In re K.K.

¶ 1 I write separately for purposes of addressing the General Assembly's treatment of the underlying issue in this case, and not for purposes of taking the Majority's analysis to task. I have reviewed the sparse legislative history behind the promulgation of 42 Pa.C.S.A § 6325,Detention of child, and of 42 Pa.C.S.A. § 6327, Place of detention, (e)Detention of dependent child, and the various amendments to these provisions in conjunction with this Court's dispositions in both InInterest of Crawford, 360 Pa.Super. 36, 519 A.2d 978 (1987), and InInterest of Tasseing H., *Page 307 281 Pa.Super. 400, 422 A.2d 530 (1980) (Cavanaugh, J. concurring in the result) (Hester, J. dissenting). My research has not uncovered any inherent justification in the relevant statutory language and caselaw for upsetting the Majority's analysis. Section 6327(e) provides that status offenders "shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses, but may be detained in the same shelter care facilities with alleged or adjudicated delinquent children." The phrase "or adjudicated" was added to section 6327(e) by the General Assembly in 2000. Nonetheless, and moving from the general to the specific, this phrase is still the object of the noun "shelter care facilities," which the Juvenile Act defines as "physically unrestricted" care. 42 Pa.C.S.A. § 6302, Definitions. The Act further provides that status offenders can be housed in the same shelter care facility as delinquents if the "children receiving shelter care services are segregated from the children receiving secure detention services. . . ." Id.

¶ 2 There are times, however, when plain and unambiguous statutory language conflicts with pragmatic and constitutional concerns. I begin with words I penned over thirty years ago:

If th[e] court cannot enforce its orders, the alternatives are clear. The malaise which effects this country in so many ways, which saps our will and points to a substantial decline in our culture and society, is no more evident than in our inability to do what is difficult and to some degree painful, to compel our children to accept education, routine discipline and authority. If the Court does not have the power to deal with this issue, then we will see a massive movement in Pennsylvania, as is already occurring to a fair degree elsewhere, to `emancipate' children at sixteen so that they can obtain public assistance and begin their careers as drones who will never make a contribution to our society. Those under sixteen will, of course, have to `make it' on the street however they can, until they too can be `emancipated' and be maintained by the public. The issue is not one of children's rights, but society's survival.

Tasseing, supra at 538 (Hester, J. dissenting), quoting Trial Court Slip Op. at 80.

¶ 3 In 1974, the United States Congress passed the Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. § 5601, et. seq. During the debates leading up to the passage of the JJDPA, I presented papers to the United States Congress arguing in favor of a "valid court order" exception to the proposed blanket prohibition against detaining status offenders in secure facilities. See Hon. Patrick R. Tamilia, In Search ofJuvenile Justice: From Star Chamber to Criminal Court, 29 Akron L.Rev. 509, 521 (1996). Congress initially rejected my position, only to reverse course in 1980 to ensure that states which detain juveniles "who are charged with or who have committed a violation of a valid court order" in secure facilities do not lose eligibility for formula grants.42 U.S.C. § 5633, State plans, (a)(11)(A)(ii), Requirements. The "valid court order" exception also has been adopted by large jurisdictions such as California, Ohio, and Virginia. See e.g., Cal. Code Civ. Pro. § 1219.5,Refusal of minor to testify; Referral to probation officer; Report andrecommendation by probation officer; Placement of minor; Ohio Rev. Code Ann. § 2152.26(B), Place of detention; Va. Code Ann. § 16.1-292(a),Violation of court order by any person.

¶ 4 In 1982, the Pennsylvania Juvenile Court Judges' Commission endorsed *Page 308 House Bill 1327, which would have allowed, inter alia, status offenders in contempt of a valid court order to be detained either in a delinquency facility or in a specially approved detention facility for dependents. I am of the hope this modest Concurring and Dissenting Opinion will help to end the decades old debate over the "valid court order" exception in a common sense fashion.

¶ 5 The Congressional "valid court order" exception was passed in the face of vehement opposition to the very notion that juveniles should ever be detained in secure facilities. See e.g., H.R. Rep. No. 96-946, at 24-25 (1980), reprinted in 1980 U.S.C.C.A.N. at 6111. Some of this opposition was prompted by valid concerns; no one would argue that a truant belongs in SCI — Rockview. Some of this opposition was hyperbole. I believe there is a middle ground between allowing the placement of status offenders in any secure facility for any reason, and allowing the placement of status offenders who are in violation of a valid court order in a secure facility where delinquents are being housed — especially in situations where it is possible for status offenders to be segregated from delinquents. Indeed, history has taught us that a balanced approach tailored to the individual needs of specific juveniles is the most effective method of dealing with the plague of juvenile deviance and violence:

[T]he juvenile court has seen itself evolve from a benevolent, child-centered concept, based on the 17th century doctrine of parens patriae, to a virtual return to the system it supplanted, the criminal court. At the extremes, the worst of both worlds has been inflicted upon the child, who has few advocates and is incapable of speaking for him or herself in the only manner that counts, through the political process based upon the power to vote.

