2008-705, IN RE KOTEY M.

competent to have committed the alleged acts, requested a competency evaluation to determine whether the juvenile was

scheduled the matter for an adjudicatory hearing. The juvenile’s attorney

appointed an attorney and guardian ad litem to represent the juvenile and at Pinehaven School was continued under the CHINS petition. The court petition. After the delinquency petition was dismissed, the juvenile’s placement

Pinehaven School by agreement of the parties on a pending delinquency

purportedly committed in 2007 and 2008. The juvenile was placed at alleging that he was a child in need of services (CHINS) because of acts he

June 1997 and is now eleven years old. He was the subject of a petition Adjustment, 152 N.H. 171, 172 (2005). The juvenile, Kotey M., was born in the interlocutory transfer. See McDonald v. Town of Effingham Zoning Bd. of transfer without ruling. See Sup. Ct. R. 9. We accept the facts as presented in DALIANIS, J. The instant appeal is before the court on interlocutory

Health and Human Services. attorney general, on the brief and orally), for the New Hampshire Department of to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant

Samdperil on the brief, and Ms. Elbroch orally), for the juvenile. Samdperil & Welsh, PLLC, of Exeter (Anna L. Elbroch and Richard E.

editorial errors in order that corrections may be made before the opinion goes No. 2008-705 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Dover Family Division Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as the proceedings against him?

understanding and have a rational and factual understanding of to consult with his lawyer with a reasonable degree of can be adjudicated a CHINS[, he] must . . . have a sufficient ability

be adjudicated a CHINS. Federal Constitutions require that he be competent to stand trial before he can Roberts attorney’s name. he did not understand the charges against him and could not remember his although the juvenile had some basic understanding of what happens in court,

N.H. at 567; a rational as well as a factual understanding of the proceedings against him. Dusky, 36 p. 2 2 U.S. at 402. Competency under this standard, to the same standard as is used for adult criminal defendants. See Chen, 148 V, XIV. His competency to stand trial, he asserts, must be evaluated according to the United States Constitution, require that before a juvenile

The juvenile argues that the Due Process Clauses of the State and

We respond in the negative and remand.

developmentally disabled criminal defendants, Dr. Vanaskie determined that

reasonable degree of understanding of the proceedings against him and lacked would require detailed and simplified explanations of issues discussed in court. trial because he lacked a sufficient ability to consult with counsel with a competent to have committed the alleged acts, he was not competent to stand [D]ue [P]rocess [C]lause of the Fifth and Fourteenth Amendments Do[ ] Part I, Article 15 of the New Hampshire Constitution and the

J.) transferred the following question: Pursuant to Supreme Court Rule 9, the Dover Family Division (,

these conclusions. about the legal system. Using a test designed for use with adult See Chen, 148 N.H. at 567; Dusky, 36 p. 2 2 U.S. at 402. The parties have accepted

IQ score of 80, and, thus, was below average in intellectual functioning and tests and observations. One test suggested that the juvenile had a composite Dr. Vanaskie ultimately concluded that although the juvenile was evaluation. He assessed the juvenile’s intellectual abilities through a series of

proceedings against him.

Dr. Vanaskie also evaluated how much information the juvenile had

Michael Vanaskie, Ph.D., a licensed psychologist, conducted the

v. United States, 36 p. 2 2 U.S. 402, 402 (1960).

degree of understanding and a rational and factual understanding of the whether he had sufficient ability to consult with his lawyer with a reasonable p. 3 3

argument establishing one. trial. juvenile proceeding fundamentally different from an adult criminal

treatment of juveniles. The State has a Constitution does not mandate elimination of all differences in the

delinquency proceeding, the United States Supreme Court has said: CHINS proceedings. Regarding the safeguards due a juvenile in a juvenile Schall v. Martin, 467 U.S. 25 p. 3 3, 263 (1984) (citations and quotation omitted).

