IN RE AARON L.

• Decision Date: 25 February 2000
• Docket Number: No. 20,254.,20,254.
• Parties: In the Matter of AARON L., Child-Appellant.
• Court: Court of Appeals of New Mexico

996 P.2d 431

128 N.M. 641

In the Matter of AARON L., Child-Appellant.

No. 20,254.

Court of Appeals of New Mexico.

February 25, 2000.

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Lisabeth L. Occhialino, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

PICKARD, Chief Judge.

{1} Child appeals the decision of the children's court committing him to the New Mexico Boys' School for an indeterminate period not to exceed two years after he admitted violating the terms of his probation at a probation revocation hearing. On appeal, Child argues the trial court's decision should be reversed on two grounds: (1) the trial court violated his fundamental right to due process at the revocation hearing by failing to follow the mandatory procedures set forth in the Children's Code and (2) his trial attorney provided ineffective assistance of counsel by not objecting to the trial court's failure to follow the procedures set forth in the Children's Code. Child argues that if we remand his case, a different judge should be assigned to it because the judge's actions demonstrate bias against Child.

{2} The State claims we lack jurisdiction to review the issues presented by Child's appeal because he failed to preserve them at the trial court level. On the merits, the State argues Child was not entitled to receive the same formal inquiries at his revocation hearing that he was entitled to receive at his delinquency proceeding. Alternatively, the State claims Child was not prejudiced by the trial court's failure to provide him with formal inquiries at his revocation hearing.

{3} In our view, Child's failure to preserve error below is not fatal because the first issue presented in his brief in chief implicates his right, as a juvenile probationer, to receive a certain minimal level of procedural due process at the revocation hearing. On the merits, we reverse the trial court's decision because its failure to follow the mandatory procedures set forth in the Children's Code raises significant issues of whether Child's admission was supported by an adequate factual basis and whether Child's admission was knowing, intelligent, and voluntary. Due to our holding, we do not address the issue of whether Child's trial attorney provided effective assistance of counsel. We remand Child's case to the same judge for further proceedings consistent with this opinion.

BACKGROUND

{4} In April 1998, the State filed a delinquency petition after Child was charged with possessing drug paraphernalia and causing criminal damage to property. One month later, Child entered an admission to the drug paraphernalia charge at his first appearance. Child was subsequently found guilty of the property damage charge at an adjudicatory hearing held before a special master.

{5} In July 1998, Child appeared before the trial court for a dispositional hearing. Child's juvenile probation officer (JPO) recommended that Child be placed on two years' probation and pay restitution for the property damage he had caused. The trial court accepted the JPO's recommendations. In doing so, the trial court told Child that if he was called before the court again, he would be sent to the Boys' School. When asked if he understood the admonition, Child responded that he did.

{6} In November 1998, the State petitioned to revoke Child's probation after he was allegedly expelled from school for the duration of the school year. The State's petition claimed Child's expulsion from school violated the probation condition that Child "attend school with no unexcused absences in each and every class." As a result of the State's petition, Child appeared before the trial court the following month for a revocation hearing.

{7} In December 1998, at the revocation hearing, the trial court began the hearing by asking the parties if they had any comments they wanted to make. Child's defense counsel indicated that he did, stating that Child admitted to the charge in the State's petition that he had been expelled from school. After describing the JPO's recommendation that Child go back to school and begin reporting to the JPO, defense counsel advised the court that Child had successfully appealed his expulsion at the administrative level. Defense counsel informed the court that, as a result of appeal, Child was going to be allowed back into school when the school year commenced the following calendar year, January 1999. The JPO further explained that his recommendation was for a weekend in detention, in addition to the school and reporting requirements.

{8} In response to defense counsel's statement, the trial court observed that Child had been informed at his delinquency hearing that if he came before the court again, he was going to be committed to the Boys' School. The trial court asked Child if he remembered that statement at the delinquency hearing. Child responded that he did. The trial court then proceeded to commit Child to the Boys' School for an indeterminate period not to exceed two years.

