In the Interest of Kevin R.

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Interest of Kevin R., A Juvenile Under the Age of
Seventeen, Appellant.

Appellate Case No. 2012-212655

Appeal From Richland County
The Honorable Robert E. Newton, Family Court Judge
The Honorable Gwendlyne Y. Smalls, Family Court Judge

Opinion No. 27430

Heard April 16, 2014 – Filed August 6, 2014

AFFIRMED

Appellate Defender Susan Barber Hackett, of South
Carolina Commission on Indigent Defense, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, for Respondent.

John S. Nichols, of Bluestein, Nichols, Thompson &
Delgado, L.L.C., of Columbia; John D. Elliott, of Law
Offices of John D. Elliott, P.A., of Columbia; and Bert G.
Utsey, III, of Peters, Murdaugh, Parker, Eltzroth &
Detrick, P.A., of Walterboro; for Amici Curiae, South
Carolina Association for Justice, South Carolina
Association of Criminal Defense Lawyers, and Lawyers
 Committee for Children's Rights.

JUSTICE BEATTY: In a juvenile petition, the State charged Kevin R.
("Appellant") with possessing a weapon on school grounds in violation of section
16-23-430 of the South Carolina Code.1 Prior to his adjudicatory hearing before a
family court judge, Appellant moved for a jury trial on the ground the United
States Constitution2 and the South Carolina Constitution3 guaranteed him the right
to a jury trial. The judge denied the motion and proceeded to hear Appellant's case
in a bench trial. Ultimately, the judge adjudicated Appellant delinquent and
deferred sentencing until an evaluation of Appellant was completed. The
sentencing hearing was conducted before a second family court judge, who
sentenced Appellant to an indeterminate period of time not to exceed his twenty-

1
S.C. Code Ann. § 16-23-430(A) (Supp. 2013) ("It shall be unlawful for any
person, except state, county, or municipal law enforcement officers or personnel
authorized by school officials, to carry on his person, while on any elementary or
secondary school property, a knife, with a blade over two inches long, a blackjack,
a metal pipe or pole, firearms, or any other type of weapon, device, or object which
may be used to inflict bodily injury or death.").
2
U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the
accusations; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense."); see U.S. Const. amend. XIV, § 1 ("All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.").
3
S.C. Const. art. I, § 14 ("The right of trial by jury shall be preserved inviolate.
Any person charged with an offense shall enjoy the right to a speedy and public
trial by an impartial jury; to be fully informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to be fully heard in his defense by
himself or by his counsel or by both." (emphasis added)).
first birthday. The judge then suspended the sentence and placed Appellant on
probation until his eighteenth birthday.
On appeal, Appellant contends the family court judge erred in denying his
motion for a jury trial. Recently, this Court held a juvenile does not have a
constitutional right to a jury trial in adjudication proceedings. In re Stephen W.,
Op. No. 27413 (S.C. Sup. Ct. filed July 16, 2014) (Shearouse Adv. Sh. No. 28 at
29). ("Stephen W."). However, our decision in that case is not dispositive as we
have now been presented with additional arguments raised by Appellant and the
Amici Curiae. After consideration of these issues, we adhere to our decision in
Stephen W. Accordingly, we affirm the ruling of the family court.

I. Factual / Procedural History

On October 4, 2011, Richland County Deputy Milton Clark, the school
resource officer at Olympia Learning Center, received a call from an employee of
the school. Based on this call, Deputy Clark removed Appellant, a sixteen-year-
old student at the school, from a classroom and took him to a secure area to
question him regarding his alleged possession of a weapon. Appellant admitted
that he had a pocketknife in his sock. Deputy Clark then searched Appellant and
found a pocketknife with a three-inch retractable blade.

On October 24, 2011, Deputy Clark filed a juvenile petition in Richland
County family court, alleging Appellant was a delinquent for carrying a weapon on
school grounds. The Honorable Robert E. Newton held an adjudicatory hearing on
July 24, 2012. At the beginning of the hearing, Appellant's counsel moved for a
jury trial on the ground Appellant was entitled to have a jury adjudicate his case
based on the federal and state constitutions. Judge Newton denied Appellant's
motion and proceeded with the bench trial. At the conclusion of the hearing, Judge
Newton adjudicated Appellant to be delinquent for possessing a weapon on school
grounds. Because Appellant was currently being evaluated at the Midlands
Evaluation Center, Judge Newton delayed sentencing until the evaluation was
completed.

