IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ) | Supreme Ct. No. 20120340 | |||||
| ) | |||||||
| Petitioner-Appellant, | ) | Juvenile Ct. No. 08-2011-JV-00328 | |||||
| ) | |||||||
| -vs- | ) | ||||||
| ) | |||||||
| M.H.P., Child, | ) | ||||||
| M.L.P., Mother; | ) | ||||||
| M.P., Father; | ) | ||||||
| ) | |||||||
| Respondents-Appellees, | ) | ||||||
)
BRIEF OF PETITIONER-APPELLANT
APPEAL FROM ORDER ADOPTING REFEREE'S FINDINGS AND ORDER DATED AUGUST 10, 2012, AND ORDER CLARIFYING ADOPTING REFEREE'S FINDINGS AND ORDER DATED AUGUST 29, 2012
Burleigh County Juvenile Court
South Central Judicial District
The Honorable Bruce Romanick, Presiding
| Dawn M. Deitz | ||||
| Burleigh County Assistant State's Attorney | ||||
| Courthouse, 514 East Thayer Avenue | ||||
| Bismarck, North Dakota 58501 | ||||
| Phone No: (701) 222-6672 | ||||
| BAR ID No: 06534 | ||||
| Attorney for Petitioner-Appellant | ||||
TABLE OF CONTENTS
Page No.
| Table of Authorities | i | |||
| Statement of the Issues | ||||
| 1 | ||||
| Statement of the Case | ||||
| 2 | ||||
| Statement of the Facts | ||||
| 4 | ||||
| Argument | ||||
| 6 | ||||
| Conclusion | ||||
| 11 | ||||
Table of Authorities
Page No.
| Cases | ||||||
| In Interest of P. W. N. | ||||||
| 1981, 301 N.W.2d 636 | 8 | |||||
| In re D.J. | ||||||
| 2011 ND 142, 800 N.W.2d 333, 337 | 6, 10 | |||||
| In re L.T. | ||||||
| 2011 ND 120, 798 N.W.2d 657 | 9 | |||||
| Johnson v. People in Interest of W-- J-- | ||||||
| 170 Colo. 137, 459 P.2d 579 (1969) | 9 | |||||
| State v. Burr | ||||||
| 1999 ND 143, 598 N.W.2d 147 | 9 | |||||
| Statutes | ||||||
| N.D.C.C. § 12.1-20-03(1)(d) | ||||||
| 9, 10 | ||||||
| N.D.C.C. § 12.1-32.15 | ||||||
| 9, 10 | ||||||
| N.D.C.C. § 27-20-29 | ||||||
| 1, 6, 7 | ||||||
| N.D.C.C. § 29-01-09(4) | ||||||
| 9 | ||||||
Statement of the Issues
Whether the trial court erred in dismissing the petition pursuant to N.D.C.C. § 27-20-29.
Whether the trial court erred in finding the Respondent-Child was not in need of treatment or rehabilitation.
Whether the trial court erred in not requiring the Respondent-Child to register as a sexual offender.
Statement of the Case
On August 3, 2011, a petition was filed alleging the Respondent-Child committed the offense of Gross Sexual Imposition, a Class A Felony, if committed by an adult. Appendix of Petitioner-Appellant (Appendix) at 7-9. It was specifically alleged that the Respondent-Child "engaged in sexual contact with E.B. by touching E.B.'s vaginal area through the clothing, and E.B.'s date of birth is 2002." Id. The trial was held on February 16, 2012, before the judicial referee. Appendix at 1-6. On March 2, 2012, the judicial referee issued his findings of fact which included specific findings as to what he relied upon in making his decision to adjudicate the Respondent-Child delinquent of Gross Sexual Imposition. Appendix at 10-13. The Respondents requested review by the district court which issued findings adopting the judicial referee's findings of fact and order. Appendix at 1-6.
The Respondent-Child submitted a brief concerning the need for treatment and sex offender registration citing an evaluation performed by Dr. Shannon Weisz in support of the position. Appendix at 15-18. The Petitioner submitted a response in opposition. Appendix at 19-37. A dispositional hearing was held on April 23, 2012. Appendix at 1-6. At that hearing, Dr. Weisz and family members of the Respondent-Child testified. See, Disposition Hearing Transcript (Transcript), May 31, 2012. At the conclusion of the hearing, the judicial referee concluded he did find the conduct predatory, however, the referee did not find a need to address registration given he did not find a need for treatment or rehabilitation. Id. at 60-62. The judicial referee issued written findings dismissing the petition. Appendix at 38-40. The Petitioner requested review of the findings by the district court. Appendix at 1-6. The district court issued an order adopting the referee's findings to dismiss the petition and not require registration. Appendix at 41-44.
