Smith v. Doe

627 S.W.3d 903

Jane SMITH, Appellant/Cross-Appellee

v.John DOE, a Minor, Appellee/Cross-Appellant

2020-SC-0211-DG, 2020-SC-0305-DG

Supreme Court of Kentucky.

AUGUST 26, 2021

COUNSEL FOR APPELLANT: Dorislee Jackson Gilbert, The Mary Byron Project, Louisville, KY.

COUNSEL FOR APPELLEE: Gregory Ward Butrum, Gregory Ward Butrum, PLLC.

OPINION OF THE COURT BY JUSTICE LAMBERT

This appeal and cross appeal relate to an interpersonal protection order (IPO) entered by the general division of the Jefferson District Court between an eleven-year-old petitioner and a thirteen-year-old respondent. The Court of Appeals reversed the Circuit Court's opinion and order which upheld the District Court's entry of the IPO. The Court of Appeals reversed and held that the general division of the District Court lacked jurisdiction to enter the order. We affirm the Court of Appeals on different grounds.

We hold that the general division of the District Court properly exercised jurisdiction over the case, as the juvenile division of District Court does not have exclusive jurisdiction over IPO cases involving a minor party. However, any IPO hearing involving either a minor petitioner or respondent must be made confidential by the presiding court. In addition, we hold that a guardian ad litem (GAL) must be appointed for any unrepresented minor who is a party to an IPO case in accordance with CR ¹ 17.03.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jane Smith² (Smith) filed a petition for an IPO on behalf of her son Brian, age eleven, on February 15, 2018. The respondent was John Doe (Doe), age thirteen. Brian and Doe went to the same school, were assigned to the same school bus seat, and lived in the same apartment complex. The IPO petition alleged the following:

I am filing obo (sic) my 11 years (sic) old son, [Brian]. On 2/15/2018, As [Brian] got off the bus today, [Doe] was yelling out [his apartment] door at [Brian] "You little fucker, your (sic) the reason why I got suspended from school." [Brian] walked from the bus and reported the incident to me. I went to the apartment manager and told her the incident. She advised that I file for protection. I also called the school and spoke with the assistant principal. I was told that the school would contact the parent to inform her of [Doe's] behavior. I (sic) was reported to me on 2/8/2018 what had been going on between him and [Doe]. [Doe] grabbed [Brian's] hand and placed it next to his penis while slapping [Brian] on his head telling him to "slap his meat[.]" He would scream and yell at [Brian] "Fuck me baby, fuck me." If you every (sic) touch me down here than (sic) you are considered to be gay and called [Brian] transgendered. Two weeks prior to [Doe] being suspended from school, he followed [Brian] to the front door of our apartment and slapped him across the face. [Doe] is twice the size of [Brian] and I am afraid that things will get worse. Before [Doe] was suspended, the school pulled the video from the bus and confirmed what [Brian] said was true. I want [Doe] to stay away from [Brian]. I fear for his safety getting on and off the bus and when he is at school. I want my son protected and for this to stop.

A temporary IPO was entered on the same day Smith filed the IPO petition, and the case was assigned to the Jefferson District Court's IPO docket pursuant to the Domestic Violence Protocol for the 30th Judicial Circuit and District Courts.³

A hearing on Smith's IPO petition was held before the general division of Jefferson District Court on March 1, 2018. Brian was represented by a law student intern from The Legal Aid Society who was supervised by a licensed attorney. Doe was not represented by counsel, and his mother (Doe's Mother) appeared on his behalf. Doe's Mother is not an attorney.

The hearing began with the court reading Smith's petition into the record and asking her if it was correct. Smith clarified that "top of the head" should have read "top of hand," and that the assistant principal requested the video from the bus, but never received it. The court then allowed Smith to adopt her petition as her testimony.

Brian testified that Doe sometimes made him feel uncomfortable because of what he said. Specifically, that Doe said, "beat my meat" a few times, and that Doe would "take [Brian's] hand and put it close to his penis and say, ‘beat my meat’ while slapping [Brian's] hand." Brian said Doe did that more than once, but he did not know how many times. Brian also said Doe would say "weird things on PlayStation," but he couldn't remember anything specific. Finally, Brian denied that Doe had ever threatened him "except for the time when [Doe] opened his door and said that [Brian] got him suspended." Brian did not call any other witnesses.

