Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 78426-4
Title of Case: In re Dependency of A.K.
File Date: 12/20/2007
Oral Argument Date: 02/13/2007


SOURCE OF APPEAL
----------------
Appeal from Yakima County Superior Court
01-7-00042-7
Honorable Heather K Van Nuys


JUSTICES
--------
Gerry L. Alexander Majority Author
Charles W. Johnson Signed Majority
Barbara A. Madsen Concurrence Author
Richard B. Sanders Signed Majority
Bobbe J. Bridge Signed Concurrence
Tom Chambers Signed Dissent
Susan Owens Dissent Author
Mary E. Fairhurst Signed Dissent
James M. Johnson Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Sheila Malloy Huber
Attorney at Law
Po Box 40124
Olympia, WA, 98504-0124


Stephen H. Hassett
Office of the Attorney General
Po Box 40124
7141 Cleanwater Dr Sw
Olympia, WA, 98504-0124

Amicus Curiae on behalf of American Academy of Child and Adolescent Psychiatry
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Tammy Seltzer
Bazelon Center for Mental Health Law
1101 15th Street Nw
Suite 1212
Washington, DC, 20005

Amicus Curiae on behalf of Columbia Legal Services
Beth Ann Colgan
Columbia Legal Services/Institutions Pro
101 Yesler Way Ste 300
Seattle, WA, 98104-2528


Casey Trupin
Columbia Legal Services
101 Yesler Way Ste 300
Seattle, WA, 98104-2528


Patricia J. Arthur
National Center for Youth Law
405 14th St Fl 15
Oakland, CA, 94612-2704


Anne Aiping Lee
TeamChild
1225 S Weller St Ste 420
Seattle, WA, 98144-1906


Brent M Pattison
TeamChild
1225 S Weller St Ste 420
Seattle, WA, 98144-1906


Kimberly Dawn Ambrose
University of Washington School of Law
Po Box 85110
Seattle, WA, 98145-1110

Amicus Curiae on behalf of National Center for Youth Law
Patricia J. Arthur
National Center for Youth Law
405 14th St Fl 15
Oakland, CA, 94612-2704

Amicus Curiae on behalf of Teamchild
Beth Ann Colgan
Columbia Legal Services/Institutions Pro
101 Yesler Way Ste 300
Seattle, WA, 98104-2528


Casey Trupin
Columbia Legal Services
101 Yesler Way Ste 300
Seattle, WA, 98104-2528

Amicus Curiae on behalf of Children's Alliance
Justin Dolan
Garvey Schubert Barer
Second & Seneca Bldg
1191 2nd Ave 18th Fl
Seattle, WA, 98101-3438

Amicus Curiae on behalf of National Council for Community Behavioral Healthcare
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158

Amicus Curiae on behalf of Federation of Families for Children's Mental Health
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158

Amicus Curiae on behalf of Mental Health America
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158

Amicus Curiae on behalf of National Alliance on Mental Illness
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158

Amicus Curiae on behalf of Bazelon Center for Mental Health Law
Stephen Alan Smith
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Kari Lee Vander Stoep
Kirkpatrick & Lockhart Preston Gates Ell
925 4th Ave Ste 2900
Seattle, WA, 98104-1158


Jennifer Mathis
Bazelon Center for Mental Health Law
1101 15th Street Nw
Suite 1212
Washington, DC, 20005

Amicus Curiae on behalf of Aclu
Nancy Lynn Talner
Attorney at Law
Ste 300
705 2nd Ave
Seattle, WA, 98104-1723


Sherri Wolson
ACLU of Washington Foundation
C/o Nancy Talner
705 2nd Avenue, 3rd Floor
Seattle, WA, 98104

Amicus Curiae on behalf of Northwest Women's Law Center
Nancy Lynn Sapiro
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA, 98101-1818

Counsel for Other Parties
Rebecca Thepenha Dombcik
Dept of Assigned Counsel Juvenile Div
1728 Jerome Ave
Yakima, WA, 98902-1820


Theodore Patrick Lowry
Attorney at Law
810 S 19th Ave
Yakima, WA, 98902-4222





IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Dependency of ) No. 78426-4
)
A.K. )
In the Matter of the Dependency of ) En Banc
)
M.H.-O. )
In the Matter of the Dependency of )
)
Y.H. ) Filed December 20, 2007

ALEXANDER, C.J. -- Petitioners M.H.-O. and Y.H. are teenage girls who ran

away multiple times from foster homes in which they had been placed. The juvenile

court found each of them in contempt of court for running away and used its "inherent

contempt power" to order each of them to spend 30 to 60 days in detention.

Petitioners ask this court to reverse the Court of Appeals decision affirming the

juvenile court orders. They argue that the Court of Appeals erred in concluding that

the juvenile court has the inherent power to impose punitive sanctions on a youth for

indirect contempt. Although we disagree with petitioners' assertion, we conclude that

the juvenile court improperly resorted to the use of its inherent power in this case.

We, therefore, reverse the Court of Appeals.

