In the Matter of the Welfare of J.J.M., Child.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-376

 

In the Matter of the Welfare of J.J.M., Child.

 

Filed November 9, 2004

Affirmed

Stoneburner, Judge

 

Stearns County District Court

File No. J30351855

 

Daniel A. Eller, 925 South First Street, Box 638, St. Cloud, MN 56302 (for appellant)

 

Mike Hatch, Attorney General, Wm. F. Klumpp, Jr., David S. Voigt, Assistant Attorneys General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle Kendall, Stearns County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Fifteen-year-old J.J.M.[1] was charged with one count of first-degree murder, three counts of second-degree murder, and assault in the second degree for killing two students and pointing a gun at a teacher at Rocori High School.  The juvenile court granted the state's motion to certify J.J.M. for prosecution as an adult.  J.J.M. appeals the certification order, arguing that the state did not meet its burden of establishing by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.  Because the juvenile court did not abuse its discretion by certifying J.J.M. for prosecution as an adult, we affirm.

D E C I S I O N

 

            "This court will not reverse a juvenile certification order unless the juvenile court's findings are ‘clearly erroneous so as to constitute an abuse of discretion.'"  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000) (quoting In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996)).

            In Minnesota, when a child who is more than 14 years of age is alleged to have committed an offense that would be a felony if committed by an adult, the juvenile court may enter an order certifying the juvenile for adult prosecution.  Minn. Stat. § 260B.125, subd. 1 (2002).  When, as in this case, the juvenile was under the age of 16 at the time of the offense, certification can only occur if the juvenile court finds that there is probable cause to believe that the child committed the offenses alleged and that the prosecuting authority has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.  Minn. Stat. § 260B.125, subd. 2 (5), (6)(i)-(ii).

In determining whether the public safety is served by certifying the matter, the court shall consider the following factors:

            (1)       the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;

            (2)       the culpability of the child in committing the alleged offense, including the level of the child's participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;

(3)              the child's prior record of delinquency;

(4)              the child's programming history, including the child's past willingness to participate meaningfully in available programming;

(5)              the adequacy of the punishment or programming available in the juvenile justice system; and

(6)              the dispositional options available for the child.

 

In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors listed in this subdivision.

 

Minn. Stat. § 260B.125, subd. 4(1-6).

            In this case, the juvenile court's findings thoroughly address the statutory factors regarding certification.  The juvenile court concluded that there is probable cause to believe that J.J.M. committed the offenses alleged in the indictment and that the prosecution has proven by clear and convincing evidence that retaining the proceeding in juvenile court does not serve public safety.  J.J.M. does not dispute the conclusion that there is probable cause to believe that he committed the offenses alleged, but argues that the juvenile court abused its discretion by concluding that retaining the proceeding in juvenile court does not serve public safety.

            We first address J.J.M.'s assertion that the juvenile court clearly abused its discretion by adopting the state's proposed findings as its own.  This court has "strongly caution[ed] that wholesale adoption of one party's findings and conclusions raises the question of whether the trial court independently evaluated each party's testimony and evidence."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (citing Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988)).  But we have held that verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se.  Id. (citing Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987)).  While the trial court bears the ultimate responsibility to assure that findings and conclusions meet the standards necessary to enable meaningful review, a party who submits proposed findings should also ensure that proposed findings are detailed, specific, and sufficient enough to enable meaningful review.  Id. n.6.  The findings in this case are sufficient and neither reversal nor remand is required merely because the findings were drafted by a party.

            We next examine the findings on each of the statutory factors to determine whether any of the findings are so clearly erroneous so as to constitute an abuse of discretion.

I.          Seriousness of the offense

            The juvenile court found that the first factor, involving the seriousness of the offense, aggravating factors, use of a firearm, and the impact on any victims, weighs heavily in favor of certification.  Eight additional findings support this finding.  In his brief, J.J.M. does not allege that any of these findings are clearly erroneous.[2]  But J.J.M. argues that the juvenile court abused its discretion by failing to make additional findings on J.J.M's argument that he did not intend the deaths of the two students and that years of bullying led him to commit the shootings.  J.J.M. cites no authority for the proposition that the juvenile court's findings must specifically address each argument against certification.

