In Interest of P. W. N.
| Decision Date | 23 January 1981 |
| Docket Number | No. 9828,9828 |
| Citation | 301 N.W.2d 636 |
| Parties | In the Interest of P. W. N., a child. William H. BLORE, Petitioner and Appellee, v. C. N. and L. N. and P. W. N., Respondents and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Michel W. Stefonowicz, Asst. State's Atty., Crosby, and Jeffrey J. Peterson, State's Atty., argued, Bowbells, for petitioner and appellee.
Bosard, McCutcheon, Holum & Rau, Minot, for respondents and appellants; argued by Robert S. Rau, Minot.
This is an appeal by P.W.N., a child, from an order issued by the juvenile court of Ward County transferring jurisdiction of P.W.N. to the county court in and for Burke County having jurisdiction over the offense charged for prosecution.
In the early morning of 23 May 1980 P.W.N. allegedly shot Burke County sheriff Russell McIntyre. At the time of the shooting P.W.N. was 16 years of age. P.W.N. was taken into custody at approximately 10:00 a. m. on 23 May 1980 and an informal detention hearing was held on the same day resulting in an order for the further detention of P.W.N.
On 29 May 1980 a petition was filed in juvenile court which provided in part:
"That during the period from May 11, 1980 to May 23, 1980, said child ran away from his parental home and the said child committed the offenses of numerous burglaries, thefts, unlawful possession of firearms and attempted murder as well as the unruly act of runnaway away (sic) and refusing to obey reasonable and lawful commands of his parents."
On the same day the juvenile supervisor of Ward County filed a request for transfer of jurisdiction from juvenile court to an appropriate court having criminal jurisdiction over the offense charged.
The juvenile court set a transfer for 4 June 1980. The transfer hearing was delayed until 13 June 1980 through a stipulation of counsel and court order to permit an evaluation of P.W.N. at the North Dakota State Hospital in Jamestown, North Dakota.
P.W.N., his parents, and his court-appointed attorney appeared at the transfer hearing on 13 June 1980 and opposed the transfer of jurisdiction. After the transfer hearing and a separate hearing on a motion by P.W.N. to dismiss the petition based on allegations of statutory irregularities in the transfer proceedings, the juvenile court issued an order, dated 3 July 1980, which terminated juvenile court jurisdiction and transferred jurisdiction to the county court in and for Burke County having original jurisdiction over the offense charged. P.W.N. appealed from that order to this Court pursuant to § 27-20-56, North Dakota Century Code. 1
P.W.N. raises several interrelated issues on appeal. P.W.N. asserts that a transfer hearing is the first part of the court proceedings in the adjudicatory phase of juvenile proceedings and is not a dispositional proceeding. Therefore, P.W.N. asserts that the rules of evidence apply to transfer hearings 2 and that hearsay evidence was improperly received and considered by the juvenile court in making its decision to transfer jurisdiction from juvenile court to adult court. A closely related question deals with whether or not P.W.N. was denied his constitutional and statutory rights to confront and cross-examine witnesses against him because of the use of the hearsay evidence. 3
The Uniform Juvenile Court Act 4 in some sections refers to dispositions and adjudications. See §§ 27-20-30; 27-20-31; 27-20-32; 27-20-33; 27-20-35; 27-20-36; 27-20-39; and 27-20-40. We note that in some instances we have categorized juvenile proceedings into adjudicatory and dispositional phases. Interest of T.M.M., 267 N.W.2d 807 (N.D.1978); Interest of R.D.S., 259 N.W.2d 636 (N.D.1977). However, these cases and statutes do not deal with transfer hearings, and therefore are unpersuasive on the issue of whether or not a transfer hearing is adjudicatory or dispositional. Because of the unique aspects and requirements of a transfer hearing, we believe any such categorization is not warranted.