No. 78426-4 -- 2

I

A. Y.H.

In 2001, Y.H. was found by the Yakima County Juvenile Court to be a

dependent child. Consequently, she was placed in foster care. Y.H. ran away from

the foster home at least six times in 2003 and 2004. The first time she ran away,

Yakima County Juvenile Court Commissioner Robert Inouye warned her that she

needed to stay in the foster home in which she had been placed. After subsequent

runs, Y.H. was found in contempt and sentenced to three to seven days in detention,

with the option to purge her contempt by writing an essay and promising not to run

away again. After her fourth disappearance, Y.H. was also moved to a new foster

home. The fifth time Y.H. ran away, Commissioner Inouye warned her that if she ran

again he might have to resort to the court's inherent contempt power in order to

impose greater sanctions.

Finally, after the sixth time Y.H. ran away, respondent, Department of Social

and Health Services (DSHS), asked the juvenile court to exercise its inherent

contempt power and impose a punishment greater than the statutory remedy of up to

seven days in juvenile detention with an option to gain earlier release by purging the

contempt. Commissioner Inouye conducted a hearing on DSHS's request and heard

testimony from witnesses. He subsequently sentenced Y.H. to 30 days in detention for

contempt, without the opportunity to purge the contempt. He found:
If we continue to use [the] Becca procedure,[1] [Y.H.] will

2

No. 78426-4 -- 3

continue to make empty promises and continue to run and
place her self at serious risk.

. . . .

[Y.H.]'s disobedience to the court orders has escalated in
severity over time, rather than lessening in response to the
Becca contempt sanctions.

[Y.H.]'s mother believes that the Becca sanctions are
inadequate to change [Y.H.]'s behavior, and that something
different should be tried, if another run is to be avoided.

There is reason to believe that an inherent contempt disposition will likely
have coercive effect on [Y.H.]. It will become clear to [Y.H.] that
continued future decisions to violate court orders may have much more
serious consequences. It will give her a period of time to stabilize without
the adverse influences which she seeks while one [sic] the run. It will not
give her the opportunity to run again the next day after her contempt
hearing (as she did on 8-30-03).

The stakes are high at this point[. Y.H.] appears headed for a very
dangerous life style which includes gangs, drugs and sex to the exclusion
of stability, safety and education. . . . We are risking a catastrophe with
her future if we are unable to formulate an adequate response to her bad
choices.

Clerk's Papers (CP) (23252-2-III) at 73-74.

Y.H. moved for revision of the order. A judge of the Yakima County Superior

Court upheld the commissioner's use of inherent contempt power to impose a 30-day

1In 1995, the Washington Legislature passed a bill known as the "Becca Bill,"
which amended the Family Reconciliation Act (chapter 13.32A RCW) to provide
parents of runaway children a tool to control them through the legal system. See Alison
G. Ivey, Comment, Washington's Becca Bill: The Costs of Empowering Parents, 20
Seattle U. L. Rev. 125 (1996); Laws of 1995, ch. 312. A later amendment, known as
the "Becca Too" bill added the current "remedial" contempt sanction to RCW
13.34.165. See Ivey, supra; Laws of 1996, ch. 133. Because of this, the imposition of
remedial contempt sanctions with a purge condition is known as the "Becca procedure"
or "Becca sanctions."

3

No. 78426-4 -- 4

sentence. Y.H. then appealed to the Court of Appeals.

B. M.H.-O.

Like Y.H., M.H.-O. was found by the Yakima County Juvenile Court to be a

dependent child and placed in foster care. She also ran away from her placement at

least six times in 2003 and 2004, two of these times within a day of promising the court

she would not run again. After each of the first four of these disappearances, the

juvenile court found M.H.-O. in contempt and sentenced her to four to seven days in

detention, with the option to purge her contempt. Once, she was released after merely

promising not to run again. After the third time M.H.-O. ran, Commissioner Inouye

warned her that he might have to resort to the court's inherent contempt power to

impose greater sanctions if she ran again.

The fifth time M.H.-O. ran away, DSHS moved for the juvenile court to exercise

its inherent contempt power. Commissioner Inouye set a trial date, advised the parties

that the contempt must be proved beyond a reasonable doubt, and warned M.H.-O.

that detention imposed under inherent contempt power could last until she turned 18

and carried no option to purge the contempt. M.H.-O. stipulated "that she had run as

alleged," in exchange for a recommended sentence of 30 days. CP (23211-5-III) at

86. Sentencing M.H.-O. to 30 days, with no option to purge the contempt,

Commissioner Inouye found:

[M.H.-O.] has repeatedly promised not to run, and
repeatedly broken those promises. Given this recent
history, a new purge promise not to run could not be
believed.

4

No. 78426-4 -- 5

There is reason to believe that an inherent contempt
consequence with no purge option could achieve what a
purgeable 7 days of civil contempt consequence could not.
It will afford [M.H.-O.] a longer period of time to stabilize
under the influence of a "home" where she is not on the
streets and on the run. It will give her an opportunity to
reflect and become more accustomed to a lifestyle which
includes school and continuity.

Id. at 87.

