Ferris, In Interest of

• Decision Date: 09 April 1977
• Docket Number: No. 48379,48379
• Citation: 563 P.2d 1046,222 Kan. 104
• Parties: In the Interest of Michael A. FERRIS.
• Court: Kansas Supreme Court

Page 1046

563 P.2d 1046

222 Kan. 104

In the Interest of Michael A. FERRIS.

No. 48379.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. In determining whether or not a child is a fit and proper subject to be dealt with under the Kansas Juvenile Code, the juvenile court shall consider each of the following factors: (1) Whether the seriousness of the alleged offense is so great that the protection of the community requires waiver; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) the maturity of the child as determined by consideration of his or her home, environment, emotional attitude and pattern of living; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the record and previous history of the child; (6) whether the child would be amenable to the care, treatment and training program available through the facilities of the juvenile court; and (7) whether the interests of the child or of the community would be better served by the juvenile court waiving its jurisdiction over the child. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue of waiver of juvenile court jurisdiction. Written reports and other materials relating to the child's mental, physical, educational and social history may also be considered by the court. (Following K.S.A.1975 Supp. 38-808(b).)

2. K.S.A.1975 Supp. 38-808(b) does not prescribe a per se rule regarding a juvenile's alleged mental illness and waiver of juvenile court jurisdiction. Mental illness is but one of the factors to be considered in making the determination of waiver.

3. Where a juvenile is alleged to be mentally ill, the juvenile court may retain jurisdiction. The juvenile court may then 'commit such child to the state secretary of social and rehabilitation services' who in turn 'may place the child in any institution operated by the director of mental health and retardation services.' (Following K.S.A.1976 Supp. 38-826(a)(6) and K.S.A.1976 Supp. 38-826(d).)

4. The juvenile court is not required to retain jurisdiction because of the alleged mental illness of the juvenile. A juvenile alleged to be psychotic or seriously mentally ill can raise the defense of insanity at his trial as an adult.

5. In an appeal from the trial court's order declaring the appellant not amenable to the care, treatment and training program available through the facilities of the juvenile court under K.S.A.1975 Supp. 38-808(b), the record is examined, and as is more fully stated in the opinion, it is held: (a) substantial competent evidence supports the detailed findings of the trial court that the appellant is not a fit and proper subject to be dealt with under the Kansas Juvenile Code; (b) no facility available to the juvenile court was shown to be adequate for the rehabilitation of the appellant in view of the appellant's age, history, violent acts and long-term prognosis for a cure; (c) evidence of the alleged mental illness on the part of the appellant did not require the juvenile court to retain jurisdiction; and (d) the trial court did not err in rufusing to permit testimony as to civil commitment.

Kenneth M. Carpenter, Topeka, argued the cause, and was on the brief for appellant.

Frank Yeoman, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal from the trial court's order declaring Michael Ferris, age seventeen, not amenable to the care, treatment and training program available through the facilities of the juvenile court (K.S.A.1975 Supp. 38-808(b) (now K.S.A.1976 Supp. 38-808(b))), subjecting him to prosecution as an adult for two counts of aggravated battery against a law enforcement officer (K.S.A. 21-3415), one count of felony theft (K.S.A. 21-3701), one count of attempted aggravated escape (K.S.A. 21-3301 and K.S.A. 21-3810) and one count of obstructing legal process (felony) (K.S.A. 21-3808).

The appellant raises various constitutional and evidentiary arguments concerning his certification as an adult. The appellant also raises arguments on the admission of evidence concerning civil commitment in a hearing to determine waiver of juvenile jurisdiction. The appellant argues mental illness is a sufficient basis for retaining jurisdiction by the juvenile court, where the juvenile can be dealt with under the civil mental illness statutes.

Michael Ferris was born March 7, 1958. His family consists of his mother, father and eight older brothers, some of whom are actually half-siblings. Michael lives with his parents in his hometown of Scranton in Osage County, Kansas.

Michael has run afoul of the law for many years. He began breaking and entering neighbor's homes for liquor to drink when he was nine years old. He has used valium, barbiturates and LSD since he was thirteen.

