Correia, In re

• Decision Date: 27 June 1968
• Docket Number: No. 62-A,62-A
• Parties: In re Gerald CORREIA. ppeal.
• Court: Rhode Island Supreme Court

Page 759

243 A.2d 759

104 R.I. 251

In re Gerald CORREIA.

No. 62-Appeal.

Supreme Court of Rhode Island.

June 27, 1968.

[104 R.I. 256] Herbert F. DeSimone, Atty. Gen., Luc R. La Brosse, Special Asst. Atty. Gen., for plaintiff.

Leo Patrick McGowan, Public Defender, William F. Reilly, Asst. Public Defender, for defendant.

OPINION

POWERS, Justice.

The above-named minor, born May 26, 1949, has been intermittently subject to supervision by child welfare services since May 27, 1960. This placement was made by a judge of the then juvenile court ¹ on his finding that the boy was a dependent child within the meaning of G.L.1956, § 14-1-34.

It appears that for the next two years Gerald prospered under such supervision and was returned to his home in April, 1962. It further appears that thereafter while residing at home with his mother the boy presented no community problem until 1964, when on March 31 of that year he was referred to the family court (see footnote 1), by the Providence police on five counts of bicycle theft. In connection with these and several subsequent referrals for alleged larceny, a family court justice on November 16, 1965, ordered Gerald detained at the Rhode Island Training School for Boys for evaluation. On January 3, 1966, he was brought before the family court, ordered released and remanded to the custody of child welfare services. Subsequently the Providence police again referred him to the family court, and on June 21, 1966, a justice of that court found him to be wayward and ordered him detained at the Rhode Island Training School for Boys, pending further order of the court. Some five days later, he left the school without permission and allegedly committed the offense of larceny from the person. The Providence police referral in this instance was accompanied by a petition seeking to have the family court waive its jurisdiction as authorized by G.L.1956, § 14-1-7. This section provides:

'If a child sixteen (16) years of age or older is charged with an offense which would render said person subject to indictment if he were an adult, a judge of the juvenile court after full investigation, may waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult.'

A hearing was held on the petition for waiver at which Gerald was represented by counsel who urged the court to decline to waive jurisdiction. An assistant city solicitor, representing the Providence police department, argued in favor of granting the petition. The family court justice before whom the hearing was held took the matter under advisement, and thereafter certified to this court ² the question of whether the provisions of said § 14-1-7 are repugnant to the due process and equal protection clauses of the state and federal constitutions.

The issue presented for our consideration does not involve a challenge to the right of the general assembly to authorize the family court to waive its jurisdiction over juveniles 16 years of age or older. No such challenge could be validly made for the reason that the general assembly could, in the exercise of its wisdom, withhold the protection of parens patriae from all juveniles exceeding 15 years of age and what the legislature may do absolutely it may do conditionally, provided that the conditions prescribed are applicable in like manner to every child in the class affected. Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869, and Imperial Car Rental Corp. v. Lussier, 97 R.I. 168, 196 A.2d 728.

What is involved is the sufficiency of the standards provided by the general assembly to assure equal protection and due process to those juveniles regarding whom the family court is asked to waive jurisdiction. It is contended by counsel for Gerald that they are to be found, if at all, in the words '* * * after full investigation * * *.' Continuing, counsel urges that this language establishes no standards whatsoever.

It is accepted practice, however, for a reviewing court to give vitality to imprecise criteria by resorting to judicial construction whenever possible. Nocera Bros. Liquor Mart, Inc. v. Liquor Control Hearing Board, 81 R.I. 186, 100 A.2d 652. In Kent v. United States, 383 U.S. 541, 557, 86 S.Ct. 1045, 1055, 16 L.Ed.2d 84, 95, the Supreme Court, passing on a District of Columbia juvenile court statute, the waiver provisions of which are strikingly similar to those contained in § 14-1-7, held that the statutory requirement of a 'full investigation' entitled Kent '* * * to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.'

It is to be noted that the District of Columbia statute reviewed in Kent expressly provides for representation by counsel. Similarly, the right of a juvenile to be represented by counsel in any hearing before a family court justice is expressly provided by § 14-1-30, as amended. Moreover, § 14-1-31 requires a justice of the family court holding any hearing involving a juvenile, to make available the services of the public defender, if, for financial reasons, services of private counsel are not readily available.

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