A week after M.H.-O. was released from detention, she ran away again. DSHS

again moved for the court to use its inherent contempt power to impose an appropriate

sanction upon M.H.-O. After being advised of the "potential consequences" of the

contempt motion "and of her rights," M.H.-O. again stipulated that she had violated a

court order by running away. Id. at 76. In determining a proper sanction for M.H.-O.'s

sixth contempt, Commissioner Inouye stated:

This court has attempted to persuade [M.H.-O.], through use
of the usual civil contempt remedies, to begin following court
orders and live in a safe manner. These efforts have failed,
repeatedly.
. . . .
[M.H.-O.] has repeatedly demonstrated that this limited
consequence does not deter her from choosing to run. . . .
. . . .
Hopefully [M.H.-O.] will grow out of this phase, before she
suffers further serious or irreparable harm. Eventually a civil
contempt sanction may have some actual coercive effect for
her . . . .
At present, the court is unable to assure the basic safety of
[M.H.-O.] without resort to the inherent contempt powers[.]
The legislatively provided tools have proven inadequate.

Id. at 78. Commissioner Inouye went on to explain that there was "a reasonable basis

for believing that some other specific period of detention will achieve what seven days

5

No. 78426-4 -- 6

will not," because M.H.-O. was "asking for help with in-patient drug treatment," and he

believed that "[a] more extended period of time under the auspices of juvenile

detention would give a more significant opportunity for her to experience being drug

free in a more structured environment including an education component." Id. at 79.

Commissioner Inouye decided to give M.H.-O. a "more extended sentence" than he

had prior to that time, because "that prospect is likely to have a greater deterrent

effect." Id. Accordingly, he sentenced M.H.-O. to 60 days in detention, with no purge

option.

M.H.-O. moved for revision of both orders. A judge of the Yakima County

Superior Court upheld the commissioner's use of inherent contempt power to impose

both the 30-day and 60-day sentences. M.H.-O. appealed to the Court of Appeals.

C. Court of Appeals Decision

The Court of Appeals essentially consolidated Y.H.'s and M.H.-O.'s appeals,
along with a similar appeal by a third juvenile, A.K.2 That court concluded that the

juvenile court possesses the inherent power to impose a punitive sanction, such as the

determinate sentences in this case, for indirect contempt of court. In re Dependency of

A.K., 130 Wn. App. 862, 867, 125 P.3d 220 (2005). It ruled, however, that this power

can be used only when the juvenile court finds (1) "that the statutory remedy is

inadequate to meet the juvenile's needs" and (2) "that a different period of detention is

2The Court of Appeals opinion addressed four orders: one involving Y.H., two
involving M.H.-O., and one involving the third juvenile, A.K. Commissioner Inouye had
sentenced A.K. to 60 days in detention, without a purge option, for running away from
her placement a fifth time. That sentence, like the others, was imposed pursuant to the
juvenile court's inherent contempt power.

6

No. 78426-4 -- 7

necessary." Id. The Court of Appeals further determined that criminal due process

protections must be afforded in a punitive contempt proceeding, including

notice of the charges, a reasonable opportunity to respond, the
presumption of innocence, the right to have guilt proved beyond a
reasonable doubt, the right to refuse to testify, the right to call witnesses
and to cross-examine, the assistance of counsel, and the right to a trial
before an unbiased judge.

Id. at 878 (citing Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, 798-

99, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987); In re Winship, 397 U.S. 358, 368, 90 S.

Ct. 1068, 25 L. Ed. 2d 368 (1970)).

Applying these standards, the Court of Appeals concluded that the order relating

to A.K. was deficient, because it failed to "specifically state the reasons why the

juvenile court decided that the statutory civil remedial sanctions were inadequate" and

why "a determinate sentence without the opportunity to purge would better address
[her] contempt." Id. at 886. Accordingly, A.K.'s order was vacated.3 The Court of

Appeals also vacated one of the orders relating to M.H.-O., on the basis that she

stipulated to facts without being informed of all her due process rights. The Court of

Appeals affirmed the other two orders, which are now before us on review.

II

A. Mootness

This case is technically moot, petitioners having each served the sentence

imposed for contempt. In re Det. of Swanson, 115 Wn.2d 21, 24, 793 P.2d 962, 804

3Because the Court of Appeals vacated A.K.'s order, only Y.H. and M.H.-O.
petitioned this court for review.

7

No. 78426-4 -- 8

P.2d 1 (1990). Consequently, effective relief cannot be afforded to either of them.

Moreover, petitioners are now over the age of 18 and no longer subject to the

jurisdiction of the juvenile court.

However, "[t]his court may decide a moot case if it involves matters of continuing

and substantial public interest." Id. To determine "whether or not a sufficient public

interest is involved," this court looks at three criteria: "'(1) the public or private nature of

the question presented; (2) the desirability of an authoritative determination which will

provide future guidance to public officers; and (3) the likelihood that the question will

recur.'" Id. at 24-25 (quoting Dunner v. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444

(1984)).

This consolidated case meets each of the three criteria. Although the due

process rights of juveniles are individual rights, the public has a great interest in the

care of children and the workings of the foster care system. See, e.g., In re Interest of

M.B., 101 Wn. App. 425, 433, 3 P.3d 780 (2000). The authority of the courts is

similarly a public matter. In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983). A

determination of how the courts' inherent power interacts with the statutory contempt

scheme will provide useful guidance to judges. Finally, the Court of Appeals noted in

this case that the "exercise of inherent contempt authority to force compliance with

placement orders is likely to recur," making "[c]larification of the court's authority to

exercise inherent contempt power . . . a matter of continuing public interest." A.K., 130

Wn. App. at 870 n.4. We agree. This case alone involved four such exercises of

8

No. 78426-4 -- 9

inherent contempt power in less than two months. The fact that we have been

presented with a number of amicus curiae briefs speaks to the substantial public

interest. Thus, we consider it appropriate to review this case.