Statement of the facts
On August 3, 2011, a petition was filed alleging the Respondent-Child committed the offense of Gross Sexual Imposition, a Class A Felony, if committed by an adult. Appendix at 7-9. It was specifically alleged that the Respondent-Child "engaged in sexual contact with E.B. by touching E.B.'s vaginal area through the clothing, and E.B.'s date of birth is 2002." Id. The trial was held on February 16, 2012, before the judicial referee. Appendix at 1-6. On March 2, 2012, the judicial referee issued his findings of fact which included specific findings as to what he relied upon in making his decision to adjudicate the Respondent-Child delinquent of Gross Sexual Imposition. Appendix at 10-13. The Respondents requested review by the district court which issued findings adopting the judicial referee's findings of fact and order. Appendix at 1-6.
The Respondent-Child submitted a brief concerning the need for treatment and sex offender registration citing an evaluation performed by Dr. Shannon Weisz in support of the position. Appendix at 15-18. The Petitioner submitted a response in opposition. Appendix at 19-37. In the Petitioner's brief, concerns with regard to Dr. Weisz's qualifications to perform sexual offender evaluations were raised. Id. The Petitioner also raised concern for the safety of the community, hence supporting the need for treatment and rehabilitation for the Respondent-Child. Id.
A dispositional hearing was held on April 23, 2012. See, Transcript. At that hearing, the Respondent-Child elicited testimony from Dr. Weisz and family members of the Respondent-Child testified. Id. Dr. Weisz testified to his belief that the Respondent-Child was not in need of sexual offender treatment "at this time." Transcript at 3-32. Over objection of the Petitioner, various family members of the Respondent-Child expressed their lack of concern with regard to the Respondent-Child. Transcript at 32-55.
At the conclusion of the hearing, the judicial referee concluded he did find the conduct predatory, however, there was no need to address registration as he did not find a need for treatment or rehabilitation. Transcript at 60-62. The judicial referee issued written findings dismissing the petition. Appendix at 38-40. The Petitioner requested review of these findings by the district court. Appendix at 1-6. The district court issued an order adopting the referee's findings to dismiss the petition and not require registration. Appendix at 41-44.
Argument
Section 27-20-29(2) of the North Dakota Century Code states that after a child has been adjudicated delinquent, the trial court must make the determination whether the child is in need of treatment or rehabilitation. A felony adjudication is sufficient to sustain a finding for a need of treatment or rehabilitation in absence of evidence to the contrary. N.D.C.C. § 27-20-29(2). The Respondent-Child was adjudicated delinquent for Gross Sexual Imposition. Appendix at 10-13. On April 13, 2012, a hearing was held and testimony taken regarding the need for treatment and rehabilitation. See, Transcript. At that hearing, the Respondent-Child provided testimony from Dr. Weisz as well as several members of the Respondent-Child's family. Id. Over objection from the Petitioner, family members testified about their lack of concerns for safety with regard to the Respondent-Child. Transcript at 32-55.
The judicial referee made a finding that the Respondent-Child was not in need of treatment or rehabilitation and dismissed the petition. Transcript at 60-62. The court's primary objective in interpreting a statute is to determine the legislature's intent and the court initially looks to the language of the statute to determine that intent. In re D.J., 2011 ND 142, 800 N.W.2d 333. Section 27-20-29(2) of the North Dakota Century Code states "[i]f the court finds that the child is not in need of treatment or rehabilitation, it shall dismiss the proceeding." (emphasis added.) The trial court erred in dismissing the petition rather than just the proceeding. It is clear the legislature intended for only the proceeding to be dismissed as section 27-20-29(1) requires dismissal of the petition in deprivation proceedings. (emphasis added.) Such care was taken with regard to the words used within the varying sections of the statute, hence it is clear, if a court makes a determination concerning the need for treatment or rehabilitation pursuant to section 27-20-29(2), only the proceeding should be dismissed. The dismissal of the petition is absurd as the judicial referee found the Respondent-Child committed the delinquent act of gross sexual imposition. Appendix at 10-13. A trial was held and the judicial referee took the matter under advisement to provide an opportunity to review the evidence presented. Appendix at 1-6. Approximately two weeks later, the judicial referee issued written findings of fact and order. Appendix at 10-13. It was at the dispositional hearing, the judicial referee appeared to put far less thought concerning what to do with the Respondent-Child, whom had recently been adjudicated for Gross Sexual Imposition upon an eight year old child. With the judicial referee having already made a finding of the commission of an offense, reversing the finding at the dispositional phase would be erroneous and an injustice.
