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In re M.O.R.

June 17, 2004

IN RE M.O.R., APPELLANT.


Appeal from the Superior Court of the District of Columbia (J-54-02). (Hon. Odessa F. Vincent, Trial Judge).

Before Farrell, Ruiz and Glickman, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued November 24, 2003

This appeal calls upon us to delineate the scope of the trial court's authority vis à vis the Director of Social Services in the termination of certain juvenile proceedings. Appellant, M.O.R., challenges an order of the trial court denying his motion to terminate proceedings notwithstanding that the Director of Social Services decided not to seek an extension of his probationary period, and requiring him to continue to abide by the conditions of his probation. We hold that the trial court exceeded its authority in denying

M.O.R.'s motion to terminate his probation. Treating this action as one brought in the nature of a petition for mandamus, we remand the case to the trial court with instructions to enter an order terminating the proceedings as required by D.C. Code § 16-2322 (e) (2001) and Super. Ct. Juv. R. 32 (f)(4).

I. Background

The procedural history of this case is central to our analysis, so we set it out in detail. Appellant, who was eighteen years old at the time, was placed on probation for one year on July 23, 2002 after pleading guilty to two counts of simple assault. The conditions of probation required that appellant participate in sex offender counseling and refrain from soliciting persons for purposes of prostitution.

The trial court held several probation review hearings between July 23, 2002 and July 18, 2003. During this period, the trial court also received progress reports and other information from the assigned probation officer, Oscar Claros. On March 5, 2003, the probation officer filed a written progress report with the trial court which noted that appellant had adjusted well to community supervision, maintained employment, attended classes in the evening, tested negative for drugs, and complied with counseling services. Mr. Claros recommended that M.O.R.'s probation be terminated successfully "at this time." On March 7, 2003, the trial court held the first probation review hearing. During the hearing, the trial court expressed disagreement with Mr. Claros's recommendation to terminate probation. This was followed by an order, issued on March 17, 2003, stating that "detailed reports of [M.O.R.'s] progress in sexual offender counseling are required before the Court can make any determination of whether to terminate probation." Specifically, the trial court requested that the progress report outline M.O.R.'s prospects for recidivism and suggest the length of time M.O.R. should remain in therapy. On May 27, 2003, the court received a report from Mr. Claros stating that he had spoken to M.O.R.'s therapist, Pablo Moro, who advised him that appellant was making progress in treatment and recommended that M.O.R. continue treatment for another six months. An "Addendum to the Progress Report for Review of Probation," filed the following day, however, attached a letter dated May 19, 2003 from the therapist in which he stated that M.O.R. had had difficulty attending meetings regularly until January 2003. In addition, the therapist explained that, although appellant had been more open about himself, "it has become apparent that there are serious concerns about his sexual offending problem." The therapist reported that appellant "has openly admitted to a long history of engaging in repeated sexual acts with various female children," but that he "frequently minimizes the seriousness of his condition." He concluded that "this suggests that [M.O.R.] is a Pedophile and that he should be considered a high-risk sexual offender." Mr. Moro also noted that the disorder cannot be "cured," and that therapy could take "a year or longer." On May 30, 2003, the trial court held a second probation review hearing during which the trial court told the probation officer that "it might be appropriate for the Director of Social Services to seek an extension of the probationary period given the information from [M]r. Mor[o]'s report." The probation officer recommended that the status quo continue, and that the parties reconvene to reassess the situation a week before probation was set to expire in July. Although the trial judge expressed skepticism that M.O.R. would make significant enough progress before the current term of probation was set to expire, she recognized that the trial court "can't extend [the probation] on my own motion." When the probation officer reiterated his position, the trial judge asked him for his reasons not to seek the extension. Mr. Claros responded that the therapist viewed M.O.R.'s situation as a "disorder that cannot be cured" - setting the stage, perhaps, for treatment without end - and that appellant had achieved significant success on probation.