On August 1, 2012, the Honorable Gwendlyne Y. Smalls held a hearing and
ultimately sentenced Appellant to an indeterminate period of time not to exceed his
twenty-first birthday. She then suspended the sentence and placed Appellant on
probation, subject to certain conditions, until his eighteenth birthday. Appellant
appealed to the Court of Appeals. This Court certified the case pursuant to Rule
204(b) of the South Carolina Appellate Court Rules.
 II. Discussion

A. Arguments

1. Appellant

Appellant contends section 63-3-590 of the South Carolina Code,4 which
provides in part that "[a]ll cases of children must be dealt with as separate hearings
by the court and without a jury," violates the clear mandate of the South Carolina
Constitution that "any person" charged with an "offense" shall be entitled to a jury
trial. In support of this contention, Appellant asserts a juvenile is guaranteed the
right to a jury trial because (1) a "child" is a "person" as defined throughout the

4
Section 63-3-590 provides in full:

All cases of children must be dealt with as separate hearings by the
court and without a jury. The hearings must be conducted in a formal
manner and may be adjourned from time to time. The general public
must be excluded and only persons the judge finds to have a direct
interest in the case or in the work of the court may be admitted. The
presence of the child in court may be waived by the court at any stage
of the proceedings. Hearings may be held at any time or place within
the county designated by the judge. In any case where the
delinquency proceedings may result in commitment to an institution
in which the child's freedom is curtailed, the privilege against self-
incrimination and the right of cross-examination must be preserved.
In all cases where required by law, the child must be accorded all
rights enjoyed by adults, and where not required by law the child must
be accorded adult rights consistent with the best interests of the child.

S.C. Code Ann. § 63-3-590 (2010) (emphasis added); see Rule 9(a), SCRFC ("All
hearings in the family courts shall be conducted by the court without a jury.
Hearings shall be conducted in a judicial atmosphere, with the judge wearing a
black judicial robe.").
South Carolina Code,5 and (2) a juvenile petition charges a child with an
"offense."6
As to the United States Constitution, Appellant acknowledges the United
States Supreme Court's decision in McKeiver v. Pennsylvania, 403 U.S. 528
(1971), in which a plurality of the Court determined that juveniles are not
constitutionally entitled to a jury trial in adjudication proceedings. However,
Appellant challenges the propriety of McKeiver because "[i]n the forty years since
McKeiver, the purposes and consequences of delinquency proceedings have
changed." Specifically, Appellant asserts the South Carolina juvenile justice
system is now much like the adult criminal justice system as the focus is
punishment of the juvenile offender rather than rehabilitation. For example,
Appellant notes that juveniles, who are adjudicated delinquent for enumerated sex
offenses, must register for life as sex offenders.7 Thus, Appellant maintains that

5
See, e.g., S.C. Code Ann. § 63-1-40(1) (2010) (generally defining "child" as a
"person under the age of eighteen" in the context of the South Carolina Children's
Code); id. § 63-19-20(1) (defining "child" or "juvenile" to mean "a person less than
seventeen years of age" in the context of the South Carolina Juvenile Justice
Code).
6
See, e.g., S.C. Code Ann. § 63-19-360(4) (2010) (providing for juvenile
detention services for "juveniles charged with having committed a criminal offense
who are found, after a detention screening or detention hearing, to require
detention or placement outside the home pending an adjudication of delinquency or
dispositional hearing"); id. § 63-19-810(B)(1) (requiring officer who takes a child
into custody for violating a criminal law or ordinance to include in his or her report
"the facts of the offense").
7
See, e.g., S.C. Code Ann. § 23-3-430(A) (2007) (stating, in part, "Any person,
regardless of age, residing in the State of South Carolina who in this State has
been convicted of, adjudicated delinquent for, pled guilty or nolo contendere to an
offense described below, or who has been convicted, adjudicated delinquent, pled
guilty or nolo contendere, or found not guilty by reason of insanity in any
comparable court in the United States, or a foreign country, or who has been
convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not
guilty by reason of insanity in the United States federal courts of a similar offense,
or who has been convicted of, adjudicated delinquent for, pled guilty or nolo
contendere, or found not guilty by reason of insanity to an offense for which the
person was required to register in the state where the conviction or plea occurred,
shall be required to register pursuant to the provisions of this article" (emphasis
"[l]ittle distinguishes delinquency proceedings from criminal prosecutions except
the absence of a jury."
2. Amici Curiae

