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In re S.

June 25, 1998

IN THE INTEREST OF B. D.: R. S. AND D. S.
v.
STATE OF MISSISSIPPI



EN Banc.

The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court:

DATE OF JUDGMENT: 07/12/93

TRIAL JUDGE: HON. ALFRED THAD LEGGETT III

COURT FROM WHICH APPEALED: PIKE COUNTY YOUTH COURT

ATTORNEY FOR APPELLANT: B. CALVIN COSNAHAN, II

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: WILLIAM BENJAMIN REGAN

NATURE OF THE CASE: CIVIL - OTHER

¶1. This case arose in the Youth Court of Pike County, Mississippi, where BD, a juvenile, was charged with multiple counts of burglary and grand larceny. There were other juveniles charged as principals along with BD. On April 23, 1993, a petition alleging that BD was a delinquent child was filed in the Youth Court of Pike County, Mississippi, by Youth Court Prosecutor Ben Regan. The appellants, DS and RS, contend that DS was summoned to court as the mother of the child and that CD was summoned to court as the father of said child, but that RS, the child's stepfather, was not a party to the petition. It is noted that a summons was served upon BD, DS and RS. All three were present in court for the detention hearing.

¶2. An adjudication hearing was held on May 6, 1993. After the hearing, the youth court entered its order of adjudication, determining that BD was a delinquent child. The court immediately proceeded with the Dispositional hearing, ordering that BD be placed in Columbia Training School. The court additionally ordered that "the above child and his parent or parents are to pay restitution, which is to be determined at a later date."

¶3. The restitution hearing was held on June 9, 1993. At the restitution hearing, counsel for DS and RS objected to the parents/custodians being held liable for the acts of BD and to the parents/custodians being required to repay certain insurance companies against whom claims had been filed by those damaged by BD's and others' acts. The youth court overruled the objections. The youth court entered its judgment of restitution on July 29, 1993, against BD, DS and RS, along with another juvenile offender and her mother, for $19,782.93, including $10,964 to St. Paul Insurance Company for claims paid. The court further ordered that "the parents of said minors pay $200.00 for each of said minors each month beginning July 15, 1993."

¶4. DS and RS have appealed, alleging ten points of error by the youth court. Some are not supported by authority; others were not raised in the youth court. The primary statute at issue is Miss. Code Ann. § 43- 21-619 (1993), which provides:

(1) The youth court may order financially able parents to pay for court ordered medical and other examinations and treatment of a child; for reasonable attorney's fees and court costs; and for other expenses found necessary or appropriate in the best interest of the child as determined by the youth court. The youth court is authorized to enforce payments ordered under this subsection.

(2) The youth court may order the parents, guardians or custodians who exercise parental custody and control of a child who is under the jurisdiction of the youth court and who has willfully or maliciously caused personal injury or damaged or destroyed property, to pay such damages or restitution through the court to the victim in an amount not to exceed the actual loss and to enforce payment thereof. Restitution ordered by the youth court under this section shall not preclude recovery of damages by the victim from such child or parent, guardian or custodian or other person who would otherwise be liable. The youth court also may order the parents, guardians or custodians of a child who is under the jurisdiction of the youth court and who willfully or maliciously has caused personal injury or damaged or destroyed property to participate in a counseling program or other suitable family treatment program for the purpose of preventing future occurrences of malicious destruction of property or personal injury.

(3) Such orders under this section shall constitute a civil judgment and may be enrolled on the judgment rolls in the office of the circuit clerk of the county where such order was entered, and further, such order may be enforced in any manner provided by law for civil judgments.

This provision for restitution by parents, guardians or custodians under paragraph numbered (2) above has never been construed by this Court. In this case we must reverse and remand the judgment against the juvenile and the appellants.

I.

¶5. RS and DS allege that § 43-21-619 is unconstitutional because it allows restitution against parents without a showing of fault on their part and without due process. "Statutes are presumed constitutional, and such presumption must be overcome by proof showing unconstitutionality beyond a reasonable doubt." Vance v. Lincoln County Dep't of Pub. Welfare, 582 So. 2d 414, 419 (Miss. 1991).

When a statute can be interpreted either as constitutional or unconstitutional, we have long held that we will adopt the constitutional construction. See Burrell v. Mississippi State Tax Commission, 536 So. 2d 848, 858 (Miss. 1988); Estate of Smiley, 530 So. 2d 18, 22 (Miss. 1988); and Craig v. Mills, 203 Miss. 692, 705-06, 33 So. 2d 801, 804 (1948). If possible, we will construe it so as "to enable it to withstand the constitutional attack and to carry out the purpose embedded in the [statute]." Estate of Smiley, 530 So. 2d at 22 [quoting Frazier v. State by and through Pittman, 504 So. 2d 675, 708 (Miss. 1987)].

Wilson v. State, 574 So. 2d 1338, 1340 (Miss. 1990).

¶6. The concept of restitution being imposed against a parent without fault for the behavior of his child by the youth court has not been considered by this Court. The constitutionality of such a law has been addressed in other jurisdictions. In In re Sorrell, 315 A.2d 110, 114- 16 (Md. Ct. Spec. App. 1974), the Court of Special Appeals of Maryland found that such a statute, with set limitations on liability, represented a legitimate exercise of the state's police power and the decision that it was preferable that parents without fault be directed to pay restitution rather than have the burden for losses suffered as a result of their children's acts fall on innocent and damaged parties.

¶7. The Supreme Court of New Jersey, in Board of Education of Piscataway Township v. Caffiero, 431 A.2d 799 (N.J. 1981), commented on the rationale for vicarious liability of parents for their children's actions:

The existence of the parent-child relationship provides a rational basis for imposing liability and is a reasonable means to accomplish the purposes of compensation and deterrence. The United States Supreme Court has recognized that "parents have an important 'guiding role' to play in the upbringing of their children." The Legislature could have reasonably believed that subjecting parents to vicarious liability for their children's willful and malicious acts of vandalism would encourage parents to exercise their "guiding role" in the upbringing of their children. Through better parental supervision and guidance, the Legislature hoped to deter delinquent conduct. Our concern is not whether that hope has been or will be fulfilled but whether there is a rational basis for it. Though we acknowledge the difficulties of being a parent, we cannot say that there is no rational basis for the statute.

Id. at 805 (citations omitted); see also In re William George T., 599 A.2d 886, 890 (Md. Ct. Spec. App. ...


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