{9} In the trial court's judgment and disposition, the court formally committed Child to the Boys' School for two years. According to the judgment and disposition, Child had freely and knowingly admitted to the charge contained in the State's petition only after "being fully advised of his constitutional and statutory rights." The record wholly fails to support the trial court's recital that Child was advised of any rights under the Children's Code, the State Constitution, or the federal constitution at any time during the revocation hearing.

DISCUSSION

I. JURISDICTION

{10} The State claims we lack jurisdiction to review Child's appellate issues because he failed to preserve them at the trial court level. The State correctly recites the general rule regarding preservation of error. See Rule 12-216(A) NMRA 2000 ("To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked...."). However, as an exception to the general rule, we may address propositions not raised in the trial court in order to protect an appellant's fundamental rights. See Rule 12-216(B) ("This [preservation] rule shall not preclude the appellate court from considering ... questions involving ... fundamental error or fundamental rights of a party.").

{11} In this appeal, Child correctly asserts that as a juvenile probationer, he had a constitutionally protected liberty interest in his probationary status. See State v. Tony G., 121 N.M. 186, 188, 909 P.2d 746, 748 (Ct.App.1995)

. Before Child's probation could properly be revoked, he was therefore entitled to certain minimal protections afforded by procedural due process. See id. Child claims the trial court violated his fundamental right to due process by failing, among other things, to ensure that there was an adequate factual basis to support his admission and that his admission was intelligent and voluntary with knowledge of rights. See State ex rel. Children, Youth & Families Dep't v. Stella P., 1999-NMCA-100, ¶¶ 11-12, 21, 127 N.M. 699, 986 P.2d 495 (ruling that minimum consideration of due process required court to inquire on the record whether mother waived certain due process rights and failure to do so was fundamental error); State ex rel. Children, Youth & Families Dep't v. Lilli L., 121 N.M. 376, 379-82, 911 P.2d 884, 887-90 (Ct.App.1995) (concluding that court's failure to personally ascertain from mother whether her admission was knowing and voluntary violated due process). Because Child's appeal raises questions in this case similar to those raised in Stella P. and Lilli L., and because we are concerned that the judgment and disposition contain recitals that are in no way supported by the transcript of the revocation hearing, we address the merits of this appeal.

II. DUE PROCESS

{12} Child claims the trial court violated his fundamental right to due process on four grounds: (1) failure to advise him of his rights at his first appearance; (2) failure to make a record establishing that his admission was knowing, voluntary, and intelligent; (3) failure to afford him his right to allocute before proceeding to disposition; and (4) failure to remain impartial and unbiased. We consolidate for review the first and second issues listed above as both claims concern the issue of whether the trial court could have properly relied on Child's admission to revoke his probation. Upon reviewing these issues together, we conclude the trial court violated Child's right to due process. This conclusion is dispositive of Child's appeal and so we refrain from reviewing the third and fourth issues listed above except as necessary to address procedure on remand.

A. Child's Arguments

{13} Child claims the trial court's decision to commit him to the Boys' School must be reversed because it was improperly predicated upon his invalidly entered admission. Child argues his admission was invalidly entered because the trial court failed to follow several mandatory procedures set forth in the Children's Code. In particular, Child claims the trial court violated his fundamental right to due process when it failed to explain to him the consequences of the allegations against him; make a record establishing his admission was voluntary, intelligent, and knowing; and ensure his admission was supported by an adequate factual basis. See Rule 10-209B NMRA 2000; Rule 10-210 NMRA 2000; Rule 10-224 NMRA 1999. (Rules 10-224 and 10-232 discussed in this opinion were amended effective August 1, 1999, after the December 1998 revocation hearing.) We agree with Child that the trial court's failure to follow the mandatory procedures set forth in Rule 10-224 rendered his admission invalid.

{14} Under Rule 10-224(C), the trial court lacked the authority to accept Child's admission without first addressing Child personally in open court in...