On July 3, 2003, twenty days before the one-year probation was to expire, the Office of the Attorney General filed a motion to extend probation by six months, citing D.C. Code § 16-2322 (c), and appending a request for extension signed by probation officer Claros.*fn2

M.O.R. objected to the motion to extend probation, relying on a June 25, 2003 "Sex Offender Assessment" performed by Dwight T. Colley, Psy.D., which revealed that M.O.R. did not meet at least two of the factors for diagnosis as a pedophile, and concluded that M.O.R. "does not appear to present a continuous threat to the community to sexually re-offend." Persuaded by Dr. Colley's assessment, Claros wrote in a progress report dated July 15, 2003 that he "recommended that the petition to extend [M.O.R.'s] probation be rescinded" and that M.O.R.'s probation "be allowed to expire" on July 23.

On July 18, 2003, the parties convened for a third review hearing. During the hearing probation officer Claros reiterated his position that, based upon Dr. Colley's report, he was rescinding his previous request to extend probation and that M.O.R.'s one year probation should be allowed to expire on July 23. Appellant concurred, arguing that pursuant to D.C. Code § 16-2322 (c) the request to extend probation must come from the Director of Social Services and "that's not the situation here." Although the trial judge agreed that the decision was up to the Director of Social Services, she thought that she could review the Director's decision not to seek an extension of probation to determine whether it was "arbitrary, capricious or unsupported by the facts of any particular case." As a result, the trial judge indicated that she would hold a hearing "in the first instance to determine whether or not the rescission of the request to extend the probation is well-founded." She added that "depending on how the first hearing comes out," "a hearing to determine which of the two mental health professionals is right is appropriate." In the interim, the trial court issued an order that "the present probation shall continue."

July 23, 2003, the date that M.O.R.'s one year probation was set to expire, came and went with no action by the trial court. On August 15, 2003, M.O.R. opposed the extension of probation and moved to terminate all further proceedings as required by D.C. Code § 16-2322 (e) and Super. Ct. Juv. R. 32 (f)(4). Having received no ruling from the trial court, M.O.R. filed a petition for writ of mandamus in this court on August 22, 2003. That same day, the trial judge issued an order stating that a hearing would be held on the by-then withdrawn motion to extend probation, M.O.R.'s opposition to the extension of probation, and M.O.R.'s motion to terminate all further proceedings.

The trial court held two days of hearings on August 26 and 27, 2003, during which M.O.R.'s therapist and probation officer Claros testified. Specifically, Mr. Claros noted that initially he had received limited progress reports from the therapist and that the last report, received in February, stated that M.O.R. was a moderate risk to the community. It was not until later that Mr. Claros received a letter from the therapist dated May 19 stating that M.O.R. was a pedophile and a high risk to the community, and the countervailing June 25 sex offender assessment prepared by Dr. Colley stating that M.O.R. was not a pedophile and did not present a continuing threat to the community. After taking both reports into consideration, Mr. Claros explained, he withdrew his request to extend M.O.R.'s probation. When probed by the trial court, he acknowledged that it was difficult to reconcile both reports, and that after further consideration and discussion with his supervisor, he now believed that the trial court should rely on the therapist's report given that he had treated M.O.R. for a longer period of time than Dr. Colley. As a result, probation officer Claros changed his mind again, this time recommending that M.O.R.'s probation should be extended. At the end of Mr. Claros's testimony, the trial court commented that, because the motion to extend probation had been filed by the Office of the Attorney General on behalf of the Director of Social Services, the running of the probationary period had been "tolled" until the trial court ruled on the motion. In addition, the court noted that "based upon the record as it stands now I can make the finding that the extension of the respondent's probationary period is necessary to protect his interests, and additionally is necessary to protect the interests of the community. However, just so that the record is complete, I want to complete the hearing . . . ." The trial court then proceeded to hear testimony from Dr. Colley, who testified, consistent with the views expressed in his assessment of June 25, that M.O.R. was not a pedophile and did not present a threat to the community. At the end of the hearing, the trial judge expressed the view that she could not rule on the motion to extend the probation because"[t]he matter is ...


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