       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               C.C., a child,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3890

                              [June 19, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Curtis Lee Disque, Judge; L.T. Case Nos.
432014CJ000222A,    432016CJ000121A,      432017CJ000185A       and
432017CJ000234A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   C.C. appeals his commitment to a high-risk residential program after
the trial court departed from the disposition recommended by the
Department of Juvenile Justice (“DJJ”). We agree with appellant’s
argument 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 non-
secure residential program. Accordingly, we reverse the disposition order
and remand for a new disposition hearing.

   In June 2015, appellant entered no contest pleas to burglary charges
and was placed on probation. In March 2016, he admitted to violating his
probation after getting new charges, but the trial court reinstated
probation. In July 2016, appellant again admitted to allegations that he
had violated his probation. After ordering a pre-disposition report and
comprehensive evaluation, the trial court sentenced appellant to a non-
secure residential facility with post-commitment probation to follow.
   Less than a month after his release from the residential program,
appellant was arrested in June 2017. Appellant entered an open plea of
no contest to the charges and admitted to having violated his probation.
The trial court set disposition for December 2017 and ordered a pre-
disposition report, comprehensive evaluation, staffing, and placement level
recommendation from the DJJ.

   In its report, the DJJ recommended that appellant be placed in a non-
secure commitment facility, explaining:

      During the staffing, JPO Baker provided a verbal overview of
      the youth’s history with the Department and his current
      charges, services that [appellant] is currently receiving, and
      his criminogenic needs. It was noted that [appellant] was
      released from his commitment program less than seven
      months ago, and obtained new charges within 18 days of
      returning to the community.          [Appellant] displayed a
      nonchalant attitude towards the Department’s effort to aid
      him in rehabilitation and turning around his life. This was
      evident due to the number of services he has been referred to,
      with continued anti-social behaviors. [Appellant] offered no
      argument in his own defense, as to why he feels as though he
      should continue on Post-Commitment Probation. He was
      unable to offer an explanation for his behaviors or a plan on
      how he would not recidivate.

      In conclusion of the Multidisciplinary Staffing, the
      Department of Juvenile Justice came to the recommendation
      of Non-Secure Residential Commitment. According to the
      PACT Tool, the youth scores HIGH risk to re-offend. The
      current charge is a minor offense, and in accordance to the
      Dispositional Matrix, the risk level and manner of offense
      criteria is in the range of a Level 3a-c (Probation, Probation
      Enhancement Services or Day Treatment) or Level 4 (Non-
      secure Residential Commitment) recommendation. Due to
      [appellant’s] current criminogenic needs, it was determined
      that a Level 4 (Non-secure Residential Commitment)
      recommendation was appropriate.

      The youth’s criminal history, social history, attitudes, and
      behaviors were taken into consideration. “Per F.S 985.435(4)
      The Department respectfully recommends the court authorize
      the use of the Effective Response Matrix (ERM) as an
      alternative consequences component to address youth

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      noncompliance with technical conditions of probation.”

   The comprehensive evaluation, referred to by the DJJ in its report,
concluded that appellant had “significant antisocial behaviors, the
inability to adhere to the criteria set forth in his probation agreement,
anger management problems, Cannabis Abuse issues, and a history of
sexual abuse.”

    At the disposition hearing, appellant’s mother asked the trial court to
allow him to remain on probation, noting that he was helping around the
house and had stayed out of trouble, except for referrals for minor
incidents at school. Appellant’s clinical therapist added that appellant was
making satisfactory progress and would complete his eighteen-week
program in just three weeks.

    Appellant’s juvenile probation officer testified that although the DJJ
recommended a non-secure placement, she recommended a high-risk
program because appellant had recently been released from a non-secure
program when he picked up the new charges, which demonstrated that he
was still committing crimes and failing to adhere to the terms of his
probation. The court asked the probation officer whether appellant would
be receiving essentially the same services if he were to be placed in
another, albeit different, non-secure program. The probation officer noted
that each program had its quirks and may offer different services, but she
responded affirmatively. When the court asked why the DJJ would make
the same recommendation after appellant picked up new charges following
his release from a non-secure program, the probation officer explained,
“According to the dispositional matrix, [appellant] is a high risk to re-
offend with minor offenses. And he falls between the levels of 3A through
C and level 4. And level 4 is a non-secure.”

   The State requested that the court place appellant in a high-risk
program, noting, among other things, that appellant had committed new
crimes shortly after being released from the non-secure program.

