In The Interest Of N.C., A Minor.

• Citation: 231 P.3d 457,123 Hawai'i 184
• Decision Date: 26 April 2010
• Docket Number: No. 28294.,28294.
• Parties: In the Interest of N.C., a Minor.
• Court: Supreme Court of Hawai'i

123 Hawai'i 184

231 P.3d 457

In the Interest of N.C., a Minor.

No. 28294.

Supreme Court of Hawai‘i.

April 19, 2010.

As Corrected April 26, 2010.

COPYRIGHT MATERIAL OMITTED

Julie Kai Barreto, Kamuela, for petitioner/minor-appellant.

Linda L. Walton, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.

MOON, C.J., ACOBA, and DUFFY, JJ.; and RECKTENWALD, J., dissenting, with whom NAKAYAMA, J., joins.

Opinion of the Court by DUFFY, J.

On March 4, 2010, this court accepted petitioner/minor-appellant NC's (NC) timely application for writ of certiorari to review the June 26, 2009 summary disposition order of the Intermediate Court of Appeals (ICA) in In re NC, No. 28294, 2009 WL 1817400 (Hawai'i App. June 26, 2009) (SDO), which affirmed the Family Court of the Third Circuit's (family court's) September 26, 2006 decree ¹ which adjudicated NC to be a status offender ² pursuant to Hawai‘i Revised Statutes (HRS) section 571-11(2) and placed NC on protective supervision of the family court.

NC's application presents the following question:

Whether the appellate court should recognize “plain error” on appeal, as it did in Petitioner's brother's appeal from the identical underlying act and point of error, as the Family Court failed to engage in a Tachibana-like colloquy to obtain an on-the-record waiver of the right to testify, to remain silent, or to confront and cross-examine witnesses.

We hold that the family court erred in proceeding under HRS section 571-11(2) jurisdiction in this case based on the material allegations of the amended petition filed against NC. NC's substantial rights were violated when he was adjudicated for alleged law violations without the statutorily required recommendation of a qualified physician or psychologist, pursuant to HRS section 571-44, and without the constitutional protections that apply to proceedings conducted under HRS section 571-11(1) jurisdiction As such, the family court's adjudication of NC is plain error and must be reversed.

I. BACKGROUND

This case arises from alleged incidents of sexual conduct between NC, a child who was between eight and nine years old at the relevant times, and another child (CW), who was approximately seven years old at the relevant times. What follows are the facts and procedural history relevant to the instant application.

A. The Petitions

On August 4, 2004, the Office of the Prosecuting Attorney for the County of Hawai‘i (prosecutor) filed a petition in family court pursuant to HRS chapter 571. The petition did not indicate the section of chapter 571 under which it was filed; however, the petition stated:

The above-named child appears to come within the purview of the HRS Section indicated above, in that the child allegedly violated or attempted to violate the law in the following manner:

COUNT I [ ]

Sometime between June 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with thereby [sic] committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b),³ [HRS], as amended.

COUNT II [ ]

Sometime between June 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b), [HRS], as amended.

COUNT III [ ]

Sometime between August, 2003, and September, 2003, the exact date being unknown, in Kona County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b), [HRS], as amended.

COUNT IV [ ]

Sometime between August, 2003, and September, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him, by knowingly subjecting [CW] to fellatio thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b), [HRS], as amended.

(Emphases added.)

Although the petition did not specify the section of chapter 571 under which it had been filed, allegations that NC had committed an offense in violation of HRS section 707-732(1)(b) were consistent with a petition filed pursuant to HRS section 571-11(1) (1993 & Supp.2004).

At the time of the petition, HRS section 571-11(1) provided, as it does now:

Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:

(1) Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age which would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance. Regardless of where the violation occurred, jurisdiction may be taken by the court of the circuit where the person resides, is living, or is found, or in which the offense is alleged to have occurred[.]

HRS § 571-11(1) (emphasis added).

On September 29, 2004, the prosecutor amended the petition against NC. However, as with the original petition, the amended petition did not indicate the section of HRS chapter 571 under which the petition had been filed. The amended petition stated the following:

The above-named child appears to come within the purview of the HRS Section indicated above, in that the child allegedly violated or attempted to violate the law in the following manner:

The above-named child appears to come within the purview of the HRS Section indicated above, by reason of the following facts:

COUNT I [ ]

Sometime between June 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-7332(1)(b) [sic], [HRS], as amended, brining [sic] him before this Court as a Person in Need of Supervision under Sections 571-11(2) and 571-44, [HRS], as amended.

COUNT II [ ]

Sometime between June 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-7332(1)(b) [sic], [HRS], as amended, brining [sic] him before this Court as a Person in Need of Supervision under Sections 571-11(2) and 571-44, [HRS], as amended.

COUNT III [ ]

Sometime between August, 2003, and September, 2003, the exact date being unknown, in Kona County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-7332(1)(b) [sic], [HRS], as amended, brining [sic] him before this Court as a Person in Need of Supervision under Sections 571-11(2) and 571-44, [HRS], as amended.

COUNT IV [ ]

Sometime between August, 2003, and September, 2003, the exact date being unknown, in Kona, County and State of Hawaii, [NC] knowingly subjected to sexual contact [CW], a person who was less than fourteen years old, or caused [CW] to have sexual contact with him, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-7332(1)(b) [sic], [HRS], as amended, brining [sic] him before this Court as a Person in Need of Supervision under Sections 571-11(2) and 571-44, [HRS], as amended.

(Emphases added.)

The amended petition retained the original petition's allegations that NC had committed offenses in violation of HRS section 707-732(1)(b); however, it added language that appeared to assert family court jurisdiction pursuant to HRS section 571-11(2) (1993) and HRS section 571-44 (1993).

At the time of the petition, HRS section 571-11(2) provided, as it does now:

Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:

...

(2) Concerning any child ^[4] living or found within the circuit:

(A) Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;

(B) Who is beyond the control of the child's parent or other custodian or whose behavior is injurious to the child's own or others' welfare;

(C) Who is neither attending school nor receiving educational services required by law whether through the child's own misbehavior or nonattendance or otherwise; or

(D) Who is in violation of curfew[.]

HRS § 571-11(2).

HRS section 571-44 states the following requirements before a child under the age of twelve can be adjudged to come within HRS section 571-11(1):

The court may order that a child or minor concerning whom a petition has been filed shall be examined by a physician, surgeon, psychiatrist, or psychologist, and it may order treatment, by them, of a child or minor who has been adjudicated by the court. For either the examination or treatment, the court may place the child or minor in a hospital or other suitable facility. The court, after hearing, may order examination by a physician, surgeon, psychiatrist, or psychologist, of a parent or guardian whose ability to care for a child before the court is at issue.

No child under the age of twelve shall be adjudged to

...