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Volume 22, No. 4,
July 2000 |
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– AN OVERVIEW
by Gail Robinson, Juvenile Post Disposition Branch (JPDB)
Manager &
Tim Arnold, Assistant Public Advocate, (JPDB) |
The 2000 session of the General Assembly enacted relatively few laws affecting juveniles who may be subject to the jurisdiction of the Juvenile Code. This article supplements Ernie Lewis’s "New Laws of the 2000 General Assembly" and contains some background, analysis and practice tips.
The most far reaching and potentially beneficial piece of juvenile legislation enacted in this session was House Bill 296. The bill was proposed by the Juvenile Justice Advisory Committee (JJAC) to deal with portions of Kentucky’s Juvenile Code which conflicted with provisions of the federal Juvenile Justice and Delinquency Prevention Act (JJDP Act) of 1974. For many years, Kentucky had been out of compliance with the JJDP Act relating to status offenders and thus had failed to receive significant federal funding. The JJAC and the Department of Juvenile Justice have been determined to bring Kentucky into compliance with that Act, and significant progress has been made. Enactment of HB 296 is another substantial step in bringing Kentucky into compliance with the Act. Moreover, it should promote protection of the rights of status offenders and, hopefully, ensure that such children are not inappropriately detained.
"Beyond Control of Parents/Schools"
As background, a "status offender" is a child who commits an act which, if committed by an adult, would not be a crime. KRS 600.020 (52). Status offenses include habitual truancy, habitual runaway, beyond control of parents and beyond control of school. KRS 630.020. Section 1 of HB 296 amends KRS 600.020 to define "beyond control of parents" and "beyond control of school." Amazingly, these terms were not previously defined, creating numerous legal and factual problems. The "beyond control of school" definition now requires that a student have repeatedly violated "lawful regulations for the government of the school" as provided in KRS 158.150 with the petition describing the behaviors "and all intervention strategies attempted by the school." This definition will permit attorneys for juveniles to challenge premature and meritless petitions. Additionally, "beyond control of parents" is now defined to require that a child repeatedly fail to follow reasonable directives of his parents with resulting danger to himself or others. Thus, advocates can file motions to dismiss petitions which do not conform to those requirements and ask for directed verdicts when the proof does not meet the necessary standards. Hopefully, these new definitions will limit petitions filed because a juvenile was disrespectful to a teacher or failed to do his chores. By narrowing the class of eligible status offenders to those juveniles who clearly need the services of the court, the General Assembly has enabled the juvenile courts to spend more time with needy juveniles, wasting less time on kids whose problems can be readily addressed within the community.
"Valid Court Order" Defined
HB 296 also includes a definition of "valid court order." This term comes from the JJDP Act. While that Act generally bars secure detention of status offenders, there is an important exception for status offenders who have been found by the court to have violated such an order. Unfortunately, in some juvenile courts in Kentucky, the exception has nearly swallowed the rule. A typical scenario follows. A child is brought before the court on a status offense petition, for example truancy, admits to the truth of the petition, often without counsel, and is ordered to attend school. When the child fails to attend school, he is brought back before the court for contempt, admits to a violation (again, often without counsel) and is ordered to serve time in detention.
KRS 600.020(59) "defines valid court order" as a court order issued by a judge to a child alleged or found to be a status offender:
(b) Whose future conduct was regulated by the order;
(c) Who 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; and
(d) Who received, before the issuance of the order, the full due process rights guaranteed by the Constitution of the United States.
Protections for Status Offenders
Moreover, KRS 610.265 has been amended to provide significant protections for status offenders accused of violating valid court orders. Prior to ordering such a child securely detained, the court must have a detention hearing where it does the following:
a. affirm the requirements for a valid court order were met at the time
the original order was signed.
b. find probable cause the child violated the order
Additionally, the court must:
Otherwise, this bill clarifies what "detention" means and defines the various types of detention facilities: intermittent holding facility, juvenile holding facility and secure juvenile detention facility. It bars status offenders, including those facing contempt charges on underlying status charges, from being detained in intermittent holding facilities prior to a detention hearing. Even after a detention hearing, status offenders can only be detained in secure facilities if the valid court order provisions are violated.
This was, in general, DJJ’s "clean-up bill." It contains the first expansion of the automatic firearms transfer provision of KRS 635.020(4). A child who uses a firearm "whether functional or not" in the commission of a felony is subject to transfer if he is 14 years of age or over at the time of the offense. This amendment is unlikely to widen the automatic transfer net very far.
A positive amendment to KRS 635.055 permits children who are found in contempt to be held in youth alternative centers or DJJ alternative to detention programs. Amendments to KRS 635.100 which deals with revocation of supervised placement permit DJJ to issue subpoenas and require an administrative regulation (which DJJ has already enacted) concerning significant aspects of the hearing such as burden and standard of proof.
MISCELLANEOUS
HB 170 amends KRS 600.020(1) which defines "abused and neglected child" to include children whose parents have failed to make satisfactory progress on a court approved case plan, thereby causing the child to be in foster care 15 of the last 22 months. This is relevant to juvenile court practitioners who must frequently deal with the question of whether a child can return home and, if not, where else he can live.
Various provisions in the juvenile code have been amended to grant the district court power to make permanent custody awards in cases where the child has been neglected or abused by the parent. Notable among these provisions for the defense advocate are (a) KRS 610.125 has been modified to require permanency hearings for children who have been out of the home more than a year; and (b) that the Cabinet no longer is required to make "reasonable efforts" to reunite a parent and child when the parent is going to be in prison for at least a year.
Tim Arnold
Assistant Public Advocate
Juvenile Post Disposition Branch
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Phone: (502) 564-8006
Fax: (502) 564-7890
Email: tarnold@mail.pa.state.ky.us
Gail Robinson
Branch Manager
Juvenile Post Disposition
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Phone: (502) 564-8006
Fax: (502) 564-7890
Email: grobinson@mail.pa.state.ky.us