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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
E.T., )
) Court of Appeals No. A-5058
Appellant, ) Trial Court No. 2NO-87-008 CP
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1365 - August 12, 1994]
________________________________)
Appeal from the Superior Court, Second
Judicial District, Nome, Charles R. Tunley,
Judge.
Appearances: Randall S. Cavanaugh,
Anchorage, for Appellant. David L. Brower,
Assistant Attorney General, Nome, and Charles
E. Cole, Attorney General, Juneau, for Appel
lee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
E.T. appeals the superior court's order committing him
to the custody of the Department of Health and Social Services
under AS 47.10.080(b)(3) (allowing the minor's placement outside
the parental home in a non-institutional setting). We affirm.
E.T. was born in 1980. He first came to the attention
of the juvenile authorities in August 1992, when he was charged
with second-degree trespass. This charge was informally
adjusted. Two months later, a charge of third-degree theft was
also informally adjusted. Five months later, in March 1993, the
Nome police responded to a report that several juveniles were
shooting guns. They found bullet holes in the walls of nearby
houses, in an entry door, and in a mini-van. The next day, a
police officer interviewed E.T., and he admitted that he and some
other boys had been drinking vodka and shooting rifles the day
before. E.T. was eventually charged with, and admitted
involvement in, two separate shooting incidents on March 25 and
March 28, 1993.
E.T. was evaluated by Dr. Joe Bratton, a licensed
psychologist. Dr. Bratton found that 13-year-old E.T. had "broad
educational deficits", with educational skills equivalent to the
second- or third-grade level. Psychological testing revealed
that E.T. was functioning at "borderline to low-average mental
ability"; even in his areas of strength (visual recognition,
assembly, and motor coordination), "his scores were at best low-
average". Dr. Bratton concluded that E.T. "appears to be
exhibiting a number of symptoms of Fetal Alcohol Syndrome or
[Fetal Alcohol Effect]". He recommended that E.T. be placed "in
a treatment [setting] where he can better meet his needs for
extra socialization training. Even a specialized foster home may
not suffice[;] a group home may come closer [to what is needed]."
Elizabeth Hanson, a school psychologist with the Nome
School District, supported Dr. Bratton's assessment. She
reported that E.T. had been held back in school and had been
participating in the "learning disabled" program since 1985. Ms.
Hanson concurred that E.T. exhibited characteristics of fetal
alcohol syndrome (FAS), including poor coordination, a short
attention span, and behavioral and emotional difficulties.
Bonnie Thompson, the Kotzebue regional director for
juvenile corrections and the juvenile probation officer who
prepared the pre-disposition report, recommended that E.T. be
placed in a group home where he could receive specialized
treatment for fetal alcohol syndrome, with the ultimate goal of
returning E.T. to his family. At the ensuing disposition
hearing, the attorneys asked Ms. Thompson to elaborate on the
treatment options available for E.T., both in Nome and in
Fairbanks.
Thompson explained that the outlook for treating E.T.
in his home town of Nome did not seem promising. Treatment for
FAS was available in Nome, but on a limited basis. There were
currently 200 people on the waiting list for enrollment in the
treatment program. The Nome mental health office also offered
some FAS counseling, but that office had suffered staff turnover:
the person who did the FAS counseling had left, so there was
currently no one available to perform the treatment. Moreover,
there was currently a vacancy in the Nome juvenile probation
office. According to Thompson (who was temporarily also covering
Nome), the Department of Health and Social Services had no
immediate candidate to fill the Nome slot.
Fairbanks, on the other hand, had the Presbyterian
"Hospitality House", a residential group home where children
lived as a family unit with a resident "mother" and "father".
Hospitality House employed behavior modification therapy as well
as group and individual counseling. Thompson stated that the
Department had placed several FAS juveniles at Hospitality House,
and they had had a good rate of success; these juveniles had
learned the life skills they needed to deal with their fetal
alcohol syndrome (or fetal alcohol effect). However, Thompson
conceded that one aspect of FAS treatment - the counseling of the
child's family - would be more difficult if E.T. were moved to
Fairbanks to reside at Hospitality House.
