Opinion
2022-CA-1230-ME
07-07-2023
J.Q.W. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Alana S. Meyer Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Melissa A. Pile Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALLOWAY CIRCUIT COURT FAMILY COURT DIVISION HONORABLE STEPHANIE J. PERLOW, JUDGE ACTION NO. 19-J-00023-006
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Alana S. Meyer Frankfort, Kentucky
BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE: Melissa A. Pile Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
J.Q.W. brings this appeal from an October 12, 2022, Juvenile Detention Order (Status Offense) entered by the Calloway Circuit Court, Family Court Division, (family court) that adjudicated J.Q.W. violated a valid court order and ordered her detained in a secure facility for twenty-six days. We affirm.
J.Q.W. is a juvenile who was born on July 2, 2007.
On June 13, 2022, a Juvenile Complaint for a status offense was filed by the Director of Pupil Personnel for the Murray Independent School District in the Calloway Family Court, alleging that J.Q.W. was a habitual truant. Following a preliminary inquiry, it was determined that informal processing was inappropriate as J.Q.W. was charged with a status offense and had declined to enter into a diversion agreement. As a result, the matter was referred to the Calloway County Attorney. On September 19, 2022, an Adjudication Order was entered wherein the court noted that J.Q.W. had admitted to being a habitual truant, and by so doing had waived her right to a formal adjudication hearing. The September 19, 2022, Adjudication Order further provided that J.Q.W. was ordered to "[a]ttend school classes on time, have no unexcused absences and no unexcused tardies." Record at 21.
On September 22, 2022, the Calloway County Attorney filed a motion requesting that J.Q.W. be held in contempt for her failure to abide by the September 19, 2022, Adjudication Order requiring her to attend school. The following day, September 23, 2022, the family court entered an Order to Show Cause. In the Order to Show Cause, the family court ordered J.Q.W. to show cause why she should not be held in contempt for her failure to comply with the September 19, 2022, Adjudication Order regarding her school attendance. A show cause hearing was subsequently conducted, and on October 10, 2022, a Juvenile
Detention Order (Status Offense) was entered. In the October 10, 2022, Detention Order, the family court made the following findings of fact: (1) the September 19, 2022, Adjudication Order was a valid court order that required J.Q.W. to attend school on time with no unexcused absences or tardies; and (2) J.Q.W. was not attending school in violation of the September 19, 2022, Adjudication Order. The family court ordered J.Q.W. detained for forty-eight hours pending a detention hearing set for October 12, 2022.
The October 10, 2022, Detention Order also ordered the Cabinet for Families and Children to file a report within forty-eight hours in compliance with Kentucky Revised Statutes 610.265(3)(d)3. The report was filed on October 12, 2022. Record at 40-44. It should be noted that the controlling version of KRS 610.265(3)(d)3. was amended by the legislature effective June 29, 2023. The relevant section is now found at KRS 610.265(6)(d)3.
The family court conducted the detention hearing as scheduled. On October 12, 2022, a Juvenile Detention Order (Status Offense) (Second Detention Order) was entered. Therein, the family court noted that J.Q.W. had been adjudicated a habitual truant and had violated a valid court order (the September 19, 2022, Adjudication Order) that mandated she must attend school. In the October 12, 2022, Second Detention Order, the court ordered J.Q.W. to be detained for twenty-six days in a secure detention facility. This appeal follows.
As a preliminary matter, we must consider whether an actual case or controversy exists or whether the instant action is moot. In the October 10, 2022, Detention Order, the family court determined that J.Q.W. had violated the
September 19, 2022, Adjudication Order requiring her to attend school. Thereafter, by the October 12, 2022, Second Detention Order, the family court ordered J.Q.W. to be detained for twenty-six days in a secure facility. J.Q.W. was subsequently released from the secure detention facility on November 6, 2022; thus, the October 10, 2022, Detention Order expired by its own terms.
It is well established that an action may become "moot as a result of a change in circumstances which vitiates the underlying vitality of the action. In such an action, a judgment when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy." Newkirk v. Commonwealth, 505 S.W.3d 770, 774 (Ky. 2016) (quoting Commonwealth v. Terrell, 464 S.W.3d 495, 498-99 (Ky. 2015)). And, as a general rule, an appellate court will dismiss an appeal that has become moot. C.S. v. Commonwealth, 559 S.W.3d 857, 865 (Ky. App. 2018) (citation omitted). However, an action that is technically moot "may nonetheless be subject to appellate review under certain exceptions ...." Id. at 865 (citations omitted). One such exception is referred to as the "capable-of-repetition-yet-evading review exception." Id. at 865. For this exception to apply, two elements must exist: "(1) the challenged action must be too short in duration to be litigated to completion prior to its expiration; and (2) a reasonable expectation must exist that the same party will be subject to the same action again." Id. at 865 (citing Bevin v. Beshear, 526 S.W.3d 89, 90 (Ky. 2017)).
