Marvin v. State

Mowbray, C. J.,

dissenting:

This Court has previously announced that “[mjeaningful review [of a juvenile court’s jurisdictional waiver] requires that the reviewing court should review. It should not be remitted to assumptions .... It may not ‘assume’ that there were adequate reasons, nor may it merely assume that ‘full investigation’ has been made.” Kline v. State, 86 Nev. 59, 61, 464 P.2d 460, 461 (1970), quoting Kent v. United States, 383 U.S. 541, 561 (1966) (emphasis added). The majority opinion assumes that a “full investigation” had been made. Since, in my opinion, the record does not support this assumption, I must respectfully dissent.

With respect to waiver proceedings, the juvenile court and the State, acting as parens patriae of the juvenile rather than as prosecuting attorney and judge, are engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. Non-criminal treatment within the juvenile system is the rule; adult criminal treatment is the exception. NRS 62.290; Kent v. United States, 383 U.S. at 560. To further the ends of the juvenile system — providing comprehensive, effective, non-criminal treatment for the delinquent juvenile, id.— the juvenile department has at its disposal virtually unlimited resources with which to examine the delinquent child and to fashion an appropriate rehabilitative remedy, see, e.g., NRS 62.080, NRS 62.200(l)(b) and (c); NRS 62.300; NRS 62.310.

*845Thus, while the juvenile court has considerable latitude in determining whether it should retain or waive jurisdiction, its decision must be based on a “full investigation”. A “full investigation”, in this context, cannot be a mere ritual; rather, it anticipates a thorough examination of the child and his background and a thorough exploration of all alternative strategies of rehabilitation. D.H. v. State, 561 P.2d 294, 298 (Alaska 1977); State v. Gibbs, 500 P.2d 209, 217-18 (Idaho 1972); In re Patterson, 499 P.2d 1131, 1136 (Kan. 1972); United States v. Howard, 449 F.2d 1086, 1090-91 (D.C.Cir. 1971); see also, People v. Chi Ko Wong, 557 P.2d 976, 988 (Cal. 1976); In re Harbert, 538 P.2d 1212, 1217 (Wash. 1975); Haziel v. United States, 404 F.2d 1275, 1279-80 (D.C.Cir. 1968). Only in this manner may the welfare of the juvenile and the interests of society be secured.

While a judge in a criminal prosecution concerns himself solely with the alleged criminal act, the juvenile court judge must focus his attention on the actor: “the juvenile judge must consider the juvenile’s past, his future, his mind, and his acts.” Miller v. Quatsoe, 332 F.Supp. 1269, 1275 (D.C.Wis. 1971). Thus, the nature of the juvenile’s alleged offense is relevant to his present state of development and is one factor to be considered by the juvenile court; but, standing alone, it fails to establish sufficient grounds for waiving jurisdiction. State v. Gibbs, 500 P.2d at 217-18. Obviously, the juvenile court’s investigation must extend beyond the alleged criminal acts. D.H. v. State, 561 P.2d at 298.

Once the juvenile court has fully examined the mental and emotional development of the child, the court must then balance these factors against the safety, needs, and demands of society. In re Harbert, 538 P.2d at 1217. In striking this balance, the juvenile court is under a duty to utilize its facilities, personnel, and expertise to explore thoroughly all possible alternative dispositions short of waiver. D.H. v. State, supra; State v. Gibbs, supra; In re Patterson, supra; U.S. v. Howard, supra.

The “full investigation” in the instant case, in my opinion, falls short of these standards. The probation officer responsible for appellant’s “full investigation” testified that he limited his investigation to the circumstances of appellant’s alleged criminal acts and to one brief conversation with appellant about his past. The officer admitted that though he went to appellant’s home in order to uncover “evidence” of criminal acts, he did not conduct any in-depth interview of appellant’s parents. Nor did the officer seek out or question appellant’s sister, neighbors, or friends. Though the officer knew that appellant was *846employed, he did not interview appellant’s employer or co-workers. The officer did not have appellant examined by a psychiatrist. Nor did the officer check with any of appellant’s former schools or teachers. In short, the probation officer merely satisfied himself that appellant had committed various “criminal” acts. The so-called “full investigation” extended no further.

Moreover, neither the probation department nor the juvenile court examined what alternative strategies might offer hope to rehabilitate appellant, or what facilities would be necessary to further those strategies. Despite the wide range of alternative dispositions available to the court, see, e.g., NRS 62.200, the only program even mentioned during the waiver hearing was the Nevada Training School. Though the probation officer stated during the hearing that “I don’t know that he [appellant] can’t benefit from [juvenile] facilities,” no further inquiry was made concerning the available facilities or programs and their suitability to appellant’s case. Again, in my opinion, this is not the type of “full investigation” contemplated by NRS 62.080.

In sum, I note that the juvenile court’s latitude in deciding whether or not to waive jurisdiction presupposes both procedural regularity and compliance with the requirement of a full investigation. Since a full investigation was not made, I would reverse the judgment of the juvenile court and remand the cause for a new waiver hearing to be based upon a thorough examination of both the child and his background and the alternative strategies of rehabilitation available to the court.

Respectfully, I dissent.