Opinion
NO. 2016-CA-001847-ME
01-12-2018
A.B. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Renee Sara Vandenwallbake Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andrew Beshear Attorney General Diane Minnifield Special Assistant Attorney General Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 11-J-00487 & 11-J-00487-005 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: A.B. appeals from the Fayette Family Court's adjudication of habitual truancy, a status offense, and disposition requiring that she be supervised by the Cabinet for Health and Family Services for six months, arguing it lacked subject matter jurisdiction to adjudicate her without the court designated worker (CDW) first offering her an opportunity for diversion before the status offense petition was filed in court.
Judge Janet Stumbo concurred in this opinion prior to retiring from the Kentucky Court of Appeals effective December 31, 2017. Release of this opinion was delayed by administrative handling. --------
A.B. had prior charges as a juvenile beginning in 2011. In 2012, she was committed to the Cabinet as a status offender and placed in a residential facility.
In 2014, the Kentucky General Assembly passed 2014 Kentucky Laws Ch. 132 (SB 200), which made significant changes to the juvenile justice system with most provisions taking effect July 1, 2015.
In 2015, shortly after being released from status commitment and being returned to the custody of her mother, A.B. had additional offenses which were ultimately informally adjusted. Later in 2015, A.B. went to live with her grandmother. She attended high school at Bryan Station, then transferred to the Family Care Center due to pregnancy but then left there and began attending Martin Luther King Academy (MLK).
In February 2016, A.B. had her baby. On February 29, 2016, in an Affidavit and Truancy Evaluation, the Assistant Director of Pupil Personnel for Fayette County Public Schools, Kevin Crabtree, made a truancy referral based on A.B. having 38.50 unexcused absences for the academic year. Most of A.B.'s unexcused absences were in December 2015, January 2016 and February 2016. The affidavit opined that the cause of A.B.'s truancy was her pregnancy, and her grandmother allowed her to stay home. Crabtree noted A.B. was currently on home/hospital instruction since the birth of her baby and was to return to school on March 17, 2016.
The only documented involvement of the CDW and the family accountability, intervention, and response team (FAIR team) in this matter consists of two filled out forms. On May 25, 2016, on the form for Referral to County Attorney (CDS), A.B.'s CDW stated that "[t]he FAIR Team has reviewed the case of [A.B.], has no further recommendations to offer; and hereby refers the case to the County Attorney for formal court action on the following offense(s) habitual truant." The CDW stated that A.B. failed to appear for an interview with the CDW and was referred to the CDS due to failure to appear. The CDW found the following factors existed: family issues, school issues and that A.B. had a child. The CDW listed unexcused school absences as the reason for referral to the county attorney and noted "unable to contact child. Grandmother failed to contact CDW. Child has a child. Probably needs family care center."
On July 2, 2016, on the form for preliminary inquiry formal/informal processing criteria and recommendations, A.B.'s CDW stated that A.B. failed to appear for the preliminary inquiry. The CDW disqualified A.B. from informal action based on checking the box "The Fair Team has referred the case to the County Attorney for Formal Court Action." The CDW concluded that based on the above criteria, the case was not appropriate for informal processing and recommended the case be referred to the county attorney.
On August 23, 2016, A.B. appeared before the family court on the truancy charge. She had four additional absences since the truancy referral. She was referred to the Family Care Center but apparently there was not an open spot for her and neither she nor the facility wanted her to attend school at the facility.
On September 6, 2016, at a status hearing, A.B.'s counsel argued because this was A.B.'s first status offense she was entitled to diversion under the new juvenile justice code. The family court granted counsel a two-week continuance to file a motion on this issue, but stated that an adjudication would be held regardless.
On September 20, 2016, the parties appeared for adjudication. A.B.'s counsel argued dismissal for lack of subject matter jurisdiction because A.B. was not given the opportunity for diversion. The county attorney admitted A.B. had not done a diversion, but argued based on her prior record and her lack of improvement since the truancy case was filed, diversion would be futile. The county attorney noted A.B. had not turned in her excuse for the previous court date and had missed two additional days of school, but her behavior and attendance were better this year than the previous year and her aggressive behavior had subsided. The county attorney offered to continue the matter for thirty days and, if A.B. did not have any further unexcused absences or tardies, she would refer the matter back for diversion.