An amicus brief was filed on behalf of the South Carolina Association for
Justice, the South Carolina Association of Criminal Defense Lawyers, and the
Lawyers Committee for Children's Rights. In this brief, the Amici Curiae reiterate
Appellant's arguments that a juvenile should be "allowed to demand" a trial by jury
in family court because: (1) a juvenile was entitled to a jury trial at the time of the
adoption of the South Carolina Constitution in 1868;8 and (2) a "child" is a
"person" as defined throughout the South Carolina Code and a juvenile petition
charges a child with an "offense."

The Amici Curiae supplement Appellant's arguments with policy
considerations that were raised during the oral argument of Stephen W. Initially,
they contend the availability of a trial by jury for a juvenile will "result in more
reliable verdicts" because there are several deficiencies in family court bench trials.
Specifically, they claim juvenile adjudications are not always accurate or reliable
because a family court judge, who is the sole fact-finder, may: (1) be inclined to
find guilt due to his or her "professional bias" that "fault must be found and the
youngster punished"; (2) apply an erroneous legal standard in determining whether
an offense was committed; and (3) reach "erroneous conclusions based on
insufficient evidence." Given the significant collateral consequences a juvenile
faces as the result of an adjudication of guilt, they maintain a jury trial is necessary
to ensure accuracy in fact-finding and to create a complete record for appellate
review.

Although the Amici Curiae concede there would need to be certain
procedural and logistical changes to accommodate a juvenile's request for a jury
trial, they assert these changes are not insurmountable as evidenced by the states

added)); id. § 23-3-490(D)(1) (Supp. 2013) (providing for public disclosure of the
identity of juvenile offenders who have been adjudicated delinquent for
enumerated sex offenses).
8
See Verenes v. Alvanos, 387 S.C. 11, 15, 690 S.E.2d 771, 773 (2010) ("The right
to trial by jury is guaranteed in every case in which the right to a jury was secured
at the time of the adoption of the Constitution in 1868." (quoting Mims Amusement
Co. v. S.C. Law Enforcement Div., 366 S.C. 141, 149, 621 S.E.2d 344, 348
(2005))).
that currently provide jury trials for adjudication proceedings.9 For several
reasons, they believe South Carolina family courts could join these jurisdictions
with minimal disruption to the state's court system. They contend there would be
few jury trials conducted as contested adjudications occur infrequently. In
addition, they state the venue for conducting these trials "should be relatively
simple" as the family court in each judicial circuit has access to a courtroom, either
in circuit court or magistrate's court, which contains a jury box. Finally, they posit
that assembling a venire for jury selection would not be difficult as the clerks of
court throughout the state routinely summon jurors for jury duty in Common Pleas
or General Sessions. Thus, jurors could be selected from these jury pools to serve
on family court jury trials.

B. Analysis

1. Implication of In the Interest of Stephen W.

Recently, this Court held that neither the federal nor the state constitution
requires a jury trial in juvenile adjudication proceedings. In re Stephen W., Op.
No. 27413 (S.C. Sup. Ct. filed July 16, 2014) (Shearouse Adv. Sh. No. 28 at 29).
As noted in Stephen W., the United States Supreme Court's decision in McKeiver
definitively resolves Appellant's argument with respect to the federal constitution.
Id. at 31. Moreover, "[m]ost jurisdictions that have dealt with the issue of the
continued viability of McKeiver have determined that it is still settled law; that is,
jury trials in juvenile proceedings may be provided if a State chooses to do so, but
it is not a mandated right required by concerns of fundamental fairness under the
Federal Constitution." In the Interest of A. C., 43 A.3d 454, 461 (N.J. Sup. Ct.
2012) (emphasis added). See generally B. Finberg, Annotation, Right to Jury Trial
in Juvenile Delinquency Proceedings, 100 A.L.R.2d 1241, § 2[a] (1965 & Supp.
2014) (collecting state and federal cases discussing whether a juvenile is entitled to
a jury trial in juvenile court proceedings; recognizing that "the individual charged
with being a delinquent has no right, under the pertinent state or federal
constitution, to demand that the issue of his delinquency be determined by a jury").

