In re MR

• Decision Date: 25 January 2002
• Docket Number: No. 87,313.,87,313.
• Citation: 38 P.3d 694,272 Kan. 1335
• Parties: IN THE INTEREST OF M.R., D.O.B.: 11-14-86
• Court: Kansas Supreme Court

272 Kan. 1335

38 P.3d 694

IN THE INTEREST OF M.R., D.O.B.: 11-14-86

No. 87,313.

Supreme Court of Kansas.

Opinion filed January 25, 2002.

Craig A. Stancliffe, of Lawrence, argued the cause and was on the briefs for appellant.

Angela M. Wilson, assistant district attorney, argued the cause, and Christine E. Kenney, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

M.R., a 14-year-old juvenile, was found to be a child in need of care and placed in a group home. She refused to attend school or to perform court-ordered community service in lieu of school attendance. The district judge initiated indirect contempt proceedings and ultimately found M.R. to be in indirect contempt, placing her in a juvenile detention center during the day and confining her to the group home otherwise. At the contempt hearing, M.R. moved to dismiss the proceedings, arguing that the court lacked jurisdiction to find her in contempt. M.R. now appeals the court's denial of her motion to dismiss.

M.R., her half brother, and her half sister came to Kansas from California. They had been in California foster care because of neglect and abuse by M.R.'s mother. M.R.'s stepfather was awarded legal guardianship of the children by the State of California. M.R. lived with her stepfather beginning in March 2000. The State of California closed its case file on November 21, 2000.

On January 17, 2001, Kansas Department of Social and Rehabilitation Services (SRS) worker Elizabeth Day filed an application for care and/or protective custody order concerning M.R. with the juvenile division of the District Court of Douglas County, Kansas. The specific facts alleged concerning M.R were:

"[M.R.] has been truant for much of the school year and is highly disruptive in school. School records indicate that [M.R.] has six (6) in-school suspensions; seven (7) out of school suspensions; three (3) unexcused absences and four (4) excused absences. She skipped school on January 2, 2001 and did not come home at the end of the school day. [Her stepfather] called her in as a runaway. She came into Police Protective Custody that same day and was placed at The Shelter. She was also referred to the Truancy Program because of this incident.

"A referral to Family Preservation services was made by SRS on January 5, 2001. [M.R.] returned home that day. She agreed to attend school and refrain from running. She skipped school on January 9, 2001. She ran from [her stepfather's] house the next day, January 10, 2001. Early in the morning of January 13, 2001, [her stepfather] received an anonymous phone call telling him [M.R.] could be located at 3rd and California. He drove there and returned with [M.R.] to their home. [M.R.] was in the company of two other female juveniles and an adult male .. .. [She was] described ... as `drunk, soiled and with "hicicies" all over her.' After returning to their home, [M.R.] described to her mother over the phone, sexual encounters with the adult male she was with at 3rd and California. [The adult male] has been arrested . .. .

"[t]he police [were called] after ... the phone conversation between [M.R.] and her mother. [M.R.] was again placed in Police Protective Custody and placed at The Shelter.

"[M.R.] ran from The Shelter at approximately 2:05 p.m. on January 16, 2001. [She was] found ... and [taken] to the Lawrence Police Station. She was placed in detention because of the extreme run risk. [Her stepfather] is unwilling for [M.R.] to return to his home at this point. Lonnie is not an option for placement because of her confirmed abuse of [M.R.] in California."

On January 22, 2001, M.R. was adjudicated a child in need of care by the Honorable Jean F. Shepherd. Pursuant to K. S.A. 38-1543(g), M.R. was placed in temporary custody of Lawrence SRS, with placement at Kaw Valley Center. The court found that out-of-home placement would be in her best interest because her "running [away] and other behaviors make it impossible for [her] stepfather to maintain her safely at home; she engages in high-risk behavior when she runs." The case plan included a provision for eventual reintegration into her stepfather's home.

The court ordered that M.R. live at The Shelter, Inc. because she required "much more structure and supervision for her own safety than can be provided in family home, even with services." In addition, the court ordered that M.R. attend summer school or perform 2 hours of community service work for each hour of school she missed.

