In Interest of A. D. L.

• Decision Date: 23 January 1981
• Docket Number: No. 9831,9831
• Citation: 301 N.W.2d 380
• Parties: In the Interest of A. D. L., a Child. Donald SIEFERT, Petitioner/Appellee, v. A. D. L., Respondent/Appellant, A. W., E. L., Director, State Youth Authority, Superintendent, State Industrial School, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 380

301 N.W.2d 380

In the Interest of A. D. L., a Child.

Donald SIEFERT, Petitioner/Appellee, v. A. D. L., Respondent/Appellant,

A. W., E. L., Director, State Youth Authority,

Superintendent, State Industrial School,

Respondents.

Civ. No. 9831.

Supreme Court of North Dakota.

Jan. 23, 1981.

Thomas Tuntland, State's Atty., Mandan, for petitioner/appellee.

Benjamin C. Pulkrabek, Mandan, for respondent/appellant.

PAULSON, Justice.

A.D.L. appeals from an order issued by the Juvenile Court of Morton County on August 4, 1980, which transferred jurisdiction over A.D.L. from the Juvenile Court to the District Court of Morton County. Waiver of jurisdiction by a juvenile court is the process whereby the court relinquishes its jurisdiction over a child and transfers the case to a court of criminal jurisdiction for prosecution as in the case of an adult. We reverse.

A.D.L. was admitted to the North Dakota Industrial School at Mandan on September 12, 1978, under a placement order issued by the State Youth Authority. A.D.L. responded favorably to the treatment and counseling he received at the Industrial School and plans were made for A.D.L. to enter the Job Corps program located at Box Elder, South Dakota. When A.D.L. was released with the understanding that he participate in the Job Corps program, he, instead, returned home and, after he was apprehended, he was readmitted to the Industrial School. At 1:30 a. m. on June 22, 1980, A.D.L. and another juvenile, N.C. left the group home of the State Industrial School at Mandan. A.D.L. and N.C. obtained a package of beer from the back of a pickup truck and consumed the beer behind the Mandan Community Center. A.D.L. and N.C. then sought to obtain more beer. N.C. had been employed at the Mandan Golf Pro Shop for one week and knew that the Pro Shop sold beer. In the early morning hours of June 22, at 6:00 a. m., A.D.L. and N.C. broke a door and window at the Pro Shop and stole three cases of beer. Shortly afterward, at 6:45 a. m., Kenneth Miller, an employee at the Pro Shop, observed A.D.L. and N.C. running out of the Pro Shop carrying beer and then hiding in some bushes located near the adjacent golf course. Miller observed the broken door and window at the Pro Shop and proceeded to notify the Mandan Police Department of the burglary. A.D.L. and N.C. were apprehended at 7:30 a. m. less than an hour later, in the vicinity of the nearby Heart River by officers of the Mandan Police Department.

On July 10, 1980, Donald Siefert, a detective with the Mandan Police Department, submitted a petition to the Juvenile Court of Morton County in order to transfer jurisdiction over A.D.L. from the Juvenile Court to the District Court of Morton County. On July 31, 1980, a hearing was held on the petition and on August 4, 1980, the Juvenile Court of Morton County issued an order which transferred jurisdiction over A.D.L. to the District Court of Morton County. At the July 31, 1980, hearing, several employees of the State Industrial School testified as to the feasibility of continued treatment for A.D.L. at the Industrial School. Dr. Duane L. Lawrence, the superintendent of the North Dakota Industrial School, testified that A.D.L. had adjusted well to the environment at the Industrial School and that not all of the Industrial School's resources had been utilized in respect to A.D.L.'s treatment there. Buck Nelson, a receiving and diagnostic coordinator at the Industrial School, testified that in his opinion no course of successful treatment for A.D.L. was available at the Industrial School; however, Nelson had had no direct contact with A.D.L. for almost one year. Burton Daly, a counselor, and Harvey Gangle a group home director and counselor, both had served as counselors for A.D.L. and both testified at the hearing. It was Gangle's opinion that A.D.L. had a serious drinking problem. The staff at the Industrial School had not conducted meetings as to the prospects for further treatment of A.D.L. at the Industrial School; however, Nelson and Daly testified that in their estimation the Industrial School could provide little additional assistance to A.D.L. on the basis of existing treatment alternatives at the Industrial School. Nevertheless, both Nelson and Daly testified that not all of the School's treatment alternatives had been used in A.D.L.'s treatment.

