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B.F.L. v. State (6/11/2010) ap-2267

B.F.L. v. State (6/11/2010) ap-2267

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


B.F.L., a minor,                   
                                   
                    Appellant,       Court of Appeals No. A-10468
                                    Trial Court No. 3AN-08-256 DL
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2267    June 11, 2010
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Eric  A.  Aarseth,
          Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  Joan
          M.   Wilson,  Assistant  District   Attorney,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          B.F.L.,  a  minor,  appeals the superior  courts  order
committing  him  to the 
custody of the Department of Health and Social Services pursuant to AS 47.12.120(b)(1) in other words, an order that allows the Department to place B.F.L. in a juvenile detention facility. B.F.L. argues that the superior court failed to adequately consider the feasibility of a disposition under either subsection 120(b)(2) or subsection 120(b)(3) of the statute that is, a disposition that would have limited the Department to placing B.F.L. in non-detention facilities.
As we describe in this opinion, B.F.L. has a history of repeated failures both on probation and in non-detention placements. In addition, B.F.L. has demonstrated resistance to needed mental health treatment and medication. These factors provide ample basis for the superior courts decision to allow the Department to place B.F.L. in a detention facility.
B.F.L.s   history   within   the
     juvenile justice system
     
               B.F.L.s history of juvenile delinquency began
     in  the  summer  of 2006, just after he turned  fifteen
     years old.  The Department filed a delinquency petition
     charging him with second-degree burglary, fourth-degree
     criminal  mischief,  fourth-degree  theft,  and  sixth-
     degree misconduct involving a controlled substance.
               In   October   2006,  B.F.L.   admitted   the
     burglary,   theft,   and  criminal  mischief   charges.
     Because  he  was  a first offender, the superior  court
     held  his delinquency adjudication in abeyance for  six
     months,  with  the anticipation that if he demonstrated
     rehabilitative  progress during  these  six  months  of
     informal  probation,  the  delinquency  case  would  be
     dismissed.
               As  part  of  his informal probation,  B.F.L.
     agreed  to various conditions of conduct formulated  by
     the  Department.  Among these conditions, B.F.L. agreed
     that  he  would attend school regularly, that he  would
     live  with his mother and follow the rules set by  her,
     that  he  would  keep  in  regular  contact  with   the
     Departments  juvenile probation  office,  and  that  he
     would not ingest illegal substances.
          One month after agreeing to these conditions,
B.F.L. stopped going to school, and his mother reported
that  he  was out of control.  At about the same  time,
B.F.L. attempted to commit suicide.  The superior court
issued a warrant for B.F.L.s arrest; he was taken  into
custody on December 3, 2006 and placed at the Fairbanks
Youth Facility.
          B.F.L.  remained in pre-adjudication  custody
at  the  Fairbanks Youth Facility until March 8,  2007.
On  that date, the superior court rescinded the hold in
abeyance  agreement, and the superior court adjudicated
B.F.L. a delinquent minor.
          In  a delinquency proceeding, if the superior
court  decides  to subject the minor to some  level  of
ongoing  government supervision, there are  essentially
three types of disposition available to the court under
the provisions of AS 47.12.120(b).
          The  least restrictive disposition is defined
in  subsection  (b)(2)  of  the  statute.   Under  this
subsection,  the  court places the minor  on  probation
(supervised by the Department), but releases the  minor
