Huff v. K. P., 9873

• Decision Date: 24 February 1981
• Docket Number: No. 9873,9873
• Citation: 302 N.W.2d 779
• Parties: Ramona HUFF, Petitioner and Appellee, v. K.P., K.P., K.P., Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 779

302 N.W.2d 779

Ramona HUFF, Petitioner and Appellee, v. K.P., K.P., K.P., Respondents and Appellants.

Civ. No. 9873.

Supreme Court of North Dakota.

Feb. 24, 1981.

Kent M. Morrow, Asst. State's Atty., Watford City, for petitioner and appellee.

James L. Taylor, Watford City, for respondents and appellants.

ERICKSTAD, Chief Justice.

K. P., a child, appeals from an order of the Juvenile Court of McKenzie County adjudicating her as a delinquent child for violating Section 12.1-23-04, N.D.C.C. (theft of property lost, mislaid, or delivered by mistake). We reverse the adjudication of delinquency.

Ramona Huff, the petitioner, left a down-filled leather vest in a tourist park after she had removed it while playing basketball. When she returned the following day it was not there. Ramona placed an advertisement in a local paper. In response to this advertisement, Ramona received a call from the mother of a young girl who stated she believed her daughter had one of the decorative pins which were attached to the vest. Ramona identified the pin and it was returned to her. The young girl (hereinafter Joan) said K. P. (hereinafter Karen), both pseudonyms, had had the vest and the other pin. Ramona contacted Karen and the other pin was returned. Karen did not testify.

The following facts come from Ramona's testimony. Karen said that she and Joan picked up the vest while in the tourist park Saturday morning, March 29. Karen first stated Joan had the vest. Upon learning that Ramona had already talked to Joan, Karen said it was left with the woman for whom Karen babysat. This lead was followed up with no results. Karen then told Ramona another young girl had the vest. This also was followed up with no results. Karen then said that she left the vest at the high school after she attended a grade school wrestling match.

Two police officers who questioned Karen testified that Karen told them she had worn the vest to a wrestling tournament and had left the vest in the school's gymnasium. There is no indication in the record that Miranda warnings were given to Karen before she was questioned.

After the vest could not be located, Ramona filed a petition to adjudicate Karen a delinquent for violating Section 12.1-23-04, N.D.C.C., Theft of property lost, mislaid, or delivered by mistake. Karen now asserts the following issues upon appeal:

"I.

"Is there a sufficiency of the evidence for a determination of delinquency?

"II.

"Must a child charged under a felony statute have legal counsel to meet the constitutional requirements of due process?

"III.

"Should the Miranda Warnings have been given to the child (K. P.) and her father (K. P.)?"

I. SCOPE OF REVIEW

This is an appellate review of an action which adjudicated Karen to be delinquent. The scope of review on appeal from juvenile court is stated in In Interest of D.S., 263 N.W.2d 114 (N.D.1978):

"This Court's scope of review under the Uniform Juvenile Court Act, pursuant to § 27-20-56 of the North Dakota Century Code, is equivalent to the former procedure of trial de novo. ... This Court will independently review the evidence presented to the juvenile court at the hearing on the motion to suppress. ... Although the juvenile court's findings of fact are entitled to appreciable weight, this Court is not bound by those findings." (Citations omitted.) 263 N.W.2d at 116.

II. ASSISTANCE OF COUNSEL

Pursuant to Section 27-20-26, N.D.C.C., ¹ of the Juvenile Court Act, Karen was entitled to be represented by counsel at the adjudicatory hearing. This right, however, is capable of being waived. In Interest of D.S., supra, 263 N.W.2d at 119. Whether or not a juvenile has knowingly and voluntarily waived his right to counsel must be made upon an inquiry into the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979).

In Fare, the United States Supreme Court applied the totality of the circumstances test in determining whether or not a juvenile had waived his right to remain silent and his right to an attorney. The Court said:

"This totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits indeed, it mandates inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." 99 S.Ct. at 2572.

Counsel for Karen asserts that a child of eleven years of age can never knowingly, intelligently, and voluntarily waive her right to counsel. He also asserts that Karen's parents were not informed sufficiently about the nature of the proceedings in order to intelligently waive their right to counsel and to adequately represent Karen. Section 27-20-26 requires that counsel must be provided only when a juvenile is not represented by his parents, guardian or custodian. A child is still entitled to be represented by counsel when her parents are representing her and she has not knowingly and voluntarily waived her own right to counsel.

A juvenile, however, may waive this right when she is represented by her parents, guardian, or custodian. In Interest of D.S., supra, 263 N.W.2d at 119. Whether or not the parent, guardian, or custodian is capable of representing the juvenile in the proceedings is one of the facts which must be considered when applying the totality of the circumstances test when determining whether or not the juvenile has knowingly and voluntarily waived her right to counsel. We are not prepared to say that a child is not capable of knowingly and voluntarily waiving counsel and must always be represented by counsel even when represented by her parents.

Therefore, we are persuaded to apply the totality of the circumstances test to determine whether or not Karen and her parents waived her right to be represented by counsel.

The summons served upon Karen and admittedly received by her parents clearly and conspicuously states that the party is entitled to counsel. In fact, after receiving the summons, Karen's parents did contact an attorney who secured a continuance of the hearing to a later date. Subsequently, Karen and her parents appeared in court without an attorney. The court again clearly advised Karen and her parents of their right to an attorney. After this, the court asked each of them, Karen and her parents, whether or not they wished to proceed without an attorney. ² Each answered affirmatively. The court also questioned Karen's father about the attorney who had obtained the continuance. ³

A review of the facts shows that there is no assertion that any of the parties are physically or mentally impaired. They sought the advice of an attorney and subsequently determined to proceed without an attorney. They knew of the possibility that Karen could be placed in the custody of the officials of the State Industrial School. Karen, her father, and her mother were informed of their right to an attorney and affirmatively waived that right.

A factor weighing against a knowing and voluntary waiver is that Karen was only 11 years old. The facts show, however, that Karen's father did act as an advocate for his daughter and attempted to represent her best interests, albeit rather ineffectively. Taking all of these facts into consideration, we find that Karen and her parents did knowingly and voluntarily waive their right to be represented by counsel.

III. RIGHT TO MIRANDA WARNINGS

Counsel for Karen asserts that Karen should have been informed of her rights when she was questioned by police concerning the incident as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State contends that Karen was not subjected to a custodial interrogation and, regardless, none of her statements were introduced into evidence. We disagree on both issues.

Karen was questioned at the courthouse in the presence of her father by two police officers. As Karen was subjected to a custodial interrogation which had focused upon her, she was entitled to be informed of her rights. In Interest of D.S., supra, 263 N.W.2d at 119; Interest of R.W.B., 241 N.W.2d 546, 556 (N.D.1976); State v. Fields, 294 N.W.2d 404, 406-09 (N.D.1980).

The transcript indicates that the officers questioned Karen regarding the vest and received answers indicating Karen wore the vest and had left it at the wrestling tournament. Karen's statements concerning her control and disposal of the vest were elicited in violation of her Miranda rights.

In Fare v. Michael C., supra, 99 S.Ct. at 2568, the United States Supreme Court said:

"The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. 384 U.S., at 473, 86 S.Ct., at 1627."

Karen's statements were elicited by the police without giving Miranda warnings. No objection, however, was made. As we said in State v. Rindy, 299 N.W.2d 783 (N.D.1980), "In the absence of obvious error, a sine qua non for review by this court is 'that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it.' " 299 N.W.2d at 785.

Section 27-20-56, N.D.C.C., states that the appeal shall be heard upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. We will not...