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B. H. v. Commonwealth

Court of Appeals of Kentucky

November 22, 2013

B. H., A JUVENILE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM BULLITT JUVENILE COURT HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE ACTION NO. 12-J-00081

BRIEF FOR APPELLANT: John Wampler Assistant Public Advocate Frankfort, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky

Monica Meredith Robinson Bullitt County Attorney Shepherdsville, Kentucky

Shelly Alvey Special Assistant Attorney General & Assistant Bullitt County Attorney Shepherdsville, Kentucky

BEFORE: ACREE, CHIEF JUDGE; JONES AND MOORE, JUDGES.

OPINION

MOORE, JUDGE:

B. H., a minor, appeals the Bullitt Juvenile Court's order placing her in the temporary custody of the Cabinet for Health and Family Services ("Cabinet"). After a careful review of the record, we affirm because the Standard School Attendance Order was a valid court order and the court did not err in placing B. H. in the temporary custody of the Cabinet.

I. FACTUAL AND PROCEDURAL BACKGROUND

B. H.'s mother filed a status/public offender petition against B. H. alleging that she was beyond control of her parent. The mother contended, in pertinent part, as follows:

[T]he . . . juvenile is consistently punching holes in the walls breaking anything in reach; cussing parents and siblings and throwing things. The affiant states that the police have been called on [B. H.] several times. The affiant states that the homelife is not healthy due to [B. H.'s] behavior. . . . The affiant states that [B. H.] does not help with anything around the house. The affiant states that her youngest daughter is on medication for migraines due to the stress from the above juvenile. The affiant states that the above juvenile [does not] think she needs to be held accountable for her actions. . . . The affiant states that she will not get up to go to school and it is a fight every morning. The affiant states that she bought her an alarm clock and she demolished it [three] days later during one of her rages.

Included in the record is an unsuccessful diversion agreement dated approximately three weeks prior to the date the beyond control petition was filed in this case. The unsuccessful diversion agreement, which was signed by a court designated worker, states that "[m]om advised me that after meeting with me on 1/11/12 [B. H.] has not been going to school and as part of her diversion she is to go to school every day." It also states that "[m]om has had to contact law enforcement to assist her in getting [B. H.] to school."

At B. H.'s arraignment, she entered a "not true" plea. She was ordered to follow the "house rules" (submitted by her mother)[1] and the Standard School Attendance Order (SSAO) entered by the court. B. H.'s mother was ordered to take B. H. to the Department of Public Advocacy's office before court. The Cabinet was ordered to open a case for the purpose of "service linkage." The SSAO, directed at B. H., provided as follows:

Effective 2/29/12, until further order of this Court or until the jurisdiction of this Court ceases, whichever comes first, you are hereby placed under the Standard School Attendance Order (SSAO) of the Bullitt District Court. Under this Order, you are subject to DETENTION for 1-30 days for any of the following infractions: Unexcused Absences or Tardies as determined by school officials; Bus, ISAP or Office Referrals; Suspensions; or Tobacco/Alcohol/Drug Violations.
If a violation of this order occurs, you will receive written notice to appear for a Contempt Hearing. At that hearing you are entitled to be represented by an attorney. If you or your parent(s)/guardian(s) cannot afford an attorney, you may apply to have the Public Defender appointed to represent you. If you wish to be represented by the Public Defender, you must fill out a written application with the District Court Clerk IMMEDIATELY upon receiving any Contempt Hearing notice. Your failure to appear with an attorney or to make timely application for appointment of the Public Defender, without good cause shown, shall not be grounds for a continuance.
Served upon the above juvenile in open court in the presence of his/her parent/guardian.

The SSAO was signed by B. H.'s mother and the court.

The Commonwealth filed a motion for contempt on the basis that B.H. failed to comply with the SSAO. In support thereof, the mother filed an affidavit stating B. H. had missed at least three days of school since the SSAO was entered, and B. H. had texted her multiple times one day stating very negative things, which was against the house rules. A hearing on the motion was scheduled, and the court ordered B. H. to be placed in the Cabinet's custody pending the hearing.

The court's order following the contempt hearing revealed that no one was present for the hearing; B. H. had a one-week pass with her mother; a show cause order was going to be issued for the mother; and the Cabinet was going to call the mother to tell her B. H. had to be returned to the ...


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