B. Inherent Contempt Power of the Juvenile Court

"Contempt of court" is intentional:

(a) Disorderly, contemptuous, or insolent behavior toward the judge
while holding the court, tending to impair its authority, or to interrupt the
due course of a trial or other judicial proceedings;
(b) Disobedience of any lawful judgment, decree, order, or process
of the court;
(c) Refusal as a witness to appear, be sworn, or, without lawful
authority, to answer a question; or
(d) Refusal, without lawful authority, to produce a record,
document, or other object.

RCW 7.21.010(1). Contempt may be direct, occurring in the court's presence, or

indirect, occurring outside of court. Int'l Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821, 827 n.2, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994). A court's authority

to impose sanctions for contempt is a question of law, which we review de novo. See

M.B., 101 Wn. App. at 454.

Because contempt of court is disruptive of court proceedings and/or undermines

the court's authority, courts are vested with "an inherent contempt authority, as a power

'necessary to the exercise of all others.'" Bagwell, 512 U.S. at 831 (quoting United

States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L. Ed. 259 (1812)) (citations omitted).

Inherent contempt power is separate from statutorily granted contempt power. State v.

Ralph Williams' N. W. Chrysler Plymouth, Inc., 87 Wn.2d 327, 335, 553 P.2d 442

9

No. 78426-4 -- 10

(1976); Keller v. Keller, 52 Wn.2d 84, 86, 323 P.2d 231 (1958). It is "created by the

constitution, . . . comes into being upon the very creation of . . . a court and remains

with it as long as the court exists." Blanchard v. Golden Age Brewing Co., 188 Wash.

396, 423, 63 P.2d 397 (1936). The inherent contempt power "is lodged permanently

with [the court], and the legislature may not, by its enactments, deprive the court of that

power or curtail its exercise." Id. at 424; see also Mead Sch. Dist. No. 354 v. Mead

Educ. Ass'n, 85 Wn.2d 278, 287, 534 P.2d 561 (1975); State v. Estill, 55 Wn.2d 576,

579, 349 P.2d 210 (1960). The legislature may only "regulate that power," and only "as

long as it does not diminish it so as to render it ineffectual." Mead Sch. Dist., 85 Wn.2d

at 287 (citing Carter v. Commonwealth, 96 Va. 791, 32 S.E. 780 (1899)). This inherent

authority allows courts to impose sanctions upon the contemnor, after appropriate due

process protections are provided.

Due process requirements vary depending on whether the contempt is direct or

indirect and whether the sanctions imposed are remedial or punitive in nature. See

Bagwell, 512 U.S. at 831. A "remedial sanction" is one that is "imposed for the purpose

of coercing performance when the contempt consists of the omission or refusal to

perform an act that is yet in the person's power to perform." RCW 7.21.010(3). It is

considered civil, rather than criminal, in nature. Bagwell, 512 U.S. at 827. A "punitive

sanction," on the other hand, is "imposed to punish a past contempt of court for the

purpose of upholding the authority of the court," RCW 7.21.010(2), and it is considered

criminal in nature, Bagwell, 512 U.S. at 828. In determining whether sanctions are

10

No. 78426-4 -- 11

punitive or remedial, courts look not to the "stated purposes of a contempt sanction,"

but to whether it has a coercive effect -- whether "the contemnor is able to purge the

contempt and obtain his release by committing an affirmative act." Id.

Due process requirements do not prevent the use of inherent contempt power;

they merely limit its exercise. In delineating the process required when exercising this

authority, the United States Supreme Court has differentiated between three types of

use: (1) imposition of remedial sanctions for direct contempt, (2) imposition of remedial

sanctions for indirect contempt, and (3) imposition of punitive sanctions for direct or

indirect contempt. Id. at 832-33. Different procedural protections are required for each
of these three types of cases,4 but due process does not prevent the court from

exercising its inherent contempt power in any of those three ways. See id. Contrary to

petitioners' claim, a court may use its inherent power to impose punitive sanctions for

indirect contempt without violating the due process clauses of the United States

Constitution.

In the present case, a juvenile court commissioner exercised this power. The

juvenile court is a division of the superior court. State v. Werner, 129 Wn.2d 485, 492,

918 P.2d 916 (1996); RCW 13.04.021(1). As such, it possesses the inherent power

granted to the superior court under our constitution. See Const. art. IV, §§ 5-6; see

4In the first scenario, summary adjudication is appropriate. Bagwell, 512 U.S. at
832; Keller, 52 Wn.2d at 87. In the second, the contemnor must be given notice, a
reasonable time to prepare a defense, and hearing before sanctions are imposed.
Bagwell, 512 U.S. at 832; In re Marriage of Nielsen, 38 Wn. App. 586, 589, 687 P.2d
877 (1984). Before punitive sanctions may be imposed, the contemnor must receive
full criminal due process. Bagwell, 512 U.S. at 833; see also In re Pers. Restraint of
King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988).

