Divorce Law Journal

Published Family Law Opinions From Ky Court of Appeals Today

We don't usually cover truancy or status matters on this blog.  There was one published truancy case decided today, J.L. v. Commonwealth which is linked here, but which we will not digest.

A.C. v. Com., Ky COA, Due Process, Contempt, Juvenile Status Offenders

A.C. v. Com., 2009-CA-000714-ME  

Published:   Vacating, Remanding, and Denying Motion to Dismiss

County: JESSAMINE

 

Child appealed FC’s order finding her in contempt of court for violation of juvenile probation.

 

FACTS:

Parents filed “beyond control” juvenile complaint against Child in 2007, and Child requested formal hearing.  A proceeding occurred as a result of the Complaint, but evidence was not taken and the record does not reflect that Child admitted to being beyond control.  FC nonetheless found that Child was beyond control of her parents and entered a “Juvenile Status Offender Order” finding Child to be a status offender.  Child was ordered to serve 1 year of probation per the terms of the Order, which would end in June 2008.  During the probationary period, Cabinet filed a DNA petition with regard to Child, alleging physical and emotional abuse and neglect of Child by Mother and Stepfather.  During one of the early proceedings in the DNA case, Stepfather stated that Child needed to leave the home or he would.  In Child’s presence, FC asked Mother who she would choose.  When Mother failed to choose, FC placed Child with Father, ordered no contact with Stepfather, and allowed Mother supervised visitation.  At adjudication hearing, FC found Child to be abused and continued previous visitation orders.  DNA case was closed in September 2008.  Nonetheless, a March 2009 summons was issued to Father, requiring him to bring Child to court, and Cabinet filed a Motion to Review in the DNA action.  A hearing was heard on the Motion to Review, but FC focused on a contempt charge for alleged violations of her probation, despite the fact that the probationary period had expired.  Child had received no notice that the proceeding would address an alleged violation of her probation.  Child was not allowed counsel during this proceeding, despite the presence of all other counsel.  No evidence was introduced at this hearing and Child did not admit to the allegations against her.  FC admonished Child, revoked her probation, and order her placed with DCBS for no more than 30 days. 

 

ANALYSIS:

CA found that FC, amongst many other procedural irregularities, failed to hold a hearing on the original “beyond control” complaint as required for FC to find Child to be a Status Offender.  However, since no appeal was taken from that Order, CA was without jurisdiction to reverse the Order. 

 

CA further found that Child was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), FC erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for Child’s parents for more than five minutes during the hearing without Child’s counsel being present to represent her. However, Child was given the opportunity to speak with her attorney prior to FC finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and Child did not admit to them. FC also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation.  Accordingly, the proceeding which led to Child’s detention was replete with due process violations. The order of March 12, 2009, must be vacated because FC had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of Child’s probation. 

 

FC’s Order vacated.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

 

 

 

A.M. v. Com.

A.M. v. Com., --S.W.3d—(Ky. App. 2007), 2007 WL 491160 (Ky.App) designated to be published.

Issue: Whether the circuit court erred in sua sponte dismissing an appeal based on untimely perfection of the appeal. The Court held yes, it was error because the juvenile lost his right of appeal solely due to his prior counsel’s negligence.

Facts:

A.M., a minor, was charged with being a habitual truant and being beyond control of his mother. After a detention hearing, the district court found A.M. in contempt and sentenced him to thirty days in detention. Later, the district court found A.M. in contempt again and sentenced him to two weeks in detention. Notice of appeal was filed, and the district court entered an order allowing A.M. to proceed in forma pauperis on appeal. A.M.’s case was assigned to an attorney, who entered his appearance. Counsel determined that he needed an extension of time, and drafted a request for a thirty day extension. Counsel then asked an attorney in the London DPA office to file said extension on November 22, 2004, the same day the statement of appeal was due. However, unbeknownst to counsel, the request was never filed. Counsel then filed his statement of appeal on December 22, 2004. In April 2005 counsel filed a motion to substitute counsel.
In November 2005, new counsel then filed a motion to review or reverse the district court’s contempt order, alleging that the Commonwealth’s failure to file a counterstatement should be deemed a confession of error. The Commonwealth did not respond or appear for the hearing. The circuit court sua sponte dismissed the appeal, ruling that the appeal was not timely perfected. A.M. then filed a motion to alter, amend, grant an enlargement of time, or grant belated appeal. The Commonwealth did not respond, and the circuit court denied the motion. The Court of Appeals granted discretionary review.

