State v. F. L. A.
| Decision Date | 14 March 1980 |
| Docket Number | No. 4333,4333 |
| Citation | 608 P.2d 12 |
| Parties | STATE of Alaska, Petitioner, v. F. L. A., A Minor Under the Age of Eighteen Years, Respondent. |
| Court | Alaska Supreme Court |
Mary Ann Henry, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for petitioner.
Joseph W. Evans, Birch, Horton, Bittner & Monroe, Anchorage, for respondent.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
The State of Alaska filed a petition for review of an order of the superior court denying the state's motion for waiver of juvenile jurisdiction. 1 By order of August 7, 1979, we granted the petition, affirmed the superior court's order and indicated that an opinion would follow.
The primary issue involved is whether the court may consider as binding a minor's consent to an extra year of treatment beyond the age of nineteen in determining whether to waive juvenile jurisdiction. 2 Under the circumstances here involved, we have concluded that the minor may give a binding consent to such additional year of treatment.
F.L.A. was charged with first-degree murder as a result of the contract slaying of Colonel Robert Cassell in Anchorage, Alaska. Testimony indicated that Daniel Cassell, the son of the victim, offered another minor and F.L.A. money, a car, and a trip to New York in exchange for their killing the Colonel. The Colonel was bludgeoned to death by F.L.A. on August 15, 1978. F.L.A. was sixteen years and nine months old at the time. 3 He had no prior juvenile adjudications.
After an extensive waiver hearing, Judge Ripley issued an order denying waiver. The district attorney obtained a stay of further proceedings pending the filing of a petition for review to this court. Before the filing of the petition, we published the opinion In re F.S., 586 P.2d 607 (Alaska 1978). Based on that decision, the state filed a motion for reconsideration. The superior court held a further hearing and eventually entered an order denying the motion to reconsider. 4
The legislature has set forth the considerations for determining amenability and treatment as a juvenile in AS 47.10.060(d) as follows:
(T)he court may consider the seriousness of the offense the minor is alleged to have committed, the minor's history of delinquency, the probable cause of the minor's delinquent behavior, and the facilities available to the division of youth and adult authority for treating the minor.
Here there is no dispute as to the seriousness of the crime and the absence of prior delinquency on the part of the minor. While there was some variation in expert testimony as to the probable cause of the minor's delinquent behavior, it appears generally that he had an immature outlook on life. There was ample evidentiary support for the court's finding that the McLaughlin Youth Center is an adequate facility for treating F.L.A. All of the doctors testifying agreed that F.L.A. was treatable, and there was substantial evidence indicating that he could be adequately treated within three years of the time of his incarceration. Of prime importance in Judge Ripley's decision was the necessity of having three years available for treatment.
F.L.A. was placed in the detention unit at the McLaughlin Youth Center in late August 1978 where he has remained. In late September, he began meeting with a youth counsellor, Rick Calcote, twice or three times weekly under supervision of Dr. Patricia Patrick, a psychiatrist. Dr. Patrick began weekly psychotherapy sessions with the child and his family commencing on November 29, 1978.
Treatment had thus commenced shortly before F.L.A.'s seventeenth birthday on November 1, 1978, and three years of treatment were feasible if the court could be reasonably assured that F.L.A. would be subject to the supervision of juvenile authorities until his twentieth birthday.
AS 47.10.080(b)(1) provides in part:
(T)he department (of health and social services) may petition for and the court may grant in a hearing . . . an additional one-year period of supervision past age 19 if continued supervision is in the best interests of the person and the person consents to it; . . . .
The trial court based its decision on the binding effect of F.L.A.'s consent to treatment until age twenty. 5
The judge found conflict between the portions of our decision in F.S. wherein we held that in accordance with AS 47.10.060(d), 6 age twenty is the proper age for determining whether a minor is amenable to treatment, 7 and our holding that a minor could repudiate a consent to such additional treatment. 8 We therefore find it necessary to re-examine our decision in F.S.
