Tuesday, April 20, 2010

Family Court Cannot Mix and Mash Juvie Jurisdiction

In re N.C. (HSC April 19, 2010)

Background. When N.C. allegedly committed sex acts with another child when N.C. was eight and nine years old. The prosecutor's office filed petitions against N.C. alleging that N.C. "violated or attempted to violate the law": three counts of sexual assault in the third degree. About a month later, the prosecutor's office amended the petition and added to each count that N.C. committed the offense of sexual assault in the third thereby bringing "him before [the family court] as a Person in Need of Supervision under sections 571-11(2) and 571-44[.]" After motions to dismiss were denied, the prosecutor and N.C. stipulated to submit evidence to the family court in lieu of testimonial evidence. The family court concluded that N.C. was a "status offender" and sentenced N.C. N.C. appealed. The ICA affirmed the family court.

A Highly Technical Point: the Opening Brief Needs an Argument. The ICA refused to hear N.C.'s argument that the family court erred in failing to engage in an on-the-record waiver of his right to testify on his own behalf. The Opening Brief must contain a "[t]he argument, containing the contentions of the appellate on the points presented and the reasons therefor, with citations on to the authorities, statutes and parts of the record relied on. . . . Points not argued may be deemed waived." Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). According to the HSC, the N.C.'s brief included, as a point of error, that the family court erred in failing to establish a wavier of constitutional rights before proceeding on a trial of stipulated evidence. However, N.C.'s "argument" simply stated that the family court "failed to colloquy [N.C.] regarding the relinquishment of the rights he waived by proceeding to trial[.]" This was not enough.

The HSC held that N.C. did not articulate the reasons for his point of error and certainly failed to give any citations to authorities he relied upon. Thus, it was not error to deem this point waived under HRAP Rule 28(b)(7). Nonetheless, the HSC found that the family court's failure to engage N.C. in a colloquy regarding his waiver of his right to testify constituted plain error.

Two Types of Family Court Jurisdiction: Law Violators. HRS § 571-11 affords two kinds of jurisdiction to the family court. The family court has exclusive original jurisdiction over any person under 18 whose alleged act "would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance." HRS § 571-11(1). Law violator jurisdiction comes with certain procedural requirements. For example, law violator jurisdiction over children under 12 must come with a "written recommendation of a licensed psychologist or psychiatrist or other physician duly qualified by special training and experience in the practice of child psychiatry." HRS § 571-44. Allegations of a law violation must also be proven beyond a reasonable doubt and in accordance with the rules of evidence. HRS § 571-41(c). Disposition of cases also differ. Law violators can be placed on probation and fined. HRS § 571-48(1).

. . . and Persons in Need of Supervision. The family court also has exclusive original jurisdiction over any child in the circuit who is neglected of educational services, 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," who is truant, or who is in violation of curfew. HRS § 571-11(2). These allegations need only be proven by a preponderance of the evidence. Probation is not permitted, but the family court can place the child under protective supervision. HRS § 571-48(2).

HSC: the Allegations Determine the Basis of Jurisdiction. The HSC held that the family court erred in adjudicating N.C. as a law violator. The amended petition, according to the HSC, alleged law violations, but cited HRS §571-11(2). Based on the allegations, "the family court was obligated to comply with the requirements of a formal proceeding conducted under HRS" § 571-11(1). This caused all kinds of errors. That meant that the family court's conclusion that the State proved the offenses by a preponderance of evidence was error. It meant that since N.C. was under 12, there should have been a written recommendation by a child therapist pursuant to HRS § 571-44. Finally, it also meant that there should have been an on-the-record colloquy establishing that N.C. knowingly, intelligently, and voluntarily waived his right to testify at his trial. In re T.C., 121 Hawai'i 92, 99-102, 214 P.3d 1082, 1089-92 (2009); Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995). The HSC reversed the family court.

Justice Recktenwald's Dissent. Although Justice Recktenwald agreed with the majority that the prosecutor's petitions were problematic, he believed that the remedy should have been depriving the family court of jurisdiction rather than reversing the judgment. Justice Recktenwald noted that the family court's person-in-need-of-supervision jurisdiction is triggered when the child's behavior is injurious to himself or herself or another's welfare. HRS § 571-11(2)(B). That covers a lot of conduct, including conduct that would make him a law violator. Thus, Justice Recktenwald believed that the petition must (1) identify the specific provisions of jurisdiction relied upon and (2) state the "facts that bring the child within the scope of" that jurisdiction. Here, the petitions were defective because they did not identify which aspect of HRS § 571-11(2) applied. Justice Recktenwald wrote that this was a jurisdictional defect that required dismissal. Justice Nakayama joined.

Evaluating the Pleadings Requires an Examination of the Allegations over the Declarations and Citations. The family court's jurisdiction over minors is limited and determined by statute. Here, the complaint mixed the two distinct bases and the HSC had decide which jurisdiction controlled. On one hand there was the direct citation to persons in need of supervision. Then again, the allegations put it closer to law violator jurisdiction. The HSC majority ignored the citations and went with the allegations over the formal declarations of jurisdiction. In essence, the majority looked to the allegations and went with them. But what if there is no citation and a mere allegation? What then?

Entre Dupree. Very recently, the HSC decided a similar issue in Dupree v. Hiraga, 121 Hawai'i 297, 291 P.3d 1084 (2009). In that case, Dupree sent a letter to the county clerk alleging that a candidate for the Maui County Council was not a resident of where he purported to be. The clerk had jurisdiction over two distinct actions: voter registration challenges and nomination paper objections. Like the family court, deadlines and procedures for the action depended on the jurisdiction. The HSC there held that even though the letters alleged a statement of facts that could have fit either jurisdiction, there was no jurisdictional defect, and the clerk did not err in concluding that the letters initiated a voter challenge as well as a nomination papers objection.

Does this case cast doubt upon Dupree? If the allegations--and allegations alone--control, then how would do you determine the basis of jurisdiction of Dupree's letter? And under Justice Recktenwald's analysis in which the complaint must identify the jurisdictional basis as well as the allegations, Dupree becomes even more uncertain. Perhaps Dupree is confined to agency procedures and pro se complaintants. And perhaps the family court pleadings are held to a slightly more restrictive standard. But the HSC never cited Dupree and has left an express explanation on the two cases for another day.

A Disclosure: I was appellate counsel in Dupree. I argued that the letter were defective and did not vest jurisdiction.

No comments: