjudicated delinquent, appeals
from an order of the superior court allowing the Department of
Health and Social Services to institutionalize him for up to two
years or until his 19th birthday. AS 47.10.080(b)(1). J.T.S.
contends that the superior court's order violates Alaska
Delinquency Rule 23(d) because institutionalization was not the
"least restrictive alternative" available to the court. We
remand.
Born in March 1973, J.T.S. was adjudicated a delinquent
minor at the age of 15 on June 22, 1988 for committing third-
degree criminal mischief (joyriding), AS 11.46.484(a)(2). After
signing a conduct agreement, J.T.S. was released on probation to
his father's custody.
Five days later, J.T.S. committed another joyriding.
On June 29, 1988 -- just one week after his delinquency
adjudication -- the court found that J.T.S. had violated his
conduct agreement and sentenced him to McLaughlin Youth Center
for 10 days.
J.T.S. was released from McLaughlin on July 8, 1988.
Two days later, J.T.S. stole another car; again, he was adjudged
in violation of his probation agreement. J.T.S. was returned to
McLaughlin, this time for 30 days.
J.T.S. was released from McLaughlin on August 10, 1988.
Three weeks later, on September 2, J.T.S. again committed joyrid
ing, this time taking his father's car. J.T.S. was ordered
detained in McLaughlin until September 30, but he was soon
referred to Alaska Children's Services with a request that he be
considered for admission into the Jesse Lee Home.
On September 22, the superior court approved J.T.S.'s
admission into Jesse Lee. The conditions of J.T.S.'s probation
were modified to include the requirement that he comply with all
of the home's rules.
One month later, on October 21, J.T.S.'s probation
officer filed a petition to modify or revoke J.T.S.'s probation;
J.T.S. had left the Jesse Lee Home without consent the day
before. J.T.S. was arraigned on this revocation petition on
October 24, 1988, but the petition was held in abeyance for 30
days while J.T.S. was returned to the Jesse Lee Home to see if
his behavior would improve.
On December 29, 1988, J.T.S. again violated probation
by remaining away from Jesse Lee without consent. A second
petition to revoke his probation was again held in abeyance, and
ultimately dismissed on March 10, 1989, because J.T.S. did not
have any further infractions.
Two weeks after this revocation petition was dismissed,
J.T.S. again went AWOL from the Jesse Lee Home. J.T.S. was
temporarily placed in McLaughlin, but after a few days, he was
released back to Jesse Lee.
Five days later, while still awaiting the disposition
hearing on the latest revocation petition, J.T.S. ran away again
from the Jesse Lee Home. On May 1, 1989, J.T.S. was sent back to
McLaughlin until May 30.
On May 1 and 10, 1989, the Department filed two new
delinquency petitions against J.T.S.. These petitions alleged
that, during the time J.T.S. was absent from the Jesse Lee Home
without authorization, he stole another car and also committed
first-degree burglary, AS 11.46.300(a)(1). Both petitions were
found true.
The Department told the superior court that only two
placement possibilities remained for J.T.S.: McLaughlin Youth
Center or the Intensive Treatment Unit operated by Alaska Chil
dren's Services. Despite J.T.S.'s history of running away, the
Department favored the Intensive Treatment Unit even though that
facility posed somewhat of a risk because it was not a closed
institution like McLaughlin.1
At the same time, Alaska Children's Services filed its
evaluation of J.T.S. upon his discharge from the Jesse Lee Home.
In this evaluation, the staff at the Jesse Lee Home reported that
J.T.S. had had problems with theft, lying, flight behavior, and
anger. They did report, however, that J.T.S. had shown improved
ability to control his aggressive behavior, due in part to his
continued use of medication for Attention Deficit Disorder.
At J.T.S.'s disposition hearing on May 30, 1989, Master
William Hitchcock decided to place J.T.S. in McLaughlin. In
making this decision, Master Hitchcock examined J.T.S.'s past
violations and his history of ignoring authority. Master
Hitchcock concluded that J.T.S. was a danger to the property
rights of others. He also declared that, given the recent
burglary and the most recent joyriding (which would have been a
felony if J.T.S. had been an adult), J.T.S.'s pattern of
violations was escalating in frequency and severity.