            For the purpose of the certification hearing, the relevant facts regarding the shootings are not in dispute.  J.J.M. allegedly brought a loaded pistol to Rocori High School on September 24, 2003, intending to shoot and harm S.B.  He shot S.B. in a basement hallway where other students were present.  J.J.M. fired a second shot that missed S.B.  This shot hit and killed A.R.  Knowing that the first shot had hit S.B. and that S.B. was trying to escape by climbing the stairs toward the gymnasium, J.J.M. followed S.B. into the gymnasium where he shot S.B. in the face.  S.B. died from that wound. 

            "Certification cases generally involve violent crimes against persons, such as murder and assault.  The risk to public safety in these types of cases is clear."  H.S.H., 609 N.W.2d at 262 (citation omitted).  "Certainly there is no more serious threat to public

or community safety than multiple murders with a firearm," especially those "which included shooting the victims multiple times, at close range. . . ."  In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  The juvenile court's finding that the seriousness weighs heavily in favor of certification is not clearly erroneous.

II.        Culpability

            The juvenile court found, based on eight supporting findings, that J.J.M.'s culpability also weighs heavily in favor of certification.  J.J.M. does not argue that any of these findings are clearly erroneous.  He argues that the juvenile court abused its discretion by "disregarding" the testimony that supported his theory that the nature and effect of the teasing and bullying he experienced in combination with his emerging mental illness constituted a mitigating factor.  But the record supports the juvenile court's findings that J.J.M. was not suffering from an "extreme" mental illness, was not deprived of control over his actions at the time he planned for and committed the shootings, committed the offenses of his own free will, was not delusional, and possessed substantial capacity for judgment at the time he planned and committed the offenses.  The finding that the culpability factor supports certification is not clearly erroneous.

III.       Prior record of delinquency

            J.J.M. has no prior record of delinquency.  The juvenile court nonetheless found that this factor weighs in favor of certification based on J.J.M.'s nonadjudicated conduct of making and exploding gasoline and gunpowder "bombs" and his loss of control when engaged in a scuffle with a neighborhood friend.

            Nonadjudicated acts of delinquency may be considered by the court even though the juvenile has not been charged.  See In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996) (affirming that prior gang-related activity in conjunction with a minimal juvenile record supports certification).  J.J.M. argues that the juvenile court abused its discretion by basing its finding on questionable hearsay evidence because some of the information came from a statement J.J.M.'s neighborhood friend gave to the police.  But J.J.M. told the state's examining psychologist that he had experimented with making bombs, and J.J.M. admitted that he was not able to control his anger in a fight with a friend.  Although J.J.M. now argues that there is a "strong possibility" that his discussion about bombs was "all [a] figment in the imagination of a delusional child," nothing in the record compels such a conclusion.  We cannot say that the juvenile court clearly erred by finding that this factor weighs in favor of certification.

IV.       Programming history

            The juvenile court found that this factor "is neutral with regard to certification."  J.J.M. does not assert that this finding is clearly erroneous or an abuse of discretion.  And absence of programming history is not sufficient to defeat certification.  See D.T.H., 572 N.W.2d at 744 (affirming certification in absence of any programming history based on substantial evidence on remaining five factors, all of which weighed in favor of certification, and on which juvenile court made extensive findings).

V.        Adequacy of available punishment or programming in the juvenile justice         system.

 

            The juvenile court found that evidence regarding the adequacy of punishment or programming available in the juvenile justice system, including extended-juvenile jurisdiction (EJJ), weighs heavily in favor of certification and made eleven additional findings to support that finding.  The disproportionality between the adult sentence for the crimes charged and sanctions available in the juvenile system, coupled with the inability to provide the kind of long-term treatment recommended by all examining experts in this case, supports these findings.

