Arthur Piper v. State of Arkansas

Annotate this Case
ca04-470

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ARTHUR PIPER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CA 04-470

November 10, 2004

APPEAL FROM DREW COUNTY CIRCUIT COURT

[NO. JV2002-44-3]

HON. ROBERT BYNUM GIBSON JR.,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Arthur Piper, who was adjudicated delinquent based on his commission of three counts of sexual indecency, appeals the trial court's disposition order transferring custody of him from his adoptive mother to the Arkansas Department of Human Services ("DHS"). On appeal, Piper argues that the trial court abused its discretion by placing him in the custody of DHS rather than the custody of his adoptive mother. We affirm.

On June 20, 2002, the State filed a petition in the Juvenile Division of the Drew County Circuit Court requesting a delinquency adjudication against Piper, alleging that he had committed two counts of rape and one count of public sexual indecency. He was accused of performing oral sex on two girls, ages five and six, and touching the buttocks of a third girl, age five, between June 1, 2002, through June 12, 2002. In an order entered on August 22, 2002, the trial court adjudicated Piper a delinquent juvenile, finding that he had committed three counts of

sexual indecency. The court placed Piper in a residential sex offender treatment program, and Piper was also given a suspended commitment to the Department of Youth Services. The order further provided that the case would be reviewed when Piper completed the residential care program and the court would then decide whether he would be placed on probation and registered as a sex offender. In addition, the court ordered that the DHS keep open a protective services case on Piper.

After Piper attended the residential sex-offender treatment program at Parkwood Behavioral Health System from September 17, 2002, until September 5, 2003, he was released to the custody of his adoptive mother, who is also his maternal grandmother and with whom he had previously resided. He was also required to attend outpatient counseling at Delta Counseling Associates. A review hearing was held on October 1, 2003, at which the trial court considered Parkwood's discharge summary, noting that Piper had made overall improvement, although he had difficulty following rules during his passes home and his adoptive mother had failed to enforce those rules. The court noted that it was concerned that, as stated in the discharge summary, Piper had a high risk to re-offend if he remains with his adoptive mother. The court placed Piper on one year's probation conditioned on his completion of outpatient therapy and ordered that his adoptive mother attend parenting classes and participate in family therapy. Subsequent to this review hearing, the State learned that Piper was not keeping all of his appointments for outpatient therapy, and another hearing was held. Piper's adoptive mother told the court that he had missed the appointments because he had several doctor's appointments to treat a high fever. The court concluded the hearing by ordering the production of Piper's medical records. At the next review hearing held on January 20, 2004, the trial court noted that DHS was to report at this hearing on the placement that would be in Piper's best interest. The court also stated that a Community Risk Assessment Report of Piper from the University of Arkansas for Medical Sciences ("UAMS") had been recently obtained and would be admitted into evidence. The court stated, and the parties agreed, that the only issue to be decided at the hearing was whether Piper would remain in his adoptive mother's custody or would be placed in DHS custody.

Phyllis Piper, Arthur Piper's grandmother and adoptive mother, testified that he should remain in her custody. She stated that she had experienced no problems with her son since he had returned from Parkwood and that he was not controlling her anymore. She testified that he had been going to school, taking his medication, obeying her curfew, and complying with all court orders and those of his counselor. Mrs. Piper explained that her son had missed some school because he had a high fever and had to go to the doctor. Although the doctor found nothing wrong with the juvenile on a couple of these occasions, Mrs. Piper testified that the "doctor was baffled" because he would have a high fever in the morning and then, after he was out in the cold air and had waited at the doctor's office, his fever would go down.

