H. (B.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 17, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
B. H., A CHILD
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 08-J-00575
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: B. H., a child, appeals the order of the Fayette Family Court
finding that he violated KRS1 630.020(3), and committing him to the Cabinet for
Families and Children (Cabinet) as a status offender. After a careful review of the
record, we vacate the court’s order because the court did not have jurisdiction over
Kentucky Revised Statute(s).
the matter; we remand with instructions for the court to dismiss the action from its
I. FACTUAL AND PROCEDURAL BACKGROUND
The record in this case reveals that the complaint filed against B. H. in
the present case by the Court Designated Worker (CDW) alleged that B. H. was a
status offender because he was a habitual truant, in violation of KRS 630.020(3).
The CDW contended in the complaint that during an approximately four-month
period, B. H. had “accumulated 19.64 unexcused absences and 3 unexcused tardies
for [the] 2007-2008 academic school year according to the DPP [Director of Pupil
Personnel] report.” The CDW’s Juvenile Truancy Referral Checklist that was filed
the same day as the complaint stated only B. H.’s name, the school he attended,
and the number of unexcused absences and unexcused tardies that B. H. had
accumulated. This checklist stated “N/A,” presumably for “not applicable,” in
regard to the following: B. H.’s history of truancy; mediation; whether a
compulsory education violation had been filed on B. H.’s parent; whether B. H.
had participated in any truancy intervention program; and whether a home visit,
face-to-face, or telephone contact had been conducted by the DPP, a school social
worker, a school counselor, or a school administrator.
Six days before filing the complaint in the family court in this action,
the CDW filled out a “Preliminary Inquiry Formal/Informal Processing Criteria
and Recommendations” form. That form stated that “[a] preliminary inquiry was
conducted” on that day, and the people present at the inquiry were: B. H., his
mother, his stepfather, and the CDW. The only other information the form
contained was that B. H. had “accumulated over [eleven] unexcused days” and,
based on that criteria, the CDW checked a box stating that the case was not
appropriate for informal processing. Preprinted language on the form then stated
that because the case was not appropriate for informal processing, it was
recommended that the “case be referred to court for a formal hearing or an
Five days later, a docket sheet with the court’s signature was filed.
Notes that were handwritten on that docket sheet stated: “IOC; appt DPA; stip to
HT; VCO; CAP orders.” Another handwritten note stated that a review of the case
would be held several weeks later. We assume that the term “stip to HT” meant
that the court found that B. H. had stipulated to the status offense charge of
habitual truancy. Orders were then entered directing B. H. and his mother to
submit to drug testing at the Community Alternative Program (CAP) and
appointing a public defender for B. H. Additionally, a Juvenile Status Offender
Order (JSOO) was entered finding B. H. to be a status offender relating to habitual
truancy, pursuant to KRS 600.020(28). Preprinted language on the JSOO stated
that the court found the child was subject to the court’s jurisdiction pursuant to
KRS 630.020. Additionally, the JSOO ordered B. H. to: obey all rules of his
home; attend all school sessions on time, have no unexcused absences and no
behavior problems at school; not consume, use or possess any alcoholic beverages,
tobacco product or illegal drugs; submit to random drug testing; and comply with
drug testing orders.
Following the next in-court review, B. H. was ordered to enroll and
participate in summer school, and he was referred to the Truancy Assessment
Center (TAC). He was also ordered to cooperate with TAC and follow TAC’s
recommendations. A TAC Assessment and Recommendation report was filed
concerning B. H., stating that he had accumulated a total of thirty-four unexcused
absences, three tardies and two days suspended for the 2007-08 school year. B. H.
had been suspended on those two occasions for skipping class and disruptive
behavior. However, the report stated that since his last court review a little over a
month before the report date, B. H. had accumulated zero absences, two unexcused
tardies and four days suspended (due to disobeying staff and using profanity or
vulgarity). The TAC report also provided that B. H. was failing six of his seven
classes in high school. It reported that, according to his mother, B. H. had been
diagnosed with depression, anger and anxiety, as well as “Crohn’s disease (causes
inflammation of the digestive tract) and Costochondritis (causes chest pain).” The
TAC recommendations were for B. H. to attend and participate in summer school
and complete twenty hours of community service.