9
A minority of states have enacted statutes that provide jury trials for juvenile
adjudication proceedings. See Mass. Gen. Laws. ch. 119, § 55A (2010); Mich.
Comp. Laws § 712A.17(2) (2011); Mont. Code Ann. § 41-5-1502(1) (2011); N.M.
Stat. Ann. § 32A-2-16(A) (2011); Okla. Stat. Ann. tit. 10A, § 2-2-401 (2011); Tex.
Fam. Code Ann. § 54.03(c) (2009); W. Va. Code § 49-5-6 (2011); Wyo. Stat. Ann.
§ 14-6-223(c) (2011) (amended on Mar. 10, 2014 regarding juror selection).
 Furthermore, as analyzed in Stephen W., the General Assembly has created a
system for juveniles that is distinctly different from adult offenders based on the
premise that "South Carolina, as parens patriae, protects and safeguards the
welfare of its children." Harris v. Harris, 307 S.C. 351, 353, 415 S.E.2d 391, 393
(1992); see State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007) (noting state's
continued recognition of parens patriae in juvenile proceedings). The continued
recognition of the parens patriae doctrine distinguishes South Carolina from those
jurisdictions that have found a juvenile is constitutionally entitled to a jury trial.

For example, the Supreme Court of Kansas held that juveniles have a
constitutional right to a jury trial in juvenile offender proceedings. In the Matter of
L. M., 186 P.3d 164 (Kan. 2008). In so ruling, the court premised its analysis by
stating that "the Kansas Legislature has significantly changed the language of the
Kansas Juvenile Offender Code (KJOC)." Id. at 168. Specifically, the court noted
these changes negated the rehabilitative purpose set forth in the KJOC, replaced
nonpunitive terminology with criminal terminology similar to the adult criminal
code, aligned the sentencing provisions with the adult sentencing guidelines, and
removed "the protections that the McKeiver Court relied on to distinguish juvenile
systems from the adult criminal systems." Id. The court explained that "[t]hese
changes to the juvenile justice system have eroded the benevolent parens patriae
character that distinguished it from the adult criminal system." Id. at 170. Unlike
Kansas, South Carolina has retained the doctrine of parens patriae in juvenile
proceedings. Thus, Appellant's reliance on In the Matter of L. M. is misplaced.

Moreover, the collateral consequences claimed by Appellant do not entitle a
juvenile to a jury trial as the General Assembly has specifically stated that
adjudication is not the equivalent of a conviction. See S.C. Code Ann. § 63-19-
1410(C) (2010) ("No adjudication by the court of the status of a child is a
conviction, nor does the adjudication operate to impose civil disabilities ordinarily
resulting from conviction, nor may a child be charged with crime or convicted in a
court, except as provided in Section 63-19-1210(6). The disposition made of a
child or any evidence given in court does not disqualify the child in a future civil
service application or appointment." (emphasis added)).

Additionally, any assertion that juveniles should be entitled to a jury trial
because they are subject to registering as a sex offender if they are adjudicated
delinquent for certain sex offenses is without merit as our appellate courts have
held that registering as a sex offender is a civil, non-punitive consequence. See In
re Justin B., 405 S.C. 391, 747 S.E.2d 774 (2013) (affirming juvenile's guilty plea
in family court for criminal sexual conduct with a minor, first degree and
concluding imposition of lifetime electronic monitoring was a civil obligation and
not a punishment), cert. denied, 134 S. Ct. 1496 (2014); In re Ronnie A., 355 S.C.
407, 585 S.E.2d 311 (2003) (holding requirement that a juvenile, who is
adjudicated delinquent for committing criminal sexual conduct with a minor, first
degree, to register as a sex offender is non-punitive and does not violate due
process).10 Accordingly, we reaffirm the analysis in Stephen W. that addressed the
issues raised by Appellant in the instant case.

