Waterman, In Interest of
| Decision Date | 14 July 1973 |
| Docket Number | No. 47157,47157 |
| Citation | 512 P.2d 466,212 Kan. 826 |
| Parties | In the Interest of Jack Leroy WATERMAN II, a child under the age of 18. STATE of Kansas, Petitioner, v. Jack Leroy WATERMAN II, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The right to appeal is neither a vested nor constitutional right but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.
2. It is within the domain of the legislature to determine from what orders, rulings and judgments an appeal may be taken.
3. The Kansas Juvenile Code (K.S.A. 38-801 et seq., as amended) is a full, complete and comprehensive enactment fully covering the field of delinquent, miscreant, dependent and neglected children and providing its own specific rules and procedures, including procedures for appeal.
4. Ordinarily a special statute pertaining to a particular situation will take precedence over a statute generally relating to the same or similar area.
5. A question going to the jurisdiction of the court to entertain an appeal may be raised by this court on its own motion.
6. Where a district court has no jurisdiction of the subject matter of an appeal taken to it, the supreme court does not acquire jurisdiction by reason of an appeal from the ruling or decision of the district court. (Following Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P.2d 457.)
7. As a general rule a litigant cannot appeal from a judgment unless he has been in some way injured or aggrieved thereby and this rule obtains in cases where a constitutional issue is presented as well as in others.
8. Questions which are not raised in or presented to the trial court will not be considered by this court on appeal.
9. The record is examined in an appeal by the state from an order of the juvenile court declining to waive its original jurisdiction in a juvenile case and for reasons appearing in the opinion it is held (1) the state did not have a right of appeal from the juvenile court's order and its appeal should be dismissed and (2) the cross-appeal filed by the juvenile should be dismissed.
James E. Rumsey, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, of counsel, were with him on the brief for petitioner.
Patrick F. Kelly, of Render, Kamas & Kelly, Wichita, argued the cause and was on the brief for respondent.
This is another case originating in juvenile court in which that court held a hearing under K.S.A. 1972 Supp. 38-808(b) to determine whether or not to waive its exclusive jurisdiction and direct the prosecuting attorney to prosecute the juvenile under the appropriate criminal statutes. However, the posture of this case on appeal differs from the others which have come before us concerning the construction of 38-808(b) in that here the juvenile court refused to waive jurisdiction and the state has appealed from that ruling-a complete reversal of the usual situation where the juvenile has appealed from an order waiving jurisdiction.
A brief outline of the facts is needed. In June 1971, Jack Leroy Waterman II was charged with two acts of delinquency in the possession and sale of marijuana. He was found to be delinquent and was probated to his parents. On July 28, 1972, Waterman was charged with an additional act of delinquency in possessing marijuana. Three days thereafter, on July 31, a third petition was filed in juvenile court charging two acts of delinquency, (1) premeditated murder and (2) armed robbery. Both of the latter acts were alleged to have occurred on July 18, 1972, just 28 days short of Waterman's eighteenth birthday.
A referral hearing was commenced August 11, 1972, at which time two members of the court's staff, a counselor supervisor and a clinical psychologist, testified in effect that Waterman had emotional and psychiatric problems and expressed the opinion he would not be amenable to the facilities, treatment and program available to the juvenile court.
At the conclusion of the hearing the juvenile judge, being unsatisfied that all available dispositions other than referral to district court had been explored and exhausted, and being particularly mindful of the views expressed by this court in the recent case of In re Patterson, Payne & Dyer, 210 Kan. 245, 499 P.2d 1131, continued the hearing to an open date and announced that he would arrange to have Waterman taken to the Larned State Hospital for psychiatric examination by doctors serving at that institution.
The record reflects that the hearing was reconvened October 11, at which time it was discovered that the medical findings were still inconclusive and the doctors needed further time for evaluation. Accordingly, the hearing was continued a second time.
On March 13, 1973, the hearing was resumed and medical testimony was presented to the effect that Waterman was suffering from mental illness diagnosed as adjustment was amenable to treatment; and illness was amenable to treatment; and that the facilities needed to treat that type of mental illness were available at the Larned Hospital in the Dillon, or security, section of the hospital, an area which was available to the Boys' Industrial School. Dr. Robert A. Haines, Director of Institutional Management and Health Services, Department of Social Welfare, testified in substance that if Waterman was found to be a delinquent based on the current charges, it was possible for him to be admitted to the hospital for treatment of his mental illness. In other words, as we understand the evidence, while Waterman would not be accepted at the Boys' Industrial School, he could be admitted to the hospital's security ward as boys domiciled at the school were admitted. At the conclusion of the hearing the juvenile court found Waterman amenable to the juvenile program and entered an order retaining jurisdiction.
The state appealed this decision to the district court where a de novo hearing was held April 5, 1973. Essentially the same evidence was introduced at this hearing as had been presented in juvenile court. The district court likewise found Waterman amenable to the care and treatment available through the juvenile facilities and sustained the juvenile court in its retention of jurisdiction. The state once again appealed, this time to the supreme court, and Waterman has filed a cross-appeal.
The sole point raised by the state is phrased in these words:
'Since the Reasonable Likelihood of Successful 'Care, Treatment and Training' of a Juvenile Before He Reaches the Age of 21 Years Is a Critical Element of 'Nonamenability,' the District Court Committed Prejudicial Error in Excluding Evidence Regarding That Element.'
In this connection the state contends the court excluded all evidence on the question of whether there was a reasonable likelihood of successful treatment before Waterman reached the age of twenty-one years, at which age he would no longer be subject to the juvenile court's jurisdiction. As we look at the record, which contains an undue amount of verbatim verbiage, we harbor some doubt that evidence on that point was entirely excluded.
Be that as it may, we do not reach the question posed by the state, for we believe the appeal must be dismissed on jurisdictional grounds. The juvenile code sets forth its own appellate procedures in K.S.A.1972 Supp. 38-834. Subsection (a) recites that the provisions of the section do not apply to appeals under K.S.A. 38-833 () Subsection (b) provides as follows:
Subsection (c) provides that an appeal shall not suspend or vacate the order appealed from, but the same shall continue in force until final judgment is rendered in district court, provided the district judge may modify the juvenile court order pending appeal, on such conditions as to him may seem proper. This subsection provides also that the case shall be heard and disposed of in accordance with the provisions of the act and in the exercise of the powers and discretion given the juvenile court. Subsection (d) recites that the clerk of the district court shall certify the district court judgment to the juvenile court, which shall then proceed in accordance therewith. Subsection (e) provides that the appellant shall serve notice of appeal on the adverse party or his attorney within the thirty-day time specified in subsection (b). Subsection (f) recites that whenever a party gives notice of appeal in good faith but omits through mistake to do any other act necessary to perfect the appeal, the district court may permit amendment on such terms as may be just. In subsection (g) it is provided that a record of the district court proceedings shall be filed and made a part of the files of the case.
It will be noted that nowhere in the statute is any provision made for the state to appeal to district court; only the child or someone acting in its behalf is so authorized. We believe the omission is significant and meaningful.
The juvenile court act is a comprehensive inclusive act covering the entire field of juvenile delinquency, miscreancy, dependency and...
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