At the conclusion of the hearing, Children's Master
Bradley N. Gater recommended that E.T. be placed in the custody
of the Department of Health and Social Services under
AS 47.10.080(b)(3), allowing the Department to place E.T. outside
his parental home. Master Gater stated that he was hesitant to
place a juvenile in a facility far from home, but he was
convinced that E.T.'s disposition had to include treatment for
his FAS symptoms. Master Gater declared that E.T. "shouldn't be
[taken] out of [his] home unless necessary", but he agreed with
the Department's recommendation that E.T. be placed in state
custody and potentially placed outside his parental home: "I
think you need the structure, I think you need the counseling, I
think you need the setting to get you straightened out."
Shortly after the master issued his recommendation,
E.T.'s attorney sought clarification. He asserted that the
Department of Health and Social Services had given notice that
they intended to place E.T. in Fairbanks at Hospitality House.
E.T.'s attorney asked Master Gater to amend his recommendation to
specify that E.T. should remain in Nome until it was
affirmatively demonstrated that E.T. could not receive adequate
treatment in Nome. In response, Master Gater issued the
following supplemental recommendation:
1. That the least restrictive
alternative to meet the juvenile's treatment
needs and protection of the public is out-of-
home placement in an appropriate non-secure
placement, but that the court recommends to
the Department that the juvenile remain in
his present placement pending availability of
an appropriate treatment program.
2. That determination of which facility
is the least restrictive and otherwise appro
priate will require assessment for fetal
alcohol syndrome/effect.
3. That the Department has made reason
able efforts to allow the juvenile to remain
at and return home.
Superior Court Judge Charles R. Tunley approved the
master's findings and recommendation. A few days later, the
Department of Health and Social Services placed E.T. at
Hospitality House in Fairbanks.
When deciding the appropriate disposition of a juvenile
delinquency matter, the superior court is obliged to choose "the
least restrictive alternative disposition under AS 47.10.080(b)
that addresses the juvenile's treatment needs and [that] protects
the public". Alaska Delinquency Rule 23(d). On appeal, E.T.
argues that the record does not support the superior court's
finding that awarding custody to the Department under AS
47.10.080(b)(3) was the least restrictive dispositional
alternative. He asserts that there is nothing in the record to
indicate that E.T. "was a danger to the community" or that E.T.
was "not amenable to treatment or probation in Nome". We
disagree. The conduct that brought E.T. into the juvenile system
demonstrated a danger to the public, and the facts presented at
the dispositional hearing support the superior court's finding
that E.T. could not obtain adequate evaluation, treatment, and
supervision if he continued to reside with his parents in Nome.
E.T. further argues that the Department never presented
the superior court with an adequate assessment of E.T.'s
problems, so that the court had no basis for concluding that it
was necessary to place E.T. at Hospitality House instead of
allowing E.T. to be treated in Nome. However, the decision of
whether E.T.'s treatment should occur in a residential facility
in Nome as opposed to Fairbanks was not a decision for the
superior court.
Under AS 47.10.080(b) and Delinquency Rule 23(d), the
superior court must decide among three alternatives: placing the
minor in the legal custody of the Department but allowing him or
her to remain in the parental home; placing the minor in the
physical custody of the Department, excluding placement in closed
facilities; or placing the minor in the physical custody of the
Department and allowing placement in closed facilities. The
superior court found that E.T. needed to be treated outside his
home (the second alternative), and the record supports that
finding. Having made this finding, the court was not at liberty
to direct the Department to place E.T. at a particular
residential facility. Rather, the decision of the minor's
placement (whether at a facility in Fairbanks, a facility in
Nome, or even a return to his parental home) is entrusted to the
discretion of the Department. The superior court may review the
Department's decision for abuse of that discretion, but the court
may not usurp the Department's decision-making function or
substitute its own view of the minor's best interests.
Department of Health and Social Services v. A.C., 682 P.2d 1131,
1134-35 (Alaska App. 1984).
The superior court's disposition order is AFFIRMED.