In the case sub judice, both elements exist. Contempt orders, especially those involving juveniles, are very limited in duration. Here, J.Q.W. was detained for twenty-six days, which would not allow adequate time to pursue an appeal. And, given J.Q.W.'s young age, her past behavior, her statement to the family court that she had no intention of going to school, and her statement that she would rather be in detention until she turns eighteen than go to school, there certainly exists a reasonable expectation that J.Q.W. would be subject to another contempt proceeding for failure to attend school. Therefore, we believe that the capable-of-repetition-yet-evading review exception to the mootness doctrine is applicable to J.Q.W.'s appeal. Accordingly, we will review the merits of her appeal.
The Court notes that the Commonwealth's only argument presented in response to the issues raised by J.Q.W. on appeal is that the appeal is moot. The Commonwealth's brief does not address the merits of the substantive arguments raised by J.Q.W. in this appeal. Nonetheless, there is a sufficient record for this Court to review the substantive issues which look entirely to questions of law.
J.Q.W. initially maintains that she was illegally detained in violation of Kentucky Revised Statutes (KRS) 610.265 and Juvenile Code Rules of Practice and Procedure (JCRPP) 18. More specifically, J.Q.W. contends that although the Cabinet completed a written report regarding her behavior, it failed to make a determination as to whether all alternatives or dispositions other than secure detention had been exhausted or were inappropriate.
The relevant law governing secure detention of juvenile status offenders who have violated a valid court order is set forth in KRS 610.265, KRS 630.080, and JCRPP 18.
KRS 610.265(3) provides, in relevant part:
(3) If the court orders a child detained further, that detention shall be served as follows:
(d) Prior to ordering a status offender or alleged status offender who is subject to a valid court order securely detained because the child violated the valid court order, the court shall:
....
3. Within forty-eight (48) hours after the adjudicatory hearing on the violation of a valid court order by the child, exclusive of weekends and holidays, receive and review a written report prepared by an appropriate public agency that reviews the behavior of the child and the circumstances under which the child was brought before the court, determines the reasons for the child's behavior, and determines whether all dispositions other than secure detention have been exhausted or are inappropriate. If a prior written report is included in the child's file, that report shall not be used to satisfy this requirement. The child may be securely detained for a period not to exceed forty-eight (48) hours, exclusive of weekends and holidays, pending receipt and review of the report by the court. The hearing shall be conducted in accordance with the provisions of KRS 610.060. The findings required by this subsection shall be included in any order issued by the court which results in the secure or nonsecure detention of a status offender[.] . . .
KRS 610.265(3)(d)3. (emphasis added).
KRS 630.080(4) provides, in relevant part:
(4) A status offender or alleged status offender who is subject to a valid court order may be securely detained upon a finding that the child violated the valid court order if the court does the following prior to ordering that detention:
....
(c) Within forty-eight (48) hours after the adjudicatory hearing on the violation of a valid court order by the child, exclusive of weekends and holidays, the court receives and reviews a written report prepared by an appropriate public agency that reviews the behavior of the child and the circumstances under which the child was brought before the court, determines the reasons for the child's behavior, and determines whether all dispositions other than secure detention have been exhausted or are inappropriate. If a prior written report is included in the child's file, that report shall not be used to satisfy this requirement. The child may be securely detained for a period not to exceed fortyeight (48) hours, exclusive of weekends and holidays, pending receipt and review of the report by the court. The hearing shall be conducted in accordance with the provisions of KRS 610.060. The findings required by this subsection shall be included in any order issued by the court which results in the secure or nonsecure detention of a status offender.KRS 630.080(4)(c) (emphasis added).
JCRPP 18 provides, in relevant part:
C. Contempt in Status Offense Cases.
1. Contempt for violation of a valid court order.
....
d. Prior to ordering the child to be securely detained because he or she violated a valid court order pursuant to KRS 610.265(3)(d), the court shall order a written report prepared by an appropriate public agency concerning the behavior of the child, why he or she was brought before the court, and state whether all alternatives short of secure detention have been exhausted or are inappropriate. This information shall be included in the court's written detention order.JCRPP 18C.1.d. (emphasis added).
The relevant language of KRS 610.265, KRS 630.080, and JCRPP 18C is nearly identical. All three similarly require that an appropriate public agency must prepare a report concerning the child's behavior and that the report must include whether all alternatives or dispositions other than secure detention have been exhausted or are inappropriate. KRS 610.265, KRS 630.080, and JCRPP 18. In other words, the plain meaning of the relevant language is that the public agency's written report must include information regarding whether all alternatives or dispositions other than secure detention have been exhausted or are inappropriate as concerns the child being detained.
