RENDERED: MAY 14, 2015 $43 LPU MS JED ?npreme Gland Hf 1 (HBO Emma-Aha Q.M., A CHILD UNDEREIGHTEEN APPELLANT ON REVIEW FROM COURT OF APPEALS V. CASE NO. CHRISTIAN CIRCUIT COURT NO. JUVENILE COURT NO. COMMONWEALTH OF KENTUCKY APPEEJLEE OPINION OF THE COURT BY JUSTICE NOBLE REVERSING VACATING The policy and processee that make up the juvenile justice system, laid out in Kentucky in the Unified Juvenile Code, have received a'greet deal of attention cm a natienal level over the last few years once it became widely known that millions of dollars were being spent to ineareeratejuvenile offenders indiscriminately, to remove max-1y from their homes for minor offenses, and to de this with very little due process. Anne 8. Tiegen, Nat?l Cenf. of State Legis., Legislative Reforms in Juvenile. Detention and the Justice System 7 (2015).' Juvenile eohrzs, charged with determining the best interests of the juvenile defendants before them, often faced complicated family iseues and lacked training about the speci?cs of juvenile growth and development. There 3 This document. can be accessed at the National Conference of State Legislatures? website, at http: /xw?w.1?1cel. org/deed en ts ej /j .pdf. were limitscl remedies available: to deal with an ever-increasing number of children being brought into court. Kentucky has been. at; the forefront of this imtional debate, as is evidenced by sweeping changes to the existingjuvsnilo code: relating to status and public. offenses through a legislative enactment commonly referred to as Senate Bill 200. See: 20.14- Ky. Laws Ch. 132 (SB 200). This legislation roSulted from recognition of escalating budgetary for the existingjuvenilc offense system without a commensurate increase in successful outcomes. Legislative leaders formed a task force that met. for two years, studying the existing current research about how best to aid children with the problems that brought them into the and tho financial impact: of juvenile. treatment. The report from the task force was the catalyst that. led to the passage of Senate Bill 200, part of which took effect in 2014, with the rest to go into effect July 1, 20,15, This case, however, arises under the version of the statutes in effect 131?in to the amendments of Because this case concerns a juvenile code: process knoWn as an ?informal adjustment,? which is a concept carrisci over to the newly revised. code, albeit with Changes, and the facts of this case raise questions about the validity of the process as applied, this court granted discretionary review to determine the scope of a juvsnile court?s authority in Unless otherwise noted, the citation to and quotation of portions of the juvenile code am: to those prmisions in effect in 20'! when the underlying rttiocotl should also be noted that the. revisions to cocls coasted tl?lmugh 200 scworsl of the issues midi-assoc} in this Opinion. 64} issuing and monitoring an informal adjustment. Additionally, this Court seeks to clarify the rights of 23. child subject to this process. I. Background On. April 13, 201 1, ?Jon,?3 the then fifteenyeaoolcl Appellant, was in class late in the day. For whatever reason, he pulled his penis out ofhis pants, put it on the shoulder of tho student in from of him, and trisd to stick it in the student?s car and hit him. in the face: with it. This caused a disturbance, and a juvenile Complaint was filed two days later. This was oomortsd to a petition charging Jon with tl?i?rdoegme sexual abuse. Then, on April 1C), 201.1, Jon was srrostod and. brought before the district court, where he was clotairmcl. At the next; court; date, 1} on was reprosontod by Jason lwlolland, a. con?ict attorney for tho division of tho .lf.)opza2rtmom; of Public: Advocacy (DPA), becauso the lc?mally assigned DPA juvenile defender was conflicted out clue to representing the complaining witness. Jon was released from detention on a. soliditionsl ordor of release. During this time, Jon also had pez?idingjuvcnilo offense, case on a of assault that had occurred a domestic Violonce incident between his mother and her ewboyfricnd Then, on May 24, 201 during a pretrial conference, the district: judge ordered that Jon?s case be ?informally adjusted" on the condition that he move out of th -: state of Kentucky to Oklahoma to live with his father, and the existing order of release with its conditions was terminated. That is the extent 3 This name is a pseudonym, used to maintain the uvonilo?s anonymity 21ml improve roaclalriility over the earlier practice of using initials. 