M. (A.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED DECEMBER 18, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000485-ME
A.M., A CHILD
v.
APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JOHN P. SCHRADER, JUDGE
ACTION NO. 08-J-02217-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON, AND KELLER, JUDGES.
KELLER, JUDGE: A.M., a child under the age of eighteen, appeals from an order
of the Fayette Family Court committing him to the custody of the Cabinet for
Health and Family Services (Cabinet), as a status offender. For the reasons stated
below, we affirm.
FACTS
A.M. was born on February 16, 1995. On November 6, 2008, A.M’s
mother filed a juvenile complaint with the Fayette County Court Designated
Worker alleging that A.M. was beyond her reasonable control as defined in
Kentucky Revised Statute (KRS) 630.020(2). More specifically, the complaint
alleged that:
during the period of [sic] 11/06/2006 through
11/06/2008, that for the past two years, [A.M.] refuses to
follow his mothers [sic] rules/directives, leaves home
without permission, is using illegal substances, skips
school, is sexually active, makes threats to others, and is
affiliated with the Latin Kings Gang.
Based on the juvenile complaint, A.M. was placed on diversion on November 15,
2008. During the period of diversion, A.M. received services from Lexington Day
Treatment and was placed in M.A.S.H.,1 an emergency shelter for youth in Fayette
County. However, A.M. failed to comply with his diversion agreement by running
away from home, school, and his M.A.S.H. placement; by continuing to use drugs;
and by being physically aggressive at school and at M.A.S.H.
A.M.’s case was subsequently referred to the Fayette Family Court for
adjudication. On December 16, 2008, A.M. failed to appear for his initial hearing
and A.M.’s mother informed the court that A.M. ran away from home on the
preceding day. Accordingly, the family court issued a pick-up order for A.M.
After being taken into custody on December 17, 2008, A.M. appeared before the
family court. At this appearance, the family court considered whether to place
1
Metro Alternative Shelter House.
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A.M. in juvenile detention pending further proceedings, whether to place A.M. in a
detention alternative, or whether to allow A.M. to return home to his mother. The
family court ordered A.M. to be placed in a foster home as a detention alternative.
On December 23, 2008, A.M. stipulated that he was beyond the
control of his parents. The family court released A.M. into the custody of his
mother and allowed him to return home. On December 26, 2008, A.M. ran away
from home again and did not return until December 29, 2008. On December 30,
2008, A.M. stipulated to contempt of court and the family court placed A.M. in
juvenile detention pending his disposition.
At the scheduled January 6, 2009, dispositional hearing, the family
court discovered that a written dispositional report had not been prepared. As a
result, the family court decided to place A.M. in a detention alternative, NECCO,2
pending his disposition. On January 14, 2009, A.M. ran away from the NECCO
offices. Because A.M. failed to appear for his dispositional hearing on February 3,
2008, the family court issued a pick-up order. A.M. was arrested on February 16,
2009 and appeared for a detention hearing on the following day. At that hearing,
A.M. stipulated to another charge of contempt of court, and the family court placed
A.M. in juvenile detention pending his disposition.
At A.M.’s dispositional hearing held on March 3, 2009, the Cabinet
submitted a dispositional report with the recommendation that A.M. be committed
2
NECCO is a private organization that was started by the Necco family and provides services to
at-risk youth in Kentucky, Ohio, Georgia, and West Virginia.
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to its care and custody. This report provided a history of A.M.’s behavioral
problems in school and at home. The report further explained that A.M. had been
placed on diversion but that A.M. failed to comply with his diversion agreement.
The dispositional report also explained that A.M. engaged in risky behaviors, such
as running away, using drugs and alcohol, participating in criminal activities, and
engaging in sexual activities with a twenty-eight-year-old woman. Additionally,
the report indicated that A.M. was being threatened by two different gangs. The
social worker who created the report expressed her concern as well as the concerns
of A.M.’s mother that A.M. would continue to place himself in dangerous
situations and might ultimately lose his life unless committed to the Cabinet.
A.M., through his counsel, filed an alternative dispositional report.
After considering the dispositional report, the alternative dispositional report,
comments from A.M.’s mother, and the arguments of counsel, the family court
committed A.M. to the Cabinet as a status offender. This appeal followed.