Analysis:

Wine v. Commonwealth, 694 S.W.2d 689 (Ky. 1985) is controlling and entitles A.M. to have his appeal reinstated. Since A.M’s right of appeal was lost solely due to the negligence of his prior counsel, he is entitled to a belated appeal.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com

Opening Court Proceedings Involving Minors

Lexington Herald Leader, February 6, 2006: Open hearings an issue in parental rights
LEGISLATURE TO CONSIDER ADOPTION LAW CHANGES
By Beth Musgrave And Valarie Honeycutt Spears
HERALD-LEADER STAFF WRITERS

Same day. Same argument.

Two different judges, two different answers.

The legal argument Louisville lawyer John Helmers was pushing yesterday in Louisville Family Court was a prickly one. The courts, he argued, should open hearings concerning the termination of the parental rights of three of his clients to the public.

Those hearings and all hearings involving children in Kentucky -- from juvenile delinquency cases to abuse and neglect cases -- have always been closed.

Jefferson Family Court Judge Jerry Bowles ruled against Helmers yesterday, saying the issue on whether the courts should be open is one for the legislature to decide.

Just an hour and a half later, Family Court Judge Stephen George said he would take the issue under advisement and issue a ruling later, adding that the courts should err on the side of openness.

The difference in opinion could be a bellwether of what the legislature may face as it tackles reform of key areas of the state's adoption rules. The legislature, which begins its session today, is expected to receive a series of recommendations on changing the state's adoption laws after investigations and panels showed that in some cases biological parents' parental rights are terminated too quickly.

The Inspector General, in a stinging January report about problems with foster care adoptions and termination of parental rights, recommended that termination proceedings against parents be open. The report found that social workers in the Elizabethtown office lied in court, falsified documents, acted spitefully toward parents and focused on adoptions rather than unifying children with their parents. At a meeting of the Cabinet for Health and Family Services Blue Ribbon Panel on Adoption, tasked with investigating adoption procedures in Kentucky, some family court judges suggested opening abuse and neglect hearings.

It is too early to tell whether legislators will recommend opening the courts as part of a possible reform package.

Editor's note: Divorce proceedings involving custody of children are open to the public, even when those cases involve allegations of abuse or neglect.

In a related matter, the Courier-Journal published today a letter to the editor from DAVID W. RICHART ,Executive director, National Institute on Children, Youth & Families, Inc.

Opening juvenile court

In a Jan. 31 editorial, The C-J continued its editorial goal of opening juvenile courts in child neglect and abuse proceedings….

We [child and family advocates] agree that the road to systemic reform of child protection in Kentucky, which was the subject of 1978, 1985, 1995, 2001, 2006 and 2007 exposés, is impeded by the principle of confidentiality.

Putting it bluntly: More often than not, confidentiality protects the actions of the state agency as much as it protects the identity of children and their families….

We also agree that judges should be given the ultimate responsibility for deciding whether hearings should be open. But we would qualify that recommendation by allowing the attorney for the child, the attorney for the parent, as well as the county attorney, to request a special hearing on whether a particular court proceeding should be open to the public.

Such a special hearing might allow judges to hear all of the facts, which is especially important in child sexual abuse matters.

But we have more modifications in mind. Since no attorney is appointed to represent the parent or child at the first, 72-hour hearing on accusations of child neglect or abuse, the most wildly speculative hearsay evidence reported by the state agency could be subject to full media scrutiny….

That "evidence" – while telling only one side of the story -- could be subject of sensational reporting even though it might not be true….

The second modification is to prohibit the media from having access to court and agency records. At present, these records contain information of the most speculative kind, including the name of the person who reported the incident, an action that would have a stifling effect on the public's willingness to report real abuse and neglect. So, we think records should be out-of-bounds for reporters.

Third … the media must be held accountable as well. We have suggested that the Kentucky Press Association establish voluntary guidelines providing ethical guidance for journalists so that their peers could hold reporters accountable….

For some of us, our worst nightmare is turning on our television to watch a 23-year-old cub reporter tell his audience of a "breaking news" story full of identifying information about a family -- which later turns out to be false…. It is our contention that once the media has let the wrong cat out of the bag, reversing this incorrect stereotype of children and families may be next to impossible.

The Courier-Journal has done a commendable job of raising the consciousness of the public -- and even child advocates -- about the importance of opening child abuse and neglect proceedings.

