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T.M.W., A JUVENILE APPELLANT v. COMMONWEALTH OF KENTUCKY
APPELLEE AND NO. 2010-CA-001018-ME J.J.W., A JUVENILE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
OPINIONREVERSING AND REMANDING
This appeal involves two juveniles, twin sisters J.J.W. and T.M.W. J.J.W. and T.M.W. are two sixteen-year-old children who were committed to the Cabinet for Health and Family Services by the Harrison Family Court as status offenders, following a disposition hearing on habitual truancy offenses. On appeal, both J.J.W. and T.M.W. argue that the family court judge violated the principle of the least restrictive alternative in committing them to the Cabinet in light of the fact that the Cabinet's predisposition investigation did not recommend commitment, the Commonwealth did not seek commitment, and the judge made no findings that commitment was the least restrictive alternative. The Commonwealth has filed no response to the arguments made by J.J.W. and T.M.W. on appeal. Having reviewed the record and applicable law, we reverse.
On December 4, 2009, the Harrison County Director of Pupil Personnel (DPP) filed a juvenile petition in the Harrison County clerk's office alleging that J.J.W. and T.M.W. were habitual truants. The Habitual Truancy Checklist form filed with the juvenile petition indicated that the DPP did visit the home and speak with T.M.W. and J.W.W.'s mother, who indicated that her daughters' absences were the result of illness and the recent deaths of family members. At that time, the DPP did not suggest options such as a referral of the twins for school counseling or to the Family Resource and Youth Services Center, but instead included in the “comments” section of the form information gathered from various third parties concerning the twins' recreational activities. Double
At the twins' first court appearance on the habitual truancy charge, their mother explained to the family court judge that she was attempting to enroll the twins in homebound instruction. The mother went on to explain that she was seeking homebound instruction for her daughters because they were both suffering from depression and anxiety over their aunt's murder, and because the mother believed they both have Gilbert's Disease, which affects their liver and which can lead to jaundice depending on the amount of stress the children are under. The mother further testified that she did not initially seek counseling services on behalf of her daughters although she did eventually seek counseling for the girls, and ultimately had the twins enrolled in same by the time of their first court appearance in December of 2009.
During the course of the first court appearance, the judge asked the DPP what he knew about the case. The DPP responded that he believed neither twin “deserved” homebound instruction, nor did he believe that the twins were suffering anxiety over their aunt's death since they were both attending recreational activities outside of school and court dates concerning the person accused of murdering their aunt.
At the conclusion of the first court appearance, the family court judge issued an order requiring the twins to attend school with no unexcused absences or tardies, at least until their mother was able to obtain homebound services. No additional services, referrals, or resources were provided to the family at that time.
Approximately six weeks later, the twins and their mother were in court for a second pre-adjudication appearance. At the time, the county attorney indicated that he would like to set the matter for adjudication since the twins had continued to be truant regularly. When the court asked whether the twins had been going to school, the mother again explained that she had withdrawn both girls from school while she pursued homebound instruction. She also mentioned her concern about the potential stress of a school environment and its affect on the girls' Gilbert's Disease. The family court judge admonished the twins' mother, and informed her that she was in direct violation of the court's previous order requiring them to attend school, and told her that she would need to re-enroll the children in school immediately, or be found in contempt.
Thereafter, the truancy charges for both girls were set for adjudication. Approximately six weeks later, the girls appeared in court, and both entered admissions to the charges of habitual truancy. During the court appearance, the judge noted that both girls had failing grades, and each had one unexcused absence or tardy since the February court appearance six weeks prior. The twins informed the judge that they had both gone to their teachers of their own volition and sought make-up work to bring their grades up.
Subsequently, at the disposition hearing, a predisposition investigation report (PDI) was submitted by the Cabinet. The social service worker who conducted the investigation into the causes of habitual truancy indicated through the report that the twins were part of a very close-knit family, and that both the twins and their mother had reported that their previous school absences could be attributed to their difficulty in coping with a number of recent deaths in their family and a lack of support from school personnel. The social services worker further indicated that the twins' mother had been taking them to regular counseling appointments for depression, but did not feel that the once-monthly appointments were sufficient. The PDI did not specifically indicate that the twins' mother was neglectful, abusive, unsupportive, or ill-intentioned. The main recommendation of the PDI was for the twins to be probated to their mother for a period of one year, which included specific conditions ranging from no further unexcused absences to the implementation of a curfew and community service hours.
