In Re William George T.

⁷⁶⁵ BISHOP, Judge. Appellants John T., father of juvenile William George T., and William George T. appeal from a judgment of restitution in favor of Calvert Memorial Hospital entered against the appellants by the Circuit Court for Calvert County (Rymer, J.), sitting as a juvenile court. FACTS On April 30, 1990, William George T. (“William”), a juvenile, was transported to the emergency room of Calvert Memorial Hospital after he overdosed on prescription medication.

William was admitted to the hospital where he remained in intensive care for a couple of days. Two weeks after his admission, while still a patient at Calvert Memorial, William and one other juvenile, his roommate, did extensive damage to their hospital room and surrounding areas. According to Joan Emily Adams, a Staff Nurse at the hospital, she was in a meeting in the room next to the juveniles’ when she heard a loud bang. The staff was unable to gain entrance to the juveniles’ room and the police were called.

The loud noise and banging continued. Before the staff could enter the room, two or three inches of water emanating from the room had run into the hallway. Upon entering the room, the staff discovered that the showerhead and the pipe to the commode had been ripped off the wall in the bathroom. The partition wall had holes in it.

A large picture window of safety glass was entirely cracked. The juveniles exited the room and proceeded to tear down a fire door. In addition, a computer suffered extensive damage as a result of water coming down through the ceiling. A bedpan washer, various plumbing fixtures, a shower rod, drywall, and certain medical books were also destroyed.

A representative of the hospital estimated the total damage, including labor and clean up costs, in excess of $5,000. William was charged with and subsequently entered a plea of involved in malicious destruction of property having ⁷⁶⁶ a value greater than $300.00. A separate restitution hearing was held, and, at its conclusion, the court ordered a judgment of restitution in the amount of $4,000 be entered against William and his father, John T. At the restitution hearing, counsel for the father argued that it was inappropriate for the court to enter judgment against the parents of a juvenile when the juvenile is “not in their care and custody.” ISSUES Both appellants raise the following issue: I. Whether there was sufficient evidence from which the circuit court could determine the fair market value of the property damaged or destroyed? In addition, the father asks: II.

Whether the circuit court properly entered a judgment of restitution against the father for property damage caused by his minor son in a case in which the juvenile was hospitalized when he committed the delinquent act? For convenience, we address the issue of parental liability first. DISCUSSION Parental Liability Following a restitution hearing, the Circuit Court for Calvert County (Rymer, J.) entered a judgment against William’s father. A judgment of restitution was also entered against William, who appealed only the issue of the amount of the judgment which we address infra.

The judgment was entered pursuant to Md.Cts. & Jud.Proc.Code Ann. § 3-829 (Supp.1991), which provides in pertinent part: (a) In general. — (1) The court may enter a judgment of restitution against the parent of a child, the child, or both in any case in which the court finds a child has committed a delinquent act and during or as a result of the commission of that delinquent act has: ⁷⁶⁷ (i) Stolen, damaged, destroyed, converted, unlawfully obtained, or substantially decreased the value of the property of another; (2) The court may order the parent of a child, a child, or both to make restitution to: (i) The victim; (ii) Any government entity; or (iii) A third party payor, including an insurer, that has made payment to the victim to compensate the victim for a property loss under paragraph (l)(ii) of this subsection. We observe that, on its face, this statute appears to impose absolute liability, up to $5,000, on parents for the delinquent acts of their minor children. The statutory language requires nothing more than that damage be caused by a child’s delinquent act and that a parental relationship exist in order to impose liability on the minor’s parents. William’s father argues the trial court’s entry of a judgment of restitution against him is “inconsistent with [the] clear intent of the statute, fundamentally unfair, and unconstitutional,” under circumstances where William was a patient in the hospital at the time of his delinquent acts. “Where a father and mother do not have actual custody and control over the child at the time of the act in question,” William’s father argues, “the court is prohibited from entering a judgment of restitution against them under Section 3-829.” As authority for his assertion, William’s father relies on In re James D., 295 Md. 314 , 455 A.2d 966 (1983).

A careful analysis of this case is indispensable to our discussion. James D. involved a juvenile who broke into and set fire to a model home, completely destroying it. At the time of the incident, the juvenile was under commitment to the Juvenile Services Administration and the Montgomery County Board of Education for placement at a particular school, but he escaped from the facility where he was being held. He had no contact with his father and mother from ⁷⁶⁸ the time of his escape until his arrest for this act.

When his father and mother were ordered to make restitution in the amount of $5,000, they appealed, and the Court of Appeals granted certiorari prior to argument in this Court. After discussing parental liability statutes from Georgia, Texas, North Carolina, Wyoming, Connecticut, Ohio, Illinois, New Jersey, and Hawaii, and noting that only in Georgia had a statute placing liability on parents been struck down as unconstitutional, the Court observed that each court that had upheld statutes similar to Maryland’s had determined the statute was a valid exercise of the police power, applying the rational basis test. The Court then said: Whatever may be the theory generally, in the context of this case the father and mother cannot be expected to have prevented the depredations which took place when their son not only was not residing at their home but had been removed from the home by action of the State and lodged with a State agency. Their liability is based only upon being parents. 295 Md. at 326 , 455 A.2d 966 .

