T. J. H., In re

• Decision Date: 10 April 1972
• Docket Number: No. 57070,57070
• Citation: 479 S.W.2d 433
• Parties: In the Interest of T.J.H., a Child Under Seventeen Years of Age.
• Court: Missouri Supreme Court

Page 433

479 S.W.2d 433

In the Interest of T.J.H., a Child Under Seventeen Years of Age.

No. 57070.

Supreme Court of Missouri, En Banc.

April 10, 1972.

Rehearing Denied May 8, 1972.

T. E. Lauer, National Juvenile Law Center, St. Louis, Richard J. Habiger, Legal Aid and Defender Society, Kansas City, for appellant.

John C. Danforth, Atty. Gen. (Michael Boicourt, Asst. Atty. Gen., Jefferson City, Mo.), Max Von Erdmannsdorf, North Kansas City, for respondent.

DONNELLY, Judge.

In May, 1971, the Juvenile Officer of Clay County, Missouri, filed petitions in the Juvenile Division of the Circuit Court of Clay County, alleging the delinquency of a child sixteen years of age. On May 24, 1971, the juvenile officer filed a 'Motion For Order Terminating Further Proceedings in Juvenile Court and Transferring Jurisdiction of (the child) for Prosecution Under the General Law Pursuant to Section 211.071, Revised Statutes of Missouri, 1969.' A hearing was held and the Juvenile Division ordered 'that the petitions herein * * * be dismissed and that said child * * * be prosecuted under the general law.' Appellant, by his mother, appealed to this Court from said order.

The determinative question presented is whether said order is a final order from which an appeal shall be allowed.

V.A.M.S. § 211.071 reads as follows:

'In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, or that the child has violated a state or municipal traffic law or ordinance or that a minor between the ages of seventeen and twenty-one years over whom the juvenile court has jurisdiction has violated any state law or municipal ordinance, the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.011 to 211.431.'

V.A.M.S. § 211.261 reads as follows:

'An appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 and may be taken on the part of the child by its parent, guardian, legal custodian, spouse, relative or next friend. An appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 which adversely affects him. Notice of appeal shall be filed within thirty days after the final judgment, order or decree has been entered but neither the notice of appeal nor any motion filed subsequent to the final judgment acts as a supersedeas unless the court so orders.'

We hold that an order of a Juvenile Court in Missouri, dismissing a petition therein, and, in effect, relinquishing jurisdiction to deal with a child under the Juvenile Code, is not a final order from which an appeal shall be allowed to the Court of Appeals or to this Court. We take this position for at least two reasons:

(1) In People v. Jiles, 43 Ill.2d 145, 251 N.E.2d 529, 531 (1969), appears language we consider appropriate: '* * * Our sole concern is the appealability of an order which, after a hearing at which the juvenile was represented by counsel, dismissed the delinquency proceedings so that a criminal prosecution could proceed.

'To permit interlocutory review of such an order would obviously delay the prosecution of any proceeding in either the juvenile or the criminal division, with the result that the prospect of a just disposition would be jeopardized. In either proceeding the primary issue is the ascertainment of the innocence or guilt of the person charged. To permit interlocutory review would subordinate that primary issue and defer its consideration while the question of the punishment appropriate for a suspect whose guilt has not yet been ascertained is being litigated in reviewing courts. We are unwilling to sanction such a procedure.'

(2) In Kent v. United States, 383 U.S. 541, 548, 552, 86 S.Ct. 1045, 16 L.Ed.2d 84 (a case wherein the propriety of a waiver of jurisdiction by the Juvenile Court of the District of Columbia was in question), the United States Supreme Court considered acceptable the view of the United States Court of Appeals for the District of Columbia Circuit (Kent v. Reid 114 U.S.App.D.C. 330, 316 F.2d 331), that 'the exclusive method of reviewing the Juvenile Court's waiver order was a motion to dismiss the indictment in the District Court.' This method of review is available in Missouri. V.A.M.R. 25.06.

