In re Mowery

• Decision Date: 22 October 2007
• Docket Number: No. 58938-5-I.,58938-5-I.
• Citation: 169 P.3d 835,141 Wn. App. 263
• Parties: In the Interest of Ryan Vaughn MOWERY, D.O.B. 12/07/1988, Appellant.
• Court: Washington Court of Appeals

169 P.3d 835

In the Interest of Ryan Vaughn MOWERY, D.O.B. 12/07/1988, Appellant.

No. 58938-5-I.

Court of Appeals of Washington, Division 1.

October 22, 2007.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

Matthew Jason Lysne, Sherman, Sherman, Johnnie & Hoyt, LLP, Salem, OR,

Vaughn Lee Mowery (Appearing Pro Se), Kelly J. Mowery (Appearing Pro Se), for Respondent.

BECKER, J.

¶ 1 A juvenile court resorted to its inherent authority to punish a disobedient juvenile for contempt. At his father's request, the court sentenced the juvenile unconditionally to 30 days in detention, a criminal sanction. It is well established that a criminal contempt sanction should not be imposed unless it is sought by a disinterested public prosecutor in an action separate from the underlying civil dispute. Washington's criminal contempt statute incorporates these principles of procedural fairness. Because the court did not refer the matter for a statutory prosecution or explain why the statute is inadequate for the purpose of punishing criminal contempt, the sentence must be reversed as an unwarranted use of inherent authority.

¶ 2 Appellant Ryan Mowery first came to the attention of the juvenile court when he was 16 years old and living with his father, Vaughn Mowery. Finding Ryan difficult to manage, Mr. Mowery sought and obtained an At Risk Youth order under RCW 13.32A.191-.198. Ryan disobeyed the order by using drugs and alcohol, staying out late, and being generally disrespectful and disobedient. The juvenile court found Ryan in contempt on several occasions during the course of a year.

¶ 3 Mr. Mowery filed a petition in January 2006 under the Child in Need of Services statute, RCW 13.32A.140. He alleged that Ryan was engaging in risky and destructive behavior including substance abuse, property damage, and staying out overnight without permission. The petition was accompanied by a family assessment conducted by Mark Morgenstern, a social worker with the Department of Social and Health Services.¹

¶ 4 On March 21, 2006, King County Superior Court Commissioner Nancy Bradburn-Johnson held a fact-finding hearing, granted the petition and issued an order. The order directed Ryan to move into a group home, follow house rules, attend school, get a drug and alcohol evaluation, and abstain from using or possessing alcohol, tobacco, and all non-prescribed drugs.

¶ 5 Ryan moved into the group home, but he violated other terms of the order by continuing to engage in risky behavior associated with substance abuse. His father, joined by Mr. Morgenstern, filed a motion for contempt that was heard on an order to show cause on May 15, 2006. At the hearing, it was undisputed that Ryan was in contempt for violating house rules, most recently by staying out the entire weekend on his own. Mr. Mowery was concerned not only for Ryan's safety but also because his 18th birthday was coming up at the end of the year and he lacked skills. Mr. Mowery recommended that Ryan be directed to do some research on how to get the equivalent of a high school diploma and write a paper explaining how he planned to support himself after turning 18. Mr. Morgenstern recommended a more serious sanction, possibly detention, because he believed Ryan had unresolved substance abuse issues.

¶ 6 The Child in Need of Services statute authorizes confinement "for up to seven days" as a civil contempt sanction where a party fails to comply with an order entered under the statute. RCW 13.32A.250 (2), (3). The court found Ryan in contempt and ordered seven days of electronic home monitoring, a sanction that Ryan had the ability to terminate before the seven days were up by writing the paper suggested by his father. The court ordered Ryan to submit a sample for urinalysis immediately after the hearing.

¶ 7 A review hearing followed on June 6, 2006. Ryan had participated in a drug and alcohol assessment and written a paper. Mr. Mowery thought Ryan was still not coming to grips with the problem of how he was going to live once he was 18. He and Mr. Morgenstern both felt that the picture Ryan had presented of himself in the chemical dependency self-assessment was not honest. Mr. Morgenstern said he believed Ryan was providing diluted urine samples, and at least one sample had tested positive for marijuana. The court found that Ryan had not completely purged his contempt inasmuch as he was still not following house rules at his placement and had not been honest in the drug and alcohol assessment. The court ordered Ryan to participate in a second drug and alcohol evaluation based on information more objective than a self-report. He was also to submit two more samples for urinalysis.