Within days of the hearing, on May 4, 2001, Gina Meier-Hummel, a licensed social worker with SRS, wrote to the Douglas County District Court to inform the court that M.R. refused to perform community service as ordered. Elizabeth Fleske, a family support worker with Kaw Valley Center, filed an affidavit with the Douglas County District Court stating, in pertinent part:

"THAT [M.R.] was brought into the custody of Lawrence SRS and placed with Kaw Valley Center on January 17, 2001 in the above captioned case.

"THAT [M.R.] was originally placed in Hiawatha, Kansas on January 17, 2001, where she ran from her placement. Upon her return to Lawrence, Kansas on March 12, 2001, [M.R.] was placed at The Shelter, Inc. in Lawrence, Kansas. [M.R.] was subsequently enrolled in Central Junior High School as a seventh grader.

"THAT [M.R.] began refusing to attend school, stating that she believes that there are persons at Central Junior High School who wish to do her harm. The Shelter, Inc. has attempted to have [M.R.] transferred to West Junior High School, but it has not yet been approved.

"That [at] [M.R.]'s Formal Hearing on April 30, 2001, the court ordered [M.R.] to perform two (2) hours of community service work (CSW) for each hour of school that [M.R.] missed. That [M.R.] has continuously refused to attend school. That [M.R.] has continuously refused to participate in any CSW and, as of this date, she has yet to complete a single hour of CSW."

On May 17, 2001, Judge Shepherd appointed advocate counsel to represent M.R. personally and filed an order to show cause why [M.R.] should not be held in indirect contempt of the court's orders.

At the contempt hearing, counsel for M.R. moved for dismissal of the contempt proceedings, arguing that the court lacked jurisdiction to find the child in contempt. M.R. admitted the allegations in the affidavit, and the court found her in indirect contempt for failure to comply with the court's orders. Judge Shepherd requested recommendations from counsel as to what would constitute an appropriate way for M.R. to purge herself of the contempt. After listening to recommendations, the court stated:

"At this time it will be the order of the Court that to purge herself of contempt [MR] be placed on house arrest to continue in her placement at The Shelter, and she is to attend the Day Detention School for summer school.

"If she is successful in the summer school program at the Day Detention School, then the Court recommends that she attend West Junior High School in the fall. But she needs to demonstrate that she can successfully participate in the school program.

"I will waive the community service work that has accumulated to date . .. because that would be an additional consequence to her."

Judge Shepherd stated that she was entering the sentence pursuant to the court's contempt authority in Chapter 20 of the Kansas statutes.

M.R. attended the Day Detention School from May 24, 2001, through July 13, 2001. July 13, 2001, was M.R.'s last day at the Day Detention School. A letter received by the court on July 13 from Meier-Hummel advised that

"[M.R.]'s 90th day at the Shelter is 7/15/01. On 7/15/01 she will then go to the Lingenfelser, 1926 Tennessee here in Lawrence for a temporary placement until she moves to a more permanent placement on 7/17/01 at the Bell residence. Ms. Bell lives at 3147 Douglas Road, Richmond, KS 66080."

On July 19, 2001, M.R. was transferred from her foster home to the KVC West Shelter in Kansas City, Kansas, because of disruptive behavior.

The first issue for consideration is whether this case is moot. The State contends that because M.R. is no longer required to attend the Day Detention School, she has purged herself of the contempt and the case is moot. Conversely, M.R. argues that the issues presented are not moot because there has been no order terminating her sentence. Furthermore, M.R.'s attorney asserts that she did not purge her contempt by attending summer school as ordered because she was removed from Day Detention School on July 13, while her summer school was scheduled to last until August 10, 2001. This argument seems disingenuous because M.R. was removed from the house and school because the time contracted for had expired.

"`It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matters in issue before the court.'" In re Appeal of Colorado Interstate Gas Co., 270 Kan. 303, 305, 14 P.3d 1099 (2000), citing Miller v. Sloan, Listrom, Eisenbarth & Glassman, 267 Kan. 245, 262, 978 P.2d 922 (1999).

" "An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned." [Citations omitted.]"` Shanks v. Nelson, 258 Kan. 688, 690-91, 907 P.2d 882 (1995).

On July 15, 2001, because The Shelter, Inc. had reached the maximum number of days under its contract to provide services for Kaw Valley Center, M.R.'s residency changed. M.R. was moved to a foster home, ran from it a few days later, then was summarily placed at Kaw Valley West campus. She remains there and attends West...