Opinion
NO. 2014-CA-001329-ME
03-20-2015
Z.R. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Renee Vandenwallbake Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Frankfort, Kentucky Monica Meredith Robinson Bullitt County Attorney Tammy R. Baker Assistant Bullitt County Attorney Shepherdsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE SPAINHOUR, JUDGE
ACTION NO. 13-J-00262-001
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: Z.R. appeals from an Order of the Bullitt Family Court temporarily committing him to the Cabinet for Health and Family Services in a status offense case of habitual truancy. Z.R., through counsel, contends that the Family Court did not have subject matter jurisdiction over the matter, that a Standard School Attendance Order was not valid, and that the court did not have lawful authority to place him with the Cabinet. We find no error, and AFFIRM the Order on appeal.
This matter involves the exercise of parental rights as to a minor child; therefore, we will not use the names of the parties involved.
Z.R. is an approximately 15 year old male child who lives with his father (hereinafter "Father") in Bullitt County, Kentucky. In early 2013, the Bullitt County school system filed a habitual truancy petition with the Bullitt Family Court alleging that Z.R. had 19 unexcused absences from school. What followed over the months that ensued, and which is detailed in the record, were a series of court appearances and contempt proceedings aimed at reducing Z.R.'s number of unexcused absences. During the course of those proceedings, it was revealed that Z.R.'s mother lost custody of him due to drug use, that Z.R. is dyslexic, was bullied at school and could not read or write well.
In August, 2013, Z.R. was transferred to an alternative high school, and by the following month it was reported to the Family Court that Z.R. was attending school more regularly. As a result, the pending contempt motions arising from Z.R.'s failure to attend school were held in abeyance. By September, 2013, Z.R. was missing more school and a third contempt motion was filed. Thereafter, Z.R. entered a plea of guilty to the habitual truancy charge, was ordered to comply with the school and the Cabinet, was directed to write an essay, and was ordered to complete 25 hours of community service.
A truant is any student older than six and younger than eighteen "who has been absent from school without valid excuse for three (3) or more days, or tardy without valid excuse on three (3) or more days[.]" KRS 159.150(1). A habitual truant is "any child who has been found by the court to have been reported as a truant ... two (2) or more times during a one (1) year period [.]" KRS 600.020(31).
In December, 2013, Z.R. entered another plea of guilty on a contempt charge and was ordered to serve 30 days in detention, with 16 of those days conditionally discharged. Within two months of this plea and Order, it appeared that Z.R. was again attending school regularly, and that his alternative school was attempting to place him in a mechanics vocational program. The following month, the matter was removed from the court docket and the Cabinet closed its case.
By about March, 2014, Z.R. was again skipping school. The Commonwealth filed a new contempt motion alleging that Z.R. had missed eight days of school and had two disciplinary infractions. Another contempt was subsequently filed alleging another five absences. At an initial hearing, the Commonwealth indicated its desire to commit Z.R. to the Cabinet for the absences.
Additional testimony on the contempt issues was adduced on June 4, 2014, when a school official testified that Z.R. had eight unexcused absences and two disciplinary infractions between March 26 and May 9, 2014. Father testified that Z.R. had no problems at home and that Father did not want Z.R. removed from his custody. The court then found Z.R. in contempt but reserved a sanction for a later time. The court stated that it was not eager to remove Z.R. from his home, and it solicited alternatives. Father suggested enrolling Z.R. in Bluegrass Challenge Academy, though this effort later was unsuccessful.
On July 30, 2014, Z.R. made a final appearance before the Bullitt Family Court. The court again noted that it did not want to place Z.R. in the custody of the Cabinet, but saw no reasonable alternative. It rejected the possibility of Z.R. moving in with his elderly grandmother as an ineffectual option. The court then rendered a Temporary Custody Order placing Z.R. in the custody of the Cabinet. The Order noted that Z.R. was a danger to himself or the community and that continuation of the home was not in Z.R.'s best interest. The court also found that reasonable efforts were made to prevent Z.R.'s removal from the home. This appeal followed.