The risk assessment report from UAMS, which was introduced into evidence at the hearing, set forth a detailed evaluation of Piper based on his history, testing, interviews, the residential treatment center's discharge summary, and his therapist's assessment. The report noted that Piper is oppositional toward his adoptive mother and that his adoptive mother had been oppositional toward treatment. The report further stated that Piper's adoptive mother had a documented history of undermining the goals of his treatment and that supervision appeared inconsistent. The assessment also reported that Piper was at a high risk to sexually re-offend compared with other adolescent sex offenders and recommended that he not return to his adoptive mother's home until therapeutically recommended. Instead, the report recommended that Piper be placed in a group home or other therapeutic foster home to provide him with "the structure and clear limit-setting he needs to help him adapt at school and in the community."

After hearing the evidence, the trial court found that the UAMS report's recommendations were unequivocal. Despite DHS's recommendation that Piper remain at home, the trial court, relying on the UAMS report, found that it was in the best interest of Piper that he be placed in DHS custody and that the department place him in a therapeutic foster home until such time as reunification with his adoptive mother was therapeutically recommended. The disposition order placing custody of Piper with DHS was entered on January 21, 2004. Piper appeals from this order.

On appeal, Piper argues that the trial court abused its discretion when at the sentencing hearing it placed appellant in the custody of the DHS rather than in the care and custody of the adoptive mother.

As the State contends, an appellate court generally will not review the severity of a juvenile disposition as long as it was authorized by law. Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). According to Ark. Code Ann. § 9-27-330(a)(1)(A) (Repl. 2002), which was in effect at the time of Piper's adjudication in this case,1 the circuit court is authorized to transfer legal custody of a delinquent juvenile to "any licensed agency responsible for the care of delinquent juveniles or to a relative or other individual." Thus, as the State asserts, the trial court in this case was authorized to transfer custody of Piper to DHS.

We note that, if the statute as amended in 2003 applied to this case, it appears that the trial court's transfer of custody to DHS would not be authorized by law. Under the 2003 amendment to section 9-27-330(a)(1)(c), the trial court's transfer of custody under subsection (a)(1)(A) "shall not include placement of adjudicated delinquents into the custody of the department for the purpose of foster care except as provided in § 12-12-516." According to section 12-12-516 (Repl. 2003), this transfer of custody shall not exceed seventy-two hours. Thus, if the 2003 amendment applied, this court would have to reverse the trial court's transfer of custody because it would not be authorized under the statute. See Arkansas Dep't of Human Servs. v. State, 319 Ark. 749, 894 S.W.2d 592 (1995) (appellate court reversed and remanded where trial court had no statutory authority to sentence juvenile to a serious offender program within the youth services center). Although neither party has raised this issue in this appeal, this court has considered the issue of an illegal sentence as one of subject matter jurisdiction, which the court must raise sua sponte. Turner v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Sept. 29, 2004); Campea v. State, ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004). However, as stated earlier, we conclude that the 2003 amendment does not apply since Piper's offense was committed prior to the amendment.

In any event, the trial court did not abuse its discretion in this case. Piper argues that the trial court abused its discretion by ordering that custody of him be transferred to DHS because the ruling went against the weight of the evidence. He notes that DHS, as well as defense counsel, argued that he should remain at home, and that the court relied heavily on the UAMS report and recommendations. An abuse of discretion is a high threshold that does not require simply error in the trial court's decision, but instead requires that the court act improvidently, thoughtlessly, or without due consideration. Grant v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 29, 2004). Here, the trial court considered the evidence and arguments presented by the defense, as well as DHS, but ultimately found that it was in Piper's best interest to follow the recommendations contained in the thorough UAMS risk assessment report. This report advised that Piper not be returned to his adoptive mother's custody until therapeutically recommended, as he was in need of a more structured environment such as a group home or therapeutic foster care. Therefore, the trial court did not abuse its discretion in transferring custody of Piper to DHS for the purpose of placing him in therapeutic foster care, and we affirm.

Affirmed.

Robbins and Bird, JJ., agree.

1 Even though the disposition order in this case was not entered until January 21, 2004, Piper's adjudication order was entered on August 22, 2002, and the law in effect at the time of the commission of a crime applies to determine the sentence to be imposed. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003); State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994).