In re the Interest of Silva

Madsen, J.

¶29 (concurring in result) — Although I concur in the result reached by the majority, I write separately because the majority mischaracterizes the holding in In re Dependency of A.K., 162 Wn.2d 632, 174 P.3d 11 (2007) (plurality opinion). Indeed, through its mischaracterization, the majority actually overrules our plurality decision without even acknowledging what it has done.

Discussion

¶30 In A.K., five justices agreed that a juvenile court is not required to find statutory criminal contempt sanctions *147inadequate before fashioning a remedial and coercive sanction in a dependency proceeding. In A.K., Justice Bridge agreed with my concurrence that a juvenile court is required to find the statutory remedies for criminal contempt inadequate before using its inherent power to punish a juvenile for violating a court order, but that such a finding is not required before exercising its inherent power to impose a remedial, coercive contempt sanction. Two justices agreed with Justice Owens’ dissent, which stated that a juvenile court may exercise its inherent authority to order a coercive detention after finding the civil contempt statute inadequate without first exhausting the criminal statutory remedy.

¶31 Read together, the concurrence and dissent in A.K. do not support the majority’s assertion here that “A.K. explicitly states, a juvenile court is required to find all statutory contempt sanctions, remedial and punitive, inadequate before resorting to its inherent power.” Majority at 144.

¶32 We accepted review in this case to clarify, not overrule, our decision in A.K. We should reaffirm our decision in A.K. to make it clear that a juvenile court is required to find only statutory remedial contempt remedies inadequate before using the court’s inherent coercive contempt power to hold a dependent or at risk youth (ARY) in contempt and to fashion a coercive sanction. Such a holding would reaffirm that a juvenile need not face criminal prosecution for contempt unless all coercive attempts to gain a juvenile’s compliance have failed. We should also make it clear that before exercising its inherent power to punish a youth for contemptuous conduct, the juvenile court should find both the criminal and remedial statutory contempt remedies inadequate. As I noted in my concurring opinion in A.K., criminal contempt and remedial contempt sanctions are aimed at different concerns, and a judge who is attempting to coerce compliance with a court order will have no reason to consider the adequacy of criminal contempt sanctions.

¶33 ARY proceedings are intended to assist parents in protecting their children from harm, and the best interest *148of the child is central. The legislature expressly stated, “[i]t is the intent of the legislature to avoid the bringing of criminal charges against youth who need the guidance of the court rather than its punishment.” Laws of 1998, ch. 296, § 35. Forcing children into criminal proceedings that could result in a criminal record must surely be done only after all coercive efforts, including the court’s inherent coercive contempt power, have failed.

¶34 Finally, in this case the juvenile court sentenced Estevan Silva, Jr., to 45 days in detention, which the court stated could be suspended on the condition Silva submit to an in-patient treatment program. As Silva points out, however, there are alternatives to incarceration that are available by statute, including evaluation and treatment in secure facilities under RCW 70.96A.140 and .245 (chemical dependency involuntary treatment act) and RCW 71.34.600 (parent-initiated mental health involuntary treatment act). Incarcerating a juvenile before fully exploring such alternatives is not a proper use of the court’s inherent contempt powers, criminal or remedial.

Fairhurst, J., concurs with Madsen, J.