Tamilia, J., 29 Akron L.Rev., supra at 509.

¶ 6 In this Commonwealth, and in American society at large, the specter of detention has been the focal point of the punitive and involuntary rehabilitative schematic since the 1790 construction of the Walnut Street Jail in Philadelphia. Every other punitive and involuntary rehabilitative mechanism, from probation to fines to court-ordered drug rehabilitation, derives its efficacy from this threat. In the instant matter, K.K. defied the June 6, 2007, attachment Order by refusing to accompany CYF to shelter care. K.K. then failed to appear for the June 13, 2007, dependency hearing. In response, the juvenile court issued a contempt Order and a warrant directing K.K. be committed to a secure facility. When K.K. was finally brought to task, the juvenile court agreed to vacate the underlying contempt Order if K.K. would agree to accompany CYF to shelter care. The absurdity of forcing a court to barter with a teenager should be enough in of itself to give one pause. K.K. abruptly violated the agreement, and the juvenile court was forced to issue a second contempt Order with an accompanying warrant on July 12, 2007. K.K. has refused to comply with three juvenile court directives. In my estimation, the July 12, 2007 Order addresses indirect criminal contempt, not mere civil contempt, inasmuch as the Order is necessary "to vindicate the dignity and authority of the court and to protect the interest of the general public." Commonwealth v. Ashton, 824 A.2d 1198,1202 (Pa.Super. 2003), citing Lachat v. Hinchliffe, 769 A.2d 481, 488 (Pa.Super. 2001) (additional citation omitted); see also Tasseing, supra at 538 (Cavanaugh, J. concurring) (concluding a single act of absconding from shelter care *Page 309 should be defined as criminal contempt).8

Indirect criminal contempt is a crime. Crozer-Chester Med. Ctr. v.Moran, 522 Pa. 124, 560 A.2d 133, 137 (1989). "Any criminal contempt is a crime in the ordinary sense: it is a violation of the law constituting a public wrong punishable by fine, imprisonment, or both." Ashton, supra at 1203, citing Diamond v. Diamond, 715 A.2d 1190, 1195 n. 6 (Pa.Super. 1998); see also 42 Pa.C.S.A. § 4134, Commitment for failure topay fine.

¶ 7 The status offender who is in criminal contempt cannot be found delinquent — provided the contempt itself does not include a subsidiary offense which can be defined as delinquent or which can be certified — due to the summary nature of criminal contempt offenses. See42 Pa.C.S.A. § 6302, supra. Thus, there is no scenario in which such status offenders can be placed in a secure facility. The General Assembly's rationale in refusing to allow juvenile courts to hold status offenders in secure facilities is seemingly that "since adults charged with analogous acts of contempt cannot be subjected to sentences of imprisonment, juveniles cannot lawfully be committed at all to a facility for delinquent children on the basis of this behavior." Tasseing at 537. This rationale is unpersuasive, and not just for the obvious reason that adults in criminal contempt can be committed to prison. The placement of a status offender in a secured facility is not synonymous with a "sentence of imprisonment." The goals underlying such placements are "reformation and rehabilitation, as opposed to punishment and retribution." Commonwealth v. Dallenbach, 729 A.2d 1218, 1220 (Pa.Super. 1999). Indeed, the General Assembly's rationale ignores the very nature of the juvenile system. This Court once explained:

Born at the end of the 19th century, the juvenile justice system was created with the lofty goal of saving, not punishing, of rehabilitating, not incarcerating, and of protecting, not penalizing our wayward children. Its birth sprang from the efforts of social reformers, who were concerned with the deleterious effects of sentencing juveniles to lengthy terms in adult prisons. The juvenile courts "aimed to check juvenile delinquency and to throw around a child, just starting, perhaps, on an evil course and deprived of parental care, the strong arm of the State acting as parens patrie."

In the Interest of K.B., 432 Pa.Super. 586, 639 A.2d 798, 800-801 (1994), overruled on other grounds by In the Interest of M.M., 547 Pa. 237,690 A.2d 175 (1997). The idea that the juvenile system is a "parallel universe" for treating juveniles like we treat adults is at odds with both history and common sense. In the criminal justice system, courts are faced with fully-developed adults whose decision process is a creature of habit, and who are often unwilling to learn new behaviors. The at-risk status offender, on the other hand, is not fully-developed and can still be taught new behaviors.

¶ 8 K.K. does not attend school; he uses drugs and engages in inappropriate sexual *Page 310 behavior; he is inadequate socially; he refuses to submit to mental health therapy; and he unabashedly ignores judicial directives. The General Assembly has left the juvenile court in a position where it is unable to compel K.K. to submit to treatment and, worse yet, is forced to convey the message that disobedience to the court and, as part of a larger paradigm, society at large will go unaddressed. The juvenile court not only is unable to deal with the issues K.K. presently faces, it is forced to help set the stage for what could be a greater tragedy. Pragmatism demands better.

¶ 9 From a purely legal perspective, the General Assembly's decision also raises constitutional concerns. Many years ago, our Supreme Court discussed the innate and long-standing authority of courts to address contempt.

