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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
G.A.D., a minor, )
) Court of Appeals No. A-4430
Appellant, ) Trial Court No. 3AN-91-132ACP
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1327 - December 17, 1993]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, John Reese,
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. Anita L.
Alves, Assistant Public Advocate, and Brant
McGee, Public Advocate, Anchorage, for
Guardian ad litem.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
G.A.D. was adjudicated a delinquent minor for sexually
abusing his three-year-old brother. He was placed in residential
sex offender treatment at the Jesse Lee Home in Anchorage.
G.A.D. failed to show improvement after ten months of treatment,
and he committed a new offense by escaping from the Home. As a
consequence, the Jesse Lee staff, the Division of Family and
Youth Services, and G.A.D.'s guardian ad litem all asked the
superior court to order G.A.D. institutionalized at the
McLaughlin Youth Center so that he could receive a more
structured, confrontational sex offender treatment.
In testimony given at the disposition hearing, G.A.D.'s
mother characterized her son as manipulative, deceitful, and self-
pitying. She stated that G.A.D. had failed to respond to
treatment at the Jesse Lee Home because he refused to acknowledge
that he had any problem. She believed that her son needed to be
in a place with constant supervision, where he would be
confronted about his inappropriate behavior and attitudes.
Jeri Lynn Fairley, a clinical therapist employed by
Alaska Children Services, works at the Jesse Lee Home treating
juvenile sex offenders. Fairley testified that, despite
treatment, G.A.D. continued to groom other Jesse Lee residents
for sexual activity. She believed that G.A.D. posed a high
danger because he was one of the few juveniles who had re-
offended while participating in the sex offender program.1
Fairley stated that G.A.D. appeared to be extremely self-
centered, showing no empathy either for his victims or for anyone
else.
According to Fairley, G.A.D. failed to perceive the
seriousness of his conduct and failed to take responsibility for
his behavior. He acted as if the Home's rules did not apply to
him. Fairley concluded that G.A.D. needed "a highly structured
environment so that the rules and restrictions, [and the] conse
quences of his behavior, [can] be clearly laid out for him."
Fairley believed that G.A.D.'s suggested alternative of
foster care would not be restrictive enough for him. Foster
parents would not be able to provide the around-the-clock monitor
ing G.A.D. was receiving at the Jesse Lee Home. Fairley noted
that, even with this constant monitoring, G.A.D.'s behavior had
not been good at Jesse Lee. Fairley concluded that, from a
therapeutic point of view, G.A.D.'s placement in a foster home
would be counter-productive. She also recommended against
placing G.A.D. in any group residential facility similar to Jesse
Lee. Given G.A.D.'s failure to improve in the group home
environment at Jesse Lee, Fairley concluded that G.A.D. needed a
confrontational environment where he would receive immediate
responses to his inappropriate behavior. For these reasons,
Fairley recommended placing G.A.D. at the McLaughlin Youth
Center.
Joan Moyland, G.A.D.'s probation officer with the
Division of Family and Youth Services, also testified that
institutionalizing G.A.D. at the McLaughlin Youth Center would be
appropriate. She reported that G.A.D. had told her that he
didn't feel he was being rewarded for his good behavior at Jesse
Lee, so he didn't see any reason for him to try to maintain good
behavior.
Moyland told the court that foster placement would not
be appropriate for G.A.D. because he was not motivated to change
his behavior. He had engaged in serious sexual misbehavior, and
he had not responded to treatment at the Jesse Lee Home. One of
the main reasons for G.A.D.'s lack of improvement at Jesse Lee
was that G.A.D. did not understand that he needed treatment.
Moyland believed that, until G.A.D. made significant changes in
his behavior, he would continue to represent a danger to the
community; and she pointed out that G.A.D. would have more
opportunity to translate that danger into reality if he were
placed in a foster home.
Moyland also recommended against placing G.A.D. in
another residential program such as the Kenai Care Center, given
G.A.D.'s lack of progress at the Jesse Lee Home. Moyland, who is
familiar with all the potential placements within Alaska,
described the Kenai Care Center as having a program similar to
that of the Jesse Lee Home, except that the rules at the Kenai
Care Center are more lenient, the therapy is less intensive, and
residents at the Kenai Care Center attend school in the communi
ty. (Jesse Lee has a self-contained school for the juveniles
residing there.)
Moyland told the court that, since G.A.D. failed to
improve at the Jesse Lee Home, it was unrealistic to expect him
to improve at the Kenai Care Center. Moreover, because G.A.D.
would have more access to the community at the Kenai Care Center,
he would pose a greater danger. Thus, she concluded, the Kenai
Care Center would not be an appropriate placement for G.A.D..
