Opinion
No. 29154-5-III
11-29-2011
STATE OF WASHINGTON, Respondent, v. JAMES VINCENT ADAMS, Appellant.
UNPUBLISHED OPINION
Brown, J. — James V. Adams, convicted of homicide by abuse of his infant son, seeks contact with his minor daughter and appeals the trial court's sentence-modification order requiring him to personally serve his daughter's mother. He contends the sentencing court erred in requiring personal service, and in retaining jurisdiction to determine proper service. In his statement of additional grounds (SAG) for review, Mr. Adams contends his public trial right was violated. We hold the sentencing court did not err and decline to address his untimely SAG. Accordingly, we affirm.
FACTS
Mr. Adams was sentenced for homicide by abuse of his infant son in April 2005. Mr. Adams was precluded from contact with minors when released into community custody, unless modified by court order. And Mr. Adams was not allowed contact with the infant's mother, Jenny Rowe, for life. In January 2010, Mr. Adams petitioned the trial court, seeking a modification of his sentence to allow him to pursue, through family court, contact with his minor daughter. The court heard the modification petition on January 28, 2010. Then the State informed the court it had attempted to provide notice to Ms. Rowe about the hearing by mailing a letter to her last known address and making a telephone call to the last known phone number, but it could not confirm that Ms. Rowe actually received the hearing notice.
The court noted in its opinion letter that Mr. Adams did not know the current location of Ms. Rowe, or his daughter, and he would likely attempt alternative, rather than personal service. The trial court modified its no-contact order to allow Mr. Adams to pursue a request in family court for contact with his minor daughter, he was allowed to contact Ms. Rowe solely to effect service, and the court required personal service on Ms. Rowe regarding the action in the family court.
At the order-presentation hearing, Mr. Adams unsuccessfully asked the court to allow the family court to determine the type of service necessary to notify Ms. Rowe of the action in family court. The court stated:
"Mr. Adams may file a motion in family court to establish contact with [his daughter]." This court requires personal service in the motion on Ms. Rhodes [sic]. . . . I am not agreeing that substitute service is appropriate at this point in time. What you're going to do Mr. Adams, establish by good faith. And you are going to have to establish, to my satisfaction, that you just do not have any other options. So you have to work really hard to try to locate her and try to get personal service on it. I am not going to
turn this over to another commissioner or judge to make a determination on that. And if I'm not satisfied with the efforts you've made to try to get personal service, then I am going to continue to require that.Report of Proceedings (RP) (May 6, 2010) at 7-8. The court's written order consistently stated, "Mr. Adams may file a motion in Family Court to establish contact with [his daughter]. This Court requires personal service of the motion on Ms. Rowe. Substitute service would clearly prejudice Ms. Rowe's rights." Clerk's Papers (CP) at 29. Mr. Adams objected to the personal service requirement and appealed.
ANALYSIS
A. Personal Service
The issue is whether the sentencing court erred in ordering personal service on Ms. Rowe before Mr. Adams could proceed in family court to see his minor child.
First, Mr. Adams contends the sentencing court usurped the family court's authority. This is a question of law that we review de novo. See State v. Daniels, 160 Wn.2d 256, 261,156 P.3d 905 (2007) (questions of law are reviewed de novo).
Under RCW 2.08.010, "The superior court shall have original jurisdiction . . . in all criminal cases amounting to felony." Likewise, the superior court has jurisdiction over family matters as facilitated through a "family court." RCW 26.12.010. "A family court proceeding [is a] proceeding . . . in which the family court is requested to adjudicate or enforce the rights of the parties or their children regarding the determination or modification of parenting plans, child custody, visitation, or support." RCW 26.12.010(1).
While visitation is under the family court authority, limitations may be imposed by the sentencing court under RCW 2.08.010 as they relate to a criminal matter. The limitation here is the personal service requirement, "so the court can hear from all parties." CP at 26. Under the statutory authority vested to both courts, no usurpation of authority is presented. As the State points out, to usurp another court's authority would generally require an order by the other court that is being undermined. Family court proceedings have not yet commenced. Mr. Adams cites no authority for the concept that a criminal sentencing judge, who sentenced the defendant prior to any theoretical appearance in family court, lacks the authority to enforce the sentence within constitutional limitations and within the sentencing court's discretion. Given all, Mr. Adams has failed to establish that the sentencing court usurped the authority of the family court.
Second, Mr. Adams contends he is denied his due process right to meaningful access to the court because he is incarcerated and has no means to personally serve the child's mother. "It is well established that prisoners have a constitutional right of access to the courts." Whitney v. Buckner, 107 Wn.2d 861, 865, 734 P.2d 485 (1987) (citing Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977)). The right is based on the due process clause of the Fourteenth Amendment. Id. (citing Wolff v. McDonnell, 418 U.S. 539, 579, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). Consequently, courts should not erect procedural barriers for indigent petitioners. Id. at 865-66.