to the custody of parents, guardians, or other suitable
persons.
          The  next level of restriction is defined  in
subsection   (b)(3)   of  the  statute.    Under   this
subsection, the court commits the minor to the  custody
of  the Department, giving the Department the authority
to  release  the  minor to the custody  of  parents  or
guardians,  or to place the minor in a foster  home  or
any   suitable   non-detention  residential   facility.
(Subsection (b)(5) of the statute, which authorizes the
superior  court to commit the minor to the  custody  of
the  Department for the specific purpose of placing the
minor in an adventure- based education program, appears
to  be  a  more  restricted variant of  the  commitment
authority granted by subsection (b)(3).)
          The  highest level of restriction is  defined
in  subsection  (b)(1)  of  the  statute.   Under  this
subsection, the court commits the minor to the  custody
of  the Department, giving the Department the authority
to  make  any placement it deems appropriate  including
placement in a detention facility.
          Both  Alaska Delinquency Rule 11(e)  and  its
companion  statute, AS 47.12.140(2), specify that  when
the superior court chooses among the three dispositions
defined  in AS 47.12.120(b)(1)  (b)(3), the court  must
impose  the  least restrictive alternative,  given  the
rehabilitative  needs  of the minor  and  the  need  to
protect  the  public.   Delinquency  Rule  11(e)   also
declares that the State bears the burden of proving  by
a   preponderance  of  the  evidence  that  the  chosen
disposition is the least restrictive alternative.
          In B.F.L.s case, the superior court concluded
that   a   disposition  under  subsection  (b)(2)   was
appropriate.   That is, the court placed the  minor  on
probation to the Department.  As a special condition of
probation,  the  court ordered B.F.L. to  complete  the
residential   treatment  program  offered   by   Alaska
Childrens Services, but then B.F.L. was to be  released
to the custody of his sister in Idaho.
          B.F.L.   began   his  treatment   at   Alaska
Childrens  Services, but in early July (that is,  after
about  four months), he absconded from this residential
program.  B.F.L. remained at large for four days  until
he   was  arrested.   When  B.F.L.  was  arrested,  the
Department asked Alaska Childrens Services to  re-admit
B.F.L. into the treatment program, but Alaska Childrens
Services   refused.   The  staff  at  Alaska  Childrens
Services concluded that B.F.L.s behavior was too  risky
for the level of supervision that they could offer.
          B.F.L.  remained in the Departments  custody,
first  at the McLaughlin Youth Center and then  at  the
Fairbanks  Youth Facility, until the end  of  September
2007,  when he was released to his father and flown  to
Anchorage  for  admission to the Alaska Military  Youth
Academy.   In conjunction with this placement,  B.F.L.s
conditions  of  probation  were  modified  to   require
successful  completion  of the  Alaska  Military  Youth
Academy.
          Two  weeks after his admission to the  Alaska
Military  Youth  Academy, B.F.L.  absconded.   A  bench
warrant was issued for his arrest on October 16th,  but
this warrant remained unserved until November 1st  when
B.F.L. was arrested for vehicle theft.
          On  December 6, 2007, the Department filed  a
new  delinquency petition against B.F.L..   On  January
16, 2008, B.F.L. admitted several of the allegations in
this  petition:  that he committed first-degree vehicle
theft, that he drove without a valid license, and  that
he failed to obey the rules of his placement.
          At  this  point,  the  Department  asked  the
superior  court to issue a disposition under subsection
(b)(1) of the statute  i.e., an order that would  allow
the Department to place B.F.L. in a detention setting.
          B.F.L.  wrote a letter to the superior court,
arguing  against institutionalization.  In this letter,
B.F.L. told the judge:
     
          I  have learned ways to deal with things
     and  ways to avoid things.  In the past[,]  I
     have  not really [taken] account [of] what  I
     had  to  look forward [to,] because  I  didnt
     really think I had much[.]  [B]ut now I see I
     have  a  whole  life ahead of me[,]  full  of
     options[;] now I know what I have.  I have  a
     loving  family who cares about me[.]  I  know
     now  [that] I have what it takes to win[,  or
     to]  fail[,] but Im out to win ... .  I  dont
     see     where     further    treatment     or
     institution[alization] will benefit me in any
     way, [and] I believe I have the tools to win.
     
     B.F.L.  asked  the superior  court  to  again
     release him to his sister in Idaho.
               B.F.L.s attorney submitted a mental
     health  evaluation conducted by Moreen Fried,
     a   clinical   social  worker.    Ms.   Fried
     concluded  that B.F.L. likely  suffered  from
     bipolar   disorder,  based  on  his   rapidly
     alternating moods [and] symptoms of mania and
     depression.
          Ms.  Fried  expressed concern  that
B.F.L.s  father  was  apparently  opposed  to
allowing    B.F.L.   to   take   psychotropic
medication  to treat this disorder,  and  she
recommended  that  B.F.L.  be  placed  in   a
residential  treatment  facility  that  could
respond  to,  and treat, B.F.L.s  psychiatric
condition.      Ms.    Fried     specifically
recommended the residential treatment program
at  Alaska Childrens Services  the place from
which B.F.L. had earlier absconded.
          Indeed,  the Department  of  Health
and  Social Services had already re-submitted
B.F.L.s  case  to Alaska Childrens  Services,
asking  them to evaluate his suitability  for
their  program.   Alaska  Childrens  Services
concluded  that  B.F.L.  was  unsuitable  for
placement in their residential program.  They
recommended a locked-egress facility  i.e., a
detention facility  for [B.F.L.s] safety.
          In  March 2008, based on all of the
foregoing,  the superior court  followed  the
Departments  recommendation  and   issued   a
disposition order under subsection (b)(l)  of
the  statute  that is, an order that  allowed
the Department to place B.F.L. in a detention
facility.   However, the  court  told  B.F.L.
that  if  he took his medication as directed,
and    if    he   showed   progress    toward
rehabilitation in the next four  months,  the
court  would be willing to consider  amending
the  disposition order to a disposition under
either  subsection (b)(2) or  (b)(3)  of  the
statute.
          A  little over three months  later,
on  June  19, 2008, the Department  submitted
its review of B.F.L.s progress.  According to
the Departments report, by the second week of
B.F.L.s institutionalization at the Fairbanks
Youth  Facility, he began resisting the rules
of  the  facility and became verbally abusive
and  argumentative  with  [the]  staff.   One
month into his treatment, B.F.L. was sent  to
the   detention  unit  of  the  facility  for
engaging in a fight.  One month later, B.F.L.
slapped another resident.
          One    of   the   Fairbanks   Youth
Facilitys   mental  health   clinicians   had
evaluated B.F.L. and had confirmed Ms. Frieds
earlier diagnosis of bipolar disorder.   This
clinician recommended continued treatment  in
a detention facility.
          In  June  and  July,  the  superior
court   conducted  its  review  hearings   in
B.F.L.s   case.    Despite  the   Departments
recommendation that the court  re-affirm  its
subsection  (b)(1)  disposition,  the   court
amended the judgement to a subsection  (b)(2)
disposition     that   is,   a   probationary
disposition    and  allowed  B.F.L.   to   be
released   to   live  with  his   mother   in
Anchorage.
          (Because    of    this    Anchorage
placement,  the  superior court  granted  the
Departments request for a change of venue  in
the delinquency proceeding, from Fairbanks to
Anchorage.)
          Within  weeks  after  the  superior
court  released B.F.L. to his mother, B.F.L.s
mother  contacted  the Department  to  report
that  B.F.L. was misbehaving and would  often
yell at his mother and her sister.  Then, one
week later, B.F.L. left his mothers home  and
did   not   return.   On  August  29th,   the
Department petitioned the superior  court  to
revoke B.F.L.s probation.
          A  little over two weeks later,  on
September  15th, B.F.L. was observed  on  the
grounds of West High School in Anchorage.   A
school  official who was familiar with B.F.L.
attempted  to  talk to him,  but  B.F.L.  ran
away.   B.F.L.s whereabouts remained  unknown
until October 26th.  On that day, B.F.L.  was
arrested  in Dillingham on charges of  first-
degree   burglary  and  second-degree  theft.
B.F.L.  was  detained for  a  time  on  these
Dillingham charges, but ultimately these  new
charges   were  dismissed  and   B.F.L.   was
returned   to  Anchorage  to  face  probation
revocation proceedings.
          B.F.L.   admitted   that   he   had
violated  his  probation,  but  his  attorney
again  argued  against  a  subsection  (b)(1)
disposition.  The defense attorney attributed
B.F.L.s  failure on probation to his  mothers
shortcomings.   Specifically,   the   defense
attorney alleged (1) that B.F.L.s mother knew
where  he was during the entire time that  he
was  gone  from  her home;  (2)  that  B.F.L.
attempted  to get counseling, but his  mother
told  him that she did not have the  time  to
help  him;  and  (3)  that B.F.L.  repeatedly
called  his mother and asked her if he  could
return to school.  The defense attorney asked
the superior court to again release B.F.L. to
the  custody of a family member, under  close
supervision.  In particular, B.F.L.s  father,
who lives in Two Rivers (a small town outside
of  Fairbanks)  told the court  that  he  was
willing to have B.F.L. live with him.
          B.F.L.s  disposition  hearing   was
held  in  front  of Childrens Master  William
Hitchcock  over the course of three  days  in
late  February  and early  March  2009.   The
juvenile  probation officer who  appeared  on
behalf of the Department told the court  that
the Department was again seeking a subsection
(b)(1)   disposition   because   of   B.F.L.s
multiple  failed placements in non-detention,
residential  settings,  as  well  as  B.F.L.s
severe flight risk.
          Master  Hitchcock agreed  with  the
Departments assessment.  Based on the  record
in B.F.L.s case, he concluded:

