In Re Kotey M.
The instant appeal is before the court on interlocutory transfer without ruling.
See
SUP. CT. R. 9. We accept the facts as presented in the interlocutory transfer.
See McDonald v. Town of Effingham Zoning Bd. of Adjustment,
Michael Vanaskie, Ph.D., a licensed psychologist, conducted the evaluation. He assessed the juvenile’s intellectual abilities through a series of tests and observations. One test suggested that the juvenile had a composite IQ score of 80, and, thus, was below average in intellectual functioning and would require detailed and simplified explanations of issues discussed in court.
Dr. Vanaskie also evaluated how much information the juvenile had about the legal system. Using a test designed for use with adult developmentally disabled criminal defendants, Dr. Vanaskie determined that although the juvenile had some basic understanding of what happens in court, he did not understand the charges against him and could not remember his attorney’s name.
Dr. Vanaskie ultimately concluded that although the juvenile was competent to have committed the alleged acts, he was not competent to stand trial because he lacked a sufficient ability to consult with counsel with a reasonable degree of understanding of the proceedings against him and
lacked a rational as well as a factual understanding of the proceedings against him.
See Chen,
Do[] Part I, Article 15 of the New Hampshire Constitution and the [D]ue [P]rocess [C]lause of the Fifth and Fourteenth Amendments to the United States Constitution, require that before a juvenile can be adjudicated a CHINS[, he] must . . . have a sufficient ability to consult with his lawyer with a reasonable degree of understanding and have a rational and factual understanding of the proceedings against him?
We respond in the negative and remand.
The juvenile argues that the Due Process Clauses of the State and Federal Constitutions require that he be competent to stand trial before he can be adjudicated a CHINS.
See
N.H. CONST, pt. I, art. 15; U.S. CONST. amends. V, XIV. His competency to stand trial, he asserts, must be evaluated according to the same standard as is used for adult criminal defendants.
See Chen,
We first address the juvenile’s argument under the State Constitution, citing federal opinions for guidance only.
State v. Ball,
It is unclear whether the juvenile’s argument rests upon his statutory right to counsel or an alleged constitutional right to counsel. To the extent the juvenile bases his argument upon an alleged constitutional right to counsel, we reject it because we have not held that a juvenile in a CHINS proceeding has a constitutional right to counsel and because he has failed to develop an argument establishing one.
Although a child in a CHINS proceeding has a
statutory
right to certain protections, such as appointed counsel,
see
RSA 169-D:12 (Supp. 2008), we have not yet addressed whether these protections are constitu
tionally mandated.
Cf. State v. Westover,
We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. But the Constitution does not mandate elimination of all differences in the treatment of juveniles. The State has a parens patriae interest in preserving and promoting the welfare of the child, which makes a juvenile proceeding fundamentallydifferent from an adult criminal trial.
Schall v. Martin,
To the extent that the juvenile is asking the court in this ease to establish a constitutional right to counsel for juveniles in CHINS proceedings, we decline to do so because he has failed to brief this argument sufficiently for our review. To decide whether the State Constitution mandates the appointment of counsel in a given proceeding, we employ the three-prong test articulated by the United States Supreme Court in
Mathews v. Eldridge,
Even if we were to assume that a juvenile in a CHINS proceeding has a constitutional right to counsel, it would not necessarily follow that due process also would require that he be found competent under the
Dusky
standard before he could be adjudicated a CHINS. We are not aware of any court in the country that has ruled that a juvenile in a CHINS proceeding has a due process right to be deemed competent under the
Dusky
standard before being adjudicated a CHINS. While courts have considered whether a juvenile in a juvenile delinquency proceeding has such a right,
see Golden v. State,
Because we have not yet held that a juvenile in a CHINS proceeding has a due process right to counsel and because the juvenile has failed to establish that such a right exists, we necessarily reject his assertion that, to be able to exercise this right, the Due Process Clause of the State Constitution requires that he be adjudged competent before being adjudicated a CHINS. As the United States Supreme Court has also not yet established a due process right to counsel in a CHINS case, we reject his assertion under the Federal Constitution for the same reason.
To the extent that the juvenile argues that his statutory right to counsel would be rendered “illusory” if he were unable to meet the
Dusky
standard of competence, we disagree. The juvenile’s statutory right to counsel is not predicated upon the assumption that the juvenile is competent under the
Dusky
standard. Rather, if a juvenile is incompetent under the
Dusky
standard, the court has the inherent authority to appoint a guardian ad litem (GAL) to act as a substitute decision-maker for the juvenile and as a substitute client for the lawyer.
See In re Lisa G.,
Remanded.