            J.J.M. argues that the juvenile court's findings "completely ignore all of the testimony regarding the treatment available at Benchmark," which, he asserts, meets every treatment objective of the examining doctors.  But the juvenile court specifically addressed the Benchmark program in its discussion of the sixth factor and, with regard to the fifth factor, focused more on extensive evidence from the experts that there is insufficient time in the juvenile system to adequately treat J.J.M.'s mental illness consistent with the need for public safety.  The juvenile court's finding that the fifth factor weighs heavily in favor of certification is not clearly erroneous.

VI.       Dispositional options available in the juvenile system

            The juvenile court found that this factor weighs heavily in favor of certification based on seven specific findings.

A.                 None of the programs in Minnesota available to the Court in the exercise of its delinquency or EJJ jurisdiction are appropriate for the juvenile;

B.                 The juvenile will clearly need monitoring beyond age 21;

C.                 Security is absolutely necessary in any disposition of the juvenile;

D.                 The program at Benchmark Behavioral Health Services in Utah . . . focuses on juvenile sex offenders and juveniles with conduct or behavioral disorders and thus, is not appropriate for the juvenile;

E.                  While Benchmark offers psychiatric and psychological services, the only portion of the Benchmark program that would be tailored to the juvenile's needs would be the once per week individual therapy sessions;

F.                  The nature of the juvenile's underlying personality and his mental illness is such that he could successfully progress through the Benchmark program without addressing his core mental health issues or fully engaging in the treatment process; and

G.                 The dispositional options available for the juvenile in the exercise of the Court's delinquency or EJJ jurisdiction are not appropriate for the juvenile and will not adequately serve public safety.

 

J.J.M. asserts that these findings are contrary to all of the evidence presented and constitute a clear abuse of discretion.  J.J.M. argues that he presented the juvenile court with an option for treatment in the Benchmark program, and the court has available to it the possibility of seeking civil commitment of J.J.M. as mentally ill and dangerous under the civil commitment statute if treatment fails and J.J.M. were to need continued commitment after the age of 21. 

            We reject J.J.M.'s argument that the juvenile court should have considered the possibility of civil commitment in the future.  Factor six requires the court to consider "the dispositional options available for the child."  Minn. Stat. § 260B.125, subd. 4(6).  The plain wording of the statute requires consideration of options currently available to a juvenile.  The speculative availability of adult civil commitment is not such an option.

            Furthermore we find no merit in J.J.M.'s statement that the findings are contrary to the evidence.  The state's examining psychologist and the person who performed the certification study testified that none of the available programs in Minnesota are appropriate for J.J.M.  All three of the examining doctors agree that J.J.M. will need monitoring beyond age 21.  No evidence in the record disputes the necessity of security for J.J.M.  And, after J.J.M. identified Benchmark as an appropriate option, the state's examining doctor and the certification study author contacted the Benchmark program.  Both concluded that Benchmark is not appropriate because its services are primarily for conduct and behavioral disorders that J.J.M. has never demonstrated.  They expressed concern that J.J.M. could successfully complete the Benchmark program without ever addressing his underlying mental-health issues and concluded that the Benchmark program is very similar to the program at Red Wing, a program that was rejected as inappropriate for J.J.M.  Two of the examining doctors and the author of the certification study recommended certification.  The third doctor recommended EJJ but only with the reservation that the option of civil commitment as mentally ill and dangerous be available if treatment is not successful.  The juvenile court's findings on factor six are not clearly erroneous. 

            Four of the factors to be considered in determining whether the public safety is served by certification weigh heavily in favor of certification.  One factor is neutral and the prior-conduct factor weighs slightly in favor of certification.  Based on the record, we conclude that the juvenile court did not abuse its discretion by finding that the prosecutor demonstrated by clear and convincing evidence that retaining J.J.M. in the juvenile court does not serve public safety and certifying J.J.M. to be tried as an adult.

            Affirmed.

[1] J.J.M. was 15 years old when he committed the shootings.  He is now 16.

[2] At oral argument, counsel for J.J.M. asserted that he is challenging all of the juvenile court's findings as clearly erroneous.  This assertion is not consistent with J.J.M.'s brief on appeal and is patently without merit.  This opinion focuses on the allegations of error that have been briefed.