[B.F.Ls]  delinquent [behavior]  ...  stem[s]
from  mental  health issues which  have  been
amply  diagnosed  and  identified  by  mental
health   clinicians  during   his   time   in
Fairbanks.  ...  [T]hese evaluations reveal a
very   complex   individual  who   has   been
consistently  unable to manage  his  behavior
within  the  restrictions  imposed  upon  him
through     probation    or     institutional
commitment.  He exhibits a consistent pattern
of  temperamental outbursts and  rages  which
place  him  time and time again  in  conflict
with authority.

          Master  Hitchcock  then  concluded,
based   on   B.F.L.s   behavior   and   these
psychological evaluations, that the  superior
court   should  impose  a  subsection  (b)(1)
disposition      that    less     restrictive
alternatives    would   not   meet    B.F.L.s
rehabilitative needs or provide the community
sufficient  protection from B.F.L.s  criminal
behavior.  Master Hitchcock declared:

     [B.F.L.]   needs  to  re-engage   in   a
comprehensive   youth  correctional   program
before  he  turns  18.  Society  has  a  keen
interest  in  this happening,  else  [B.F.L.]
become yet another candidate for correctional
placement  as  an adult.   ...   [He]  is  no
longer  a child; he will be an adult in  four
months.   There  is  precious  time  left  to
change the future for [B.F.L.].  He is  going
to  need  help  and support  in  making  this
happen.   It  is my recommendation  that  the
institutional order be entered.

          These     findings     and     this
recommendation were reviewed and approved  by
Superior Court Judge Eric A. Aarseth on March
10, 2009.

The test to be employed when evaluating the superior
courts decision

     As  we  have  already discussed,  Alaska  law
requires the State to prove by a preponderance  of
the   evidence   that  the  particular   type   of
disposition chosen by the superior court  i.e.,  a
disposition  under  subsection (b)(2),  subsection
(b)(3),  or subsection (b)(1) of AS 47.12.120   is
the   least  restrictive  alternative  that   will
satisfy   the  minors  rehabilitative  needs   and
protect  the  public.   See  AS  47.12.140(2)  and
Delinquency Rule 11(e).
     In   his   briefs   to  this  Court,   B.F.L.
acknowledges  that this is the  test,  but  B.F.L.
argues  that  further proof is needed  before  the
superior   court   imposes  a  disposition   under
subsection (b)(1)  i.e., a disposition that allows
the  Department to place the minor in a  detention
facility.  B.F.L. relies heavily on something that
this  Court said in Matter of J.H., 758 P.2d  1287
(Alaska App. 1988).
          In  J.H.,  this Court declared that,  because
[t]he  goal  of rehabilitation is always  of  paramount
importance in childrens proceedings, there is a  strong
presumption against institutionalization ... in all but
extreme cases.  758 P.2d at 1291, citing R.P. v. State,
718  P.2d  168, 169 n. 1 (Alaska App. 1986).  Based  on
this passage from J.H., B.F.L. argues that the superior
court  should  not  have imposed  a  subsection  (b)(1)
disposition  in  his  case, because  his  case  is  not
extreme.
          The  State argues that this passage from J.H.
has  been superseded by the Alaska Supreme Courts later
enactment  of  Delinquency Rule 11(e)  and  the  Alaska
Legislatures later enactment of AS 47.12.140.
          Delinquency  Rule  11(e)  states   that,   to
support  a  particular disposition  [in  a  delinquency
proceeding],  ...  the  Department  must  prove  by   a
preponderance  of the evidence that the disposition  is
the  least restrictive alternative appropriate  to  the
needs  of  the  juvenile  and  the  protection  of  the
community.   And,  in a similar vein,  AS  47.12.140(2)
defines  the  least  restrictive  alternative  as  that
disposition [which] is no more restrictive than is  ...
conducive  to the minors rehabilitation[,] taking  into
consideration the interests of the public.
          We  believe that the State has the better  of
this argument.
          The  statements that this Court made in  J.H.
concerning   the  proper  disposition  of   delinquency
proceedings were directly based on our earlier decision
in R.P. v. State, 718 P.2d 168 (Alaska App. 1986).  The
problem that this Court confronted in R.P. was that, in
1986,  Alaska  law provided the same three  alternative
types  of  disposition in delinquency proceedings,  but
[u]nfortunately, the statute provide[d] little guidance
for  the  [superior]  court  to  use  in  choosing  one
alternative and rejecting the others.  Id. at 169.   In
other  words, there was no statute or court  rule  that
provided   a   standard  for  choosing  one   type   of
disposition over another.1
          To  fill this legislative vacuum, this  Court
exercised  its common-law power to announce a  standard
that  would  govern  the  superior  courts  choice   of
disposition:
     