3 +7 ?tlu?gcnd SEQ) 312 1:95:11 110;) ?gemgiwqm) sum {lop use; ?mg mom-2mg?. ?(53 Stem mam .?Iaqwqm pure ?1uam13nfpra mallow; am J0 suommwu am .1 noqez spam 319m muamn?m ou pm; 113111.20;ng am 1'0 $141,191} at? 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[Emmy pgozya 13pm mp mm A?Idmm (n panon 9.19m (umponsm 1:38:31 8ng cum) pm; uop ?Rummamg u; Mme} meg Jamar auop ?pamagpuy .IQJEEI pmaeu 31.13 3V Sm ?mm em? on iamaam 1; 11mm jo annamemci 9qu .10 ?amwg awn? ?ugpnpug ?uogupuoo 323L110 Km; $311313 mu 3:90p 1313.10 :9ng ?A?meN 399143 301130;) 1.1mm E: uo LEangJAxpqu sum ?.:apm my) JO because the: attorney ?standing in? was. conflicted out from making substantive arguments. on his; bohall". The district court sustained the motion to ro?dookot charges ?as ho did not stay in Oklahoma with dad.? Jon was released on ?strict? conditions of roloaso and ordered to appear the following week for a. pretrial conference, of which Jason Holland was to be notified. After the court ruled on this motion, there {as some between {he DPA lawyer and Jon?s mother about; Where to go to find Jason Holland?s of?ce. In response to the DPA lawyer, Jon?s mother attempted to explain that; Jon was back in Kentucky for sovorai reasons: he was unhappy away from her and his home, he felt his .l'atl'ior favored his stopwzhildron, and most importantly, a dependency, neglect and obuoe cage I?nay have boon initiated again the. father in Oklahoma, which put Jon at} risk. As the child?s legal custodian, the mother wanted him out; of harm?s way. During the conversation, a male voice, possibly that of the prosecutor,"i can be hoard saying, ?Ho?s supposed to slay? more [Oklahoma] for those charges to go away.? In response to Jon?s mother?s explanation, the male voice can be hoard saying: ?Okay. That?s lino But those Charges have to come back.? The record is not clear, but: it appears that the prosecutor believed the Kentucky Children ?8 Law Center had been conoulied about representing Jon. At an appoa ?once: on. December 1'33} 201 l, the prosecutor stated that ho had ?4 In light of when [his oorwersatzion took place (after lhojudgo?s ruling), the male voico was possibly that of :he out ii: is impossilgilo to conclusively disch based on the record, which only of an audit.) tape. The quality of the recording is low and tho voices are distorted, makes it dif?cult to discern who is Speaking to whom. Thug. it is not completely clear whether Jon?s motl'ior was; speaking to the court or the prosecutor as she tried to explain the situation. I) received a, cell from an ?agency? that. he had been told the week before would be ?represeming Jon. He said that. that unnamed agency said that they do not do criminal cases and thus it was his Understanding that Jon was not represented at that time. He then noted that Jon needed to find out, whether he was going to get. a private attorney or how: another DPA~oonflict attorney appointed. Jon?s mother said she would hire a private attorney} The judge ordered that they appear on. December '22 with an attorney. The written order refers to the lieniucky Children ?3 Law Center, noiing that it. does not, represent children in juvenile court. ?l"here is no recording of the December 2'2 appearance in the record. A written order, however, states that; on {her date, Jason Holland was reappointed conflict counsel, and that the matter was scheduled for a pretrial conference on January 10, 2012. The. recording of the Januazy 10, 2012 appearance is very short; Rather than a pretrial conference, it, appears to have been trai?isformed into an adjudi 'tation hearing at which Jon entered an ?admission? on the sex~abuse charge as part of an agreement with the prosecution. The pending assauit case was nearly two years old by that time, and it was to be dismissed as part of that: agreement. The judge called the case, brie?y described the deal {in no more than two sentences), and then undertook a very short colloquy on the ?admission.? The colloquy consisted of four questions: 1) Are you ?admitting that you committed sexual abuse third degree?? 2) ?Has anyone made a. threat or promises to you to make you make this admission?? 