My Child Was Arrested!

 

 

    As parents, we hope that we will never have to become familiar with the Juvenile Court process. The reality, however, is that parent of children with significant emotional or developmental problems will, at some point, be confronted with the Juvenile Court process. The purpose of this column is to give a brief introduction to the Juvenile Justice process for the uninitiated. For the purposes of this material, the term parent also includes people serving as legal guardian. Where the masculine gender is used, it includes the female.

    Unlike the Common Law which serves as the basis of many aspects of our lives, Juvenile laws and procedures are primarily statutory or regulatory. Twenty years ago our Kentucky legislature adopted the Unified Juvenile Code. This Code is now found in Chapters 600 through 645 of the Kentucky Revised Statutes. In addition to this statutory scheme, the Department of Juvenile Justice and the Cabinet for Families and Children have regulatory authority over various aspects of "the law."

    As indicated in the legislative preamble to the Code, the stated purpose is to always look to the "best interest of the child." To that end, the Code attempts to balance the interests of society, the parents, and the children.

    When the typical adult is charged with a crime, the ultimate issue is whether he is guilty to a specific violation of the Criminal Code. In situations not involving major felonies or purely motor vehicle violations, the ultimate determination is not whether the Juvenile is "guilty" of a felony or misdemeanor, but whether they are adjudicated to be a Juvenile Delinquent. In the real world, "adjudicated" is the same as "guilty."

    The typical juvenile offense charge originates with the filing of a sworn petition with the District Court. The statutes make it clear that the District Court has the primary jurisdiction in these matters, and that either the District Court in the county where the offense is committed or the District Court for the county in which the juvenile principally resides may exercise jurisdiction. More often than not the county of residency becomes the controlling court.

    Once a petition is filed, the parent and the juvenile are typically brought before a "Court Designated Worker," commonly called the CDW. The CDW is charged with the initial responsibility of conducting an inquiry about allegations which have been made. If the offense charged would not constitute a major felony if committed by an adult, the CDW exercises significant discretion in determining how the matter will be resolved. The CDW may determine that no further action is to be taken and simply dismisses the charge. The matter may be referred to an appropriate individual or social agency for additional action. The juvenile may be placed under "probation" under a diversionary agreement with the CDW. Depending upon the severity of the charges and the juvenile’s prior contact with the criminal justice system, the CDW may refer the matter to Court for an informal adjustment, or for a formal hearing. While the CDW exercises significant discretion in these matters, his decision is always subject to review by the District Court or the County Attorney. The Court, upon its own motion or by request of the County Attorney, may refer any complaint for a formal hearing.

    If the matter is referred for a formal hearing, the Court will cause the juvenile and his parent to be summonsed to the Court. The summons is typically delivered by a representative of the local Sheriff’s Department. The summons will direct the parent and the juvenile to appear before the Court on a specific date and time to respond to the allegation(s).

    The first court appearance is typically very similar to the arraignment process used for adults. Unless specifically waived by the parent and child, the Court will inform the parties of the allegations made, their constitutional rights, including the right to have a hearing and to have legal representation provided if parent cannot afford to hire an attorney. In some circumstances the Court will not only appoint an attorney to represent the child, but may appoint a counsel to represent the parent as well. (You can check KRS 610.060 for a more detailed explanation of the rights which must be explained by the Court at the initial appearance.) Following this arraignment process, the case is typically continued to a latter date for the Court to hear evidence concerning the truth of the allegations in the petition.

    While the juvenile is entitled to a formal hearing, most cases are resolved by a stipulation about the allegations. This is comparable to the "guilty plea" for an adult. If the Court accepts the stipulation of the allegations, the adjudication phase of the proceeding is completed. If the juvenile does not stipulate the allegations, a hearing is held before the Court, without the intervention of a jury, for the Court to make findings as to truth or falsity of the allegations.

    If the Court concludes, either by stipulation or a finding based upon the evidence, that a pubic offense has been committed, the Court must then have a separate hearing before imposing the "sentence." KRS 610.080 makes it clear that the juvenile proceedings are to consist of two distinct hearings, the adjudication, and the disposition. Unless specifically waived by the child, after consultation with an attorney, these two distinct hearings are to be held on separate days.

    Unless waived by the child and his attorney, following the adjudication, an investigation must be conducted before the disposition hearing. KRS 610.100 provides that the investigation "shall include an inquiry into the child’s age, habits, school record, general reputation, and everything that may pertain to his life and character. The investigation shall also include an inquiry into the home conditions, life, and character of the person having custody of the child. The investigation shall also include an assessment of the parent or guardian’s ability to pay all or part of the cost of the child’s care and treatment should the child be ordered into a treatment program or placed on supervised probation." The same statute provides that a copy of this written report is to be provided to the Court and the counsel for the parties three days before the child’s disposition hearing. More often than not, the three-day advance copy does not occur before the assigned date for the disposition hearing. (As with most other rights, this time limitation can be waived by the affected party.)

    At the disposition hearing, the investigative report will be considered by the Court. The Court is charged with also hearing any objections to the report raised by the juvenile or the parent. The child, his parent and counsel will be heard, together with any other witnesses or other evidence considered relevant by the Court to decide the appropriate disposition.

    At any point during the process, the Court, may informally adjust the matter. An informal adjustment is tantamount to a finding of "not guilty" and the charges are dismissed on such terms and conditions as directed by the Court.

    If the matter goes through the full cycle of the Juvenile Court, at the disposition hearing the Court is charged with the responsibility of determining the actions to be taken on behalf of, and in the best interests of, the child. Unless the offence is extremely serious or the charged juvenile has an extensive record with the Court, the typical disposition is some species of a probated sentence which can include restitution, payment of court costs, and the performance of community service. Typically, the child is placed on probation to the parent. Under these circumstances the parent is charged with the responsibility of notifying the Court if the child fails or refuses to comply with the other terms of the probation.

    In cases where, by history, the child has failed to respond to the reasonable direction of the parent, the child may be placed on probation to a representative of the Department of Juvenile Justice. For the more serious offenses, or where the child has a repeated history with the Court, the disposition can include commitment of the child to the Department of Juvenile Justice, the Cabinet for Families and Children, a child-caring facility, or a child-placing agency. This extreme removal action is always a choice of last resort.

    If probation has been granted at the disposition hearing, the Court will typically require the parties the return to court for a review of the probation. This means that the Court requires the parent and the child to appear on a specific date in the future for the Court to consider compliance with its previous orders. If the Court is satisfied that all conditions have been met and that there is no further need for future review, the probation is ended. If the Court, on the other hand, finds that certain items have not been satisfied or that additional monitoring is necessary, the case can be continued for further review.

 

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