11

No. 78426-4 -- 12

also State v. Martin, 36 Wn. App. 1, 4, 670 P.2d 1082 (1983), rev'd on other grounds,

102 Wn.2d 300, 684 P.2d 1290 (1984). Thus, the juvenile court, like other courts,

possesses inherent power to sanction direct or indirect contempt by punitive or

remedial sanctions. In Washington's court system, a juvenile court commissioner has

"the power, authority, and jurisdiction, concurrent with a juvenile court judge, to hear all

cases under this chapter and to enter judgment and make orders with the same power,

force, and effect as any judge of the juvenile court." RCW 13.04.021(1); see also

Const. art. IV, § 23. Consequently, the court commissioner issuing the inherent

contempt orders in this case had the inherent power that is possessed by a superior

court judge.

C. Limitations on the Exercise of Inherent Contempt Power

While inherent contempt authority is a critical component of judicial power, its

use is only appropriate in limited situations. We have long held that courts may not

exercise their inherent contempt power "[u]nless the legislatively prescribed procedures

and remedies are specifically found inadequate." Mead Sch. Dist., 85 Wn.2d at 288

(citing State ex rel. Curtiss v. Erickson, 66 Wash. 639, 642, 120 P. 104 (1912), aff'd on

other grounds by Carlson v. Washington, 234 U.S. 103, 34 S. Ct. 717, 58 L. Ed. 2d

1237 (1914); State ex rel. Dye v. Reilly, 40 Wash. 217, 220, 82 P. 287 (1905)); see also

State v. Boatman, 104 Wn.2d 44, 48, 700 P.2d 1152 (1985); State v. Browet, Inc., 103

Wn.2d 215, 218, 691 P.2d 571 (1984). "Only under the most egregious circumstances

should the juvenile court exercise its contempt power to incarcerate a status offender in

12

No. 78426-4 -- 13

a secure facility. If such action is necessary, the record should demonstrate that all

less restrictive alternatives have failed." State v. Norlund, 31 Wn. App. 725, 729, 644

P.2d 724, review denied, 98 Wn.2d 1013 (1982); see also In re Pers. Restraint of King,

110 Wn.2d 793, 802, 756 P.2d 1303 (1988).

In this case, the juvenile court commissioner did not specifically find that one of

the statutory remedies available to him was inadequate: criminal contempt of court,

under RCW 7.21.040. Under that statute, a court may impose punitive sanctions of up

to $5,000, up to one year imprisonment, or both on adult contemnors, after certain
procedures are followed. RCW 7.21.040(5). Juvenile status offenders5 can also be

sanctioned criminally for contempt. State v. A.L.H., 116 Wn. App. 158, 162, 163-64, 64

P.3d 1262 (2003) (citing In re Interest of Rebecca K., 101 Wn. App. 309, 2 P.3d 501

(2000)). When juveniles are found guilty of a nonenumerated offense equivalent to an

adult gross misdemeanor, such as contempt, see RCW 9A.20.010(2)(b), .021(2), the

conviction is classified as a category D juvenile offense. RCW 13.40.0357. Category

D offenses are punishable by confinement in a juvenile detention facility for up to 30

days, up to 12 months' community supervision, up to 150 hours' community restitution

and/or a fine up to $500. Id. Under RCW 7.21.040(5), Commissioner Inouye could

have sentenced petitioners to 30 days in juvenile detention, without a purge condition,

after finding the remedial RCW 7.21.030(2)(e) sanction inadequate and affording

5Status offenders are juveniles "who are before the court because their behavior
endangers their welfare," including runaways such as M.H.-O. and Y.H. M.B., 101 Wn.
App. at 434 (citing Jan C. Costello & Nancy L. Worthington, Incarcerating Status
Offenders: Attempts to Circumvent the Juvenile Justice and Delinquency Prevention
Act, 16 Harv. C.R.-C.L. L. Rev. 41, 42-46 (1981)).

13

No. 78426-4 -- 14

proper criminal due process protections.

We recognize that the holding of Division Two of the Court of Appeals in A.L.H.

may be inconsistent with our conclusion that criminal contempt sanctions may be

imposed on juveniles violating a placement order in a dependency case. In A.L.H., the

court held that only civil contempt sanctions may be imposed on a juvenile for violating

an at-risk youth (ARY) order. The ARY statutes constitute a separate chapter of Title

13 RCW from the dependency statutes. As amended in 1998, the ARY contempt

statute provided, "Failure by a party to comply with an order entered under this chapter

is a civil contempt of court as provided in RCW 7.21.030(2)(e), subject to the limitations

of subsection (3) [which limits sanctions to $100 and/or seven days' confinement] of

this section." RCW 13.32A.250(2). The Court of Appeals interpreted this statute as

"expressly limit[ing]" sanctions that may be sought for contempt to the remedial

sanctions laid out in RCW 7.21.030(2)(e). A.L.H., 116 Wn. App. at 164. "If contempt

charges are brought against a juvenile in violation of an ARY order, the State must seek

civil contempt remedies," the court concluded, but "any juvenile offender in contempt of

court on some other basis may be subject to criminal, civil, or summary contempt under

the general contempt statutes." Id. at 163-64.

