In re M.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.R., Defendant and Appellant.
No. A137586
First Dist., Div. Three
Sept. 27, 2013
220 Cal. App. 4th 49
COUNSEL
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McGUINESS, P. J.—A minor declared a ward of the juvenile court solely as a result of the minor‘s habitual truancy may not be placed in secure confinement during nonschool hours except under limited circumstances. (
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2012, the Alameda County District Attorney filed a juvenile wardship petition alleging that 15-year-old M.R. was a habitual truant under
M.R. admitted the allegations of the petition at a hearing conducted on October 19, 2012. The court declared him a ward and ordered that his care, custody, and conduct were to be supervised by his probation officеr. He was directed to reside in the home of his parents. The court imposed a number of probation conditions, including that M.R. attend school daily, comply with a 6:00 p.m. curfew, and not stay away from home overnight without the prior permission of his probation officer.
The court conducted a progress report hearing on November 30, 2012. In the report prepared for that hearing, the probation officer stated that M.R. had failed to attend school daily and had failed to abide by his 6:00 p.m. curfew. According to the report, M.R. had attended only two of the 15 school days since the last court hearing and arrived home at around 11:00 p.m. almost every night. At the progress report hearing, the court imposed an additional condition requiring M.R. to attend Weekend Training Academy (WETA) three times. WETA, a weekend program that is an alternative to detention, provides wards with community service opportunities as well as social values training. The court also imposed but suspended 26 additional WETA‘s. At the conclusion of the hearing, the court put the matter over for 30 days and told M.R. it could “have you remanded today” as a result of his violation of the court‘s orders. The court warned M.R. that “I‘m going to have you do the WETAs and give you fair warning that if I get another reрort like this in 30 days that you can expect to spend the weekend here with us, all right?”
The court conducted the next progress report hearing on January 4, 2013. In the report prepared for that hearing, the probation officer stated that M.R. had gone to only one out of the three WETA‘s he was ordered to attend. M.R.
At the progress report hearing on January 4, 2013, it became clear that the juvenile court intended to incarcerate M.R. in juvenile hall for a weekend, stating: “He[] doesn‘t want to go into custody. That‘s what he‘s looking at at this point.” M.R.‘s counsel argued that the court lacked authority to incarcerate M.R. except under its contempt power, which is governed by the civil contempt provisions in the Code of Civil Procedure. Counsel also argued that a commitment order would violate Michael G., supra, 44 Cal.3d 283, because the court had not tried GPS monitoring as a less restrictive alternative to secure confinement. The court denied counsel‘s request to file points and authorities with the court, stating that it had been addressing the issue of its authority to have minors remanded “for probably at least the last couple of months.”
The court remanded M.R. to serve the weekend in juvenile hall. As support for its decision, the court stated that it sought a less restrictive alternative to secure confinement by ordering M.R. to complete three WETA‘s, which he failed to do. The court also cited M.R.‘s continuing violation of his curfew and his trip to Reno in violation of the condition that he seek his probation officer‘s permission before staying away from home overnight. The court clarified that M.R. was not to be рlaced with any of the “602‘s“—i.e., juveniles who had been made wards of the court under section 602 as a result of committing acts that would be considered crimes if committed by adults. Although the court remanded M.R. to serve the weekend in juvenile hall and referred repeatedly to its power to “remand” M.R., the court did not actually state that it found M.R. in contempt of court. M.R. filed a timely appeal from the court‘s order.
1. Mootness
M.R.‘s period of confinement ended in early January 2013. Consequently, the Attorney General argues the appeal should be dismissed as moot because it is impossible for this court to afford M.R. any effective relief. (See In re Sodersten (2007) 146 Cal.App.4th 1163, 1217 [53 Cal.Rptr.3d 572].) M.R. agrees the appeal is technically moot.
“[T]here are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court‘s determination [citation].” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480 [98 Cal.Rptr.2d 202].)
Although the appeal is technically moot, we shall exercise our inherent discretion to resolve an issue of broad public interest that is likely to recur while evading apрellate review. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [110 Cal.Rptr.2d 412, 28 P.3d 151].) The issue of broad public interest is whether the provisions of the Code of Civil Procedure govern a contempt proceeding against a habitual truant in the juvenile court. As M.R. points out, there are currently at least four other pending appeals in the First Appellate District that raise this same issue.2 Thus, the issue is not only a matter that has generated public interest but has, in fact, been raised on repeated occasions. Further, it is an issue that would likely evade review if appeals raising the issue were dismissed on mootness grounds, because it will almost invariably be the case that a contemptuous truant will have served his or her period of secure confinement before an appeal can be decided.
