In Re Mdd

#25124-a-SLZ

2009 SD 94

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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IN THE MATTER OF
M.D.D.,
A DELINQUENT CHILD

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APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE VINCENT A. FOLEY
Judge

* * * *

MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General Attorneys for appellee,
Pierre, South Dakota State of South Dakota.

DAVID K. WHEELER of
Morgan, Theeler, LLP Attorneys for appellant,
Huron, South Dakota M.D.D.

* * * *

ARGUED ON AUGUST 25, 2009

OPINION FILED 10/28/09
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ZINTER, Justice

[¶1.] M.D.D. admitted the allegations of a juvenile delinquency petition

alleging simple assault and resulting injury of another person. The circuit court

placed M.D.D. on probation and ordered her to pay restitution for the medical

expenses Medicaid was required to pay for the treatment of the injured person.

M.D.D. appeals the order of restitution. We affirm.

Facts and Procedural History

[¶2.] M.D.D. injured another person while driving a car. As a result of this

incident, the injured person required medical care. The medical expenses were paid

by Medicaid. In a juvenile proceeding arising from the incident, M.D.D. admitted to

a juvenile delinquency petition alleging that her conduct constituted simple assault.

She was placed on probation for 120 days. At a restitution hearing, the State

requested that Medicaid be reimbursed for the medical expenses it was required to

pay for the victim's injuries . M.D.D. argued that, in juvenile proceedings, the

applicable statutes did not authorize restitution for third-party medical expense

payers like Medicaid. The circuit court disagreed and ordered M.D.D. to pay

restitution to Medicaid.

Decision

[¶3.] On appeal, M.D.D. argues that Medicaid, a third-party payor legally

obligated to pay the medical expenses, is not entitled to restitution under either

SDCL ch. 23A-28 (restitution in criminal cases) or SDCL 26-8C-7(1) and 26-8B-6(4)

(restitution in juvenile delinquency cases). Statutory interpretation is a question of

law we review de novo. State v. Wilson, 2008 SD 13, ¶14, 745 NW2d 666, 670.

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[¶4.] SDCL ch. 23A-28 authorizes an award of restitution to specified

“victims” in criminal cases. The definition of victim in SDCL 23A-28-2(5) includes

third-party payors. 1 The State suggests that we interpret this statute to apply in

juvenile proceedings. We note, however, that under this criminal statute, the

person seeking restitution must be a victim of “criminal activities” of a “defendant.”

Further, “criminal activities” only include “crime[s]” for which there is a “plea of

guilty or verdict of guilty upon which a judgment of conviction may be rendered.”

SDCL 23A-28-2(2). Although these terms apply in criminal cases involving adults,

none of them have application in juvenile proceedings.

[¶5.] In juvenile proceedings there are no criminal activities, crimes, pleas of

guilty, verdicts of guilty, or defendants. Instead, an alleged “delinquent child” may

be subject to an “adjudication and disposition” and can only admit or deny a juvenile

petition. See SDCL 26-7A-43. Plainly, the different language used in the criminal

restitution statutes does not reflect legislative intent that the criminal statutes

1. SDCL 23A-28-2(5) defines a “victim” as:

Any person, as defined in subdivision 22-1-2(31), who has suffered
pecuniary damages as a result of the defendant’s criminal activities,
including any person who has by contract or by statute undertaken to
indemnify another or to pay or provide a specified or determinable
amount or benefit upon determinable contingencies. Any victim who
has suffered pecuniary damages has priority of claim as opposed to any
person who has a claim to indemnity or subrogation as a result of the
same defendant’s criminal activity.

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(SDCL ch 23A-28) apply to restitution in juvenile proceedings under SDCL chs 26-

8B and 26-8C. 2

[¶6.] Therefore, the question is whether a delinquent child, as a part of a

juvenile disposition, may be ordered to pay the restitution under the juvenile

statutes. Unlike the criminal restitution statute that limits restitution to a defined

group of “victims,” SDCL 26-8B-6(4) 3 broadly authorizes the court to order

restitution in juvenile cases without language limiting or restricting the type of

person or entity that may be reimbursed. The statute simply authorizes restitution

for “any damage done to property or for medical expenses.” Id. (emphasis added).

In light of this broad, unqualified language, we conclude that the Legislature did

not intend to limit restitution to any particular class of persons or entities that paid

medical expenses as a result of the juvenile’s delinquent behavior. Absent limiting

language, we hold that the statute authorizes restitution to a third-party payor like

2. We acknowledge the point that SDCL 23A-28-14, a criminal statute, refers to
“victim[s] of any act of juvenile delinquency.” This statute, however, only
allows certain “victims” of juvenile misconduct to receive the name and
address of the juvenile. There is nothing in the statute authorizing
restitution for the “victims” referenced in that statute. We conclude that this
statute has no application in juvenile proceedings under Title 26, other than
to authorize the release of certain juvenile information.

3. SDCL 26-8C-7 prescribes the available dispositions in juvenile delinquency
cases, and subsection (1) of that statute authorizes the dispositions allowed in
26-8B-6(4), which provides:

The court may require the child to pay for any damage done to
property or for medical expenses under conditions set by the court if
payment can be enforced without serious hardship or injustice to the
child[.]

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Medicaid, who was legally required to pay medical expenses for damages caused by

the juvenile’s misconduct.