The wording of the dependency contempt statute -- the statute at issue

here -- underwent the same 1998 amendments and is essentially identical to the ARY

contempt statute: "Failure by a party to comply with an order entered under this

chapter is civil contempt of court as provided in RCW 7.21.030(2)(e)." RCW

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No. 78426-4 -- 15

13.34.165(1). This subsection, like the ARY subsection, is followed by a subsection

limiting "remedial sanction[s]" to seven days' confinement, RCW 13.34.165(2). Thus,

when Commissioner Inouye made the orders at issue here, he specifically found that

criminal contempt sanctions under RCW 7.21.040 were unavailable, basing that finding

on the A.L.H. decision.

We disagree with Commissioner Inouye. First, we note that A.L.H. concerned a

different statute than the one we are interpreting: the ARY contempt statute. Although

the wording of the two statutes is similar, the purposes behind the statutes are

somewhat different. The ARY statutes were designed to provide parents of at-risk

youth with tools to assist them in raising their children and keeping their children safe.

RCW 13.32A.010. The legislature specifically stated that services were to be offered

"on a voluntary basis whenever possible . . . and that the courts [should] be used as a

last resort." Id. The dependency statutes, on the other hand, were intended to protect

the health and safety of children when "the rights of basic nurture, physical and mental

health, and safety of the child and the legal rights of the parents are in conflict." RCW

13.34.020. These statutes appear to contemplate greater court involvement, while the

ARY statutes were partially aimed at providing interventions to keep children out of

detention.

In addition, we do not find the A.L.H. decision entirely persuasive. Division Two

of the Court of Appeals provided little to no reasoning for its decision limiting sanctions

in particular cases to civil contempt remedies. In fact, the other Court of Appeals ARY

15

No. 78426-4 -- 16

cases cited in A.L.H. -- M.B. and Rebecca K. -- can be read as suggesting the opposite

conclusion: that criminal sanctions can be imposed for violation of an ARY order, so

long as the proper due process is afforded. Both of those cases addressed whether

the legislature had, by declaring the RCW 7.21.030(2)(e) sanction to be "remedial,"

constitutionally transformed criminal sanctions into civil sanctions, allowing determinate

sentences to be imposed without purge conditions and without criminal due process

protections. See M.B., 101 Wn. App. 425; Rebecca K., 101 Wn. App. 309. Both

opinions concluded that confinement in juvenile detention without a purge condition

remained a punitive sanction requiring criminal due process, regardless of what the

legislature called it. M.B., 101 Wn. App. at 445-46; Rebecca K., 101 Wn. App. at 316-

17. Division Three of the Court of Appeals further stated in Rebecca K. that "[c]riminal

contempt proceedings must be initiated by a criminal information filed by the State in

order to comply with due process." Rebecca K., 101 Wn. App. at 317 (citing A.D.F. v.

State, 88 Wn. App. 21, 26, 943 P.2d 689 (1997), superseded by statute on other

grounds by State v. A.L.H., 116 Wn. App. 158). Concluding that the sanctions in the

Rebecca K. case were punitive in nature, the court reversed the orders of contempt,

because the requirements of RCW 7.21.040 were not followed. Similarly, Division One

"emphasize[d]" in M.B. that "due process prohibits a court from using either statutory or

inherent power to justify its actions if the contempt sanctions are themselves punitive,

unless the contemnor is afforded criminal due process protections." M.B., 101 Wn.

App. at 453 (emphasis added). We infer from this language that Divisions One and

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No. 78426-4 -- 17

Three of the Court of Appeals consider statutory criminal contempt sanctions to remain

available in ARY cases after the 1998 amendments.

Finally, we interpret statutes so as to give effect to legislative intent. Campbell

v. Dep't of Soc. & Health Servs., 150 Wn.2d 881, 894, 83 P.3d 999 (2004). The "chief

objective" of the legislature's 1998 amendments to the contempt statutes "was to make

detention available as a coercive tool for juvenile courts." M.B., 101 Wn. App. at 446;

see also Laws of 1998, ch. 296, § 35 ("[i]t is the intent of the legislature to authorize a

limited sanction of time in juvenile detention independent of chapter 7.21 RCW for

failure to comply with court orders in . . . dependency cases for the sole purpose of

providing the courts with the tools necessary to enforce orders in these limited types of

cases because other statutory contempt remedies are inadequate"). The legislature

did not expressly designate this new tool the exclusive remedy, instead noting that it

"may be imposed in addition to, or as an alternative to, any other remedial sanction

authorized by this chapter." RCW 7.21.030(2)(e). We have previously stated,

"[b]ecause civil and criminal contempt sanctions employ different procedures and are

applied for fundamentally different purposes, statutes providing for one kind of

contempt cannot be read to circumscribe statutes providing for the other." King, 110

Wn.2d at 800. We conclude that the legislature did not intend, by amending the

dependency contempt statute, to abrogate the availability of criminal contempt

sanctions under RCW 7.21.040 in dependency cases. Instead, as the legislature

stated, it intended to merely create a new alternative sanction.