At a later court review, the court ordered that B. H. not be withdrawn
from school; that he “file for homebound” if his doctor thought it was necessary;
and that B. H. bring his grades and “point sheet” to his next court appearance.
Subsequently, B. H. was placed on Cabinet supervision; the family
court entered an order granting temporary custody of B. H. to his grandmother; B.
H. was ordered to continue to work with the Cabinet and diversion,2 and to have
“no UA/UT/Behavior,” which we assume means that he was to have no unexcused
absences, unexcused tardies, or behavioral problems at school. The court also
entered an order allowing B. H. to withdraw from school to pursue his GED.
A predispositional report was later prepared and filed by the Cabinet.
In it, the Cabinet noted that B. H. had “made little effort and no progress in
working toward or obtaining his GED,” and that “Diversion and Impact Services
have exhausted their efforts to assist”3 B. H. The report stated that “IMPACT plus
[was] the fourth consecutive in-home intervention for [the] family,” and that
“IMPACT ha[d] made the decision to exit services with [the] family due to the
lack of progress and the high level of noncompliance with both [B. H. and his
custodial grandmother].” The Cabinet’s report recommended:
1. [B. H.] be drug dropped today to identify any type of
drug use and if results are positive:
A. [B. H.] be assessed by the Ridge for possible drug
treatment and follow all recommendations.
B. [B. H.] remain in the custody of his guardian, [his
2. [B. H.] be drug dropped today to identify any type of
drug use and if results are negative:
This was the first indication in the record that B. H. was working with diversion.
This was the first indication in the record that B. H. had been receiving any social services
A. [B. H.] be given FCO’s4 by the court.
B. [B. H.] remain in the custody of his guardian, [his
The family court reviewed the Cabinet’s report and adopted its recommendations
as orders of the court.
The Cabinet prepared another predispositional report prior to a
subsequent court hearing. The Cabinet reported, inter alia, that B. H. had “made
little effort and no progress in working toward or obtaining his GED” and that B.
H. had “failed to follow through with orders of the court.” The report’s
recommendations were for B. H. to be committed to the Cabinet as a status
offender with the following court orders[:]
1. [B. H.] cooperate with placement.
2. [B. H.] will follow recommendations of service
3. Family will cooperate with [the Cabinet, including]
monthly home visits and case planning.
4. Family will follow recommendations of placement
providers in order to ensure [B. H.’s] success in
The family court then entered an order finding that B. H. had violated
KRS 630.020(3). The court noted that it had received recommendations pursuant
to KRS 610.100 regarding the case, that reasonable efforts had been made to
prevent B. H.’s removal from the home, and that continuation in the home was
No explanation was provided for what “FCO” means.
“contrary to the welfare of the child or removal from the home [was] in the best
interest of the child.” The court adopted the recommendations set forth in the
dispositional report and committed B. H. to the Cabinet as a status offender.
B. H. now appeals, contending that: (a) his due process rights were
violated when the trial court assumed jurisdiction over the status offense petition
despite the Commonwealth’s failure to affirmatively establish compliance with the
express mandates and purpose of Kentucky’s Unified Juvenile Code; (b) the
truancy petition must be dismissed due to the failure to comply with KRS
630.060(2) and KRS 159.140; (c) the finding of guilt must be set aside because
there was no admission and no plea colloquy; and (d) the court committed
reversible error by committing B. H. to the Cabinet based on violations of a JSOO.
A. CLAIM THAT DUE PROCESS RIGHTS WERE VIOLATED WHEN
COURT ASSUMED JURISDICTION
B. H. first alleges that his due process rights were violated when the
family court assumed jurisdiction over the status offense petition despite the
Commonwealth’s failure to affirmatively establish compliance with the express
mandates and purpose of Kentucky’s Unified Juvenile Code. Specifically, B. H.
contends that the Commonwealth did not comply with KRS 630.050. That statute
provides as follows:
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 courtdesignated 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.