Our decision in Stephen W., however, is not dispositive as we have now
been presented with arguments raised by the Amici Curiae. Initially, we are not
persuaded by the assertions of the Amici Curiae regarding the lack of reliability in
family court juvenile proceedings and the changes that would be needed to
accommodate jury trials in family court. Significantly, they offer no objective
evidence that family court bench trials in juvenile proceedings are somehow less
reliable than other family court proceedings or proceedings conducted as bench
trials in the circuit or probate courts. In all of these contexts, a judge presides as
the sole fact-finder regarding cases that implicate a person's liberty interest. See,
e.g., S.C. Code § 43-35-45(E) (Supp. 2013) (outlining procedure for family court's
determination that someone qualifies as a "vulnerable adult"); id. § 44-17-580(A)
(outlining procedure for probate court's determination regarding a person's
involuntary commitment to a mental health facility).11 Thus, in the absence of any

10
Although the issue is not before the Court, we note the inconsistent positions of
the General Assembly to limit the negative civil parameters of adjudication
proceedings but permit the consequences of an adjudication to continue for the
lifetime of one who is adjudicated delinquent for sex offenses. If this state retains
the doctrine of parens patriae in juvenile proceedings, then the consequences of
these proceedings should expire when the individual reaches the age of twenty-one
years old. See S.C. Code Ann. § 63-19-1410(A)(5) (2010) (providing that
commitment "must be for an indeterminate period but in no event beyond the
child's twenty-first birthday").
11
Some proceedings in probate court may be tried before a jury; however, these
cases are extremely limited. See S.C. Code Ann. § 62-1-306(a) (Supp. 2013) ("If
duly demanded, a party is entitled to trial by jury in any proceeding involving an
issue of fact in an action for the recovery of money only or of specific real or
personal property, unless waived as provided in the rules of civil procedure for the
courts of this State. The right to trial by jury exists in, but is not limited to, formal
proceedings in favor of the probate of a will or contesting the probate of a will.").
fundamental distinction,12 we discern no basis on which to find that a jury trial is
warranted in juvenile proceedings.
Moreover, judges are presumed impartial and if a juvenile believes a family
court judge has "professional bias," the juvenile may move to recuse that particular
judge. See Patel v. Patel, 359 S.C. 515, 524, 599 S.E.2d 114, 118 (2004) ("It is not
sufficient for a party seeking disqualification to simply allege bias; the party must
show some evidence of bias or prejudice."); Reading v. Ball, 291 S.C. 492, 494,
354 S.E.2d 397, 398 (Ct. App. 1987) ("When no evidence is presented other than
claimed 'adverse' rulings by the judge, the judge is not required to recuse
himself."); see also Canon 3(B)(5) of Rule 501, SCACR ("A judge shall perform
judicial duties without bias or prejudice.").

Furthermore, a juvenile who objects to the adjudication procedure or ruling
has several avenues of recourse as he or she may file an appeal, an application for
post-conviction relief, or a petition for a writ of habeas corpus. See S.C. Code
Ann. § 63-3-640 (2010) ("Post conviction proceedings, including habeas corpus
actions, shall be instituted in the court in which the original action was concluded;
provided, however, that the family courts shall also have original jurisdiction of
habeas corpus actions if the person who is the subject of the action would
otherwise be within the jurisdiction of the family court."); id. § 63-3-650 ("Any
judge shall have the power to issue a writ of habeas corpus to produce any person
under the age of seventeen in court where necessary.").

As to the changes that would be necessary to implement a juvenile's right to
a jury trial, the Amici Curiae oversimplify what would be required. They contend
jurors for a family court trial could be selected from a jury pool that has been
summoned for the Court of Common Pleas or the Court of General Sessions. This
procedure would defeat the General Assembly's intent to keep juvenile proceedings
separate and distinct from adult proceedings. It would also create an inefficient
and overlapping system where a circuit court judge qualifies a jury panel and then
jurors are selected before a family court judge to serve on a juvenile case.
Additionally, this procedure would result in increased expenditures for counties as
more jurors would need to be compensated and staff employed.