Transfer hearings provided for in § 27-20-34, NDCC, permit transfer to adult court for prosecution if:
"b. (1) The child was sixteen or more years of age at the time of the alleged conduct;
(2) A hearing on whether the transfer should be made is held in conformity with sections 27-20-24, 27-20-26, and 27-20-27;
(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing; and
(4) The court finds that there are reasonable grounds to believe that:
(a) The child committed the delinquent act alleged;
(b) The child is not amenable to treatment or rehabilitation as a juvenile through available facilities;
(c) The child is not treatable in an institution for the mentally retarded or mentally ill; and
(d) The interests of the community require that the child be placed under legal restraint or discipline."
Pursuant to this section, a transfer hearing must be "in conformity with sections 27-20-24, 27-20-26, and 27-20-27." Section 27-20-24, NDCC, requires the hearing to be "in an informal but orderly manner" and, upon request of the court, the state's attorney "shall present the evidence in support of any allegations of the petition not admitted." Section 27-20-26 insures the right to counsel. Section 27-20-27 deals with other basic rights and provides in subdivision (1) as follows:
The United States Supreme Court, in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), addressed the requirement of a transfer hearing when it stated:
"We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment." Kent v. United States, 383 U.S. at 562, 86 S.Ct. at 1057, 16 L.Ed.2d at 97-98.
We recently dealt with transfer hearings and the right to cross-examine witnesses in In Interest of K.G., 295 N.W.2d 323 (N.D.1980). In that case the only evidence on the record relating to whether or not the child committed the delinquent act alleged was "remarks of the state's attorney, repeating statements made to him during a state's attorney's inquest and investigation." We held that:
"... when a matter is disputed, the (transfer) hearing requires that evidence supporting reasonable grounds to believe that the child committed the delinquent act must be produced by witnesses available for cross-examination." In Interest of K.G., 295 N.W.2d at 326.
We also noted that the right of confrontation and cross-examination in § 27-20-27(1) lacked congruity with the requirement of § 27-20-29(4) that the juvenile court receive and consider "written reports ... not otherwise competent," at some stages of hearings involving delinquency proceedings and the requirement for this Court on appeals under § 27-20-56(1), to consider the "files, records, and minutes." However, the use of reports at transfer hearings was not before us then, and we declined to comment on their admissibility. 5
We believe that the "essentials of due process and fair treatment" required at transfer hearings by Kent v. United States, supra, and the requirements of § 27-20-27(1), NDCC, necessitate that evidence establishing reasonable grounds to believe that the child committed the delinquent act must be produced by witnesses available for cross-examination. In Interest of K.G., supra. However, we also believe that in order for the State to prove the other three requirements of § 27-20-34(1)(b)(4), hearsay, in the form of reports, is permissible out of practical necessity.
The information contained in these reports is highly probative of issues before the juvenile court in a transfer hearing. The information contained in these reports may deal with the history of juvenile court involvement and episodes of treatment of the child and, in some instances, may be hearsay. This information is necessary in order for the juvenile court to have a complete picture regarding the important issues before it. To require live witnesses to convey first-hand knowledge of these incidents would sometimes be highly impractical, especially, as here, when the incidents occurred in another jurisdiction. To require the juvenile court to make its decision regarding transfer without these reports would make the juvenile court operate in a vacuum, which is highly undesirable.
We also believe the commissioner's notes to § 34 of the Uniform Juvenile Court Act (which is the counterpart to § 27-20-34, NDCC), imply that the transfer hearing contemplates use of evidence which would be inadmissible in a hearing on the merits of a petition for delinquency. The comment to subsection (e) of § 34 provides as follows:
Although this comment is not binding on us, it is highly persuasive and supports the use of hearsay reports at a transfer hearing.
We conclude that witnesses whose testimony will be used to establish "reasonable grounds to believe the child committed the delinquent act" must be made available for confrontation and cross-examination in order to satisfy statutory requirements. However, hearsay evidence in the form of reports may be used to establish reasonable grounds to believe that the child is not amenable to treatment or rehabilitation as a juvenile through available facilities; that the child is not treatable in an institution for...
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