K. (N.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 15, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000041-ME
N.K., A MINOR
v.
APPELLANT
APPEAL FROM CARTER FAMILY COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 08-J-00123
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; HARRIS,1 SENIOR JUDGE.
THOMPSON, JUDGE: N.K., a minor, appeals from orders of the Carter Family
Court finding him a habitual truant, in contempt of court and committing him to
the Cabinet for Families and Children. Because the truancy complaint did not
comply with KRS 630.060(2) and KRS 159.140, we vacate the orders. We also
believe it necessary to resolve an issue relating to N.K.’s admission to habitual
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Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
truancy and the implication of the child’s right to be advised of his constitutional
rights.
A status offense complaint was filed against N.K. alleging that he was a
habitual truant. Attached to the complaint were school attendance records and a
student profile that indicated N.K. had more than eleven unexcused absences.
N.K. appeared at his arraignment and counsel was appointed. The director
of pupil personnel was present at the arraignment and informed the court that
although he attempted two home visits, no one was home on either occasion. The
court then advised N.K.’s appointed counsel to discuss with N.K. whether he was
willing to admit that he was a habitual truant. After a brief discussion among N.K.,
N.K.’s mother, and counsel, counsel returned to the bench and stated, “I spoke
with [N.K.] and his mother, and [N.K.] is willing to admit to a habitual truant.”
However, N.K. neither admitted to habitual truancy nor was there a Boykin
colloquy.
The family court then informed N.K. that he would be subject to the court’s
order that required him to attend school, not leave school without permission, obey
all rules at home, and use no alcohol or tobacco. A disposition hearing was
scheduled for July 24, 2008. N.K. and his sister, also determined to be a habitual
truant, appeared at the disposition hearing at which the prosecutor stated that N.K.
had repeated school absences since the last court date. A contempt hearing was
scheduled for July 31.
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N.K. appeared at the contempt hearing where an agreement was reached that
N.K. and his older sister would receive five-days’ detention until the end of the
year and would be required to ride the school bus. After defense counsel
confirmed the agreement, the court entered an order in conformity with its terms.
At subsequent review hearings, it was reported that N.K. had complied with the
court’s order. At the final review on December 18, 2008, the court granted the
prosecutor’s request to remove N.K.’s case from the active docket.
The case remained off the active docket until November 2009, when a
second truancy complaint was filed alleging that N.K. had eight unexcused school
absences and three unexcused tardies. No further allegations were made. N.K. and
his counsel did not appear at the initial hearing. However, the court merged the
new complaint with the first and scheduled a show cause hearing for December 10,
2009.
N.K. and his counsel appeared at the show cause hearing. The
Commonwealth reported that N.K. had thirty-seven unexcused absences since the
beginning of the 2009-2010 school year. N.K.’s counsel requested a formal
hearing because he had received only the show cause motion and had not been
served with the second complaint and was unable to prepare a defense. The court
refused his request stating that it was a simple case and, within minutes,
commenced the hearing. Counsel stated that N.K. did not contest the absences but
attributed the absences to chronic back pain that he suffered as a result of an
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automobile accident. Summarily, the family court rejected N.K.’s excuses and
found N.K. in contempt and committed him to the Cabinet.
Having recited the factual and procedural history of the case, we now turn to
the issue regarding compliance with the statutes applicable to truancy actions.
Although not preserved, in T.D. v. Commonwealth, 165 S.W.3d 480 (Ky.App.
2005), the Court held it is a matter of subject matter jurisdiction that cannot be
waived.
N.K. alleges that the truancy complaint must be dismissed because it
did not comply with KRS 630.060(2) and KRS 159.140. The Commonwealth
counters that dismissal is not required, but that should this Court conclude that the
complaint was inadequate, remand is appropriate to permit the family court to
conduct a hearing and render findings of fact regarding whether the statutory
requirements were met. We begin our analysis with a review of the applicable
statutes.
KRS 630.060(2) states:
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.
Although the status offense of habitual truancy is not a criminal matter, it can have
severe consequences for the child if the attendance terms are not met, including
possible probation and detention. Thus, the legislature has imposed upon the
director of personnel the duties set forth in KRS 159.140(1) as follows:
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(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;
(f) Attempt to visit the homes of students who are
reported to be in need of books, clothing, or parental
care . . . .
This Court addressed the application of KRS 630.060(2) and KRS
159.140(1) in T.D., 165 S.W.3d 480, where we held that the director's duties are
mandatory and must be met as a prerequisite to bringing a child before the court as
a habitual truant. “[B]ecause 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.” Id. at 482. Although the
director's duties may be burdensome, it was the intention of the legislature to make
it “more rigorous” to resort to the court for intervention into a truancy matter. Id.