With regard to treatment and rehabilitation, the judicial referee seemed to only take into account the Respondent-Child's family's lack of concerns and discount all concerns for the safety of the general public. The Respondent-Child underwent a psychosexual evaluation performed by Dr. Shannon Weisz. Appendix at 31-37. Based upon Dr. Weisz's findings, the Respondent-Child submitted a brief to the trial court arguing there was not a need for treatment or rehabilitation. Appendix at 15-18. The Petitioner submitted a response pointing out Dr. Weisz's lack of qualifications. Appendix at 19-37. Additionally, the Petitioner indicated treatment and rehabilitation was necessary for the safety of the public. Id. The nature and severity of offense committed by juvenile must also be given consideration. In Interest of P. W. N., 1981, 301 N.W.2d 636.
The judicial referee concluded the Respondent-Child was not in need of treatment or rehabilitation. The judicial referee did not account for the bias the testifying witnesses may have when providing their opinion(s) of the Respondent-Child. The trial court did note that the behavior exhibited by the Respondent-Child for the commission of the adjudicated offense was predatory. Transcript at 60-62.
The need for treatment and rehabilitation is more than meeting with various professionals. Rehabilitation also entails monitoring of the offender and ensuring the safety for the general public. The fact that the judicial referee made such a conclusion that the behavior was predatory yet makes such a conclusion that the Respondent-Child is not in need of treatment and rehabilitation would indicate the concern for the public was not taken into account whatsoever. The trial court must weigh a proper disposition that best serves the interests of the child and the public. Johnson v. People in Interest of W-- J--, 170 Colo. 137, 459 P.2d 579 (1969).
On March 2, 2012, the judicial referee issued findings of fact and order determining evidence was presented beyond a reasonable doubt to adjudicate the Respondent-Child for the delinquent act of Gross Sexual Imposition pursuant to N.D.C.C. § 12.1-20-03(1)(d). Appendix at 10-13. Given the judgment was made upon a court lawfully given without the intervention of a jury, the delinquent adjudication is considered a conviction. N.D.C.C. § 29-01-09(4). Upon a conviction for Gross Sexual Imposition, "[t]he court shall require[] that the individual register" as a sexual offender. N.D.C.C. § 12.1-32.15. The requirement that an individual register as a sexual offender is a regulatory statue created to aid law enforcement agencies in keeping track of offenders' residences, places of employment, and other important details regarding their whereabouts. State v. Burr, 1999 ND 143, ¶ 36, 598 N.W.2d 147; N.D.C.C. § 12.1-32-15. It has been determined that the registration requirement is not punishment but the protection of a legitimate public interest imposing a collateral consequence upon a conviction for a criminal offense. Id. Registration as a sexual offender is a collateral consequence of a conviction. In re L.T., 2011 ND 120, ¶ 20-21, 798 N.W.2d 657. "The court may deviate from requiring the juvenile to register if the court first finds the juvenile has not previously been convicted as a sexual offender or for a crime against a child, and the juvenile did not exhibit mental abnormality or predatory conduct in the commission of the offense." N.D.C.C. § 12.1-32-15.
That language indicates that registration is ordinarily required for juveniles found delinquent under N.D.C.C. § 12.12003(1)(d), but allows a court some discretion in limited circumstances to permit deviation from registration for first time offenders who do not exhibit mental abnormality or predatory conduct in the commission of the offense. In re D.J., 2011 ND 142 ¶ 12, 800 N.W.2d 333, 337. While the petitioner concedes the Respondent-Child was not previously convicted as a sexual offender, the trial court found the conduct exhibited by the Respondent-Child to be predatory. Transcript at 60-62. Given the trial court's finding of predatory conduct, the Respondent-Child should be required to register as a sexual offender.
Conclusion
Based upon the foregoing, the State requests that the trial court's Order Adopting Referee's Findings and Order dated august 10, 2012, and Order Clarifying Adopting Referee's Findings and Order dated August 29, 2012, be reversed and remanded.
Dated this ____ day of November, 2012.
| Dawn M. Deitz | |||||
| Burleigh County Assistant State's Attorney | |||||
| Courthouse, 514 East Thayer Avenue | |||||
| Bismarck, North Dakota 58501 | |||||
| Phone No: (701) 222-6672 | |||||
| BAR ID No: 06534 | |||||
| Attorney for Petitioner-Appellant | |||||