C. C., a Juvenile v. Honorable Christopher J. Mehling, Kenton Circuit Court Judge

• Court: Kentucky Supreme Court
• Decided: March 22, 2021
• Docket: 2020 SC 0138
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 25, 2021 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2020-SC-0138-MR

C.C., A JUVENILE APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2019-CA-0312 KENTON CIRCUIT COURT NO. 16-00576-004

HONORABLE CHRISTOPHER J. MEHLING, APPELLEE KENTON CIRCUIT COURT JUDGE

AND

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREEST

OPINION AND ORDER

DISMISSING

Before this Court is an appeal from the Court of Appeals’ denial of a writ

of mandamus sought by C.C., who initiated this original action in the Court of

Appeals when he was still a juvenile.

The underlying family court case involved a status-offense charge of

being a habitual runaway brought against C.C. when he was 16 years old. To

the Court of Appeals, C.C. asserted (1) the Kenton Family Court was without

subject-matter jurisdiction over this charge under the Kentucky Juvenile Code

(KJC), specifically arguing the charge was based on a defective complaint that

should be dismissed and (2) the Commonwealth had denied him mandatory consideration for diversionary measures required by Kentucky Revised Statute

(KRS) 610.030 and KRS 630.050.

We dismiss this appeal because C.C.’s writ application is moot. The

underlying habitual-runaway charge has been dismissed by the trial court, and

C.C. is no longer a minor.

I. FACTUAL AND PROCEDURAL BACKGROUND

C.C. was a child under 18 when he was charged with being a habitual

runaway under KRS 630.020(1), a juvenile-status offense defined under KRS

600.020(32).1 On January 22, 2019, C.C.’s mother filed a juvenile complaint

alleging C.C.’s runaway status. Both parents claimed C.C. had run away from

home three weekends in a row.

In response to the juvenile complaint, Kenton Family Court Judge

Christopher J. Mehling issued a custody order for C.C., and C.C.’s father

delivered him to the Independence Police Station later the same day. C.C. was

lodged in a juvenile detention center overnight. Following a detention hearing

before Judge Mehling the next morning, C.C. was released to his family on

restrictions and with an ankle monitor.

At the later adjudication hearing, C.C. argued his habitual-runaway case

should be dismissed for lack of jurisdiction. His first reason was that the

charges were based on a procedurally defective complaint submitted to the

1 See KRS 600.020(32) (“Habitual runaway” means any child who has been found by the court to have been absent from his or her place of lawful residence without the permission of his or her custodian for at least three (3) days during a one (1) year period[.]”).

2 CDW,2 affidavit missing, which failed to comport with mandatory process

requirements under KRS 610.030(1). His second reason was that he was

eligible for diversion by statute and that he had been improperly denied

consideration for diversion before he was compelled to appear before the family

court. Judge Mehling ruled even if the complaint was defective, he would allow

the defect to be cured, that cases of suspected habitual runaways, unlike other

status offenses, were not subject to mandatory diversion, and that the Kenton

Family Court had jurisdiction over C.C. because of a pending dependency

petition, which happened to be scheduled for a hearing the following day and in

which the Cabinet was recommending residential treatment for C.C. So Judge

Mehling initially declined to dismiss the habitual-runaway petition.

C.C. then instituted this original action in the Court of Appeals seeking a

writ to command Judge Mehling to dismiss the habitual-runaway petition

because the Judge was proceeding against C.C. without subject-matter

jurisdiction. The Court of Appeals declined to issue the writ, holding the family

court had jurisdiction because the defects in the original juvenile complaint

had been cured and because it, too, found that suspected habitual runaways

are treated different under the KJC than other status offenses. Specifically, the

Court of Appeals held that:

[H]abitual runaway cases in which the child has been detained under an emergency protective order are an exception and [] noncompliance with KRS 610.030(6) and KRS 630.050 does not deprive the family court of subject matter jurisdiction because KRS 610.012, pertaining specifically to suspected habitual runaways, is more specific, and therefore,

2 Court Designated Worker.

3 controls . . . . Accordingly, the offer of diversion or referral to the FAIR team was not required prior to instituting a status offense case in the family court.

C.C.’s appeal to this Court followed as a matter of right.3 He asserts an

additional violation of constitutional Due Process and Equal Protection based

on the different treatment of habitual runaways relative to other status

offenders. The Commonwealth rightly points out that this issue was not raised

before the Court of Appeals.

II. STANDARD OF REVIEW

The issuance of a writ is an extraordinary remedy disfavored under

Kentucky law.4 “[T]he issuance of a writ is inherently discretionary. Even if

the requirements are met, and error found, the grant of a writ remains within

the sole discretion of the Court.”5 While we review the Court of Appeals’ legal

conclusions de novo, we review its factual findings for clear error and will

reverse the Court of Appeals’ ultimate denial of the writ only if it abused its

discretion.6

3 Ky. Const. § 115 (“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court. . . .”); Kentucky Rule of Civil Procedure (CR) 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”). 4Caldwell v. Chauvin, 464 S.W.3d 139, 144 (Ky. 2015) (citing Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013)). 5Commonwealth v. Shaw, 600 S.W.3d 233, 237 (Ky. 2020) (citing Caldwell, at 145–46) (internal quotations omitted). See also Graham v. Mills, 694 S.W.2d 698, 699–700 (Ky. 1985). 6 Appalachian Racing, LLC v. Commonwealth, 504 S.W.3d 1, 3 (Ky. 2016).