B. H. acknowledges that this claim is not preserved for appellate
review. However, he contends that this issue is one concerning subject matter
jurisdiction. We note that “defects in subject matter jurisdiction may be raised by
the parties or the court at any time and cannot be waived.” Commonwealth Health
Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky. 1996).
In the present case, we found no evidence in the record to show that
the Commonwealth complied with the provisions of KRS 630.050 before
commencing judicial proceedings in the family court, although B. H. apparently
did begin receiving assistance from social services and working with diversion at
some point. It appears that, because the statute’s language requires compliance
before commencing any judicial proceeding, the legislature’s intent was to make
the requirements of KRS 630.050 a matter of subject matter jurisdiction. See T. D.
v. Commonwealth, 165 S.W.3d 480, 482 (Ky. App. 2005) (discussing another
statute under the Unified Juvenile Code concerning status offenders, i.e., KRS
630.060, and stating that “because the language of the statute requires compliance
before a complaint may be received, the legislature intended to make these
requirements a matter of subject matter jurisdiction.”). Therefore, the family court
did not have subject matter jurisdiction over this case.
B. CLAIM REGARDING NONCOMPLIANCE WITH KRS 630.060(2) AND
Alternatively, B. H. contends that the truancy petition must be
dismissed due to the Commonwealth’s failure to comply with KRS 630.060(2) and
KRS 159.140. Specifically, B. H. asserts that the truancy petition that was filed in
this case contained insufficient information because it simply alleged
habitual truancy by B. H. due to unexcused absences and
tardies “according to the DPP report.” That report is
apparently the “CDW Juvenile Truancy Referral
Checklist.” The form is nearly blank, basically including
only B. H.’s name, high school and number of unexcused
absences/tardies. The sections dealing with possible
participation in a truancy intervention program, home
visit, face to face or home contact are all marked “N/A”
for being inapplicable. And the form is not signed. The
only other document provided by the school was the
“student profile attendance report” which simply listed
attendance information. These documents starkly reveal
the inadequacy of the school’s efforts on behalf of B. H.
Because the Board of Education and the CDW did not
comply with KRS 630.060(2) and KRS 159.140 the
finding that appellant was guilty of habitual truancy must
be reversed and the charge dismissed or the case
remanded to family court for further proceedings.
(B. H.’s appellate brief, p. 9) (internal citations omitted). B. H. acknowledges that
this claim is not preserved for appellate review, but he contends that it is an issue
of subject matter jurisdiction, which cannot be waived. See Commonwealth
Health Corp., 920 S.W.2d at 47. Alternatively, he asks this Court to review this
claim for palpable error under RCr5 10.26.
Kentucky Revised Statute 630.060(2) provides: “No complaint shall
be received by the court designated worker alleging habitual truancy unless an
adequate assessment of the child has been performed pursuant to KRS
159.140(1)(c), (d), and (f), unless it can be shown that the assessment could not be
performed due to the child’s failure to participate.”
In the present case, the Commonwealth did not show that an
assessment could not be performed due to B. H.’s failure to participate. Therefore,
before the CDW received the complaint alleging that B. H. was a habitual truant,
an adequate assessment of B. H. pursuant to KRS 159.140(1)(c), (d), and (f) was
required to be performed. In pertinent part, KRS 159.140(1) provides as follows:
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 as described in KRS
159.150(3), 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;
Kentucky Rule(s) of Criminal Procedure.
