        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               R.B., a child,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D19-817

                              [April 29, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Luis Delgado, Judge; L.T. Case No. 502019CJ000032A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   R.B. appeals his commitment to a high-risk residential program after
the trial court departed from the restrictiveness level recommended by the
Department of Juvenile Justice (“DJJ”). We agree with R.B.’s arguments
that the trial court failed to comply with E.A.R. v. State, 4 So. 3d 614 (Fla.
2009), in deviating from the DJJ’s recommendation for a nonsecure
residential program. Accordingly, we affirm the commitment to a DJJ
program, but reverse and remand for a new disposition hearing and an
analysis that comports with E.A.R. if the trial court decides again to deviate
from the recommendation of the DJJ as to the restrictiveness level for
commitment.

                                Background

   After waiving trial and entering pleas, R.B. proceeded to a disposition
hearing on charges of burglary of a conveyance and trespass in a structure
or conveyance. Pending disposition, R.B. violated home detention and was
arrested on new charges in a neighboring county.

   The DJJ’s predisposition report (“PDR”) noted that R.B.’s risk to
reoffend was high, he had not been attending school for a significant
period, and he had never been committed to the DJJ before. R.B’s father
reported that: R.B. experimented with marijuana in the past but the father
was unsure of his current usage; R.B. was diagnosed with attention deficit
hyper-activity disorder (“ADHD”) but was not taking his medication; and
he was easily influenced by his friends. A multidisciplinary commitment
staffing was held and a comprehensive evaluation was prepared in
advance of the disposition hearing.       However, the comprehensive
evaluation report was not available at the time the PDR was completed.
Nonetheless, the PDR recommended commitment to a nonsecure
residential program.

   The comprehensive evaluation noted that R.B. had a history of family
instability, relocations, and exposure to violence. He was habitually truant
and did not have a GPA, as he had not earned any high school credits. In
the evaluation, R.B. admitted to a history of marijuana use and that he
stopped taking his ADHD medication because he did not like the way it
made him feel. Ultimately, the comprehensive evaluation determined that
R.B. met the criteria for having a conduct disorder based on his history of
arrests, truancy, and participation in thefts and fighting.

   At the disposition hearing, the DJJ repeated its recommendation that
R.B. be committed to a nonsecure residential facility. The State agreed.
The defense recommended probation.           In response to the defense
arguments for probation, the State pointed out that at the commitment
staffing, both R.B.’s mother and grandmother expressed that he should be
in a program where he can effectively receive the services he needs; he was
previously unsuccessfully terminated from probation; the comprehensive
evaluation found he had a conduct disorder; he was a high risk to reoffend;
and he had impulsivity issues, as shown by committing new crimes. The
DJJ stated that it considered R.B.’s high risk to reoffend and his
unsuccessful history with probation, but because he had never been
committed, it determined that the nonsecure residential program would
meet his needs.

   The trial court ultimately decided against probation and committed
R.B. to the DJJ. The trial court asked for recommendations as to the
restrictiveness level for commitment, and all three parties recommended
nonsecure residential. The trial court stated it was considering high-risk
placement, mostly due to concerns about R.B.’s high risk for reoffending

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and concerns about public safety.      The trial court felt high-risk
commitment was appropriate, reasoning:

      [T]his child is a danger to the community as was argued by
      the state, the comprehensive evaluation also mentions that,
      that there are concerns that he is—about his recidivism, and
      the positive achievement change tool does list his risk to
      reoffend as a high risk to reoffend, and so if he is a high risk
      to reoffend he does not represent a low or moderate risk to
      public safety, making him—or placing him in a non-secure
      residential facility inappropriate. High-risk residential differs
      in that youth assessed or—for this placement level require
      close supervision in a structured setting and placement is
      prompted by a concern for public safety that outweighs
      placement at a lower commitment level. Now if the concern
      for public safety is what is important and this child is a high
      risk to reoffend and there are incredible concerns regarding
      his recidivism, I believe that statutorily he would not be
      appropriately placed in a non-secure residential facility but
      instead in a high-risk residential facility. In addition to that
      the child is ungovernable—I did understand from mom and
      from dad that if he wants to go home that perhaps he should
      go home and listen, but this child does as he pleases.
      Previously he was sent to live with his mother and he returned
      to Miami the next day; this child is ungovernable and does as
      he pleases. He would rather be with his friends because he
      does as he pleases. The child is not in school; he is 17 years
      old and had zero credits because he does as he pleases. He’s
      been diagnosed with ADHD and he’s not on his medication,
      has not taken his medication for several years because he
      does as he pleases. This child is not governable.