          We  therefore  recognize  the  standards
     promulgated  by the IJA-ABA Juvenile  Justice
     Standards  Project,  Standards  Relating   to
     Dispositions  (tentative draft  1977)  ...  .
     Under  [these]  Standards,  the  court   must
     consider    and   reject   less   restrictive
     alternatives  prior  to  imposition  of  more
     restrictive alternatives.  Further, the state
     has   the   burden  of  proving   that   less
     restrictive alternatives are inappropriate by
     a   preponderance  of  the   evidence.    See
     Standards,  2.1 and commentary at 34-35.  The
     court  must  enter specific written  findings
     why  the  less  restrictive alternatives  are
     inappropriate  in  a given  case,  and  those
          findings must be supported by a preponderance
     of the evidence.  Id. at 37-38.
     
     R.P.,  718  P.2d  at  169  (emphasis  in  the
     original).
               In    an    accompanying   footnote
     (footnote  1), this Court declared  that  the
     goals  of disposition in juvenile delinquency
     proceedings were different from the goals  of
     sentencing in adult criminal proceedings.  We
     stated:
     
     In  adult criminal proceedings, the goal
of  rehabilitation is generally considered on
equal  footing  with other sentencing  goals.
See  State  v.  Chaney,  477  P.2d  441,  444
(Alaska    1970).    However,   in   juvenile
dispositions,  the goal of rehabilitation  is
of paramount importance.  See In re Aline D.,
...  121  Cal.Rptr.  817,  536  P.2d  65,  70
([Cal.] 1975).  Consequently, to further  the
goal of rehabilitation, the IJA-ABA Standards
create   a   presumption  against  coercively
removing a child from his or her home in  all
but extreme cases.  See Standards,  3.3 B  at
61.

