In re Elmore

• Decision Date: 31 August 1966
• Docket Number: No. 3977.,3977.
• Citation: 222 A.2d 255
• Parties: In the Matter of Jesse Gene ELMORE.
• Court: D.C. Court of Appeals

Page 255

222 A.2d 255

In the Matter of Jesse Gene ELMORE.

No. 3977.

District of Columbia Court of Appeals.

Argued July 11, 1966.

Decided August 31, 1966.

John E. Vanderstar and Edmund E. Fleming, Washington, D. C., for Jesse Gene Elmore.

David P. Sutton, Asst. Corporation Counsel, with whom Milton D. Korman, Acting Corporation Counsel, Hubert B. Pair, Acting Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation

Counsel, were on the brief, for the District of Columbia.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

Jesse Gene Elmore appeals from a decision of the Juvenile Court of the District of Columbia finding him to be a delinquent and committing him to the custody of the Department of Public Welfare until his seventeenth birthday.

On November 17, 1965, Jesse's mother, with whom he was living, filed a petition in the Juvenile Court pursuant to D.C.Code § 11-1551(a) (1) (B) (Supp. V, 1966) representing that the boy, then aged thirteen, was habitually beyond her control in that

"* * * from September 24, 1965, until October 29, 1965, he has run away from home three times for a total of thirteen days. During the same period of time, he has kept late and unusual hours at home without permission, practically every night. He has been illegally absent from school sixteen days this school year."

A motion by the boy's attorney requesting a jury trial was denied. Pending hearing on the petition, Jesse was committed to the Receiving Home. A later motion for his release into his father's custody¹ was granted.

At the hearing on the petition on January 4, 1966, evidence was introduced that during October 1965 Jesse had been absent from school without excuse for thirteen and a half days out of twenty-two school days. He had run away from home three times since September 24, 1965, remaining away on these occasions from four days to one week, at which times he would sleep in an upstairs hallway of the building where his mother lived, in vacant houses, in a neighbor's car, or, according to the boy, at a friend's house. During these periods he would not notify his mother where he was. When at home he would keep late hours and disregard her efforts to control his behavior. His mother testified she always prepared his meals, bought him adequate clothing, and gave him money for lunch at school. On his own behalf, Jesse offered as an excuse for his failing to attend school that he had no shoes "worth wearing." He asserted his absences from home were caused by his mother's telling him on one occasion that he could no longer remain there as he had broken a window and, on another occasion, that she did not want him at home. Jesse admitted he kept late hours and was uncontrollable, as the petition charged, but stated he was afraid to come home because of his mother. Jesse's father testified the boy had never been a discipline problem for him during the few periods he had stayed with him. There was other testimony that Jesse was cooperative during the time at the Receiving Home and seemed interested in his school work.

At the conclusion of the testimony the trial judge ruled that Jesse was within the jurisdiction of the Juvenile Court because of his truancy from school, because of inadequate home supervision, and because he was habitually beyond the control of his mother. The case was continued for disposition on January 21, 1966, and Jesse was released to the custody of his father. At the disposition hearing on that date the probation officer reported that since the last hearing Jesse had not had after school supervision and had been arrested on January 6, 1966, after being found in a parked automobile when he should have been in school. As a result of this incident, the boy had been sent to the Receiving Home. The probation officer also stated that the boy had told him that he was unable to control his actions and could not adjust in the community without committing acts of delinquency and had expressed a wish to be placed in the Receiving Home until something could be worked out so he would have better supervision than he had with either of his parents.

Essentially adopting the suggestions of the probation officer, the trial court committed Jesse to the custody of the Department of Public Welfare until his seventeenth birthday, recommending that he be considered for placement in an institution where he could obtain psychotherapy and directing that the case be reviewed ex parte by the court about July 15, 1966, before the beginning of the school year, in order to determine what progress the boy had made.

In contesting the court's action, appellant's counsel charges principally that it was error to refuse to grant a jury trial; that the evidence failed to establish that Jesse was habitually beyond the control of his mother; and that the commitment of the boy to the custody of the Department of Public Welfare was arbitrary, capricious and without a rational basis.

I

D.C.Code § 16-2307 (Supp. V, 1966) provides that the Juvenile Court shall hear and determine all cases of children without a jury "unless a jury is demanded by the child, his parent, guardian, or the court." Counsel for appellant contends that this section must be read to guarantee the right of trial by jury upon demand by any of the parties named, regardless of whether the juvenile proceedings are denominated civil or quasi-criminal. We do not find that the authorities in this jurisdiction or elsewhere support this contention.

A delinquent child is neither considered nor treated as a criminal but as a person needing guidance, care and protection. Thomas v. United States, 74 App.D.C. 167, 169-170, 121 F.2d 905, 907-908 (1941). The safeguards which surround him do not inherently derive from the Constitution but from the social welfare philosophy which forms the historical background of the Juvenile Court Act, here and as similarly enacted elsewhere, as recently enunciated in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). See also Pee v. United States, 107 U.S.App.D.C. 47 274 F.2d 556 (1959). The investigation and court proceedings involving the determination of a child's delinquency are directed to the status and needs of the child, and the disposition thereof has as its goal not punishment but the rehabilitation and restoration of the child to useful citizenship. 100 A.L.R.2d 1241,1242 (1965). The end result is that a child should not be labeled a criminal, he is not punished as a criminal, and the proceedings against him should be far removed from the characteristics of a criminal trial.

In considering ID.C.Code (1951) § 11-915, predecessor to the present § 16-2307, we ruled in In re Lambert,² a case involving a parent's demand for a jury trial in a dependency proceeding, that this section preserved the right to a trial by jury in cases involving children only where such constitutional right had theretofore existed and did not extend such right to custody cases — civil equity proceedings where such right did not traditionally exist. Our decision in this case was upheld by the United States Court of Appeals which, after a review of the theory and legislative history behind the statute, held that

"In the light of the clear purpose of the statute, and in the additional light of the legislative history, we cannot * * hold [that appellant was entitled to a jury trial]. We think that the right to jury trial upon demand was intended to be granted only in those cases in which jury trials had theretofore been customary."³

The reasoning in Lambert is applicable here. It has not been shown in the instant case that the right to trial by jury was customary in a proceeding of the nature of the one before us⁴ — essentially a custody hearing, where the issue was directed to whether the child was habitually beyond the control of his mother. We hold that the trial judge did not err in denying appellant's request for a jury trial.

II

Appellant makes a two-pronged attack on the...