State ex rel. M.C.H. v. Kinder, 16203

CourtSupreme Court of West Virginia
Citation317 S.E.2d 150,173 W.Va. 387
Decision Date09 May 1984
Docket NumberNo. 16203,16203
PartiesSTATE ex rel. M.C.H. and S.A.H. v. Jack KINDER, Magistrate, etc., et al.

Page 150

317 S.E.2d 150
173 W.Va. 387
STATE ex rel. M.C.H. and S.A.H.
Jack KINDER, Magistrate, etc., et al.
No. 16203.
Supreme Court of Appeals of West Virginia.
May 9, 1984.

[173 W.Va. 388] Syllabus by the Court

Page 151

1. A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.

2. Under W.Va.Code, 49-5-1(c), when read in pari materia with W.Va.Code, 49-5-2, and W.Va.Code, 49-5-8(d), a child who is taken into custody under a warrant must be given a detention hearing and must be given the right to have counsel at that hearing.

3. W.Va.Code, 49-5-8(d), and W.Va.Code, 49-5A-2, when read in light of the provisions of W.Va.Code, 49-1-1(a), demonstrate that the legislature has established a substantial preference for release, rather than custody, at a detention hearing.

4. The relevant factors to be considered for preadjudication detention of juveniles, in addition to the statutory provisions found in W.Va.Code, 49-5A-2, i.e., "taking into account the welfare of the child as well as the interest of society," are: (1) the seriousness of the offense charged; (2) the likelihood of flight or, conversely stated, the probability of his appearance; (3) his prior juvenile record and regularity of appearances; (4) whether under all of the circumstances, he poses a substantial danger to himself or to the community; (5) his age, maturity, and general health; (6) his family background and the family's willingness to supervise his behavior; and (7) the availability of alternative sources of placement, short of a secure detention facility, if the family is unavailable, unfit, or unwilling to exercise control over the child.

5. Young children should not be placed in secure detention except in the most extraordinary cases.

6. Committing officials have a duty to explain in writing their reasons for detaining a child, their choice of placement, and if they require secured bail, their reasons for doing so. This duty is required by W.Va.Code, 49-5A-3 (1978).

George Castelle, Juvenile Advocates, Inc., Charleston, for appellants.

Denny Dodson, Kanawha Home for Children, Dunbar, for appellees.

MILLER, Justice:

In this original jurisdiction proceeding, we are asked to set some standards regarding preadjudication detention of juveniles who have committed acts which would be crimes if they were adults. This case involves two juveniles ages seven and nine who were confined in a secure detention facility to await the disposition of delinquency proceedings. Their counsel argues that they should not have been committed to a secure, prison-like facility because of their ages absent some showing of extraordinary circumstances. Further error is assigned that the committing magistrate should not have conditioned their release upon the posting of a $5,000 bond for each child. Because we agree with these contentions, we grant the petitioners' combined petition for writs of prohibition and habeas corpus.

M.C.H. is a seven-year-old boy who is currently enrolled in the second grade of a public school in Kanawha County. His brother and co-petitioner, S.A.H., is a nine-year-old currently enrolled in the fourth grade. Both children live with their mother, a thirty-two-year-old homemaker, who supports her family by means of $206 per month in welfare assistance and food stamps. Mrs. H. is divorced, but is seeking a reconciliation with her former husband.

On January 28, 1984, the petitioners were arrested on a delinquency charge of breaking and entering and taken to the Charleston police station for interrogation. When their mother arrived at the station in response to a telephone call from the police, she was informed that her children were the subject of delinquency petitions filed by the principal of their elementary

Page 152

school. According to these petitions, the boys had been apprehended inside the school with approximately $12 worth of money, toys, and candy in their possession.

[173 W.Va. 389] After informing Mrs. H. of the charges lodged against her children, the police took the petitioners to the Magistrate Court of Kanawha County, where they appeared before the Honorable Jack Kinder, one of the respondents in this action. The arresting officer and the complaining witness described the circumstances surrounding the arrest of the two boys. Mrs. H. admitted that she had had some difficulty in supervising her children, but expressed her desire to retain custody of them, and her distress at the prospect of separation. Magistrate Kinder ordered both children detained in secure confinement after they were unable to post a $5,000 bond set for each child.