3) re you 1.1 nder the influence ol drugs or alcohol today?? and 4) ?Are you entering this admission 6 volimtorily and oi?your own free wiil?? No information was given that as 21 juvenile semml offender, Jon could remain in sexual-offender treatment for 11p to four years, well post his eighteenth birthday, pursuant to KRS 635.515. Though Jason Holland had previmgisly been reappointed to represent Jon, the record does not Show Wht?li?lef he attended the January .10 hearing. The only voices that can be heard on the recording, are those of the judge, the prosecutor, and Jon. After askingtloh ili?lOSC four questions, thejudge stated quickly?: ?Show mode, waived rights? He then the ease for a disposition hearing on Jzzmuai?y .31, 2012, ordered the Department of Juvenile Justice (IDJJ) to prepare report, and again left. Jon on ?strict? conditions of release. it appears that the January 3} hearing did not happen. lhstead, the matter was continued, several times, uratil Match 27, 2012. At that time, Jon appeared. with his mother. The prosecutor opened by stating that Jason Holland had been appointed. to represent Jon, but that he and his mother had contacted Holland about hiring a specific private attorney. In response to this thejudge said, guess my question is: for what purpose? llyou think l?m going to ailow him to withdraw his admission, am not. And the disposition is probably going to be what is being recommended right now. But if you want a week to get an attorney over to the dispositional hearing, be glad to give it to you, but one week only.? He then ordered that Jon appear the next week with a lawyer for his dieposition hearing; At that next. appearance, the judge ordered the matter continued to April .17. The court?s order stated that thie woe to be the ?last continuance.? At the April 17' hearing, Jon?s mother again appeared, stating she had trouble getting an attorney. Disposition was reset to May 15, 2012. The court?s order stated that the family ?was to hire an attorney or that Jason Holland would stand in at the disposition hearing. The handwritten docket order noted: At the May 15 disposition, the trial court considered the Juvenile Sexual Offender Assessment filed by DJJ, removed Jon from his home and ordered him detained until placement, and emmnitted him to DJJ as a juvenile sexual offender for placement: in an, ?appropriate the fact he had been in the community for nearly a year without any further offensesw-rathe!? than. ordering treatment in the community. His placement was scheduled to be reviewed in June. Shortly after entry of this; order, a DPA lawyer from Frankfort entered an appearance for Jon. and pursued post-judgment motions. Jon?s new counsel eventually ?led ?23. notice of appeal to circuit court, which af?rmed the district court. The Court of Appeals denied discretionary review. Jon then sought discretionary review from this Court, which was granted for the reascms Stated above. II. Analysis The juvenile. public-offense properly sclmimsitsred, differs dramatically from the adult criminal process, although over the years criminalv case terminology has been imported imo Lhejuvenilc process because certain criminal law concepts, such as due process and the requirement of proof beyond, a reasonable doubt, HRS 610.0809), are also required by the juvenile code. But sjuvcnils offense is not crime. It: is instead an allegation of an act committed by ajuvcnilc, ?which, if committed by an adult, would be a crime, whether the same is a. felony, misdemeanor, or violation.? KRS (2201]). Juvenile actions are brought ?in the interest. ol? thcjuvcnilo, id., rather than against juvenile, as occurs in the adult advm?sarlal process. Although the allegations in such juvenile actions mirror elements of the criminal. charges that, can be made sgsins; adults, hccausc ol? the nature ofjuvcnilo actions, are many procedures and considerations that apply to juveniles that do not: apply to adults, and the statutes clearly state that a juvchils offondcr is not. a criminal. KRS 635.040. KRS although amended by the recent: statutory revisions, always the legislative purposes behind the: juvenile code. That: provision requires that efforts are to bc made to protect children; to strengthen. and encourage? family life; to maintain the biological family unit; and to conduct. data collection and research. to support ongoingjuvenilo practices. This is distinguished from the process for resolving a status~offonss action, whicl'l is ?any action brought in the imsrost of a child who is accused of committing acts. which if committed by so adult, would not he a crime. Such behavior shall not be consiclm'cd criminal or dolinqucm and such children shall be termed status KRS (2011). 