   Defense counsel attempted to change the trial court’s mind by arguing
that the crimes for which he was adjudicated for were all property crimes,
and “[h]e’s not violent, he’s not a danger, not in a violent way; he may be
a nuisance to the community but he’s not a dangerous person to anybody.”
The trial court disagreed and committed R.B. to a high-risk facility. A
written order explaining the reasons for deviating from the DJJ’s
recommendation for the restrictiveness level of commitment was not
entered.

   After disposition, R.B. gave notice of appeal.



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                              Appellate Analysis

   “A trial court’s departure from the DJJ recommendation is reviewed for
abuse of discretion. However, whether a juvenile court has employed the
proper legal standard in providing its departure reasons is a question of
law subject to de novo review.” D.R.R. v. State, 94 So. 3d 680, 681 (Fla.
4th DCA 2012) (citations omitted).

    Section 985.433, Florida Statutes, governs “[d]isposition hearings in
delinquency cases.” § 985.433, Fla. Stat. (2019). Subsection (6) provides
that “[t]he first determination to be made by the court is a determination
of the suitability or nonsuitability for adjudication and commitment of the
child to the [DJJ]. This determination shall include consideration of the
recommendations of the [DJJ], which may include a [PDR].” § 985.433(6),
Fla. Stat. (2019). Subsection (7) then requires the determination to be in
writing or on the hearing record and include specific findings for the
reasons the court chose commitment. § 985.433(7), Fla. Stat. (2019).

   In making a determination, “[t]he [DJJ] shall recommend to the court
the most appropriate placement and treatment plan, specifically
identifying the restrictiveness level most appropriate for the child if
commitment is recommended.” § 985.433(7)(a), Fla. Stat. Subsection 7(b)
further provides:

      The court shall commit the child to the [DJJ] at the
      restrictiveness level identified or may order placement at a
      different restrictiveness level. The court shall state for the
      record the reasons that establish by a preponderance of the
      evidence why the court is disregarding the assessment of the
      child and the restrictiveness level recommended by the [DJJ].

§ 985.433(7)(b), Fla. Stat.

   In E.A.R., our supreme court held that under chapter 985, a juvenile
court may only depart from the DJJ’s recommended disposition if it:

      (1) Articulate[s] an understanding of the respective
          characteristics of the opposing restrictiveness levels
          including (but not limited to) the type of child that each
          restrictiveness level is designed to serve, the potential
          “lengths of stay” associated with each level, and the
          divergent treatment programs and services available to the
          juvenile at these levels; and


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      (2) Then logically and persuasively explain[s] why, in light of
          these differing characteristics, one level is better suited to
          serving both the rehabilitative needs of the juvenile—in the
          least restrictive setting—and maintaining the ability of the
          State to protect the public from further acts of
          delinquency.

E.A.R., 4 So. 3d at 638. The court further explained that:

      Simply listing “reasons” that are totally unconnected to this
      analysis does not explain why one restrictiveness level is
      better suited for providing the juvenile offender with “the most
      appropriate dispositional services in the least restrictive
      available setting.” § 985.03(21), Fla. Stat. (2007) (emphasis
      supplied); see also §§ 985.03(44)(a)–(e), 985.433(7)(a)-(b) Fla.
      Stat. (2007). The failure to connect departure “reasons” to the
      juvenile court’s ultimate statutory duty during a disposition
      hearing completely undermines the Legislature’s carefully
      crafted statutory scheme. These “reasons” must “establish by
      a preponderance of the evidence why the court is disregarding
      the assessment of the child and the restrictiveness level
      recommended by the [DJJ].” § 985.433(7)(b), Fla. Stat. (2007)
      (emphasis supplied).

