F. S., Matter of

• Decision Date: 09 November 1978
• Docket Number: No. 4015,4015
• Citation: 586 P.2d 607
• Parties: In the Matter of F. S., a minor.
• Court: Alaska Supreme Court

Page 607

586 P.2d 607

In the Matter of F. S., a minor.

No. 4015.

Supreme Court of Alaska.

Nov. 9, 1978.

Geoffrey G. Currall, Dist. Atty., Ketchikan, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner State of Alaska.

Harold M. Brown, Ziegler, Cloudy, Smith, King & Brown, Ketchikan, for respondent.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

BOOCHEVER, Chief Justice.

This case presents difficult questions concerning the waiver of juvenile jurisdiction. A petition charging F.S., a minor, with first degree murder was filed on February 1, 1978. Thereafter, the state filed a motion for waiver of juvenile jurisdiction pursuant to AS 47.10.060(a) ¹ and Children's Rule 3. ² On May 1, 1978, Judge Stewart denied the state's motion, concluding that F.S. was amenable to treatment. The state then filed a petition for review. On June 16, 1978, we granted the petition for review ³ and issued an order reversing the superior court's order denying the motion for waiver of juvenile jurisdiction. At that time, we stated that an opinion would follow.

The statement of facts, as alleged in the state's petition for review, is as follows. On January 31, 1978, G.G., a nine-year-old female, was walking home from school on a trail through the woods. F.S., a seventeen-year-old male, was also walking from school on the trail. F.S. grabbed G.G., holding his hand over her mouth to stifle her screams, and carried her deeper into the woods. He intended to sexually molest her. When she pleaded with him to let her go, he released her momentarily.

Then, his "mind" told him to kill her. He again grabbed her. G.G. struggled, but only succeeded in scratching him. According to F.S., although it seemed to take hours to kill her, he believed that it really took only about twenty minutes.

He then removed her clothing and tried to penetrate her vagina, but could not. He masturbated and ejaculated on her nude body.

Next, he searched her bag and found a tennis ball. He shoved it between her legs in the genital area and left. Her body was found later that night. The next day, F.S. admitted killing G.G.

The state filed a petition charging F.S. with first degree murder and filed a motion for waiver of juvenile jurisdiction. Following a hearing on the motion, Judge Stewart denied it. The state filed a petition for review asking this court to reverse Judge Stewart's ruling.

In its petition for review, the state raises several specifications of error; namely:

1) That the court erred in using age twenty to determine the probability of rehabilitation,

2) That the court improperly considered the minor's consent to an additional one-year period of confinement,

3) That the court applied an improper burden of proof on the state,

4) That the court erred in excluding evidence that F.S. had committed previous sexual assaults, and

5) That the court abused its discretion in denying the state's motion for waiver of juvenile jurisdiction. We will address each of these issues separately.

I. THE PROPER AGE FOR DETERMINING AMENABILITY TO TREATMENT

The superior court used the age of twenty to determine whether F.S. was amenable to treatment as a juvenile. The state argues that the court should have used age nineteen as the determinative age. The state's argument is premised upon what the state considers is a conflict between AS 47.10.080(b)(1) and AS 47.10.060(d). We find no conflict between the two provisions and hold that age twenty is the determinative age.

AS 47.10.060(d) provides in pertinent part:

(d) A minor is unamenable to treatment under this chapter if he probably cannot be rehabilitated by treatment under this chapter before he reaches 20 years of age.

The statute is clear on its face that age twenty is the proper age for determining whether a minor is amenable to treatment.

Notwithstanding the clear language of the statute, the state contends that because AS 47.10.080(b)(1) ⁴ limits the court's jurisdiction to commit the minor to the Department of Health and Social Services, at least initially, to age nineteen, age nineteen is the touchstone in determining amenability. In P. H. v. State, 504 P.2d 837, 846 n.34 (Alaska 1972), we noted a conflict between the former AS 47.10.060(d) and AS 47.10.080(b)(1). At the time of the P. H. decision, AS 47.10.060 provided "(a) minor is unamenable to treatment . . . if he (probably) cannot be rehabilitated . . . (before) he reaches 21 years of age." Former AS 47.10.080(b)(1) provided that the court could only order commitment until age nineteen with an additional one-year period if the department petitions the court for an extension of the period of supervision. In P. H., we held that AS 47.10.080(b)(1) was controlling over AS 47.10.060(d) because AS 47.10.080(b)(1) reflected "a 1970 legislative decision intended to reduce the age of majority in a great number of matters concerning minors . . . (while) AS 47.10.060(d) . . . was not similarly changed apparently through oversight." ⁵ Following our decision in P. H., the legislature amended both statutes in 1977. The recent amendments show that it is the legislature's intent that age twenty is the age to be used in determining the amenability issue. The former inconsistency between the two statutes has been eliminated in that AS 47.10.060(d) provides that the determinative age is twenty and AS 47.10.080(b)(1) provides that the maximum limitation of confinement of minors is twenty.

Furthermore, in our recent opinion, In re J. H. B., Jr., 578 P.2d 146, 149 (Alaska 1978), we relied upon amended AS 47.10.060(d) as the source for determining the issue of unamenability. Thus, we no longer followed our former cases ⁶ which used nineteen as the determinative age under the earlier statutes. The superior court did not err in using age twenty as the determinative age.

II. THE MINOR'S CONSENT

In determining the amenability of F.S., the court considered the consent of F.S., endorsed by his counsel and his guardian, to an additional one-year period of supervision past age nineteen. AS 47.10.080(b)(1) provides in pertinent part:

. . . the department (of health and social services) may petition for and the court may grant in a hearing . . . an additional one-year period of supervision past age 19 if continued supervision is in the best interests of the person and the person consents to it; . . .

The state contends that the lower court erred in considering this purported consent because: (1) the minor could withdraw his consent and (2) even assuming the minor's consent could not be withdrawn, the statute requires that the department petition the court and that additional commitment be in the minor's best interests before the court has jurisdiction to order the additional one-year period.

This is an issue of first impression in Alaska. The Washington Supreme Court, in In re Harbert, 85 Wash.2d 719, 538 P.2d 1212 (1975), considered a similar issue. A Washington statute ⁷ permits the juvenile court to extend its jurisdiction beyond the usual age of eighteen to twenty-one in certain cases when the juvenile gives his consent. At the time of the amenability hearing, the minor, age seventeen, gave written consent for such an extension. The Harbert court held:

Such consent is of no value. Because of his minority, appellant could repudiate it upon reaching majority. Furthermore, jurisdiction cannot be conferred by consent or agreement.

538 P.2d at 1216. We find the reasoning of the Harbert court persuasive as to the consent of F.S. to continued supervision by the Department of Health and Social Services. Furthermore, AS 47.10.080(b)(1) requires that the department petition for an additional one-year period of supervision and that continued supervision be in the best interests of the minor before the court may order an additional year. Thus, the minor's prospective consent is not a material factor unless the other two conditions of the statute are fulfilled.

The statute contemplates that the decision to extend the period of supervision be made after the initial dispositional hearing. To give effect to advance consent would thus be contrary to the apparent intent of the legislature. We believe that the superior court erred in the weight it gave the consent of F.S. to an additional year of supervision.

III. THE STANDARD OF PROOF

Judge Stewart stated in his memorandum decision:

The appropriate standard of proof appears to be that the state must show by clear and convincing evidence the probability that the minor is unamenable to treatment before reaching the age of 20.

The state contends that the proper standard of proof is the "preponderance of the evidence" standard. We agree.

This is also a matter of first impression. Our previous decisions have indicated, however, that the burden of persuasion on the state is not light. For instance, in P. H. v. State, 504 P.2d at 845, we stated:

The statutory framework for dealing with child offenders contemplates that non-criminal treatment is to be the rule and adult criminal disposition the exception.

Nevertheless, our review of the relevant authorities and the statutory language convinces us that the proper standard is the "preponderance of the evidence" standard. Such a standard will still insure that criminal disposition is the exception.

Cases examined as a result of our independent research are uniform in holding that the proper standard is the preponderance of evidence. ⁸ F.S. cites no contrary authority. The courts have given three reasons for applying this standard. First, a remand proceeding is not criminal in nature. Second, it is not adjudicatory, but dispositional. Third, the standard of proof generally in juvenile proceedings is the preponderance of competent evidence except in the adjudicative phase. Moreover, the remand proceeding does not result in any determination of guilt or innocence or in any confinement or punishment. We find this reasoning persuasive.

The wording of...