Z.R., through counsel, first argues that the Bullitt Family Court did not have subject matter jurisdiction over the habitual truancy charge because the statutory prerequisites for establishing jurisdiction were not satisfied. He contends that the Kentucky Unified Code requires that certain steps be undertaken before a Family Court may exercise jurisdiction over the status offense of habitual truancy. According to Z.R., these include the requirement that the Director of Pupil Personnel ("DPP") for the school district must attempt at least one home visit, and that the Court Designated Worker must hold a conference with the child and family to determine if the case should be diverted and to make referrals for services. Z.R. argues that neither of these statutory requirements was satisfied; therefore, the Bullitt Family Court improperly exercised jurisdiction over the matter.
Z.R. acknowledges that this issue is not preserved for appellate review, but contends that subject matter jurisdiction is reviewable and cannot be waived.
KRS 159.140 states,
(1) The director of pupil personnel, or an assistant appointed under KRS 159.080, shall: . . .
(c) Acquaint the school with the home conditions of a
habitual truant . . . and the home with the work and advantages of the school;
(d) Ascertain the causes of irregular attendance and truancy, through documented contact with the custodian of the student, and seek the elimination of these causes; . . .
(3) In any action brought to enforce compulsory attendance laws, the director of pupil personnel or an assistant shall document the home conditions of the student and the intervention strategies attempted and may, after consultation with the court-designated worker, refer the case to the family accountability, intervention, and response team.
The record demonstrates that on November 15, 2012, Assistant Principal Michael Abell conducted a home visit at Z.R.'s residence. Additionally, Mr. Abell conducted two parent conferences, one student conference, and he called Z.R.'s residence numerous times.
Z.R. directs our attention to T.D. v. Commonwealth, 165 S.W.3d 480 (Ky. App. 2005), which he contends stands for the proposition that the DPP - and not his assistant or designee - must personally visit or attempt to visit the student's residence. As the Commonwealth properly notes, however, T.D. pre-dates the 2006 Amendment to KRS 159.140, which allows for the DPP "or an assistant" to conduct the home visits. In the matter at bar, Assistant Principal Abell - who is characterized in the record as Assistant DPP - conducted a visit to Z.R.'s home. This visit satisfies KRS 159.140, and we cannot conclude that subject matter jurisdiction was lacking as a result of a failure to satisfy this provision.
In a related argument, Z.R. maintains that the court lacked subject matter jurisdiction because no conference with the Court Designated Worker was conducted pursuant to KRS 630.050. KRS 630.050 states that,
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 court-designated worker 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 court-designated worker 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.
Z.R. argues that the AOC "Preliminary Inquiry" form does not reveal whether a conference was conducted with a Court Designated Worker. However, he acknowledges that notations on the form state that Z.R. "has been through the CDW informal process on at least two (2) prior, separate occasions."
Since the Preliminary Inquiry form reveals that Z.R. met with a Court Designated Worker on at least two occasions, it appears from the record that the provisions of KRS 630.050 were satisfied. Additionally, the Commonwealth asserts that Jennifer Williams of the Bullitt County School System met with the Court Designated Worker on February 27, 2013, when the Habitual Truancy petition was signed, again satisfying KRS 630.050. We cannot conclude that KRS 630.050 operates to thwart the Bullitt Family Court's exercise of subject matter jurisdiction on this matter.
Z.R. also maintains that the Standard School Attendance Order ("SSAO") rendered on June 26, 2013, was not a valid court order under KRS 600.020, and could not properly form the basis for subsequent orders and eventual placement with the Cabinet. This order warned Z.R. that he was subject to detention for up to 30 days for any of several infractions including unexcused absences from school. He directs our attention to KRS 600.020(66)(c), which provides that a "valid court order" is an order given to a youthful offender,
Z.R. incorrectly cites to KRS 600.020(24)(c).