Id. (alteration in original). Ultimately, the supreme court concluded that

      simply parroting is insufficient to justify departure and that,
      instead, the juvenile court’s stated “reasons,” must provide a
      legally sufficient foundation for “disregarding” the DJJ’s
      professional assessment and PDR by identifying significant
      information that the DJJ has overlooked, failed to sufficiently
      consider, or misconstrued with regard to the child’s
      programmatic, rehabilitative needs along with the risks that the
      unrehabilitated child poses to the public.

Id. (emphasis added).

   E.A.R.’s requirement for findings to justify deviation from the DJJ’s
recommendations for disposition “are unnecessary for the court’s initial
decision of whether to commit a juvenile even where the DJJ recommends
probation” but rather, “apply only to the second step of the disposition
process when a [trial] court departs from the recommended restrictiveness
level of the commitment.” D.R. v. State, 178 So. 3d 478, 482 (Fla. 4th DCA
2015). Additionally, “it is well settled that under the constraints of E.A.R.,

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a trial court ‘may not deviate simply because it disagrees with the
disposition recommended by DJJ[.]’” C.C. v. State, 276 So. 3d 14, 18 (Fla.
4th DCA 2019) (quoting B.L.R. v. State, 74 So. 3d 173, 176 (Fla. 1st DCA
2011)).

   We also note that section 985.03(44)(a)–(d), Florida Statutes (2019),
provides for four restrictiveness levels for commitment: minimum-risk
nonresidential, nonsecure residential, high-risk residential, and
maximum-risk residential.

   R.B. argues reversal is warranted under E.A.R. because:

      The trial judge did not articulate an understanding of the
      various restrictiveness levels and then logically and
      persuasively explain why the High-Risk Residential Program
      was better suited to serving both the rehabilitative needs of
      the juvenile, in the least restrictive setting, and maintaining
      the ability of the State to protect the public from further acts
      of delinquency.

Furthermore, R.B. argues that “the trial judge did not identify significant
information that the DJJ overlooked, or that it failed to sufficiently
consider, or misconstrued with regard to the child’s programmatic,
rehabilitative needs along with the risks that the unrehabilitated child
poses to the public.” We agree.

   In the instant case, the trial court did not set forth a comprehensive
and thorough basis for its departure from the DJJ’s recommendation. The
record clearly shows that the trial court was concerned that the PDR
assessed R.B.’s risk to reoffend as high. Additionally, the trial court
expressed concern that R.B. was ungovernable and “does as he pleases.”
In the view of the trial court, a high risk to reoffend meant that R.B.
presented a public safety concern and “a danger to the community.”
Although the State argued at the disposition hearing, and the trial court
agreed, that the comprehensive evaluation concluded that R.B. presented
a concern for public safety, a review of the written evaluation does not
support such an assertion. Nowhere in the evaluation is the term “public
safety” used. Nor does the evaluation support the conclusion stated by
the trial court that R.B. was a danger to the community.

    Reversal is also required in part because the trial court failed to
“[a]rticulate an understanding of the respective characteristics of the
opposing restrictiveness levels.” E.A.R., 4 So. 3d at 638. Although the
trial court recited certain distinctions between nonsecure residential

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commitment programs and high-risk residential programs identified in
section 985.03(44), the trial court’s discussion was simply the “parroting”
of statutory phrasing that was disapproved in E.A.R. In discussing the
distinctions, what seemed most important to the trial court was the
assessment that R.B. was evaluated to have a high risk to reoffend, making
him a high risk in terms of public safety. By equating high risk to reoffend
with being “a danger to the community,” the trial court concluded that
“statutorily [R.B.] would not be appropriately placed in a non-secure
residential facility but instead in a high-risk residential facility.” Notably,
at no point during the disposition hearing did the trial court elicit
information as to the different treatment programs or services offered
either at the nonsecure or high-risk facilities to support the analysis.

