Gault, Application of

• Citation: 407 P.2d 760,99 Ariz. 181
• Decision Date: 10 November 1965
• Docket Number: No. 8549,8549
• Parties: Application of Paul L. GAULT and Marjorie Gault, father and mother of Gerald Francis Gault, a Minor, for a Writ of Habeas Corpus.
• Court: Supreme Court of Arizona

Page 760

407 P.2d 760

99 Ariz. 181

Application of Paul L. GAULT and Marjorie Gault, father and mother of Gerald Francis Gault, a Minor, for a Writ of Habeas Corpus.

No. 8549.

Supreme Court of Arizona, In Banc.

Nov. 10, 1965.

Rehearing Denied Dec. 14, 1965.

Amelia D. Lewis, Sun City, for appellants.

Darrell F. Smith, Atty. Gen., by Philip M. Haggerty and Frank A. Parks, Asst. Attys. Gen., for appellee.

BERNSTEIN, Justice.

The parents of Gerald Francis Gault appeal from an order entered by the Maricopa County Superior Court dismissing a petition for habeas corpus, discharging the writ and remanding the infant involved to the custody of the appropriate authorities in the Arizona Industrial School. Petitioners filed in this court August 3, 1964 seeking a writ of habeas corpus to secure the release of their minor son who had been committed to the Arizona Industrial School June 15, 1964.

On the same day the petition was filed, we ordered that the matter be heard by the Superior Court of Maricopa County, which hearing was held August 17, 1964. At that time, the following facts were elicited. On June 8, 1964 Gerald Gault and a companion, Ronald Lewis, telephoned from the Gault house to a Mrs. C. and made obscene remarks to her. She reported the incident, the call was traced and the boys picked up. They were taken to the detention home and that same evening Mrs. Gault went there and spoke to Gerald who admitted the episode but, according to her testimony at the habeas corpus hearing, said Ronald used the lewd language. Probation Officer Flagg told her why Gerald was there and said there would be a court hearing the next day. Judge McGhee heard the matter in chambers in the presence of Gerald, Ronald and his father, Mrs. Gault, her elder son Louis, and Probation Officers Flagg and Henderson.

There was a conflict in the testimony at the habeas corpus hearing concerning what transpired at the juvenile hearing. Mrs. Gault testified that in response to the Judge's questions at the juvenile hearing, Gerald said he dialed Mrs. C.'s number, asked her if it was such and such a number, said there was a friend of his who wanted to talk to her, then handed the phone to Ronald who made the lewd remarks. Officer Flagg testified that at the juvenile hearing, Gerald admitted making the phone call and using some of the obscene language. Judge McGhee testified that Gerald admitted using some lewd words. The Judge further testified that at the conclusion of the juvenile hearing he told Mrs. Gault and Gerald he would think about the case and let them know his disposition of it. Gerald was returned to his home the 12th and on that day or the preceding day Mrs. Gault received a written note from Officer Flagg which said 'Mrs. Gault, Judge McGhee has set Monday, June 15th, 1964, at 11:00 a. m. as the day and time for further hearings on Gerald's delinquency' signed 'Flagg'.

There was a further conflict in the evidence at the habeas corpus hearing concerning the testimony at the second juvenile hearing. Both Mr. and Mrs. Gault testified that no one accused Gerald of making a lewd telephone call and also said that Gerald admitted nothing. Both Mrs. Gault and Judge McGhee agreed that Mrs. Gault had asked him why Mrs. C. wasn't present to which he replied she didn't have to be. But Judge McGhee said Gerald admitted making some of the lewd remarks, although not the more serious ones. The Judge also testified that he informed the Gaults at the juvenile hearing of the possible consequences if Gerald was found to be delinquent, namely, commitment. Gerald did not testify at the habeas corpus hearing.

The Gaults were not given a copy of the petition or written notice of the hearing date except for Flagg's note concerning the hearing on the 15th. But it is clear that they knew the exact nature of the alleged act of delinquency, including the name of Mrs. C., from the day Gerald was detained and they appeared at both juvenile hearings without complaint of inadequate time.

The parents claim they were not informed of a right to counsel, to subpoena witnesses, to cross examine witnesses, of the right of confrontation, to sworn testimony and to a warning of the possible consequences of a finding of delinquency. Assuming they have these rights, it appears from the record that they knew of their right to counsel, to subpoena and cross examine witnesses, of the right to confront the witnesses against Gerald and the possible consequences of a finding of delinquency. In February 1964, Judge McGhee found Gerald delinquent on a different charge and informed the parents that if Gerald came before the court again and was found to be delinquent he might be committed.