Doe did not testify on his own behalf. Doe's Mother chose not to testify because, as she told the court, she was not home when Doe allegedly yelled at Brian on February 15. Doe's Mother instead called Doe's sister (Doe's Sister) and aunt (Doe's Aunt) to testify. In relevant part, they both testified that Doe did not yell at Brian from Doe's apartment door on February 15.

Doe's Sister, a high school student, initially said she was home on the fifteenth when Doe got off the school bus. The court interrupted her testimony and noted that Doe had been suspended from school earlier that day and therefore did not take the bus home. Doe's Sister said she forgot about that. The court noted that her testimony was "not very believable" at that point, but allowed Doe's Mother to finish questioning her.

Doe's Aunt testified that she and Doe's Mother were working on the fifteenth, and that they came back to the apartment between one and three o'clock in the afternoon for lunch. Doe's Aunt said nothing out of the ordinary happened that afternoon. Following her testimony, the court noted that Doe's Aunt's statements conflicted with Doe's Mother's claim that she was not at the apartment during the time period at issue. The court therefore believed Doe's Aunt was "obviously confused" about what occurred that day.

Following the hearing, the court found that Doe had committed both sexual assault and stalking, and that there was a risk the behavior would reoccur in the future. The court therefore entered an IPO against Doe that would remain in effect for three years. The IPO required Doe to remain 500 feet away from the middle school that they both attended as well as the apartment complex they lived in. The court granted the school system the discretion to enforce the order in the manner they saw fit, but the Doe family's tenancy at the apartment complex was terminated. The IPO also restricted Doe from possessing a firearm during its duration.

Following the hearing, Doe obtained counsel and appealed the District Court's ruling to the Circuit Court. The Circuit Court ultimately affirmed the District Court.⁴ Doe then appealed to the Court of Appeals, which reversed and remanded with orders that the IPO be vacated.⁵ Doe raised a myriad of errors before the Court of Appeals, but it addressed only three on the merits. The court held: (1) that the general division of District Court lacked jurisdiction to hear the case because the juvenile division of District Court has exclusive jurisdiction over IPO cases involving a minor respondent;⁶ (2) that the District Court violated Doe's due process rights by incorrectly admonishing him that his testimony could be used against him in a later criminal proceeding;⁷ and (3) that the IPO was reversibly deficient because it did not contain written findings of fact.⁸ Moreover, while the court did not address Doe's argument regarding the sufficiency of the evidence against him on the merits, it made some general comments about the elements of stalking and sexual abuse and the facts of this case.⁹

Smith now appeals to this Court requesting review of the Court of Appeals’ holding that the juvenile division of District Court has exclusive jurisdiction over IPO cases involving minor respondents. Of the many issues Doe raises in his cross-appeal, for reasons explained below, we address only whether a GAL should have been appointed to represent him in the IPO hearing. We address other issues as required.

Additional facts are discussed below as necessary.

II. ANALYSIS

A. The collateral consequences exception to the mootness doctrine permits review of this case.

As a threshold matter, we must address whether it is appropriate for this Court to address the issues raised by this case notwithstanding that they are now moot. The IPO at issue was entered on March 1, 2018, and was effective for three years. Therefore, as of March 1, 2021, the IPO is no longer in effect. This, of course, renders the issues in this case moot.¹⁰ Neither of the parties have addressed this issue, as briefing in this case was completed in January 2021.

"The general rule is, and has long been, that where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed."¹¹ However, this rule is subject to certain exceptions. In Morgan v. Getter , this Court provided a survey of the exceptions to the mootness doctrine.¹² One exception the Morgan Court discussed, though it was not applicable in that case, was the "collateral consequences" exception.¹³ The Court cited a Court of Appeals case, Caudill v. Caudill ,¹⁴ as an example of the application of the collateral consequences exception.¹⁵

In Caudill , a domestic violence order (DVO) was entered against the petitioner's husband during the pendency of the parties’ divorce.¹⁶ The DVO expired before the appellate record was submitted to the Court of Appeals, and the Court of Appeals ordered supplemental briefing on the issue of whether the case was moot.¹⁷ The husband argued that "an appeal testing the sufficiency of the evidence on which a DVO has been granted is never moot because entry of a DVO follows the alleged...