For these reasons, Master Hitchcock concluded that
J.T.S.'s stay in Jesse Lee had not helped and that, because of
J.T.S.'s running away and continued violations of the law, no
treatment alternatives short of institutionalization were consis
tent with both J.T.S.'s rehabilitation and the protection of the
public.
J.T.S. objected to the master's findings. At the
disposition hearing before Superior Court Judge Victor D.
Carlson, both J.T.S. and the Department concurred in a recommen
dation for placement in the Intensive Treatment Unit. Neverthe
less, Judge Carlson approved Master Hitchcock's recommendation,
finding that if J.T.S. could not handle the freedom of the Jesse
Lee Home, J.T.S. would also walk away from the Intensive
Treatment Unit.
Eleven months later, on April 23, 1990, a McLaughlin
review board found that J.T.S. had made significant progress in
controlling his impulsive and destructive behavior; the board
recommended that J.T.S. be released on probation to his adoptive
father. Master Hitchcock released J.T.S. on May 11, 1990.
Ten days later, on May 21, 1990, J.T.S. stole another
vehicle. Master Hitchcock recommended that J.T.S. be returned to
McLaughlin. This recommendation was approved by Superior Court
Judge Peter A. Michalski on July 25, 1990.
J.T.S. now appeals this most recent institutional
ization order. He argues that the superior court should have
sent him to the Intensive Treatment Unit or back to the Jesse Lee
Home rather than returning him to McLaughlin. He points out that
no live testimony was taken at the most recent disposition
hearing, nor were any reports offered from the McLaughlin staff
or from mental health professionals. Instead, the superior court
made its determination solely from J.T.S.'s pre-existing record.
The record in this case demonstrates good reason to
believe that placement of J.T.S. in a setting such as the Jesse
Lee Home or the Intensive Treatment Unit might be inadequate to
achieve J.T.S.'s rehabilitation or to protect the public. Except
for the time J.T.S. has spent in McLaughlin, his offenses have
continued without significant interruption since June, 1988.
Several times, J.T.S. has been released on probation; each time,
J.T.S. has committed new offenses. During J.T.S.'s previous
placement at the Jesse Lee Home, J.T.S. repeatedly ran away.
During his last unauthorized absence from Jesse Lee, J.T.S.
engaged in conduct that, were he an adult, would constitute two
separate felonies.
We conclude, nevertheless, that this case must be
remanded to the superior court for reconsideration of J.T.S.'s
placement at McLaughlin Youth Center. The law views
institutionalization of a minor as the disposition of last
resort. Before a minor is institutionalized in a closed
facility, Delinquency Rules 11(e) and 23(d) require the superior
court to consider the available placement options and
affirmatively determine that less restrictive options will
probably not accomplish the goals of rehabilitation and
protection of the public. The master's remarks at J.T.S.'s
disposition hearing do not contain such an analysis. While the
master refers to an analysis purportedly done by the Department
of Health and Social Services, the pre-disposition report filed
by the Department contains no such analysis either.
We have previously held that a minor's history of
failed placements and continued violations of law can provide an
adequate basis for the superior court's decision to institutional
ize the minor. See P.R.J. v. State, 787 P.2d 123 (Alaska App.
1990). However, this decision must still be made after careful
consideration of the alternatives. Given the terseness of the
master's remarks, the failure of the pre-disposition report to
analyze placement alternatives, the fact that, just before
J.T.S.'s most recent offenses, the McLaughlin staff felt that
J.T.S. was ready to be released on probation, and the fact that
the last psychological evaluation of J.T.S. found in the record
is two years old, we agree with J.T.S. that more explicit
consideration of placement alternatives was required before the
court sent him back to McLaughlin.
The placement order of the superior court is VACATED
and this case is REMANDED for further proceedings.
_______________________________
1 The differences between the Intensive Treatment Unit and
the Jesse Lee Home are nominal. The Intensive Treatment Unit has
a higher staff-to-juvenile ratio, its rules are stricter, and the
children's school is located on the campus. But, like the Jesse
Lee Home, the Intensive Treatment Unit is not a closed facility.
