concurring in the result.
In North Dakota, it is the rehabilitation of children, not their punishment, that the legislature has ordained. That being the case, our efforts should be directed toward realizing that rehabilitative goal with all the means at our disposal. In Interest of R.R., 305 N.W.2d 38, 45 (N.D.1981) (Vande-Walle, J., and Paulson, J., dissenting). The majority opinion, faithful to the legislature’s commitment to the rehabilitation of all delinquent children, provides a chance for M.D.N. to request reconsideration of the transfer order based upon additional evidence. With that act of grace, I heartily concur. I also concur in the result.
I knew it was trouble when the State and the child relied upon the same expert testimony in support of their respective positions. The moral of this case, from the child’s point of view, is to secure an expert witness who, like Dr. Ulrich, will study, evaluate and visit with the child enough to offer the essential answers to several critical questions but who, unlike Dr. Ulrich, is sufficiently informed on the requirements of NDCC § 27-20-34(l)(b)(4)(b) and on the essential components of the opinion he must give in order for the child to prevail. Here, Dr. Ulrich answered some of the essential questions, but not all. That failure allowed the State to meet its rather flimsy burden of establishing probable cause that the child is not amenable to treatment as a juvenile.
As part of my de novo review of the juvenile court record, I believe Dr. Ulrich’s testimony established that, assuming M.D.N. committed the alleged crimes, he suffered from a “severe conduct disorder,” which was treatable at a juvenile facility. However, the doctor could not and, indeed, did not give us even an estimate of the likely duration of that treatment. So, none of us knows, even at this writing, whether there'is any probability that M.D.N. could be successfully treated (or rehabilitated) in the five years remaining until his twentieth birthday. See NDCC §§ 27-20-34(l)(b)(4)(b); 27-20-36(2) and (6). The question arises then, whether that failure of proof should fell the State, which has the burden of establishing probable cause that M.D.N. is not amenable to treatment or rehabilitation as a juvenile. But, when a fifteen-year-old child allegedly commits four bloody murders, but is treatable for a severe conduct disorder, the crucial question is whether there are reasonable grounds to believe that treatment will be necessary for a period longer than five years. Given the lack of explanation for the commission of the crimes, the severity and gruesomeness of the crimes and the concern for public safety, I, too, conclude that reasonable persons are warranted in believing that treatment for longer than five years is required. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
I believe Dr. Ulrich’s opinion is the key piece of evidence here because I give no weight to Juvenile Supervisor McGeary’s opinion that M.D.N. should be tried as an adult. McGeary would transfer all children fourteen or over (indeed, younger, if only allowed by the legislature) who are accused of committing murder. But, our legislature has not removed or excluded violent offenders from juvenile court jurisdiction. Instead, it has only authorized transfer of those juveniles in individual cases where it is shown that that fourteen- or fifteen-year-old child is not amenable to treatment or rehabilitation as a juvenile in an available facility. Unlike New York, North Dakota does not make the commission of homicide by a child thirteen or older automatically a matter for the adult criminal court. See N.Y.Crim.Pro.Law §§ 1.20(42) (McKinney *6901992), 180.75 (McKinney 1982 and Supp. 1993). Consequently, Mr. McGeary’s opinion that all children who are accused of murder belong in adult court so that they can be held accountable for the appropriate length of time, is contrary to the express language of our statute, let alone its spirit. I do, however, give weight to the eyewitness portion of his testimony, derived from an hour-plus interview with M.D.N. and his father, describing the demeanor of the child but I have some doubt over the accuracy of the information given to McGeary by M.D.N.’s father. M.D.N.’s family had recently undergone family therapy because of the behavior of one of M.D.N.’s siblings and not, as related to McGeary, because of M.D.N.’s behavior. A small point, perhaps, but noted.
As for the testimony of A1 Lick, the Director of Juvenile Services for the State of North Dakota, and Conrad Dvorak, the Superintendent of the State Industrial School, their opinions would have carried far more weight had they met and interviewed M.D.N. As it is, they knew nothing about him except what they had read in the newspapers and what they had derived from Dr. Ulrich’s report shortly before the hearing. But, for me, their testimony, in particular, the testimony of Mr. Lick, resoundingly brought home the point that North Dakota has the will and the means to offer children who are violent offenders, a facility that would securely house them, competently treat them and diligently rehabilitate them. While it may offer small solace to M.D.N., that declaration stands as a beacon for those troubled children who inevitably will follow. Lick’s testimony dramatically distinguishes this case from In re P.W.N., 301 N.W.2d 636 (N.D.1981). There, a juvenile court official testified that “there is no juvenile institution in our state that is capable of providing an adequate treatment and rehabilitation program coupled with the responsibility to protect the community and public at large.” Id. at 642. Happily, Mr. Lick’s testimony makes clear the progress we are making in providing services for a wider range of troubled children. Compare Eastbum v. 392 N.W.2d 406 (N.D.1986) [no available programs for child with behavioral problems who is slow learner in need of treatment so child is transferred to adult court].
Because Dr. Ulrich’s testimony did not clarify the duration of necessary treatment and was, in many respects, ambiguous and generalized enough to give aid and comfort to both sides, and because • many of his statements were so qualified by disclaimers and disavowals to cast shadows rather than light, the State was able to fulfill its burden. Because the issue of amenability to treatment was not successfully proved in favor of the child, the testimony of the rehabilitation experts, Lick and Dvorak, on the issues of rehabilitation and the availability of a facility, was less crucial but, nonetheless, telling.
It is our law, like it or not, that “probable cause” is all the State is required to establish in a transfer proceeding and not a preponderance of evidence or clear and convincing evidence. In Interest of A.D.L., 301 N.W.2d 380 (N.D.1981). If there is a rehearing, M.D.N. will have to give the juvenile court judge and us more information than was forthcoming in this proceeding.