9 To further support {this nurturing zhanciate, the recently ai?riencleci KRS emphasizes a preference for ill-hOITlG intewentions, and avoiding out-ohhome placements ?Lo the extent possible.? KRS further staiecl at; the Lime. ol?Jon?s action (and stili states) that children have a ?right: to treatment reasonably calculated {0 bring about an improvement of {the} condition? that brought them before the court. And this statute, both, before and after the amendment, has mandated fairjudicial proceedings which. recognize the rights and iniei?ests of all parties KRS And while the prior version 600.010l2) was in effect at the time this case arose, both the general and specific language in. the prior statute cah certainly be to suhsume the more speci?c directives of the current: of the statute. With this broad mandate of protection and rehabilitation in mind, this court must; begin by looking at the court process set out in the juvenile code in. order to understand whether the process applied in this case was appropriate. Generally, a juvenile case begins with the ?ling of a complaint with the. Court Designated Worker (COW). The CDW has several options at that point as set out in KRS 610.030, which wili no: change until later this year. First, the CDW reviews the compiaint, which is acmally a preucourt document filed on a prescribed form, to clarify what is being claimed. The complaint is sent to the county attorney who reviews the claim, and determines whether there is probable cause to proceed. KRS At that point, the CDW has several statutory optiOl?lS, including cletm'miz?iing that. no further action is necessary and disposing of the complaint; referring the child for social services; or, with. .I 0 agreen?lent of the child, pissing the child in a diversion program if he meets certain criteria. KRS (On successful completion of the diversion, the case is Closed and he never goes to court.) But there are other options that can apply based on the facts and the child?s history with the juvenile system. If diversion fails, or if the child does not qualify or rejects diversion, or diversion is otherwise inappropriate, the case may then proceed to a petition {which ia'toorporates the complaint) and which is filed with the clerk of the court, given a case file number, and the case: proceeds in court a juvenile matter. The COW may recommend informal adjustment or formal court proceedings, or make no recomnflendation st all. HRS 1.0.tisotzltaltm Once a case is before the court, the court has two options; proceed with 'l?ormsl juvenile court proceedings; or dispose of the case through an informal adjustment, KRS 610.1008) (replaced by KRS 6.10.105 effective July 1, 201.5). The full processes of formal juvenile court proceedings need not be discussed here, as it is the informal adjustment Option that is at issue in this case, although some parts of formal court proceedings will be noted later to showcase differences in the two approaches to the juvenile ease. An ?informal adjustment? is ?an agreement reached among the parties that the best. interest of the child would he served witl'toutfomtal adjudication and disposition. KRS 60002064) (emphasis aclded).5 The agreement must be made with ?consultation, but not the consent, of tho victim of the crime,? id, f3 At the time of Jon proceedings, this de?nition was under subsection (31} of KRS 600.020. it still reads the same, however. 1 and it must be ?approved by the court,? id. To illustrate when. this process bypasses, we must look at. what ?formal? proceedings require. ?Adjudication? and ?disposition? are legal terms of art when used in the juvenile code. In fc.>rmal juvenile proceediogs, they are the final steps in concluding a particularjuvenile complaint, and the statute requires ?two (2) distinct hearings,? or a bifurcated proceeding. KRS 610.080. ?The adjudication shall determine the truth or falsity of the allegations in the petition KRS 610.080f1). .lt cert amount to an. evidentiary hearing on the charge which allows for witnesses and presentation of evidence, or it can he the point. at which an ?admission? or ?confessim?i? is taken and evidence is not prostituted. KRS 6100800.). This is not a ?guilty plea,? thoughit is frequently referenced as such in cor?t?imon usage, wl?iicl'i impern?iissibly injects criminal connotations. KRS 6.335.040. Because th adjudication determines the truth or falsity of the petitiori, it necessarily decides whether a status or public of loose has occurred, and if so, What it is. All hearings are