State v. Jensen

Pekelis, J.

I concur in the reversal of Michael's conviction for intimidating a witness. However, I respectfully dissent from the affirmance of Michael's conviction for second degree burglary. Judge Swanson would hold that a parent may effectively terminate the minor child's right to enter the family home so long as this termination is communicated to the child and other provisions for the child's care have been made. For the reasons expressed more fully in my opinion in State v. Walsh, 57 Wn. App. 488, 789 P.2d 766 (1990), I would hold that an alternative residential placement order under RCW 13.32A or other appropriate court order is required before a child's entry into the *511parental home can be deemed "unlawful" for purposes of criminal prosecution.

As the facts of this case demonstrate, the rule that Judge Swanson would establish does not lend itself to easy application. The trial court did make a specific finding of fact that the Jensens had "made it very clear that they did not want [Michael] in the house unattended." However, there was testimony that the Jensens had made these pronouncements in the past, but had then nevertheless tolerated Michael's subsequent "unprivileged" entries.

These facts illustrate that the parent-child relationship is frequently fraught with ambiguities and unenforced "ultimatums." It is precisely for this reason that judicial approval of the withdrawal of the child's privilege to remain in the family home is desirable. Unlike a parent's often ambivalent and equivocal pronouncement, the court's order cannot be misunderstood.

I find equally troubling the notion that the effectiveness of the parent's revocation of the child's privilege to enter depends on whether "appropriate alternative arrangements" have been made. This necessarily involves an after-the-fact assessment of whether the arrangements provided were "appropriate". Judge Swanson's opinion suggests that the defense of necessity could be raised by the juvenile defendant and in that manner the adequacy of the alternative arrangements would be litigated.

However, whether a parent has made "appropriate" alternative arrangements for a child is usually evaluated not by juries in a criminal case, but by the trial court sitting as a family court judge. Moreover, I continue to believe that whether alternative provisions are adequate is subsumed in resolution of the more basic question of whether the child's privilege to enter the home should be terminated at all. This question should be answered well in advance of any potential burglary prosecution and at that time the court should either approve some plan for the child's care or make a determination that the particular child has, in effect, emancipated himself.

*512Judge Swanson relies on In re G.L., 73 Ill. App. 3d 467, 391 N.E.2d 1108, 1110 (1979) for the proposition that parents cannot be required to submit to the "adolescent tyranny of a drug addict son". Although I am in agreement with that proposition, it begs the question of how that "tyranny" should be eliminated. In re G.L., supra, does not appear to support the approach urged by Judge Swanson. G.L.'s legal custody had been placed outside the home prior to the child's forced entry into the home. Thus, the outcome in In re G.L., supra, is consistent with the rule I would adopt: a burglary prosecution is appropriate when a court has previously determined the legal relationship between the parent and child.

Finally, I disagree with the suggestion that we can or should rely on the prosecuting authority's good judgment in deciding which of these cases is appropriate for prosecution. Prosecutors are not social workers, and they require manageable standards to guide the reasoned exercise of prose-cutorial discretion. It is the function of the family court, not the prosecutor and jury, to sort out delicate and complex family relations and the rights and duties flowing therefrom.

Review granted at 115 Wn.2d 1001 (1990).