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No. 78426-4 -- 18

The dissent points out that the legislature, when creating the Becca sanctions,

intended to discourage the filing of criminal charges against status offenders. Dissent

at 3. Our holding in no way undermines this goal. We do not hold that criminal

sanctions should be sought before Becca sanctions and other civil statutory sanctions;

we do not speak to the order in which statutory remedies should be utilized. Instead,

we merely adhere to our previous jurisprudence requiring courts to utilize all the tools

the legislature has seen fit to provide before exercising broader inherent powers. The

legislature carefully crafted the new tool they intended to provide, limiting it to seven

days in detention. We do not infer from this careful limitation an intent to allow courts

to disregard other statutes and sentence juveniles to whatever time in detention they

felt was reasonable.

Because we conclude that statutory criminal contempt sanctions are available

for violation of a dependency order, it follows that a juvenile court must find those
sanctions inadequate before exercising its inherent contempt power.6 In the present

6Contrary to the dissent's contention, this does not "abdicate[] the court's
inherent power" by leaving enforcement of its orders to the discretion of the executive
branch of government. Dissent at 3. The United States Supreme Court has previously
recognized that courts are not stripped of their authority or inherent contempt power as
a result of having to exercise that power through a separate criminal trial. See Bagwell,
512 U.S. at 838-39 (holding that the imposition of some procedural burdens, such as
the requirement of a jury trial, on inherent judicial contempt power does not prevent the
courts from exercising that authority through a criminal trial); Gompers v. Bucks Stove
& Range Co., 221 U.S. 418, 451, 31 S. Ct. 492, 55 L. Ed. 797 (1911) (holding that "a
separate and independent proceeding at law for criminal contempt" can "vindicate the
authority of the court"). Courts are also not constrained by the criminal contempt
statute to wait for a prosecutor to decide to take action. RCW 7.21.040(2)(c) allows the
judge whose order was violated to request that an action be commenced and "appoint a
special counsel to prosecute [the] action," if "required for the administration of justice."
This is consistent with the United States Supreme Court's determination that the

18

No. 78426-4 -- 19

case, Commissioner Inouye failed to do this. Consequently, his resort to inherent authority

was premature and improper. Accordingly, we reverse the Court of Appeals' decision

to the contrary. As a result, we need not consider petitioners' other claims for relief.

III

A juvenile court commissioner possesses the inherent power to impose punitive

or remedial sanctions for contempt of court, whether that contempt occurs in or outside

of the courtroom. However, before exercising that power, the court must specifically

find all statutory contempt remedies inadequate. Because the commissioner did not

do so in this case, we reverse the Court of Appeals' decision on the two inherent

contempt orders before us and vacate those orders.

contempt power of the courts "necessarily encompasses the ability to appoint a private
attorney to prosecute the contempt." Young, 481 U.S. at 793.

19

No. 78426-4 -- 20

AUTHOR:
Chief Justice Gerry L. Alexander

WE CONCUR:

Justice Charles W. Johnson

Justice Richard B. Sanders Justice James M. Johnson

20



In re Dependency of A.K., M.H.-O., Y.H.

No. 78426-4

MADSEN, J. (concurring) -- I agree with the majority that before a

dependency court may exercise its inherent authority to hold a juvenile in

contempt and impose a punitive sanction, it first must find that the statutory

remedies for criminal contempt under RCW 7.21.040 are not adequate. However,

to the extent that the majority may be read to require a dependency court to resort

to criminal contempt before exercising its inherent authority to impose a coercive

contempt sanction, I disagree. Criminal contempt and remedial contempt

sanctions are aimed at different issues, and a judge who is concerned with

coercing compliance with a court order will have no reason to consider the

adequacy of criminal contempt sanctions.

Under RCW 13.34.165(2), a dependency court may impose up to seven

days as a remedial sanction when a party fails to comply with an order entered

under that chapter. However, a contempt sanction is only remedial if the

contemnor is allowed an opportunity to purge the contempt and gain release. Int'l

No. 78426-4

Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 n.2, 114 S. Ct.

2552, 129 L. Ed. 2d 642 (1994). Thus, as long as a dependency court employing

the sanctions allowed under RCW 13.34.165(2) provides an opportunity for a

juvenile to purge the contempt, the sanction is remedial. If a dependency judge

concludes that seven days is an insufficient amount of time to coerce compliance,

then the judge has the inherent power to impose a longer detention period -- as

long as the juvenile has the power to end detention by complying at any time. As

the Court of Appeals has observed in analogous circumstances: "On the rare

occasion when a juvenile court decides it must disregard the statutory seven-day

limit and resort to its inherent contempt powers, the court must enter a finding as

to why the statutory remedy is inadequate and articulate a reasonable basis for

believing why some other specific period of detention will achieve what seven

days will not." In re Interest of M.B., 101 Wn. App. 425, 453, 3 P.3d 780 (2000).

In both of the cases before this court, the dependency courts imposed

determinate, punitive sanctions without providing for a purge mechanism.