to be conducted ?in a formal mariner? unless otherwise Specified by statute. KRS ?310.07ol2). These are not hearings open to the public, and only specified persons may be present. KRS 610.0706). Because a chiid can be removed from his home and placed with the Cabinet or put in the custody of Ddd, the statute requires due process rights and thus if requested requires application of the Rules of Criminal Procedure, 61.0.0809], which also erroneously implies criminality to the juvenile. Any evidence the court relies on must rise to the level. of proof beyond s, reasmiable doubt, also the criminal standard. The Rules of Civil Procedure also apply. I'd. If the child is 1?2 found to have committed a public: offense, then there are. further statuto? requirements the court must comply with, such as ordering evaluations toxbe done by DH to assist the court in making cliSposition. KRS 610.080 (addressing when a ?formal predisposition investigation report" must be made); KRS 610. 1. 00(1) (addressing content and process of making report). The czlisposition is the second hearing required by KRS 610.080. At that hearing, the court ?Shall determine the action to be taken on behalf of, and in the best interest of, the child.? KRS It provides a child the opportunity to be heard on the the court is; considering, which includes the predisposition investigation report. [Disposition can result in several alternatives, including piti?bation, placing the child on eourt.~mooitored supervioitm, or commitment of the child to the Cabinet for Health and Family Services; (Cabinet) or to DJJ. KRS 635060; KRS 6310.} 10(4). Corrlmitment to the Cabinet normally means the child is placed out of the home, in foster" care or other Cabinet facilities? Commitment to DJJ usually means the chiicl is placed in unsecure or secure detention for a prescribed period of time. But when a. court makes decision to proceed by informal adjustment, it by definition deciding that the ease ShOUld not proceed to formal adj udieation and disposition, in. the best interez'st of the child. KRS 60002064). This is a significant decision, and as defined and applied, removes the procedural rights and safeguards that accompany formal court proceedings. At the some time, however, it is a ?nding that this child does not need the benefit of formal court prcmeecliogs, and that tl?lere are ltematives that are better for him. And he and the county attorney must agree. KRS 600.020(34) provides; 13 that. a ?i nformel sdjesrmenr? (as opposed to a formal Court proceeding) requires an agreement; reached among the parties to the case. A victim may be consulted about the agreement, but time not ham: to consent. Thus when a court proceeds with an informal adjustment, an agreed-upon resolution to the case occurs rather than an adjudicated disposition. informal adjustment was thus never intended to cover cases where there is a serious offense, or where there is a need for extensive e" 'aluations or corrective our~ofwhome placements. The intent of the statutes allowing informal adjustments is that: {he court has discretion to recognize when a case so be resolved best. for the child without: going through the court process because the child committed a low?level offense or a. first, out~of~ cl?isrseter offense, or the child?s problems may already have been remedied, or the child?s family has the situation under pmper control. But even so, informal. adjustments are not without certain requirements, and the court?s discretion is not unfettered. There must be notice to all parties and the victim, and an agreement between the child end the county attorney to proceed with the terms of an informal adjustment instead of formal juvenile proceedings. Again, this agreement: is necessary, because by proceeding with an informal adjustment; the child waives many due process rights, such the right. to contest; the charges against him. By this agreement, whether the child actually committed the offense or not, he agrees to be subject to the conditions the court then sets as the ?adjusimentl? If the child successfully performs the terms of the informal adjustment, then the case should be dismissed. l4 But sometirigiss the Child fails to perform Whatever conditions the court has set, and that is when many of the quostior?is in this case. arise. What can the court roquir-r as proper conditions, and what can the court do if the conditions of an iriforirial odjustmont are not met? Applying this legal framework to the case: before us, we must begin with looking at the record of the proceedings, which is sparse in comparison to cases originating in Circuit court. 