juvenile delinquency proceedings, constitutional right to counsel and because he has failed to develop an preserving and promoting the welfare of the child, which makes a

by adults accused of crimes also apply to juveniles. But the We have held that certain basic constitutional protections enjoyed

yet addressed whether these same protections must be afforded juveniles in

States Supreme Court has addressed the constitutional safeguards required in reject it because we have not held that a juvenile in a CHINS proceeding has a child in truancy proceeding be afforded counsel). Similarly, while the United WL 80289, at *1 (Wash. App. Ct. Jan. 12, 2009) (due process requires that imprisonment). But see Bellevue School District v. E.S., No. 60528- p. 3 3-I, 2009 counsel in appeal of misdemeanor convictions that carry no possibility of mandated. Cf. State v. Westover, 140 N.H. 375, 376, 378 (1995) (no right to defense or communicate appropriately with counsel.” have not yet addressed whether these protections are constitutionally right to counsel would be illusory if the child could not participate in his protections, such as appointed counsel, see RSA 169-D:12 (Supp. 2008), we competent to stand trial before he is adjudicated a CHINS. As he states: “The Although a child in a CHINS proceeding has a statutory right to certain

citing federal opinions for guidance only.

juvenile bases his argument upon an alleged constitutional right to counsel, we right to counsel or an alleged constitutional right to counsel. To the extent the It is unclear whether the juvenile’s argument rests upon his statutory

a right to counsel, he necessarily has a due process right to be deemed (198 p. 3 3). The juvenile asserts that because a juvenile in a CHINS proceeding has

We first address the juvenile’s argument under the State Constitution,

402. of the proceedings against him. Chen, 148 N.H. at 567; Dusky, p. 3 362 U.S. at of rational understanding; and (2) a rational as well as a factual understanding (1) sufficient present ability to consult with his lawyer with a reasonable degree commonly referred to as the “Dusky standard,” requires that the juvenile have: p. 4 Constitution for the same reason. to counsel in a CHINS case, we reject his assertion under the Federal United States Supreme Court has also not yet established a due process right

Dusky

exercise this right, the Due Process Clause of the State Constitution requires have addressed the issue are divided as to whether the Dusky that such a right exists, we necessarily reject his assertion that, to be able to standard. Rather, if a juvenile is incompetent under the Dusky predicated upon the assumption that the juvenile is competent under the a due process right to counsel and because the juvenile has failed to establish competence, we disagree. The juvenile’s statutory right to counsel is not would be rendered “illusory” if he were unable to meet the Dusky standard of To the extent that the juvenile argues that his statutory right to counsel right to be deemed competent under the Dusky

also would require that he be found competent under the Dusky delinquency proceedings. Compare

whether a juvenile in a CHINS proceeding has such a right. Those courts that

Because we have not yet held that a juvenile in a CHINS proceeding has juvenile delinquency proceeding has such a right, see juvenile norms”). evaluations of a particular juvenile’s competency are to be made with regard to articulated by the United States Supreme Court in Mathews v. Eldridge country that has ruled that a juvenile in a CHINS proceeding has a due process 769 A.2d 656, 662 (Vt. 2001) (holding that, “in juvenile competency hearings, (D.C. 1990) (Dusky applies to juvenile delinquency defendant), with In re J.M.,

constitutional right to counsel, it would not necessarily follow that due process some other standard of adjudicative competence applies to juveniles in

counsel in a CHINS proceeding undeveloped and decline to review it. aware of and the juvenile has not pointed us to any court that has considered S.W.3d 801, 802-03 (Ark.), cert. denied, 531 U.S. 1022 (2000), we are not

adjudicated a CHINS. While courts have considered whether a juvenile in a

appointment of counsel in a given proceeding, we employ the three-prong test before he could be adjudicated a CHINS. We are not aware of any court in the our review. To decide whether the State Constitution mandates the standard we decline to do so because he has failed to brief this argument sufficiently for Even if we were to assume that a juvenile in a CHINS proceeding has a

omitted), we consider his argument that he has a constitutional right to v. Korean Methodist Church of N.H., 157 N.H. 254, 258 (2008) (quotation juvenile “neither cites nor discusses the foregoing three-factor analysis,” State U.S. 319, 335 (1976). State v. Hall, 154 N.H. 180, 182 (2006). Because the

establish a constitutional right to counsel for juveniles in CHINS proceedings, To the extent that the juvenile is asking the court in this case to p. 5 5

.

has failed to brief this argument sufficiently to warrant appellate review. See

substitute decision-maker violates his constitutional rights to due process, he

client for the lawyer. See

BRODERICK, C.J.