Matter of Barker

Scanlan, J., delivered the opinion of the Court. Appellant, Mark David Barker, a 13 year old child was charged in the Circuit Court of Baltimore City, Division For Juvenile Causes, with being a delinquent. The act of delinquency alleged of the appellant was the premeditated shooting to death of a 16 year old boy on a Baltimore street on October 9, 1972. Pursuant to the State's request, a waiver hearing was held before the Juvenile Court, Judge Robert I. H. Hammerman presiding, on November 22, 1972, following which the Juvenile Court waived jurisdiction over Mark to the Criminal Court of Baltimore.

The case is here on appeal from the lower court’s decision waiving jurisdiction. The controlling question is whether the Juvenile Court’s decision to waive jurisdiction on the ground that the appellant might require psychiatric treatment extending beyond his twenty-first birthday was supported by a fair preponderance of the evidence. 1 ⁷¹⁷ For the reasons stated below, we find that the evidence was insufficient to sustain the Juvenile Court’s waiver of jurisdiction on the ground it assigned, i.e., that the safety of the public required it, since the successful medical treatment of the appellant might extend beyond the period of his majority. We, therefore, reverse the judgment below and remand the case for further proceedings in the Juvenile Court. I THE EVIDENCE WAS INSUFFICIENT TO SUPPORT WAIVER Under the statute, Article 26, Section 70-16 (a) of the Maryland Code, juvenile court jurisdiction may be waived only over “(1) a child who has reached his fourteenth birthday or (2) a child who has not reached his fourteenth birthday who is charged with committing an act which, if committed by an adult, would be punishable by death or life imprisonment.” Mark was 13 years 4 months of age at the time of the killing of which he is accused.

Since the crime attributed to him would constitute first degree murder if committed by an adult, the appellant is subject to waiver of juvenile court jurisdiction. In re Davis, 17 Md. App. 98, 101 , 299 A. 2d 856, 859 (1973). It has been said that the fundamental idea behind waiver provisions in juvenile statutes, such as Article 26, Section 70-16, is that there are some youths who are not in a position to benefit from specialized treatment as youths. Kemplen v. Maryland, 428 F. 2d 169, 175, n. 14 (4th Cir. 1970).

It is only some children, however, who may not benefit from retention in a Juvenile Court system; for most, the presumption is otherwise. As the Supreme Court of the United States has put the point: “[I]t is implicit in [the juvenile court] scheme that noncriminal treatment is to be the rule — and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.” ⁷¹⁸ Kent v. United States, 383 U. S. 541, 560 (1966), quoting with approval Harling v. United States, 295 F. 2d 161, 164-165 (D.C. Cir. 1961). Moreover, as the Fourth Circuit observed in Kemplen v. Maryldnd, supra, the “waiver proceeding can result in dire consequences indeed for the guilty accused,” including incarceration for a period much longer than his majority and the loss of certain of his rights of citizenship, if the offense is a felony. Id. at 174.

Thus, under the Maryland statute, “juvenile jurisdiction is to be waived only where the offender is found, by exercise of sound judicial discretion based upon a thorough investigation, to be an unfit subject for juvenile rehabilitative measures.” Id. at 175 (emphasis added); see also Haziel v. United States, 404 F. 2d 1275 (D.C. Cir. 1968). In considering whether vel non to waive jurisdiction over Mark, the Juvenile Court had before it a number of reports and recommendations of the Department of Juvenile Services, including the findings of a child psychiatrist, a consulting psychologist and a social worker. These experts were unanimous in concluding that Mark was a sick child who needed immediate and intensive psychiatric treatment in a hospital setting. On November 3,1972, the Department of Juvenile Services recommended that Mark receive: “Intensive individual psychotherapy in a psychiatric setting such as the adolescent unit of the State Hospital.

Even though Mark is not psychotic at present, he has the potential to become quite ill if not treated immediately.” In his first report of November 22, 1972, Dr. Uigur, a child psychiatrist, found that Mark was “in the process of developing a paranoid personality. He then recommended as follows: “Due to the fact that at the age of 13 he is still in the formative stage, at this time I strongly recommend an immediate psychiatric intervention. Individual psychotherapy in a ⁷¹⁹ psychiatric setting followed by intensive individual psychotherapy on an outpatient basis and intensive counseling and guidance for the family are absolutely necessary. Of course, if he is not treated successfully in a residential setting, to return him to the open community will be very risky.” On November 3, 1972, Dr. Wislar, a psychologist, concluded his detailed report as follows: “Mark is seen as being a very disturbed youngster who is presently both depressed and agitated.

Although depression and agitation may be a function of present circumstance, the intensity of emotional turmoil seems to have been present for quite some time. Behaviorally, Mark seems to have been asking for help for more than a year. He seems to have recognized that something was wrong, yet, did not know what it was or where to seek assistance. Inner tension seems to have built to a point at which there were no appropriate channels for release.