On October 11, 2016, the adjudication hearing was held. A.B.'s attorney again challenged the subject matter jurisdiction of the court arguing that A.B. was entitled to diversion because she had no previous diversions. The family court denied the motion explaining the purpose of diversion was to avoid court and A.B. had prior adjudicated offenses so she was not eligible for diversion prior to the amendments.
After hearing testimony from Crabtree about A.B.'s absences, the steps he took to investigate her home life, the events involving the delivery of the final notice and A.B.'s continuing absences after returning to school following the birth of her child, the family court found that habitual truancy was established.
At the disposition hearing held on November 15, 2016, the family court was informed that A.B. missed nine and one-half days since the adjudication. She was now attending night school at MLK and was nine months away from her eighteenth birthday. The county attorney was hopeful A.B. would be able to obtain her high school diploma on time if she could successfully address her lack of motivation. The parties agreed on the recommended disposition. The family court issued a Juvenile Status Offender Order finding A.B. to be a habitual truant, ordered her to comply with conditions and placed her under the supervision of the Cabinet for Families, with these terms to expire in six months. The family court also ordered A.B. to be drug tested for ninety days.
On appeal, A.B. argues the family court lacked subject matter jurisdiction because SB 200 requires diversion through the CDW's office in all eligible cases before a status offense petition can be filed in court as required by Kentucky Revised Statutes (KRS) 610.030 and the Juvenile Court Rules of Practice and Procedure (JCRPP) 4. A.B. argues that she was statutorily eligible for diversion and her failure to appear for a preliminary inquiry with the CDW should have resulted in her referral to the FAIR team for review, further action and enhanced case management. A.B. questions whether this process was followed because the referral from the FAIR team was dated before the preliminary inquiry form and both forms were signed by the same CDS, so it is unclear whether the CDW referred the case to the FAIR team or whether the CDS just filled out both forms when she did not appear for the preliminary inquiry and the FAIR team signed off on it. A.B. argues alternatively, if the case was properly referred to the FAIR team, the record does not reflect that it took any action to engage with the family. She argues documented attempts at further contact with the family is required by statute before diversion can be abandoned and the case sent to court.
While this matter was pending on appeal, the conditions A.B. was required to comply with expired and she turned eighteen-years old. Although this case became moot during the pendency of this appeal, it is appropriate to address the complained of error because it is likely to be repeated yet evade review.
In evaluating the merits of A.B.'s arguments, we keep in mind the reasons for the recent amendments to the juvenile code. SB 200 brought about "sweeping changes to the existing juvenile code relating to status and public offenses" with the purpose of "aid[ing] children with the problems that brought them into the system, and the financial impact of juvenile treatment." Q.M. v. Commonwealth, 459 S.W.3d 360, 362 (Ky. 2015). The legislative purposes of the juvenile code were expanded to add that "[e]mphasis shall be placed on involving families in interventions developed for youth, providing families with access to services necessary to address issues within the family, and increasing accountability of the youth and families within the juvenile justice system[.]" KRS 600.010(2)(b)2. Regarding Chapter 630 which concerns status offenders, "[i]t shall be declared to be the policy of this Commonwealth that all its efforts and resources be directed at involving the child and the family in remedying the problem for which they have been referred[.]" KRS 630.010(2).
CDWs existed prior to SB 200, and had responsibilities that included "conducting preliminary investigations, and formulating, entering into, and supervising diversion agreements[.]" KRS 600.020(17). However, SB 200 mandated additional training for them to learn how to administer evidence-based screening instruments, identify appropriate services for children and families, and identify and understand the issues that led to the filing of the complaint, including learning to recognize "signs of trauma, disability, behavioral, mental health, or substance abuse issues, in order to determine appropriate referrals[.]" KRS 605.020(5). SB 200 empowered CDWs to "[e]nter into diversion agreements, including referral to programs or service providers, providing case management and service coordination, assisting with barriers to completion, and monitoring progress" and "[c]ollaborate and cooperate with the family accountability, intervention, and response team, director of pupil personnel as appropriate, and service providers to ensure all appropriate interventions are utilized[.]" KRS 605.030(1)(l), (o).
SB 200 created the FAIR team as outlined in KRS 605.035. This created another administrative layer to review the CDW's actions through a case management approach. KRS 605.035(4), (5).
SB 200 almost completely re-wrote KRS 610.030, a key statute we must interpret in considering whether the family court had subject matter jurisdiction over A.B.'s case where no effort was made to divert her case from court.