[¶7.] M.D.D.’s reliance on State v. Fryer, 496 NW2d 54 (SD 1993)

(superseded by statute as stated in State v. Galligo, 1996 SD 83, 551 NW2d 303), is

misplaced. In that case, the Legislature chose to limit restitution to “victim[s]” in

criminal cases, but the Legislature did not define that term. In interpreting the

word "victim," this Court recognized the distinction between direct victims of

criminal offenses and indirect victims, such as insurance companies. Id. at 55.

That distinction is, however, inapplicable here because the word “victim” is not used

in the juvenile restitution statute. As previously explained, unlike the criminal

statute, the juvenile statute does not limit restitution to “victims.” Therefore,

Fryer’s interpretive analysis of the word “victim” is inapposite in a juvenile

proceeding.

[¶8.] M.D.D. also argues that the circuit court did not consider the “serious

hardship or injustice” that restitution payments would cause her. See SDCL 26-8B-

6(4), supra note 3 (authorizing restitution in juvenile cases if payment can be

enforced without serious hardship or injustice to the child). In this case, the circuit

court determined the amount of restitution to be paid, but made no findings

regarding possible hardship or injustice to the child. M.D.D. claims that a circuit

court must make a finding on hardship in every case, and that the court’s failure to

make such a finding – which M.D.D. claims was a disputed material issue –

requires reversal. See St. Cloud v. Leapley, 521 NW2d 118, 125 (SD 1994)

(stating:“A failure to make a finding on a disputed material issue requires a

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reversal of a judgment.” (quoting Bell v. Midland Nat’l Life Ins. Co., 78 SD 349, 359,

102 NW2d 322, 327 (1960) (citing Craigo v. Craigo, 22 SD 417, 423, 118 NW 712

(1908))).

[¶9.] Our review of the record, however, reflects that hardship was never an

issue, let alone a disputed issue that required findings of fact in the restitution

proceedings. As other courts have commented, if it is the juvenile’s contention that

he or she cannot afford to pay restitution, the juvenile bears the initial burden of at

least raising the issue. See State v. Fellers, 37 WashApp 613, 620, 683 P2d 209,

214-15 (1984) (observing that “[w]hen requested, the juvenile has a right to be heard

on the issue of whether he has the ability to pay”) (emphasis added).

[¶10.] At the restitution hearing, M.D.D. did not argue that potential

hardship was required to be considered in every case or that restitution would

constitute a hardship in this case. On the contrary, in its opening statement, the

State indicated that the “sole issue” was whether the circuit court could legally

order M.D.D. to repay Medicaid under the previously discussed restitution statutes,

and M.D.D. agreed. Further, M.D.D.’s only argument involved the applicability of

the criminal statutes in juvenile proceedings. Counsel’s argument was that:

[SDCL 23A-28-2] applies to adult convictions. . . . It does not
refer to adjudications for juvenile delinquencies, and therefore, I
believe that statute does not apply in this case. And I believe
that it doesn’t apply for a good reason in that a juvenile matter,
such a far reaching restitution order . . . doesn’t meet the same
ends of justice in that the juvenile isn’t going to have the same
earning ability as an adult, and it is going to become more of a
burden upon the family than it is upon punishment or making
someone whole as it would in the case of an adult. The entire
Title . . . 26 and the subchapters referring to juveniles,
subchapter 7(a) and then 8(a), 8(b) and 8 (c) [sic] don’t even
mention the word restitution.

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Thus, M.D.D. only mentioned that generally, juveniles do not have the same

earning ability as adults.

[¶11.] This general reference to earning ability, made in the context of an

argument on a different legal issue, did not bring the legal or factual arguments

M.D.D. now asserts on appeal to the circuit court’s attention. Considering the

stipulated, limited nature of the restitution hearing and the failure to raise a

suggestion of actual hardship or injustice in this case, M.D.D. has not preserved her

hardship arguments for appeal. 4

Ordinarily an issue not raised before the trial court will not be
reviewed at the appellate level. The trial court must be given an
opportunity to correct any claimed error before we will review it
on appeal. To preserve issues for appellate review litigants
must make known to trial courts the actions they seek to
achieve or object to the actions of the court, giving their reasons.
Failing to raise an issue, thereby allowing the circuit court an
opportunity to correct the claimed error, results in waiver of the
issue.

State v. Gard, 2007 SD 117, ¶15, 742 NW2d 257, 261 (citations omitted). See also

Fed. Land Bank of Omaha v. Jensen, 415 NW2d 155, 159 (SD 1987) (“Not having

been presented to the trial court for ruling, it simply is not preserved for appeal[.]”).

[¶12.] Affirmed.

4. We acknowledge that M.D.D. raised the factual issue of hardship in her
proposed findings of fact and conclusions of law. At that point in the
proceedings, however, the time for presenting evidence of hardship had
passed and the circuit court had no factual basis upon which it could have
entered a finding of fact regarding hardship. See e.g., Rich v. Olah, 274 SW3d
878, 884 (TxCtApp 2008) (“When a party attacks the factual sufficiency of an
adverse finding, it must demonstrate the adverse finding is against the great
weight and preponderance of the evidence.”). We also note that at oral
argument, counsel for M.D.D. conceded that he never used the word
“hardship” at the restitution hearing.

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[¶13.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.

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