   After the hearing, the trial court adjudicated appellant delinquent,
deviated from the DJJ pre-disposition report recommendation, and
ordered that appellant be committed to a level eight high-risk program.
The court reduced to writing its reasons for deviating from the DJJ’s
recommendation, noting, inter alia, that based on appellant’s numerous
contacts with the justice system and violations of probation, even after
completing a non-secure program, it was in the best interest of appellant
and the community to deviate upward.


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   On appeal, we find merit in appellant’s argument that the trial court’s
deviation failed to comply with E.A.R., because the court failed to provide
any new reasons for its departure but instead relied solely on facts from
the pre-disposition report that had already been considered at the staffing.
We therefore need not reach his remaining arguments.

   We review the trial court’s departure from the DJJ recommendation for
an abuse of discretion. D.R. v. State, 178 So. 3d 478, 480 (Fla. 4th DCA
2015). However, the question of whether the court has used the proper
legal standard to provide its departure reasons is a question of law that is
reviewed de novo. Id.

   In D.R., we joined our sister courts in holding that “E.A.R. findings are
unnecessary for the court’s initial decision of whether to commit a juvenile
even where the DJJ recommends probation.” Id. at 482 (emphasis added).
We added that such findings “apply only to the second step of the
disposition process when a court departs from the recommended
restrictiveness level of the commitment.” Id.

   To satisfy the requirements of E.A.R., a trial court must do the following
to justify a commitment disposition that departs from the DJJ’s
recommendation:

      (1) Articulate 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

      (2) Then logically and persuasively explain 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. This requires the trial court to do more than
“[s]imply listing ‘reasons’ that are totally unconnected to this analysis,”
because that “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.’” Id. at 633 (citations
omitted). In addition, the trial court’s stated reasons for departure must
provide a legally sufficient basis for departure by “identifying significant

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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.
at 634.

    Furthermore, it is well settled that under the constraints of E.A.R., a
trial court “may not deviate simply because it disagrees with the
disposition recommended by DJJ,” and “the trial court must do more than
‘parrot’ or ‘regurgitate’ the information in the PDR to support a departure
disposition.” B.L.R. v. State, 74 So. 3d 173, 176 (Fla. 1st DCA 2011) (citing
E.A.R., 4 So. 3d at 633, 636, 638).

    In B.L.R., the First District faced a set of facts similar to those in the
case before us but reversed after finding that the trial court had “failed to
articulate its understanding of the respective characteristics of the
opposing restrictiveness levels and failed to explain based on these
differing characteristics why a maximum-risk facility is better suited to
[the juvenile’s] rehabilitative needs and the safety of the public.” Id. at
176. Similarly, we have reversed and remanded for a new disposition
hearing after concluding that a trial court’s explanation for deviation from
the DJJ’s recommendation expressed cogent reasons for why more severe
punishment would better address the juvenile’s behavior and protect the
public, but the trial court’s pronouncement failed to comply with the
specific methodology required by E.A.R. See D.R.R. v. State, 94 So. 3d 680,
682–83 (Fla. 4th DCA 2012).

   Here, although the trial court gave sound reasons for deviating from
DJJ’s recommendation, it failed to satisfy the two-pronged analysis set out
in E.A.R. First, the trial court failed to articulate its understanding of the
opposing restrictiveness levels. The court did not engage in any discussion
about the type of juvenile offenders who are more suited for non-secure
programs than high-risk programs, the possible length of stay for a non-
secure program versus a high-risk program, or the treatment programs
and services available at a non-secure program rather than at a high-risk
program. Instead, the court merely restated the standard for the first
prong in the E.A.R. analysis and asserted that it was articulating its
understanding of the standard. Second, the trial court’s stated reasons
did not contain significant information that the DJJ overlooked, failed to
sufficiently   consider,     or    misconstrued        regarding   appellant’s
programmatic, rehabilitative needs, along with the risks that appellant
posed to the public. Instead, the trial court relied on factors the DJJ had
considered before making its recommendation. For example, the court
focused on appellant’s commission of new offenses shortly after being
released from his non-secure program. The probation officer and others,

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however, had raised this argument at the staffing, and the DJJ had
considered it, along with the fact that appellant had a high risk of
reoffending and the new offenses appellant committed were relatively
minor, before making its recommendation for a non-secure placement.

   In sum, the trial court’s oral pronouncement in this case lacked
independent support for its deviation, and its order memorializing the
reasons for departure also failed to provide significant information that the
DJJ overlooked. Accordingly, we reverse appellant’s disposition 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. See D.R.R., 94 So. 3d at 683. 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 appellant to
a non-secure program as the DJJ recommended. See B.L.R., 74 So. 3d at
177.

   Reversed and Remanded for new disposition hearing.

LEVINE, J., and ROWE, CYMONIE, Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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