    The trial court also failed to meet the second prong of the E.A.R. test.
Specifically, the trial court failed to justify the departure vis-à-vis the
needs of the child. See J.H. v. State, 100 So. 3d 1236, 1238 (Fla. 2d DCA
2012) (“[T]he ‘needs of the child’ must be the focal point for the court when
it is assessing where along the restrictiveness spectrum a child should be
placed.” (alteration in original) (quoting N.P. v. State, 18 So. 3d 735, 737
(Fla. 2d DCA 2009))); S.G. v. State, 26 So. 3d 725, 726 (Fla. 2d DCA 2010)
(“The court is required to discuss the restrictiveness level vis-à-vis the
needs of the child.”). Instead, here, the trial court simply focused on
“maintaining the ability of the State to protect the public from further acts
of delinquency” but failed to mention a single time how high-risk
commitment was “better suited to serving . . . the rehabilitative needs of
the juvenile . . . in the least restrictive setting.” E.A.R., 4 So. 3d at 638.
Specifically, the trial court noted that “placement in a high-risk facility is
more appropriate because it is guaranteed to be hardware secure.” While
protecting the public is a significant factor to consider when departing
from the DJJ’s recommendation, it must be balanced with the
rehabilitative needs of the child in the least restrictive setting. See J.H.,
100 So. 3d at 1238 (reversing the disposition order because “[t]he trial
court did not explain adequately how a high-risk level of restrictiveness
would better fit [the juvenile’s] rehabilitative needs and public safety than
a moderate-risk level of restrictiveness”); D.R.R., 94 So. 3d at 682–83
(same). Similar to the situation presented in M.H. v. State, 69 So. 3d 325
(Fla. 1st DCA 2011), “the trial court reversibly erred by failing to state the
deviation and placement in a moderate-risk facility was the least-
restrictive setting necessary to protect the public from recidivism, while
balancing the need for rehabilitation.” Id. at 328.

    Finally, we conclude that the trial court did not illustrate that the DJJ
“failed to sufficiently consider, or misconstrued [facts] with regard to the
child’s programmatic, rehabilitative needs along with the risks that the

                                      7
unrehabilitated child poses to the public.” C.C., 276 So. 3d at 18 (quoting
E.A.R., 4 So. 3d at 634). Instead, the record shows that all the information
the trial court relied upon to decide what restrictiveness level was
appropriate was already considered in the PDR and the comprehensive
evaluation. There were no new facts established at the disposition hearing.
Yet, for some unarticulated reason, the trial court determined that the risk
to public safety was so significant that it outweighed placement in
programs at a lower commitment level.

   We remind delinquency court judges that

      deviating from a DJJ’s recommendation is a difficult matter
      pursuant to the dictates of E.A.R. In order to deviate lawfully,
      a trial court must do more than place generalized reasons on
      the record; it must engage in a well-reasoned and complete
      analysis of the PDR and the type of facility to which the trial
      court intends to send the child. This is no easy task and will
      take time and consideration.

M.H., 69 So. 3d at 328.

   For the reasons explained above, we affirm R.B.’s commitment to the
DJJ, but reverse the disposition order as to the restrictiveness level and
“remand for a new disposition hearing with an updated pre-disposition
report and the presentation of any new evidence and arguments by the
parties.” C.C., 276 So. 3d at 19. “On remand, the trial court may amend
the disposition order to include findings required by E.A.R. to support a
high-risk commitment placement, or, if the court cannot make such
findings, then the court must enter an order committing [R.B.] to a non-
secure [residential] program as the DJJ recommended.” Id.

   Affirmed in part; reversed in part, and remanded.

FORST, J., and GILLESPIE, KENNETH, Associate Judge, concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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