2. Governing legal principles
a. The contempt power
“It is well settled that the court has inherent power to enforce compliance with its lawful orders through contempt.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1230 [91 Cal.Rptr.3d 140, 203 P.3d 454].) The Legislature recognized the inherent contempt power of the juvenile court in
Although the court has inherent power to punish contempts of court, the Legislature may place reasonable limitations on this power. (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 57 [51 Cal.Rptr.2d 837, 913 P.2d 1046]; In re McKinney (1968) 70 Cal.2d 8, 10–11 [73 Cal.Rptr. 580, 447 P.2d 972].) The Legislature has enacted such limitations on the court‘s inherent power in
A contemptuous act committed in the court‘s presence is referred to as a direct contempt and may be addressed summarily. (
In order to institute a proceeding for indirect contempt under the Code of Civil Procedure, an affidavit must be presented to the court setting forth the facts constituting the contempt. (
A contempt judgment is reviewed under the substantial evidence standard. (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256.) “In the review of a contempt proceeding ‘the evidence, the findings, and the judgment are all to be strictly construed in favor of the accusеd [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation.] If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.‘” (Ibid.)
b. Limitations on secure confinement of truancy wards
A minor who is a habitual truant may be declared a ward of the juvenile court under
The Legislature has expressly limited the power of the juvenile court to order the secure confinement of section 601 wаrds. As relevant to truancy wards,
In Michael G., supra, 44 Cal.3d at page 287, our Supreme Court considered whether a contemptuous section 601 ward may be confined in a secure facility during nonschool hours despite the express limitations on secure confinement of status offenders in sections 207 and 601. The court held that “a juvenile court retains the authority, pursuant to its contempt power, to order the secure, nonschool-hours confinement of a contemptuous section 601 ward.” (Michael G., supra, at p. 287.) Although the court cоncluded that the statutory limitations in sections 207 and 601 did not deprive the court of its inherent power to punish a contemptuous section 601 ward with secure confinement during nonschool hours, it recognized that “respect for the intent of our coequal branch of government demands that courts exercise caution when imposing such sanctions against contemptuous status offenders.” (Michael G., supra, at p. 296.)
In furtherance of the goal of exercising caution in contempt proceedings against status offenders, the Michael G. court adopted additional requirements that must be satisfied before a juvenile court may find a section 601 ward in contemрt. (Michael G., supra, 44 Cal.3d at pp. 297-300.) First, a juvenile court must ensure that the ward “is given sufficient notice to comply with the order and understands its provisions.” (Id. at p. 297.) Second, the violation must be egregious. (Ibid.) “The requirement of an egregious violation ensures that secure incarceration will not become a commonplace sanction in contravention of the Legislature‘s intent to comply with the federal mandate to deinstitutionalize status offenders.” (Id. at p. 298.) Third, the juvenile court must have considered less restrictive alternatives and found them to be ineffective. (Id. at p. 297.) Fourth, the confinement conditions ordered by the court must ensure that the contemptuous section 601 ward is not allowed to intermingle with section 602 wards. (Id. at pp. 297, 300.)
The Michael G. court also required the juvenile court to memorialize its findings on the record. (Michael G., supra, 44 Cal.3d at p. 298.) By requiring express findings, the Michael G. court ensured “the court is aware that, by ordering the secure confinement of a juvenile who has not committed a criminal offense, it is taking the extraordinary step of acting contrary to the
3. Applicability of Code of Civil Procedure to juvenile contempt proceedings
In this case, the juvenile court purported to apply Michael G. in ordering M.R. to serve a weekend in juvenile hall. The court made findings concerning the egregious nature of the violation of court orders, stated that less restrictive alternatives had been attempted, and ordered M.R. to serve his time in juvenile hall separated from section 602 wards. In effect, M.R. was found guilty of indirect contempt because the contemptuous acts—i.e., the violations of probationary orders—occurred outside the court‘s presence. Yet the court did not follow the “‘elaborate procedure‘” set forth in the Code of Civil Procedure governing proceedings for indirect contempt. (Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1159.) The proceeding was not initiated with an affidavit setting forth the grounds for hоlding M.R. in contempt, and the court did not issue an order to show cause. (See
As discussed above, the court‘s inherent power to punish contempt is tempered by reasonable procedural safeguards enacted by the Legislature in
Without much discussion, the court in Michael G. assumed that at least one of the statutory contempt provisions contained in the Code of Civil Prоcedure applies to contempt proceedings in the juvenile court under Welfare and Institutions Code section 213, stating: “While no case has yet construed the
In Michael G., the court went to great lengths to caution against making the secure confinement of section 601 wards a commonplace occurrence, going so far as to impose additional requirements upon a juvenile court that may be considering holding a status offender in contempt of court. (Michael G., supra, 44 Cal.3d at pp. 297-298Michael G. court envisioned stripping section 601 wards of the рrocedural safeguards contained in the Code of Civil Procedure. (Michael G., at p. 298.) A fair reading of Michael G. suggests that a juvenile court must comply with the contempt provisions of the Code of Civil Procedure as well as the additional requirements specified by the Michael G. court.
