Serano v. R. R.

305 N.W.2d 38, 1981 N.D. LEXIS 269
CourtNorth Dakota Supreme Court
DecidedApril 23, 1981
DocketCiv. No. 9904
StatusPublished
Cited by1 cases

This text of 305 N.W.2d 38 (Serano v. R. R.) 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
Serano v. R. R., 305 N.W.2d 38, 1981 N.D. LEXIS 269 (N.D. 1981).

Opinions

PEDERSON, Justice.

In June 1980 a petition was filed in the Juvenile Court of Morton County alleging that R.R. is a delinquent child, sixteen years of age, and that he committed the crime of escape in violation of § 12.1-08-06, NDCC. Hearing was set before the juvenile court referee for October 22, 1980.

On October 6, 1980, the Morton County state’s attorney filed a “Motion for Transfer,” requesting the transfer of jurisdiction to the Morton County Court With Increased Jurisdiction. The motion was twice amended and the hearing thereon was held on October 31, 1980, resulting in a juvenile court order transferring jurisdiction. The appeal from the transfer order does not stay the transfer and the record does not contain any application for a stay under § 27-20-56(2), NDCC. We do not speculate as to the consequence of a failure to prosecute after a transfer of jurisdiction has been ordered. We affirm the order.

„ The argument is made, in behalf of R.R., that (1) the court erred in failing “to commit R.R. to an appropriate institution for study and a report on his mental condition,” and (2) the court erred in finding that R. R. “was not treatable or amenable to treatment as a juvenile through available facilities.”

During the juvenile court hearing on the transfer motion, when the state’s attorney announced that the petitioner was resting his case, counsel for R.R. moved for a dismissal, or that the hearing be held in abeyance until R.R. “can be sent down to Jamestown to determine whether or not at this time he is treatable.” No reference was made at that time to the provisions of § 27-20-35, NDCC, which require the court to commit the child for 60 days to an appropriate institution, agency, or individual for study, and report if the evidence indicates that the child may be suffering from mental retardation or mental illness. In summarizing his case to the juvenile court and in argument to this court counsel relies significantly on § 27-20-35, NDCC.1

The only evidence in the record on R.R.’s mental condition was that which was received over the objection of R.R.’s counsel. That evidence indicated that there was no manifestation of mental illness. The state’s attorney was examining a counselor from the Industrial School and the following transpired:

“Q. You are not a psychologist?
“A. No; 1 am not.
“Q. But working with students, do you believe you can see if a mental illness is developing?
“A. That would be difficult to answer.
“Q. Okay. Do you or don’t you?
“A. Would you repeat the question, please.
“Q. Do you believe that you can see certain outward manifestations of mental illness?
[41]*41“MR. PULKRABEK: I object to the question. Insufficient foundation.
“THE COURT: I think a layman could determine that in some cases.
“Q. [Mr. Tuntland continuing] Do you believe you can recognize certain outward manifestations of mental illness?
“A. I believe a person could, yes.
“Q. You believe you can?
“A. I imagine I can. I guess I could.
“Q. Was [R.R.] behaving differently than any other normal person?
“A. No; his behavior was acceptable.”

Counsel’s objection to testimony discussing R.R.’s mental competency was inadvisable in light of his subsequent reliance upon § 27-20-35 which requires evidence of mental retardation or mental illness. Counsel now argues, in effect, that drug addiction and alcoholism are, as a matter of law, mental illnesses. He cites definitions from a March 1980 publication by the Commission on Professional and Hospital Activities, 1968 Green Road, Ann Arbor, Michigan 48105, called “ICD-9-CM”, which is designed for the classification of morbidity and mortality information for statistical purposes, and for the indexing of hospital records by disease and operations, for data storage and retrieval. However, for the purpose of commitment under the law of this State:

“Drug addiction and alcoholism do not per se constitute mental illness, although persons suffering from these conditions may also be suffering from mental illness.” Section 25-03.1-02(10), NDCC.

See also, In Interest of A. D. L., 301 N.W.2d 380 (N.D.1981).

The juvenile court did not err in rejecting R.R.’s motion that he “be sent down to Jamestown to determine whether or not at this time he is treatable.” Because there was no evidence presented at the hearing that R.R. may be suffering from mental retardation or mental illness, the obligation of the court to commit R.R. for a 60-day study under § 27-20-35(1), NDCC, did not arise.

We believe, nevertheless, that because proceedings under the Uniform Juvenile Court Act should not be treated as strictly adversary proceedings, in the future the juvenile court should explore on its own for evidence of competency when the matter has been raised, even when it is only counsel’s statement which raises it. We deem the proceeding under § 27-20-35 to be somewhat analagous to procedures authorized by §§ 12.1-04-03 through 12.1-04-10, NDCC, and the authority specified in Rule 28, NDRCrimP.

Hearings on the question of whether or not jurisdiction of an offense committed by a minor should be transferred to an adult court are governed by the provisions of § 27-20-34, NDCC. The transfer may be made if:

“The court finds that there are reasonable grounds to believe that:
(a) The child committed the delinquent act alleged;
(b) The child is not amenable to treatment or rehabilitation as a juvenile through available facilities;
(c) The child is not treatable in an institution for the mentally retarded or mentally ill; and
(d) The interests of the community require that the child be placed under legal restraint or discipline.” Section 27-20-34(l)(b)(4), NDCC.

The juvenile court found that there are reasonable grounds to believe that (1) R.R. committed the delinquent act — escape; (2) R.R. is not amenable to treatment or rehabilitation as a juvenile through available facilities; (3) R.R. is not treatable in an institution for the mentally retarded or mentally ill; and (4) the interest of the community requires that R.R. be placed under legal restraint or discipline.

Counsel agrees that there is testimony in the record in support of these findings but states that there is also testimony that R.R. is chemically dependent and is treatable and [42]*42can be rehabilitated.2 He argues that we are required to construe and effectuate the Uniform Juvenile Court Act:

“To provide for the care, protection,, and wholesome moral, mental, and physical development of children coming within its provisions.” Section 27-20-01(1), NDCC,

and

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Interest of RR
305 N.W.2d 38 (North Dakota Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
305 N.W.2d 38, 1981 N.D. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serano-v-r-r-nd-1981.