On March 27, 1972, Michael, then thirteen years of age, was adjudicated a delinquent child in the juvenile court of Osage County for two counts of burglary. (K.S.A. 21-3715.) As a result, Michael was committed to the Atchison Youth Rehabilitation Center, where he twice ran away from his group for short periods of time. He was subsequently paroled to his parents subject to supervision by the Osage County Social Welfare Department. Two years after adjudication he was discharged. Shortly thereafter, on April 29, 1974, Michael was diverted from prosecution and further court process in regard to five counts of felony theft. There is also evidence of Michael spending some time at the Kansas Children's Receiving Hospital following an incident in which he threatened a school teacher in Scranton, Kansas, with a pair of brass knuckles.

Michael's conversations with Charles Pachella, a psychologist for the Shawnee County Court Services, also revealed other problems which did not involve the juvenile authorities. Michael spoke of taking an ax to his car, wrecking a friend's car so that they would collect the insurance, beating his stster-in-law and pointing a loaded pistol at his sister-in-law and threatening to shoot her.

There is substantial evidence that Michael has a drug problem. Doctor James B. Horne, a phychiatrist and clinical director of the Shawnee County Court Services, testified as follows:

'. . . He has used valium, barbiturates and LSD since he was 13. He has the most thoroughgoing drug orientation of any patient I have ever examined. He states that he only feels normal when he is on drugs and he feels strange when he is not. His whole orientation is toward the maintenance of a high on drugs. . . . '

When under the influence of drugs, Michael becomes violent, destroys property and threatens others. In fact Dr. Horne characterized Michael as psychotic when on drugs, but not otherwise.

Dr. Horne further believes Michael is suffering from an acute organic brain syndrome, an impairment of brain functioning due to dead brain cells possibly caused by the tremendous doses of sedatives and alcohol over an unusually prolonged period of time. Psychological testing reveals Michael possesses an I.Q. of 84 and is classified as dull normal.

Relevant to the case at bar, the state alleged that on August 16, 1975, Michael, then seventeen years and five months, committed the five acts of delinquency enumerated above in Shawnee County, Kansas. All of the offenses alleged would be felonies if committed by adults.

It appears Michael was a passenger in a vehicle with one other juvenile and one adult which was traveling in violation of the traffic code. Although unknown to two Topeka police officers pursuing them at that time, the vehicle had been involved as the 'get away vehicle' in a purse snatching incident earlier. After being apprehended, Michael attempted to escape from custody. Although handcuffed, Michael was able to secure the gun of one of the officers which he fired several times, striking both officers. The record reveals Michael was under the influence of drugs at this time.

On August 18, 1975, the state initiated proceedings asking the juvenile court of Shawnee County to waive its original and exclusive jurisdiction and to direct that Michael be prosecuted as an adult. A guardian ad litem was appointed and evidence heard. After hearing the evidence, the juvenile court of Shawnee County waived its jurisdiction and directed that Michael be prosecuted as an adult. An appeal was taken from that decision to the district court of Shawnee County which conducted an extensive de novo hearing on December 19, 1975.

In the district court, Dr. Horne, who twice examined Michael, testified that Michael was unaware of other people's feelings and had no inhibition to hurting them. He further testified:

'. . . He has very little self control. He has not practiced at all to develop any kind of self control, therefore, he responds to impulses almost immediately. Further, his total orientation is to staying high on drugs; and with him drugs are not really sedatives but actually facilitate impulsive action. I would have to conclude that he is very dangerous . . .' (Emphasis added.)

Dr. Horne said it might take three to five years or more to cure Michael. Even then the chances for successful treatment would be 50/50.

Dr. Horne, who was familiar with various juvenile programs, said the AWL Unit at the Topeka State Hospital was the likeliest to provide the necessary treatment although it was a short-term program. Dr. Horne said that the Youth Center at Topeka (formerly the Boys' Industrial School) would be inappropriate because of Michael's age and the Larned facilities would not serve Michael's needs. Dr. Horne concluded:

'. . . If you ask me is there a facility in the state that is...