Opinion
NO. 2012-CA-001449-ME
05-03-2013
S.C., A CHILD UNDER EIGHTEEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT La Mer Kyle-Griffiths Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Candice Jo Hobbs Assistant Shelby County Attorney Shelbyville, Kentucky Jack Conway Attorney General of Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE JOHN DAVID MYLES, JUDGE
ACTION NO. 08-J-00095
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MAZE, JUDGES. LAMBERT, JUDGE: S.C. appeals the Shelby Circuit Court's July 26, 2012, order finding her to be beyond the control of a parent. After careful review, we affirm the order of the trial court.
This case is the second Beyond Control of Parent complaint filed by S.S., S.C.'s mother. The first complaint was filed in June 2008, but S.S. later dismissed the complaint. A second case, 08-J-00095-02, was filed by the Cabinet for Health and Family Services (Cabinet) as neglect, but was later amended to dependency. S.C. was placed in the temporary custody of the Cabinet on February 25, 2009. While in the Cabinet's custody, S.C. was first placed at Wellstone and then at Maryhurst, so she could receive the therapeutic treatment she needed. Custody was returned to her mother in June 2010.
On August 16, 2010, just over two months after her return to her custody, S.C.'s mother swore out a juvenile complaint alleging that her daughter was beyond her control in violation of Kentucky Revised Statutes (KRS) 630.020(2). In the complaint, S.S. alleged that S.C. was:
. . . beyond the control of her mother and step-father. Juvenile lies about where she is going when she goes out. She has been caught smoking cigarettes as well as marijuana. Juvenile has also been caught drinking alcohol. Juvenile has authority issues and is extremely disrespectful. Since May, Juvenile has begun to have unlawful contact with her father. It is court ordered that father only have supervised contact. Mother has a phone bill with proof of juvenile contacting father and father contacting juvenile. Mother is having major surgery soon and cannot have juvenile acting out at home because the juvenile has been violent with mother in the past.Also on this date, S.C., her mother, step-father, and the Court Designated Worker (CDW) met to discuss the case, at which meeting S.C. requested a formal hearing. The following day, August 17, 2010, a preliminary inquiry/formal informal processing criteria and recommendations form was filed in the record stating that the case was not appropriate for informal processing because of S.C.'s request for a formal hearing.
The hearing took place on August 25th, and the record of the hearing indicates that the parties met with the CDW the week prior. During the period from the hearing to the date of S.C.'s disposition, July 25, 2012, there were nearly ten separate reviews. At the disposition hearing, S.C.'s counsel moved the court to continue the case so that a necessary and material witness could be available to provide evidence for the purpose of the court determining the least restrictive alternative. The court overruled the motion.
Testimony was then taken from Mr. Tinsley, the worker with the Department of Community Based Services; Michael Clare, S.C.'s boyfriend; and S.C. herself. Mr. Tinsley mainly testified to the findings in the pre-disposition investigation concerning S.C.'s living arrangements and reports from family indicating that she caused so many problems with relatives that they would no longer accept custody of her.
At the conclusion of the testimony, the court held that S.C. would be committed to the Cabinet. This appeal now follows.
S.C. argues that the trial court erred by asserting jurisdiction over the beyond the control of a parent charge in violation of KRS 630.050. S.C. concedes that this issue was not preserved, but urges this Court to review her claims about subject matter jurisdiction. "Defects in subject matter jurisdiction may be raised by the parties or the court at any time and cannot be waived." B.H. v. Commonwealth, 329 S.W. 3d 360, 364 (Ky. App. 2010) (internal citation omitted). As such, S.C.'s claims concerning jurisdiction are properly before this Court.
S.C. argues that before a child charged with a status offense may be brought to court for a formal or informal disposition of the charge, the CDW must review the allegations and make an affirmative decision concerning the case. KRS 630.050 states:
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:S.C. argues that the requirements delineated in this statute are explicitly mandated to occur prior to the commencement of a case and thus are a matter of subject matter jurisdiction. B.H., supra.
(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.
We agree with S.C. that the statute requires the CDW to make reasonable efforts before referring the matter to court; however the record clearly indicates that in the instant case, the CDW did just that. The CDW met with S.C. and her parents prior to the hearing to discuss the disposition of the case, and S.C. requested a hearing. Rather than being denied a chance at informal help under the statute, S.C. refused it.
S.C. had the right to waive her statutory protection despite the Legislature's use of the word "shall" in KRS 630.050. In Humphrey v. Commonwealth, 153 S.W.3d 854 (Ky. App. 2004), the juvenile waived his right to a transfer hearing in district court and proceeded directly to circuit court on criminal charges. In his later Kentucky Rules of Criminal Procedure (RCr) 11.42 motion, he claimed he could not waive the hearing and argued his attorney was ineffective for not knowing that he could not waive it. This Court disagreed:
Humphrey points out that in utilizing the word "shall" throughout KRS 635.020(2) and KRS 640.010(2), the legislature intended there be no waiver of the preliminary hearing by the minor; thus, Humphrey's waiver was a nullity. We disagree. Voluntary waiver by the minor of the preliminary hearing in KRS 640.010(2) is not an aberration. In so concluding, we refer to KRS 600.010(2)(e), which specifies that "[u]nless otherwise provided, such protections [of KRS Chapters 600 to 645, the Kentucky Unified Juvenile Code] belong to the child individually and may not be waived by any other party." In other words, in this provision, the legislature is signaling its intent that a child may waive any of the rights set out in the Kentucky Unified Juvenile Code, unless otherwise provided. See D.R. v. Commonwealth, Ky. App., 64 S.W.3d 292, 296 (2001) (holding that, under KRS 610.060, "a child may waive the right to counsel only if that child has first been appointed, and consulted with, counsel concerning the waiver.").Id. at 857. (Emphasis added). We agree with the Commonwealth that if a child can waive a statutory right when facing criminal charges in adult court, he or she can certainly waive a statutory right to social services.
We also agree that the court below did have jurisdiction over S.C.'s case because the CDW did in fact follow the language of the statute and did make reasonable efforts to refer the child and her family to an agency before referring the matter to court. It would have been unreasonable for the CDW to force the child to be sent to a social service agency when the child explicitly refused the CDW's reasonable attempt to get her to do so.
Having discerned no error by the court below, we affirm the July 26, 2012, order of the Shelby Circuit Court placing S.C. in the custody of the Cabinet.
ALL CONCUR. BRIEF FOR APPELLANT La Mer Kyle-Griffiths
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Candice Jo Hobbs
Assistant Shelby County Attorney
Shelbyville, Kentucky
Jack Conway
Attorney General of Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky