In re Interest of N.R.W.
| Decision Date | 23 February 2016 |
| Docket Number | No. ED 101597,ED 101597 |
| Citation | 482 S.W.3d 473 |
| Parties | In the Interest of: N.R.W., Minor. |
| Court | Missouri Court of Appeals |
Donald Ray Woolbright, Pro Se, 20 Fernwood Drive, Saint Peters, Missouri 63376, for Appellant.
Charlene Elizabeth Stockman, 1700 S. River Road, Saint Charles, Missouri 63303, for Respondent.
N.R.W. ("Juvenile") appeals from the judgment and order of disposition of the Juvenile Division of the Circuit Court of St. Charles County arising out of the charges against Juvenile for possession of a controlled substance (over thirty-five grams of marijuana) and possession of drug paraphernalia. The court found Juvenile committed the offenses and ordered Juvenile to attend outpatient substance abuse treatment. When Juvenile failed to attend the court-ordered treatment, the court committed Juvenile to the Division of Youth Services until Juvenile's eighteenth birthday. Because we find that the court failed to comply with the statutory provisions applicable to Juvenile's right to counsel, we reverse and remand for proceedings consistent with this opinion.
We note at the outset that since Juvenile turned eighteen on May 4, 2014, Juvenile completed his commitment to the Division of Youth Services before this appeal was filed, thus raising the question of whether this appeal is moot. We address this issue sua sponte because we lack jurisdiction to decide moot issues. T.C.T. v. Shafinia, 351 S.W.3d 34, 36 (Mo.App.W.D.2011).
While juvenile court records are normally confidential, there is an exception found in section 211.321.1 According to section 211.321.2(2), since Juvenile was adjudicated delinquent for an offense that would be considered a felony if committed by an adult, the records of Juvenile's dispositional hearing under certain circumstances may be open to the public which represents a significant collateral consequence for Juvenile into his adult life. See section 195.202.2 (); In re A.G.R., 359 S.W.3d 103, 108 (Mo.App.W.D.2011) (); State v. Sapien, 337 S.W.3d 72, 77–78 (Mo.App.W.D.2011) (). As a result, we find that this appeal is not moot and we have jurisdiction.
In July 2013, when Juvenile was sixteen years old, a petition was filed in the Juvenile Division of the Circuit Court of St. Charles County alleging that on April 2, 2013, Juvenile committed the delinquent acts of possession of a controlled substance and possession of drug paraphernalia.
On September 10, 2013, Juvenile appeared with his parents for his adjudication hearing for the court to determine whether Juvenile committed the acts alleged in the petition. The Juvenile Officer was represented by counsel who called two witnesses. Juvenile's father ("Father") appeared at the hearing and questioned the witnesses, but Father is not an attorney. No record was made regarding Juvenile's right to counsel, his parents' right to counsel, or whether Juvenile or his parents objected to proceeding without counsel or waived counsel. At the close of the evidence, the trial court found that it had jurisdiction over Juvenile and found beyond a reasonable doubt that Juvenile committed the offenses charged.
On October 15, 2013, Juvenile appeared with both of his parents for his dispositional hearing to determine Juvenile's punishment. Again, no record was made regarding Juvenile's right to counsel or his parents' right to counsel. The court ordered Juvenile to be placed in the custody of his parents under the supervision of the court and for Juvenile to undergo a substance abuse program.
On December 11, 2013, the Juvenile Officer filed a motion to modify the court's disposition order on the basis that Juvenile had violated his court-ordered supervision by failing to attend the substance abuse treatment. The matter was set for hearing on December 23, 2013, and notice of that hearing was sent to Juvenile and his parents informing them that Juvenile had the right to have an attorney represent him at the hearing and that if he could not afford one, the court would appoint an attorney for him.
On December 16, 2013, Juvenile requested a continuance and that an attorney be appointed to represent Juvenile and his parents in the matter. The court appointed an attorney to represent Juvenile, but did not appoint an attorney to represent his parents. On December 19, 2013, counsel entered her appearance on behalf of Juvenile.