When a child commits a status offense, upon receipt of what appears to be a complete complaint, the CDW "shall conduct a preliminary intake inquiry to determine whether the interests of the child or the public require that further action be taken[.]" KRS 610.030(3). Prior to conducting the preliminary intake inquiry, the CDW shall notify the child and the child's guardian in writing of their opportunity to be present at the preliminary intake inquiry, that they may have counsel present, how information supplied by the child is handled and that the child has the right to deny the allegation and demand a formal court hearing. KRS 610.030(4).
"The preliminary intake inquiry shall include the administration of an evidence-based screening tool and, if appropriate and available, a validated risk and needs assessment, in order to identify whether the child and his or her family are in need of services and the level of intervention needed[.]" KRS 610.030(5). See JCRPP 4.C.
Upon the completion of the preliminary intake inquiry, the court-designated worker may:KRS 610.030(6). See JCRPP 4.C.1.-2. A "diversion agreement" is "a mechanism designed to hold a child accountable for his or her behavior and, if appropriate, securing services to serve the best interest of the child and to provide redress for that behavior without court action and without the creation of a formal court record[.]" KRS 600.020(23).
(a) If the complaint alleges a status offense, determine that no further action be taken subject to review by the [FAIR] team;
. . . or
(d) Based upon the results of the preliminary intake inquiry, other information obtained, and a determination that the interests of the child and the public would be better served . . . conduct a formal conference and enter into a diversion agreement[.]
After the preliminary intake inquiry, the CDW holds a formal conference with the child and guardian to present information and develop a diversion agreement, which may include referring the child and family to appropriate services informing them about graduated sanctions and making plans for monitoring the child's progress. KRS 610.030(8).
While KRS 610.030(6) appears to mandate either no further action or diversion in status offense cases, KRS 610.030(9)(b) states:
If a child fails to appear for a preliminary intake inquiry, declines to enter into a diversion agreement, or fails to complete a diversion agreement, then:
. . .
2. For a status offense complaint, the court-designated worker shall refer the matter to the [FAIR] team for review and further action[.]
The FAIR team reviews "[r]eferrals from the court-designated worker involving cases in which a child has failed to appear for a preliminary intake inquiry[.] KRS 605.035(4)(a). KRS 605.035(5) provides:
After reviewing the actions taken by the court-designated worker, including referrals made for the child and his or her family, efforts to address barriers to successful completion, and whether other appropriate services are available to address the needs of the child and his or her family, the team may:JCRPP 4.D.1. further clarifies that a child eligible for diversion may enter into a diversion agreement but "[i]f . . . the needs of the child require, the court designated worker shall refer the matter to the FAIR team" and JCRPP 4.D.3. states "[n]o petition shall be filed in a diversion case unless: a. The case is referred to the county attorney by the FAIR team[.]" JCRPP 4.E. specifies that "[t]he FAIR team shall conduct enhanced case management only upon referral by the court designated worker" and JCRPP 4.E.2. states this includes "[w]hen the child fails to appear for a preliminary intake inquiry or a later conference[.]"
(a) Refer the case back to the court-designated worker to take further action as recommended by the team; or
(b) Advise the court-designated worker to refer the case to the county attorney if the team has no further recommendations to offer.
Although it was not changed by S.B. 200, KRS 630.050 provides specific procedures that must be complied with before a status offense case is filed in court:
Before commencing any judicial proceedings on any complaint alleging the commission of a status offense, the party or parties seeking such court action shall meet
for a conference with a [CDW] for the express purpose of determining whether or not:
(1) To refer the matter to the court by assisting in the filing of a petition under KRS 610.020;
(2) To refer the child and his family to a public or private social service agency. The [CDW] shall make reasonable efforts to refer the child and his family to an agency before referring the matter to court; or
(3) To enter into a diversionary agreement.
It is well established that noncompliance with the pretrial procedures related to juvenile status offenders deprives the family court of subject matter jurisdiction. J.L.C. v. Commonwealth, 491 S.W.3d 519, 527-29 (Ky.App. 2016); N.K. v. Commonwealth, 324 S.W.3d 438, 441-42 (Ky.App. 2010); T.D. v. Commonwealth, 165 S.W.3d 480, 483 (Ky.App. 2005).
