Court of Appeals of AlaskaNov 28, 2007
Court of Appeals No. A-9854. (Alaska Ct. App. Nov. 28, 2007)

Court of Appeals No. A-9854.

November 28, 2007.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-06-35 DL.

James M. Hackett, Law Office of James M. Hackett, Fairbanks, for the Appellant. Scott L. Mattern, Assistant District Attorney, Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.



The superior court adjudicated thirteen-year-old M.H. a delinquent because he was part of a group of students who discussed shooting certain students and employees at North Pole Middle School. M.H. appeals the order committing him to the custody of the Department of Health and Social Services and placing him on probation pursuant to AS 47.12.120(b)(3), and he argues that the superior court should have placed him on probation with custody to his parents under (b)(2). M.H. also argues that the superior court's findings are insufficient to support the (b)(3) disposition.

We conclude, from our review of the record and our review of the superior court's findings, that the superior court imposed the least restrictive alternative placement. Accordingly, we affirm the superior court.

Background facts and proceedings

On April 17, 2006, a parent of a student attending the North Pole Middle School told the North Pole Police that the student had overheard four classmates talking about bringing guns to school. An investigation showed that M.H. was one of several students discussing a plot to kill other students and staff in an attack planned for April 17 or 18, 2006.

On April 20, 2006, M.H.'s father gave the police a list that his son provided. According to the father, M.H. said the list contained the names of students who were picking on M.H. and his friends. Apparently, M.H. planned to shoot several people, including three students and a teacher. In preparation for the attack, M.H. brought two knives to school on April 17th and one knife to school three days earlier.

At the time of this conduct, M.H. was thirteen years old and lived with his father and brother. The police seized a .22 caliber pistol, two swords, knives, and a throwing star from the family home. The police also found a number of M.H.'s drawings that depicted violence towards people. In M.H.'s school yearbook, the head of a student had been cut out, and pictures of other students had been crossed out. After their arrests, a police officer overheard M.H. and his cohorts joking about the incident.

On April 24, 2006, the State filed a petition to adjudicate M.H. a delinquent, asserting that M.H. had engaged in conduct that would constitute conspiracy to commit first-degree murder if M.H. were an adult. M.H. was detained, but within a few weeks was released to his father's custody with conditions that he remain in his father's presence, that he attend counseling regularly, that he report weekly to his probation officer, and that he complete two correspondence courses with passing grades.

31.120(a), (i)(1); AS 11.41.100(a)(1).

M.H. failed to comply with those conditions. M.H. missed some counseling sessions because his father had problems paying for counseling and cancelled two appointments. The father forgot one of M.H.'s weekly probation officer meetings and rescheduled another because he was working on sandblasting a vehicle for entry in a local parade. Also, M.H. failed his correspondence classes. Although given a second chance, he failed to complete either class.

On July 31, 2006, M.H. agreed to admit the allegations in a superseding petition. The petition alleged that M.H. engaged in conduct that would constitute second-degree terroristic threatening. The court ordered a predisposition report. Disposition occurred on November 8, 2006, before Superior Court Judge Robert B. Downes.

AS 11.56.810(a)(1)(C).

M.H. recommended that the court place him on probation and return him to the custody of his father pursuant to AS 47.12.120(b)(2). M.H. did not object to the factual content of the predisposition report, but he disputed the report's description that his counseling effort was unsatisfactory. M.H. also argued that the report was incomplete because it failed to credit him and his father for their cooperation leading up to disposition.

The State urged the court to adopt the recommendation in the predisposition report. The report recommended the court order that: M.H. be physically placed "in a residential setting . . . to get him the needed services and schooling and to hold him accountable for his actions"; M. H. remain "in the legal custody of the Department of Health and Social Services for a period of time not to exceed two years"; M.H. "be placed on probation to the assigned juvenile probation officer of the Department of Health and Social Services"; and M.H. "follow all the conditions of probation set by the Court and the Department pursuant to [AS] 47.12.120(b)(3)."

Hazel Straub of the Division of Juvenile Justice, who prepared the predisposition report, agreed that M.H. cooperated during the investigation of the case. And Judge Downes acknowledged M.H.'s cooperation. However, Judge Downes pointed out that M.H. had cancelled some counseling appointments.

The State pointed out that, according to the predisposition report, M.H. posed "a significant danger to the public," was the "number two or number three man on the hierarchy of the kids making this plan [to shoot and kill students and faculty]," and M.H.'s parents were not taking the incident seriously and could not provide the structure and support necessary for his successful rehabilitation. The State pointed to M.H.'s failure to comply with release conditions following his release to his father from Fairbanks Youth Facility detention. And the State pointed out that M.H.'s father forgot about one of M.H.'s weekly meetings with his probation officer and rescheduled another meeting so that he could sandblast a car for entry in a parade. The State highlighted that M.H.'s counseling sessions were unsatisfactory and that M.H. failed to perform well in his correspondence courses. The State expressed concern about the stability in M.H.'s homelife, noting that M.H.'s "parents had filed domestic violence [charges] against each other" and the Office of Children's Services had substantiated child neglect. The State concluded that M.H. should be placed in the State's custody because he posed a real danger to the public, and his parents could not provide the structure and support necessary for his successful rehabilitation.

Judge Downes followed the recommendations in the predisposition report and entered a (b)(3) order, placing M.H. on probation with legal custody given to the Department.

Do the superior court's findings justify the (b)(3) order?

M.H. argues that the superior court did not expressly consider certain relevant factors in evaluating disposition, and that the superior court's findings did not adequately explain why the court rejected the lesser alternative of a (b)(2) order.

M.H. contends that the court's analysis of the placement alternatives did not comply with the requirements established in R.P. v. State. In R.P., we held that a court in a delinquency case is obliged to "consider and reject less restrictive alternatives prior to imposition of more restrictive alternatives." The holding in R.P. is now codified in Delinquency Rule 23(c) and (d), which requires the court to enter findings justifying the placement and to consider the factors set out in AS 47.12.140(1).

718 P.2d 168 (Alaska App. 1986).

Id. at 169 (emphasis in original).

Judge Downes referenced the analysis of the factors listed in AS 47.12.140(1) as contained in the predisposition report. The report reviewed all of the relevant statutory factors. And Judge Downes's oral remarks at the disposition hearing indicate that he relied on the predisposition report in reaching his disposition decision, that he was aware of the requirement that he order the least restrictive alternative appropriate ("I've wrestled with this about the (b)(2) or (b)(3) order. I've looked at this and thought about it. And I'm concerned about it"), and that he was particularly concerned about certain factors listed in AS 47.12.140(1) that were implicated by information in the report.

For instance, Judge Downes said that he was concerned that M.H. was failing classes during the semester in which the event at issue occurred. He pointed out information in the predisposition report that indicated to him that M.H. was "not paying attention," listing as examples the missed appointments with the probation officer and cancelled counseling sessions. He told M.H. that he needed to take responsibility for his actions: "[Y]ou need to . . . and your parents need to make sure that you . . . really . . . sort of take the medicine every . . . month — I mean, go to counseling, understand yourself, understand how to take responsibility." Judge Downes also expressed concern about M.H.'s homelife: "There's been some history that's written down . . . It's serious business. . . . [S]ome things in your home that have gone on between your mother and your father . . . some problems in the family . . . some serious arguments in your family, but people have to treat other people with respect."

These remarks echo concerns highlighted in the predisposition report, and Judge Downes's written findings indicate he accepted the analysis and the recommendations in the report. We conclude that Judge Downes adequately explained his reasons for imposing the (b)(3) order.

We also conclude that the (b)(3) order was the least restrictive alternative. Whether a delinquency disposition represents the least restrictive alternative is a question of law. M.H. was an active participant in discussing a deadly attack at the North Pole Middle School. After M.H. was released from detention, he missed counseling appointments, missed meetings with his probation officer, and failed his correspondence courses. There were concerns about M.H.'s home setting because there was a history of domestic violence allegations and because the State had substantiated neglect in the household. Because of the concern that there was insufficient commitment on the family's part to ensure that M.H. received the counseling necessary to promote his rehabilitation and thereby protect the public, the (b)(3) order provided the Division of Juvenile Justice with the necessary authority to implement a program to promote M.H.'s rehabilitation and protect the public while still providing a residential placement.

In the Matter of J.H., 758 P.2d 1287, 1291 (Alaska App. 1988).


The judgment of the superior court is AFFIRMED.