Continuing, the Court quoted with approval the following language from a Massachusetts case: “When the only justification for a legal burden, penalty, or classification is to punish or deter conduct, the burden cannot fairly be imposed on individuals who have no means of avoiding it. If punishment or deterrence is directed toward individuals who cannot affect the offending conduct, it is illogical. If it is directed toward the wrongdoer, whom the government hopes to reach through its action toward those close to him, it may be logical and effective, but it may also be contrary to basic justice.” 295 Md. at 326 , 455 A.2d 966 (citations omitted) (quoting Spence v. Gormley, 387 Mass. 258 , 439 N.E.2d 741 (1982). Finally, the Court stated: Problems of constitutionality would arise under the Fourteenth Amendment to the Constitution of the United ⁷⁶⁹ States and Maryland Declaration of Rights Art. 24 were we to interpret the statute here as applying to a father or a mother who did not have actual custody and control over a child at the time of the act in question. 295 Md. at 327 , 455 A.2d 966 (emphasis added).

Because William’s father had neither physical custody nor control over William at the time of the incident, James D. may appear at first glance to imply we should hold that William’s father is not liable for William’s acts under these circumstances. The holding in James D., however, narrows the seemingly broad exception to parental liability that would be created if “actual custody and control” were a prerequisite to liability. As a result, we hold that William’s father is liable for William’s delinquent acts. We will explain.

In James D. the Court of Appeals held only that “the General Assembly when it enacted this law could not have intended to place liability upon a mother or a father for an act of the child committed while in the custody of the State.” 295 Md. at 327-28 , 455 A.2d 966 . Earlier in its opinion, the Court had stated: [H]ere we avoid constitutional conflicts by going no further than to hold that our interpretation of “parent” in the statute does not include the father or mother of a child where the child has been removed from their care and custody by court order and is not residing in their home at the time of the incident for which recovery is sought. 295 Md. at 316 , 455 A.2d 966 . We do not interpret James D. to require that a parent must have physical custody and control over their minor child in order for them to be liable for their child’s delinquent acts. Such an interpretation would be contrary to the plain meaning of the statute.

Moreover, contrary to the father’s contention, a broad reading of the exception to parental liability created in James D. is not necessary in the case sub judice to avert constitutional concerns. ⁷⁷⁰ In the only reported decision we were able to find, in which a parental liability statute was declared unconstitutional, Corley v. Lewless, 227 Ga. 745 , 182 S.E.2d 766 (1971), the statute contained no dollar limit on the extent of parental liability. Georgia has since repealed the former statute and enacted a new one that makes parents or guardians liable in an amount not to exceed $5,000. See Ga.Code Ann. § 51-2-3 (Supp.1991). In Hayward v. Ramick, 248 Ga. 841 , 285 S.E.2d 697 (1982), the court held the new statute constitutional explaining there is a rational relationship between imposing liability on the parents of children who willfully or maliciously damage property and controlling juvenile delinquency.

Reported decisions have generally upheld the constitutionality of parental responsibility acts. See, e.g., Kelly v. Williams, 346 S.W.2d 434 (Tex.Civ.App.1961); General Ins. Co. of Am. v. Faulkner, 259 N.C. 317 , 130 S.E.2d 645 (1963); Mahaney v. Hunter Enter., Inc., 426 P.2d 442 (Wyo.1967); Rudnay v. Corbett, 53 Ohio App.2d 311 , 374 N.E.2d 171 (Ct.App.1977); Vanthournout v. Burge, 69 Ill.App.3d 193 , 25 Ill.Dec. 685 , 387 N.E.2d 341 (1979); Piscataway Bd. of Educ. v. Caffiero, 86 N.J. 308 , 431 A.2d 799 , appeal dismissed, 454 U.S. 1025 , 102 S.Ct. 560 , 70 L.Ed.2d 470 (1981); Stang v. Waller, 415 So.2d 123 (Fla.Dist.Ct.App.1982); Alter v. Nolle, 98 N.M. 100 , 645 P.2d 456 (Ct.App. 1982); Bryan v. Kitamura, 529 F.Supp. 394 (D.Hawaii 1982). In most instances, the rationale of these cases is that parental responsibility statutes are a valid exercise of the police power, applying a rational basis test.

For example, in upholding the constitutionality of a statute which imposed liability on parents for injury to school property caused by a minor, a New Jersey court explained: 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 Legislature could have reasonably believed that subjecting parents to vicarious liability for their children’s willful and malicious acts of vandalism ⁷⁷¹ 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.

Piscataway, 431 A.2d at 805 . The purpose of Maryland’s parental responsibility statute is both compensatory and penal. In re Zephrin D., 69 Md.App. 755, 761 , 519 A.2d 806 (1987). As we stated previously when a constitutional challenge was raised against the precursor to § 3-829, Article 26, § 71A: “The legislative determination here demonstrates a legitimate State interest in a matter affecting the general welfare.

The remedy selected for the protection and promotion of that determination has not been shown to be arbitrary, oppressive or unreasonable.” In re Sorrell, 20 Md.App. 179, 189 , 315 A.2d 110 (1974). The Court of Appeals did not elaborate as to the “[problems of constitutionality [that] would arise” were it to have held the parents in James D. liable. James D., 295 Md. at 327 , 455 A.2d 966 . In alluding to “constitutional problems” we think the Court of Appeals had in mind the narrow factual situation presented in James D. in which the State first removed legal custody and the control of the juvenile from his parents by court order and then attempted to hold the parents liable for the child’s delinquent acts.

Where a parent does not have legal custody, as contrasted with physical custody, of a child, we recognize the imposition of liability on the parent for the child’s delinquent acts raises “constitutional problems.” In the case sub judice, however, the father retained legal custody of William even though he