[w]ho was given written and verbal warning of the consequences of the violation of the order at the time the order was issued and whose attorney or parent or legal guardian was also provided with a written notice of the consequences of violation of the order, which notification is reflected in the record of the court proceedings[.]
The focus of Z.R.'s argument on this issue is his contention that the court did not warn him of the consequences of violating the SSAO. As such, he maintains that the SSAO was not a "valid order" under KRS 600.020(66)(c) and therefore could not properly form the basis for subsequent penalties including removal to the Cabinet.
Z.R. again acknowledges that this issue is not preserved for appellate review, but argues that it so seriously affects that fairness and integrity of the juvenile court system that is constitutes palpable error.
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The record demonstrates that Z.R. was not placed in the temporary custody of the Cabinet as a contempt penalty for failure to comply with the SSAO, nor that he was caught unaware of the possibility of temporary placement with the Cabinet. Rather, the court's placement of Z.R. with the Cabinet resulted from many months of unsuccessful efforts to encourage, exhort and ultimately to demand that Z.R. attend school without excessive unexcused absences. The trial court examined all reasonable alternatives to placing Z.R. with the Cabinet, including placing him with his grandmother, but each of these options were found to be ineffectual. Additionally, the trial court stated on the record, and Z.R. so acknowledges, that it did not place Z.R. with the Cabinet as a sanction for contempt. We have closely examined this issue and cannot conclude that it forms a basis for reversing the Order on appeal.
Lastly, Z.R. argues that the Bullitt Circuit Court did not have the lawful authority to remove him from his safe and suitable home. He maintains that the Kentucky Unified Juvenile Code only authorizes a child's removal from his biological family in two limited circumstances: 1) as a disposition in an underlying status offense under KRS 630.120, or 2) under its emergency powers granted under KRS 610.010(9) and KRS 610.050, neither of which are applicable herein. He directs our attention to one of the apparent legislative purposes of the juvenile code, to wit, to keep children with their families except when absolutely necessary, and argues that no circumstances were present in the matter at bar to justify his temporary placement with the Cabinet. He seeks an Order reversing and vacating the temporary Order on appeal.
KRS 610.050 provides in relevant part that,
If it appears to the court, by affidavit or by sworn testimony, that the child is . . . in such condition or surroundings that his welfare is being harmed or threatened with harm to such a degree that his best interest requires that his custody be immediately changed by the court from the original custodian to another, the judge may sign an order giving temporary custody of the child to a suitable custodian consenting to temporary custody.See also KRS 630.120, which states that,
(6) When all appropriate resources have been reviewed and considered insufficient to adequately address the needs of the child and the child's family, the court may, except as provided in subsection (7) of this section, commit the child to the cabinet for such services as may be necessary. The cabinet shall consider all appropriate local remedies to aid the child and the child's family[.]
Placement with the Cabinet is a remedy established in both the case law and statutory law for violation of the court's orders seeking to address habitual truancy. Though the Bullitt Family Court did not characterize its temporary placement of Z.R. with the Cabinet as a disposition after a finding of contempt, it would have been within its lawful authority to do so. K.F. v. Commonwealth, 274 S.W.3d 457, 460 (Ky. App. 2008) ("we see no bar to commitment as an appropriate disposition on a finding of contempt.").
Ultimately, the burden rests with Z.R. to overcome the strong presumption that the Bullitt Family Court's rulings are correct. City of Jackson v. Terry, 302 Ky. 132, 194 S.W.2d 77 (1946). "The presumption is that a trial court . . . renders the correct judgment under the facts developed before it." Id. at 78. Z.R. has not overcome this presumption. The facts and the law support the Temporary Custody Order on appeal, and we find no error.
ALL CONCUR. BRIEFS FOR APPELLANT: Renee Vandenwallbake
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Frankfort, Kentucky
Monica Meredith Robinson
Bullitt County Attorney
Tammy R. Baker
Assistant Bullitt County Attorney
Shepherdsville, Kentucky