A.D.L. raises three issues for our consideration:

1. Whether or not the juvenile court committed error when it found that A.D.L. was not treatable in an institution for the mentally retarded or mentally ill.

2. What is the burden of persuasion required at a transfer hearing when § 28-20-34(1)(b)(4), N.D.C.C., states "reasonable grounds to believe"?

3. Whether or not the juvenile court committed error when it found that A.D.L. was not amenable to treatment.

I

The first issue concerns whether or not the juvenile court committed error when it found that A.D.L. was not treatable in an institution for the mentally retarded or mentally ill under § 27-20-34(1)(b)(4)(c), N.D.C.C., which authorizes transfer of jurisdiction where "The child is not treatable in an institution for the mentally retarded or mentally ill." Section 27-20-35, N.D.C.C., states that if the evidence presented at a juvenile dispositional hearing indicates that a child suffers from mental retardation or mental illness, the court shall commit the child for a period of not to exceed sixty days to an appropriate institution, agency, or individual for study and report on the child's mental condition before the court makes a disposition therein. At the waiver hearing, it was established that A.D.L. was below average in intelligence, but was not retarded. A counselor for A.D.L. at the Industrial School and a group home director there, Harvey Gangle, testified that A.D.L. had a problem with alcohol. A.D.L. had been evaluated at the Memorial Mental Health Center in Mandan and he was diagnosed as having an alcohol problem. A.D.L. contends that the juvenile court should have either required a copy of the report from the Mental Health Center or committed A.D.L. for a period of not to exceed sixty days to an appropriate institution, agency, or individual for study and report in order to inform the court of A.D.L.'s condition. In addition, A.D.L. contends that the juvenile court would be required to make a determination as to whether or not A.D.L. is committable under § 27-20-35, N.D.C.C.; and also whether A.D.L. is treatable for a mental illness under § 27-20-34, N.D.C.C. Because the requirements were not met, A.D.L. asserts that the waiver of jurisdiction order issued by the juvenile court is invalid.

The premise upon which A.D.L. bases his contentions is that his alcohol problem can be equated to a mental illness. This premise is fundamentally incorrect. Chapter 27-20, N.D.C.C., does not contain a definition of the term "mentally ill". However, § 25-03.1-02(10), N.D.C.C., provides:

"25-03.1-02. Definitions. In this chapter, unless the context or subject matter requires otherwise:

"10. 'Mentally ill person' means an individual with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations. 'Mentally ill person' does not include a mentally retarded or mentally deficient person of significantly subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. Drug addiction and alcoholism do not per se constitute mental illness, although persons suffering from these conditions may also be suffering from mental illness."

This definition is contained in Chapter 25-03.1, N.D.C.C., which deals with commitment procedures. Under the definition of the term "mentally ill person", alcoholism does not per se constitute mental illness. We believe that this definition applies to § 27-20-34, N.D.C.C., which does not define the term "mental illness". Thus, A.D.L. does not come within the provisions of § 27-20-34(1)(b)(4)(c), N.D.C.C., and the waiver of jurisdiction order issued by the district court was proper in this respect. See In Interest of K. G., 295 N.W.2d 323 (N.D.1980). See also C. H. v. State, 148 Ga.App. 609, 252 S.E.2d 22 (1979).

II

The second issue raised by A.D.L. concerns what burden of persuasion the State must meet under § 27-20-34(1)(b)(4), N.D.C.C., when the court must find "reasonable grounds to believe". A.D.L. asserts that the words "reasonable grounds to believe" are capable of three varying standards of persuasion. In civil cases a mere preponderance of the evidence is necessary to sustain a burden of persuasion. In criminal cases the burden of persuasion requires the elimination of all probabilities other than guilt so that no reasonable doubt remains. In certain cases, a third and intermediary standard referred to as "clear and convincing" is used. In juvenile delinquency proceedings, proof of guilt must be shown to be proof beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court stated that due process requires that a juvenile is entitled to a hearing on the question of waiver sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness. In addition, the Supreme Court held in Kent, supra, that the juvenile is entitled to representation by counsel at the hearing; access to the juvenile's social records upon request of the juvenile's attorney; and a statement of reasons in support of the waiver order if jurisdiction is waived.

Section 27-20-34(1)(a) and (b), N.D.C.C., sets forth standards for waiver of juvenile court jurisdiction. The standard of "reasonable grounds" has been compared to a showing of probable cause. ¹ In Draper v. United States, 358 U.S. 307,...