(f) Attempt to visit the homes of students who are
reported to be in need of books, clothing, or
The Commonwealth failed to present any evidence showing that the
required assessment under KRS 159.140(1) was performed before the complaint
was received by the CDW. In T.D., 165 S.W.3d at 482, this Court held that the
director of pupil personnel is required to perform the goals set forth in KRS
159.140(1)(c), (d), and (f) before a complaint may be received by a CDW and
before a child may be brought before the court, and that these requirements are a
matter of subject matter jurisdiction. Thus, because no evidence was presented in
the present case to show that the assessment was performed by the DPP before the
CDW received the complaint, the CDW should not have received the complaint
under KRS 630.060(2) and, according to the T. D. case, the family court should not
have assumed jurisdiction over this matter because there was a lack of subject
C. CLAIM THAT FINDING OF GUILT MUST BE SET ASIDE
Although we found, supra, that the court lacked subject matter
jurisdiction over the habitual truancy petition in this case, we nevertheless will
address B. H.’s remaining claims to the extent they may arise again during family
B. H. next asserts that the finding of guilt must be set aside because
there was no admission and no plea colloquy. He alleges that counsel was
appointed for him and counsel advised the court “that B. H. was willing to stipulate
to habitual truancy,” but “B. H. did not admit to habitual truancy nor was there a
Boykin v. Alabama, 395 U.S. 238[, 89 S.Ct. 1709, 23 L.Ed.2d 274] (1969)
colloquy.” B. H. acknowledges that this claim is not preserved for appellate
review, but he asks this Court to review this claim for palpable error under RCr
Kentucky Rule of Criminal Procedure 10.26 provides as follows: “A
palpable error which affects the substantial rights of a party may be considered . . .
by an appellate court on appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a determination that manifest
injustice has resulted from the error.”
As applied and analyzed in J.D. v. Commonwealth, 211 S.W.3d 60,
61-62 (Ky. App. 2006),
Boykin is the seminal case in the arena of the validity of a
guilty plea. In Boykin, the U.S. Supreme Court stated
that “[s]everal federal constitutional rights are involved
in a waiver that takes place when a plea of guilty is
entered in a state criminal trial. . . . We cannot presume a
waiver of these [ ] important federal rights from a silent
record.” [Boykin] 395 U.S. at 243, 89 S.Ct. 1709. The
Supreme Court ultimately held that the trial court
committed error when it “accept[ed] petitioner’s guilty
plea without an affirmative showing that it was
intelligent and voluntary.” Id. at 242, 89 S.Ct. 1709. In
D.R. [v. Commonwealth, 64 S.W.2d 292 (Ky. App.
2001)], this Court stated that “it [is] beyond controversy
that Boykin [ ] applies to juvenile adjudications.” 64
S.W.3d at 294, FN2. The D.R. court went on to state
The validity of a guilty plea must be determined not from
specific key words uttered at the time the plea was taken,
but from considering the totality of circumstances
surrounding the plea . . . . These circumstances include
the accused’s demeanor, background and experience, and
whether the record reveals that the plea was voluntarily
made. Id. at 294.
The Sixth Circuit Court of Appeals has also weighed in
on this issue in a federal case arising out of the Western
District of Kentucky, for which the juvenile had counsel.
In Laswell v. Frey, 45 F.3d 1011, 1015 (6th Cir. 1995),
the court stated:
Upon review, this Court notes that an adjudication
demands a determination of the truth or falsity of the
allegations, and that a determination of the truth requires
more than the simple verbal admission at the detention
hearing at issue in the instant case. The Court is
persuaded that, because no inquiry was made of the
veracity of the charges or admission, because no inquiry
was made to determine if “the plea” was voluntarily
made, and because no inquiry was made as to the nature
of the charges, that the proceedings cannot later be
transformed from a determination of probable cause for
detention into an acceptance of a valid guilty plea.
Our review of the record reveals that the district
court explained J.D.’s Boykin rights to him only during
the August detention hearing related to the terroristic
threatening charge. However, the district court did not
specifically review these rights in the context of his
decision to admit to both the terroristic threatening and
assault charges the following month. In fact, J.D. had
never been apprised of his Boykin rights in relation to
either the assault or beyond control charges. Thus, there
is no evidence in the record to establish that his
admission to the charges was voluntary and intelligent at
the time it was entered. The situation in this case is quite
similar to those of D.R. and Laswell, although J.D. was
represented by counsel, unlike D.R. in his case.
