K., Matter of

• Decision Date: 16 August 1976
• Citation: 26 Or.App. 451,554 P.2d 180
• Parties: In the Matter of K., a minor child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. K., a minor child, Appellant.
• Court: Oregon Court of Appeals

Page 180

554 P.2d 180

26 Or.App. 451

In the Matter of K., a minor child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. K., a minor child, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 22, 1976.

Decided Aug. 16, 1976.

Martin R. Cohen, Certified Law Student, Portland, and Bernard F. Vail, Portland, argued the cause for appellant. With them on the briefs was Patricia Watson, Portland.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Lee Johnson, Atty. Gen., W. Michael Gillette, Sol. Gen., and Lawrence Gorin, Deputy Dist. Atty., Portland.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

These are two appeals from findings and judgments of the Juvenile Court of Multnomah County, one in November 1975, the other in January 1976.

Based upon a showing that his behavior was 'such as to endanger his own welfare or the welfare of others,' K. was initially found to be within the jurisdiction of the Juvenile Department of the Multnomah County Circuit Court on November 10, 1975. At that time K. was 11 years old; he became 12 on December 19, 1975. A judgment made K. a ward of the court and temporarily committed him to the custody of the Children's Services Division (CSD) for care, placement and supervision. ¹ K. appealed from that judgment, but was returned to his mother's home under CSD supervision. The notice of appeal in that case was dated and filed December 8, 1975.

A petition subsequently filed with the court on January 5, 1976 alleged that since the entry of the November order K. had committed an act which was a violation 'of the law, or which if done by an adult would constitute (a violation) of the law, of the State of Oregon * * *' ² in that he had 'knowingly and unlawfully enter(ed) and remain(ed) in a * * * dwelling * * * with the intent to commit a crime therein.' Following a hearing on this petition the court concluded that the 'charge' had been established beyond a reasonable doubt and on January 20, 1976 proceeded to enter an order continuing K.'s wardship and temporarily committing him to CSD for placement at MacLaren School for Boys, a training school for minors requiring secure custody. That commitment was suspended, however, with K. being placed on 'formal probation' in the custody of CSD which was itself ordered to submit a 'treatment plan' to the court within 14 days. ³ He appealed from the latter judgment, rendered by a different judge than the first.

K. seeks reversal of the 'jurisdictional finding' of November 10, 1975 based on 'welfare' (ORS 419.476(1)(c)) and the denial of his motion to dismiss the subsequent petition charging him with a violation of law (ORS 419.476(1)(a)), contending that he has in several respects been deprived of the 'due process' to which he was entitled. Specifically, the rights which he claims were violated were failure to require proof beyond a reasonable doubt at the November hearing, failure to enforce the right against self-incrimination at the same hearing, failure to suppress a confession used there and failure to have corroborative testimony at the same hearing; failure to dismiss for lack of speedy trial at the January hearing and failure to dismiss at the January hearing because the right against self-incrimination was violated and he had no notice that he could be charged with a law violation petition.

The United States Supreme Court held in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,' and that various of the federal constitutional guarantees accompanying criminal proceedings--including notice of charges, the right to counsel, the oppportunity to confront and cross-examine, and the privilege against self-incrimination--are applicable to state juvenile proceedings if the consequence is that the juvenile may be committed to a state institution. ⁴ In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), presented 'the single, narrow question whether proof beyond a reasonable doubt is among the 'essentials of due process and fair treatment' required during the adjudicatory stage (of a juvenile proceeding) when a juvenile is charged with an act which would constitute a crime if committed by an adult.' 397 U.S. at 359, 90 S.Ct. at 1070. The court specifically held that a child could not be subjected 'to the stigma of a finding that he violated a criminal law And to the possibility of institutional confinement on proof insufficient to convict him were he an adult.' (Footnote omitted; emphasis supplied.) 397 U.S. at 367, 90 S.Ct. at 1074. In a more recent opinion the court held that 'a (juvenile) proceeding whose object is to determine whether (a minor) has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years * * *' placed that juvenile 'in jeopardy' and precluded retrial as an adult for the same offense. Breed v. Jones, 421 U.S. 519, 529, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975). ⁵