The court observed that inevitably there are instances where, regardless of the
efforts of the director of personnel, home visits are impossible and the ability to
ascertain the causes of truancy are frustrated by a lack of cooperation by the
student, parent, or guardian. If so, it is the duty of the court designated worker to
determine if an adequate assessment has been performed. Id.
Despite the unambiguous language in the applicable statutes as
interpreted in T.D., the complaint filed in this case was woefully inadequate. The
“assessment” section required that the dates of visits to the home be stated and the
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conditions of the home be described. Yet, the Carter County School merely stated
“Home visit 3/14/08.” The assessment section also required that the “causes of
irregular attendance, efforts to eliminate these areas, the service plan implemented,
the date services were attempted, and reasons for the failure of such service” be
listed. In response, the Carter County School only stated that eight absences were
excused and “11-65 Days” were unexcused without further detail.
This Court is aware that KRS 159.140(1)(f) was amended after the
court's decision in T.D. and now provides that the director “attempt to” visit the
home of a student who is absent from school if the student is “reported to be in
need of books, clothing, or parental care[.]” However, the General Assembly left
unaltered KRS 630.060(2), which specifically controls in truancy matters and
contains the mandatory directive that an adequate assessment of the child be
performed pursuant to KRS 159.140(1)(c), (d), and (f). Thus, the requirement that
the director visit the student's home and be acquainted with the home’s conditions
prior to filing a truancy complaint was left intact.
The Commonwealth contends that even if the complaint is inadequate,
this Court should remedy the flaw by remanding the case for a hearing for the
family court to render findings regarding compliance with the statutes. Even if we
accepted the Commonwealth's contention that the deficient complaint can be cured
by evidence submitted after its filing, we cannot ignore the salient evidence that:
(1) the director did not acquaint the school with the home conditions of the student;
(2) the director did not acquaint the home with the work and advantages of the
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school; (3) the director did not determine the cause of the truancy through
documented contact with the student's custodian; and (4) the director did not seek
elimination of the causes for truancy. Thus, we conclude that the truancy
complaint should not have been received by the court designated worker and, as a
consequence, the orders adjudging N.K. as a habitual truant and the order finding
N.K. in contempt are vacated.
Although N.K.’s remaining arguments are rendered moot by our
decision, we are disturbed by the procedural posture of this case and, as urged by
the Commonwealth, conclude that the issue regarding the validity of N.K.’s
admission is one that warrants discussion and clarification for future truancy
adjudications. As the Commonwealth noted in its brief: “[A] troubling practice
was followed by the Public Advocate, that unfortunately is recurring in family
court cases. . . .” We agree.
We stress that habitual truancy is a status offense and the proceeding
is not criminal. Nevertheless, it is a judicial proceeding against a child relating to
the fault of the child with possible severe consequences. As a result, the criminal
protections provided by the constitution apply. T.D., 165 S.W.3d at 483.
A basic premise of constitutional law is that an admission of guilt for
which the state may impose punishment must be freely, voluntarily and knowingly
entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The court is required to put forth the “utmost solicitude” in “canvassing the matter
with the accused to make sure he has a full understanding of what the plea
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connotes and of its consequence.” Id., 395 U.S. at 243-44, 89 S.Ct. at 1712-13.
Because the entry of a guilty plea or an admission to habitual truancy waives
certain constitutional rights, the waiver of those rights cannot be presumed from a
silent record. Hartsock v. Commonwealth, 505 S.W.2d 172 (Ky. 1974).
The initial error in this case is that N.K. did not enter an admission to
habitual truancy. The admission consisted solely of counsel stating that N.K. is
“willing” to admit to being a habitual truant. The error was perpetuated when the
family court failed to question N.K. if that was his admission and failed to advise
N.K. of the potential consequences of the admission and question him to determine
if he understood the consequences of his plea. Our conclusion reached in J.D. v.
Commonwealth, 211 S.W.3d 60, 63 (Ky.App. 2006), applies equally to habitual
truancy proceedings:
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.
We hold that an admission to habitual truancy must be entered by the child, not by
counsel. It is further held that the court is required to inform the child of his
Boykin rights at the time it accepts the admission.
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Based on the foregoing, the orders of the Carter Family Court
adjudging N.K. a habitual truant and finding him in contempt and committing him
to the Cabinet are vacated.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gail Robinson
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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