This boy needs intensive treatment to prevent further personality disintegration regardless of the disposition of his case.” Finally, Dr. Uigur, the psychiatrist, filed a supplemental psychiatric evaluation of Mark, dated November 16,1972, stating: “I definitely consider this youngster as being emotionally disturbed and in need of immediate psychiatric intervention and probably long term psychiatric therapy in a controlled residential psychiatric setting, by which I definitely mean a hospital setting such as the adolescent unit of Sheppard Pratt Hospital, any psychiatric unit attached to a general hospital; adolescent units of State hospitals probably will be much more logical for him because he could be controlled ⁷²⁰ more effectively and treated less expensively for a longer period of time.” Before waiving jurisdiction over the appellant, the Juvenile Court Judge reviewed and referred to the reports before him at some length. He indicated his agreement with the basic recommendations of those reports, stating specifically that “this young man needs . . . extensive medical treatment in a residential setting . . . .” Nevertheless, at the close of the waiver hearing, the Juvenile Court Judge waived jurisdiction. Essentially, his reasoning was that the appellant needed “long term” psychiatric treatment, but since it could not be determined how long a period of time effective treatment might consume the Juvenile Court could lose jurisdiction over him when he reached twenty-one, thus requiring his release to the community without having been completely cured. Judge Hammerman put it: “I think that the very substantial inadequacy of the juvenile court in this area of treatment is that we are limited to seven and a half years of treatment which may but may not be sufficient because, under the law, as soon as this boy achieves the age of twenty-one years all supervision of this respondent ceases and he is then beyond the jurisdiction of the court, and I am far from convinced that at this point he will have received the fullness of treatment and the full effectiveness of treatment that may be necessary in his case.” The Juvenile Court then went on to say: “I think if we are to accept these reports that the answer lies in hospitalization, but I think there is more security for him and for the public if that hospitalization can be open-ended and not have an automatic terminal date. * * * “[B]ut I think that this is a long term propo ⁷²¹ sition from, reading the medical reports and I don’t know just how long term it is.

It could be three years. It could be five years. It could be ten years, may be longer . . . .” (Emphasis added.) Article 26, Section 70-16 (b) provides that in determining whether to waive jurisdiction, the Juvenile Court shall consider the following factors: “(1) Age of child. (2) Mental and physical condition of child.

(3) The child’s amenability to treatment in any institution, facility, or programs available to delinquents, (4) The nature of the offense. (5) The safety of the public.” We have held that it is not necessary that all of the five factors enumerated in the statute need be resolved against the juvenile in order to justify a waiver of jurisdiction. In re Waters, 13 Md. App. 95, 97 , 281 A. 2d 560 (1971). Nor, as we have said, is the Juvenile Court required to make an arithmetic-type calculation as to the weight it assigns to each factor.

Hazell v. State, 12 Md. App. 144 , 277 A. 2d 639 (1971). And it is established that waiver will be upheld “where a preponderance of the legally sufficient evidence shows that such a determination is proper in light of the factors to be considered under Section 70-16.” Id. at 154 . In the instant case, the lower court, although taking into relevant account Mark’s age and his mentally sick condition, nevertheless, concluded that jurisdiction must be waived solely because successful treatment of the appellant’s mental condition would be a “long term proposition” which might extend beyond his majority, in which case the safety of the public might not be protected since, by virtue of Article 26, Section 70-20 (a), juvenile court jurisdiction would expire when Mark reached his twenty-first birthday, at which time he would have to be released from confinement. ⁷²² Our examination of the record reveals that the evidence is insufficient to support the Juvenile Court’s surmise that the effective psychiatric treatment which Mark so urgently needs necessarily, or even probably, will extend beyond his twenty-first birthday. Neither the psychiatrist nor the psychologist stated the probable duration of the medical treatment which they prescribed for Mark.

The only general estimate of time is the statement in Dr. Ulgar’s supplemental report that Mark “is in need of immediate psychiatric intervention and ‘probably long term’ psychotherapy in a controlled residential psychiatric setting . . . .” At the present time, as the trial court acknowledged, there are facilities available to the Juvenile Court in which Mark could receive the psychiatric and related treatment which both the lower court and the doctors agree he needs. These include facilities designated by the State Department of Juvenile Services of the Department of Health and Mental Hygiene. Article 26, Section 70-19 (a) of the Maryland Code. Indisputably, there are currently available to the Juvenile Court facilities in which the appellant could be confined while receiving intensive psychiatric treatment in a hospital setting, as recommended by the psychiatrist and psychologist who examined him.

Indeed, the court below, even when waiving jurisdiction to the adult criminal court expressed his strong preference that Mark be treated as a juvenile and not as an adult, saying: “I do not want to see this young man processed in the adult criminal system in the usual manner that adults — in fact, if he is going to be detained in lieu of bail, I don’t want to see him and will not allow him to be detained at a jail facility. Rather I think he should be. detained in lieu of bail, pending trial in the Criminal Court, at a juvenile-type facility. I do not think that the answer is, if he is found guilty, to commit him to any type of adult penal institution;” ⁷²³ This case painfully illustrates the difficult decision a juvenile court so often must make when it is asked to waive jurisdiction of a child of tender