¶ 8 At the end of the hearing, Commissioner Bradburn-Johnson warned that in the event of a positive or a diluted drug test, the court would consider using "inherent contempt"² to order Ryan into detention for a fixed period of time with no opportunity for early release. "What I would be looking at is up to 60 days because, frankly, he's had plenty of chances. And I will remind him, with counsel present, that inherent contempt means there is no purge condition. . . . You will sit and you waste the entire summer. So I'm serious, Ryan."³ The court informed Ryan that with "inherent contempt," he would have the "rights associated with basically a criminal offender matter," including notice, the right to counsel, the right to a hearing in front of an impartial judicial officer, the right to testify and the right to call and cross-examine witnesses.⁴

¶ 9 At the end of June, Ryan ran away from his placement. Found by police "under the influence and `out of control,'" he was taken to a hospital. Mr. Morgenstern filed a motion for contempt alleging that Ryan "should be held in inherent contempt" because of his continuing abuse of alcohol or drugs.⁵ An initial hearing on the motion was held on July 3. Because Ryan now agreed to enter inpatient treatment, the court continued the matter for a week to permit the details to be worked out.

¶ 10 As later reported by Mr. Morgenstern, Ryan completed a new chemical dependency assessment on July 3 and was found to be dependent on alcohol and marijuana. Although there was an inpatient treatment facility that would admit Ryan, the cost was $12,000 and the family's insurance would not cover it. As a result, instead of Ryan going immediately into treatment as everyone had hoped for, he was returned to his placement. Several hours later, he ran away and did not resurface for two days. He was brought in on a warrant and ordered to remain in detention as a flight risk until the next hearing.⁶

¶ 11 The hearing on the pending motion for contempt occurred on July 11 before a superior court judge. Mr. Mowery explained the insurance coverage and assessment issues that were still presenting obstacles. Inpatient treatment could be covered by a medical coupon but a bed would likely not be available until October. The court made a finding of contempt and imposed seven days of detention as a civil sanction on the condition that Ryan could be released earlier if a treatment option became available and he agreed to accept it.⁷ The issue of "inherent contempt" was reserved for future decision.

¶ 12 Ryan returned to a group home after serving the sanction. Within a month he was taken to a hospital emergency room for treatment after cutting his hand severely on a broken bottle that he had smashed against a rock. After this incident Mr. Mowery filed the motion for contempt that is at issue in this appeal. The motion alleged that Ryan was not only continuing to engage in alcohol and drug abuse and self-destructive behavior, but that he was also stalling the application process for getting into a treatment facility. Mr. Mowery's motion stated, "This court's sanctions have not been successful in bringing about a change in his behavior. As such, it is requested that the court find Ryan to be in inherent contempt."⁸

¶ 13 A fact-finding hearing on the motion occurred on September 5, 2006 before Commissioner Bradburn-Johnson. Ryan, Mr. Mowery and Mr. Morgenstern all testified. Mr. Mowery recommended that the court impose a 30-day detention, "to put Ryan in a safe, stable environment . . . where he would be able to detox and do some real serious self-reflection." Mr. Morgenstern agreed and argued that Ryan was still not "willing to put good faith efforts into getting sober."⁹ Ryan opposed the motion. He testified that he was willing to sign the necessary consent forms and go into treatment.

¶ 14 The court decided that Ryan's history of disobeying court orders called for a finding of "inherent contempt". The court ordered him into immediate detention for 30 days, a fixed term of confinement. The court explained that sending Ryan to detention without a purge condition meant that "basically, it's like a criminal action."

What I'm looking at is the fact that he absolutely refuses to abide by these court orders. And I'm not talking about signing consent forms or going into inpatient treatment. . . . I'm talking about the file that I have — we're on Contempt Number 4. He has been threatened with inherent contempt before, he was given his rights, he understood what they were, and that process has been followed today. He's had the right to call witnesses, to cross-examine witnesses. He's been represented by an attorney. He's had the right to present information to the Court. And I'm looking at his record here: drug use, running — the drug use is against this court order — bench warrant.

It's very clear that he has no intention of following this court order, and I have nothing left. I have nothing left to give him to try to twist his arm into following the court order except inherent contempt. And I am going to impose 30 days. . . . This is not coercive. This is inherent. It's also not punitive. It's inherent contempt of the Court to enforce its own orders, and...