Accordingly, the sanctions imposed were criminal, and the dependency courts in

each case committed error by failing to provide due process protections, including

initiation of charges by information, appointment of counsel, trial, and proof

beyond a reasonable doubt. See Bagwell, 512 U.S. at 826 ("'[C]riminal penalties

may not be imposed on someone who has not been afforded the protections that

the Constitution requires of such criminal proceedings.'" (quoting Hicks v. Feiock,

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No. 78426-4

485 U.S. 624, 632, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988))).

Perhaps of more concern, however, is the use of contempt proceedings in

dealing with chronic runaways. As the Court of Appeals has observed,

[o]nly under the most egregious circumstances should the juvenile
court exercise its contempt power to incarcerate a status offender in
a secure facility. If such action is necessary, the record should
demonstrate that all less restrictive alternatives have failed.

State v. Norlund, 31 Wn. App. 725, 729, 644 P.2d 724, review denied, 98 Wn.2d

1013 (1982).

A court should consider the mental health needs of the dependent child
before resorting to a contempt sanction.1 Many children in foster case suffer from

mental health problems that lead to their runaway behavior. When considering

whether less restrictive alternatives exist, the question is not merely whether a

seven day purgeable sanction has proved ineffective, but whether needed mental

health services or chemical dependency treatment have been provided.

As stated by amicus American Academy of Child and Adolescent

Psychiatry, "The failure to address the underlying problems and stressors that lead

to runaway behavior is compounded by punishing the young people, making it

more likely that they will continue to run away from their foster care placements

1 Studies indicate that up to 80 percent of children in foster care require mental health
services. See American Academy of Child & Adolescent Psychiatry, Policy Statement:
Psychiatric Care of Children in the Foster Care System (2001), available at
http://aacap.org/cs/root/policy_statements/psychiatric_care_of_children_in_the_foster_
care_system (last visited Dec. 10, 2007).

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No. 78426-4

and encounter the very dangers from which the courts are obligated to protected

them." Mem. of Amicus Curiae Am. Acad. of Child & Adolescent Psychiatry in

Supp. of Pet'r's at 5.

Amicus calls this court's attention to numerous studies indicating that

detention does not have an ameliorative effect on runaway behavior, and, in fact,
often exacerbates the problem. 2 The record in this case bears this out: repeated

detention of these children did not stop them from running away.

According to the records, after Y.H.'s placement in foster care she ran away

several times. Three times Y.H. was sentenced to seven days in detention for

contempt. After her fourth disappearance she was moved to a different foster

home, but no additional services were provided to assist in making her placement

more successful or to address her running behavior. Instead, when Y.H. ran again

the dependency court sentenced her to a 30 day period of detention. Similarly,

M.H.-O. ran away from her placement at least six times. After the first four times,

M.H.-O. was sentenced to seven days in detention. The fifth time she ran, the

dependency court sentenced her to 30 days in detention. One week later, M.H.-O.

2 See, e.g., Kelly Dedel, Office of Community Oriented Policing Services, U.S. Dep't of
Justice, Juvenile Runaways (Feb. 2006), available at
http://www.popcenter.org/Problems/PDFs/JuvenileRunaways.pdf; Marni Finkelstein et al.,
Youth Who Chronically AWOL From Foster Care: Why They Run, Where They Go, and
What Can Be Done, Vera Institute of Justice (Aug. 2004), available at
http://www.vera.org/publication_pdf/244_460.pdf; Kevin M. Ryan, Stemming the Tide of
Foster Care Runaways: A Due Process Perspective, 42 Cath. U.L. Rev. 271, 279 (1993);
Caren Kaplan, Children Missing from Care: An Issue Brief, Child Welfare League of
America (2004), available at http://www.cwla.org/programs/fostercare/childmiss.htm
(last visited Dec. 10, 2007).

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No. 78426-4

ran again. Prior to her incarceration M.H.-O. made several requests for mental

health services, but those services were not provided. Instead, after M.H.-O. ran

again, the dependency court sentenced M.H.-O. to 60 days in detention. While in

detention, her mental health worsened and she heard voices, rocked back and

forth, and began cutting herself.

Detention should not be used as a substitute for access to basic services,

treatment, and care. The repeated use of contempt proceedings is often ineffective

and offers little opportunity to address the underlying problems that result in

runaway behavior. In contempt proceedings, the focus is on deterring the child's

misbehavior rather than ensuring the State is upholding its responsibility to

provide an individualized response to the runaway behavior.

Another reason detention proves ineffective as a deterrent to runaway

behavior is that children in foster care often run because of their desire to connect

with family, friends, and familiar surroundings. Here, for instance, Y.H.

repeatedly sought out her mother while on the run, while M.H.-O. ran to her father

in Nebraska. Punishing these children with detention, where they must adjust to a

new set of peers and authority figures in an unfamiliar environment, only increases

their desire to run.

Children in foster care who suffer from mental health disorders present

difficult challenges. However, incarceration in a locked detention facility punishes

rather than rehabilitates these children. As amicus The Children's Alliance and

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No. 78426-4

Columbia Legal Services points out, there are alternatives to incarceration that are

available by statute, including evaluation and treatment in secure facilities under

RCW 70.96A.140 and .245 (chemical dependency involuntary treatment act) and

RCW 71.34.600 (parent initiated mental health involuntary treatment act).

Incarceration before fully exploring such alternatives is not a proper use of the

court's inherent contempt powers, criminal or remedial.

AUTHOR:
Justice Barbara A. Madsen

WE CONCUR:

Justice Bobbe J. Bridge