Moyland testified that there were no other treatment
options available. Consequently, the sex offender program at the
McLaughlin Youth Center represented the least restrictive
treatment option that would meet G.A.D.'s needs.
G.A.D. opposed the requested institutionalization. He
conceded that his placement at the Jesse Lee Home had not worked.
Nevertheless, he argued that the State had failed to show that
institutionalization at McLaughlin was required - i.e., that no
less restrictive alternative existed that would adequately
achieve his rehabilitation and protect the public.
G.A.D.'s attorney suggested that G.A.D. be placed in a
foster home, and that he receive out-patient sex offender therapy
while living there. She told the court that she would present
testimony at the hearing to demonstrate that therapists were
available in Anchorage "who do out-patient therapy for ...
sex offenders, and [also] that there are ... new [treatment]
groups being formed ... for juvenile sex offender[s]." However,
despite her offer of proof, G.A.D.'s attorney presented scant
evidence about any such programs.
In fact, the one witness G.A.D. did present - his
guardian ad litem, Marsha Honea - told the court that foster home
placement would not be appropriate. Concurring in the recommenda
tions of G.A.D.'s mother, his therapist, and his probation
officer, Honea told the court that G.A.D. needed more intensive
treatment and more structure than he would get in a foster home.
He needed to be placed in a structured environment where he would
be "safe with others and safe with himself". Although Honea did
not want to see G.A.D. placed in McLaughlin, she told the court
that there were no other viable alternatives.
Following this day and a half of testimony and
argument, and after considering the case overnight, Superior
Court Judge John Reese ordered G.A.D. committed to the sex
offender treatment program at the McLaughlin Youth Center.
G.A.D. appeals the superior court's order. We affirm.
G.A.D. points out that Alaska Delinquency Rule 23(d)
requires the superior court to choose "the least restrictive ...
disposition ... that addresses the juvenile's treatment needs and
protects the public". Even before the current Delinquency Rules
were enacted, this court recognized that the superior court in a
delinquency case is obliged to "consider and reject less restric
tive alternatives prior to impos[ing] [a] more restrictive
[disposition]". R.P. v. State, 718 P.2d 168, 169 (Alaska App.
1986). When the State seeks institutionalization of a delinquent
minor, the State bears the burden of proving, by a preponderance
of the evidence, that less restrictive alternatives will not
satisfy the twin goals of rehabilitating the minor and protecting
the public. Alaska Delinquency Rule 11(e); Matter of J.H., 758
P.2d 1287, 1291 (Alaska App. 1988); R.P. v. State, 718 P.2d at
169. There is a strong presumption against institutionalization
of a minor. Matter of J.H., 758 P.2d at 1291.
A minor's history of failed placements and continued
violations of the law can justify the superior court's decision
to institutionalize the minor. See P.R.J. v. State, 787 P.2d
123, 124-25 (Alaska App. 1990). On the other hand, the "least
restrictive alternative" rule "does not require that a child be
allowed to fail at each [successively more restrictive] level of
placement before placement in the next restrictive level may be
made". Matter of J.H., 758 P.2d at 1291. Rather, the court can
institutionalize a minor if the State presents substantial
evidence that lesser measures will likely fail to meet the twin
goals of disposition under Delinquency Rule 11(e). See Matter of
J.H., 758 P.2d at 1291-93.
Judge Reese's remarks at the conclusion of the hearing
show that he was well aware of his duty to view institutionaliza
tion as the disposition of last resort. These remarks also show
that Judge Reese sent G.A.D. to McLaughlin with considerable
reluctance:
It's hard to reach that conclusion. The
presumption against McLaughlin placement is a
very real thing for me. I don't think
anybody ought to be locked up if there's any
way to avoid it. But ... [G.A.D. has
exhibited] very dangerous conduct, [and he]
has done a lot of damage to these younger
children[.] ... [T]his kind of conduct, this
sexual conduct, and the manipulation and the
lying and the evasion and so forth, has
continued even in the Jesse Lee program.
. . . .
[G.A.D. is] someone who needs constant,
close supervision and ... treatment. [He]
need[s] to get involved in the treatment so
the treatment can be successful. This kind
of treatment is ... not like going to a
doctor and having your appendix out. This
kind of treatment you do yourself. ...
[G.A.D. has] to do the work.
. . . .
The other factor I've had in mind is the
safety of the public. It's clear that
[G.A.D.] must remain separated from the commu
nity if there's going to be any therapeutic
success and if the public is going to be
safe.
Overall, ... the whole situation is
pretty bleak at this point. There has to be
a change. [G.A.D.] is heading downhill. The
initiating [conduct was] very serious and
very dangerous. [G.A.D.'s] conduct at Jesse
Lee has been very resistant; virtually no
progress [has been made] there in
rehabilitation. [G.A.D.'s] conduct [at Jesse
Lee] does not give me any comfort as to the
safety of the community [if G.A.D. were
placed] in any unsecured setting ...
available at this time, any that I'm aware of
[or] that have been mentioned in the
courtroom. Nor do I see any likelihood of
therapeutic success unless [G.A.D. is] in a
program with a great deal of structure to it.