'i"hero is little supporting documentation in the record, but. what is available {oils to establish why this case was from a formal procooding to an informal adjustment. A recording of the hearing at which the informal adjustment (motored was not includod in. the. appellate record and may not: exist. Converting the hose clearly permitted, because an informal adjustment can ho made at any time during the on proper notice to the victim and all interested parties, KRS 610.100l3). And it is implicit in prooeoding with so informal adjustment that the court found that it was in the child?s best interest to do so? But there is nothing in the record that closrly demonstrates why tho court chose: this route. Nor is there anything in the record that establishes that the inforirisl adjustment was agreed to by the child. To the contrary, nothing in the record establishes that the. child and his mother wanted. him to leave Kentucky and go to live with his father amoog strangers in another state. Nonetheless, the court proceeded to order the literal. banishment of the Child from Kentucky, is ootod in the court?s entry on the docket shoot. 'l?hore is no explanation as to why this more was in the: child?s best ii'itorcst, nor why this approach was superior to formal procoodings. Worse 15 still, the order itselfineludes no limit on how long Jon had to live with his father (and thus it had no duration}; under what circumstances Jon might be allowed to return to Kentucky, many of which could easily be anticipated; nor any indication of consequences should the child not obey the order. if the order required Jon to live with his father indefinitely, the district court, in effect, entered a. Change of custody order without a hearing on the propriety of the father as a custodian, which is not within a district court?s jurisdiction. This alone would mean that the court?s action. fails to meet the statutory requirements for an ini?ormal adjustment. evei'tl'ieless, if the order was of indefinite du nation, arguably the child did not satisfactorily perform the ordered informal adjustment, be isuse he returned to the state of Kentucky without permission from the court. But it appears that he returned because of difficulties adjusting to his father?s household and because his father was the subject ofa dependency and neglect investigation in Oklahoma. The failure to provide for this possibility and thereby leave the Child an out if it tires impossible or uhreasonablo for him to continue living with his father, perhaps more than anything, establishes the impropriety of the court?s order requiring him to live with his father- in another state. Regardless, once the county attorney learned the child was back in the state, he requested the court to ?revoke? the informal adjustment as if it were some kind of proadjudiostion probation, which it is not As the statute makes clear, an informal. adjustment is in place of formal proceedings, and it is appropriate only il? it is in the child?s best interest. But once that route has 16 been invoked, the case does not ?revert? {o a formal proceeding. The court could have imposed a number of requirements a part of the informal adjustment, but did not, Failing the one thing ordered, however, does not mean that the court could then proceed on the charges. The path open to the court is to make further adjustments, or to impose sanctions, not to recharacterize the case as one requiring formal adjudication and disposition. If it was not. in the child ?s best interest; to go forward with formal court proceedings in the first histories, why would it be in his best imercst to do so after he. violated the court?s order? At: the hearing to ?revoke? the informal adjustment, the child ?3 mother attempted to explain to either the prosecutor or the judge described. above why the child had returned. The only response was simply that since Jon was now back in Kentucky, ?cl-iaiges have to come back.? Clearly charges were then being reinstated because the child disobeyed the court?s order, and not because formal proceedings were in the child?s best interest. An informal adjustment and formed proceedings are alternative routes for dealing with. a. child charged with a juvenile-offense. There is nothing in the. statutes that supports a hybrid process. A case is either informally adjusted or it is