The appeal is dismissed.

FINCH, C.J., HOLMAN and HENLEY, JJ., and WEIER, Special Judge, concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J.

MORGAN, J., not sitting.

SEILER, Judge (dissenting).

I respectfully dissent. Sec. 211.261, RSMo 1969, V.A.M.S., is clear and to the point. It provides: 'An appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of section 211.011 to 211.431 . . .' (emphasis supplied). The effect of the principal opinion is to amend the statute by adding a proviso: 'Provided, no appeal shall be allowed from any order dismissing a petition.'

The order before us dismissing the petitions in juvenile court disposed of all issuse in the case and all parties. It was an order, which is specifically mentioned in Sec. 211.261, and it was made under Sec. 211.071, which is one of the sections to which Sec. 211.261 applies. The order was not tentative, informal, or incomplete. It left nothing for future determination in the juvenile court and was final. Whether anything more would be done with the juvenile depended on third parties--the prosecutor or the grand jury. If there is to be a subsequent prosecution it will be an independent action, not a continuation of the juvenile proceeding. What happens in the criminal prosecution will in no way affect what was done in juvenile court. The order of dismissal thus meets all the tests by which we ordinarily judge what is a final judgment or order in a civil or criminal case. See Sec. 512.020 and Sec. 547.070, RSMo 1969, V.A.M.S., and the many cases on the point. See also Carter v. Murphy (Mo.App.) 465 S.W.2d 28, where the court accepted the very sort of appeal we hve before us and decided the case on the merits.

As is well known, our present juvenile code was adopted in 1957. When the new code was adopted, the right of appeal was greatly broadened. Prior to 1957, in 1st and 2nd class counties, an appeal could be taken only from a final judgment of delinquency or dependency, or a final order of commitment, and nothing else. In the new code the legislature eliminated the restriction on appeals from 1st and 2nd class counties, and provided, in the broadest possible terms, that an appeal shall be allowed the child from any final judgment, order, or decree made under the juvenile code. This is consistent with our juvenile code approach that no juvenile can be prosecuted under the general law until the juvenile court first dismisses the juvenile proceedings.

The principal opinion reaches a result contrary to the clear legislative intent to broaden the scope of appeal from the juvenile court.

The majjority opinion does not discuss what there is about the order dismissing the juvenile petitions which is not final or what else is needed to make it a final order. Instead, the opinion relies on an Illinois case, People v. Jiles, 43 Ill.2d 145, 251 N.E.2d 529, and a District of Columbia case, Kent v. Reid, 114 U.S.App.D.C. 330, 316 F.2d 331. In my opinion, the provisions of the Illinois juvenile code and of the District of Columbia juvenile code are so dissimilar from ours that I do not believe either decision should be used as the basis for disallowing this appeal.

The Illinois court itself in the Jiles case described its juvenile procedure as 'unique'. In Illinois, the juvenile judge does not have the determination of whether or not a particular juvenile is to be prosecuted criminally, which is completely different from the Missouri system. The Illinois court said, 251 N.E.2d l.c. 531: 'The role of the judge of the juvenile division is sharply diminished. He may do nothing if the juvenile elects to be prosecuted criminally, and if the prosecutor elects to proceed criminally, he may, by noting his objection, bring about a hearing before the chief judge of the circuit.'

The issue before us is not the same as that in the Jiles case. Illinois has no broad appeal statute such as our Sec. 211.261. In Illinois, appeal is limited to appeal from adjudication of delinquency, Smith-Hurd Ann.St. Ch. 37, Sec. 704--8, so the Illinois court was not concerned with interpretation of whether the attempted appeal came within their statute. What the Illinois court did was to consider whether as a matter of policy, it should nevertheless permit such an appeal under its rule making power, and decided it would not be sound policy to do so, 251 N.E.2d l.c. 530. In our case, our legislature has already established the Missouri policy on appeals by Sec. 211.261, and ...