The Attorney General contends the Supreme Court in Michael G. permitted the confinement of a contemptuous section 601 ward without requiring compliance with the Code of Civil Procedure. We disagree with the Attorney General‘s characterization of the case. As we have discussed, while it is true the court did not specifically address whether the juvenile court had to comply with the Code of Civil Procedure, the court assumed the contempt provisions of the Code of Civil Procedure apply to contempt proceedings under Welfare and Institutions Code section 213. (Michael G., supra, 44 Cal.3d at pp. 289, fn. 3, 298-299.) Further, the recitation of facts in Michael G. indicates the juvenile court complied with the procedural requirements of the Code of Civil Procedure for indirect contempt. The juvenile court issued an order to show cause why the truant should not be held in contempt of court for numerous unexcused absences in violation of the court‘s order. The truancy ward filed a demurrer and alternative motion to dismiss the order to show cause. Following hearings on the order to show cause, the juvenile court found the ward in contempt of court after rejecting
The Attorney General also argues that M.R. cites no authority holding that a juvenile contempt proceeding pursuant to section 213 is governed by the contempt provisions of the Code of Civil Procedure. While there appears to be no case directly addressing the issue, in In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131 [41 Cal.Rptr.3d 909], the Court of Appeal assumed that a juvenile court attempting to exercise its contempt powers authorized by section 213 may not impose a contempt sanction without strictly complying with the statutory procedure set forth in the Code of Civil Procedure. The Vanessa M. court is not alone in assuming that the contemрt provisions of the Code of Civil Procedure apply to a Welfare and Institutions Code section 213 contempt proceeding in juvenile court. An oft-cited juvenile court treatise states that, “[a]s in other courts, contempt in the juvenile court is done under
Given that the contempt provisions of the Code of Civil Procedure have broad application to civil and criminal proceedings as well as to quasi-judicial proceedings such as those before the Workers’ Compensation Appeals Board, the critical inquiry is why the juvenile court should be excused from complying with the statutory scheme laid out in
The Attorney General further contends the reference to one type of juvenile contemner in
We conclude that the juvenile court must comply with the contempt provisions of the Code of Civil Procedure before ordering the secure confinement of a contemptuous habitual truant pursuant to Michael G. We are mindful that requiring compliance with the Code of Civil Procedure makes the contempt process more cumbersome than it would otherwise be. However, given the caution expressed by the court in Michael G., it is not overly burdensome to require the juvenile court to issue an order to show cause before conducting a contempt hearing in a Welfare and Institutions Code section 601 proceeding. Further, the affidavit requirement, which is liberally construed under
While we agree with M.R. that a juvenile court must comply with
Here, the summary procedure followed by the juvenile court did not comply with the contempt provisions of the Code of Civil Procedure. M.R. had no notice that the juvеnile court would seek to hold him in contempt at the hearing conducted on January 4, 2013, until that hearing was well underway. We observe that the juvenile court largely avoided mentioning the word “contempt” at the hearing, and on appeal the Attorney General adds to the confusion by stating that “the court did not hold [M.R.] in contempt.” However, under the circumstances presented here, the court had no power to order M.R. to serve a weekend in juvenile hall unless its order was based on a finding of contempt. Consequently, the court‘s order is most appropriately characterized as one for contempt. Because the contempt proceeding was not instituted by an affidavit and there was no issuance or service of an order to show cause, the court‘s order is void and must be annulled.4 (Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1169; In re Cowan, supra, 230 Cal.App.3d at pp. 1286-1288.)
4. Appealability of juvenile contempt order
As a final matter, we consider on our motion whether the court‘s order is appealable. M.R. asserts the court‘s order is appealable under
A judgment of contempt is not appealable. (See
supra, 12 Cal.4th at p. 816.) The proper method to challenge a contempt order is to seek extraordinary writ relief, either through a petition for a writ of habeas corpus, certiorari, or prohibition. (See People v. Gonzalez, supra, at p. 816 [contempt judgment reviewable by writ]; Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1165 [prohibition lies to challenge contempt order except when petitioner is in custody, in which case habeas corpus is appropriate remedy]; Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1584, fn. 18 [285 Cal.Rptr. 681] [writ of certiorari is remedy for invalid contempt judgment].)
A challenge to a judgment of contempt requires writ review because it is vital that an order of incarceration be reviewed promptly. The writ process ensures timely resolution of the issue. Allowing review of a contempt judgment in a juvenile case to go by way of appeal would virtually guarantee the matter would not be reviewed until after the period of confinement had ended.
Accordingly, we hold that a judgment of contempt against a truancy ward in a section 601 juvenile proceeding is not an appealable order. (Cf. In re Nolan W., supra, 45 Cal.4th at p. 1226 [reciting Court of Appeal‘s holding that exclusive method to challenge juvenile court contempt order is by writ petition].) As with other civil contempt judgments, the exclusive remedy is a petition for extraordinary writ relief. Although we have the power to dismiss M.R.‘s appeal on the ground the challenged order is nonappealable, we have chosen instead to address the appeal on its merits by exercising our inherent discretion to treat the appeal as a petition for extraordinary writ rеlief. (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367 [118 Cal.Rptr.2d 71].)
The order of contempt is annulled.
Pollak, J., and Jenkins, J., concurred.