In this case, it is undisputed that the report prepared by the Cabinet provided the family court with information concerning J.Q.W.'s behavior. The
Cabinet's report reviewed the circumstances under which J.Q.W. was brought before the family court, including the fact that J.Q.W. had only attended two days of school during the current school year. The Cabinet's report also pointed out that J.Q.W. had struggled with truancy during the previous school year. The report discussed the likely reasons for J.Q.W.'s behavior and pointed out that J.Q.W. had experienced a great deal of trauma during her lifetime. J.Q.W. repeatedly witnessed her mother abuse drugs and alcohol, and J.Q.W. ultimately witnessed her mother die at home. The Cabinet's report further noted that J.Q.W. indicated she had been sexually abused by a family member. The Cabinet's report pointed out that alternatives or dispositions other than secure detention had been attempted with J.Q.W. The report indicated that J.Q.W. had been placed at Cumberland Hall and/or Rivendell Hospital for inpatient psychiatric treatment on seven occasions. The Cabinet had also placed J.Q.W. in a foster home and in a group home. After J.Q.W. completed the group home program, she was returned home to her mother. Unfortunately, shortly thereafter, J.Q.W.'s mother died, and J.Q.W. went to live with her grandmother. J.Q.W.'s grandmother was unable to persuade J.Q.W. to attend school, and she did not ensure that J.Q.W. attended therapy. J.Q.W. admitted smoking marijuana approximately three times per week in her bedroom at her grandmother's house. The Cabinet's report also noted that there were altercations at home between J.Q.W. and her brother that resulted in police involvement.
Upon review of the report prepared by the Cabinet, we believe that it is evident that the Cabinet had attempted other alternatives or dispositions before the family court ordered J.Q.W. to secure detention. On seven occasions, J.Q.W. had been placed at inpatient facilities for psychiatric treatment. J.Q.W. had also been placed in a group home and a foster home. None of these alternatives or dispositions resulted in J.Q.W. attending school. Therefore, the family court complied with KRS 610.265(3)(d)3., KRS 630.080(4)(c), and JCRPP 18C.1.d. when it ordered J.Q.W. to twenty-six days in a secure detention facility.
J.Q.W. also argues that she did not receive notice of the show cause hearing and that there was no motion filed prior to the hearing. A review of the record indicates that the Commonwealth filed a motion on September 22, 2022, requesting that J.Q.W. be held in contempt for violating the September 19, 2022, Adjudication Order. The record also reveals that the family court entered an Order to Show Cause on September 23, 2022. Therein, J.Q.W. was ordered to appear before the court on October 10, 2022, at 2:00 p.m. to show cause why she should not be held in contempt for failure to abide by the September 19, 2022, Adjudication Order that required her to attend school. The clerk's certificate on the Order to Show Cause reveals that a copy of the Order to Show Cause was mailed to J.Q.W., her grandmother, and J.Q.W.'s attorney. Therefore, we believe J.Q.W.'s contention that no motion for contempt had been filed and that she did not receive notice of the contempt hearing is totally without merit.
J.Q.W. also maintains that KRS 610.080 was violated as she was not afforded separate hearings for the adjudication and the disposition of the contempt charge. KRS 610.080 provides, in relevant part, that "[j]uvenile proceedings shall consist of two (2) distinct hearings, an adjudication and a disposition[.]" And, subsection (1) of KRS 610.080 provides that the adjudication shall determine the truth or falsity of the allegation and shall be made on the basis of an admission or by taking evidence.
In the case sub judice, on October 10, 2022, J.Q.W. appeared before the family court on the Order to Show Cause. J.Q.W. admitted under oath that she was not attending school in violation of the September 19, 2022, Adjudication Order. As a result of J.Q.W.'s admission that she had violated the September 19, 2022, Adjudication Order, the taking of evidence was unnecessary per KRS 610.080(1). In the October 10, 2022, Detention Order, the family court determined that J.Q.W. had violated the September 19, 2022, Adjudication Order and ordered her to appear on October 12, 2022 (within 48 hours) for disposition of the contempt charge.
The September 19, 2022, Adjudication Order adjudicated that J.Q.W. had committed the offense of Habitual Truancy based upon J.Q.W.'s admission of same.
On October 12, 2022, J.Q.W. appeared before the family court for disposition of the contempt change. The family court conducted a hearing on that date to determine if there were any alternatives or dispositions other than secure detention for the violation of the September 19, 2022, Adjudication Order. The record plainly reveals that the family court properly conducted two separate hearings on the contempt - one for the adjudication and one for the disposition as required by KRS 610.080. Therefore, J.Q.W.'s argument on this issue is also without merit.
For the foregoing reasons, the order of the Calloway Circuit Court, Family Court Division, is affirmed.
ALL CONCUR.