On December 23, 2013, Juvenile appeared with counsel and his parents for the hearing on the motion to modify. At the beginning of the hearing, Father advised the court that Juvenile's appointed counsel did not represent Father and that Father wanted a continuance so that he could prepare and discuss the case with Juvenile's attorney whom he had just met and had not spoken with until that day. The court-appointed counsel confirmed that she did not represent the parents. Father also indicated that he wanted an attorney appointed for himself. The court advised Father that he did not qualify for an appointed attorney because he was not a party. The court denied Father's request for an attorney and the request for a continuance.
At the conclusion of the hearing, the court found that Juvenile had violated the terms of his supervision and ordered Juvenile to be placed in the custody of the Division of Youth Services until discharged by law or until reaching the age of eighteen. The court also granted court-appointed counsel's motion to withdraw as Juvenile's attorney.2 This appeal follows.
Juvenile proceedings are reviewed under the same standard as other court-tried cases, meaning that the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re M.M., 320 S.W.3d 191, 195 (Mo.App.E.D.2010).
One of the points raised by Juvenile is that he was denied the right to counsel during the juvenile delinquency proceedings. Because we find this argument to be dispositive of Juvenile's appeal, we need not consider the additional arguments presented.
The right to counsel is a fundamental right necessary to ensure fairness in juvenile delinquency proceedings. In re D.J.M., 259 S.W.3d 533, 535 (Mo.banc 2008). Because of the importance of the right to counsel, there must be strict and literal compliance with the statutes affecting this right, and a failure to strictly comply is reversible error. Id. (citing In the Interest of C.W., 211 S.W.3d 93, 97–98 (Mo.banc 2007) ).
Pursuant to section 211.211.1, a party is entitled to be represented by counsel in all juvenile court proceedings. See also Rule 115.01. After a petition has been filed against the juvenile, the court shall appoint counsel for the juvenile when necessary to assure a full and fair hearing. Section 211.211.3; Rule 115.02.
The child may waive his right to counsel only with the approval of the court. Section 211.211.8; Rule 115.01. Waiver of counsel by a child may be withdrawn at any stage of the proceeding and counsel shall be appointed for the child when necessary to assure a full and fair hearing. Section 211.211.9; Rule 115.01. Thus, "after the filing of the petition, section 211.211.3 provides that the appointment of counsel for the juvenile is mandatory when necessary to assure a fair hearing unless knowingly and intelligently waived." In re D.J.M., 259 S.W.3d at 536.
If the record does not disclose that the waiver was knowing and intelligent, a presumption arises that it was not. In re D.L., 999 S.W.2d 291, 294 (Mo.App.E.D.1999). The State has the burden to show that the waiver was knowing and intelligent. Id. at 296. The constitutional requirements for a valid waiver of counsel by juveniles are no less than what is required for waiver of counsel by adults in criminal proceedings. Id. at 295. That is, a valid waiver must be made with an understanding of (1) the nature of the charges, (2) the statutory offenses included in them, (3) the range of allowable punishments, (4) possible defenses to the charges and circumstances in mitigation thereof, and (5) all other facts necessary to a full understanding of the matter. Id."It is imperative that the trial court make a record demonstrating an individual has been apprised of such matters prior to the time he or she waives counsel in order for the waiver to be considered knowing and intelligent." Id. (emphasis in original). Having a parent or guardian, with no training in the law, appear with the juvenile does not diminish judicial responsibility to ensure a valid waiver and is no guarantee that a juvenile will be fully informed or meaningfully represented. Id.
The child's custodian is also entitled to appointed counsel if the court finds: 1) that the custodian is indigent; 2) that the custodian desires the appointment of counsel; and 3) that a full and fair hearing requires appointment of counsel for the custodian, Section 211.211.4; Rule 115.03.
Counsel shall serve for all stages of the proceedings, including appeal, unless relieved by the court for good cause shown. Section 211.211.6; Rule 115.03. If no appeal is taken, services of counsel are terminated...
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