At the outset of the disposition hearing, the county attorney advised the court that he agreed with the recommendation of the cabinet. When the twins' attorney was asked about the children's position, she expressed no objection to the overall recommendation of the Cabinet's report, but indicated, with respect to the recommendation that the children attend tutoring for all subjects, that it simply was not possible because some of the teachers had indicated an unwillingness to work with the girls on their grades. The court dismissed that concern, stating that “other tutoring was available.” Double The court also expressed its concern regarding the girls' failing grades,Double and announced that it was not inclined to probate the children because, given the family circumstances, it did not believe the mother needed a “bunch of extra stuff to do.” Accordingly, the court committed the children to the Cabinet, but allowed them to remain home and go to school, advising the twins that if they did not have passing grades by the end of the school year, they would be placed elsewhere. A written juvenile status order was also entered at that time. The twins now appeal from the disposition order of commitment to the Cabinet.
On appeal, the twins argue that the family court's disposition order of commitment to the cabinet was a violation of the least restrictive alternative requirement of Kentucky's Unified Juvenile Code, as well as the Least Restrictive Alternative requirement of the Code. While acknowledging that this alleged error was not preserved below, the twins argue that the court committed palpable error pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26.
In reviewing these arguments on appeal, we note that 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, 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․”
Thus, it is only after implementing the least restrictive method of treatment that the court may “commit the child to the [C]abinet for such services as may be necessary.” KRS 630.120(6).
Importantly, we have previously held that a court is 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.
The twins argue, on the basis of the foregoing, that the court below was forbidden from committing children to the Cabinet unless the record supported a finding that other less restrictive alternatives had been exhausted or were not feasible. The twins argue that sub judice, the record did not demonstrate that commitment was the least restrictive alternative. To that end, they note that this was their first formal court proceeding,Double that they had not previously been offered any community services, that they had demonstrated substantial improvement in school attendance between the pre-adjudication hearing in February 2010, and the date of their disposition hearing in April 2010, and that the Cabinet was not recommending commitment, or suggesting that other services would be unfeasible. Consequently, they argue that the court violated the express mandates of the applicable statutes in deciding, sua sponte, to commit the twins to the Cabinet. Having reviewed the act as a whole, we believe it is clear the legislature intended that the courts and the Commonwealth utilize the option of removing a child from her family only as a last resort. Prior to taking that step, however, the court must demonstrate that less restrictive alternatives were either attempted and failed, or not viable. Indeed, KRS 630.120(6) is clear that the court may only commit a juvenile status offender to the Cabinet when “all appropriate resources have been reviewed and considered insufficient to adequately address the needs of the child and the child's family.”
In the matter sub judice, the PDI, prepared by social services, did not recommend commitment to the Cabinet, nor probation to or services from the Cabinet. Indeed, the primary recommendation of social services was that the twins be probated to their mother, pursuant to a list of conditions intended to address the causes of their truancy. Those conditions included counseling for both the twins and the mother, if necessary, and reading material intended to assist in creating an “action plan” to address the causes of the truancy. There were no other areas of concern noted within the family. None of these facts were disputed by the Commonwealth and, indeed, the County Attorney agreed with all of the recommendations from the Cabinet.
Nevertheless, in ordering commitment to the Cabinet, the court below focused on the failing grades of the twins, and on its desire not to give the mother “a bunch of extra stuff to take care of that she's not going to be able to take care of.” Double ,Double To that end, we believe it is of importance to note that prior to the twins' February 3, 2010, pre-adjudication hearing, the twins each had sixty-nine unexcused absences Double for the school year. However, after the date the twins were court ordered not to have any further unexcused absences, they showed significant improvement by each having only one unexcused absence between February 3, 2010, and the time of the disposition hearing on April 21, 2010. Thus, while their grades may have remained at “failing” level as a result of the prior sixty-nine absences, the record reveals that the twins had drastically improved on their number of absences from school at the time of the disposition hearing and, indeed, had been addressing their failing grades by requesting tutoring and makeup work from their teachers.
Concerning the court's belief that the mother would be incapable of supervising her daughter's attendance at school, this Court is not convinced, in light of the fact that no services or community resources had previously been provided to the family through the Cabinet, that such is the case. We believe that less restrictive alternatives must first be implemented prior to taking a step as drastic as that taken by the court below. The record does not indicate that lesser restrictive alternatives were implemented, nor does it indicate why the court believed commitment to the Cabinet to be the only feasible measure in this matter. We believe that KRS 630.120 clearly requires a consideration of any less restrictive alternatives, as well as a determination that all such resources have been exhausted and were ineffective, prior to the commitment of a status offender to the Cabinet. Accordingly, we believe it appropriate to vacate that order of the court below, and remand in order that findings in this regard be made. Double Wherefore, for the foregoing reasons, we hereby reverse the April 21, 2010, disposition of the Harrison Circuit Court, and remand this matter for all additional proceedings not inconsistent with this opinion.
ALL CONCUR
CAPERTON, JUDGE:
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Docket No: NO. 2010-CA-001017-ME
Decided: February 25, 2011
Court: Court of Appeals of Kentucky.
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