12
Arguably, the difference in the burdens of proof in the proceedings, i.e., beyond
a reasonable doubt versus clear and convincing, constitutes a fundamental
distinction. However, this distinction is not dispositive as bench trials are routinely
conducted in the Court of General Sessions where the burden of proof is beyond a
reasonable doubt.
 Based on the foregoing, we hold that Appellant has not met his burden to
prove that section 63-3-590 violates either the federal or state constitution.13 See
43 C.J.S. Infants § 134 (Supp. 2014) ("Although a jury trial in a juvenile
delinquency proceeding may not be a federal nor a state constitutional requisite, in
the adjudicative stage of a state juvenile court delinquency proceeding, if, in its
wisdom, any state feels that a jury trial is desirable, there is no impediment to its
installing a system embracing that feature, but such is the State's privilege and not
its obligation."). Consequently, we adhere to our decision in Stephen W.

2. Constitutional Concerns Beyond Adjudication Proceedings

While we find a decision to affirm the family court is correct as Appellant's
arguments are confined to challenging a juvenile's inability to request a jury trial in
adjudication proceedings, we recognize a state constitutional conundrum. Under
the plain terms of our state constitution, a juvenile charged with a criminal offense
has an absolute right to a jury trial. Although the General Assembly may prohibit
a juvenile from exercising this right in juvenile adjudications, it cannot
legislatively eliminate the right in its entirety.

As the law currently stands, the General Assembly has authorized only the
State and the family court to initiate the transfer of a juvenile into a court where the
case could be tried by a jury. See S.C. Code Ann. § 63-19-1210(4)-(10) (2010)
(providing circumstances transferring jurisdiction of a juvenile from family court
to a "court which would have trial jurisdiction of the offenses if committed by an
adult" based on determination by family court either on its own decision or
following the State's request); 21 S.C. Jur. Children & Families § 102 (Supp.
2014) (discussing circumstances involving "transfer of a juvenile to adult court").
This procedure is arguably unconstitutional as a juvenile should be able to
affirmatively exercise the right to have a jury trial if charged with an offense for
which the family court could waive jurisdiction. See 47 Am. Jur. 2d Juvenile
Courts § 94 (Supp. 2014) ("There is no constitutional right to a jury trial in

13
See State v. Ross, 185 S.C. 472, 477, 194 S.E. 439, 441 (1937) ("A court should
not declare a statute unconstitutional unless its invalidity is manifest beyond a
reasonable doubt, and the burden to show its unconstitutionality rests upon the one
making the attack. It does not require citation of authorities to sustain this
proposition, for our court has so often announced this principle, in cases which it
has been called upon to decide the question of the constitutionality of certain
statutes, that this principle has become axiomatic.").
juvenile delinquency proceedings and such right is purely statutory. Some
authority, though, holds that a juvenile has a state constitutional right to a jury trial,
or that a juvenile has a right to a jury trial if accused of an act which would be a
crime if committed by an adult." (footnotes omitted) (emphasis added)).14

Without question, the South Carolina Children's Code and its adjudication
procedure emanate from the State's power and responsibility as parens patriae.
The State's status as parens patriae is substantial and should not be easily
dismissed. Concomitant with this status is the responsibility not to arbitrarily
abandon it without articulable good cause. Given the significance of abdicating
this role, this Court has adopted factors for a family court to evaluate before
transferring a juvenile's case to the Court of General Sessions.15 Nonetheless, the