The McLaughlin program is the only program
that can [ensure] the community's safety ...
, and its sex offender program, although it's
similar to the Jesse Lee program, is still
the best choice of treatment[.]
. . . .
[G.A.D.'s young] age is a very
disturbing issue. He's very young, barely
thirteen. All my impulses indicate ... that
that's too young to lock somebody up[.] ...
But, having listened to all the testimony and
[having] read the documents, ... the
seriousness of [G.A.D.'s] problems and the
lack of any alternative ... for a secure and
effective treatment program leaves [me] no
choice other than the McLaughlin program.
On appeal, G.A.D. contends that Judge Reese lacked a
substantial basis for ordering him placed at McLaughlin.
However, as described above, G.A.D.'s mother, his therapist
(Fairley), his probation officer (Moyland), and his guardian ad
litem (Honea) all testified in favor of institutionalization.
G.A.D. attacks Fairley's and Moyland's testimony as "conclusory";
he asserts that neither Fairley nor Moyland explained why
placements short of institutionalization would be inadequate. We
disagree.
Fairley's testimony focused primarily on the
dispositional goal of rehabilitation. She testified that G.A.D.
had failed to respond to sex offender treatment at the Jesse Lee
Home. As noted above, G.A.D. conceded that his placement at the
Jesse Lee Home was not working. Fairley also testified that,
because of G.A.D.'s attitudes toward treatment and toward his
offense, he needed continuous monitoring and immediate confronta
tion when he behaved inappropriately. The level of supervision
at the Jesse Lee Home had proved inadequate, and G.A.D. would
receive even less supervision if he were placed in foster care or
at any group residential facility similar to Jesse Lee.
Moyland's testimony focused more on the dispositional
goal of protecting the public. She testified that, given the
nature of G.A.D.'s misconduct, his failure to respond to
treatment, and his failure to recognize that he needed treatment,
G.A.D. would remain a significant danger to the community until
he made substantial changes in his behavior. Moyland pointed out
that if G.A.D. were placed in either foster care or the Kenai
Care Center he would have less supervision and more access to the
community than he did at the Jesse Lee Home. She also noted
that, because G.A.D. had failed to improve at the Jesse Lee Home,
it was unrealistic to expect him to improve at the Kenai Care
Center. With regard to the suitability of
institutionalizing G.A.D. at the McLaughlin Youth Center, Moyland
testified that she was familiar with all the potential placements
within Alaska and that there were no other treatment options
available. Consequently, the sex offender program at the
McLaughlin Youth Center represented the least restrictive
treatment option that would meet G.A.D.'s needs and protect the
public.
Despite G.A.D.'s offer of proof before the hearing
began, neither in his cross-examination of the State's witnesses
nor in his own case did G.A.D. suggest that the State's witnesses
had overlooked or substantially mischaracterized any available
treatment programs or placement alternatives.2 The State's
witnesses conceded that the McLaughlin sex offender program was
not significantly different from the treatment that G.A.D. had
been receiving at Jesse Lee. The hoped-for difference was that,
in the closed and confrontational setting of McLaughlin, G.A.D.
would be forced to recognize his problems and participate
meaningfully in his own therapy - treatment goals that he had
managed to circumvent at the Jesse Lee Home.
G.A.D. argues that the testimony of the State's
witnesses was not uniformly pessimistic - that this testimony
offered some reason to believe that G.A.D. was making progress.
However, our task as an appellate court is not to reweigh the
evidence or see if it could possibly be interpreted in a
different fashion. Rather, we must affirm the superior court's
decision if it is supported by substantial evidence. See Matter
of J.H., 758 P.2d at 1291-92.
The record contains substantial evidence supporting
Judge Reese's decision to commit G.A.D. to the McLaughlin Youth
Center as the least restrictive alternative consistent with
G.A.D.'s rehabilitation and protection of the public. Therefore,
the judgement of the superior court is AFFIRMED.
_______________________________
1 G.A.D. had exposed himself to another male juvenile at
the Jesse Lee Home.
2 On appeal, G.A.D. attacks the State for failing to
discuss the specific details of G.A.D.'s treatment program at the
Jesse Lee Home and for failing to provide the court with a
psychological explanation of why that program was not working.
We believe, however, that the sparseness of the State's evidence
on this point can be squarely attributed to the fact that G.A.D.
expressly conceded, at the beginning of the hearing, that the
Jesse Lee treatment program was not working.