All courts have this power, and must necessarily have it; otherwise they could not protect themselves from insult, or enforce obedience to their process. Without it, they would be utterly powerless. The authority to deal with an offender of this class belongs exclusively to the court in which the offence is committed; and no other court, not even the highest, can interfere with its exercise, either by writ of error, mandamus, or habeas corpus. If the power be abused, there is no remedy but impeachment. The law was so held by this court in M'Laughlin's Case (5 Watts 375), and by the Supreme Court of the United States in Kearney's Case (20 U.S. 38, 7 Wheat. 38, 5 L.Ed. 391). It was solemnly settled, as part of the common law, in Brass Crosbey's Case (3 Wils. Ind. 183), by a court in which sat two of the fore-most jurists that England ever produced. We have not the smallest doubt, that it is the law; and we must administer it as we find it.

Passmore Williamson's Case, 26 Pa. 9, 18 (1855). In 1976, the innate authority of courts to punish contempt was re-codified by our General Assembly in the Judicial Act at 42 Pa.C.S.A. § 323, Powers. The power of the courts to punish contempt, like all powers, is checked by the General Assembly's authority to limit this power. Concomitantly, the General Assembly's power to punish contempt is also checked by the judiciary's authority to supervise the exercise of this power. See Commonwealth exrel. Carcaci v. Brandamore, 459 Pa. 48, 327 A.2d 1, 5 (1974). Understandably, there are few cases in this Commonwealth's jurisprudence where the General Assembly's exercise of its authority in this regard was at issue. In Penn Anthracite Mining Co. v. Anthracite Miners ofPennsylvania, 318 Pa. 401, 178 A. 291 (1935), our Supreme Court addressed the question of whether the General Assembly had the constitutional authority to "grant the right to a jury trial to one charged with an `indirect criminal contempt for violation of a restraining order' and limit the punishment" that chancery courts could impose for such contempts. Id. at 293. In concluding the General Assembly did indeed possess this authority, the Court pointed out the statute under consideration was "narrow in scope" and "does not interfere with the power to deal summarily with contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and is in express terms carefully limited to the cases of contempt specifically defined." Id. at 295.

¶ 10 At first glance, section 6327(e), supra, seemingly could be classified, as applied to cases such as the one at bar, as a lawful exercise of the General Assembly's power to limit the tools the judiciary has at its disposal for dealing with contemnors. Indeed, one could argue the practical consequence of section 6327(e) is similar in *Page 311 nature to the provision at issue in Penn Anthracite which, in part, limited the punishments chancery courts could impose on contemnors. The problem with this analogy is that the provision at issue in PennAnthracite authorized commitment both as an initial punishment for contempt and as a method with which to compel a contemnor to satisfy a contempt fine. Id. at 292. In plain terms, the limitation at issue inPenn Anthracite ultimately succumbed to reality.

¶ 11 I respectfully submit that once the threat of detention is taken off of the table, juvenile courts are "utterly powerless" to address dependent status offenders in contempt of court. Williamson's Case,supra at 18. Without the ability to compel compliance, juvenile courts can ask a status offender in contempt to come before the court, report to shelter care, or submit to other treatment, but it cannot compel such action. Human experience has taught us that inviting people, especially those of minority age, to alter engrained behaviors which offer the allure of instant gratification is often an invitation that is declined. The instant matter is no different.

¶ 12 It is unclear whether section 6327(3), which was passed two years after the JJDPA, was drafted with the express intent of prohibiting courts from placing status offenders in criminal contempt in secured facilities. The practical consequences of section 6327(e) in these situations, nonetheless, are sufficient to raise constitutional separation of powers issues. These consequences prevent juvenile courts of this Commonwealth from fully "provid[ing] for the care, protection, safety and wholesome mental and physical development of children coming within the provisions of the Juvenile Act. See 42 Pa.C.S.A. § 6301, Shorttitle and purposes of chapter, (b)(1.1) Purposes. The constitutional question, however, was not addressed before the juvenile court or this Court, is more suitable for a higher tribunal, and is best left for another day.

¶ 13 In conclusion, I respectfully urge the General Assembly to amend the Juvenile Act to include a carefully crafted "valid court order" exception to the section 6327(e) prohibition against detaining status offenders. Society's interest in treating at-risk youth demands that we give our juvenile courts a complete set of tools with which to work, and the order of law demands no less. A provision which yields negative practical consequences and raises constitutional concerns represents "idealism" at its worst.

¶ 14 It is for these reasons that I respectfully dissent from the result we have been forced to render in this case.

8 "The factors generally said to point to a civil contempt are: 1) Where the complainant is a private person as opposed to the government or a governmental agency; 2) where the proceeding is entitled in the original . . . action and filed as a continuation thereof as opposed to a separate and independent action; 3) where holding the defendant in contempt affords relief to a private party; 4) where the relief requested is primarily for the benefit of the complainant; and 5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion." Ashton, supra at 1202, quoting Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669, 673 (1956).