In re John M.

• Decision Date: 01 December 1999
• Docket Number: No. 1787,1787
• Citation: 129 Md. App. 165,741 A.2d 503
• Parties: In re JOHN M.
• Court: Court of Special Appeals of Maryland

741 A.2d 503

129 Md. App. 165

In re JOHN M.

No. 1787, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 1, 1999.

Mitchell J. Shapiro (Shapiro & Shapiro, on the brief), Bethesda, for appellant.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Robert Dean, State's Attorney for Montgomery County, Rockville, on the brief), for appellee.

Argued before HOLLANDER, EYLER and KENNEY, JJ.

KENNEY, Judge.

This appeal arises from a juvenile delinquency proceeding in the District Court of Maryland for Montgomery County, sitting as a Juvenile Court. The juvenile court ordered John M. and his mother to pay $38,000 restitution for the counseling expenses of two children whom John M. confessed he sexually abused. John M. and his mother, appellants, contend that the court "clearly erred, procedurally and substantively, with regard to the amount and propriety of the restitution ordered in this matter."

Facts

John M. admits that, on five different days while babysitting for two of his female cousins, he went to their bedrooms and "fondled" both girls, and digitally penetrated the older girl's vagina. John M. was fifteen years old. The younger cousin ("Victim # 1") was four years old and the older girl ("Victim # 2") was six years old at the time of the abuse, which occurred between September 1, 1995, and September 30, 1996. He sometimes committed the abusive acts more than once in the same babysitting session. John M. claimed that neither girl appeared to awaken during the fondling.

The abuse was discovered on an occasion when the older girl found out that John M. was going to be babysitting for them again. She told her parents that she did not want John M. to babysit and described the acts that he did to her in her bed. The younger girl said she could not remember the abuse, but Victim # 2 said she heard her sister screaming after John M. went into Victim # 1's room. When confronted by the police, John M. admitted to abusing both girls.

On April 4, 1997, two juvenile petitions were filed in the District Court for Montgomery County, charging John M. with twenty-one counts of sexual child abuse and third degree sexual offenses. On June 9, 1997, John M. entered a plea of "involved" to counts 1 and 7 (child abuse) and count 5 (third degree sexual offense) of Petition # 39709428 (regarding Victim # 1) and to counts 1, 7, and 10 (child abuse) and counts 5 and 13 (third degree sexual offense) of Petition # 39709429 (regarding Victim # 2). The other counts were dismissed. The court found John M. to be delinquent.

At the conclusion of a subsequent hearing on August 25, 1997, the Juvenile Court ordered that John M. (1) be placed on probation in the custody of his mother,¹ (2) participate in a juvenile sex offenders program, (3) perform community service, and (4) provide restitution, the amount of which was not determined at that time. On October 20, 1997, the court denied John M.'s motion to compel examinations of the victims by a child abuse therapist hired by John M.

On both December 19, 1997 and April 6, 1998, the court heard testimony regarding restitution. On July 23, 1998, the court issued an order directing John M. and his mother to pay $38,300 in restitution. The order stated:

Whereas, the Court having found the Respondent committed delinquent acts which have required [the victims] to seek counseling from a licensed health care provider in the amount of $38,300;

It is therefore, ORDERED, pursuant to Article 27, Section 808 that [John M. and his mother] immediately pay restitution to [the victims' parents] in the amount of $5,795.

It is further ORDERED, pursuant to Article 27, Section 808, that [John M. and his mother] immediately pay restitution in the amount of $585 to the Department of Juvenile Justice for reimbursement of [Victim # 2's] Spring, 1998 counseling expenses.

It is further ORDERED, pursuant to Article 27, Section 808, that [John M. and his mother] immediately pay restitution in the amount of $31,920 to the Department of Juvenile Justice to be held in an interest bearing escrow account for reimbursement of counseling expenses for [the victims].

It is further ORDERED that upon application by [John M. or his mother], any unexpended portion of the escrow account being held by the Department of Juvenile Justice for the benefit of [the victims] may be returned to the applying party. The application referred to in this portion of the order shall not be considered by this Court until April 20, 2010.

This appeal followed.

Questions Presented

John M. and his mother present six questions for our review, which we have slightly rephrased:

1. Whether the juvenile court's award of restitution was clearly erroneous and an abuse of the judge's discretion.

2. Whether John M. received proper notice of the claim for restitution.

3. Whether the juvenile court erred in not granting John M.'s Motion for an Independent Medical Examination of the victims to determine the nature and extent of their injury.