The record in the present case shows that under
any test, the bare minimum for compliance with Boykin
was not met. We recognize that juvenile proceedings are
by nature less formal than adult proceedings; and we are
aware of the great number of cases most district judges
handle. However, juvenile adjudication proceedings
must meet constitutional muster, and this one does not.
There was no colloquy whatsoever; and from the record
it appears that the juvenile’s attorney responded to the
district judge’s questions at the adjudication. Under KRS
610.080(1), “[t]he adjudication shall determine the
truth or falsity of the allegations in the petition and
shall be made on the basis of an admission or
confession of the child to the court or by the taking of
evidence.” (Emphasis added).
Based upon binding precedent, we must hold that
the district court improperly accepted J.D.’s admission of
guilt without first informing him of his Boykin rights at
the time it accepted the plea, a step necessary to
establishing that his plea was voluntary and intelligent.
Accordingly, the district court should have granted J.D.’s
motion to set aside the adjudication and disposition. The
circuit court, in turn, committed reversible error in
affirming the district court's ruling.
(Underline added; internal notes omitted).
Upon reviewing the video record from the March 31, 2008 hearing, it
is apparent that counsel was appointed to represent B. H., and counsel then
stipulated to the charge of habitual truancy. However, B. H. never personally
admitted his guilt; therefore, we are not certain that he actually did admit to the
status offense charged. Regardless, even if we were to assume that counsel’s
stipulation qualified as an admission of guilt, the court never conducted the
required Boykin colloquy and counsel’s stipulation to the charge, without the
appropriate colloquy, does not pass constitutional muster under J.D. Nonetheless,
on the same day as the hearing, the court entered a JSOO, finding B. H. was a
status offender because he was a habitual truant pursuant to KRS 600.020(28), and
ordering him to obey the rules of his home; attend school on time, with no
unexcused absences and no behavior problems at school; not consume, use or
possess any alcoholic beverages, tobacco products or illegal drugs; and submit to
random drug testing.
There was no evidence that B. H. had any previous experience with
the court system. Further, because the court did not conduct the required colloquy
with B. H. and did not inform him of the constitutional rights he was purportedly
waiving, B. H.’s guilty plea was not made knowingly and intelligently. See D. R.,
64 S.W.3d at 295-96. We find this error by the family court amounts to palpable
error, requiring reversal of B. H.’s guilty plea.
D. CLAIM REGARDING B. H.’S COMMISSION TO THE CABINET
Finally, B. H. alleges that the court committed reversible error by
committing B. H. to the Cabinet based on violations of a JSOO. Specifically, B. H.
contends that the
only consequence for violation of the order of which [he]
was given notice [was] that he could be held in contempt
“which could result in a fine and/or [his] being placed in
secure detention or other alternative placement.” KRS
630.120(1) states that any child violating a JSOO “may
be subject to the provisions of KRS 630.080(4)” which
deals with secure detention for contempt. B. H. was
never advised at the disposition hearing or thereafter that
he faced possible commitment to the Cabinet if he
violated the JSOO and commitment was thus not an
option for the court.
Again, B. H. acknowledges that this claim was not preserved for appellate review,
but he asks us to review it for palpable error under RCr 10.26.
B. H. admits in his brief that the court informed him he “could be held
in contempt ‘which could result in a fine and/or [his] being placed in secure
detention or other alternative placement.’” (Emphasis added). Therefore, because
he was warned that he could be placed somewhere else if he was held in contempt,
he was given notice of the consequences for violating the court’s order. However,
our review of this issue is futile because, as discussed supra, the family court did
not have subject matter jurisdiction over the habitual truancy petition from the
start. Moreover, even if the court had subject matter jurisdiction, B. H.’s guilty
plea would have to be reversed because it was not entered voluntarily and
intelligently and, thus, the JSOO was an invalid court order and B. H. could not be
held in contempt for violating an order that was not valid.
Accordingly, the order of the Fayette Family Court is vacated, and the
case is remanded with instructions for the court to dismiss the action from its
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Assistant Public Advocate
Erin E. Burns
Special Assistant Attorney General