          For present purposes, the important
thing to note about the preceding footnote is
that,  again,  this Court was exercising  our
common-law  power to declare the law  in  the
absence of a governing statute or court rule.
When   we   declared   that   the   goal   of
rehabilitation    is   ...    paramount    in
delinquency proceedings, we did not cite  any
Alaska  statute  or court  rule;  rather,  we
cited  a  decision of the California  Supreme
Court   a  decision that, of course,  has  no
binding  power  in Alaska court  proceedings.
And  when  we  declared  that  there  was   a
presumption  against  coercively  removing  a
child from his or her home in all but extreme
cases,  we cited the ABA Standards  again,  a
non-binding  source.  In effect,  this  Court
was  saying that we were persuaded  to  adopt
these  standards as the law that would govern
future Alaska delinquency proceedings.
          But after our decision in R.P., the
supreme court enacted Delinquency Rule  11(e)
and  the  legislature enacted  AS  47.12.140.
Between  them,  this  court  rule  and   this
statute  address  the  same  issues  that  we
addressed in R.P.:  (a) defining the goals of
a   juvenile  delinquency  disposition;   (b)
specifying  the test that the superior  court
must  use  when choosing among the  types  of
disposition  authorized  by  AS  47.12.120(b)
(i.e.,   the  least  restrictive  alternative
test);  and  (c) identifying  the  burden  of
proof  that applies to the question of  which
level of disposition is the least restrictive
feasible alternative.
          Now  that  Alaska has a court  rule
and a statute that govern these matters, this
court rule and this statute have replaced any
contrary  common-law  rule  that  this  Court
announced in R.P. and J.H..  As we  noted  in
Dominguez  v.  State,  181  P.3d  1111,  1114
(Alaska App. 2008), [W]hen a statute or court
rule  has  been  enacted for the  purpose  of
governing a matter that was once governed  by
a  common-law rule, the statute or court rule
supersedes the common-law rule.
          Delinquency  Rule  11(e)   and   AS
47.12.140 still embody a presumption  against
the involuntary removal of a minor from their
home.    Indeed,  this  presumption   applies
whether  the proposed removal is  to  a  non-
detention facility under subsection (b)(3) or
(b)(5)  of  AS  47.12.120 or to  a  detention
facility  under  subsection  (b)(1)  of   the
statute.  The presumption against involuntary
removal is simply the legal corollary of  the
rule  that the State must affirmatively prove
that  the  superior courts chosen disposition
is  the  least  restrictive alternative.   In
effect,  this  burden of proof establishes  a
presumption  that  the  superior  court  must
impose   a  non-removal  disposition   (i.e.,
either or both of the dispositions defined in
subsections (b)(2) and (b)(4) of the statute)
unless the State proves otherwise.
          But  Delinquency Rule 11(e) and  AS
47.12.140(2) have superseded the portions  of
R.P. and J.H. where we declared that, in  all
but  extreme cases, the superior  court  must
refrain from coercively removing a child from
his    or   her   home   under   either    AS
47.12.120(b)(3) or (b)(1).
          As this Court explained in footnote
1  of  R.P.,  718 P.2d at 169,  this  extreme
cases  limitation was based on the underlying
premise   that   disposition   decisions   in
delinquency  proceedings  were  fundamentally
different   from  disposition  decisions   in
criminal cases, in that the paramount goal of
a   juvenile   delinquency   proceeding   was
rehabilitation of the minor, with  all  other
goals  (including protection of  the  public)
having lesser importance.
          This   underlying   premise     the
premise that, in delinquency proceedings, the
goal of rehabilitation is more important that
any  other goal  is no longer true.  Both  AS
47.12.140(2)  and  Delinquency   Rule   11(e)
declare that there are two primary goals when
choosing   the   proper  disposition   in   a
delinquency  proceeding:  the  rehabilitative
needs  of the juvenile and the protection  of
the community.
          Moreover,  Delinquency  Rule  11(e)
declares   that,  when  the  superior   court
selects  the  least  restrictive  alternative
that  will  achieve  these  two  goals,   the
governments burden of justifying a particular
level of restriction is by a preponderance of
the evidence.  In other words, the government
must  show  that, more likely than  not,  the
selected  disposition  represents  the  least
amount of restriction required to achieve the
two goals of rehabilitation and protection of
the public.
          To  the  extent that our references
in  R.P.  and  J.H. to extreme cases  suggest
that some higher burden of proof applies to a
disposition under subsection (b)(3) or (b)(1)
of  AS  47.12.120,  or that  some  additional
factor   must   be  proved   to   justify   a
disposition  under (b)(3) or  (b)(1)  of  the
statute, we now disavow any such suggestion.