A proceeding ordinarily requires either personal service on the opposing party or substitute service at that person's "usual abode with some person of suitable age and discretion then resident therein." RCW 4.28.080(15). The court did not stop Mr. Adams from asking to see his daughter; rather, it required the child's mother be made aware of any future proceedings. Thus, the court recognizes the State's "compelling interest to prevent harm to children." In re Dependency of B.R., 157 Wn. App. 853, 864, 239 P.3d 1120 (2010). And the sentencing court did not completely preclude other methods of service. The judge noted, "I am not agreeing that substitute service is appropriate at this point in time." RP (May 6, 2010) at 7 (emphasis added). Because Mr. Adams was sentenced to no contact with minors, and the court was allowing him to request contact with his minor daughter, it is reasonable for the court to request that all attempts be made to contact the mother to allow for her input. This does not offend due process.
Third, Mr. Adams contends the sentencing court improperly imposed a non-crime-related prohibition as a sentencing condition. The trial court may impose "[c]rime-related prohibition[s]" and prohibit "conduct that directly relates to the circumstances of the crime for which the offender has been convicted." Former RCW 9.94A.030(12) (2004). Determining whether a relationship exists between the crime and the condition "'will always be subjective, and such issues have traditionally been left to the discretion of the sentencing judge.'" State v. Parramore, 53 Wn. App. 527, 530, 768 P.2d 530 (1989) (quoting David Boerner, Sentencing in Washington § 4.5 (1985)). We review crime-related prohibitions for abuse of discretion. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001) (citing State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993)). "Abuse of discretion occurs when the decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." Id. (citing State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989)).
Mr. Adams was convicted of infant homicide by abuse. Restricting contact with other minors is a crime-related prohibition. The court agreed to allow consideration of contact with Mr. Adams' minor daughter; this necessarily required balancing the minor child's interest with her mother's rights under the no-contact order. Allowing for the mother's input is thus reasonable. A parent has a constitutionally protected fundamental right to raise children without state interference. State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). But, in criminal cases, a sentencing court may impose limitations on this right when reasonably necessary to further the State's compelling interest in protecting children. Id. at 439-42. Thus, tenable grounds exist for the court's requirement that the mother receive notice.
B. Authority to Act
The next issue is whether the sentencing judge erred in requesting that Mr. Adams report back to him regarding service.
Relying on State v. Caughlan, 40 Wn.2d 729, 732, 246 P.2d 485 (1952), Mr. Adams argues all superior court judges have authority to hear matters and one judge cannot retain jurisdiction. In Caughlan, the defendant argued the court erred in considering his motion to dismiss for lack of prosecution while the cause was still pending before another department of the same court. The court held, "Although there are sixteen departments in the superior court for King county, each department presided over by a different judge, there is only one superior court for King county, and the authority of all of the judges therein is identical." Id. at 732. The court noted, "The appeal from the conviction in justice court was assigned to Judge Jones. The state should have submitted any further matters in connection with that appeal to him, rather than to the presiding judge, especially in view of the fact that Judge Jones then had pending before him another motion to dismiss. If that had been done, much of the confusion in this case would have been eliminated." Id. Thus, while the court recognized all superior court judges have identical authority, for continuity and consistency, using the same judge for continuing matters is beneficial.
Here, the judge stated, "I am not going to turn this over to another commissioner or judge to make a determination on that. And if I'm not satisfied with the efforts you've made to try to get personal service, then I am going to continue to require that." RP (May 6, 2010) at 7-8. Caughlan requires nothing different. While Mr. Adams points out the judge was nearing retirement, no evidence shows the judge was not available to hear the matter as needed. Indeed, a retired judge is often used as a pro tem judge. See Const. art. IV, § 7 ("A case in the superior court may be tried by a judge pro tempore either with the agreement of the parties if the judge pro tempore is a member of the bar, is agreed upon in writing by the parties litigant or their attorneys of record, and is approved by the court and sworn to try the case."). Given all, Mr. Adams has failed to show the judge erred by retaining authority over the matter.
C. Statement of Additional Grounds for Review
In his SAG, Mr. Adams attempts to raise a public trial issue by claiming the trial court improperly conducted voir dire in chambers.
This appeal is strictly related to the sentencing court's ruling on possible visitation between Mr. Adams and his daughter. The notice of appeal specifically states that Mr. Adams is appealing the "May 06, 2010 . . . FINDINGS OF FACT AND ORDER DENYING AND GRANTING RELIEF—DEFENDANT'S MOTION TO MODIFY." CP at 42. Mr. Adams' SAG relates to his conviction, which is not the subject of this appeal. This court affirmed his conviction in State v. Adams, 138 Wn. App. 36, 155 P.3d 989, review denied, 161 Wn.2d 1006 (2007). Accordingly, this issue is not properly raised in this appeal and we decline to consider it.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J.
WE CONCUR:
Kulik, C.J.
Siddoway, J.