The assignments of error may be grouped under three major headings: (1) that the Juvenile Code, A.R.S. § 8-201 et seq., is unconstitutional because it fails to apprise parents and children of the specific charges, does not require timely, adequate and proper notice of a hearing and does not provide for an appeal, all of which is a deprivation of procedural due process of law; (2) that the juvenile court in fact denied petitioners due process of law by failing to provide proper notice of the charge and the hearing, failing to notify them of certain constitutional rights, by relying upon unsworn hearsay testimony, by failing to make a record and by removing custody of Gerald from his parents without a showing of their incompetency or inability to properly care for him, and finally, (3) a group of miscellaneous errors dealing with the habeas corpus hearing in Maricopa County and the original detention of Gerald.

The parents contend our juvenile code is unconstitutional because it fails to provide for adequate notice of the alleged act of delinquency and fails to provide for proper notice of a juvenile hearing sufficiently in advance to enable the parents and child to decide whether to admit or contest the alegations. It is also argued that the statute is invalid because it does not provide for an appeal procedure. All of these omissions are said to violate procedural due process of law contrary to our state and federal constitutions. U. S. Const. Amendment 14, § 1; Arizona Const. Art. 2, § 4, A.R.S.

We first consider petitioners' complaint that the juvenile code does not provide for an appeal. The question was decided adversely to them in Ginn v. Superior Court, in and for County of Pima, 1 Ariz.App. 455, 404 P.2d 721. We agree with the scholarly opinion of our appellate tribunal and hold that there is no right of appeal from a juvenile court order, nor does the general appeal statute apply, § 12-2101 A.R.S.; 404 P.2d at 724. We note that our Constitution gives to the superior court exclusive original jurisdiction in all proceedings and matters affecting delinquent children, Article 6, § 15.

Section 8-201(6) defines a delinquent child as one who has violated a law, regulation or ordinance; is uncontrolled by his parent because incorrigible, wayward or habitually disobedient; habitually truant from school or home or habitually deports himself so as to injure or endanger the morals or health of himself or others. Section 8-222 provides that the powers of the court may be exercised upon the filing of a petition alleging that the child is delinquent but not the facts upon which the allegation is based. The court may order that a petition be filed if, after a preliminary inquiry, it determines that formal jurisdiction over the child should be acquired. Once jurisdiction attaches the court may compel the production of the child and the attendance of the parents or guardian, Section 8-224. This provision makes it clear that the parent or guardian must be notified of the hearing by personal service if practical. The hearing must be held informally in chambers, Const. Art. 6, § 15; § 8-229, and the judge 'shall make such order for the commitment, custody and care of the child as the child's welfare and the interests of the state require', § 8-231. Once acquired, the jurisdiction of the court over the child continues until he is 21 years of age unless sooner discharged, § 8-236. An adjudication by the court upon the status of the child shall not impose any civil disability, nor shall the child be deemed a criminal. Moreover, the adjudication is not a conviction and evidence given in the juvenile court is inadmissible in any other court, § 8-228. Unless the child is convicted of an offense in the interim, the court must destroy its records 2 years after the termination of probation or discharge from an institution, § 8-238.

We approach this challenge to the juvenile code aware of our duty to give to the language of all statutes a meaning that will render them constitutional if this can reasonably be done. State v. Locks, 91 Ariz. 394, 372 P.2d 724. We will not declare a legislative act unconstitutional unless satisfied beyond a reasonable doubt of its invalidity. State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348. In short, our duty is to reconcile the language of a statute with the constitutional provisions if possible. Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808. Although the constitutional guarantee that no person shall be deprived of life, liberty or property without due process of law, Art. 2, § 4, is not expressly implemented in the juvenile code, we have held a statute valid in other situations though we had to imply into the language a necessary element of the problem. In State v. Krug, 96 Ariz. 225, 393 P.2d 916 we held constitutional the 'perjury by contradictory statements' statute, § 13-562, A.R.S. though it failed to expressly use the word 'willfully', a necessary element of the offense. We said the element was implicit in the statute. Similarly, our constitution guarantees due process of law and the specific implementation of that concept impliedly exists in the juvenile code. We have held that any statutory provision for a hearing means a hearing in...