Why we affirm the superior courts decision

     The  remaining question is whether the record
supports  the  superior courts conclusion  that  a
disposition under subsection (b)(1) of the statute
i.e., an order that allows the Department to place
B.F.L.  in  any  facility, including  a  detention
facility   is  the  least restrictive  alternative
that  will satisfy the minors rehabilitative needs
and protect the public.
          As  we  acknowledged in J.H., and again  more
recently in G.A.D. v. State, 865 P.2d 100 (Alaska  App.
1993),   the   requirement  of  a   least   restrictive
alternative disposition does not require that  a  child
be   allowed   to   fail  at  each  successively   more
restrictive level of placement before placement in  the
next  restrictive level may be made.  G.A.D., 865  P.2d
at  102 (quoting J.H., 758 P.2d at 1291).  Rather,  the
superior  court  can  authorize a  detention  placement
whenever  the State presents substantial evidence  that
lesser measures will likely fail to meet the twin goals
of   disposition  specified  in  AS  47.12.140(2)   and
Delinquency Rule 11(e).  G.A.D., 865 P.2d at 102; J.H.,
758 P.2d at 1291-93.
          B.F.L.s   case,  however,  does  present   an
instance  where  the two lesser levels  of  restriction
i.e.,   returning  him  to  his  parents   home   under
conditions  of probation, and placement at  residential
programs  have been tried and have failed.
          As  we explained in the first section of this
opinion, B.F.L. was originally placed with his  mother;
when  that didnt work, he was placed in the residential
treatment program offered by Alaska Childrens Services.
After B.F.L. absconded from that program, he was housed
in  a detention facility for several months, but B.F.L.
persuaded  the  superior court to release  him  to  the
Alaska  Military Youth Academy  from which he absconded
within a matter of weeks.
          This  time,  the  superior  court  issued   a
disposition  order  under  subsection  (b)(1)  of   the
statute   that is, an order that allowed the Department
to  place B.F.L. in a detention facility.  But  several
months  later, B.F.L. succeeded in having the  superior
court   amend   that  order  to  a  subsection   (b)(2)
disposition  that is, a probationary disposition   that
allowed  B.F.L. to be released to live with his  mother
in Anchorage.  Within weeks, B.F.L. absconded from this
placement,  and  he remained at large for  two  months,
until he was arrested for burglary and vehicle theft in
Dillingham.
          This record provides substantial support  for
the   superior  courts  conclusion  that  a   detention
disposition   i.e.,  a  disposition  under   subsection
(b)(1)   of  the  statute   is  the  least  restrictive
alternative available.
          B.F.L.  argues  that his  situation  is  more
promising than it might appear, and that there is  some
reason to believe that he would be successful if he was
released  on  probation and allowed to  live  with  his
father  in Two Rivers.  But as we explained in  G.A.D.,
865  P.2d at 104, our task as an appellate court is not
to  reweigh the evidence or see if it could possibly be
interpreted  in a different fashion.  Rather,  we  must
affirm  the superior courts decision if it is supported
by substantial evidence.
          Under the substantial evidence test, we  must
uphold  the  superior  courts decision  if  the  record
contains  evidence that a reasonable mind might  accept
as adequate to support the challenged conclusion.  Y.J.
v. State, 130 P.3d 954, 957 (Alaska App. 2006).2  Here,
Master  Hitchcock  and Judge Aarseth  could  reasonably
conclude  that  a  disposition order  under  subsection
(b)(1) was the least restrictive alternative that would
satisfy the twin goals of rehabilitation and protection
of the community.
          Accordingly,  the judgement of  the  superior
court is AFFIRMED.

_______________________________
1  In 1987 (the year after this Court issued our decision in
R.P.),  the  supreme court enacted Delinquency  Rule  11(e),
which  for  the  first  time specified  that  to  support  a
particular  disposition [in a delinquency  proceeding],  ...
the Department must prove by a preponderance of the evidence
that  the  disposition is the least restrictive  alternative
appropriate to the needs of the juvenile and the  protection
of   the  community.   See  Supreme  Court  Order  No.   845
(effective August 15, 1987).

The  corresponding statute, AS 47.12.140(2), was not enacted
until 1996.  See SLA 1996, ch. 59,  46.  Prior to that time,
the  only  statutory guidance or directive to  the  superior
court  was  found in former AS 47.10.082 (Best interests  of
child  and  other considerations).  That statute  read:   In
making   its   dispositional   order   [in   a   delinquency
proceeding,] the court shall consider the best interests  of
the child and the public.

2 Quoting Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991).

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