tried through the formal court proceedings of adjudication and disposition with their attendant due process Once a child and the other interested parties have agreed to an informal process where these constitutional safeguards are waived, shifting to a. formal process where the child ?s non~ollense conduct during, the used against him resembles a ?bait and switch,? and is not legally supportable. i7 The trial court orrod when it changed the caso from an informal adjustment to formal proceedings. And while the record on appool does not clearly establish that the child agreed to an informal adjustment in the first place, the fact is that is what he got., and thio Court will presume that orderly and proper procedures wort: followed in the face of a silent record. Nonetheless, it is simply unfair to Change horses in rnidstrearn and formally proceed against him on charges he had every reason to believe were being decided in an alternative manner. Additionally, them is tho factual question as to whether he in foot: failed the informal adjustment Flo actually did move to Oklahoma and Eivo With his fatl?ior l?or somo montl'ls, and only roturnod to Kentucky around five: months later. Tho court?s order did not: specify how long he was to live: with his father, or what the consequences were, i i" any, for returning to Kontuoky. But charges were ?brought back? because the child was back in Kentucky. Banishmont is not 21 legal dispooition under Kentucky law, ovon as a condition of probation or alternative to imprioonmont for adults. $88 Weigond 12. Commonwealth, 397 780, 781 (Ky. 1966) (?The Commonwealth concedes it is beyond the powor of a court to in?ict banishment. as an alternative to imprisonment?). A ohild could, part of an informal adjustment, agree to live with a different parent, but it is clear that a. district court could not enforce such an agreement without the consent of the child?s legal custodian, oven though a district court may remove a child from his homo if the: Child is atrisk of tooth, KRS 6.1.0.050, and can commit a. child to custody after adjudication and disposition. A child can only agree in an informal 18 adjustment to what he is willing to do, and to that which is legal. Certainly the child?s mother, his legal CtiStDCiiEM?l, had rights to be considered in such a. move as well, which the district court had no jurisdiction to contravene. Yet the district court ro-dockotod the charges ?as he did not stay in Oklahoma with dad.? The Child was placed. on ?strict? conditions of release, ond allowed to remain with his mother. Three months; later, apparently an agreement had boon negotiated whorohy the pending assault charge against the child from the altercation with his mother?s owaoyfriond would be dismissed if the Child admitted he had oonmtittod sex abuse in the third degree, a I'nisdoimtanor. in taking the child?s admission or oohfossion, the trial court asked four perfunctory questions, which mostly contained legal terms, and did not explain any of? them. The child was asked to admit that ho had committed third?degree so}: abuse without being told what that meant; ho was asked if he: had been prol?nisod anything; for the. admission when a child might Trasily think that ho had, hooauso of the sgroon?lont to dismiss the assaultohorgo; ho was as.de if he was under tho influence of drugs or alcohol; and whether he was making the admission voluntarily and of his own [we will. His answers were barely audible, though he did answer yos to those ciuostioi'zs, but as a. lowyoorxold Child, thero is- nothiog in'th?o record to indicate that ho Understood what he was answering. There was obviously no oxplonaticm of tho consequences of the admission, which Could involve soxwoi?fondor treatn?iont in ajuvonilo doton tioo facility for throo years with a possible extension of one year, which would dotain him until ago .19. KRS 19 After taking the admission or confession, the court then left the child it} the community on the some ?strict? terms, and set a date for disposition. As noted above, it. is unclear xtrhether the Child had counsel present when he entered the admission, though it is clear that no counsel Spoke up for him. instead, the judge held a perfunctow hearing at which he stated the ?deal? reached on the child?s behalf and then asked the four questions laid out above. The child ?s mother apparently was still seeking other represei?itation for Jon when the disposition was ?rst scheduled, The district judge expressed