14
Although a juvenile may not initiate the waiver of jurisdiction, we note that he
or she may appeal the waiver order or consent to the transfer. See State v. Rice,
401 S.C. 330, 737 S.E.2d 485 (2013) (affirming juvenile's plea of guilty in general
sessions court and finding that juvenile, by pleading guilty, waived any
constitutional challenge to the family court waiver of jurisdiction); State v. Lamb,
374 S.C. 346, 649 S.E.2d 486 (2007) (affirming juvenile's conviction for murder
and concluding court of general sessions had subject matter jurisdiction to try
juvenile after the family court accepted juvenile's consent to transfer jurisdiction).
However, these procedures do not equate to an absolute right to affirmatively
request a jury trial.
15
This Court has stated that "[u]pon a motion to transfer jurisdiction, the family
court must determine if it is in the best interest of both the child and the
community before granting the transfer request." State v. Pittman, 373 S.C. 527,
558, 647 S.E.2d 144, 160 (2007). "The family court must consider eight factors, as
approved by the United States Supreme Court in Kent v. United States, 383 U.S.
541 (1966), in making this determination." Id. at 558-59, 647 S.E.2d at 160. The
factors are:

(1) The seriousness of the alleged offense.

(2) Whether the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner.

(3) Whether the alleged offense was against persons or against

property, greater weight being given to offenses against persons

especially if personal injury resulted.

State's status as parens patriae cannot supplant a juvenile's immutable state
constitutional rights.

The apparent tension between the State's power as parens patriae and a
juvenile's state constitutional right to a jury trial must be reconciled.
Reconciliation is found by recognizing that the two are not mutually exclusive and
that they are in fact dual tracks for handling juvenile transgressions. Although a
juvenile is not entitled to a jury trial in an adjudication proceeding, the juvenile
should be permitted to remove his case from the family court to a court of
competent jurisdiction where a jury trial may be conducted. However, when this
election is made, the juvenile forfeits the benevolent treatment of the parens
patriae adjudication proceeding.

III. Conclusion

After consideration of the issues raised by Appellant and the Amici Curiae,
we adhere to our decision in Stephen W. Accordingly, we affirm the family court's
denial of Appellant's motion for a jury trial in his adjudication proceedings.

(4) The prosecutive merit of the complaint.
(5) The desirability of trial and disposition of the entire offense in one
court.

(6) The sophistication and maturity of the juvenile as determined by
consideration of his home, environmental situation, emotional attitude
and pattern of living.

(7) The record and previous history of the juvenile, including previous
contacts with law enforcement agencies, juvenile courts and other
jurisdictions, prior periods of probation, or prior commitments to
juvenile institutions.

(8) The prospects for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile (if he is found to
have committed the alleged offense) by the use of procedures,
services and facilities currently available.

Id. at 559, 647 S.E.2d at 160.
 AFFIRMED.

HEARN, J., concurs. TOAL, C.J., concurring in part and dissenting in
part in a separate opinion. PLEICONES, J., concurring in part and dissenting
in part in a separate opinion in which KITTREDGE, J., concurs.
 CHIEF JUSTICE TOAL: I join the well-reasoned lead opinion as to
Sections I; II(A)(1); II(A)(2); II(B)(1); and III. I decline to join Section II(B)(2) of
the lead opinion and dissent therefrom.
JUSTICE PLEICONES: I concur in part and dissent in part. First, I agree that
our decision in Stephen W,16 is dispositive of the only issue properly before this
Court: whether a juvenile is entitled to a jury trial in a family court delinquency
proceeding. To the extent that the majority addresses matters raised only by the
amicus curiae, I dissent. See Rule 213 SCACR. I also disagree with any
suggestion that a juvenile's "immutable right to a jury trial" requires the Court sua
sponte create a right allowing the juvenile to waive his case from family court to
general sessions. The purported "constitutional conundrum" results from the
equation of a juvenile delinquency petition with a criminal charge, a
misunderstanding that is wholly at odds with our analysis in Stephen W. Further,
were this new procedure indeed constitutionally mandated, then I do not
understand why we would not remand this appeal to allow Appellant the
opportunity to exercise his right to a jury trial in general sessions.

In my opinion, this case is controlled in its entirety by Stephen W. Accordingly, I
respectfully dissent from any discussion beyond the issue raised by the Appellant,
and would hold only that the family court order should be affirmed.

KITTREDGE, J., concurs.

16
In re Stephen W., Op. No. 27413 (S.C. Sup. Ct. filed July 16, 2014).