Denham v. D.J.

2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133
CourtNorth Dakota Supreme Court
DecidedJuly 13, 2011
DocketNo. 20100403
StatusPublished
Cited by3 cases

This text of 2011 ND 142 (Denham v. D.J.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denham v. D.J., 2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133 (N.D. 2011).

Opinion

MARING, Justice.

[¶ 1] Bryan Denham, an Assistant Bur-leigh County State’s Attorney, appeals from a juvenile court order adopting a judicial referee’s decision that D.J. is not required to register as a sexual offender. We conclude a juvenile court may order the preparation of a report or evaluation to address requirements for registration as a sexual offender and may require production of the report or evaluation to make [335]*335findings on the requirements for registration. Because a court-ordered evaluation was not provided to the juvenile court in this case and the court did not make required findings on registration, we reverse and remand for further proceedings.

I

[¶ 2] In March 2009, the State filed a petition in juvenile court, alleging D.J., a sixteen year old, committed the delinquent act of gross sexual imposition by engaging in a sexual act with a six-year-old victim. See N.D.C.C. § 12.1-20-03(l)(d). In April 2009, a judicial referee accepted D.J.’s admission that he committed the delinquent act, ordered him to complete a sexual offender evaluation and follow all recommendations, and reserved the issue of whether he was required to register as a sexual offender under N.D.C.C. § 12.1-32-15(2)(c). D.J. was committed to the custody of the Division of Juvenile Services until April 7, 2010. In May 2009, the Division of Juvenile Services asked the referee “to certify payment of the psycho-sexual evaluation ... prior to the determination of registration,” and on June 2, 2009, the referee ordered the Division of Juvenile Services to pay the costs of the evaluation. D.J. thereafter participated in a treatment program at a facility in Minnesota. In January 2010, the State filed a petition for a permanency hearing for D.J., and after a January 2010 hearing, the referee ordered custody to continue with the Division of Juvenile Services until January 2011.

[¶ 3] In March 2010, the State requested a hearing on whether D.J. should be required to register as a sexual offender. A hearing on the State’s request was rescheduled to May 11, 2010, and a referee granted the State’s request for two witnesses from the Minnesota treatment facility to appear telephonically at that hearing. The referee thereafter granted another continuance, ordering “that a proper evaluation] be completed as ordered June 2, 2009.”

[IT 4] In a June 9, 2010 letter to the referee, the State represented that two evaluations done at the Minnesota treatment facility complied with the court order for an evaluation and included sufficient information for the court’s registration decision. The State also indicated copies of the reports had been provided to D.J. and his mother, K.L. The referee responded:

If the Petitioner feels it has the necessary evidence to proceed with a hearing on registration then by all means schedule the hearing. Please make sure that Respondent’s Counsel has all necessary discovery, including any documents, case notes, and reports that any witness would be relying on to testify. The Court is treating this hearing as part of disposition and evidence will be received under that standard.
The scheduling of the hearing should take into account the Respondent Child being transported from Minnesota so an early afternoon may work best.

[¶ 5] D.J. thereafter objected to the proposed admission of August 3 and August 4, 2009 evaluations at the Minnesota facility. D.J. and KL. made further discovery requests, and the State responded that it was not going to call any witnesses at a scheduled July 14, 2010 hearing, because the State claimed D.J. had the burden of proof under N.D.C.C. § 12.1-32-15(2)(c). The referee thereafter indicated it would consider any reports or evaluations under the standards for a dispositional hearing and said the State had the burden to show registration was required.

[¶ 6] The State thereafter requested to have representatives from the Minnesota treatment facility appear telephonically at the July 14, 2010 hearing. The referee [336]*336granted the State’s request, and thereafter granted a continuance and a motion by K.L. to compel production by August 6, 2010, of all information, communications, and evaluations from the Minnesota facility. The State requested judicial review of the referee’s order to compel, and the juvenile court sustained the referee’s decision and ordered the State to produce the information by September 17, 2010.

[¶ 7] A registration hearing was scheduled for October 13, 2010, and the referee granted the State’s motion to allow representatives from the Minnesota treatment facility to appear telephonically. At the hearing, the State indicated it did not intend to call any witnesses or present any evidence, claiming it did not have the burden of showing the requirements for registration. No evaluations were introduced into evidence at the hearing or made part of the record before the judicial referee. The referee thereafter issued a written order, concluding the State had the burden of proving D.J. was required to register as a sexual offender and the State had failed to satisfy its burden of proof. The State requested judicial review of the referee’s decision, and the juvenile court adopted the referee’s order.

II

[¶ 8] In Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644 (quoting Interest of R.W.S., 2007 ND 37, ¶ 8, 728 N.W.2d 326), we recently described our standard of review of a juvenile court’s decision:

Under N.D.R.Civ.P. 62(a), this Court reviews a juvenile court’s factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo.

Ill

[¶ 9] The State argues N.D.C.C. § 12.1-32-15(2)(c) requires a juvenile such as D.J. to register as a sexual offender and allows deviation from registration only if the juvenile has not previously been convicted as a sexual offender or for a crime against a minor and the juvenile did not exhibit mental abnormality or predatory conduct in the commission of the offense. The State does not dispute this is D.J.’s first offense, but argues the court did not make the necessary findings about mental abnormality or predatory conduct and erred in deviating from the requirement for D.J. to register as a sexual offender. D.J. and K.L. respond that, when read with N.D.C.C. § 27-20-24(3) and in view of due process considerations, N.D.C.C. § 12.1-32-15(2)(c) requires the State to prove the elements for registration and the State failed to present any evidence in this case to sustain its burden of proof. D.J. and K.L. argue the juvenile court did not err in not requiring D.J. to register as a sexual offender.

[¶ 10] The issue in this case involves the interpretation of N.D.C.C. § 12.1-32-15(2)(c) in the context of proceedings regarding a juvenile under the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20. The interpretation of a statute is a question of law, which is fully reviewable on appeal. B.D.H. v. Mickelson, 2010 ND 235, ¶ 4, 792 N.W.2d 169. Our primary objective in interpreting a statute is to determine the legislature’s intent, and we initially look to the language of the statute to determine that intent. Id.

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Bluebook (online)
2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denham-v-dj-nd-2011.