State in the Interest of Ch

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JWK 03-1279

STATE IN THE INTEREST OF C.H.

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APPEAL FROM THE
LEESVILLE CITY COURT
PARISH OF VERNON, NO. 4437C
HONORABLE ELVIN CLEMENCE FONTENOT, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, C.J., Sylvia R. Cooks, and Glenn B.
Gremillion, Judges.

REVERSED AND REMANDED.

William E. Tilley
District Attorney - 30th Judicial District Court
P. O. Box 1188
Leesville, LA 71496-1188
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Respondent - State of Louisiana

Ronald Kenneth Seastrunk
104 North Third Street
Leesville, LA 71446
Telephone: (337) 238-5100
COUNSEL FOR:
Plaintiff/Respondent - State of Louisiana

Derwyn Del Bunton
Juvenile Justice Project of Louisiana
1600 Oretha Castle Haley Boulevard
New Orleans, LA 70113
Telephone: (504) 522-5437
COUNSEL FOR:
Defendant/Applicant - C.H.

THIBODEAUX, Chief Judge.

On January 16, 2002, the Juvenile, C.H., was adjudicated delinquent for

oral sexual battery in violation of La.R.S. 14:43.3, sexual battery in violation of

La.R.S. 14:43.1, and indecent behavior with a juvenile in violation of La.R.S. 14:81.

The sixteen-year-old was sentenced to the secure custody of the Louisiana Department

of Safety and Corrections until his twenty-first birthday. He is incarcerated at the

Swanson Correctional Facility for Youth. His scheduled release date is November 22,

2006. C.H.’s Motion for Modification of Disposition was denied by the trial court on

July 21, 2003.

The Juvenile seeks early release and contends the trial court’s denial of

his Motion to Modify Disposition was an abuse of discretion.

FACTS

The Juvenile asserts that his charges resulted from consensual acts of

sexual activity that occurred when he was sixteen years old and involved a minor

female who was two weeks away from her thirteenth birthday at the time. We note

this factual allegation is uncontradicted as neither the State nor the Department of

Public Safety and Corrections filed an opposition to his Motion to Modify

Disposition, which contained these facts.

MODIFICATION OF DISPOSITION

The Juvenile contends the trial court abused its discretion in denying his

Motion to Modify Disposition.1 Louisiana Children’s Code Article 909 grants the trial

court discretion in considering a modification of disposition. It provides:

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In the alternative, the Juvenile asserts the trial court erred in denying his motion without
conducting a hearing. However, this court need not consider this argument as the result of this
opinion renders this claim moot.

Except as provided for in Article 897.1, after the
entry of any order of disposition, the court retains the
power to modify it, including changing the child’s legal
custody, suspending all or part of any order of commitment,
discharging conditions of probation, or adding any further
condition authorized by Article 897(B) or 899(B). It may
also terminate an order of disposition at any time while it is
still in force.

The trial court retains the power to modify a disposition at any time the

disposition is in force. See State v. J.R.S.C., 2000-2108 (La. 6/1/01), 788 So.2d 424.

The court may modify a disposition without a contradictory hearing if the motion

seeks less restrictive conditions. La.Ch.Code art. 910(C). However, if the motion

seeks more restrictive conditions, a hearing shall be held. La.Ch.Code art. 910(D). In

this case, the trial court had discretion on whether or not a hearing would be held as

the Juvenile’s motion sought less restrictive conditions, namely that he be released

from DPSC custody and placed with his family. The trial court denied the Motion to

Modify without reasons, and without granting a hearing.

The Juvenile’s motion is uncontradicted and asserts a change in his

circumstances that relate to his continued effective treatment or rehabilitation. He

contends that federal and state constitutional and statutory protections for juveniles,

based on the goal of rehabilitation and individual treatment, require the trial court to

exercise its discretion to review the status of and intervene in the cases of incarcerated

juveniles. He contends he presented evidence sufficient to warrant a modification of

his disposition. The Juvenile maintains that he has exhausted all of the rehabilitative

benefits that his facility has to offer. He argues that his ongoing progress and

excellent record have earned him the opportunity to obtain a modification. The

Juvenile further asserts that he has demonstrated maturity and commitment to his

rehabilitation of the last year and a half of his incarceration.

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The Juvenile’s motion outlined his significant changes in his

circumstances that warrant release. The Motion to Modify contained the following

assertions:

4. Throughout [C.H.]’s stay in secure custody - even after
his multiple failed attempts to achieve early release from
this Court - [C.H.]’s behavior has been excellent. He has
earned a minimum custody level on at least eight (8)
consecutive quarterly staffings, and has earned honor dorm
status.

5. [C.H.] is routinely selected as a “Principal’s Pick.” Each
month, the school principal picks a handful of youth to eat
dinner with him. The dinner has the warden and all the
high ranks at the institution in attendance.

6. [C.H.]’s other awards and accomplishments at the
institution are voluminous. [C.H.]’s accomplishments
include:

! Member, Inmate Welfare Committee
! Honor Dorm Resident
! Citizen Stage, YouthCare Program (Highest
Honor Possible)
! Member, Honor Roll

These are but a few of the [C.H.]’s accomplishments. He
has attained the very highest praise in the institution. He
has earned his early release three times over.

7. To this date, [C.H.] maintains an exemplary record. He
maintains a minimum custody classification — the highest
possible behavioral classification — and [C.H.] has
completed all programming at the institution. [C.H.] has
exhausted all available rehabilitative resources at SCCY.

8. Rehabilitation is at the core of Louisiana’s delinquency
system. Indeed, the Louisiana Children’s Code mandates
that youth receive “care as nearly as possible equivalent to
that which the parents should have given him.” La. Ch.C.
art. 102 (West 2003). Further, “the court should impose the
least restrictive disposition authorized” by law. See La.
Ch.C. art. 901 (B) (West 2003).

(Appendix VII) (Footnotes omitted).

The record before us contains additional information regarding his

offenses, his family background, his history with the juvenile justice system, his

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custodial record, and his proposed custody plan upon release. The Juvenile proposes

that he be placed with his sister and her husband, a couple whose fitness to supervise

has not been challenged. Apparently, the Juvenile has obtained the highest status

level, has completed all rehabilitative programs, is an honor roll student, and has the

best behavioral classification.

It is clear that the goal of the juvenile justice system is rehabilitation. In

J.R.S.C., the Louisiana Supreme Court stated that it is the “public policy of this state

that commitment of a juvenile to the care of the [Department of Corrections] is not

punitive nor in anyway to be construed as a penal sentence, but as a step in the total

treatment process toward rehabilitation of the juvenile . . .”. Id. at 424. Based on the

evidence before this court, it appears that the Juvenile has availed himself of every

rehabilitative program available, and is entitled to a modification of his disposition.

The Juvenile’s motion was uncontradicted. There is no indication in the

record before this court to show any opposition at either the trial or appellate level

from either the Vernon Parish District Attorney’s Office or the Department of Public

Safety and Corrections. Despite the lack of any opposition or contradictory

unfavorable evidence, the trial court denied the motion without stating its reasons for

so doing. In considering the evidence before it, the trial court apparently failed to give

the proper weight to the Juvenile’s position, especially in the absence of any rebuttal

evidence to the contrary. Therefore, we find the trial court abused its discretion in

denying the Motion to Modify Disposition.

CONCLUSION

The trial court’s ruling is hereby reversed, vacated, and set aside and the

Department of Public Safety and Corrections is ordered to release C.H. on parole, with

supervision granted to his family in accordance with the after care proposal submitted

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in the Dispositional Memorandum in Support of Modification filed on or about July

17, 2003. Further, the trial court is ordered to hold a hearing within fifteen days of the

date of this order to set parole conditions for C.H.

REVERSED AND REMANDED.

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