We would suggest that all of us put a bit more effort into amending the current confidentiality statute in child abuse and neglect proceedings before we change this nearly century-old provision of juvenile law.

N.T.G. v. Commonwealth

N.T.G. v. Commonwealth, 185 S.W.3d 218 (Ky.App. 2006)

Issue and Holding:
Whether a juvenile court can probate a sentence of detention for a juvenile under the age of 14, when a juvenile under the age of 14 cannot be sentenced to detention. The Court held no, a juvenile court cannot probate a juvenile to a prohibited sentence.

Facts:
N.T.G. pled guilty to first degree criminal trespass, theft by unlawful taking under $300, and third degree criminal mischief. At the disposition hearing, the court sentenced the juvenile, age 13, to fifteen days in detention, probated upon certain terms, including payment of restitution and no unlawful contact with his co-defendant.
N.T.G. appealed to the Circuit Court. He argued that the juvenile court erred because 1) it failed to impose the least restrictive alternative method of treatment under KRS 630.120(4) and 2) it lacked the authority to impose fifteen days of detention on a 13 year old. The circuit court dismissed the first argument, since the least restrictive alternative method of treatment was not applicable to the facts in this case. That issue was not appealed. The circuit court rejected the second argument based on the fact that 1) KRS 645.060(2) does not prohibit a court from placing a 13 year old on probation and 2) the Kentucky Court of Appeals had previously remanded a case back to juvenile court, requiring that the court consider probation for a 13 year old.
N.T.G. petitioned the Court of Appeals for discretionary review. The petition was granted.

Analysis:
On appeal, N.T.G. argued that a juvenile court cannot probate a sentence that is cannot directly impose. The Commonwealth argued 1) that the issue was unpreserved, 2) that the disposition followed the overall intent of the juvenile code since it was imposed in the best interests of the child and directed toward treatment to bring about improvement in the juvenile, and 3) that any error was harmless since the juvenile was currently over fourteen years old.
As for the Commonwealth’s first argument, the Court held that the issue was preserved, and that even if it was not it would review the issue under RCr 10.26, the palpable error rule.
As for the Commonwealth’s remaining arguments, KRS 635.060 mandates that a juvenile court may only impose a sentence of detention upon a juvenile fourteen or older. The Court held that this statute is controlling and must be strictly enforced. A juvenile court also cannot probate a sentence of detention for a child under fourteen, because that is merely an empty threat.
The Court reversed the circuit court order and remanded the case back to district court for proceedings consistent with the opinion.

Representing Children: A Resource

Steven Kriegshaber, Louisville attorney, and a past president of the Kentucky Chapter of the AAML, serves on the national AAML Special Concerns of Children Committee, and helped author a publication, REPRESENTING CHILDREN: Standards for Attorneys & Guardian Ad Litems in Custody or Visitation Proceedings. Published several years ago, it advocates that GALs not make recommendations to the court. As with all AAML publications and positions, much study and deliberation uas undertaken before it was released. He also wrote "Representing Children in Divorce Litigation,'' The Advocate, July/August 1997 . The AAML publication remains available for purchase online. The cost? $10.

A.W., a Child v. Commonwealth, 163 SW3d 4 (Ky., 2005)

A.W., a Child v. Commonwealth, 163 SW3d 4 (Ky., 2005)
KRS 635.060 does not act as a limitation on the length of
sentence a Juvenile Court may impose in the appropriate
exercise of its inherent contempt powers for violation of
its orders. A juvenile can be held in contempt for violating
the conditions of probation.

Commonwealth v. C.J., a Child; 156 SW3d 296 (Ky., 2005)

Commonwealth v. C.J., a Child; 156 SW3d 296 (Ky., 2005)
There is no right of appeal from a Juvenile Court ruling that
a case is to be resolved by informal adjustment.

T.D., a Child v. Commonwealth and D.B., a Child v. Commonwealth of Kentucky; 165 SW3d 480, (Ky.App., 2005)

T.D., a Child v. Commonwealth and D.B., a Child v.
Commonwealth of Kentucky; 165 SW3d 480, (Ky.App., 2005)
Complaints charging juveniles as habitual truants should have
been dismissed for lack of jurisdiction. KRS 159.140 requires
the director of pupil personnel to perform a home assessment.
KRS 630.060(2) provides that no complaint shall be received
unless an adequate assessment of the child has been performed
pursuant to KRS 159.140.