ANALYSIS
A.M. contends that the family court erred in committing him to the
Cabinet because the information contained in the dispositional report was not
adequate to make a finding that commitment was the least restrictive alternative.
For the reasons stated below, we disagree.
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We comment first on whether this matter is preserved for review. The
Commonwealth argues that this issue was not preserved because A.M.’s counsel
did not voice a specific objection that the dispositional report submitted by the
Cabinet was lacking in any respect. Therefore, the Commonwealth contends that
this Court should engage in the palpable error standard of review under Kentucky
Rules of Criminal Procedure (RCr) 10.26.
KRS 610.100(1) instructs that “objections by counsel at the
dispositional hearing to portions of the dispositional report shall be noted in the
record.” After reviewing the dispositional hearing and the alternative dispositional
report submitted by A.M.’s counsel, we are convinced that the family court knew
or should have known that A.M.’s counsel opposed the court’s reliance on the
Cabinet’s dispositional report as a basis for commitment. Although it would have
been more appropriate for A.M.’s counsel to make a formal objection, the
submission of the alternative dispositional report combined with the arguments
made by A.M.’s counsel in support of such report at the hearing were sufficient to
place the family court on notice that A.M. found the Cabinet’s report to be
inadequate. Thus, this matter is preserved for review and we need not engage in
the palpable error standard of review.
Because this issue is preserved, we apply the clearly erroneous
standard of review under Kentucky Rules of Civil Procedure (CR) 52.01. A
factual finding of the family court is clearly erroneous if not supported by
substantial evidence. W.D.B. v. Commonwealth, 246 S.W.3d 448, 453 (Ky. 2007).
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Substantial evidence is evidence sufficient to induce conviction in the mind of a
reasonable person. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409,
414 (Ky. 1998).
Prior to committing a child to the Cabinet, “[t]he court shall show that
other less restrictive alternatives have been attempted or are not feasible in order to
insure that children are not removed from families except when absolutely
necessary[.]” KRS 600.010(2)(c). Therefore, the court must “determine that all
appropriate remedies have been considered and exhausted to assure that the least
restrictive alternative method of treatment is utilized.” KRS 630.120(4). “Least
restrictive alternative” is defined in KRS 600.020(35) as follows:
“Least restrictive alternative” means, except for purposes
of KRS Chapter 645,[3] that the program developed on the
child’s behalf is no more harsh, hazardous, or intrusive
than necessary; or involves no restrictions on physical
movements nor requirements for residential care except
as reasonably necessary for the protection of the child
from physical injury; or protection of the community, and
is conducted at the suitable available facility closest to
the child’s place of residence[.]
While the court must impose the least restrictive method of treatment,
[w]hen 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 commit
the child to the [C]abinet for such services as may be
necessary.
KRS 630.120(6).
3
KRS Chapter 645 is concerned with the Mental Health Act of The Unified Juvenile Code.
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A court is, however, obligated to make specific findings addressing its
conclusion that its disposition is the least restrictive alternative. See X.B. v.
Commonwealth, 105 S.W.3d 459 (Ky. App. 2003). In X.B., this Court vacated a
commitment to the Department of Juvenile Justice because the lower court did not
affirmatively state why it felt commitment was the only recourse or what less
restrictive alternatives had been tried. Specifically, this Court stated that “[h]ad the
record clearly indicated that X.B. had been before the court on previous occasions
and that the court had attempted lesser restrictive alternatives, then the result herein
may have been different.” Id. at 461 n.3.
Unlike in X.B., the family court in this case noted that it considered all
of A.M.’s options, but that the only way to keep A.M. safe and away from gang
influence was to commit A.M. to the Cabinet. Further, it is clear from reviewing
the dispositional hearing that the family court considered the dispositional report,
the alternative dispositional report submitted by A.M.’s counsel, arguments made
by counsel at the dispositional hearing, as well as comments made by A.M.’s
mother. Accordingly, the record shows that the family court reviewed the
appropriate resources and, after doing so, determined that commitment to the
Cabinet was the most appropriate way to adequately address the needs of A.M.
Thus, we cannot say that the family court’s determination to commit A.M. to the
Cabinet was clearly erroneous.
CONCLUSION
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For the foregoing reasons, the judgment of the Fayette Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rebecca Hobbs
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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