In Re Brima T. ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE BRIMA T.
No. 1 CA-JV 18-0457
FILED 5-21-2019
Appeal from the Superior Court in Maricopa County
No. JV199242
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Phoenix
By Lori A. Leon
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Appellee
IN RE BRIMA T.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.
B E E N E, Judge:
¶1 Brima T. (“B.T.”) appeals from the superior court’s order
committing him to the Arizona Department of Juvenile Corrections
(“ADJC”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2015, B.T.’s first juvenile court petition was filed, for
shoplifting, when B.T. was thirteen. In April 2015, a second petition was
filed for both aggravated assault with a deadly weapon and disorderly
conduct. For these petitions, B.T. pled delinquent to aggravated assault,
and the other charges were dismissed. At the disposition hearing, B.T. was
placed on juvenile intensive probation supervision (“JIPS”) and released
into the physical custody of his mother.
¶3 In October 2015, a petition to revoke B.T.’s probation was filed
when B.T. failed to report police contact or remain at home, as required by
probation. After admitting to violating his probation, B.T. was reinstated
on JIPS and again released to the physical custody of his mother.
¶4 In January 2016, two additional petitions were filed. The first
petition alleged aggravated robbery, theft of means of transportation, and
aggravated assault. The second petition alleged probation violations,
specifically failure to charge his electronic monitoring unit and failure to
remain at home, as required by his probation. For these petitions, B.T. pled
delinquent to attempted robbery and admitted to violating his probation.
In April 2016, B.T. was released into the custody of the Department of Child
Safety (“DCS”) and placed at Canyon State Academy.
¶5 In September 2016, two additional petitions were filed, one
for attempted robbery, and the other for two probation violations—failure
to follow the rules and failure to complete his treatment program. For these
September petitions, B.T. pled delinquent to theft, and the probation
violations were dismissed. In December 2016, B.T. returned to the custody
of DCS and was later placed at Canyon State Academy. In January 2018,
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IN RE BRIMA T.
Decision of the Court
B.T. was reinstated on JIPS and then reduced to standard probation. In May
2018, B.T. completed his required probation.
¶6 In September 2018, a new petition was filed for marijuana
possession for which B.T. was committed to ADJC for a minimum of 30
days beginning November 1, 2018. B.T. timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
120.21(A)(1) and Arizona Rule of Procedure for the Juvenile Court 106(F)(4).
DISCUSSION
¶7 B.T. contends the superior court “abused its discretion when
it deviated from the Arizona Supreme Court Guidelines and committed
[B.T.] to the custody of [ADJC].” Specifically, B.T. states that “although
there is a history that [B.T.] posed a risk to the community, there is not a
current risk that warranted placement of [B.T.] in secure care at [ADJC],”
and the superior court should have “sen[t B.T.] home with his family on
intensive probation.”
¶8 The Arizona Supreme Court Guidelines require the superior
court to consider certain factors prior to ordering the commitment of a
juvenile. Ariz. Code of Jud. Admin. (“C.J.A.”) § 6-304(C)(1); see also A.R.S.
§ 8-246. These factors include the protection of the community; the
juvenile’s accountability and rehabilitation; nature of the offense, level of
risk, and available less-restrictive alternatives; and any other relevant
factors related to the juvenile’s risk to the community. C.J.A.
§ 6-304(C)(1)(a)-(d). The court may also consider recommendations of the
probation officer and the need for a structured or secure environment. See
Maricopa Cty. Juv. Action No. J-90110, 127 Ariz. 389, 394 (App. 1980). “A
juvenile court is not required to follow the guidelines, but it must consider
them in making disposition.” In Re Melissa K., 197 Ariz. 491, 495, ¶ 14 (App.
2000) (citing A.R.S. § 8-246(C) (1999); Pinal Cty. Juv. Action No. JV-9404492,
186 Ariz. 236, 238-39 (1996)). We review the court’s decision for an abuse
of discretion and to ensure it considered the C.J.A. § 6-304 factors. See
J-90110, 127 Ariz. at 394; Melissa K., 197 Ariz. at 495, ¶ 14.
¶9 Here, the record demonstrates that the superior court
considered the C.J.A. § 6-304 factors, including the “incredibly serious
felonies” that B.T. had committed since 2015, and the potential to avoid
new, more serious charges if committed to ADJC rather than released. The
court further described a need to “hold [B.T.] accountable for the series of
significant felonies that he ha[d] committed over the preceding three
years,” and ADJC’s therapy and other available resources for rehabilitation.
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IN RE BRIMA T.
Decision of the Court
¶10 The superior court considered the placement options utilized
“over a year-and-a-half, 500-something days [at Canyon State Academy],
[which] were not effective in moderating [B.T.’s] behavior” and noted that
DCS and Canyon State Academy were no longer available options. The
only options available were ADJC or placement with mother at home, and
he had not fared well at home. The court noted that B.T. did “fine in a
setting where he kn[ew] the expectations” and faced a “definitive” threat of
punishment.
¶11 Additionally, B.T.’s mother testified that she no longer had
“the strength” or “kn[e]w what else to do” if B.T. were placed at home.
Mother recounted that in the past three years, even when he was on an
ankle monitor, B.T. had not listened to or complied with the rules, been
picked up by police multiple times, and cut off his ankle monitor. Mother
believed, with B.T. in custody, she would be “at peace because [she would
know] where [B.T. was and], he [was] safe.” The court noted the anxiety of
B.T.’s parents for their son, the “breakdown of the family relationship of
trust,” and the unlikelihood B.T. would then “be successful in the
community.”
¶12 The superior court also considered the probation officer’s
recommendation that B.T. be committed to ADJC due to B.T.’s multiple
prior unsuccessful attempts on JIPS and the time B.T. had already spent at
Canyon State Academy. Additionally, the State recommended B.T. be
committed to ADJC given that he was not “amenable to probation,”
“continue[d] to violate the law and probation,” refuses to follow normal
parenting rules or attend school, and had 11 prior petitions.
¶13 The record indicates the superior court considered the C.J.A.
§ 6-304 factors prior to ordering B.T.’s commitment. See C.J.A. § 6-304(C)(1);
see also A.R.S. § 8-246; J-90110, 127 Ariz. at 394. The court has broad
discretion in determining placement and did not abuse its discretion. See
Melissa K., 197 Ariz. at 495, ¶ 14.
¶14 We note that the current commitment order incorrectly recites
charges previously adjudicated in a prior petition. Consistent with the
November 1, 2018 minute entry and hearing transcript, the November 1,
2018 delinquency adjudication was for marijuana possession, a Class 1
misdemeanor, for violation of A.R.S. § 13-3405. Accordingly, we correct the
order of commitment filed on November 1, 2018 to recite the adjudication
documented in the September 13, 2018 petition for possession of marijuana,
a Class 1 misdemeanor. See State v. Contreras, 180 Ariz. 450, 453, n.2 (App.
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IN RE BRIMA T.
Decision of the Court
1994) (“When we are able to ascertain the trial court’s intention by reference
to the record, remand for clarification is unnecessary.” (citation omitted)).
CONCLUSION
¶15 Because the superior court considered the C.J.A. § 6-304
factors prior to ordering B.T.’s commitment, we affirm and correct the
November 1, 2018 order of commitment to recite an adjudication for
marijuana possession.
AMY M. WOOD • Clerk of the Court
FILED: AA
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