Thus, the various constitutional 'rights' to which a criminal defendant is entitled--including the privilege against self-incrimination, and the assurance that the state will be required to establish guilt 'beyond a reasonable doubt'--must also be accorded a juvenile in the adjudicatory stage of a juvenile proceeding which may result in his or her placement in an 'institution of confinement.' ⁶ Conversely, however, the cases we have reviewed also suggest that where the child 'charged' is Not as a consequence subjected to the possibility of what amounts to incarceration, the requirements of due process and fair treatment applicable to the proceedings based upon that charge may not include the entire spectrum of rights granted by Gault and its progeny.

Under the terms of ORS 420.011 no child younger than 12 years of age 'may be admitted to, received by or cared for in a juvenile training school * * *.' Further, an amendment to ORS 419.509(1), which became effective on September 13, 1975, requires that a juvenile can be placed in a training school requiring secure custody only if he is found in the juvenile court's jurisdiction by reason of a law violation under ORS 419.476(1)(a) (See note 1). Such a finding must be based on proof beyond a reasonable doubt. ORS 419.500(1). The November judgment was based on a jurisdictional finding under allegations fitting ORS 419.476(1)(c) (See note 1) where proof is by a preponderance of evidence. ORS 419.500(1). 'Juvenile training school' is defined in ORS 420.005 as 'Hillcrest School of Oregon, the MacLaren School for Boys and any other school established by law for similar purposes, (including) the other camps and programs maintained under (ORS ch. 420).'

At the time of the November hearing K. was under the age of 12 and the allegations were under ORS 419.476(1)(c). The dispositional alternatives available to the court at that time were, under ORS 419.509(1), limited to placing him on probation in the custody of his mother or transferring custody to some other relative, an individual maintaining an approved foster home or CSD for placement in a child care center. While any of these alternatives would theoretically have resulted in the imposition of some limitations upon K.'s personal 'liberty,' none would have produced a 'deprivation' equivalent in kind or degree to that necessarily resulting from placement in MacLaren or any other 'camp' or 'program' maintained for the confinement and rehabilitation of youths requiring secure custody. Nor is there anything in the record to indicate that it would have placed him in an environment exercising more restraint on him than that of a normal home, under the circumstances.

Because the November hearing and resulting judgment did not place K. in jeopardy of being committed to an institution with a "* * * regimented routine and institutional hours . . ..' (where) (i)nstead of mother and father and sisters and brothers and friends and classmates, his world (would be) peopled by guards, custodians, state employees, and 'delinquents' * * *' (387 U.S. at 27, 87 S.Ct. at 1443), his reliance upon In re Gault and In re Winship, both supra, in his appeal from that judgment as a measure of the 'rights' to which he was entitled is misplaced. K. and his mother had been provided with notice of the 'charge' made against him prior to the commencement of the jurisdictional proceeding; they were given an opportunity to prepare a 'defense,' to respond and to cross-examine those making the charge; K. was represented by counsel throughout. The charge was under ORS 419.476(1)(c); therefore, as previously noted, the state was required to establish the court's jurisdiction by a preponderance of the evidence by the terms of ORS 419.500(1). In light of the limits placed upon the court's dispositional authority by virtue of K.'s age at the time of the initial jurisdictional hearing, we are satisfied that the procedures employed, and the rights accorded, adequately met all applicable requirements of 'due process and fair treatment.' In passing, however, we note that the evidence in the November hearing shows that during the episode leading to that hearing K. had his Miranda rights thoroughly explained to him by an arresting officer, under circumstances that lead to a reasonable belief he understood them.

Our further consideration is with respect to the subsequent 'law violation' petition (ORS 419.476(1)(a)) of January 5, 1976 which resulted in the entry of a judgment, after K. was 12 years old, committing him to MacLaren, which is the subject of the second appeal. The 'law violation' alleged occurred while he was yet 11, although the petition and hearing came after his 12th birthday.

K. contends that the court erred in failing to grant his motion to dismiss 'for lack of a speedy...