skepticism that don needed a different lawyer at that point, suggesting that a lawyer would only be present for support. The court did delay disposititm, but told the Child getting a 1163?. attorney at that point was futile, because he would not allow him to withdraw his admission. Dispositioo finally occurred on May 15, 2012, over a year after the ease began, contrary to KRS 6.10.070ll), which requires Speedy hearing. l\t that time, the trial eourt removed him from his home, and committed him to DJJ as aj?uvenile sexual offender. This diSposition was available to the courts?if the child was properly in formal proceedings, and if it was in his best interest. Because the child was adjudicated as having committed a. misdemeanor, it was not mandatory that he be committed. as juvenile sexual offender. But this Child should not have been subjected to formal proceedings. instead, the court had already found that formal proceedings were not in his heist interest, and imposed an informal adjustment. He had been in the community for over a year before disposition. His behavior that was the basis 20 of the charges, whilo boyondidoubt il?iappropriato, is least as indicative of immature, adolescent horsoplay as it is of sexual perversion. Everything in tho rocord points to the. conclusion that this child could have succeeded at an. informal adjustment that set the terms based on his conduct and needs rather than expulsion from the state and from his home and the. custody of his mother. it was error for the court: to have: ordered otherwise. A juvenile case proceeds by either an informal adjustment. or through formal proceedings Once a case has been determined to be sppropriato for an informal adjustment, the cost: cannot be ?returned? to formal proceedings. Electing to pmwod by informal adj ustmont mot-iris that. thoro will not be forn?lol ?promodln on that charge. The: remaining question, thou, wl?iot remedy is appropriate in this case. At the irory least, the district court?s judgment, re?ecting the adjudication and disposition, must be vacated. If the child was young enough to still {all under the jurisdiction ol? thojuvonilo court, then the approprian action would be to return the child to the informal adjustment status, so that the court could apply} reasonable and appropriate terms in the child?s best interest. However, this child was 15 at the time of the charged offenso in 201 I, and should be at least 18 years old at this time. His current status is unknown to the Court. ll' he remains in the custody of DJJ, hf: must be released forthwith, and now being over the. of 18, his case is concluded. Thissituation highlights the complexity and serious repercussions that arise from juvenile public?offense cases. This child did not: receive the: process to which he was entitled. For however long ho was in the custody of DJJ, tho 21 stale bore the cost of his incarceration, which was unwarranted. It is wholly unknown what effect this has; had on him and his familial relatioriships? ll: is to be: hoped that he obtaihed bene?ts from sex-offender treatment and other programs; at DJJ, but research tha? sparked juvenile justice I?efarms I'lationwide has indicated a negative effect from placing low?level Offenders with more serious offenders. Juvenile dockets are often large, and all courts have time limitations. 821% than: an: premribed pmcesses that: must be followed if the courts are to give vale to the intent of the legislature in treating juvenile offenders in a. malmer that: is significantly different from adult offender's, yet, does not Strip them of their basic constitiutional rights of fair Conclusion For [ha lbrgoing reasons, decision of the circuit court i3 reversad, and the district; court?s adjudication and dispositien in this case is vacated. If the Appellant remains in custody, in: is to be released forthwith; and his case Closed. Minion, Abramsmx, Barber and Venters, concur. Cumlingham, J., concurs in result only. Keller, J., not sitting. 122 COUNSEL FOR APPELLANT: Renee. Sara Vandez?mrallbake: Assistant Public: Advocate {Department of Public: Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 4060] CO UNSEL FOR APPELLESE: ask Comvay Attorney General Patricia Pryor Commonwealth Attorney Courlhause Annex 2nd Floor, Smith. Main. Stream l-iopkinsvillc, Kantucky 42240 Jeanne Deborah Anderson Aassistant Attm?I-my ,?zm'xerai Office of the Attorney Gamma! 011306: 01" Crin?linai Appeals .1024 Capital Center Drive Frankfort, 40601?8204 23