4 III. ANALYSIS

There are two classes of writs: one, where the lower court is proceeding

or is about to proceed without jurisdiction or in excess of its jurisdiction and

there is no remedy through an application to an intermediate court;7 and two,

where the lower court is proceeding in a case over which it has jurisdiction but

is acting or will soon act erroneously and there exists no adequate remedy by

appeal or otherwise.8

C.C. alleges procedural defects deprived the family court of subject-

matter jurisdiction. Thus, as the Court of Appeals correctly found, C.C.

sufficiently asserted a claim for relief under the first class of writ.

Before us, C.C. specifically asserts two material procedural defects, first,

that the charge was based on an incomplete complaint, and second, that the

Commonwealth failed to follow diversionary procedures for juveniles as

mandated by statute. Both in the family court proceedings and by writ petition

to the Court of Appeals, C.C. has for those two reasons consistently requested

the dismissal of the petition for lack of subject-matter jurisdiction.

Significantly, after he filed the writ application but before the Court of

Appeals reviewed it on the merits, the Kenton Family Court dismissed the

habitual-runaway charge. The Commonwealth then argued in opposition to

7 Henderson Cty. Health Care Corp. v. Wilson, 612 S.W.3d 811, 816 (Ky. 2020) (citing Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004)). 8 Id.

5 C.C.’s writ application that the issue of the family court’s jurisdiction was moot

and that the Court of Appeals should dismiss the writ application as well.

When the Court of Appeals rendered a decision in April 2020, C.C. was

still only 17 years old, having been born in June 2002. The Court of Appeals

considered the Commonwealth’s mootness argument but decided that since

C.C. was still a minor a risk remained that similar issues could arise for him

again. While the Court of Appeals acknowledged the case was not, it found

C.C.’s claims to be the type of case that is capable of repetition yet evading

review. The Court of Appeals then reviewed the merits of C.C.’s writ

application and declined to issue a writ, finding the complaint in the record

sufficiently complete and highlighting in the KJC a statutory basis to except

habitual runaway cases from other status offenses subject to automatic

diversionary review.

Now before this Court, C.C. is no longer a child. He reached the age of

majority in June 2020, approximately a month before the parties presented

arguments on appeal to this Court in July 2020. The habitual runaway case

against C.C. is over, and the record does not indicate similar charges were ever

again brought against C.C. after the Court of Appeals denied his petition.

We need not delve deeper into the Court of Appeals’ holding concerning

mootness. The only given reason the Court of Appeals found to justify its

review of the writ application was because C.C was still a minor at the time.

That is no longer the case, so that reason no longer bears on this case. So

6 while the parties did not argue mootness or the evading-review exception in

this appeal, we must find the matter is now moot.

The evading-review exception no longer applies, assuming it ever did.

The decision whether to apply the exception involves two questions: whether

(1) the challenged action is too short to be fully litigated before its cessation or

expiration, and (2) a reasonable expectation exists that the same complaining

party would be subject to the same action again.9

We can answer the first question in the negative. Timely remedy by writ

is typically available where a party claims a defect or lack of jurisdiction,10 and

often the issue is resolved in a lower court without resort to writ in the first

place.

The second question can also be answered in the negative, because C.C.

cannot be subject to the same action again. Being a habitual-runaway is a

status offense that can only be asserted against a child,11 C.C.’s writ

application claimed defects only at issue under the KJC, and, most

importantly, C.C. is no longer a child. The same charge cannot be brought

against him again, not even hypothetically, so there is no longer reason for this

Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992) (quoting In re Commerce Oil 9

Co., 847 F.2d 291, 293 (6th Cir. 1988)) (quotations omitted). 10 Wilson, at 816. See KRS 600.020(32) (“Habitual runaway” means any child who has been 11

found by the court to have been absent from his or her place of lawful residence without the permission of his or her custodian for at least three (3) days during a one (1) year period[.]”) (emphasis added); KRS 600.020(9) (“Child” means any person who has not reached his or her eighteenth birthday . . .”).

7 Court to address the procedural defects that allegedly existed before the charge

was dismissed.

Because C.C.’s petition and appeal are now moot, we no longer have a

live controversy before us to resolve. Accordingly, we decline to pass on the

merits of the Court of Appeals’ resolution of C.C.’s writ petition.

IV. ORDER

For the reasons cited, this Court ORDERS that this appeal is dismissed.

Dated: March 25, 2021

All sitting. All concur.

_____________________________________ CHIEF JUSTICE

COUNSEL FOR APPELLANT:

John Wampler Department of Public Advocacy

COUNSEL FOR APPELLEES:

Daniel J. Cameron Attorney General of Kentucky

Todd Dryden Ferguson Assistant Attorney General