As indicated above, we concluded in F.S. that age twenty was the proper age for determining whether a minor is amenable to treatment. Yet we also concluded that a minor's advance consent to continued supervision beyond the age of nineteen could be repudiated. Our reasoning was based upon Alaska's unique statutory scheme for allowing treatment beyond the juvenile's nineteenth birthday.
In order for the state to retain supervision past nineteen years of age, three requirements must be met: (1) the Department of Health and Social Services must petition the court, (2) the court must grant the additional one-year period of supervision, and (3) the person must consent. 9
In F.S., we held that a minor could not give a binding consent at the time of a waiver hearing. Consent could only be granted when the person reached majority at age eighteen. Thus, in determining whether to allow a child to be tried as a juvenile on the basis that the child could be rehabilitated by age twenty, the judge was required to consider the possibility that consent could be repudiated at majority.
F.S. was premised on a minor's incompetency to enter into binding agreements of various types. We also concluded that since the statute contemplated that the decision to extend the period of supervision be made after the initial disposition hearing, it would be contrary to the legislature's apparent intent to give effect to an advance consent.
We now believe that the portion of the opinion in F.S. that held that a minor in a waiver hearing could not give a binding advance consent to treatment beyond age nineteen was mistaken. First, in order to give effect to the legislature's intent that a court may consider treatment until age twenty in determining waiver of juvenile jurisdiction, it is necessary that the judge be able to evaluate at the time of the waiver hearing whether the juvenile will in fact be available for treatment. It is not possible for the judge to know this unless the child can give binding consent at the time of the hearing. A judge may assume that the other two contingencies for the additional period of treatment, the petition of the Department and the consent of the court, will be forthcoming if the child still requires treatment at age nineteen. The contingency of the juvenile's consent, however, becomes a "wild card" incapable of rational evaluation if such consent may be repudiated at majority regardless of whether additional treatment is required. We do not believe that the legislature could have intended to require that the judge's discretion be based on such an unpredictable factor. While it is true, as indicated in F.S., that the statute contemplates that the determination of the additional period of treatment be made after the initial hearing, such an intent does not mandate that an advance consent to treatment given by the minor may not be regarded as binding.
Second, we now find that it was incorrect to conclude that a minor may not under any circumstances give a binding consent in advance to an additional period of treatment. We based this portion of F.S. on the Washington Supreme Court's decision in In re Harbert, 85 Wash.2d 719, 538 P.2d 1212 (1975). In that case, a minor, aged seventeen, gave written consent to extend the jurisdiction from the time he reached the age of eighteen until twenty-one. We correctly quoted from Harbert as follows:
Such consent is of no value. Because of his minority, appellant could repudiate it upon reaching majority. Furthermore, jurisdiction cannot be conferred by consent or agreement. 10
The statement in Harbert, however, pertaining to the repudiation of consent is merely dicta. The Washington statutes in effect at the time Harbert's offense was committed had previously been construed as conferring juvenile jurisdiction only until the age of eighteen. In re Carson, 84 Wash.2d 969, 530 P.2d 331 (1975). Although a footnote in Harbert refers to a 1975 amendment extending juvenile court jurisdiction to age twenty-one in certain cases, 11 the amendment apparently did not control Harbert's adjudication, as it became effective while Harbert's case was on appeal. Moreover, the amendment did not require a minor's consent in any event. 12 Thus, the narrow holding of Harbert is that a juvenile's consent cannot confer jurisdiction on the court.
This brings us back to the major issue confronting us whether a minor's consent to continuing jurisdiction for treatment between the time when he reaches the age of nineteen and his twentieth birthday is binding.
Since no other state has a provision conditioning additional years of supervision on the delinquent's consent, there are no cases concerning the binding effect of a juvenile's consent to future treatment.
There has been, however, extensive discussion of juvenile consent and waiver in other contexts. There exists a distinction between the validity of a juvenile waiver or consent in a civil context and in a criminal context. 13 In civil matters, a minor is legally incompetent in a wider variety of situations. 14 It has been argued that it would be anomalous to find a minor incompetent in simple civil matters, yet to give effect to a minor's waiver of constitutional rights....
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