The petitioners were then taken to the Kanawha Home for Children, a facility located in Dunbar, West Virginia. The Kanawha Home for Children is a "secure facility" 1 providing temporary shelter to juvenile offenders charged with all categories of criminal offenses, including crimes of a violent or sexual nature. It houses young people up to twenty years of age. The Kanawha Home for Children has a secure common area for daytime activity. At night, the juveniles are locked in cells with barred windows, bare walls, and steel doors. Each cell is furnished with a steel cot, an open toilet, and nothing else.

The petitioners spent four days in this spartan setting. On the fourth day, counsel was appointed for the petitioners and he was able to procure a modification of the magistrate's order to authorize release of the petitioners to the custody of their mother. At the time of the hearing in this Court, the petitioners were participating in the home detention program of the Kanawha Home for Children. Under this program, children live at home, attend their regular school, and receive supervision on a daily basis by a home detention worker.


Although the respondents do not raise a mootness issue, we acknowledge its existence because at the time of the hearing in this Court, the two juveniles had been released into the custody of their mother. We do not believe, however, that the matter is moot. 2 In Rissler v. Giardina, W.Va., 289 S.E.2d 180 (1982), we addressed the issue of mootness in the context of a class action filed by four prisoners held in a county jail. The trial court had dismissed the action when three of the petitioners had been transferred or released from the jail and the fourth withdrew from the suit prior to a disposition on the merits.

We cited a number of United States Supreme Court cases 3 in Rissler, which had recognized an exception to the mootness

Page 153

doctrine where a matter was "capable of repetition, yet evading review." Although Rissler and the cases it chiefly relied upon dealt with mootness in class actions, 4 the [173 W.Va. 390] "capable of repetition, yet evading review" exception is not limited to such actions. 5 We applied Rissler's exception to a single party litigant in note 1 of State ex rel. White v. Narick, W.Va., 292 S.E.2d 54, 55 (1982).

In State v. Gleason, 404 A.2d 573, 578 (Me.1979), Maine's Supreme Court was confronted with a juvenile case which raised a number of issues with regard to its juvenile statutes. The issue of mootness was raised because the juvenile had been released from detention prior to the case being filed in the supreme court. Gleason, like the present case, was not brought as a class action. The court, in rejecting the mootness issue, outlined these considerations in determining mootness:

"First, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief. See Bennett v. State, [289 A.2d 28 (Me.1972) ]; Sibron v. New York, 392 U.S. 40, 53-55, 88 S.Ct. 1889 [1897-98] 20 L.Ed.2d 917 (1968). Second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public. See King Resources Co. v. Environmental Improvement Com'n., Me., 270 A.2d 863, 870 (1970); East Meadow Community Concerts Ass'n. v. Board of Education, 18 N.Y.2d 129, 272 N.Y.S.2d 341, 344, 219 N.E.2d 172, 174 (1966). Third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting or determinate nature, may appropriately be decided. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-126, 94 S.Ct. 1694 [1699-1700] 40 L.Ed.2d 1 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973); cf. Good Will Home Assoc. v. Erwin, [285 A.2d 374] at 380."

We conclude, therefore, that a case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.

Other courts have held that issues surrounding preadjudication detention of juveniles are not rendered moot because the juvenile is released from detention while the case is pending. 6 See, e.g., Doe v. State, 487 P.2d 47 (Alaska 1971); L.O.W. v. District Court in and for County of Arapahoe, 623 P.2d 1253 (Colo.1981) (in bank); Pauley v. Gross, 1 Kan.App.2d 736, 574 P.2d 234 (1977); People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 350 N.E.2d 906, 385 N.Y.S.2d 518 (1976).

Page 154

Under the foregoing law, we find that the juveniles' release from detention does not render this case moot.


Another issue which is not the subject of disagreement by the parties is the petitioners' right to counsel at a detention hearing. There can be no question that [173 W.Va. 391] W.Va.Code, 49-5-1(c) (1982), 7 provides such right:

"The child shall have the right to be effectively represented by...

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