4. Whether the juvenile court's refusal to stay execution of enforcement of the judgment against John M. and his mother was clearly erroneous and an abuse of discretion.

5. Whether John M.'s mother received proper notice of the claim for restitution and was given a fair opportunity to defend the claim for restitution.

6. Whether the juvenile court abused its discretion by granting the State's continuance of the first Disposition/Restitution hearing.

We shall consider the second and fifth questions together. We answer the first, second, and fifth questions in the affirmative and the rest of John M.'s questions in the negative. We shall reverse in part and remand the case for further proceedings in accordance with this opinion.

Motion to Strike

As a preliminary matter, we shall grant appellee's motion to strike John M.'s appendix. Maryland Rule 8-501(b)(2) provides that no record extract shall be filed in an appeal to this Court from juvenile delinquency proceedings.

Discussion

Restitution in Juvenile Proceedings

During the time that this case was being heard in the juvenile court, the applicable statutory provision for restitution was Article 27, § 808.² Section 808 stated, in pertinent part:

(a) In general.—(1) The juvenile court may enter a judgment of restitution against the parent of a child, the child, or both in any case in which the court finds a child has committed a delinquent act and during or as a result of the commission of that delinquent act has:

* * *

(iii) Caused the victim of the delinquent act to incur reasonable counseling expenses from a licensed health care provider, if the delinquent act involved:

* * *

2. Child abuse under § 35C of this article;

* * *

4. Incest, rape, or sexual offense in any degree....

* * *

(c) Limitations on judgment.—... (2) As an absolute limit against any one child, his parents, or both, a judgment rendered under this section may not exceed $10,000 for all acts arising from a single incident.

Juvenile proceedings have a "special" character; they are civil in nature, rather than being criminal proceedings. In re Victor B., 336 Md. 85, 93, 646 A.2d 1012 (1994). Juvenile Courts have broad discretion to order restitution, either against the juvenile himself, a parent, or both. In re Don Mc., 344 Md. 194, 201, 686 A.2d 269 (1996).

Restitution serves several objectives. It can compensate victims who have been injured or who have suffered property loss as a result of the wrongful acts of a minor, although "a court's concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant." In re Don Mc., 344 Md. at 203, 686 A.2d 269 (citation omitted). Restitution "can `impress upon [the juvenile] the gravity of harm he has inflicted upon another', and `provide an opportunity for him to make amends.'" In re Levon A., 124 Md.App. 103, 132, 720 A.2d 1232 (1998) (quoting In re Herbert B., 303 Md. 419, 427, 494 A.2d 680 (1985)). The restitution statute "is also penal in nature since liability arises `as a consequence of a presumed neglect of parental responsibilities.'" In re Zephrin D., 69 Md.App. 755, 761, 519 A.2d 806 (1987) (citation omitted).

Under the common law in Maryland, absent proof of agency, parents are not vicariously liable for the wrongful acts of their minor children. [C & J] Section 3-829 alters this rule by imposing liability on the juvenile's parent(s) where the child committed a delinquent act that caused injury to another. Exclusive of personal injury, the statute provides for some restitution to the victim where the juvenile either permanently deprived the victim of the property by stealing it or destroying it, or where the juvenile merely damaged the property. Since the statute is in derogation of the common law, it must be strictly construed.

Id. at 759, 519 A.2d 806 (citations omitted). "[I]n permitting a court to assess restitution against a parent, `the legislature has expressed its preference that as between the victim, or the public, and the parents of a delinquent child, the parents should bear the expense caused by their child.'" In re Lorne S., 123 Md.App. 672, 679, 720 A.2d 920 (1998) (quoting In re William George T., 89 Md.App. 762, 775, 599 A.2d 886 (1992)).

On appeal, the juvenile has the burden of establishing that the restitution awarded by the juvenile court was erroneous. In re Levon A., 124 Md.App. at 142, 720 A.2d 1232. The juvenile court's decision will not be overturned on appeal "`except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" In re Don Mc., 344 Md. at 200-201, 686 A.2d 269 (quoting State ex rel. Carroll v. Junker, 79 Wash.2d 12, 482 P.2d 775, 784 (Wash.1971)); see In re Levon, 124 Md.App at 143, 720 A.2d 1232; In re Lorne S., 123 Md.App. at 680, 720 A.2d 920.

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