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In re W.Y.

Court of Special Appeals of Maryland

July 26, 2016

IN RE: W.Y.

          Berger, Nazarian, Zarnoch, Robert A., (Retired, Specially Assigned), JJ.

          OPINION

          Nazarian, J.

         Section 5-607 of the Family Law Article ("FL") of the Maryland Code allows a court to order an out-of-state placement for a child who has been adjudicated delinquent so long as the child is given a hearing with notice to his parent or guardian and, after that hearing, the juvenile court makes specific findings. W.Y. ("W") was a juvenile (he's now over 18) who pled involved to his most recent set of charges and was adjudicated delinquent. Using a form order edited by hand, the Circuit Court for Prince George's County ordered W placed in a facility in Pennsylvania; he contends on appeal that the process and findings underlying the placement decision failed to comply with FL § 5-607. In the time since the court entered its order, W completed the out-of-state program, and we agree with both parties that the case is moot. Nevertheless, there are no reported Maryland appellate opinions to guide the juvenile courts in their application of this statute, and because the issues are important and likely to evade review, we find this an appropriate case to exercise our discretion to address the merits of W's contentions.

         I. BACKGROUND

         W has a long history with the juvenile justice system. He was first adjudicated delinquent on March 13, 2012, also by the Circuit Court for Prince George's County, after pleading involved to a count of robbery. While wearing a black ski mask and wielding what the victim believed to be a handgun (later found to be a BB gun), W demanded the victim's book bag and laptop. The victim recognized W from prior encounters, and even called W by name during the robbery. When police officers stopped him shortly after the incident, W admitted to the robbery and consented to a search of his home, during which the victim's property was recovered. The court, sitting as a juvenile court, committed W to the Department of Juvenile Services ("DJS") and recommended a Level B placement, which in Prince George's County meant a staff-secured, non-community residential facility.[1] DJS placed W at the Victor Cullen Center[2] in Sabillasville, Frederick County, Maryland, where he remained from May 2, 2012 until he was successfully discharged on October 17, 2012. Upon discharge, the juvenile court rescinded the commitment order and placed W on probation.

         W was arrested again in the early hours of May 26, 2014. Police found W sitting on the steps of a townhome in Landover, Maryland, and approached him because he matched the description of the suspect in a nearby robbery. As they neared, W stood up, drew a .38 caliber handgun (containing three live rounds) from the waistband of his pants, threw the gun to the ground, and began to walk away. When questioned by the officers, W said the weapon was his, but "[he] wasn't going to do anything with it" and further stated that he had no knowledge of or involvement in the robbery. He was indicted as an adult, but his case was waived to the juvenile court. W again admitted to his actions, and again pled involved, this time to possession of a regulated firearm by a person under age 21. The court also found W in violation of his probation.

         The court held a hearing[3] on October 20, 2014 to review W's detention status; W was present with his attorney. The judge told W's attorney to "let [W] know he may not be going home." W then interjected: "And I'm getting a lot better, out of the prison." The court turned its attention to the attorneys to schedule a hearing for the following month, then adjourned.

         At an adjudicatory hearing on November 18, 2014, the court accepted W's plea of involved, and asked him to explain his actions:

THE COURT: Okay. Young man, why did you do this?
[W]: It was an honest mistake, Your Honor. I really shouldn't have done this.
THE COURT: Okay. So, why did you do this?
[W]: There is no explanation for why I did it.
THE COURT: Okay. So, why did you do it?

[W]: I just-I made an honest mistake. I tell you the reason why I did it would be an excuse . . . and there is no excuse for that.

THE COURT: So, why did you do it?
[W]: I was being a bonehead.
THE COURT: Pardon me?

[W]: I was being a knucklehead, thinking that I could get away with things I can't get away with.

THE COURT: Well, so why did you do it? You already had a robbery with a deadly weapon charge . . . . Now you [have] possession of a gun. Another one.
[THE STATE]: There was not a gun in the prior-
[W]: I understand, Sir. I understand what I done. I apologize for-

THE COURT: No, I am just asking why did you do it. Because you are going to - you went to a placement, didn't you?

[W]: Yes, Sir.
THE COURT: How can I release you back into the community?
* * *
THE COURT: No, let me stop you. I just asked- because if you don't change your lifestyle in what you are doing, you will end up dead out here. . . . Or you going to end up killing somebody. . . . [L]ast time I asked you the same thing, why you walking around with a ski mask in the middle of the summer . . . with a deadly weapon. I am just saying-you got to change. Would I give you a break and put you back in the community-
[W]: If I could say one thing on my behalf is that this charge and that I went to [detention] and understand that I could have faced even wors[e] charges and time for it.
I['m] really mature, and my age and I know that it's time to stop playing games and do something with my life or I'm going to throw it away. And I really don't - - I'm not ready for my life - - I got dreams and goals and things that I need to do. And with the support from my family that - - I can't keep doing this.

         The judge then scheduled a December hearing with counsel and ordered W's detention in the interim.

         W's disposition hearing-the purpose of which was to determine W's level of placement, i.e., whether he should remain in a level B facility or move to level A-took place on December 11, 2014. After an inaudible bench conversation, the State and W's attorney agreed that W should maintain his level B placement, while DJS requested a level A commitment. The judge questioned W about the incident, again emphasizing the similarities between his two arrests:

THE COURT: I am asking him a question because when is he going to learn his lesson.

[W]: I mean I can't make you believe me but- I honestly feel like that the lesson I learned when I was up in [detention] facing that-

THE COURT: Wait, whoa, whoa, wait, how long were you gone the other time?
* * *
[W]: Eight months.
THE COURT: And you didn't learn you lesson then?
[W]: I did. I just-I am telling you-I made a mistake, I-

THE COURT: No, no, no. It is not a mistake when you . . . put a gun in your hand. That's not a mistake.

[W]: It wasn't a mistake, it was more of a defense. But I should have went about it differently than what I did. And I can't really take it back now, I mean.

THE COURT: So, what am I supposed to do with - - the mistakes that you keep making?

[W]: I accept any consequences, Sir. (Inaudible) on behalf of the mistakes that I know that (Inaudible).
THE COURT: You have any-the problem is you are putting yourself in harm's way.
[W]: Exactly.

THE COURT: I am not asking for a response. I am just-this is ridiculous.

[W]: I am ashamed of myself, too, Sir.
THE COURT: Madam Clerk, the Court will in fact commit [W] to Level A. I agree, you got to stop this, young man. You are going to wind up getting yourself killed out here.
* * *
And since he has already been at Victor [Cullen Center] he is not going back to Victor [Cullen Center].
* * *
[THE STATE]: Your Honor, can we have a review [hearing] for placement, it is just today- I am sorry, I just realized that-
THE COURT: No problem. You got [January 13, 2015].

         After the hearing, the court issued a written Disposition Order, dated December 11, 2015, which ordered that W "be and hereby is placed in Level A . . . ." The Order consisted of a template that stated the three classification levels for placement facilities-level A, B, and C-into which the judge inserted an additional limitation (which we have italicized):

A - Secured Facility - [W] is not be placed at Victor Cullen because he was placed there in 2012.
**Equivalent facilities for the juvenile are not available in the State of Maryland; and institutional care in the other jurisdiction is in the best interest of the juvenile ...

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