In B.H. v. Commonwealth, 329 S.W.3d 360, 364 (Ky.App. 2010), the juvenile argued that the family court was deprived of subject matter jurisdiction where the Commonwealth failed to establish that it had complied with the mandates of KRS 630.050 before commencing judicial proceedings. The Court held that evidence of compliance with KRS 630.050 before commencing judicial proceedings was required for subject matter jurisdiction. B.H., 329 S.W.3d at 364-65.
A recent case, J.S. v. Commonwealth, 528 S.W.3d 349, 352-53 (Ky.App. 2017), discusses the good faith efforts that must be engaged by the CDW and the FAIR team before a case is referred to the county attorney. J.S. involved a child claimed to be beyond control of school who entered into a diversion agreement, violated the agreement but then was not given the opportunity to have graduated sanctions before the matter was referred to the county attorney. The Court held that while the imposition of graduated sanctions for violation of a diversion agreement is not mandatory, the CDW's failure to carry out its mandatory duty to refer the matter to the FAIR team prior to referring the matter to the county attorney deprived the child "of the benefit of any services available to assist him and the trial court of subject matter jurisdiction[,]" thus requiring it to vacate the adjudication. Id.
In addition to the problem that the matter was referred to the county attorney before it was referred to the FAIR team, the Court noted that the FAIR team's referral to the county attorney took place before any effort was made to provide the services for which the FAIR team was created and, rather than making a referral to the FAIR team when the ineffectiveness of the diversion agreement became clear, the CDW waited until only a few days before the diversion agreement was set to expire to make the referral and the FAIR team merely rubber-stamped the CDW's decision, rather than implementing advanced case management or additional services. The Court noted that the actions by the CDW "reflect[ed] a lack of good faith compliance with the procedural rules set by the legislature and the Supreme Court." Id. at 353.
While there was discussion during the court case as to what resources were available to assist A.B. in successfully attending school, it is not clear that anything was done by the CDW to attempt diversion by helping A.B. access these resources. The CDW's entire efforts appear to be leaving a message for A.B.'s grandmother about the preliminary inquiry and asking that A.B. contact the CDW, indicating that because A.B. had an infant she could probably benefit from a referral to the Family Care Center and referring the matter to the FAIR team.
There is no indication that the CDW ever spoke to A.B.'s grandmother or attempted to contact A.B.'s grandfather, mother or A.B. directly. There is no indication that the CDW attempted to see A.B. by visiting her home or school. There is no indication that the CDW tried to find out more about A.B.'s situation than could be found in the referral, such as could be discovered by talking with A.B.'s teachers about A.B.'s situation or reviewing her individual education plan. There is no indication that the CDW attempted to address the barriers to A.B.'s successful attendance at school even though the CDW knew she had an infant dependent on her care. It is not sufficient to state that a child could benefit from a referral to the family care center without pursing such a referral or determining why that would not be a good option. There is no indication that A.B. was referred to any services prior to the referral of the case to the county attorney.
The FAIR team was also derelict in its duty to try to divert A.B.'s case. When the matter was referred to the FAIR team even though it appears there was very little for it to review as to what the CDW had done, it failed to direct the CDW to take further action, or engage in further action itself. Instead, it offered no recommendations and simply passed the matter on to the county attorney.
Based on the county attorney's statements about A.B.'s prior history, it appears no effort was forthcoming because of the perception that A.B. would not be successful at diversion. However, eligibility for diversion does not rest on whether the CDW, FAIR team or county attorney believe diversion will be successful. Although diversion is not mandatory if the matter is referred to the FAIR team and it decides to refer the matter to the county attorney, we believe KRS 605.035, KRS 610.030 and KRS 630.050 mandate that the CDW and the FAIR team make a good faith effort to divert the case where the child is statutorily eligible for diversion unless the child affirmatively opts out of diversion in favor of having his or her day in court. Such efforts should include assisting the child with resources that could help her address barriers to her attendance issues which could make diversion successful. Therefore, we hold that the failure of the CDW and FAIR team to make a good faith effort to assist A.B. in entering into a diversion agreement deprived the family court of subject matter jurisdiction.
Accordingly, the Fayette Family Court's order adjudicating A.B. to be a status offender must be vacated.
ALL CONCUR. BRIEF FOR APPELLANT: Renee Sara Vandenwallbake
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andrew Beshear
Attorney General Diane Minnifield
Special Assistant Attorney General
Lexington, Kentucky